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Juan v. Warden, Chillicothe Correctional Institute

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

April 25, 2018

HECTOR A. H. JUAN, Petitioner,
v.
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTE, Respondent.

          George C. Smith Judge

          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. This matter is before the Court on the Petition and Petitioner's Motion to Stay, Respondent's Motion to Dismiss and Response in Opposition, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that Respondent's Motion to Dismiss (Doc. 9) be GRANTED, that Petitioner's Motion to Stay (Doc. 3) be DENIED, and that this action be DISMISSED without prejudice as unexhausted.

         I. FACTS AND PROCEDURAL HISTORY

         Petitioner challenges his 2012 convictions after a jury trial in the Franklin County Court of Common Pleas on three counts of gross sexual imposition and two counts of rape on a child under the age of thirteen. The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:

On July 9, 2010, appellant was indicted on three counts of gross sexual imposition under R.C. 2907.05 and two counts of rape under R.C. 2907.02. From March 5, to March 8, 2012, a trial was held and a jury returned a verdict of guilty on all counts. The trial judge, after conducting an initial sentencing hearing on April 4, 2012, sentenced appellant as follows:
The Defendant shall serve Three (3) years as to Count One, Three (3) years as to Count Two and Three (3) years as to Count Three; Ten (10) years as to Count Four and Ten (10) years as to Count Five; Counts One, Two and Three shall be served concurrent with each other, Counts Four and Five shall be served concurrent with each other, Counts One, Two and Three shall be served consecutive to Counts Four and Five, for a total of Thirteen (13) years to be served * * *.
(Apr. 24, 2012 Jgmt. Entry Prison Imposed.) No appeal was filed in 2012 after appellant was sentenced.
On February 5, 2015, without conducting an additional sentencing hearing, the trial court issued an amended judgment entry which amended the sentence on the two counts of rape to ten years to life, with the total sentence amended to thirteen years to life. On April 24, 2015, appellant filed a pro se notice of appeal and a motion for delayed appeal. We granted his motion to file a delayed appeal and sua sponte appointed the Franklin County Public Defender to represent him for the purposes of this appeal.

(Doc. 8, PAGEID #: 225-26, State v. Juan, 10th Dist. Nos. 15AP-447, 15AP-1054, ¶ 1-4, 2016 WL 4245346, at *1 (Ohio Ct. App. Aug. 11, 2016)).

         Petitioner asserted in the delayed appeal that he was denied (1) the effective assistance of trial counsel during his jury trial, and (2) the right to be present when the trial court issued the February 5, 2015 re-sentencing entry (“the February 2015 Re-Sentencing Entry”). (Id., at PAGEID #: 148). On August 11, 2016, the appellate court overruled Petitioner's assignment of error concerning the alleged denial of effective assistance of trial counsel during his jury trial, but sustained his assignment of error concerning his right to be present when the trial court issued the February 2015 Re-Sentencing Entry (“the August 2016 Decision”). (Id., at PAGEID #: 229). Accordingly, the appellate court remanded the case to the trial court for a new sentencing hearing with Petitioner present. (Id.).

         Petitioner did not file a timely appeal of the August 2016 Decision to the Ohio Supreme Court but instead filed a motion for a delayed appeal on October 31, 2016. (Id., at PAGEID #: 119-125). On December 28, 2016, the Ohio Supreme Court denied the motion for a delayed appeal of the August 2016 decision. (Id., at PAGEID #: 255, State v. Juan, No. 2016-1596, 2016-Ohio-8438, 147 Ohio St.3d 1472 (Ohio Dec. 28, 2016)).

         On September 7, 2016, the trial court held a re-sentencing hearing pursuant to the remand ordered in the August 2016 Decision. (Doc. 8, at PAGEID #: 256). On September 15, 2016, the trial court issued the Corrected Judgment Entry of sentence (“the September 2016 Corrected Judgment Entry”). (Id., at PAGEID #: 256-57). Petitioner did not file a timely appeal or pursue a motion for a delayed appeal of the September 2016 Corrected Judgment Entry pursuant to Ohio Appellate Rule 5(A). Instead, on October 24, 2016, he filed a Notice of Appeal. (Id., at PAGEID #: 259). On November 22, 2016, the appellate court dismissed the appeal of the September 2016 Corrected Judgment Entry as untimely. (Id., at PAGEID #: 266).

         Then, on December 27, 2017, Petitioner filed a Verified Motion to Correct Sentence in the Franklin County Court of Common Pleas. (Id., at PAGEID #: 268, Case No. 10CR-03-4012). Petitioner asserted in that motion that the trial court improperly amended his sentence to impose a life term on his two rape convictions as charged in Counts 4 and 5 of the Indictment, because he was not determined to be a sexual predator and seeks the re-imposition of the initial sentence of thirteen years. (Id., at PAGEID #: 268-72). The state trial court denied that motion on April 23, 2018, and appointed Petitioner appellate counsel. (See Case No. 10CR-03-4012).

         On December 7, 2017, Petitioner initiated this federal habeas corpus action. (See Doc. 1). He raises the following grounds for relief, all of which concern the September 2016 Corrected Judgment Entry:

1. Petitioner was denied due process of law in violation of the Fifth and Fourteenth Amendment when a trial court enter[ed] a corrected judgment upon the record despite the doctrine of res judicata and the need for finality to prevent future collateral attacks by the parties involved.
2. Petitioner was denied due process of law in violation of the Fourteenth Amendment when the trial court, outside of its authority, changed a valid final judgment for reasons beyond the scope of Criminal Rule 36 - claiming that a clerical error had occurred in the sentencing entry.
3. Petitioner was denied effective assistance of counsel on appeal and at resentencing pursuant to the Sixth and Fourteenth Amendments when counsel failed to raise an error or address the fact that Petitioner was never found guilty of or had O.R.C. 2971.03; and that a failure to find or admit guilt of such prohibited the imposition of a ...

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