United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose, District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge.
habeas corpus case under 28 U.S.C. § 2254 is before the
Court for decision on the Petition (ECF No. 4), the State
Court Record (ECF No. 13), the Return of Writ (ECF No. 14),
the Reply (ECF No. 21) and the court-ordered Amended Reply
(ECF No. 25).
case arises ultimately out of incidents that occurred at the
Dayton Motor Hotel on May 15-16, 2005. In September 2005 the
Montgomery County Grand Jury reindicted Brown on one count of
aggravated robbery with a firearm specification, two counts
of felonious assault with firearm specifications, one count
of having weapon while under disability, one count of
tampering with evidence, one count kidnapping with a firearm
specification, and one count of aggravated burglary with a
firearm specification. (State Court Record, ECF No. 13,
PageID 541.) At a jury trial in February 2006, Brown was
convicted of both counts of felonious assault, aggravated
burglary with the firearm specification, having weapons under
disability, and tampering with evidence. Id. at
PageID 556. After motions for new trial and acquittal were
denied, Judge John Kessler, to whom the case was then
assigned, sentenced Brown to a total of nineteen years of
appealed to the Second District Court of Appeals which
affirmed. State v. Brown, No. 21540, 2007-Ohio-2098,
2007 Ohio App. LEXIS 1954 (2nd Dist. Apr. 27,
2007), appellate jurisdiction declined, 115 Ohio St.3d 1421
August 2007, Brown filed an application to reopen his direct
appeal under Ohio R. App. P. 26(B) to raise a claim of
ineffective assistance of appellate counsel based on the
omission of seven assignments of error. The Second District
denied the application as untimely and the Ohio Supreme Court
denied review (State Court Record ECF No. 13, PageID 755-56;
months later Brown filed a delayed petition for
post-conviction relief under Ohio Revised Code §
2953.21. By this time Judge Kessler had retired and been
replaced by Judge Mary Wiseman. She denied the
post-conviction petition February 7, 2008 (Decision, State
Court Record ECF No. 13, PageID 870-73). The Second District
affirmed the denial and the Ohio Supreme Court again denied
review. Id. at PageID 929-33, 969.
December 22, 2008, Brown filed a Petition for Writ of Habeas
Corpus in this Court, raising fifteen grounds for relief.
Brown v. Brunsman, Case No. 3:08-cv-477. District
Judge Timothy Black dismissed the Petition and denied a
certificate of appealability in May 2012 (ECF No. 78 in that
case). The Sixth Circuit Court of Appeals also denied a
certificate of appealability near the end of 2012 terminating
the first habeas case.
that point forward, Brown raised a number of claims in
different ways generally addressing deficiencies in the
Common Pleas Court's judgment entry. The history of these
efforts, all of which were made pro se, is detailed in the
Return of Writ (ECF No. 14, PageID 2953-62. Only one of these
efforts bore any fruit favorable to Brown's position. On
appeal from denial of Brown's May 3, 2012, motion to
vacate void judgment, the Second District held Judge Kessler
had erred in failing to orally advise Brown of the five-year
term of post-release control to which he would be subject
when he completed his term of imprisonment. State v.
Brown, No. 25653 (2nd Dist. Jun 13, 2014)(ECF
No. 13, PageID 1567-78). The case was remanded so that the
oral advice could be given. Id. at PageID 1578. On
July 11, 2014, Judge Wiseman gave Brown the required oral
advice of post-release control (Memorialized at State Court
Record ECF No. 13-3, PageID 2033-35). She also entered an
Amended Termination Entry with the five-year PRC term in it.
Id. at PageID 2029-32. Although Brown appealed, the
Second District affirmed and the Ohio Supreme Court again
denied review (State Court Record, ECF No. 13-3, PageID
filed his second habeas corpus petition in this Court March
9, 2017 (ECF No. 4), raising the following grounds for
Ground One: Sixth and Fourteenth Amendment
Violation to a Speedy Trial and Speedy Sentencing.
