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Brigner v. Warden, Chillicothe Correctional Institution

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

February 26, 2018

ALAN D. BRIGNER, Petitioner,
v.
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

          Judge, JAMES L. GRAHAM

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). As an initial matter, the Court issued a Report and Recommendation on January 16, 2018, recommending that this action be dismissed for want of prosecution as a result of Petitioner's failure to pay the filing fee or file a proper motion to proceed in forma pauperis. (Doc. 3). However, it was later discovered that the filing fee was actually received by the Clerk's Office on December 14, 2017, but inadvertently not placed on the docket until January 25, 2018. Accordingly, the Court's January 16, 2018 Report and Recommendation is hereby WITHDRAWN.

         Turning to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court (“Rule 4”), this Court must conduct a preliminary review to determine whether “it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4. If it does so appear, the petition must be dismissed. Id. Rule 4 allows for the dismissal of petitions which raise legally frivolous claims, as well as petitions that contain factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). Here, for the reasons that follow, it plainly appears from the face of the petition that Petitioner is not entitled to relief, and the undersigned RECOMMENDS that this action be DISMISSED.

         I. FACTS AND PROCEDURAL HISTORY

         The Court of Appeals for Ohio's Fourth District summarized the facts and procedural history of this case as follows:

The Athens County Grand Jury returned an indictment charging Brigner with six counts of rape. The parties entered into a plea agreement, which the trial court accepted, whereby Brigner pleaded guilty to three counts of rape in return for the dismissal of the remaining three rape counts. After the trial court sentenced Brigner to an aggregate 20-year prison term, he appealed. We reversed and remanded the cause for further proceedings because the trial court failed to substantially comply with Crim.R. 11(C)(2)(a), which invalidated his guilty plea. State v. Brigner, 4th Dist. Athens No. 14CA19, 2015-Ohio-2526.
On remand Brigner again pleaded guilty to three rape charges in exchange for the dismissal of the remaining three rape charges; the trial court accepted his guilty plea. In June 2016, the trial court sentenced Brigner separately on each rape conviction, for an aggregate 12-year prison term. No. evidence in the record exists of any argument by the parties or finding by the trial court addressing the issue of merger of the rape counts. This time Brigner did not appeal his convictions and sentence.
In December 2016, almost six months after the trial court sentenced him, Brigner filed a pro se motion to correct his sentence. Brigner claimed that because they are allied offenses of similar import, the trial court erred by denying his motion to merge his rape offenses. The trial court denied Brigner's motion citing res judicata as barring his sentencing claim.
II. ASSIGNMENT OF ERROR
Brigner assigns the following error for our review:
THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO MERGE ALL COUNTS.

State v. Brigner, 4th Dist. No. 17CA3, ¶ 3-6, 2017 WL 2774659, at *1 (Ohio Ct. App. June 9, 2017). On June 9, 2017, the Ohio Court of Appeals affirmed the judgment of the trial court, finding that Petitioner was barred by res judicata from raising his allied-offenses claim in a post- conviction motion to correct his sentence when he could have raised that claim in a timely direct appeal. Id. at *2. Petitioner appealed that determination to the Ohio Supreme Court, but it declined to exercise jurisdiction. State v. Brigner, No. 2017-0879, 2017-Ohio-8136, 150 Ohio St.3d 1454 (Ohio Sup. Ct. Oct. 11, 2017). Petitioner subsequently filed this habeas action on December 1, 2017. (Doc. 1).

         II. ...


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