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Brown v. Harris

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

April 5, 2018

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

          Thomas M. Rose, District Judge

          SUBSTITUTED REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge

         This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner Brown's Objections (ECF No. 38) to the Magistrate Judge's Second Supplemental Report and Recommendations (ECF No. 34). Judge Rose has recommitted the case for reconsideration in light of the Objections (ECF No. 39). For the reader's convenience, all Magistrate Judge analysis and recommendations will be combined in this Substituted Report so that prior Reports need not be separately consulted.

         Procedural History

         This case arises 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 of 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 imprisonment.

         Brown 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 (2007).

         In 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; 804).

         Several 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.

         On 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 (“Brown I”). District Judge Timothy Black dismissed the Petition and denied a certificate of appealability in May 2012 (Brown I, ECF No. 78). The Sixth Circuit Court of Appeals also denied a certificate of appealability near the end of 2012, terminating the first habeas case.

         From that point forward, Brown raised a number of claims in different ways generally addressing asserted 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 advise Brown orally 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 (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).

         Brown filed this, his second habeas corpus application, on March 9, 2017 (ECF No. 4). He pleads the following twenty-one grounds for relief:

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, 2014.
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 [sic] 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 considered illegal.
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 resentencing. 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 same situation.
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. 2016-0535.
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 post-release control.
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 jurisdictional matter.
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 whether either party raise a jurisdictional issue or not.
Ground Eighteen: Petitioner was deprived of his liberty without due process of law where the trial court's March 9, 2006 termination entry was an interlocutory judgment/interlocutory order until finalized on July 11, 2014, and the appellate court's affirmation of the trial court's termination entry on April 27, 2007 was an interlocutory appeal until finalized on said date.
Supporting Facts: Petitioner reallege[s] and incorporate[s] by reference page 13 of Memorandum in Support of Jurisdiction, Case No. 2016-0535. Petitioner also reallege[s] supporting facts and incorporate[s] by reference Ground Fifteen.
Ground Nineteen: Petitioner was deprived of his Federal Rights to Liberty, Due Process and Equal Protection of the Law when the Court of Appeals overruled Petitioner's request to be conveyed to be physically present at re-sentencing hearing and where he objected to the hearing proceeding by video conference.
Supporting Facts: Petitioner reallege[s] and incorporate[s] by reference as supporting facts pages, 7-8 of the statement of the case and facts of Memorandum in Support of Jurisdiction, Case No. 2016-0083.
Ground Twenty: Equal Protection of the Law when the Court of Appeals overruled Petitioners' [sic] assignment of error as res judicata where the trial court termination entry violated Federal Criminal Rule 43(A), as it exi[s]ted in law on March 9, 2006, as the five-year period of post-release control reflected in the entry was not pronounced in the presence of Petitioner at his original sentencing hearing.
Supporting Facts: Petitioner reallege[s] and incorporate[s] by reference as supporting facts the supporting facts of Ground Nineteen.
Ground Twenty One: Petitioner was deprived of his Federal Rights to Liberty, Due Process and Equal Protection of the Law when the Court of Appeals overruled Petitioners' [sic] assignment of error where the trial court imposed post-release control without conducting a de novo sentencing hearing mandated by decisions of the Ohio Supreme Court.
Supporting Facts: Petitioner reallege[s] and incorporate[s] by reference as supporting facts pages, 12-14 of Proposition of Law No. III of Memorandum in Support of Jurisdiction in Case No. 2016-0083.

(Petition, ECF No. 4, PageID 265-87.)

         Analysis

         Is the Petition Second-or-Successive?

         The instant Petition is Brown's second-in-time habeas application attacking his current custody and arising out of the same conviction. Respondent argues that the Petition is second-or-successive and therefore Brown requires permission from the Sixth Circuit under 28 U.S.C. § 2244(b) before he can proceed (Return of Writ, ECF No. 14, PageID 2967-70).

         Upon the filing of a habeas petition, Rule 4 of the Rules Governing § 2254 Cases requires the Court to make an initial analysis to determine “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, ” in which case “the judge must dismiss the petition and direct the clerk to notify the petitioner.” In performing the initial review in this case, the Magistrate Judge noted the prior case (Brown I), but also noted the Amended Termination Entry and initially concluded Brown's “situation parallels that of the petitioner in In Re Stansell, 828 F.3d 412 (6th Cir. 2016).” At least for purposes of initial review, the Magistrate Judge concluded, on the basis of Stansell, that the Petition was not second-or-successive and could proceed (Order for Answer, ECF No. 5, PageID 513-14).

         Respondent submits this was error and the case should be transferred to the Sixth Circuit under In re Sims, 111 F.3d 45 (6th Cir. 1997)(Return, ECF No. 14, PageID 2967-68). The Warden distinguishes Stansell on the grounds that in that case the amended judgment imposed the five-year post-release control (which is mandatory under Ohio law), whereas here the original Termination Entry included that term and it was only the oral advisement of post-release control that had to be added. Id.

         The Magistrate Judge finds the distinction unpersuasive. In Stansell, the Sixth Circuit focused on the judgment on which a habeas petitioner was in custody, a judgment rendered after the appellate court had remanded the case “for the limited purpose of properly advising and imposing upon Stansell the requisite period of postrelease control.” Stansell, 828 F.3d at 414. The court also noted that the Supreme Court had similarly focused on the judgment in place in deciding that a petition attacking a different judgment from a prior habeas application was not second-or-successive. Id. at 415, citing Magwood v. Patterson, 561 U.S. 320 (2010). Essentially, the court determined that where there is a successive judgment, a second-in-time habeas petition is not second-or-successive. In King v. Morgan, 807 F.3d 154, 156-57 (6th Cir. 2015), the Sixth Circuit extended Magwood to challenges to a conviction using a judgment-based approach.

         In this case, Judge Huffman did not just orally advise Brown of the PRC term; she also filed an Amended Termination Entry which included the five-year term. Under the Magwood judgment-based approach, Brown's instant Petition is not second-or-successive because it attacks the Amended Termination Entry.

         Respondent also argues Stansell incorrectly interprets both 28 U.S.C. § 2244(b) and Ohio law (Return, ECF No. 14, PageID 2969). It is appropriate for the Warden to preserve that issue for appeal, but that is a decision for the en banc Sixth Circuit or the Supreme Court. This Court must follow Stansell.

         Are the First Eighteen Grounds Untimely?

         Respondent asserts Brown's First through Eighteenth Grounds for Relief are barred by the one-year statute of limitations for habeas petitions enacted in the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") and codified at 28 U.S.C. § 2244(d). That statute provides:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

         Respondent calculates the date on which Brown's conviction became final on direct review as the ninetieth day after the Ohio Supreme Court declined jurisdiction of the direct appeal from the Second District. That occurred on October 3, 2007 (Entry, State Court Record ECF No. 13, PageID 743).[1] The time for seeking review by certiorari in the United States Supreme Court expired ninety days later on January 2, 2008. The statute began to run the next day and expired January 3, 2009, unless tolled. The Warden concedes tolling during the pendency of Brown's 26(B) application to reopen his direct appeal and his petition for post-conviction relief, but notes Brown had no collateral attack pending at all during 2010 (Return, ECF No. 14, PageID 2972). The pendency of his first habeas ...


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