UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION
July 20, 2011
AZZAM AHMED, PETITIONER,
The opinion of the court was delivered by: Pearson, J.
JUDGE BENITA Y. PEARSON
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DENYING
PETITIONER'S MOTION FOR LEAVE ) TO AMEND PETITION AND MOTION ) TO
STAY THIS CASE AND HOLD IN
ABEYANCE [Resolving ECF Nos. 19 and 20]
Before the Court is the Report and Recommendation (ECF No. 25) filed by Magistrate Judge James R. Knepp II recommending that the Court deny Petitioner Azzam Ahmed's Motion for Leave to Amend his Petition for a writ of habeas corpus (ECF No. 19) and Motion to Stay This Case and Hold in Abeyance Pending Exhaustion of Petitioner's Petition for Post-Conviction Relief Filed with the State Trial Court (ECF No. 20) filed by Petitioner Azzam Ahmed ("Ahmed"). Ahmed has objected to the Report and Recommendation. (ECF No. 28). For the reasons set forth below, the Report and Recommendation is adopted. Ahmed's motions for leave to amend his petition and to stay the case and hold it in abeyance are denied.
II. Standard of Review
The standard of review used by the Court in examining a Report and Recommendation is set forth in 28 U.S.C. § 636. The Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. § 636(b)(1)(C). The Court "may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
The Report and Recommendation before the Court accurately details the facts and procedural history of the case. Those facts and history, to which neither party has objected, are restated herein.
Petitioner Azzam Ahmed was convicted in the Common Pleas Court of Cuyahoga County on two counts of rape, seven counts of sexual battery, and eleven counts of sexual imposition. On February 18, 2004 he was sentenced to consecutive terms totaling 45 years of incarceration and later resentenced on May 23, 2006 to the same aggregate term. Continuing to the present, Ahmed, through counsel, has engaged in numerous state and federal procedures to overturn these convictions or reduce his sentence. On March 21, 2009, with the assistance of counsel, Ahmed filed a petition under 28 U.S.C. §2254 for habeas corpus review, alleging eight grounds for relief. ECF No. 25 at 2.
On August 4, 2010, Magistrate Judge James S. Gallas (now retired)
issued a report and recommending that Ahmed's habeas petition be
denied in its entirety (ECF No. 15). Ahmed timely filed objections (ECF No. 18).*fn1
Ahmed also, contemporaneously, moved the Court for leave to
amend his petition to add a new ground (ECF No. 19) and to stay the
case pending exhaustion of his state remedies on that ground (ECF No.
20).*fn2 ECF No. 25 at 1.
The motions to amend the petition and to stay this proceeding were referred to Magistrate Judge James R. Knepp II. On April 1, 2011, the magistrate judge recommended that both motions be denied. Ahmed filed timely objections.
A. Motion to Amend the Petition
A motion to amend a habeas petition is governed by Rule 15(a) of the Federal Rules of Civil Procedure. See 28 U.S.C. § 2242; Hodges v. Rose, 570 F.2d 643, 649 (6th Cir. 1978). Although the Court is directed to grant leave to amend freely, the right to amend is not unlimited. The Court has discretion to deny leave to amend a habeas petition when the amendment would be futile. See Oleson v. United States, 27 F. App'x 566, 569 (6th Cir. 2001).
"Habeas corpus is not a neutral proceeding in which the petitioner and the State stand on an equal footing. Rather, it is an asymmetrical enterprise in which a prisoner seeks to overturn a presumptively valid judgment of conviction. Because of this, the petitioner generally bears the burden of proof throughout the habeas proceeding." Pinkney v. Keane, 920 F.2d 1090, 1094 (2nd Cir.1990).
1. Reasons for Proposed Amendment
Ahmed seeks to add the following ground for relief to his pending petition: Ground Nine: Petitioner Ahmed's right to due process of law, as protected by the Due Process Clause of the 14th Amendment to the United States Constitution, was violated by the severance of statutory requirements for findings of fact before consecutive sentences could be imposed upon him.*fn3 ECF No. 19 at 1. The magistrate judge explained the derivation of the proposed amendment in the following way:
At the time of his original sentencing, Ohio Revised Code 2929.14(E)(4) required the court to make certain findings before imposition of consecutive sentences. The Ohio Court of Appeals for the Eighth Judicial District affirmed Petitioner's conviction in 2005, but vacated his sentence, holding that the findings made by the trial judge were not sufficient to justify consecutive sentences. After the decision of the state appellate court, but prior to his resentencing in the trial court, the Supreme Court of Ohio declared unconstitutional and severed the portion of the statute requiring judges to make findings prior to imposing consecutive sentences. State v. Foster, 109 Ohio St. 3d 1 (2006). Thus, when Petitioner was ultimately resentenced post-Foster, the trial judge did not make any findings of fact when consecutive sentences were again imposed.
