United States District Court, S.D. Ohio, Eastern Division
HECTOR A. H. JUAN, Petitioner,
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTE, Respondent.
C. Smith Judge
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. 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
FACTS AND PROCEDURAL HISTORY
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
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)).
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
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)).
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).
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).
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 ...