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Creech v. Jenkins

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

May 8, 2018

SCOTT D. CREECH, Petitioner,
v.
CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.

          Michael R. Barrett District Judge

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This habeas corpus case, brought pro se by Petitioner Scott Creech, is before the Court for decision. The relevant pleadings are the Amended Petition (ECF No. 41), the Respondent's Answer to the Amended Petition (ECF No. 43), and Petitioner's Amended Reply (ECF No. 46).

         Procedural History

         The procedural history recited by the Fourth District Court of Appeals on direct appeal is as follows:

{¶ 4} On April 30, 2008, the Scioto County Grand Jury returned [a superseding] indictment charging appellant with (1) the illegal possession of chemicals for the manufacture of drugs, (2) the illegal manufacture of drugs, (3) four counts of having a weapon while under a disability (counts three through six), (4) three counts of unlawful possession of dangerous ordnance (counts seven through nine), (5) illegally manufacturing or processing explosives, and (6) trafficking in methamphetamine.
{¶ 5} After hearing the evidence, the jury found appellant guilty of (1) the illegal possession of chemicals for manufacture of methamphetamine, (2) the illegal manufacture of drugs, (3) having a weapon (a rifle) while under disability, (4) having a weapon (detonation cord) while under disability, (5) having a weapon (sensitized ammonium nitrate) while under disability, (6) having a weapon (blasting caps) while under disability, (7) unlawful possession of dangerous ordnance (sensitized ammonium nitrate), (8) unlawful possession of dangerous ordnance (blasting caps), (9) unlawful possession of dangerous ordnance (detonation cord), and (10) illegally manufacturing or processing explosives.
{¶ 6} On October 10, 2008, the trial court sentenced appellant to serve a total of 19 years in prison as follows: (1) five years for the illegal possession of chemicals for manufacture of methamphetamine (count one), (2) six years for the illegal manufacture of drugs (count two), (3) two years for having a weapon (rifle) while under disability (count three), (4) four years on each of the three having a weapon while under disability offenses that involved the detonation cord, the blasting caps, and the sensitized ammonium nitrate (counts four through six), (5) 11 months for each of the offenses of unlawful possession of dangerous ordnance (counts seven though nine), and (6) seven years for illegally manufacturing or processing explosives (count ten). The court ordered (1) the sentences for counts one and two to be served concurrently, (2) the sentence for count three to be served consecutively to counts one and two, (3) the sentences for counts four, five, and six to be served concurrently with each other, but consecutively to counts one and two and to count three, (4) the sentences for counts seven, eight, and nine to be served concurrently with each other and concurrently with counts four through six, and (5) the sentence for count ten to be served consecutively to counts one and two, count three, and counts four, five, and six.

State v. Creech, 188 Ohio App.3d 513 (4th Dist. June 1, 2010)(“Creech I”)(footnote omitted), appellate jurisdiction declined, 126 Ohio St.3d 1600 (2010).

         On June 1, 2011, with the assistance of attorney Elizabeth Gaba, Creech filed in the Common Pleas Court a “Motion to Vacate the Supposed October 2, 2008 Jury Verdicts in Case No. 08-Cr-461, Vacate the Conviction and Sentencing Entry of October 10, 2008, and for the Immediate Release of the Defendant from Prison” (State Court Record, ECF No. 10, PageID 574- 95). The motion raised the confusion in case numbers issue for the first time. It alleged the judgment entry on which Creech was being held was void and relied on the trial court's asserted inherent power to vacate a void judgment at any time. Id. at PageID 575, citing Patton v. Diemer, 35 Ohio St.3d 68 (1988).

         Then on July 14, 2011, Attorney Gaba filed on Creech's behalf a Motion for Leave to File a Delayed Petition for Postconviction Relief (State Court Record, ECF No. 10, PageID 661-72.) Judge Harcha denied both motions (State Court Record, ECF No. 10, PageID 722-30). Creech appealed, assisted by Attorney Gaba, and the Fourth District decided as follows:

