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Oberacker v. Noble

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

May 16, 2018

DANIEL OBERACKER, Petitioner,
v.
JEFFREY B. NOBLE, Warden Respondent.

          DAN AARON POLSTER JUDGE

          REPORT AND RECOMMENDATION

          Jonathan D. Greenberg United States Magistrate Judge

         This matter has been referred to the undersigned United States Magistrate Judge for preparation of a Report and Recommendation pursuant to Local Rule 72.2(b)(2). Before the Court is the Petition of Daniel Oberacker (“Oberacker” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Oberacker is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Oberacker, Cuyahoga County Court of Common Pleas No. CR-96-342242.

         Currently pending is Respondent Jeffrey B. Noble's Motion to Dismiss the Petition as Time-Barred. (Doc No. 8.) For the reasons that follow, it is recommended Respondent's Motion be GRANTED and the Petition be DISMISSED as time-barred.

         I. Summary of Facts

         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the facts underlying Oberacker's conviction as follows:

{¶ 2} A review of the record on appeal indicates that Oberacker pled guilty on February 14, 2000 to two counts of Rape (a first degree felony under the pre-Senate Bill 2 version of R.C. 2907 .02), committed over a period of several years, between 1992 and 1995, and which involved two adolescent female victims who were between the ages of eleven and twelve when the offenses first began. Appellant concedes that one of the victims was the daughter of his then live-in girlfriend (this victim's initials are “J.R.”), and the other victim was his niece (this victim's initials are “J.S.”). See appellant's brief at 1. As part of the plea bargain the court nolled four additional counts of Rape involving one of the victims.
{¶ 3} The presentence investigation report indicated that Oberacker, despite having a history of driving under the influence convictions and admitting to drinking a six-pack of beer per day on two days each week, denied having a substance abuse problem or any mental health problems, denied responsibility or guilt for the offenses, and denied being attracted to younger women.
{¶ 4} Oberacker was sentenced to 8 to 25 years on each of the two counts with the sentences to run consecutive to one another. The court also determined at the sentencing hearing, subsequent to evidence being taken, that Oberacker was a sexual predator and subject to registration requirements.
{¶ 5} On April 18, 2000 Oberacker filed a notice of appeal from the sexual predator classification, arguing, in part, that the court had not provided notice of the sexual predator classification hearing. This court reversed and remanded the matter on the grounds that the trial court had indeed failed to provide Oberacker with notice of the hearing. See State v. Oberacker (Mar. 22, 2001), Cuyahoga App. No. 77876, 2001 Ohio App. LEXIS 1300.
{¶ 6} On remand, the trial court granted Oberacker's motion to have an independent psychological assessment performed and his motion to receive copies of the entire criminal file.
{¶ 7} On January 17, 2002 the trial court conducted the second sexual predator classification hearing.
{¶ 8} At this second hearing, defense counsel stated that the defense had been given adequate time and notice within which to prepare for the hearing, that the defense waived any formalities and wanted to proceed. Tr. 4-5.
{¶ 9} The state proffered the following five exhibits at the hearing: (1) the presentence report which was prepared for the original 2000 sentencing hearing; (2) a copy of the transcript from the original sexual predator classification hearing, which contains therein testimony from the elder victim, namely J.S.; (3) a statement authored by the younger victim, J.R.; (4) the police statement authored by the elder victim, J.S.; and, (5) the psychiatric report on Oberacker which was prepared on January 2, 2002 by Dr. Aronoff of the Court's Psychiatric Clinic. These exhibits, without objection by the defense, were admitted by the court into evidence.
* * *
The defense proffered the psychological report on Oberacker which was prepared by Dr. Kaplan and a letter from Oberacker's wife. Both of these were admitted into evidence.
* * *
{¶ 23} Oberacker testified on his own behalf at the classification hearing. Tr. 55-61. On direct examination by defense counsel Oberacker stated that while in prison he successfully completed the sexual offender program there over a period of several months. From this program Oberacker claimed to have learned that what he had done was wrong and the role alcohol played in his poor decision making. Tr. 56-57. Oberacker believed that he had matured while in prison and now took full responsibility for his actions, whereas prior to prison he had attempted to place the blame on others for his sexually offending. Tr. 57. Oberacker next claimed that he has no interest in having sexual relations with children in the future. Tr. 58.
{¶ 24} On cross-examination Oberacker admitted that he had at least ten episodes of sexual intercourse with the girls, was not continuously intoxicated during the commission of the offenses herein, but did provide the two girls alcohol and marijuana. Tr. 58-60. Oberacker next testified that he knew what it was wrong to have sex with children at the time he committed these offenses. Tr. 60.
{¶ 25} Subsequent to closing arguments by the parties the trial court reserved making its ruling.
{¶ 26} On January 29, 2002, in open court with counsel and parties present, the trial court classified Oberacker as being a sexual predator * * *

