Regis Dickerson v. Warden, Ross Correctional Inst.

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 26, 2018
• Docket: 16-3486
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 18a0540n.06

No. 16-3486

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 26, 2018 REGIS L. DICKERSON, ) DEBORAH S. HUNT, Clerk ) Petitioner-Appellant, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WARDEN, ROSS CORRECTIONAL ) SOUTHERN DISTRICT OF INSTITUTION, ) OHIO ) Respondent-Appellee. )

BEFORE: CLAY and GRIFFIN, Circuit Judges; ZOUHARY, District Judge.*

GRIFFIN, Circuit Judge.

Petitioner Regis Dickerson appeals the district court’s judgment denying his petition for a

writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. A jury convicted Dickerson of two

counts of murder under Ohio law. Since then, he has worked his way through several stages of

appeals and postconviction review in both state and federal court, raising many different claims

along the way. This appeal, however, is limited to a single issue involving procedural default.

In his § 2254 petition, Dickerson sought to excuse the procedural default of several of his

claims by alleging ineffective assistance of his appellate counsel on direct appeal. The district

court found that this claim was itself procedurally defaulted because Dickerson’s attempt to raise

it in a prior appeal was rejected by the Ohio Supreme Court as untimely. Dickerson then attempted

*The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. No. 16-3486, Dickerson v. Warden

to excuse this second level of default by submitting evidence of his late receipt of the relevant

adverse Ohio Court of Appeals decision, arguing that the late notice left him too little time to

prepare and file an appeal to the Ohio Supreme Court. The district court found that this delay in

receiving notice of the adverse decision did not constitute cause to excuse the default and dismissed

the petition.

We granted Dickerson a certificate of appealability (“COA”) as to whether the default of

his ineffective-assistance claim was excusable given the late receipt of the state appellate court

adverse decision. On review, we hold that the late notice does not excuse the default and affirm

the district court judgment.

I.

In 2011, a jury convicted Dickerson of two counts of murder with firearm specifications in

violation of Ohio Revised Code §§ 2903.02 and 2941.145. Dickerson’s direct appeal was

unsuccessful. State v. Dickerson, No. 11AP–789, 2012 WL 2928667, at *1 (Ohio Ct. App. July

19, 2012), perm. app. denied, 978 N.E.2d 910 (Ohio 2012) (Table). Dickerson later moved to

reopen his appeal pursuant to Ohio Rule of Appellate Procedure 26(B)(1), which allows “[a]

defendant in a criminal case [to] apply for reopening of the appeal from the judgment of conviction

and sentence, based on a claim of ineffective assistance of appellate counsel.” To support his

motion, Dickerson argued that he received ineffective assistance of appellate counsel because his

attorney failed to argue five issues on direct appeal. The Ohio Court of Appeals denied the motion

on the merits.

Dickerson then attempted to appeal that denial to the Ohio Supreme Court. According to

a letter from the deputy clerk, he had to file his appeal within forty-five days of the entry of the

-2- No. 16-3486, Dickerson v. Warden

intermediate appellate court judgment. See Ohio S. Ct. Prac. R. 7.01(A)(1)(a)(i). But Dickerson’s

appeal arrived twenty-one days late, so the Ohio Supreme Court rejected it as untimely.

After exhausting his state postconviction options,1 Dickerson filed a § 2254 petition in the

district court, raising fifteen separate claims. Dickerson v. Warden, Ross Corr. Inst., No. 2:15-

CV-0068, 2016 WL 1642963, at *4 (S.D. Ohio Apr. 26, 2016). The district court denied the

petition and dismissed the case. Id. at *19. As part of that denial—and as relevant to this appeal—

the district court ruled that many of Dickerson’s claims were procedurally defaulted because he

had not raised them on direct appeal. Id. at *6. Dickerson attempted to excuse the default by

alleging ineffective assistance of appellate counsel. Id. at *9 (citing Maples v. Stegall, 340 F.3d

433, 438 (6th Cir. 2003)). But the district court also ruled that Dickerson’s ineffective-assistance

claim was procedurally defaulted because his appeal to the Ohio Supreme Court of the denial of

his Rule 26(B) motion—the motion in which he first raised his ineffective-assistance claim—was

late. Id. In short, the district court dismissed Dickerson’s § 2254 petition after finding a double

default: a default of the claims themselves, and a default of his excuse for the first default. At

issue in this appeal is the second default.

