United States District Court, S.D. Ohio, Western Division
M. Rose District Judge
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS; ORDER
TO CLERK TO FURNISH PETITION
Michael R. Merz United States Magistrate Judge
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).
Statute of Limitations
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).
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).
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.
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
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).
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
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).
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.
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).
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.
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).
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
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.
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
828 F.3d at 418.
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.
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.
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.
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.
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.
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.
Merits Ground One: Speedy Trial
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).
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.
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
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).
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).
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).
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 ...