IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JEFFREY S. MADISON, JR., 

 CASE NO. 2:17-CV-1023 

 Petitioner, JUDGE MICHAEL H. WATSON 

 Magistrate Judge Chelsey M. Vascura 

 v. 

TIMOTHY BRADLEY, WARDEN, 

PICKAWAY CORRECTIONAL INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

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

U.S.C. § 2254. This matter is 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 September 2015 convictions pursuant to his guilty plea in the 

Franklin County Court of Common Pleas on vehicular assault and aggravated vehicular assault. 

He asserts that the trial court improperly imposed maximum consecutive sentences in violation 

of state and federal law (claim one); and that the sentence is “contrary to law” and the trial court 

“used improper findings” in imposing consecutive terms of incarceration (claim two). Petitioner 

presented the following claims on direct appeal: 

I. THE TRIAL COURT ABUSED ITS DISCRETION IN 

SENTENCING APPELLANT TO THE MAXIMUM 

PRISON TERM. 
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II. THE TRIAL COURT ERRED TO THE PREJUDICE OF 

APPELLANT BY IMPROPERLY SENTENCING HIM 

TO CONSECUTIVE TERMS OF INCARCERATION IN 

CONTRAVENTION OF OHIO'S SENTENCING 

STATUTES. 

State v. Madison, Nos. 15AP-994, 15AP-995, 2016 WL 5720378, at *2 (Ohio App. 10th Dist. 

Sept. 30, 2016). On September 30, 2016, the appellate court affirmed the judgment of the trial 

court, but sustained the second assignment of error, in part, and remanded the case to the trial 

court for the issuance of nunc pro tunc entries incorporating the statutory findings that the trial 

court made at sentencing for imposition of consecutive terms of incarceration. Id. Petitioner did 

not file a timely appeal. On July 26, 2017, the Ohio Supreme Court denied his motion for a 

delayed appeal. State v. Madison, 150 Ohio St.3d 1406 (Ohio 2017). On November 22, 2017, 

Petitioner filed this federal habeas corpus petition. 

Exhaustion 

In order to satisfy the exhaustion requirement in habeas corpus, a petitioner must fairly 

present the substance of each claim to the state courts as a federal constitutional claim. Anderson 

v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971). Although this fair 

presentment requirement is a rule of comity, not jurisdiction, see Castille v. Peoples, 489 U.S. 

346, 349 (1989); O'Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999), it is nevertheless rooted 

in principles of federalism designed to allow state courts the opportunity to correct the State's 

alleged violation of a federal constitutional right that threatens to invalidate a state criminal 

judgment. In the Sixth Circuit, a petitioner can satisfy the fair presentment requirement in any 

one of four ways: (1) reliance upon federal cases employing constitutional analysis; (2) reliance 

upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of 

constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional 
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right; or (4) alleging facts well within the mainstream of constitutional law. McMeans v.

Brigano, 228 F.3d 674, 681 (6th Cir. 2000). General allegations of the denial of a constitutional 

right, such as the right to a fair trial or to due process, are insufficient to satisfy the “fair 

presentment” requirement. Id. 

Here, Petitioner failed to present his claims to the state courts as issues of federal 

constitutional magnitude. Further, it does not appear that Petitioner can establish cause for this 

failure. Petitioner therefore has waived this Court’s review of any such federal claim in these 

proceedings. 

Procedural Default 

 Petitioner also has procedurally defaulted his claims by failing to file a timely appeal to 

the Ohio Supreme Court. 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). This Court may sua 

sponte raise the issue of procedural default when conducting preliminary review of the habeas 
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corpus petition under Rule 4. See Watkins v. Warden, Dayton Corr. Inst., No. 2:16-cv-00501, 

2016 WL 4394138, at *2 (S.D. Ohio Aug. 18, 2016) (“[A]lthough federal courts are not required 

to raise procedural default sua sponte, neither are they precluded from doing so.”). 

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 

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 
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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 

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)). 

 Petitioner failed to file a timely appeal of the appellate court's decision denying his 

claims 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, it does not appear that 
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Petitioner can establish cause for this procedural default or that he is actually innocent so as to 

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

State Law Claims 

Moreover, to the extent that Petitioner presents issues regarding the alleged violation of 

state law, such claims do not provide a basis for federal habeas corpus relief. A federal court 

may review a state prisoner's habeas petition only on the ground that the challenged confinement 

is in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A 

federal court may not issue a writ of habeas corpus “on the basis of a perceived error of state 

law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 

1988). Further, this Court defers to a State's interpretation of its own laws. See Calhoun v. 

Tibbals, No. 2:15-cv-03026, 2017 WL 914737, at *9 (S.D. Ohio March 8, 2017)(citing Machin 

v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)); Beavers v. Franklin County Adult 

Probation, No. 2:13-cv-00404, 2016 WL 5660275, at *1 (S.D. Ohio Sept. 29, 2016) (citation 

omitted). 

Recommended Disposition 

Therefore, for all of the foregoing reasons, 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 

(14) 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 
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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. 

 /s/ Chelsey M. Vascura___ 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE