                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0293n.06
                             Filed: May 27, 2008

                                            No. 06-4676

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


ALAN J. BUTTS,                                      )
                                                    )
       Petitioner-Appellant,                        )
                                                    )   ON APPEAL FROM THE UNITED
v.                                                  )   STATES DISTRICT COURT FOR THE
                                                    )   SOUTHERN DISTRICT OF OHIO
MICHAEL SHEETS,                                     )
                                                    )
       Respondent-Appellee.                         )                  OPINION
                                                    )
                                                    )


BEFORE:        MOORE and McKEAGUE, Circuit Judges; SCHWARZER,* District Judge.

       WILLIAM W SCHWARZER, District Judge. Alan Butts appeals the denial of his request

for a stay of his federal habeas petition pending exhaustion in state court of one of his grounds for

relief. Butts claimed that his constitutional rights were violated when he received a sentence based

on the merger of two allegedly contradictory state court convictions. Butts also appeals the dismissal

of this claim on the merits. Because we find his claim procedurally defaulted, we AFFIRM.

                                       I. BACKGROUND

       Following the death of his girlfriend’s two-year-old son, Butts was indicted by an Ohio grand

jury on one count of murder, in violation of Ohio Rev. Code § 2903.02; one count of involuntary

       *
       The Honorable William W Schwarzer, Senior United States District Judge for the
Northern District of California, sitting by designation.
manslaughter, in violation of Ohio Rev. Code § 2903.04; one count of felonious assault, in violation

of Ohio Rev. Code § 2903.11; and two counts of endangering children, in violation of Ohio Rev.

Code § 2919.22. Butts was represented by counsel at his jury trial. He was convicted on all counts.

In May 2003, Butts was sentenced to fifteen years to life imprisonment on the murder and

involuntary manslaughter convictions which the court merged pursuant to Ohio Rev. Code §

2941.25(A). He was also sentenced to six years on the felonious assault conviction and four years

on the endangering children conviction. The sentences were to be served concurrently.

       In September 2003, Butts, represented by his trial counsel, appealed his convictions, asserting

that they were contrary to law and against the weight of the evidence. The Ohio Court of Appeals

affirmed the judgment of the trial court and the Ohio Supreme Court denied leave to appeal and

dismissed his appeal as not involving a substantial constitutional question. In November 2004, Butts

filed a delayed pro se application to reopen his direct appeal pursuant to Ohio Appellate Rule 26(B)

which permits reopening based on a claim of ineffective assistance of appellate counsel. Butts

asserted that he had been denied the effective assistance of appellate counsel on direct appeal when

his attorney had failed to argue that his sentence violated the Equal Protection Clauses of the United

States and Ohio Constitutions because the sentence was for two offenses requiring mutually

exclusive mental states. The application was denied by the Ohio Court of Appeals in December

2004, and his appeal to the Ohio Supreme Court was dismissed in May 2005.

       In March 2005, while the appeal from the denial of his 26(B) application was still pending,

Butts pro se filed what he styled a “Motion for a Resentencing Hearing and for Correction of an

Erroneous Sentence.” In May 2005, the trial court, construing it as an untimely petition for post-

conviction relief, denied relief. In May 2006, the Ohio Court of Appeals affirmed, holding that

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because Butts had not challenged his sentence on this ground on his direct appeal, the doctrine of

res judicata barred him from doing so through his petition for post-conviction relief. In October

2006, the Ohio Supreme Court denied leave to appeal.

        In October 2005, Butts, represented by counsel, filed a petition for a writ of habeas corpus

in federal district court asserting, so far as relevant here, two claims: claim one, that his sentence on

the merged convictions violated his constitutional rights, and claim two, that he was denied the

effective assistance of counsel on his direct appeal. In February 2006, Butts moved to stay his

habeas petition pending exhaustion of his state remedies. In September 2006, the district court

denied Butts’s request for a stay, finding that claim one appeared to be procedurally defaulted.

However, it dismissed claim one as unexhausted because the Ohio courts had not yet fully resolved

Butts’s petition for post-conviction relief. It dismissed claim two on the ground that the state

appellate court’s finding that Butts had not received ineffective assistance of counsel on direct appeal

with respect to the allegedly contradictory convictions was not an unreasonable application of clearly

established federal law justifying federal habeas relief.

        The district court granted Butts’s request for a certificate of appealability on his motion to

stay his habeas petition, as well as on his claim that his federal constitutional rights were violated

by his sentence for the merged murder and involuntary manslaughter convictions.1


        1
          The state argues that the district court certified only the issue of whether the district
court was correct in denying Butts’s request for a stay. The district court’s order, however, states
twice that it was granting Butts’s request for a certificate of appealability on “claim one.” Joint
Appendix (“J.A.”) 614, 615 (Oct. 12, 2006 Op. and Order at 2, 3). The court granted the
certificate of appealability on “claim one” after engaging in the inquiry required for issuing a
certificate of appealability on a claim dismissed on a procedural ground, by determining (1)
whether “jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right” and (2) whether “jurists of reason would find it debatable
                                                                                          (continued...)

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                                               II. ANALYSIS

       We review de novo a district court’s decision to grant or deny a writ of habeas corpus.

Bannerman v. Synder, 325 F.3d 722, 723 (6th Cir. 2003).               We defer to the state court’s

determinations of questions of law and mixed questions of law and fact unless those determinations

are “contrary to, or involve an unreasonable application of, clearly established federal law.” 28

U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 407-09 (2000). We review the district

court’s decision to deny a stay of a federal habeas petition for abuse of discretion. Rhines v. Webber,

544 U.S. 269, 279 (2005).

       The district court found that the Ohio Court of Appeals held Butts’s claim procedurally

defaulted under Ohio’s doctrine of res judicata because he could have raised the claim on his direct

appeal. Butts first referred to the claim in his application to reopen his direct appeal based on

ineffective assistance of appellate counsel, but that application is considered to be part of the

collateral review process. See Lopez v. Wilson, 426 F.3d 339 (6th Cir. 2005) (en banc). Butts also

presented the claim in his “Motion for a Resentencing Hearing and for Correction of an Erroneous

Sentence” which the trial and appellate courts treated as a petition for post-conviction relief.

