                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0329n.06
                             Filed: April 28, 2005

                                            No. 04-4012

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


CHRISTOPHER NELLOMS,                   )
                                       )
      Petitioner-Appellant,            )                   ON APPEAL FROM THE
                                       )                   UNITED STATES DISTRICT
v.                                     )                   COURT FOR THE SOUTHERN
                                       )                   DISTRICT OF OHIO
WANZA JACKSON,                         )
                                       )                           OPINION
      Respondent-Appellee.             )
_______________________________________)


Before: KENNEDY and MOORE, Circuit Judges and RESTANI,* Judge.

       KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Christopher Nelloms

(“Nelloms”) appeals the district court’s denial of his petition for writ of habeas corpus on the ground

of procedural default. Specifically, Nelloms contends that procedural default of his due process

claim ought to be excused in order to prevent a fundamental miscarriage of justice. For the

following reasons, we AFFIRM the district court’s judgment.

                                        I. BACKGROUND

       On June 4, 1998, Nelloms was indicted in Ohio state court for one count of felonious sexual

penetration in violation of Ohio Rev. Code § 2907.12(A)(1)(b) (“Count I”), eight counts of rape of

a person under thirteen years of age in violation of Ohio Rev. Code § 2907.02(A)(1)(b) (“Counts



       *
        The Honorable Jane A. Restani, Chief Judge of the United States Court of International
Trade, sitting by designation.
II, III, and V through X”), and one count of attempted rape of a person under thirteen years of age

in violation of Ohio Rev. Code § 2907.02(A)(1)(b) (“Count IV”). The charges stemmed from

allegations by Nelloms’s daughter who alleged that Nelloms engaged in sexual acts with her in

Kentucky and Ohio from 1995 to 1997. The indictment alleged that Counts I through V (the

felonious penetration charge, the attempted rape charge, and three of the rape charges) were

committed by Nelloms in Kentucky (“Kentucky convictions”). The remaining five counts of rape

(Counts VI through X) were alleged to have occurred in Ohio (“Ohio convictions”).

       Following a jury trial, Nelloms was convicted of felonious penetration and seven counts of

rape.1 Nelloms filed a post-conviction motion for a new trial on the grounds of prosecutorial and

juror misconduct. An evidentiary hearing was held on Nelloms’s juror misconduct claim, but the

trial court ultimately denied Nelloms’s motion. At sentencing, the trial court ordered a life sentence

on each of the seven counts with the sentences for Counts I, V, VI and X to be served consecutive

to each other and concurrent to the remaining counts.

       On February 26, 1999, Nelloms appealed his conviction to the Ohio Court of Appeals,

alleging: (1) that the trial court improperly convicted him of the “Kentucky convictions” as it lacked

subject-matter jurisdiction over these crimes; and (2) that he was denied his due process rights to

trial by an impartial jury and to effective assistance of counsel. Nelloms’s brief to the Ohio Court

of Appeals concluded by arguing that based on these trial-court errors, his conviction “should be

reversed and a new trial granted to Defendant-Appellant.” Joint Appendix (“J.A.”) at 81 (Nelloms’s

Ohio Ct. App. Br. at 20). The Ohio Court of Appeals determined that Nelloms’s claims based on



       1
        Nelloms was acquitted of Count IV for attempted rape, and the state dismissed Count VII,
one of the rape charges alleged to have occurred in Ohio.

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juror misconduct and ineffective assistance of counsel were meritless. The Ohio Court of Appeals

concluded, however, that the trial court lacked jurisdiction over the Kentucky convictions. As a

result, the Ohio Court of Appeals remanded the case to the trial court with instructions for the trial

court “to dismiss Counts I, II, III and V of the indictment, for lack of subject-matter jurisdiction, and

to enter an appropriate sentence on Counts VI, VIII, IX and X.” J.A. at 132 (Ohio Ct. App. Op. at

11).

        Nelloms then filed an appeal with the Ohio Supreme Court asserting that the Ohio Court of

Appeals erred in failing to order a new trial on the Ohio convictions, rather than merely

resentencing. Specifically, Nelloms argued that he was entitled to a new trial on the Ohio

convictions “since failure [to order a new trial] would violate his Due Process and constitutional

rights on the grounds he has been unduly prejudiced and denied a fair trial by the jury’s exposure

to the evidence for [the Kentucky convictions].” J.A. at 135 (Nelloms’s Ohio S. Ct. Br. at 3). On

March 15, 2000, the Ohio Supreme Court denied Nelloms’s appeal on the ground that it did not

involve “any substantial constitutional question.” J.A. at 173 (Ohio S. Ct. Order).

