Eduardo Bonilla v. Pat Hurley, Warden

370 F.3d 494, 2004 U.S. App. LEXIS 27586
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 27, 2004
Docket18-2270
StatusPublished
Cited by181 cases

This text of 370 F.3d 494 (Eduardo Bonilla v. Pat Hurley, Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eduardo Bonilla v. Pat Hurley, Warden, 370 F.3d 494, 2004 U.S. App. LEXIS 27586 (6th Cir. 2004).

Opinion

OPINION

PER CURIAM.

Eduardo Bonilla, an Ohio prisoner proceeding through counsel, appeals a magistrate judge’s judgment dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The parties have waived oral argument and this panel unanimously agrees that oral argument is not needed in this case. Fed. RApp. P. 34(a).

On October 9, 1999, a jury found Bonilla guilty of complicity to aggravated murder, conspiracy to aggravated murder, complicity to murder, conspiracy to murder, complicity to kidnaping, and complicity to obstructing justice. On November 16, 1999, Bonilla was sentenced to serve life imprisonment for complicity to aggravated murder, conspiracy to aggravated murder, and conspiracy to murder; fifteen years to life imprisonment for complicity to murder; ten years of imprisonment for complicity to kidnaping; and five years of imprisonment for complicity to obstructing justice, to be served consecutively. The Ohio Court of Appeals, Second Appellate District, affirmed Bonilla’s convictions on March 2, 2001. The Ohio Supreme Court denied Bonilla’s motion for leave to file a delayed appeal on July 25, 2001.

After unsuccessfully pursuing a post-conviction application to reopen his direct appeal, Bonilla, proceeding pro se, filed the instant petition for a writ of habeas corpus, in which he asserted six grounds for relief. The district court subsequently appointed counsel to represent Bonilla because English is his second language.

The parties consented to have a magistrate judge exercise jurisdiction over the case pursuant to 28 U.S.C. § 636. Thereafter, the magistrate judge dismissed Bonilla’s habeas corpus petition, and subsequently granted his application for a certificate of appealability as to the following issue: “whether Petitioner is barred from merit consideration of his habeas petition by his procedural default in failing to timely appeal to the Ohio Supreme Court.” Bonilla filed a timely appeal. The parties have waived oral argument.

Bonilla’s habeas corpus petition was filed after the effective date of the Antiter-rorism and Effective Death Penalty Act (AEDPA). Therefore, our review of this case is governed by the AEDPA’s provisions. Mason v. Mitchell, 320 F.3d 604, 613 (6th Cir.2003).

All six of Bonilla’s grounds for relief were raised on direct appeal before the Ohio Court of Appeals. The Ohio Court of Appeals affirmed Bonilla’s convictions on March 2, 2001. Bonilla had forty-five days following the court of appeal’s decision, or until April 16, 2001, to file an appeal with the Ohio Supreme Court. See. Ohio Sup. Ct. R. II, § 2(A)(1)(a). On June 11, 2001, after expiration of the 45-day appeal period, Bonilla filed a motion for leave to file a delayed appeal, which is permitted by the Ohio Supreme Court Rules upon a demonstration of “adequate reasons for the delay.” See Ohio Sup.Ct. R. II, § 2(A)(4)(a). The reasons offered by Bonilla for his failure to file a timely notice of appeal included his pro se status because “[d]ue *497 to indigence, [he] was forced to terminate the representation of his counsel,” his inability to obtain a complete copy of his trial transcripts before the expiration of the 45-day appeal period, the fact that English is his second language and he has “great difficulty with reading and writing the Ien-guage [sic],” and as an Ohio prisoner, he is only permitted four hours per week “for legal research” and is provided “no assistance with preparation of legal documents.” On July 25, 2001, the Ohio Supreme Court denied Bonilla’s motion for leave to file a delayed appeal in a form entry.

This case turns upon whether the Ohio Supreme Court entry denying Bonilla’s motion for leave to file a delayed appeal constitutes a procedural ruling sufficient to bar federal court review of Bonilla’s habeas corpus petition. Upon examination of the Ohio Supreme Court Rules, we conclude that it does. The Ohio Supreme Court Rules require a motion for a delayed appeal to state “the date of entry of the judgment being appealed and adequate reasons for the delay.” Ohio Sup.Ct. R. II, Section 2(A)(4)(a). In addition, the motion must be accompanied by a supporting affidavit and a “copy of the decision being appealed.” Id. A motion for a delayed appeal is not required to contain the actual claims and supporting arguments sought to be presented on appeal. Id. Instead, only when “the Supreme Court grants a motion for delayed appeal,” is the appellant required to “file a memorandum in support of jurisdiction.” Ohio Sup.Ct. R. II, Section 2(A)(4)(c). Thus, the applicable Ohio court rules indicate that the denial of a motion for a delayed appeal is a procedural ruling, not a ruling on the merits. Indeed, this court has previously reached this conclusion, albeit in unpublished opinions. See Hall v. Huffman, No. 98-3586, 2000 WL 1562821, at *3 (6th Cir. Oct.11, 2000) (unpublished); Shabazz v. Ohio, No. 97-3085, 1998 WL 384559, at *1 (6th Cir. June 18, 1998) (unpublished).

We therefore conclude that Bonilla’s grounds for relief have been procedurally defaulted. See Simpson v. Jones, 238 F.3d 399, 406 (6th Cir.2000). Bonilla failed to file a timely notice of appeal with the Ohio Supreme Court and his motion for leave to file a delayed appeal was denied by that court apparently because he failed to demonstrate adequate reasons for his failure to file a timely notice of appeal or to otherwise comply with the provisions of Ohio Sup.Ct. R. II, Section 2(A)(4). Where a state court is entirely silent as to its reasons for denying requested relief, we assume that the state court would have enforced any applicable procedural bar. Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir.1996).

“A petitioner procedurally defaults claims for habeas relief if the petitioner has not presented those claims to the state courts in accordance with the state’s procedural rules.” Jones, 238 F.3d at 406. When a “state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice ... or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Since both cause and prejudice must be shown to excuse a procedural default, the failure to establish cause eliminates the need to consider prejudice. Murray v. Carrier, 477 U.S. 478, 494-95, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

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