Christopher Nelloms v. Wanza Jackson

*The Honorable Jane A. Restani, Chief Judge of the United States Court of International
Trade, sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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,
v.
WANZA JACKSON,
Respondent-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
O P I N I O N
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

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1Nelloms 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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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

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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

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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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2At 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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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

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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).
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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

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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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