STATE OF OHIO v. PATRICK D. BOLES
CASE NO. CA2016-07-014
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BROWN COUNTY
3/6/2017
[Cite as State v. Boles, 2017-Ohio-786.]
M. POWELL, J.
CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Cаse No. 2011-2149
Lawrence J. Greger, Liberty Tower, 120 West Second Street, Suite 1100, Dayton, Ohio 45402, for defendant-appellant
OPINION
M. POWELL, J.
{1} Defendant-appellant, Patrick Boles, appeals a decision of the Brown County Court of Common Pleas denying his motion for reconsideration and/or successive petition for postconviction relief.
{2} Appellant was indicted in 2011 on eight counts of rape. The charges stemmed from eight separate instances of sexual conduct between appellant and the minor victim, four
{3} Appellant appealed his convictions, arguing that the trial court erred in allowing three state witnesses to testify and that his convictions were against the manifest weight of the evidence. We affirmed appellant‘s convictions. State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202. Subsequently, the Ohio Supreme Court declined jurisdiction. State v. Boles, 138 Ohio St.3d 1468, 2014-Ohio-1674.
{4} On November 25, 2014, through new counsel, appellant filed a petition for a writ of habeas corpus with the United States District Court for the Southern District of Ohio, alleging 11 grounds for relief, including claims of ineffective assistance of both trial and appellate counsel. The District Court stayed the habeas corpus proceedings pending appellant‘s exhaustion of his state postconviction remedies regarding his ineffective-assistance-of-trial-counsel claims. Boles v. Warden, S.D.Ohio No. 1:14-CV-903, 2016 WL 126924 (Jan. 12, 2016).
{5} On December 18, 2014, appellant filed an
{6} We denied the application on the ground it was untimely filed and that
{7} On May 26, 2015, appellant filed a petition for postconviction relief (“PCR“) pursuant to
{8} On May 5, 2016, appellant filed a motion for reconsideration and/or, in the alternative, a successive petition for postconviction relief.1 Appellant argued that the failure of his original appellate counsel to file a PCR petition should not be held against him and does not preclude him from filing a successive PCR petition because appellate counsel was either absent or ineffective in postconviction proceedings. In support of his assertion, appellant cited two decisions from the United States Supreme Court, Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, 569 U.S. 413, 133 S.Ct. 1911 (2013). In his second PCR petition, appellant reiterated his argument that trial counsel was ineffective for failing to conduct a reasonable investigation and prepare a crucial witness for trial.
{9} On June 28, 2016, the trial court denied appellant‘s motion for reconsideration and/or PCR petition. Treating the motion as a successive PCR petition, the trial court found
Petitioner has shown nothing that was not available at the time of his trial and direct appeal. He has not demonstrated any new federal or state right that applies retroactively to him. More importantly, there is no clear and convincing evidence that, but for constitutional error, no reasonable factfinder would havе found the petitioner guilty of the offense. He has not met the requirements for post-conviction relief.
The trial court further declined to apply Martinez and Trevino, finding that claims of ineffective assistance of appellate counsel are governed by
{10} Appellant now appeals, raising one assignment of error:
{11} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT RECONSIDERATION AND/OR THE RIGHT TO FILE A SUCCESSIVE POST-CONVICTION PETITION ABSENT THE HEIGHTENED STANDARDS FOR UNTIMELY FILING WHERE COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A TIMELY PETITION FOR POST CONVICTION, WHICH FAILURE AMOUNTS TO NO COUNSEL REPRESENTING A PETITIONER FOR POST-CONVICTION.
{12} Appellant argues the trial court abused its discretion in failing to reconsider its denial of appellant‘s first PCR petition and in not allowing appellant to file a successive PCR petition.
{13} We review a trial court‘s decision denying a PCR petition under an abuse of discretion standard. State v. McKelton, 12th Dist. Butler No. CA2015-10-183, 2016-Ohio-3216, ¶ 5. An abuse of discretion implies that the court‘s decision was unreasonable, arbitrary, or unconscionable. Id.; State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 91.
