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Brown v. Jenkins

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

June 25, 2018

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

          ORDER; SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         Order Allowing Untimely Objections

         This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 17) to the Magistrate Judge's Order striking Petitioner's substantive Objections (ECF No. 15) to the Magistrate Judge's Report and Recommendations on the merits (Report, ECF No. 13). District Judge Black has recommitted the case for reconsideration in light of the Objections (ECF No. 18).

         In his procedural Objections, Petitioner claims that his substantive Objections were timely filed. He asserts that he received the Report on May 23, 2018, “a full six days after it was allegedly mailed.” The fact of mailing on that date is corroborated by the staff note of the docketing clerk, which states that “T[t]his document has been sent by regular mail to the party(ies) listed in the NEF (Notice of Electronic Filing) that did not receive electronic notification.” The deputy clerks are under a duty to both mail court orders when they are filed and not to make false statements in court records. The Court therefore accepts as proven that the Report was mailed when filed on May 17, 2018. With the Report mailed on that date, the due date for mailing the substantive objections was seventeen days later, June 3, 2018. Because that was a Sunday, Petitioner's time was extended to the next business day, June 4, 2018.

         Petitioner next claims that he “delivered his Objections for mailing on June 4, 2018 to the institution mailroom but due to circumstances beyond Petitioner's control the mailroom did not call Petitioner to sign a cash slip for postage until June 5, 2018.” (ECF No. 17, PageID 780). These circumstances are not enumerated. Nothing in the documentation corroborates the June 4, 2018, date. Brown's Certificate of Service on the substantive Objections claims he sent them to opposing counsel on June 5, 2018[1]. The cash slip was not signed until June 5, and was not processed until June 6. Brown's substantive Objections would have been timely if actually mailed on June 4, 2018, but nothing in his substantive Objections claims he mailed on that date.

         Nevertheless, the time limits in Fed.R.Civ.P. 72 are not jurisdictional. Therefore, in its discretion, the Court accepts the substantive Objections and will consider them on the merits. The Order Striking the substantive Objections (ECF No. 16) is VACATED and Brown's Objections to that Order (ECF No. 17) are denied as moot.

         Substantive Objections

         Structure of the Objections and of this Supplemental Report

         Petitioner pleaded three Grounds for Relief and the Report analyzes them separately. Brown's Objections begin by repeating verbatim the first twenty-three pages of his Memorandum in Support of Writ of Habeas Corpus attached to the Petition (Compare, Memorandum, ECF No. 2, PageID 15-37 to Objections, ECF No. 15, PageID 737-58). Only after finishing this copying does he include a section directly addressing the Report and claiming it “is a complete distortion of the facts and law” and “constitutes a gross miscarriage of justice.” In that section he writes only about Grounds for Relief One and Three.

         This Supplemental Report will only address the new matter in Brown's Objections.

         Ground One: Unconstitutional Charles 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 (Petition, ECF No. 2, PageID 19-23).

         The Report noted that Brown's argument was focused on the proper interpretation of Ohio sexual misconduct statutes (Report, ECF No. 13, PageID 726). Interpretation of Ohio statues is a question of Ohio law on which this Court is bound by the decisions of the Ohio courts. Id. In this very case, the Fourth District Court of Appeals considered hypothetically[2] the merits of this claim and found it was without merit. State v. Brown, No. 14CA3629 (4th Dist. Nov. 16, 2016) (unreported; copy at State Court Record, ECF No. 9, PageID 583). On that basis, Brown's first Ground for Relief was found not to be cognizable in habeas corpus (Report, ECF No. 13, PageID 727).

         Brown objects that he “is not requesting this Court to interpret state law, but rather to enforce his due process rights under state law in accordance with the Fourteenth Amendment.” He then asserts that the offense of conviction in Count 106, corrupting another with drugs in violation of Ohio Revised Code § 2925.02 “requires a maximum sentence of three (3) months incarceration.” (Objections, ECF No. 15, PageID 759). What the statute actually says is the crime is a felony of the fourth “and the court shall impose a sentence of actual incarceration of three months . . .” Ohio Revised Code § 2925.02(C). Brown claims “Ohio law has been interpreted by Ohio courts to allow only three or six months incarceration for a conviction under R.C. 2925.02.” (ECF No. 15, Page ID 759). He provides no citation at all for that claim. The Magistrate Judge is not ...


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