United States District Court, S.D. Ohio, Western Division, Dayton
Magistrate Judge Michael R. Merz
DECISION AND ORDER
M. Rose United States District Judge
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on Petitioner's Objections (ECF No. 49) to the
Magistrate Judge's Substituted Report and Recommendations
(“Report, ” ECF No. 41). As required by
Fed.R.Civ.P. 72(b)(3), the Court has reviewed de
novo all parts of the Report to which objection has been
has not objected to the Magistrate Judge's determination
that the Petition herein is not second-or-successive or
barred by the statute of limitations (Report, ECF No. 41,
PageID 3764-74). That portion of the Report is ADOPTED in the
absence of any objections.
Petition includes twenty-one grounds for relief and the
Report analyzes each of them separately.
One: Speedy Trial and Speedy Sentencing
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). Brown
presented this claim to the Ohio Second District Court of
Appeals which rejected it on the merits. State v.
Brown, 2007-Ohio-2098, 2007 Ohio App. LEXIS 1954
(2nd Dist. Apr. 27, 2007). Brown claimed in his
Reply and claims again in his Objections that no deference
should be given to this decision of the Second District
because the judgment he appealed from was not a final
appealable order. The Second District rejected that argument
on the basis of State v. Fischer, 114 Ohio St.3d 94
(2007). State v. Brown, Case No. 21540
(2nd Dist. Jan. 8, 2013)(copy at ECF No. 13-2,
PageID 1677 et seq.) Brown argues that the Second
District was wrong as a matter of Ohio law, but this Court is
bound by a state court's decision of its own law.
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see
also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152,
160 (1825)(Marshall C.J.); Bickham v. Winn,
__F.3d__, 2018 WL 1902612 (6th Cir. Apr. 23,
2018)(Thapar, J. concurring).
claim was also decided adversely to Brown in his prior habeas
corpus case in this Court. Brown v. Brunsman, Case
No. 3:08-cv-477 (“Brown I”). Brown
argues this Court should not follow its own prior decision
because the issue was not ripe at the time, again because of
the final appealable order argument. That argument is
rejected on the basis of the authority cited above and
because the Sixth Circuit refused even to grant Brown a
certificate of appealability on this issue (See Report, ECF
No. 41, at PageID 3775-78).
Report rejected the speedy sentencing prong of Ground One
because Brown had presented no Supreme Court authority
recognizing such a right apart from the right to a speedy
trial. Brown objects and cites Pollard v. United
States, 352 U.S. 354 (1957). Pollard does not
speak to a constitutional requirement of speedy sentencing,
but rather to imposition of a sentence several years after
defendant had been released from prison and when he was
alleged to have violated his probation. In any event, no
habeas relief was granted.
Two: Denial of Access to the Courts
Second Ground for Relief, Brown asserts he was denied access
to the courts in violation of the First and Fourteenth
Amendments when the Second District Court of Appeals
dismissed one of his appeals because it was untimely filed.
The Report recommends dismissing this claim essentially
because the Ohio courts had no constitutional duty to
recognize the prison mailbox rule which applies in the
federal system (Report, ECF No. 41, PageID 3781-83).
objects that the Second District confused two different
notices of appeal sent to them in the same envelope
(Objections, ECF No. 49, PageID 3873). Brown argues that
somehow the Second District ignored his second filing and did
not rule on it. However, the failure to a court to decide a
matter before it is not a denial of access to the courts.
Rather, it is presumed the court denied relief.
Three: Improper Characterization of Motion to
Third Ground for Relief, Brown claims he was denied due
process and equal protection of the laws when the Common
Pleas Court treated his Motion to Dismiss as a motion for
post-conviction relief under Ohio Revised Code §
2953.21. The Report concluded this was a matter of state law
only (Report, ECF No. 41, PageID 3783-84) and the Court
Four: Incompleteness of the State Court Judgment
Fourth Ground for Relief, Brown asserts 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.” (ECF
No. 4, PageID 269.) This claim incorporates the
lack-of-final-appealable-order argument. The Report
recommended dismissing it on the same basis as Ground Three.
objects, here relying on the final judgment rule for review
of federal criminal convictions. That rule does not in any
way impose a similar rule on the state courts. Brown claims
that he has still not had a de novo re-sentencing, but his
constitutional claim here depends on his assertion that Ohio
lacks the constitutional authority to do what it did in
State v. Fischer, supra, to wit, to determine that
only that portion of a sentencing entry which failed to deal
properly with post-release control was void and defendants
raising that claim were not entitled to de novo
re-sentencing. Brown cites no United States Supreme ...