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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

PATRICK KELLY, 

Petitioner, : Case No. 2:18-cv-19 

- vs - District Judge George C. Smith 

Magistrate Judge Michael R. Merz 

RHONDA RICHARD, Warden, 

 FRANKLIN MEDICAL CENTER, 

 : 

 Respondent. 

REPORT AND RECOMMENDATIONS 

 

 This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Respondent’s 

Motion to Dismiss (ECF No. 5). Petitioner opposes the Motion (ECF No. 6) and the time within 

which Respondent could have filed a reply memorandum in support has expired, rendering the 

Motion ripe for decision. 

 Because a motion to dismiss involuntarily is dispositive, it requires a recommended 

disposition from an assigned Magistrate Judge, rather than a decision. 28 U.S.C. § 636(b)(1)(A) 

and (B). The Magistrate Judge reference in the case has recently been transferred to the 

undersigned to help balance the magistrate judge workload in the District (ECF No. 7). 

 Respondent asserts the case must be dismissed because the Petition is mixed in that it 

contains a claim of ineffective assistance of trial counsel on which Petitioner has not exhausted his 

available state court remedies. 

Ground One: The deficient performance of trial and appellate 

counsel deprived Petitioner of his 6th and 14th Amendment right to 
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the effective assistance of counsel and trial by jury under the 5th and 

14th Amendment. 

Supporting Facts: Defense counsel failed to object to erroneous 

jury instructions specifically regarding Count 25, i.e. the State RICO 

charge which were contrary to state law and allowed the jury to 

convict Petitioner without sufficient evidence and proof on all 

elements. 

(Petition, ECF No. 1, PageID 6.) 

 Although this claim is apparent on the face of the appeal record, Ohio’s criminal res 

judicata doctrine would not bar its presentation in a petition for post-conviction relief under Ohio 

Revised Code § 2953.21 because Petitioner was represented by the same attorney on direct appeal 

as at trial. State v. Lentz, 70 Ohio St. 3d 527, 529-30 (1994). As of the time the Motion to Dismiss 

was filed, Petitioner had not filed a petition for post-conviction relief and the Court is not advised 

that he has done so since that time. 

Respondent notes that there is a statute of limitations for post-conviction petitions in Ohio 

of 365 days after the transcript on direct appeal has been filed in the court of appeals. The Fourth 

District Court of Appeals affirmed Kelly’s convictions December 30, 2016. State v. Kelly, 2016-

Ohio-8582, 77 N.E. 3d 388 (4th Dist. Dec. 30, 2016). Although Respondent offers no exact 

calculation, the deadline has plainly passed. Respondent notes, however, that a petition may be 

filed after the deadline if a defendant satisfies the conditions imposed by Ohio Revised Code § 

2953.23(A)(1), to wit, 

(1) Both of the following apply: 

(a) Either the petitioner shows that the petitioner was unavoidably 

prevented from discovery of the facts upon which the petitioner 

must rely to present the claim for relief, or, subsequent to the period 

prescribed in division (A)(2) of section 2953.21 of the Revised 

Code or to the filing of an earlier petition, the United States Supreme 

Court recognized a new federal or state right that applies 
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retroactively to persons in the petitioner's situation, and the petition 

asserts a claim based on that right. 

(b) The petitioner shows by clear and convincing evidence that, but 

for constitutional error at trial, no reasonable factfinder would have 

found the petitioner guilty of the offense of which the petitioner was 

convicted or, if the claim challenges a sentence of death that, but for 

constitutional error at the sentencing hearing, no reasonable 

factfinder would have found the petitioner eligible for the death 

sentence. 

 In his Reply to the Motion, Petitioner concedes that he has not filed a post-conviction 

petition and that he cannot meet the “stringent requirements for filing of a delayed post-conviction 

petition.” (ECF No. 6, PageID 328.) Under these circumstances he asserts he has no further state 

court remedies to exhaust. 

 Anticipating this argument, Respondent asserted that whether or not a petition can meet 

the requirements of Ohio Revised Code § 2953.23 is a question of state law on which this Court 

must give the Ohio courts “the opportunity to exercise its discretion in favor of the availability of 

the remedy.” (ECF No. 5, PageID 324, citing Cunningham v. Hudson, 756 F.3d 477 (6th Cir. 

2014), and Wagner v. Smith, 581 F.3d 410 (6th Cir. 2009). Cunningham was a capital case in 

which the possible state court remedies were a motion for new trial or a successive post-conviction 

petition. Although Cunningham sought to have the district court decide his juror bias claim, he 

did not concede that either of the two suggested state court remedies would be futile, as Kelly does. 

Moreover, as a capital habeas petitioner, Cunningham suffered no harm from a remand, whereas 

Kelly is already three-plus years into a seven-year sentence and will continue to serve that sentence 

while any remand to state court is pending. In Wagner, the Sixth Circuit does not cite any 

procedural barriers to Wagner’s exhausting his claims by filing his first post-conviction motion 

for relief from judgment. 
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 At the time Respondent filed her Motion, if the Court had dismissed the Petition without 

prejudice, Kelly would have had, by Respondent’s calculation, until August 30, 2018, to re-file 

within the AEDPA statute of limitations. That option is now no longer available. Respondent 

opposes a stay under Rhines v. Weber, 544 U.S. 269 (2005), and this Court would be hard-pressed 

to grant one because he has not shown good cause for his failure to exhaust or demonstrated that 

his unexhausted claims are potentially meritorious, both of which are required by Rhines. Id. at 

277-78. 

 On the other hand, Kelly claims he can show good cause for his failure to present these 

claims in a timely post-conviction petition in the Ohio courts (Reply, ECF No. 6, PageID 328). 

That question is not before the Court to decide at this time. The proper course is to find that a 

motion for leave to file a delayed post-conviction petition in the Ohio courts would be futile 

because Petitioner admits that he cannot meet the requirements of the statute. Once the Motion to 

Dismiss is denied, Respondent should be required to file a full return of writ raising any defenses 

she has. 

 Based on the foregoing analysis, it is respectfully recommended that the Motion to Dismiss 

be DENIED. 

September 17, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 
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NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Such objections shall specify the portions of the Report objected to and 

shall be accompanied by a memorandum of law in support of the objections. If the Report and 

Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, 

the objecting party shall promptly arrange for the transcription of the record, or such portions of it 

as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District 

Judge otherwise directs. A party may respond to another party=s objections within fourteen days 

after being served with a copy thereof. Failure to make objections in accordance with this 

procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th 

Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).