See State v. Oberacker, 2003 WL 125277 at * 1-5 (Ohio App. 8th Dist. Jan 16, 2003).

         II. Procedural History

         A. Trial Court Proceedings

         In August 1996, a Cuyahoga County Court of Common Pleas issued an Indictment charging Oberacker with thirty (30) counts of rape in violation of Ohio Rev. Code § 2907.02. (Doc. No. 8-1, Exh. 1.) Fifteen (15) of these counts alleged rape of a minor under the age of thirteen. (Id.) Oberacker retained counsel and pled not guilty. (Doc. No. 8-1, Exh. 2.)

         On February 16, 2000, Oberacker withdrew his not guilty plea and entered a plea of guilty to two counts of rape (Counts 1 and 26) in violation of Ohio Rev. Code § 2907.02. (Doc. No. 8-1, Exh. 3.) All remaining counts were nolled. (Id.) The state trial court accepted Oberacker's plea and found him guilty. (Id.)

         On April 6, 2000, the trial court sentenced Oberacker to two consecutive sentences of eight (8) to twenty-five (25) years imprisonment, for an aggregate prison term of sixteen (16) to fifty (50) years. (Doc. No. 8-1, Exh. 4.) Several days prior to sentencing, on March 31, 2000, the state trial court determined Oberacker was a sexual predator pursuant to Ohio Rev. Code § 2950.09(A) and notified him of his registration duties. (Doc. No. 8-1, Exh. 5.)

         B. Direct Appeal

         On April 19, 2000, Oberacker, proceeding pro se, filed a notice of appeal to the Eighth District Court of Appeals of Ohio (hereinafter “state appellate court”). (Doc. No. 8-1, Exh. 6.) He also filed a Motion for Appointment of Counsel and Transcript at State's Expense, which was granted. (Doc. No. 8-1, Exh. 7.)

         On August 10, 2000, Oberacker, through counsel, filed an appellate brief, raising the following three grounds for relief:

I. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
II. THE SEXUAL PREDATOR HEARING IN THE CASE AT BAR VIOLATED APPELLANT'S DUE PROCESS RIGHTS, GUARANTEED BY THE UNITED STATES CONSTITUTION AND OHIO CONSTITUTION, WHEN THE HEARING FAILED TO COMPORT TO THE MANDATE OF R.C. 2950.09 WHICH REQUIRES NOTICE.
III. THE EVIDENCE PRESENTED AT THE SEXUAL PREDATOR HEARING IS INSUFFICIENT, AS A MATTER OF LAW, TO PROVE ‘BY CLEAR AND CONVINCING EVIDENCE' THAT APPELLANT IS LIKELY TO ENGAGE IN THE FUTURE IN ONE OR MORE SEXUALLY ORIENTED OFFENSES.