Dickerson then sought to appeal the denial of his § 2254 petition, but the district court

declined to issue a COA. We eventually granted one, but only as to a single issue: “whether

Dickerson has shown cause for the procedural default of the Rule 26(B) claims . . . .”

II.

“We review the district court’s legal conclusions in habeas proceedings de novo and its

findings of fact for clear error.” Braxton v. Gansheimer, 561 F.3d 453, 457 (6th Cir. 2009). Of the

1 Dickerson filed a petition to vacate or set aside judgment in the state trial court, the denial of which plays no role in this appeal. See State v. Dickerson, No. 13AP–249, 2013 WL 5451618, at *1 (Ohio Ct. App. Sept. 30, 2013), perm. app. denied, 3 N.E.3d 1218 (Ohio 2014) (Table). -3- No. 16-3486, Dickerson v. Warden

many legal issues that arise in habeas proceedings, here we deal only with procedural default,

which occurs when a petitioner has failed “to obtain consideration of a claim by a state court . . .

due to a state procedural rule that prevents the state courts from reaching the merits of the

petitioner’s claim.” Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006) (quoting Seymour v.

Walker, 224 F.3d 542, 549–50 (6th Cir. 2000)).

This appeal concerns the second of two defaults—the default of Dickerson’s ineffective-

assistance claim, which he sought to assert to excuse the default of his habeas claims. But even “a

procedurally defaulted ineffective-assistance-of-counsel claim can serve as cause to excuse the

procedural default of another habeas claim.” Edwards, 529 U.S. 446, 450–51 (2000) (emphasis

added). To establish such cause, Dickerson must show that “some objective factor external to the

defense” prevented his compliance with the state procedural rule that led to his default. Bonilla v.

Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (internal quotation marks omitted). In other words,

Dickerson must show that an objective external factor prevented him from timely appealing the

denial of his Rule 26(B) motion to reopen his state direct appeal.

The Supreme Court has not “attempt[ed] an exhaustive catalog of such objective

impediments to compliance with a procedural rule,” but has noted that “a showing that the factual

or legal basis for a claim was not reasonably available to counsel, or that some interference by

officials made compliance impracticable, would constitute cause under this standard.” Murray v.

Carrier, 477 U.S. 478, 488 (1986) (citations and internal quotation marks omitted); see, e.g.,

Jamison v. Collins, 291 F.3d 380, 386 (6th Cir. 2002) (prosecution’s withholding of Brady

evidence from the petitioner’s attorneys qualified as a “substantial reason for the default that is

external to [the petitioner]”). And we have held, where a petitioner demonstrates that “neither he

nor his attorney ever received formal notice of the state trial court’s order denying his petition,”

-4- No. 16-3486, Dickerson v. Warden

he has successfully “established cause to excuse the procedural default resulting from his failure

to timely appeal the denial of his postconviction petition.” Hartman v. Bagley, 492 F.3d 347, 358

(6th Cir. 2007).

Here, Dickerson concedes that he received notice of the denial of his Rule 26(B) motion

but argues that the state court delay in sending him its decision constituted “interference by

officials [that] made compliance impracticable.” That delay left him with nine days to appeal the

denial, which he claims was insufficient time.2 We must therefore determine whether it was

impracticable for Dickerson to file his appeal within that nine-day window.

The Supreme Court has not defined “impracticable” in the habeas context. Black’s Law

Dictionary offers the following definition:

A fact or circumstance that excuses a party from performing an act . . . because (although possible) it would cause extreme and unreasonable difficulty. For performance to be truly impracticable, the duty must become much more difficult or much more expensive to perform, and this difficulty or expense must have been unanticipated.

Black’s Law Dictionary 874 (10th ed. 2014). This definition squares with Dickerson’s contention

that “impracticable” must “mean[ ] something less than impossible.” The Supreme Court’s

treatment of the two words together also appears to support this distinction. See F.C.C. v. Fla.

