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Brown v. Harris

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

February 27, 2018

JEFFREY ANTONIO BROWN, Petitioner,
v.
CHAE[1] HARRIS, Warden, Warren Correctional Institution, Respondent.

          Thomas M. Rose District Judge

          SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS; ORDER TO CLERK TO FURNISH PETITION

          Michael R. Merz United States Magistrate Judge

         This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner's Objections (ECF No. 32) to the Magistrate Judge's Supplemental Report and Recommendations recommending dismissal of the Petition with prejudice (“Supplemental Report, ” ECF No. 31). Judge Rose has recommitted the case for reconsideration in light of the Objections (Recommittal Order, ECF No. 33).

         The Statute of Limitations

         The original Report and Recommendations (“Report, ” ECF No. 26) recommended that Grounds One through Eighteen of the Petition be dismissed as barred by the statute of limitations (ECF No. 26, PageID 3617-26). This was based on a determination, urged by Respondent, that the statute of limitations on these claims expired in 2010 and the Petition was not filed until 2017 (Return, ECF No. 14, PageID 2973). In contrast, Brown claimed in his first set of objections that the time runs from his 2014 resentencing because “the entry of a new judgment normally resets the statute-of-limitations clock, ” (Objections, ECF No. 29, relying on In re Stansell, 828 F.3d 412 (6th Cir. 2016), and Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016).

         The Supplemental Report relied on Bachman v. Bagley, 487 F.3d 979 (6th Cir., 2007), and Rashad v. Lafler, 675 F.3d 564 (6th Cir. 2012), for the proposition that the statute of limitations runs from conclusion of direct review, not collateral review as here. The Supplemental Report recognized that Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016), was to the contrary, but noted that a Sixth Circuit panel cannot overrule the published decision of a prior panel and that Crangle was, in any event, distinguishable (ECF No. 31, PageID 3659). Brown objects (ECF No. 32, PageID 3669-76).

         To resolve this statute of limitations question, we must recur to the procedural history. The incidents in suit occurred at the Dayton Motor Hotel on May 15-16, 2005. Out of those incidents, the Montgomery County grand jury indicted Brown (State Court Record, ECF No. 13, PageID 541.) In February 2006 a jury convicted Brown on two counts of felonious assault, aggravated burglary with a firearm specification, having weapons while under disability, and tampering with evidence. Id. at PageID 556. Judge Richard Dodge then sentenced Brown to nineteen years' imprisonment. Direct appeal, an untimely petition for post-conviction relief, and an untimely Ohio App. R. 26(B) application, as well as an initial federal habeas corpus application provided no relief. Brown then began a series of collateral attacks on the Common Pleas judgment entry (See Return of Writ, ECF No. 14, PageID 2953-62). On May 3, 2012, he filed a Motion to Vacate Void Judgment Where Sentence is Contrary to Law (State Court Record, ECF No. 13-1, PageID 1423, et seq.) Judge Mary Wiseman denied the Motion and Brown appealed.

         On appeal Brown claimed that the March 9, 2006, sentencing entry

is void because he did not receive oral notification of the duration of post-release control. According to him, even if the sentencing entry recites the length of post-release control, that aspect of his sentence remains illegal and unenforceable because the trial court did not mention the number of years [of post-release control] at sentencing.

State v. Brown, 2014-Ohio-2551, 2014 Ohio App. LEXIS 2508 ¶ 12 (2nd Dist. June 13, 2014). The Second District found that argument well taken. Id. at ¶¶ 13-16. It held further that he was entitled to raise the issue in his May 2012 motion “because, under existing Ohio Supreme Court precedent, the failure to advise him [orally] of the duration of post-release control at sentencing rendered the post-release control portion of his sentence void.” Id. at ¶ 17, relying largely on State v. Qualls, 131 Ohio St.3d 499 (2012). The Second District also held that only the post-release control portion of the sentence was void. Id. at ¶ 21, holding Brown was only entitled “to a limited re-sentencing to correct the imposition of post-release control.” The appellate court remanded with precisely that limitation in place. Id. at ¶ 27.

         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 2111-20, 2207). The Ohio Supreme Court Entry was filed March 23, 2016 (Entry, State Court Record, ECF No. 13-3, PageID 2207). Brown deposited his instant Petition in the prison mail system on February 24, 2017 (PageID 290).

