IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LEROY J. NELSON, 

 CASE NO. 2:17-CV-0730 

 Petitioner, CHIEF JUDGE EDMUND A. SARGUS, JR. 

 Magistrate Judge Elizabeth P. Deavers 

 v. 

WARDEN, WARREN 

CORRECTIONAL INSTITUTION, 

 Respondent. 

ORDER and 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. Preliminarily, Petitioner has filed an Affidavit of Indigence and requests to 

proceed in forma pauperis. Upon consideration, the Court finds that Petitioner’s motion is 

meritorious, and it is therefore GRANTED. 

IT IS ORDERED THAT the Petitioner be allowed to prosecute this action without 

prepayment of fees or costs and that judicial officers who render services in this action shall do 

so as if the costs had been prepaid. 

This matter is also before the Court on its own motion to consider the sufficiency of the 

petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States 

District Courts. For the reasons that follow, the Magistrate Judge RECOMMENDS that this 

action be DISMISSED. 

Facts and Procedural History 

Petitioner challenges his conviction pursuant to his no contest plea in the Muskingum 

County Court of Common Pleas on possession of cocaine. The Ohio Fifth District Court of 

Appeals summarized the facts and procedural history of the case as follows: 
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On June 3, 2015, the Muskingum County Grand Jury indicted 

appellant, Leroy Nelson, on two counts of possession of drugs 

(cocaine and heroin) in violation of R.C. 2925.11. The indictment 

also contained a major drug offender specification under R.C. 

2941.1410 and a forfeiture specification under R.C. 2941.1417. 

The heroin count was subsequently dismissed. Said charges arose 

from a drug trafficking investigation involving a Wesley Newman. 

Law enforcement officers obtained a warrant and placed a GPS 

device on an orange pick-up truck that Mr. Newman was known to 

operate. They then set up a controlled drug buy, and monitored the 

movements of the vehicle via the GSP system. At some point, 

officers stopped the vehicle and found appellant operating the 

vehicle, carrying cocaine on his person and inside the vehicle. 

On July 28, 2015, appellant filed a motion to suppress, claiming an 

illegal stop and improper Miranda warnings. A hearing was held 

on August 10, 2015. The trial court denied the motion. 

On August 20, 2015, appellant pled no contest to the remaining 

charge and the specifications. By entry filed August 25, 2015, the 

trial court found appellant guilty and ordered a presentence 

investigation. 

On October 5, 2015, appellant appeared for sentencing and moved 

to withdraw his plea. A hearing on the motion was held on October 

14, 2015. By entry filed October 15, 2015, the trial court denied 

the motion and sentenced appellant to eleven years in prison. 

Appellant filed an appeal and this matter is now before this court 

for consideration. Assignments of error are as follows: 

I 

“APPELLANT'S RIGHTS TO BE FREE FROM 

UNREASONABLE SEARCHES AND SEIZURES UNDER THE 

STATE AND FEDERAL CONSTITUTIONS WERE VIOLATED 

BY THE DENIAL OF THE MOTION TO SUPPRESS THE 

WARRANTLESS SEARCH OF THE VEHICLE THAT 

APPELLANT WAS DRIVING.” 

II 

“APPELLANT'S RIGHTS UNDER THE STATE AND 

FEDERAL CONSTITUTIONS, CRIM.R. 11, WERE VIOLATED 
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BY THE TRIAL COURT'S FAILURE TO ENGAGE 

APPELLANT IN AN ADEQUATE PLEA COLLOQUY.” 

III 

“THE TRIAL COURT ABUSED ITS DISCRETION BY 

DENYING APPELLANT'S PRESENTENCE MOTION TO 

WITHDRAW HIS PLEA.” 

State v. Nelson, 2016 WL 1734191, at *1 (Ohio App. 5th Dist. May 2, 2016). On May 2, 2016, 

the appellate court affirmed the judgment of the trial court. Petitioner did not file a timely appeal 

with the Ohio Supreme Court. On August 31, 2016, the Ohio Supreme Court denied his motion 

for a delayed appeal. State v. Nelson, 146 Ohio St.3d 1489 (Ohio 2016). 

 On August 18, 2017, Petitioner filed this petition for a writ of habeas corpus pursuant to 

28 U.S.C. § 2254. He filed a “supplemental” petitioner on October 19, 2017. He asserts that he 

was convicted in violation of the Fourth Amendment (claim one); that the trial court violated 

Rule 11 of the Ohio Rules of Criminal Procedure by failing to conduct an adequate plea colloquy 

(claim two); and that the trial court abused its discretion by denying his motion to withdraw his 

plea (claim three). 

Petitioner raised these same claims on direct appeal. However, he has procedurally 

defaulted all of the claims he now presents for federal habeas corpus relief, because he failed to 

file a timely appeal to the Ohio Supreme Court. Moreover, a federal district court may sua 

sponte raise the issue of procedural default where it provides the Petitioner with an opportunity 

to respond by the filing of objections. See Tolliver v. Sheets, 530 F. Supp. 2d 957, 962 (S.D. 

