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Bates v. Jenkins
United States District Court, S.D. Ohio, Eastern Division
November 15, 2017
BRYAN BATES, Petitioner,
CHARLOTTE JENKINS, WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
A. SARGUS, JR. CHIEF JUDGE
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
a state prisoner, brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. This matter is
before the Court on its own motion to consider the
sufficiency of the petition pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts. For the reasons that follow, the Magistrate Judge
RECOMMENDS that this action be
TRANSFERRED to the United States Court of
Appeals for the Sixth Circuit as successive.
challenges his April 2008 convictions after a jury trial in
the Guernsey County Court of Common Pleas. The Ohio Fifth
District Court of Appeals summarized the facts and procedural
history of this case as follows:
On June 29, 2007, appellant was indicted on twelve counts of
pandering sexually oriented material involving a minor in
violation of R.C. 2907.322(A)(1) and thirty counts of illegal
use of a minor in nudity oriented material or performance in
violation of R.C. 2907.323(A)(3). The charges arose after an
international investigation involving the United States and
Canada into child pornography on the Internet.
A jury found appellant guilty as charged and, by judgment
entry of sentence filed April 18, 2008, the trial court
sentenced appellant to an aggregate term of thirteen years in
prison and classified him as a Tier II sex offender pursuant
to R.C. 2950, also known as the Adam Walsh Act
Appellant filed a direct appeal of his convictions. In his
direct appeal, appellant challenged the denial of his motion
to suppress testimony of appellee's expert in computer
forensics and raised the issues of ineffective assistance of
counsel, manifest weight, and sufficiency of the evidence.
This Court affirmed appellant's convictions in State
v. Bates, 5th Dist. No. 08CA15, 2009-Ohio- 275
Appellant next appealed the trial court's decisions
regarding a motion to correct sentence, motion to correct
amended judgment entry, a second motion to correct sentence,
a motion for reconsideration of an allied offense issue, and
motion for hearing to correct the sentence. We addressed his
arguments collectively in State v. Bates, 5th Dist.
Nos. 11-CA-000016, 11-CA000026, and 11-CA-000033,
2012-Ohio-1080 (Bates II). In Bates II,
this Court affirmed all of the trial court's judgments
and noted that some of the errors appellant raised were
res judicata because appellant could have raised the
arguments in his direct appeal. However, we addressed
appellant's assignments of error regarding his sentence,
finding that the judgment entries complied with Criminal Rule
32(C) and State v. Baker, 119 Ohio St.3d 197, 893
N.E.2d 163 (2008).
While Bates II was pending, appellant filed a motion
for reconsideration and to correct sentence, another motion
to correct sentence, and a petition to vacate or set aside
the judgment or conviction or sentence.
In State v. Bates, 5th Dist. Nos.2012-CA-06,
2012-CA-10, 2012- Ohio-4360 (Bates III), we affirmed
the trial court's rulings and found appellant's
petition for post-conviction relief was not filed within the
statutory time limitation and contained no showing the
exception to the time limitation applied.
In April of 2012, appellant filed a motion to vacate and
correct his sentence based upon the Ohio Supreme Court's
decision in State v. Williams, 129 Ohio St.3d 344,
952 N.E.2d 1108 (2011), which held that defendants whose
crimes were committed prior to the AWA's enactment should
have been classified according to the statutory scheme in
place at the time they committed their crimes, even if they
were sentenced after the enactment of the AWA. The State of
Ohio agreed with appellant that the AWA, as codified in R.C.
2950, was improperly applied to appellant when he was
sentenced and that appellant should be classified pursuant to
the version of R.C. 2950 in effect at the time appellant
committed the offenses, also known as Megan's Law.
Appellant filed a second motion to vacate and correct his
sentence on May 1, 2012.
The trial court initially set appellant's motions for
hearing on October 1, 2012. On August 23, 2012, the trial
court granted appellant's motion for standby counsel. On
August 27, 2012, appellant filed a motion for court appointed
forensic expert for the sex offender classification hearing,
stating this expert would provide a meaningful review and
comprehensive analysis of the alleged computer evidence in
question. Appellant also filed a motion for court appointed
psychologist to assist in determining the recidivism factors
in his case. Further, appellant filed subpoenas for multiple
individuals who testified during his original trial to appear
for the sex offender classification hearing.
Based on the pendency of the Bates III appeal, the
trial court continued the hearing scheduled for October 1,
A number of motions filed by appellant and appellee
culminated in a sexual-offender classification hearing on
March 1, 2013, resulting in two judgment entries: 1) a
judgment entry finding appellant to be a sexually-oriented
offender, notifying him of his duty to register and detailing
registration requirements upon release from prison, stating
the length of appellant's registration requirement and
including penalties for failure to register; and 2) a
judgment entry stating the trial court found appellant not to
be a sexual predator for the purposes of sex offender
registration. Appellant appealed those judgment entries in
State v. Bates, 5th Dist. Guernsey No. 13-CA-9,
2013-Ohio-4768, appeal not allowed, 138 Ohio St.3d 1436,
2014-Ohio-889, 4 N.E.3d 1052');">4 N.E.3d 1052 [Bates IV]. We affirmed
the judgments of the trial court, finding: use of the word
“resentencing” in the initial entry setting
hearing did not vacate appellant's entire sentence; the
trial court properly granted appellant's request by
reclassifying him according to the statutorily-mandated
sentencing scheme (i.e. Megan's Law) in place at
the time his crimes were committed; the trial court did not
err in failing to permit appellant to call witnesses at the
classification hearing; the judgment entry of March 1, 2013
properly contained the notice requirements set forth in
former R.C. 2950.03(B)(1); and appellant's remaining
assignments of error were barred by res judicata.
See, Bates IV, supra.
On May 12, 2016, appellant filed a motion to correct judgment
entry of sentence which the trial court granted in part and
denied in part by judgment entry dated June 29, 2016.
Appellant now appeals from the trial court's judgment
entry of June 29, 2016 and raises ...
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