In 2009, well after Foster and Petitioner's re-sentencing, the U.S. Supreme Court issued Oregon v. Ice, 129 S.Ct. 711');">129 S. Ct. 711 (2009), which examined Oregon's state sentencing laws and held that requiring judges to make certain findings of fact in order to impose consecutive sentences did not violate the constitution. Thus, in light of Ice, Foster was incorrect in holding Ohio's requirement of fact finding for consecutive sentences unconstitutional. Notably, Ice did not hold that such fact-finding was required as a matter of federal constitutional law.
Petitioner argues that because Foster improperly struck down a portion of the Ohio sentencing statute, his post-Foster re-sentencing, without the fact-finding requirement improperly severed, violated his Due Process rights. In support, Petitioner directs the Court to Hicks v. Oklahoma, 447 U.S. 343 (1980), which held that a defendant had a due process liberty interest in ensuring a [S]tate's compliance with prescribed sentencing procedures. ECF No. 25 at 2-3.
Ahmed 's argument for this additional ground of relief is comprised of two premises--each buttressed by Supreme Court case law. The first premise is that, in accordance with Oregon v. Ice, Ahmed has an entitlement to being sentenced with the judicial fact-finding requirement existing pre-Foster. ECF No. 19 at 8. The second premise is that this entitlement was a liberty interest cognizable under the 14th Amendment's Due Process Clause as evidenced by the Supreme Court's holding in Hicks v. Oklahoma. ECF No. 19 at 8. Upon these bases, Ahmed argues that, because he was sentenced without the judicial fact--finding requirement, he has been deprived of a liberty interest. This deprivation, he avers, violated his constitutional right to due process. ECF No. 19.
2. Magistrate Judge's Ruling and Ahmed's Objections
In the Report and Recommendation, the magistrate judge refuted the bases for Ahmed's proposed amendment and found that the proposed amendment "fail[ed] to set forth a cognizable federal constitutional claim" (ECF No. 25 at 6) because Ahmed had failed to prove: (1) that he had an entitlement to the previous sentencing arrangement and (2) that this alleged entitlement constituted a liberty interest protected by the Constitution. ECF No. 25.
The magistrate judge began his analysis by discrediting Ahmed's reliance upon Hicks v. Oklahoma to prove his alleged entitlement to pre-Foster sentencing constituted a liberty interest. In so doing, the magistrate judge noted that Hicks was factually distinguishable from the instant case. ECF No. 25 at 3-4. In Hicks, the Supreme Court found that a state's existing statutory provision requiring a jury to determine a defendant's sentence "created a substantial and legitimate expectation that [the defendant would be] deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion." Hicks, 447 U.S. at 346. Thus, the Hicks Court held that the State appellate court's refusal to issue a ruling comporting with the State's prescribed sentencing procedure deprived defendant of a liberty interest without due process of law. Id. In contrast, to the facts in Hicks, "at the time [Ahmed] was re-sentenced, by operation of Ohio law, there was no 'prescribed sentencing procedure' [that] was not followed." ECF No. 25 at 3-4. No legitimate expectation was frustrated.
Moreover, the magistrate judge determined that Ahmed's contention that he possessed an entitlement to the previous sentencing protocol lacked merit by deconstructing Ahmed's reliance upon Oregon v. Ice. First, the magistrate judge correctly noted that Ice did not overrule Ohio's post-Foster sentencing regime, in accordance with which Ahmed was re-sentenced. ECF No. 25 at 3. Although, "in light of Ice, Foster was incorrect in holding Ohio's requirement of fact finding for consecutive sentences unconstitutional. . . Ice did not hold that such fact-finding was required as a matter of federal constitutional law." ECF No. 25 at 3. Thus, the magistrate judge reasoned that while it can be argued that the impetus behind the Foster court's severance of statutory provisions involving judicial fact-finding for consecutive sentencing was based upon a misinterpretation of constitutional law, the severance itself and its progeny, the post-Foster sentencing regime, remains constitutional. Accordingly, the magistrate judge was correct in rejecting Ahmed's assertion that he possessed an entitlement to being re-sentenced pursuant to the pre-Foster sentencing regime as a result of the unconstitutionality of Foster.
Most damaging to Ahmed's dependency upon Ice to support his entitlement theory, however, is the recent Ohio Supreme Court decision in State v. Hodge, 128 Ohio St. 3d 1 (Ohio 2010).*fn4 In Hodge, the Ohio Supreme court expressly rejected the notion that the judicial fact-finding requirements severed in Foster were reinstated with the pronouncement of the Ice decision. Id. at 10. And as a result, the Ohio Supreme Court ultimately held that the Petitioner, Hodge, was not entitled to be re-sentenced pursuant to the pre-Foster sentencing arrangement. Id. Based upon this holding, the magistrate judge expressly rejected Ahmed's contention that the ruling in Ice had the effect of bestowing an entitlement upon Ahmed. ECF No. 25 at 4-6.
