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Brown v. Harris

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

May 4, 2018

CHAE HARRIS, Warden, Warren Correctional Institution, Respondent.

          Magistrate Judge Michael R. Merz


          Thomas M. Rose United States District Judge

         This 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 made.

         Respondent 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.

         Brown's Petition includes twenty-one grounds for relief and the Report analyzes each of them separately.

         Ground One: Speedy Trial and Speedy Sentencing

         In his 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).

         This 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).

         The 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.

         Ground Two: Denial of Access to the Courts

         In his 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).

         Brown 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.

         Ground Three: Improper Characterization of Motion to Dismiss

         In his 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 agrees.

         Ground Four: Incompleteness of the State Court Judgment

         In his 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.

         Brown 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 ...

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