        Following the Ohio Supreme Court’s rejection of Nelloms’s appeal, the case was remanded

to the trial court. Once before the trial court, Nelloms filed a motion for a new trial, asserting that:

(1) he “was unduly prejudiced in violation of his due process and constitutional rights when the

State, during the first trial, presented evidence of alleged crimes over which it did not have

jurisdiction,” and (2) he had “newly discovered evidence that [would] prove [Nelloms’s] innocence

on the remaining counts.” J.A. at 175-76 (Mot. for New Trial at 2-3). The trial court rejected

Nelloms’s claims on the basis that Nelloms’s motion was untimely pursuant to Ohio Crim. R. 33(B)

and, alternatively, that no constitutional violations existed that would warrant a new trial. The trial


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court also denied Nelloms’s motion for reconsideration of his motion for a new trial. The trial court

then held a resentencing hearing on June 23, 2000. At the conclusion of the hearing, the trial judge

resentenced Nelloms to life imprisonment on each of the four remaining counts and ordered that the

life sentences be served consecutively. This resulted in a sentence which in the aggregate was the

same length as Nelloms’s original sentence.

       Nelloms’s defense counsel then filed a brief in the Ohio Court of Appeals pursuant to Anders

v. California, 386 U.S. 738 (1967). The Ohio Court of Appeals instructed Nelloms that he then had

sixty days to file a pro se brief with the court. During this time period Nelloms was able to secure

alternate counsel. Nelloms’s new counsel subsequently filed a brief asserting only that the trial

court’s resentencing determination violated due process, as outlined by the Supreme Court in North

Carolina v. Pearce, 395 U.S. 711 (1969). Nelloms did not appeal the trial court’s denial of his

motion for a new trial. On June 1, 2001, the Ohio Court of Appeals rejected Nelloms’s claim, as it

concluded that the mandates of Pearce were not violated under the circumstances of this case.

Finally, Nelloms filed another appeal to the Ohio Supreme Court, arguing only that “[i]n order to

prevent vindictiveness against defendants who successfully appeal a decision of the trial court, due

process of law requires that a trial judge not re-sentence a defendant to consecutive sentences which

were previously ordered to be served concurrently without stating the reasoning for doing so

affirmatively on the record.” J.A. at 283 (Nelloms’s Ohio S. Ct. Br. at 1). The Ohio Supreme Court

again dismissed Nelloms appeal “as not involving any substantial constitutional question.” J.A. at

328 (Ohio S. Ct. Order).

       On December 26, 2002, Nelloms filed a petition for writ of habeas corpus in federal district

court. Nelloms’s petition argued that the Ohio state courts violated his due-process rights by failing


                                                  4
to order a new trial on the Ohio convictions after concluding that the trial court lacked subject-matter

jurisdiction over the Kentucky convictions. The magistrate judge assigned to the case issued his

Report and Recommendations on August 13, 2003. In the report, the magistrate judge recommended

that Nelloms’s petition be dismissed on grounds of procedural default. Alternatively, the magistrate

judge recommended that even if Nelloms’s claim was not procedurally defaulted, his petition ought

to be denied on the merits.       The district court adopted the magistrate judge’s Report and

Recommendations as to procedural default, concluding that Nelloms had procedurally defaulted his

claim. As a result, the district court did not address the merits of Nelloms’s claim. The district court

did, however, issue a certificate of appealability as to whether procedural default had occurred in

this case. Nelloms then filed this timely appeal.

                                           II. ANALYSIS

       We review de novo the district court's legal conclusions in denying Nelloms habeas relief.

Souter v. Jones, 395 F.3d 577, 584 (6th Cir. 2005). On appeal Nelloms does not dispute that he

procedurally defaulted his due process claim seeking a new trial. See Appellant Br. at 10 (“The

district court correctly determined that Mr. Nelloms’[s] sole habeas corpus claim was procedurally

defaulted . . . by virtue of not having been fully and fairly presented to the Ohio court of appeals.”).

Instead, Nelloms contends that any procedural default of his due process claim should be excused

in order to avoid a fundamental miscarriage of justice. We find Nelloms’s argument to be meritless

as he has failed to establish that our refusal to entertain his claim will result in a fundamental

miscarriage of justice.

