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Bates v. Jenkins

United States District Court, S.D. Ohio, Eastern Division

November 15, 2017

BRYAN BATES, Petitioner,
v.
CHARLOTTE JENKINS, WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

          EDMUND A. SARGUS, JR. CHIEF JUDGE

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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.

         I. BACKGROUND

         Petitioner 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 (“AWA”).
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 (Bates I).
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, 2012.
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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