{14}
{15}
{16} Appellant first argues the trial court abused its discretion in failing to reconsider the denial of his first PCR petition. We find we lack jurisdiction over appellant‘s appeal of the trial court‘s failure or refusal to reconsider its denial of the first PCR petition. State v. Bennett, 5th Dist. Muskingum No. CT2005-0009, 2006-Ohio-2812, ¶ 14.
{17}
{18} Appellant next argues the trial court abused its discretion in denying his successive PCR petition on res judicata grounds. Appellant asserts counsel could nоt have raised the ineffective-assistance-of-trial-counsel issue on direct appeal because “the issue depended on evidence de hors the record, and included the failure [of] trial counsel to investigate and prepare a witness[.]”
{19} As stated above, although a petition for postconviction relief permits a person to bring a collateral challenge to the validity of a conviction or sentence in a criminal case, it does not provide a petitioner a second opportunity to litigate a conviction. State v. Lawson, 12th Dist. Clermont No. CA2013-12-093, 2014-Ohio-3554, ¶ 40; State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993. Accordingly, “a trial court may dismiss a postconviction relief petition on the basis of the doctrine of res judicata.” Lawson at ¶ 40.
{20} Under res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding exceрt an
{21} In both his first and successive PCR petitions, appellant asserted trial counsel was ineffective for failing to conduct a reasonable investigation and prepare a crucial witness for trial. In denying appellant‘s successive PCR petition, the trial court held that appellant‘s claim was barred by res judicata as it “was raised in his prior appeal” and appellant “had all of the facts avаilable to him at the time of his trial and his direct appeal.”
{22} We find the trial court erred in denying appellant‘s successive PCR petition on res judicata grounds based upon appellant‘s failure to raise the issue on direct appeal because the ineffective-assistance-of-trial-counsel claim involved evidence outside the record. Nonetheless, we agree with the trial court that the issue is barred by res judiсata as appellant asserted the same issue in his first PCR petition which the trial court denied and which denial appellant did not appeal. See State v. Lester, 6th Dist. Lucas No. L-98-1086, 1999 WL 173658 (Mar. 31, 1999); State v. Britton, 6th Dist. Lucas No. L-97-1345, 1998 WL 666768 (Sept. 30, 1998).
{23} Lastly, appellant argues the trial court abused its discretion in denying his
{24} Martinez originated in Arizona wherе state law only permits ineffective-assistance-of-counsel claims to be brought in state collateral proceedings rather than on direct appeal. Martinez‘s postconviction counsel filed a direct appeal and initiated a state collateral proceeding, but failed to present a claim of ineffective assistance of trial counsel in the state collateral procеeding. On federal habeas review, Martinez argued he could overcome procedural default because he had cause for the default, to wit, his first postconviction counsel was ineffective for failing to raise any claims in the first notice of postconviction relief. Both the District Court for the District of Arizona and the Ninth Circuit Court of Appeals held that Martinez had not shown cause to excuse the procedural dеfault because, under the United States Supreme Court‘s opinion in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546 (1991), defendants have no federal constitutional right to the effective assistance of counsel in postconviction proceedings.
{25} In addressing Martinez‘s claim, the Supreme Court acknowledged its holding in Coleman that under well-settled principles of agency law, “[n]egligence on the part of a
prisoner‘s postconviction attorney does not qualify as ‘cause.‘” Martinez, 132 S.Ct. at 1316.
{26} Consequently, the Supreme Court qualified its holding in Coleman and held that “[i]nadequate assistance of counsel at initial-review collateral prоceedings may establish cause for a prisoner‘s procedural default of a claim of ineffective assistance of counsel.” Martinez at 1315. The Supreme Court further held that under state law, where claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default “will not bar a federal habeas court from hearing a substantial claim of ineffeсtive assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id. at 1320. In other words, if the postconviction proceeding was the defendant‘s first opportunity to argue an error in his conviction, then the defendant, whether unrepresented or whose counsel was ineffective in the “initial-review collateral proceeding,” is not рrecluded by the procedural default doctrine from raising the trial error in federal habeas proceedings. State v. Waddy, 10th Dist. Franklin No. 15AP-397, 2016-Ohio-4911, ¶ 59.