Supporting Facts: Petitioner was arrested on
July 11, 2005. Petitioner was indicted on August 9, 2005.
Petitioner plead [sic] “not guilty” at a
preliminary hearing. Petitioner Filed a motion to dismiss for
speedy trial violation on December 9, 2005, however, the
court denied the motion. Petitioners' [sic] trial was not
complete until officially convicted and sentenced on July 11,
Ground Two: Petitioner was denied access to
the Court in violation of the First and Fourteenth Amendment.
Supporting Facts: Petitioner signed a cash
slip for postage and deposited said cash slip and Notice of
Appeal into the institutional mail system, however, said
notice of appeal did not make it to the court in a timely
fashion. Once Petitioner placed the mail in the mail system
it was out of his hands. Nevertheless, Petitioner lost his
right to appeal the trial court's decision and entry.
Ground Three: Petitioner was denied his
rights to the Clauses of Due Process and Equal Protection
when Petitioners' [sic] Motion to Dismiss was found to be
considered a post-conviction relief petition.
Supporting Facts: Petitioner filed a Motion
to Dismiss requesting an evidentiary hearing of the trial
court[']s denial of the December 9, 2005 motion, because
there had not be a final judgment of conviction and sentence
rendered in the case.
Ground Four: The trial court failed to
dispose of all charges pending against Petitioner in the
single case before the trial court's judgment with
respect to any charge was final.
Supporting Facts: Petitioners' [sic]
conviction and sentence was not completed until July 11,
2014. Petitioner filed a Motion for Reconsideration of a
denial of a speedy trial violation. However, the motion was
filed before a final judgment was rendered.
Ground Five: Petitioners' [sic] rights
to the Federal Due Process Clause was violated when the Ohio
Court of Appeals failed to comply with App.R. 12(A)(1)(c).
Supporting Facts: The Court of Appeals
passed on Petitioners' [sic] first assignment of error on
page 2 of the Petitioners' [sic] Motion to Vacate. See
Statement of the facts on pages, 6-8 of Memorandum In Support
of Jurisdiction, Case No. 2013-0553.
Ground Six: Court of Appeals violated
Federal Due Process of Law and Fundamental Fairness of the
proceedings when it failed to vacate the sentence it
Supporting Facts: The trial court's
termination entry reflected a sentence that was not
pronounced in the presence of the Petitioner. The appellate
court recognized that the sentence is illegal, however,
refused to vacate the sentence and void entry.
Ground Seven: Court of Appeals denied
Petitioner Equal Protection of the Law when it denied
Petitioners' [sic] Motion for Reconsideration of the
appellate court's January 8, 2013 decision and entry.
Supporting Facts: Petitioners' [sic]
termination entry did not reflect the manner of conviction or
a sentence for all the charges like other defendant's,
however, the court failed to vacate Petitioners' [sic]
judgment of conviction and sentence, as the law existed at
the time Petitioner was tried and sentenced.
Ground Eight: Court of Appeals lacked
subject-matter jurisdiction and violated Petitioners'
[sic] Federal procedural due process rights when it heard an
appeal and decided the trial court imposed a sentence on each
count in accordance to law.
Supporting Facts: The trial court failed to
sentence Petitioner on each and every charge in accordance to
Criminal Rule 32, and modified the trial court termination
entry to reflect a five-year sentence of post-release control
outside of the presence of the Petitioner.
Ground Nine: Where a Court of Appeals hears
and decides a case in which it lacked subject-matter
jurisdiction, that Courts' [sic] proclamation is void and
must be vacated.
Supporting Facts: The court of appeals heard
Petitioners' [sic] appeal on April 27, 2007, however,
said court remanded Petitioners' [sic] case back to the
trial court in 2014 for re-sentencing. Petitioners' [sic]
sentence was not a final sentence at the time it was appealed
to the appellate court.