       Federal review of a claim presented in a habeas petition under 28 U.S.C. § 2254 is barred

in all cases in which the state prisoner has defaulted his federal claim in state court pursuant to an

independent and adequate state procedural rule, unless there is a showing of cause and prejudice or

       1
         (...continued)
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. at
484. The certificate of appealability also covers the issue of whether the stay was properly
denied. Although the district court purported to grant the certificate of appealability “solely as to
claim one,” it then concluded, “The following issue is certified for appeal: Was the District Court
correct in denying petitioner’s request for a stay of proceedings on claim one?” J.A. 615 (Oct.
12, 2006 Op. and Order at 3).

                                                  4
a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Murray v.

Carrier, 477 U.S. 478, 495-96 (1986). We use the analysis under Maupin v. Smith, 785 F.2d 135,

138 (6th Cir. 1985), to determine whether a procedural default has occurred. See Reynolds v. Berry,

146 F.3d 345, 347-48 (6th Cir. 1998) (citing Maupin). First, we “must find that there is a state

procedural rule that applies to the petitioner’s claim, and that the petitioner failed to comply with the

rule.” Id. Second, we “must determine whether the state courts actually enforce the state procedural

sanction.” Id. Third, we “must decide whether the state procedural forfeiture is an adequate and

independent state ground upon which the state can rely to foreclose review of the petitioner’s federal

constitutional claim.” Id. This requires an examination of the adequacy of the state ground, which

is determined by “examining the state’s legitimate interests in the procedural rule in light of the

federal interest in considering federal claims.” Id.

        If these three criteria are met, a petitioner “must demonstrate cause for not following the

procedural rule and prejudice resulting from the alleged constitutional error” in order for a federal

court to review the claim. Id. Cause exists if there is an “objective factor external to the defense

[that] impeded counsel’s efforts to comply with the State’s procedural rule.” Coleman, 501 U.S. at

752. Alternatively, we may excuse a procedural default if there is a fundamental miscarriage of

justice which occurs if a “constitutional violation has probably resulted in the conviction of one who

is actually innocent.” Carrier, 477 U.S. at 496.

        Under the Maupin analysis, Butts has procedurally defaulted his claim, and he has not shown

cause for the procedural default. Nor has he shown that there has been a fundamental miscarriage

of justice.

        1.      Butts failed to raise his claim on his direct appeal, as required by Ohio law


                                                   5
       The Ohio Court of Appeals concluded that the doctrine of res judicata barred review of

Butts’s claim that his sentence violated his constitutional rights. Under Ohio law, a claim is barred

by res judicata if the petitioner could have raised the claim in an earlier proceeding. State v. Perry,

226 N.E.2d 104, 108 (Ohio 1967). The doctrine bars relitigation in post-conviction petitions of

issues that could have been raised on direct appeal. Id. Butts did not raise the claim in question here

on his direct appeal, and that claim is therefore forfeited under the doctrine of res judicata.

       2.      Ohio courts regularly enforce the doctrine of res judicata

       Ohio courts consistently enforce the doctrine of res judicata. See, e.g., Williams v. Bagley,

380 F.3d 932, 966-67 (6th Cir. 2004); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).

       3.      Res judicata is an adequate and independent state ground

       We have previously held that res judicata is an adequate and independent state ground under

Maupin. Jacobs, 265 F.3d at 417.

       4.      Butts has not demonstrated cause or a fundamental miscarriage of justice

       Butts has not demonstrated cause for his failure to raise his procedurally defaulted claim on

his direct appeal: he has shown no “objective factor external to the defense [that] impeded counsel’s

efforts to comply with the State’s procedural rule.” Coleman, 501 U.S. at 752. Although ineffective

assistance of counsel may constitute cause (because the Sixth Amendment requires that

responsibility for a procedural default resulting from constitutionally ineffective assistance of

counsel be imputed to the state), Carrier, 477 U.S. at 488, Butts’s argument that he received

ineffective assistance of counsel when his counsel failed to raise his claim on his direct appeal was

rejected by the Ohio courts. The Ohio Court of Appeals observed that Butts could have received a

shorter sentence only if he had been found not guilty on both the murder and involuntary


                                                  6
manslaughter charges, that the record supported the guilty verdict on the murder charge, and that

Butts could not have received a shorter sentence even if his attorney had made the constitutional

arguments he raises here. The Ohio Court of Appeals’s determination that there was no reasonable

probability that but for counsel’s alleged error the result of the proceeding would have been different,

as required under the ineffective assistance of counsel analysis established by the Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984), is not contrary to, nor an unreasonable application

of, clearly established federal law. Butts therefore cannot rely on his attorney’s failure to raise this

claim on direct appeal as cause for the procedural default.

        In the absence of cause, it is not necessary to determine whether prejudice exists. See United

States v. Frady, 456 U.S. 152, 168 (1982).

        Butts has not shown that his case involves a fundamental miscarriage of justice. See Carrier,

477 U.S. at 496. Butts’s procedural default cannot be excused.

                                        III. CONCLUSION

        Because we affirm the dismissal of Butts’s claim for procedural default, we do not address

the denial of Butts’s request for a stay pending exhaustion of his claim.

        For the reasons discussed above, we AFFIRM the decision of the district court.




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