         Under 28 U.S.C. § 2244(d)(1)(A), the statute of limitations begins to run on the date the judgment of conviction becomes final on direct review or expiration of the time for seeking direct review. The Warden calculated the date of finality as January 2, 2008, the date on which Brown's right to petition the United States Supreme Court for a writ of certiorari expired. Allowing for statutory tolling while Brown's 2007 Ohio R. App. P. 26(B) application and petition for post-conviction relief under Ohio Revised Code § 2953.21 were pending, the statute would still have expired in 2010 because Brown had no post-conviction actions pending during that year (Return, ECF No. 14, PageID 2972-73).

         In his Amended Reply, Brown argued for statutory tolling under 28 U.S.C. § 2244(d)(2) and equitable tolling either on the basis of his diligence in pursuing his claims or because of the “actual innocence” gateway first recognized in Schlup v. Delo, 513 U.S. 298, 316 (1995). The Report rejected those claims (ECF No. 26, PageID 3619-26).

         Brown did not respond to that analysis in his first set of Objections, but instead shifted to the argument he now makes that the calculation of finality runs from Judge Wiseman's Amended Termination Entry on remand (Objections, ECF No. 29, PageID 3640-50, relying principally on Magwood v. Patterson, 561 U.S. 320 (2010); King v. Morgan, 807 F.3d 154 (6th Cir. 2015); and In re Stansell, 828 F.3d 412 (6th Cir. 2016). He again relies on these cases and others in his present Objections.

         To make sense of the case law involved here, it is necessary to disentangle two issues: whether a petition is second-or-successive and whether it is barred by the statute of limitations. These potential bars to habeas corpus relief were both adopted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

         The second-or-successive bar is codified at 28 U.S.C. § 2244(b) and provides that a second or successive habeas application may not be considered by a district court unless or until the circuit court has given permission. The statute of limitations is codified at 28 U.S.C. § 2244(d) and provides that a habeas petition is barred if it is not filed within one year of the date on which the conviction becomes final on direct review. Both sections have acquired a considerable judicial gloss since 1996.

         The first hurdle Brown's instant Petition had to surmount was the second-or-successive bar. When he filed his instant Petition, he had not obtained permission to proceed from the circuit court and the Petition was a second-in-time application because Brown had previously filed a habeas petition related to his 2006 conviction, Brown v. Brunsman, Case No. 3:08-cv-477. The Magistrate Judge had to resolve that issue sua sponte, at least initially, because district courts have no jurisdiction over second-or-successive habeas applications without the required circuit permission. Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 549 U.S. 147 (2007).

         In the Order for Answer, the Magistrate Judge concluded this was not a second-or-successive habeas petition because Brown's situation “parallels that of the petitioner in In re Stansell, 828 F.3d 412 (6th Cir. 2016)” (ECF No. 5, PageID 513-14). In the Return of Writ, the Warden disagreed with that conclusion (Return, ECF No. 14, PageID 2967-70, also arguing Stansell was incorrectly decided). However, the Warden has made no effort to force this Court to transfer the case to the Sixth Circuit.

         The statute of limitations is a separate provision of the AEDPA, codified at 28 U.S.C. § 2244(d), but Brown insists the statute of limitations issue is settled by King v. Morgan, supra. The holding in King, however, is that “a habeas petitioner, after a full resentencing and the new judgment that goes with it, may challenge his undisturbed conviction without triggering the ‘second or successive' requirements.” 807 F.3d at 156 (emphasis in original). King, like Brown, had moved to vacate his Ohio criminal judgment because it did not contain the mandatory post-release control term. However, on re-sentencing the trial court increased the imprisonment portion of the sentence from twenty-one years to life to thirty-three years to life. Id. The King court was unsure what effect its decision would have on habeas practice in this circuit, but commented “[t]he entry of a new judgment normally resets the statute of limitations clock.” 807 F.3d at 159, citing 28 U.S.C. § 2244(d)(1)(A) and Rashad, supra.