{27} Trevino likewise involved a petition for habeas corpus and originated in Texas where state law allows a defendant initially to raise ineffective-assistance-of-trial-counsel claims on direct appeal. The United States Supreme Court extended Martinez to instances
{28} In support of its holding, the Supreme Court emphasized the fact that Texas courts themselves strongly discourage defendants from using direct appeal to raise ineffective-assistance-of-trial-counsel claims and instead have determined that collateral review is the preferred, and as a practical matter, the only method for raising such claims. Id. at 1920. Specifically, quoting an opinion from the Texas Court of Criminal Appeals, the Supreme Court noted that there is no meaningful opportunity to present ineffective-assistance-of-trial-counsel claims on direct appeal in Texas as the “trial court record will often fail to ‘contai[n] the information necessary to substantiate’ the claim.” Id. at 1918, quoting Ex parte Torres, 943 S.W.2d 469, 475 (1997).
{29} Although appellant‘s claim of ineffective assistance of trial counsel involves evidence outside the record, the Martinez/Trevino rule does not hold that a state court must disregard a procedural default and provide a mеrit review of a petitioner‘s PCR claim, and thus the rule does not apply here. As the Tenth Appellate District held, Martinez “does not recognize a constitutional right to counsel or effective assistance of counsel in post-conviction proceedings. Nor does it find any particular state procedural or substantive rules akin to Ohio‘s post-conviction relief scheme to be unconstitutional.” Waddy, 2016-Ohio-4911 at ¶ 61. “Rather, Martinez simply ‘established an equitablе doctrine for overcoming procedural default in certain limited circumstances.‘” Id. Indeed, the Supreme Court was careful to point out it was only recognizing a “narrow exception” to its holding in Coleman:
The rule of Coleman governs in all but the limited circumstances
recognized here. The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State‘s appellate courts. It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons.
(Internal citations omitted.) Martinez, 132 S.Ct. at 1320. That is, the Court made clear that Martinez applies only to cases whеre defendants have been denied the effective assistance of counsel at the “initial review” stage of the litigation. Id. at 1315; Waddy at ¶ 61. The Court expressly stated that its holding does not apply to successive collateral proceedings. Martinez at 1320.
{30} Likewise, Trevino does not recognize a constitutional right to counsel or effective assistance of counsel in postconviction proceedings, nor does it find any state laws unconstitutional. Whilе Trevino expands the Martinez rule to cases where defendants have been denied the effective assistance of counsel at the “initial review” stage of litigation such as direct appeal, it does not extend the rule to “attorney errors [in] second or successive collateral proceedings” or “in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistanсe at trial, even though that initial-review collateral proceeding may be deficient for other reasons.” Martinez at 1320; Trevino, 133 S.Ct. at 1921. In other words, the Martinez/Trevino rule does not apply to successive PCR petitions and simply addresses when a federal court may ignore state procedural default and allow federal habeas claims to proceed. See State v. Taylor, 8th Dist. Cuyahoga No. 102020, 2015-Ohio-1314; State v. Guy, 6th Dist. Sandusky No. S-15-019, 2016-Ohio-619.
{31} Furthermore, the United States Supreme Court has held that there is no federal constitutional right to counsel in state postconviction proceedings. Rather, “the right to appointed counsel extends to the first appeal of right, and no further.” Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990 (1987). Subsequently, as noted above, the Supreme Court held that because there is no constitutional right to an attorney in state postconviction proceedings, there is no federal constitutional right to the effective assistance of counsel in such proceedings. Coleman, 501 U.S. at 752 (“a petitioner cannot claim constitutionally ineffective assistance of counsel in [state post-conviction] proceedings“). That same year, the Ohio Supreme Court held that a postconviction indigent petitioner has neither a state nor a federal constitutional right to counsel. State v. Crowder, 60 Ohio St.3d 151, 152 (1991). This court has generally held that the Sixth Amendment right to effective assistance of counsel does not extend to state PCR proceedings. Sеe McKelton, 2016-Ohio-3216.
{32} In light of the foregoing, we find the trial court did not abuse its discretion in denying appellant‘s successive PCR petition pursuant to
{33} Judgment affirmed.
HENDRICKSON, P.J. and RINGLAND, J., concur.
M. POWELL, J.
HENDRICKSON, P.J.
RINGLAND, J.