{¶ 2} On March 31, 2008, the Scioto County Grand Jury returned an indictment that charged appellant with: (1) the illegal possession of chemicals for the manufacture of methamphetamine in violation of R.C. 2925.041(A); (2) the illegal manufacture of methamphetamine in violation of R.C. 2925.04(A)/ (C)(2); (3) four counts of possession of a weapon or dangerous ordinance while under a disability in violation of R.C. 2923.13(A); (4) the illegal manufacture of explosives in violation of R.C. 2923.17(B); and (5) trafficking of methamphetamine in violation of R.C. 2925.03(A)(C)(1)(a). That indictment was filed under Case Number 08-CR-291 (291).
{¶ 3} On April 30, 2008, the Scioto County Grand Jury returned a second indictment. This indictment is virtually identical to 291, except for a change to the mens rea in count ten. The second indictment was filed in Case Number 08-CR-461(461). 3 Apparently, as these proceedings wound their way through the trial court, some filings were made in 291 and some in 461.
{¶ 4} On August 12, 2008, 461 was consolidated for trial with criminal cases against Lisa Pollitt and Terry L. Martin. The matter came on for trial in September and October 2008. At the conclusion of the trial, the jury found appellant guilty on ten of the eleven counts. The verdict forms, however, all bore Case Number 291 rather than Case Number 461.
{¶ 5} On October 10, 2008, a judgment entry filed in 461 dismissed the remaining count and sentenced appellant to serve a cumulative total of nineteen years in prison. The trial court also filed a November 3, 2008 entry that ordered that the verdict forms be amended to include the correct 461 case number, rather than the earlier (291) case number.
{¶ 6} A notice of appeal, bearing the 461 case number, was filed on November 13, 2008. We dismissed that appeal because it was filed out of rule. The Scioto County Clerk of Courts filed our dismissal entry with case number 461 hand-written on the entry. Later, we granted leave to pursue a delayed appeal. Materials filed in pursuit of such leave bear the trial court's 461 case number and display a handwritten case number of 09CA3291. We ultimately ruled that several of the offenses should have merged, as allied offenses of similar import, for purposes of sentencing and, thus, we affirmed in part and reversed in part the trial court's judgment. State v. Creech, 188 Ohio App.3d 513, 936 N.E.2d 79, 2010-Ohio-2553 (4th Dist.) (Creech I).
{¶ 7} On June 1, 2011, appellant commenced the instant actions that form the basis for this appeal. Appellant filed a motion “to strike and vacate the supposed” jury verdicts and sentencing entry in case number 461. The gist of appellant's argument is that cases 291 and 461 never merged, that the only entry that set the case for trial was filed in 291 and that no trial was held in that case. Appellant further argued that all motions and continuances that would have extended the speedy trial limit were filed in 291 and, thus, if 461 is the actual case tried (in which no such motions or continuances had been filed), appellant's speedy trial rights had been violated.
{¶ 8} On July 14, 2011, appellant also filed a motion for leave to file “delayed petition for postconviction relief.” In his motion, appellant stated that he adopted his arguments from the previous motion to vacate, but also sought leave if the court decided to treat that motion as a petition for postconviction relief. In view of the confusing nature of the two cases, the trial court held a hearing (November 9, 2011) to try to sort things out and get “a better understanding of the facts.”
{¶ 9} On July 5, 2012, the trial court issued a detailed decision and judgment that overruled the motion to vacate and denied leave of court to file a postconviction relief petition out of rule. Among other things, the court determined the two cases, in essence, merged into one another, the change of case numbers on the verdict forms simply corrected a clerical error and that no structural deficiency occurred in the trial court proceedings. The court also held that appellant had not met the requirements for filing a delayed petition for postconviction relief. This appeal followed.
{¶ 30} The overall gist of appellant's argument appears to be that the 2008 jury trial was conducted in case number 291, but the judgment of conviction and sentence was entered in case number 461. Thus, appellant argues that he was convicted and sentenced without the panoply of trial rights that the Ohio and United States Constitutions affords [sic] him. We, however, disagree with appellant's argument that the trial was conducted in No. 291. On August 12, 2008, No. 461 was ordered consolidated with Lisa Pollitt's case. The 2008 transcripts reveal that counsel for both appellant and Pollitt appeared at the trial. When the jury pool appeared for voir dire, the trial judge informed them the “style of this case is State of Ohio versus Scott Creech and State of Ohio versus Lisa Pollitt.” Pollitt's case was not consolidated with 291, but rather consolidated with 461, the case that was tried.
{¶ 31} We acknowledge, as appellant repeatedly emphasizes in his brief, that the notice scheduling the trial was filed in 291 rather than 461. The fact remains, however, that appellant and his trial counsel were present and participated at trial. Nothing in the record indicates that appellant objected to any misfiling of the notice, and appellant has not cited the record where he asked for, but was denied, additional time. Appellant also does not cite anything in the transcript or original papers to suggest that he was denied any other trial right guaranteed under the Ohio or United States constitutions. Consequently, we believe that the use of the 291 case number on the verdict forms (instead of 461) is a clerical mistake, and at worse a minor procedural error, that did not affect the “fundamental fairness of the entire proceeding.”
{¶ 32} Once again, as appellant points out in his brief, we acknowledge the trial court did not formally consolidate the two cases. Nevertheless, these procedural mishaps neither deprived appellant of any fundamental rights nor fundamental fairness. Mislabeled case numbers on the jury verdict forms, and the placement of some filings in 291 and others in 461, are issues that could have been raised in the trial court where they could have been corrected and any alleged prejudice could have been alleviated. They were not. Appellant has not persuaded us that this rises to the level of plain error under Crim.R. 52(B), let alone structural, constitutional error.