         In re Stansell, supra, also involved the second-or-successive issue. It was before the Sixth Circuit on a request for permission to proceed with a second-or-successive habeas application. While Stansell's case was on appeal on a different issue, the Eighth District observed that the trial court had erred in failing to impose a term of post-release control and remanded the case "for the limited purpose of properly advising and imposing upon Stansell the requisite period of post-release control." 828 F.3d at 414, quoting State v. Stansell, 10 N.E.3d at 799. The Sixth Circuit held that Stansell's partial resentencing to impose, for the first time, a term of post-release control permitted him to raise challenges to his original undisturbed conviction and term of imprisonment. Judge Sutton expressly disclaimed deciding any statute of limitations issue:

Because we must apply the term "second or successive" to the application as a whole, not to the individual claims within it, Magwood precludes us from adopting Bachman's approach in the second or successive context. None of this should be taken to call Bachman into doubt. All that this decision and all that King attempt to do is try to apply Magwood faithfully in the second-or-successive context. These decisions, and most importantly Magwood, do not answer the distinct statute-of-limitations question raised in Bachman.

828 F.3d at 418.

         Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016), was an appeal from a dismissal of a habeas petition as barred by the statute of limitations. Crangle had pleaded guilty to rape of a minor and was sentenced to life imprisonment. His conviction became final on direct review December 20, 2008. Id. at 675. Over a year later, the Ohio Supreme Court decided State ex rel Carnail v. McCormick, 126 Ohio St.3d 124 (2010), one of a series of Ohio Supreme Court cases dealing with the mandatory post-release term. Armed with Carnail, Crangle sought to withdraw his guilty plea, but obtained instead a nunc pro tunc amendment of his judgment which imposed the mandatory five-year term of post-release control. 838 F.3d at 676. Crangle filed his petition for habeas corpus on March 28, 2013. The District Court dismissed the petition as untimely, but the Sixth Circuit held the “2010 nunc pro tunc order was a new judgment that reset the statute of limitations clock.” 838 F.3d at 677. In the course of doing so, it held that the new sentence imposed on Crangle was “worse than before” because it substituted post-release control for parole.

         Brown's present sentence is not “worse than before.” All that changed was (1) Judge Wiseman's oral advisement of the five-year term of post-release control and (2) her memorialization of that advice in an amended entry. Thus the Magistrate Judge distinguished Crangle in the Supplemental Report on this basis (ECF No. 31, PageID 3659). The Supplemental Report also accepted the Respondent's argument that Crangle could not overrule Bachman v. Bagley, 487 F.3d 979 (6th Cir. 2007), and Rashad v. Lafler, 675 F.3d 564 (6th Cir. 2012), which are prior published decisions of the Sixth Circuit.

         Having reconsidered the matter in light of the Objections, the Magistrate Judge WITHDRAWS the recommendation to dismiss Grounds One through Eighteen as untimely. Judge Sutton wrote both King and Stansell and he was a member of the panel that issued the per curiam decision in Crangle. While he had said in King that the court did not question the continued validity of Bachman on the limitations question, in Crangle he joined an opinion that found Bachman had been abrogated by Magwood and King. Crangle also concluded that King abrogated Mackey v. Warden, 525 F. App'x 357 (6th Cir. 2013), a case arising from this Court on the same limitations question. It is unlikely that the three panels which all included Judge Sutton failed to consider the interaction of those decisions.

         The Magistrate Judge now believes this Court should not second-guess the Sixth Circuit's decision in Crangle by limiting it to post-release control corrections that impose a “worse-than-before” sentence. The language of Crangle's holding does not make that distinction. Therefore we should apply the Crangle holding as stated and overrule the Warden's statute of limitations defense.

         Moreover, the statute of limitations is not a jurisdictional bar. McClendon v. Sherman, 329 F.3d 490 (6th Cir. 2003); Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001). Therefore deciding the merits of the first eighteen grounds for relief will not be a vain act, as it would be to decide any of the merits questions in a second-or-successive application. Should the Sixth Circuit decide on appeal that an amended judgment such as Brown's does not restart the limitations period, it will be able to consider our holding on the merits without a remand.

         The Warden has raised procedural default defenses to a number of Brown's claims. Because it is simpler to deal directly with the merits and doing so does not prejudice the Warden, the Magistrate Judge has chosen that course.