       As the Supreme Court recently reiterated, a federal court will ordinarily not review a

procedurally defaulted constitutional claim raised on habeas corpus review “[o]ut of respect for


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finality, comity, and the orderly administration of justice.” Dretke v. Haley, 541 U.S. 386, 124 S.

Ct. 1847, 1849 (2004). This is a corollary to the rule that “federal courts will not disturb state court

judgments based on adequate and independent state law procedural grounds.” Id. at 1852. The only

exceptions to this rule are when a state prisoner can demonstrate cause for the procedural default and

prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to review

the constitutional claim will result in a fundamental miscarriage of justice. Coleman v. Thompson,

501 U.S. 722, 749-50 (1991). A prisoner may establish a fundamental miscarriage of justice by

showing that a constitutional error probably resulted in the conviction of one who is actually

innocent. See, e.g., Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). In order to raise a claim of

actual innocence, a prisoner “must present[] evidence of innocence so strong that a court cannot

have confidence in the outcome of the trial unless the court is also satisfied that the trial was free

of nonharmless constitutional error.” Souter, 395 F.3d at 589-90 (quoting Schulp v. Delo, 513 U.S.

298, 316 (1995)) (internal quotation marks omitted). This standard applies when a prisoner presents

a valid claim of constitutional error. Schulp, 513 U.S. at 316.

       In this case Nelloms does not argue that new evidence suggests that he was actually innocent

of the crimes for which he was convicted in state court. Instead, Nelloms argues in his brief that

“requiring a state-court defendant to simultaneously defend against five charges arising out of

conduct in one state and five charges arising out of conduct wholly in another state, and denying the

defendant federal habeas review, constitutes a fundamental miscarriage of justice.” Appellant Br.

at 12.2 In essence, Nelloms requests that we expand the definition of a fundamental miscarriage of


       2
         At oral argument, Nelloms’s defense counsel argued for the first time that the state trial
court’s resentencing of Nelloms in violation of North Carolina v. Pearce, 395 U.S. 711 (1969), also
constitutes a fundamental miscarriage of justice. This argument was not raised in Nelloms’s brief

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justice beyond the actual innocence exception carved out by the Supreme Court. We decline to

expand the fundamental-miscarriage-of-justice exception in this manner.

        Our prior precedent indicates that we may review a procedurally defaulted claim only where

a state prisoner has established either cause and prejudice or actual innocence. See, e.g., Burton v.

Renico, 391 F.3d 764, 773 (6th Cir. 2004) (“When a criminal defendant has procedurally defaulted

his or her ability to obtain federal habeas relief by failing to comply with a state procedural rule, the

defendant must show ‘cause and prejudice’ or actual innocence in order to overcome the procedural

default.”) (emphasis added). Indeed, we have expressly stated that, “[w]ith respect to a miscarriage

of justice, a petitioner must demonstrate that ‘a constitutional violation has probably resulted in the

conviction of one who is actually innocent of the crime.’” House v. Bell, 386 F.3d 668, 677 (6th Cir.

2004) (en banc) (quoting Schlup, 513 U.S. at 324) (emphasis added). Additionally, Nelloms’s claim

that the Supreme Court has not foreclosed expansion of the fundamental-miscarriage-of-justice

exception to include claims such as Nelloms’s claim is erroneous. The Supreme Court indicated in

Schlup that limiting the miscarriage-of- justice exception to cases of actual innocence strikes the

proper balance between accommodating “the systemic interests in finality, comity, and conservation

of judicial resources” along with “the overriding individual interest in doing justice in the

extraordinary case.” Schlup, 513 U.S. at 322 (internal quotation marks and citation omitted). Thus,

the Supreme Court made clear that even a meritorious claim of constitutional violation would be

insufficient to excuse procedural default absent evidence of actual innocence or cause and prejudice.

Id. at 316 (“Without any new evidence of innocence, even the existence of a concededly meritorious



nor was it raised before the district court, and thus we will not address it. See Seymour v. Walker,
224 F.3d 542, 561 (6th Cir. 2000), cert. denied, 532 U.S. 989 (2001) (indicating that an appellate
court should not consider habeas claims not raised before the district court).

                                                   7
constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow

a habeas court to reach the merits of a barred claim.”). We therefore conclude that the procedural

default is not excused in this case and that the district court properly denied Nelloms’s petition.

                                         III. CONCLUSION

        For the reasons stated above, we AFFIRM the district court’s judgment.




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