United States District Court, S.D. Ohio, Eastern Division
ALAN D. BRIGNER, Petitioner,
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
JAMES L. GRAHAM
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE
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
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.
FACTS AND PROCEDURAL HISTORY
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).