Ground Ten: Petitioner was deprived of his
liberty, and his rights to the Federal due process and equal
protection clauses when the appellate court denied
Petitioners' [sic] Motion to Vacate Judgment, where it
lacked jurisdiction over the subject-matter to review the
merits of the appeal and affirm the trial court judgment
where the trial court's termination entry fails to
include a conviction and a sentence required by law.
Supporting Facts: Petitioner reallege[s] and
incorporate[s] by reference supporting facts from Grounds
Five-Nine, and the statement of the facts from pages 7-11 of
Petitioners' [sic] Memorandum in Support of Jurisdiction,
Case No. 2013-1921.
Ground Eleven: Petitioner was denied due
process and equal protection of Federal law when it denied
Petitioner relief where it granted relief to others, in the
Supporting Facts: The court of appeals after
denying Petitioner relief on April 17, 2013 held in State
v. Johnston, 2d Dist. Montgomery No. 25652,
2013-0hio-4401, that State v . Sanchez, 2d Dist. Greene
2006-CA-154, 2009-0hio-813, is law when the trial court fails
to dispose of each charge in the defendant's case.
Ground Twelve: Petitioner was denied
Fundamental Fairness of the proceeding and the appellate
court abused it judicial discretion when it failed to certify
the record to the Ohio Supreme Court for review and final
determination pursuant to Article IV, Section 3(B)(4).
Supporting Facts: Petitioner reallege[s]
and] incorporate[s] by reference the statement of the case,
and statement of the facts of Petitioners' [sic]
Memorandum in Support of Jurisdiction [sic], pages, 6-9, in
Case No. 2014-0254.
Ground Thirteen: Sixth and Fourteenth
Amendment violation to Criminal Rule 43(A), where sentence
was not pronounced in the presence of Petitioner.
Supporting Facts: Petitioners' [sic]
termination entry differed from the sentence pronounced from
the bench by the trial judge.
Ground Fourteen: Motion to Dismiss was an
interlocutory order where a sentence remains to be imposed
for a final judgment of post-release control as the law
existed prior to the effective date of R.C. § 2929.191.
Supporting Facts: Petitioner filed a motion
to dismiss for speedy trial. The trial court denied the
motion Petitioner appealed the judgment. The court of appeals
affirmed. Petitioners' [sic] trial court judgment did not
become final until July 15, 2014. However, Petitioner filed a
Motion for Reconsideration of the trial court's denial of
the speedy trial motion prior to the judgment becoming final.
Ground Fifteen: Petitioner was deprived of
his liberty without due process of law when the appellate
court overruled Petitioners' [sic] Motion to Vacate
Judgment relying on a previous judgment that cited State
v. Fischer, 128 Ohio St.3d 92 where Petitioner raised a
Crim.R. 43(A) due process violation where sentence was not
pronounced in the presence of the Petitioner at the
sentencing hearing but was later modified in the termination
entry journalized on March 9 2006 as the law existed at the
time of the entries journalization.
Supporting Facts: Petitioner reallege[s] and
incorporate[s] by reference the statement of the case and
facts on pages 5-9 of Petitioners' [sic] Memorandum in
Support of Jurisdiction filed April 11, 2016 in Case No.
Ground Sixteen: Petitioner was deprived of
his liberty without Equal Protection of the I.aw when the
appellate court overruled Petitioners' [sic] Motion to
Vacate, Application for Reconsideration, and Motion for leave
to Amend Application for Reconsideration after it determined
the March 9, 2006 termination entry sentence of post-release
control was void as the trial court failed to verbally advise
Mr. Brown as to the five-year mandatory nature of the
Supporting Facts: Petitioner believes that a
Miscarriage of Justice has taken place. Petitioner
reallege[s] and incorporate[s] by reference the supporting
facts in Ground Fifteen.
Ground Seventeen: Petitioner was deprived of
his liberty without due process when the appellate court
failed to sua sponte threshold address the
Supporting Facts: Petitioner believes that
the appellate court is required by law to determine whether
the trial court's termination entry is a final appealable
order as the law exist at the time the entry is appealed