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Brown v. Jenkins

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

May 17, 2018

TOMMY LEE BROWN, Petitioner,
v.
CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution Respondent.

          Timothy S. Black, District Judge.

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE.

         This habeas corpus case was brought pro se by Petitioner Tommy Lee Brown to obtain relief from his conviction in the Scioto County Court of Common Pleas on July 30, 1997, on pleas of guilty to one count of rape, one count of complicity to rape, and one count of corrupting another with drugs. He is serving a term of imprisonment of nine to twenty-five years for these convictions in Respondent's custody.

         Procedural History

         Brown was indicted by the Scioto County Grand Jury on April 29, 1997, on 108 counts. Pursuant to a negotiated plea agreement, he pleaded guilty on July 8, 1997, to the counts listed above and then was sentenced on July 30, 1997, and did not appeal at that time. On September 3, 2012, he filed a delayed petition for post-conviction relief which was denied. On appeal from that denial, the Ohio Fourth District Court of Appeals questioned whether the original sentencing order was a final appealable order under Ohio law because it did not dispose of all counts of the indictment. On May 13, 2014, the State dismissed the remaining counts. Brown then appealed from both the May 13, 2014, dismissal order and the original sentencing entry. The Fourth District found that dismissal of the remaining counts rendered the original sentencing entry a final appealable order, but remanded to allow Brown to submit evidence on the sexual predator issue. State v. Brown, 59 N.E. 3d 532 (4th Dist. 2016), appellate jurisdiction declined, 145 Ohio St.3d 1461 (2016). On July 26, 2016, Brown filed an application to reopen his direct appeal under Ohio R. App. P. 26(B). The Fourth District dismissed the application as untimely and Brown did not appeal to the Ohio Supreme Court. He then filed his habeas corpus Petition in this Court on April 20, 2017, pleading the following grounds for relief:

GROUND 1: The trial court erred to the prejudice of petitioner and abused its discretion, and trial counsel's assistance was ineffective because the charges and sentences for counts ninety-five (95) and one-hundred-six (106) of the indictment for complicity to rape and corrupting another with drugs are clearly and convincingly contrary to and unauthorized by law in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
GROUND 2: The trial court erred to the prejudice of petitioner and abused its discretion because the indictment is defective and does not sufficiently charge an offense, and it has been impermissibly amended by the prosecuting attorney and trial judge, and trial counsel's advice and performance concerning the indictment were ineffective.
GROUND 3: All counts against petitioner were not resolved by the trial court for over seventeen (17) years, denying petitioner a final appealable order, and because of ineffective assistance of trial counsel and the fact that petitioner's current sentences are unauthorized by law, petitioner has been denied parole eligibility for two (2) additional years based on his original plea agreed minimum sentence of seven (7) years, which is collectively a fundamental miscarriage of justice and a violation of the Sixth and Fourteenth Amendments to the United States Constitution.

         (Petition, ECF No. 2, PageID 8, 9, and 10.)

         Analysis

         Ground One: Unconstitutional Charges and Sentences

         In his First Ground for Relief, Brown claims his convictions on counts 95 (complicity to rape) and 106 (corrupting another with drugs) are unauthorized by law and are therefore unconstitutional under the Sixth and Fourteenth Amendments to the United States Constitution.

         Brown's original argument in support of Ground One argues questions of the proper interpretation of the statutes under which he was charged (Petition, ECF No. 2, PageID 19-23). Respondent asserts Ground One raises only state law issues and therefore is not cognizable in federal habeas corpus (Return, ECF No. 10, PageID 703). In response to the Return's claim of non-cognizability, Brown writes only about the proper interpretation of Ohio R. Crim. P. 32 which itself is a question of state, not federal, law (Reply, ECF No. 11, PageID 715).

         When Brown's July 26, 2016, Rule 26(B) application was before the Fourth District, he had raised as an omitted assignment of error the same claim he raises in Ground One. The Fourth District ruled “if we were to consider the issues raised in appellant's application, we would find them to be without merit [because] appellant (1) received an appropriate sentence in accordance with the law in effect at the time of his ...


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