The record reflects that Ahmed submitted an additional brief in an attempt to "distinguish himself from application of Hodge mandates." ECF No. 25 at 6; see also, ECF No. 24. Ahmed argued that unlike the petitioner in Hodge and other similarly situated petitioners whose liberty interests, presumably, were tethered to the severed statutory provision, Ahmed's liberty interest arose from the State appellate court's ruling, which (1) held that the trial judge's findings did not comply with the fact-finding requirements of the then existing statute on the grounds that the findings did not justify the imposition of consecutive sentencing and (2) vacated Ahmed's original sentence and ordered Ahmed to be re-sentenced pursuant to the now defunct statute. See generally, ECF No. 24. Ahmed laments that because the facts surrounding his case are truly unique, he possesses a liberty interest and should be allowed to pursue this claim in the State courts, in spite of the holding in Hodge. Id.
The magistrate judge found Ahmed's argument unpersuasive--holding that Ahmed's dissimilarity was "a distinction without a difference." ECF No. 25 at 6. There are no distinguishing facts (1) entitling Ahmed to be re-sentenced pursuant to the defunct statutory provisions or (2) invoking the due process liberty interest described in Hicks. Accordingly, because the proposed additional ground fails to set forth a cognizable federal constitutional claim, the magistrate judge recommended that Ahmed's motion for leave to amend should be denied. ECF No. 25 at 6. The Court agrees.
3. Ruling Regarding Motion to Amend Petition
Ahmed has been unable to show that he had a liberty interest in the pre-Foster sentencing regime. There is no existing case law to support this assertion.*fn5 Ahmed's attempt to analogize the instant case to Hicks is unpersuasive.
Additionally, Ahmed has not shown that he possesses an entitlement to re-sentencing under the statutory provisions severed in Foster. The ruling in Hodge forecloses the possibility that Ahmed's unexhausted claim would be meritorious in either a State court post-conviction proceedings or a federal habeas corpus proceeding.*fn6 It is inconsequential that the Hodge Court did not decide the precise question presented in the instant case: whether the State appellate court's determination that the trial court's findings of fact did not warrant imposition of consecutive sentences created a liberty interest in the severed pre-Foster statutory provisions. Hodge held that the Supreme Court of the United State's decision in Ice did not create an entitlement to the severed statutory provisions, Hodge, 128 Ohio St. 3d 10 (Ohio 2010), completely undermining Ahmed's position. See Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235-36 (6th Cir. 1991) (finding that where state law provided no entitlement to the prisoner, the prisoner did not have a constitutionally protected liberty interest).
In his objection to the Report and Recommendation, Ahmed acknowledges that the magistrate judge's decision recommending denial of his motion to amend relied upon the Supreme Court of Ohio's holding in Hodge. Ahmed, nevertheless, argues that the magistrate judge's analysis was erroneous because the magistrate judge concluded "that the issue presented is purely one of state law." ECF No. 28 at 6. As indicated in the discussion above, the magistrate judge relied upon analyses of State and federal law in making his recommendations. The conclusion reached, after extensive review, is that Ahmed's proposed new ground for relief is not a colorable claim that he is being held in custody pursuant to a State court judgment that is
(1) contrary to or involves an unreasonable application of federal law as determined by the Supreme Court of the United States, or (2) the result of a decision based upon an unreasonable determination of the facts in light of the evidence in the State court proceeding. See 28 U.S.C. § 2254(d)(1)-(2).
Ahmed's objections are overruled. His motion to amend his petition is denied.
B. Motion to Stay
The magistrate judge recommended denial of Ahmed's motion to stay, ECF No. 20, on the grounds that the unexhausted claim was meritless. ECF No. 25 at 7 (citing to Rhines v. Weber, 544 U.S. 269, 277 (2005)). Ahmed general objections are noted.*fn7 Given, as discussed in detail above, that the Court denies Ahmed's motion to amend his petition to add the unexhausted claim, his motion to stay and hold in abeyance the instant action until the unexhausted claim is fully adjudicated in State court is denied as well. Ahmed's objections are overruled.
For the foregoing reasons, the Report and Recommendation is adopted. Petitioner Azzam Ahmed's motion to amend, ECF No. 19, and motion to stay and hold in abeyance, ECF No. 20, are denied.
IT IS SO ORDERED.
Benita Y. Pearson United States District Judge