Power Corp., 480 U.S. 245, 247 (1987) (“[I]n most instances underground installation of the

necessary cables is impossible or impracticable.”); Parratt v. Taylor, 451 U.S. 527, 541 (1981)

(“[I]n most cases it is not only impracticable, but impossible, to provide a meaningful hearing

2 Dickerson also argues that his window for filing a timely appeal was reduced from nine days to seven because “the prison’s law library was closed over the weekend on March 23 and 24, 2013.” But Dickerson “does not indicate why he required additional time to conduct legal research and how his limited law library time prevented him from filing a timely notice of appeal.” Bonilla, 370 F.3d at 498. Without that explanation, a time limitation on law library access is insufficient to establish cause to excuse his procedural default. -5- No. 16-3486, Dickerson v. Warden

before the deprivation.”), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986);

Yakus v. United States, 321 U.S. 414, 424 (1944) (“The Constitution as a continuously operative

charter of government does not demand the impossible or the impracticable.”); see also Penn

Dairies v. Milk Control Comm’n of Pa., 318 U.S. 261, 284 (1943) (Douglas, J., dissenting)

(“A thing is ‘impracticable’ to do when it is infeasible or incapable of being done.”). Under

Black’s Law Dictionary’s definition, then, Dickerson must demonstrate that the delay in receiving

the Ohio Court of Appeals’ decision caused “extreme and unreasonable difficulty” that impeded

his compliance with the Ohio Supreme Court’s filing deadline. He has not done so.

Dickerson states that he “was required to file both a notice of appeal and a memorandum

in support of jurisdiction to timely file his appeal to the Ohio Supreme Court.” See Ohio S. Ct.

Prac. R. 7.01(A)(1)(a). The latter of these, he contends, “is a complicated legal document requiring

an appellant to state why his case involves a substantial constitutional issue or a matter of great

concern to the public warranting a review by the Ohio Supreme Court.” Ohio Supreme Court Rule

of Practice 7.02(C) explains that a memorandum in support of jurisdiction must include a table of

contents, a statement of the case and facts, a “thorough explanation of why a substantial

constitutional question is involved, why the case is of public or great general interest, or, in a

felony case, why leave to appeal should be granted,” and a “brief and concise argument in support

of each proposition of law.” A memorandum of jurisdiction “shall not exceed fifteen numbered

pages, exclusive of the table of contents and the certificate of service.” Ohio S. Ct. Prac. R.

7.02(B)(1).

Dickerson asserts that it was impracticable for him to draft a notice of appeal and

memorandum of jurisdiction and ensure that it reached the Ohio Supreme Court in nine days’ time.

But he was not working from a blank slate. By the time Dickerson received the denial of his Rule

-6- No. 16-3486, Dickerson v. Warden

26(B) motion, he had already filed (1) a direct appeal in the state court of appeals, (2) an appeal of

its decision to the state supreme court, including a memorandum of jurisdiction, (3) a

postconviction petition in the state trial court, (4) a notice of appeal of that decision to the court of

appeals, and (5) a Rule 26(B) motion in the court of appeals. Except for the direct appeal,

Dickerson filed all of these documents pro se. While drafting a memorandum of jurisdiction might

require a bit more than “regurgitat[ing] the claims that had been made in the briefing below,” as

Respondent puts it, Dickerson did not have to reinvent the wheel to draft an argument alleging a

“substantial constitutional question”; he had plenty of prior work product from which to draw.

Dickerson also notes that “the Ohio Supreme Court has expressly rejected the ‘mailbox

rule’ of Houston v. Lack, 487 U.S. 266, 270 (1988),” and instead requires actual receipt of

documents before a filing deadline. Castor v. Warden, Ross Corr. Inst., 2017 WL 1353567, *5

(S.D. Ohio, 2017); see Ohio S. Ct. Prac. R. 3.02(A)(4). To be sure, this presents special difficulties

for prisoners litigating their claims pro se, as many have no access to electronic filing and must

rely on prison officials to handle and mail their court documents. But even assuming a four-day

delay for mailing, Dickerson still had five full days in which to draft a fairly short memorandum

working from an extensive amount of directly relevant work product.

Finally, Dickerson advances a public policy argument, claiming that ruling against him

would “open the door for the state to deny prisoners the ability to pursue their constitutional claims

in Federal court simply by waiting to send a mailing.” Such a bad faith action by a state would

indeed be cause for concern. But Dickerson, by his own admission, “does not suggest actual

malfeasance on the part of the State in the present matter” and “has no reason to believe the State

intentionally delayed mailing him notice of the appellate court’s decision in this case.” His

-7- No. 16-3486, Dickerson v. Warden

concerns are thus not implicated here, so we decline to postulate how we would rule if the facts

and record were different.

After close review, we hold that the delay in sending Dickerson a denial of his Rule 26(B)

motion did not make filing a timely appeal “impracticable.” Accordingly, Dickerson cannot show

cause to excuse the procedural default of his ineffective-assistance-of-appellate-counsel claim.

Nevertheless, we emphasize that our holding in this case is limited to the facts before us.

III.

For these reasons, we affirm.

-8-