State v. Creech, 2013-Ohio-3791, 2013 WL 4735469 (4th Dist. Aug. 27, 2013)(footnotes omitted); appellate jurisdiction declined, 137 Ohio St.3d 1475 (2014), cert. denied, 135 S.Ct. 250 (2014)(“Creech II”).

         At this point in time Mr. Creech began proceeding pro se. He filed with the Fourth District a motion for extension of time to file an application for reopening the appeal (State Court Record ECF No. 10, PageID 967, et seq.). Because the appeal had been taken from denial of a collateral attack, the Fourth District held, on July 10, 2014, that Creech's claims were not cognizable under App. R. 26(B)(Entry, State Court Record ECF No. 10, PageID 990-91). Thus instructed, Creech filed, on October 29, 2014, an application to reopen his direct appeal. Id. at PageID 992, et seq. The Fourth District denied the application because it was untimely, but more important, because it attempted to argue issues from Creech II rather than Creech I (Entry, State Court Record ECF No. 10, PageID 1163-66).

         In April 2015 Creech again sought leave to file under App. R. 26(B). Id. at PageID 1167-79. The Fourth District again denied leave on July 14, 2015 (Entry, State Court Record ECF No. 10, PageID 1220- 27). Before filing his 26(B) application in April, Creech filed his Petition here on March 19, 2015 (ECF No. 1-1, 5).

         Creech's Petition proclaims that he has exhausted his state court remedies (ECF No. 5, PageID 175), but he also asked the Court either to adjudicate a mixed petition or to stay the habeas proceedings pending exhaustion (ECF Nos. 3, 7). Magistrate Judge Bowman ordered the State to answer (ECF No. 6). Although Respondent filed the state court record, she also moved to dismiss on statute of limitations grounds (ECF No. 11). By then the case had been transferred to the undersigned and Creech had been re-sentenced pursuant to the Fourth District's 2010 remand. This Magistrate Judge recommended denying the Motion to Dismiss without prejudice and ordered that an answer be filed (ECF No. 18). District Judge Barrett adopted that recommendation when no objections were filed (ECF No. 21).

         In his Reply, Creech asked the Court to stay the case pending his direct appeal from the resentencing and the Magistrate Judge granted that relief on March 18, 2016 (ECF No. 23). Respondent's Fourth Status Report advised that the Ohio Supreme Court had declined review of the Fourth District's affirmance on re-sentencing and that Creech's application to reopen that appeal had been denied (ECF No. 35). The Court vacated the stay and ordered Creech to move to amend to raise any claims that had arisen during the resentencing proceedings (ECF No. 38). Creech responded that he still had to seek review in the Ohio Supreme Court (ECF No. 39). Nevertheless, he moved to amend (ECF No. 40) and that motion was granted without opposition (ECF No. 42). Respondent's Answer to the Amended Petition (ECF No. 43), and Petitioner's Amended Reply (ECF No. 46) brought the case to its present status.

         Analysis

         Grounds Six, Seven, Eight, and Nine

         Further Stay Pending Exhaustion?

         As Respondent points out, the Amended Petition is a photocopy of the original Petition from PageID 2749 to PageID 2771, comprising Grounds for Relief One through Five. At the bottom of PageID 2772, Petitioner adds:

The next 2 pages are per this Court's Scheduling Order filed on January 2, 2018, as Doc. #38. Providing this Court and the State of Ohio with 5 additional grounds that the Petitioner will argue once they are exhausted in the state courts as this Court granted a Stay to permit in order to evaluate Mr. Creech's request for Habeas Corpus relief on all the merits contained in the Grounds to be raised.

         This language seems to imply Creech wants the stay reinstated to allow him to exhaust state court remedies as to these five new grounds. This implication is strengthened by the Amended Reply which advises that the Ohio Supreme Court has still not decided the appeal from the denial of 26(B) relief on resentencing (ECF No. 46, PageID 2821). At PageID 2828 he suggests that his five new grounds for relief “are not exhausted and may give rise [to additional habeas claims], in the future, after full and fair adjudication in the state courts.” However, he does not point to any pending or possible state court proceedings except the pending appeal to the Ohio Supreme Court of the Fourth District's denial of his most recent 26(B) application. That case is docketed under No. 2018-0190 and has been ripe for decision since the State waived its right to file a memorandum in opposition on February 9, 2018. In order to be able to evaluate Creech's claims, the Magistrate Judge has retrieved a copy of the Memorandum in Support of Jurisdiction filed by Creech February 2, 2018, and had it made part of the record.

         Having examined Creech's Supreme Court filings in No. 2018-0190, this Court DECLINES to further stay consideration of this habeas corpus case pending the outcome of that appeal. District courts have authority to grant stays in habeas corpus cases to permit exhaustion of state court remedies in consideration of the AEDPA's preference for state ...


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