(Doc. No. 8-1, Exh. 8.) The State filed a brief in response, in which it conceded “no notice of the sexual predator classification hearing was given to Appellant prior to the sentencing hearing.” (Doc. No. 8-1, Exh. 9 at Page ID# 150.) The State requested the matter be remanded to the trial court for an additional sexual predator hearing pursuant to the notice requirement of Ohio Rev. Code § 2950.09. (Id.)

         In an opinion filed April 11, 2001, the state appellate court reversed and remanded, as follows:

Defendant Daniel Oberacker pleaded guilty to two counts of rape, each count against a different teenaged victim. Just before sentencing, and without any prior notice to defendant, the court classified defendant a sexual predator. The primary issue in this appeal is whether the court gave defendant sufficient notice of the sexual predator classification hearing.
The state concedes the court did not give defendant adequate notice of the sexual predator classification hearing. In State v. Gowdy (2000), 88 Ohio St.3d 387, 727 N.E.2d 579, the Ohio Supreme Court established that the notice provision of R.C. 2950.09(B)(1) is mandatory and a failure to provide notice is per se error. Hence, despite the overwhelming evidence justifying the court's decision to classify defendant as a sexual predator and defendant's failure to object to lack of notice at the sexual predator classification hearing, we are bound under Gowdy to sustain the second assignment of error and remand the cause for further proceedings.
Despite the state's concession, defendant claimed at oral argument that his claim of ineffective assistance of counsel went beyond counsel's failure to object to the lack of notice and encompassed a failure to protect defendant's due process rights in a way that cast doubt on the validity of the guilty plea. We see nothing in either appellant's merit brief or reply brief that makes this argument, and there is nothing in the proceedings that would cause us to doubt the validity of defendant's guilty plea. Certainly, counsel's failure to prepare for the sexual predator hearing could be explained by his admitted failure to receive notice of the hearing.
Reversed and remanded.

(Doc. No. 8-1, Exh. 11.)

         C. Remand for Sexual Predator Classification Hearing

         On remand, the state trial court conducted a sexual predator classification hearing. (Doc. No. 8-1, Exh. 12.) On January 30, 2002, the trial court issued a Journal Entry, noting it had “provided the Defendant with notice of this House Bill 180 hearing” and stating “Defense stipulates to the sufficiency of notice and waives any defects.” (Id.) The trial court took the matter under advisement. (Id.)

         On February 7, 2002, the state trial court issued a Journal Entry finding Oberacker was “automatically classified as a sexual predator pursuant to R.C. 2950.09(A).” (Doc. No. 8-1, Exh. 13.)

         D. Delayed Appeal

         On March 28, 2002, Oberacker, through new counsel, filed a notice of appeal and Motion for Leave to file Delayed Appeal in the state appellate court. (Doc. No. 8-1, Exh. 14, 15.) Therein, Oberacker asserted the state trial court failed to notify counsel he was appointed to represent him on appeal until after the filing due date. (Doc. No. 8-1, Exh. 15.) On April 17, 2002, the state appellate court granted Oberacker's Motion for Leave to file Delayed Appeal. (Doc. No. 8-1, Exh. 16.)

         In his merit brief, Oberacker raised the following grounds for relief:

I. THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO PROVE ‘BY CLEAR AND CONVINCING EVIDENCE' THAT APPELLANT ‘IS LIKELY TO ENGAGE IN THE FUTURE IN ONE OR MORE SEXUALLY ORIENTED OFFENSES.'
II. THE TRIAL COURT ERRED WHEN IT ENTERED AN ORDER FINDING THAT THE APPELLANT WAS ‘AUTOMATICALLY FOUND TO BE A SEXUAL PREDATOR' PURSUANT TO R.C. 2950.09(A).

(Doc. No. 8-1, Exh. 17.) The State filed a brief in response, in which it conceded error only with regard to Oberacker's second ground for relief. (Doc. No. 8-1, Exh. 18.) Specifically, the State “concede[d] that an entry stating Appellant was [automatically] classified under R.C. 2950.09(A) is in error ...


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