Ohio 2008) (citing Foti v. Bobby, No. 1:05-cv-1019, 2007 WL 1577785 (N.D. Ohio May 31, 

2007) (citing Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005); Lorraine v. Coyle, 291 

F.3d 416, 426 (6th Cir. 2002)). 
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Procedural Default 

Congress has provided that state prisoners who are in custody in violation of the 

Constitution or laws or treaties of the United States may apply to the federal courts for a writ of 

habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to 

protect the constitutional rights of criminal defendants, and in order to prevent needless friction 

between the state and federal courts, a state criminal defendant with federal constitutional claims 

is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). 

If he fails to do so, but still has an avenue open to him by which he may present his claims, then 

his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 

459 U.S. 4, 6 (1982 (per curiam ) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). 

Where a petitioner has failed to exhaust his claims but would find those claims barred if later 

presented to the state courts, “there is a procedural default for purposes of federal habeas....” 

Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). 

The term “procedural default” has come to describe the situation where a person 

convicted of a crime in a state court fails (for whatever reason) to present a particular claim to 

the highest court of the State so that the State has a fair chance to correct any errors made in the 

course of the trial or the appeal before a federal court intervenes in the state criminal process. 

This “requires the petitioner to present ‘the same claim under the same theory’ to the state courts 

before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 

2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly 

presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives 

the state courts a fair opportunity to rule on the federal law claims being asserted. That means 

that if the claims are not presented to the state courts in the way in which state law requires, and 
5 

the state courts therefore do not decide the claims on their merits, neither may a federal court do 

so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), 

“contentions of federal law which were not resolved on the merits in the state proceeding due to 

respondent's failure to raise them there as required by state procedure” also cannot be resolved 

on their merits in a federal habeas case-that is, they are “procedurally defaulted.” 

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a 

federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. 

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must determine that there 

is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to 

comply with the rule.” Id. Second, the Court must determine whether the state courts actually 

enforced the state procedural sanction. Id. Third, it must be decided whether the state 

procedural forfeiture is an adequate and independent state ground upon which the state can rely 

to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that 

a state procedural rule was not complied with, and that the rule was an adequate and independent 

state ground, then the petitioner must demonstrate that there was cause for him not to follow the 

procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This 

“cause and prejudice” analysis applies to failures to raise or preserve issues for review at the 

appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985). 

If, after considering all four factors of the Maupin test, the court concludes that a 

procedural default occurred, it must not consider the procedurally defaulted claim on the merits 

unless “review is needed to prevent a fundamental miscarriage of justice, such as when the 

petitioner submits new evidence showing that a constitutional violation has probably resulted in 
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a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 

2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96 (1986)). 

As discussed, Petitioner properly raised his claims on direct appeal; however, he failed to 

file a timely appeal of the appellate court’s decision to the Ohio Supreme Court, and the Ohio 

Supreme Court denied his motion for a delayed appeal. Petitioner therefore has procedurally 

defaulted his claims. See Rhodes v. Warden, Ross Correctional Institution, No. 2:16-cv-0074, 

2017 WL 1295480, at *4 (S.D. Ohio April 7, 2017) (citing Bonilla v. Hurley, 370 F.3d 494, 497 

(6th Cir. 2004)); Stone v. Ohio, No. 16-3126, 2017 WL 3594953, at *2 (6th Cir. April 19, 2017) 

(“The Ohio Supreme Court's denial of a motion for leave to file a delayed appeal is an adequate 

and independent state-law ground barring federal habeas review[.]”) (citing Bonilla v. Hurley, 

370 F.3d at 496-97). Further, Petitioner has failed to establish cause for his procedural default. 

Moreover, the record does not indicate that Petitioner can establish that he is actually innocent so 

as to permit a merits review of this claim. Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005). 

 Additionally, Petitioner cannot obtain habeas corpus relief based on the alleged violation 

of the Fourth Amendment, so long as he had an opportunity to present the claim to the state 

courts. See Davis v. Morgan, No. 2:15-cv-00613, 2016 WL 6493420, at *9 (S.D. Ohio Nov. 2, 

2016) (citing Stone v. Powell, 428 U.S. 465, 482 (1976); Riley v. Gray, 674 F.2d 522, 526 (6th 

Cir. 1982) (opportunity for full and fair litigation of a Fourth Amendment claim exists where the 

state procedural mechanism presents an opportunity to raise the claim, and presentation of the 

claim was not frustrated by a failure of that mechanism.) Such appear to be the circumstances 

here. 

One, the key purpose of federal habeas corpus is to free innocent 

prisoners. But whether an investigation violated the Fourth 

Amendment has no bearing on whether the defendant is guilty. 

[Stone v. Powell], at 490, 96 S.Ct. 3037. Two, exclusion is a 
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prudential deterrent prescribed by the courts, not a personal right 

guaranteed by the Constitution. Any deterrence produced by an 

additional layer of habeas review is small, but the cost of undoing 

final convictions is great. Id. at 493, 96 S.Ct. 3037. 

Good v. Berghuis, 729 F.3d 636, 637 (6thCir. 2013). 

Recommended Disposition

 Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED. 

Procedure on Objections 

 If any party objects to this Report and Recommendation, that party may, within 

fourteen days of the date of this Report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. 

636(B)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 
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IT IS SO ORDERED.

 

 s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

 United States Magistrate Judge