         The Merits Ground One: Speedy Trial

         In his First Ground for Relief, Brown asserts he was denied his Sixth and Fourteenth Amendment rights to a speedy trial and speedy sentencing (Petition, ECF No. 4, PageID 266.) The Warden notes Brown raised this claim in his prior habeas petition in this Court and it was decided adversely to him (Report and Recommendations in Brown v. Brunsman, Case No. 3:08-cv-477, ECF No. 13-1, PageID 1180-82; adopted at PageID 1200-01).

         Brown presented a speedy trial claim on direct appeal to the Second District, but it was limited to a claim under Ohio Revised Code § 2945.71 and rejected on that basis. State v. Brown, 2007-Ohio-2098, 2007 Ohio App. LEXIS 1954 (2nd Dist. Apr. 27, 2007). In his Reply Brown argues there should be no deference to the Second District's conclusion because that court acted without jurisdiction, based on Brown's claim that the original judgment of conviction (March 9, 2006) was not a final appealable order (ECF No. 21, PageID 3074). He makes the same objection to deferring to this Court's own prior decision on the merits. Id.

         Brown raised this claim in the Second District Court of Appeals which rejected it. State v. Brown, Case No. 21540 (2nd Dist. Jan. 8, 2013)(copy at ECF No. 13-2, PageID 1677 et seq.). The question of what constitutes a final appealable order in Ohio is obviously a question of state law on which this Court is bound by state court decisions in point. "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

         The doctrine of res judicata does not strictly apply in habeas corpus, so that doctrine does not bar consideration of Ground One on the merits. However, Judge Black's adoption of Magistrate Judge Ovington's Report on this Ground for Relief does establish the law of the case on the speedy trial question, reinforced by the Sixth Circuit's refusal to grant a certificate of appealability on any of the issues in the case. Denial of a certificate of appealability becomes the law of the case, binding in subsequent stages of the litigation. Dillimgham v. Jenkins, Case No. 17-3813 (6th Cir. Nov. 8, 2017)(unreported; copy at ECF No. 65 in 3:13-cv-468), citing Moore v. Mitchell, 848 F.3d 774, 776 (6th Cir. 2017).

         Under the doctrine of law of the case, findings made at one point in the litigation become the law of the case for subsequent stages of that same litigation. United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994), citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). "As most commonly defined, the doctrine [of law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618 (1983), citing 1B Moore's Federal Practice ¶0.404 (1982); Patterson v. Haskins, 470 F.3d 645, 660-61 (6th Cir. 2006); United States v. City of Detroit, 401 F.3d 448, 452 (6th Cir. 2005). “If it is important for courts to treat like matters alike in different cases, it is indispensable that they ‘treat the same litigants in the same case the same way throughout the same dispute.'” United States v. Charles, 843 F.3d 1142 at *6 (6th Cir. 2016)(Sutton, J.), quoting Bryan A. Garner, et al., The Law of Judicial Precedent 441 (2016).

         "Law of the case directs a court's discretion, it does not limit the tribunal's power." Id., citing Southern R. Co. v. Clift, 260 U.S. 316, 319 (1922); Messenger v. Anderson, 225 U.S. 436 (1912); see also Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589-90 (6th Cir. 1995). "While the 'law of the case' doctrine is not an inexorable command, a decision of a legal issue establishes the 'law of the case' and must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court, unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice." White v. Murtha, 377 F.2d 428 (5th Cir. 1967), quoted approvingly in Ass'n of Frigidaire Model Makers v. General Motors Corp., 51 F.3d 271 (6th Cir. 1995). The doctrine applies with equal force to the decisions of coordinate courts in the same case and to a court's own decisions. Christianson v. Colt Industries, 486 U.S. 800, 816 (1988).

         The purpose of the doctrine is twofold: (1) to prevent the continued litigation of settled issues; and (2) to assure compliance by inferior courts with the decisions of superior courts. United States v. Todd, 920 F.2d 399 (6th Cir. 1990), citing Moore's Federal Practice. A generally liberal view is expressed in Gillig v. Advanced Cardiovascular Systems, Inc. 67 F.3d 586 (6th Cir. 1995).

We generally will not disturb these [prior holdings] unless there is '(1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice.'" Entm't Prods., Inc. v. Shelby Cnty., 721 F.3d 729, 742 (6th Cir. 2013), cert. denied, 134 S.Ct. 906, 187 L.Ed.2d 778 (2014) (quoting Louisville/Jeffe ...

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