United States District Court, S.D. Ohio, Eastern Division
CHARLES A. MITCHELL, Petitioner,
WARDEN, TOLEDO CORRECTIONAL INSTITUTION, Respondent.
Elizabeth P. Deavers Chief Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE
April 23, 2018, the Magistrate Judge issued a Report and
Recommendation recommending that the Petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed. (ECF No. 22.) Petitioner has filed an
Objection to the Magistrate Judge's Report
and Recommendation. (ECF No. 25.) Pursuant to 28 U.S.C.
§ 636(b), this Court has conducted a de novo
review. For the reasons that follow, Petitioner's
Objection (ECF No. 25) is
OVERRULED. The Report and
Recommendation (ECF No. 22) is ADOPTED
and AFFIRMED. This action is hereby
Court DECLINES to issue a certificate of
challenges his December 2006 convictions after a jury trial
in the Muskingum County Court of Common Pleas on aggravated
burglary and kidnapping. The trial court imposed a term of
twenty years in prison. The state appellate court affirmed
the judgment of the trial court, and the Ohio Supreme Court
declined to accept jurisdiction of the appeal. Petitioner
unsuccessfully pursued an application to reopen the appeal
under Ohio Appellate Rule 26(B), and a state habeas corpus
petition. On October 5, 2015, the trial court granted
Petitioner's motion to correct a clerical mistake in the
Judgment Entry of Sentence. The appellate court affirmed the
judgment of the trial court. Petitioner subsequently filed a
motion pursuant to Ohio Criminal Rule 36(A), which the trial
court denied as an untimely and successive post conviction
petition. On October 13, 2017, the appellate court again
affirmed the judgment of the trial court. See State v.
Mitchell, No. CT2017-0035, 2017 WL 4675813, at *l-2
(Ohio App. 5th Dist. Oct. 13, 2017). Petitioner did not file
an appeal. Petitioner now asserts that the trial court
improperly sentenced him on the charge of aggravated
burglary, in lieu of the lesser offense of burglary, that he
was denied the effective assistance of appellate counsel,
because his attorney failed to raise on appeal a claim that
the trial court improperly sentenced him on the charge of
kidnapping with a sexual motivation and sexually violent
predator specification, and that the trial court erred in
amending the sentencing entry outside of his presence. The
Magistrate Judge recommended dismissal of claims one and two
as successive, and claim three on the merits. Petitioner
objects to the Magistrate Judge's recommendations.
this is not Petitioner's first federal habeas corpus
action. On August 8, 2011, the Court dismissed
Petitioner's prior § 2254 action as procedurally
defaulted and without merit. Mitchell v. Warden,
Mansfield Correctional Institution, No. 2:10-cv-299.
Petitioner nonetheless contends that he need not obtain
authorization for consideration of his claims in this second
§ 2254 action under the provision of 28 U.S.C. §
2244(b)(3)(A), because he could not earlier have raised his
claims prior to the trial court's October 2015,
habeas petition is not considered 'second or
successive' under § 2244(b) if an intervening
judgment, such as a re-sentencing, occurred after the first
habeas petition was decided. In re Campbell, 874
F.3d 454, 459-60 (6th Cir. 2017) (citing Magwoodv.
Patterson, 561 U.S. 320, 335, 339 (2010); King v.
Morgan, 807 F.3d 154, 157 (6th Cir. 2015)).
Additionally, the Sixth Circuit has held that "a new
judgment" entered following a re-sentencing hearing
permits an inmate to challenge his original conviction as
well as the new judgment of sentence "without clearing
the second-or-successive hurdles." Grant v. Warden,
Belmont Correctional Institution, No.
1:14-cv-878, 2017 WL 3503728, at *5 (S.D. Ohio July 24, 2017)
(citing King v. Morgan, 807 F.3d at 159). That said,
here, the record reflects that the trial court issued the
October 2015 sentencing entry solely to correct a clerical
error. See Journal Entry (ECF No. 9-1, PAGEID #
385); State v. Mitchell, No. CT2015-0055, 2016 WL
4039243, at *2-4 (Ohio App. 5th Dist. July 25, 2016). That
being the case, Petitioner cannot escape the requirements of
28 U.S.C. § 2244(b)(3) for the filing of a successive
habeas corpus petition based on the trial court's
issuance of a corrected entry of sentence. See Edwards v.
United States, Nos. 2:15-cv-3005, 2:1
l-cr-00229, 2016 WL 692543, at *2 (S.D. Ohio Feb. 22, 2016).
[C]ourts have held that claims challenging amended judgment
entries correcting clerical sentencing errors are successive
because such entries "do not change or otherwise
constitute a 'new judgment' within the meaning of
Magwood with respect [a] petitioner's prior
federal habeas corpus petition." See, e.g., Berry v.
Oppy, No. 2:13cv617} 2014 WL 1091067, at *2
(S.D.Ohio Mar.18, 2014) (Smith, J.) (citing In re
Martin, 398 Fed.Appx. 326, 327 (10th Cir.2010); In
re Lampton, 667 F.3d 585, 587-89 (5th Cir.2012);
Hawkins v. United States, No. 89-CR-80335, 2011 WL
2533658, at *l-2 (E.D. Mich. June 27, 2011)); cf. Carter
v. Warden, Chillicothe Corr. Inst., No. I:llcv800, 2012
WL 2601760, at *9 (S.D.Ohio July 5, 2012) (Bowman, M.J.)
(Report & Recommendation) (holding that "Nunc Pro
Tunc" sentencing entry in accordance with a remand order
to correct an error regarding post-release control "did
not change or otherwise constitute a 'new judgment'
within the meaning of Magwood with respect to
petitioner's conviction or sentence imposed...for the
underlying criminal offenses"), adopted, 2012 WL 4056850
(S.D. Ohio Sept.14, 2012) (Spiegel, J.).
Id. See also Bates v. Jenkins, No. 2:17-cv-00973,
2017 WL 5483331, at *5 (S.D. Ohio Nov. 15, 2017) ("[T]he
issuance of a nunc pro tunc entry to correct clerical errors
that result in a discrepancy between the court's oral
pronouncements and its paper records does not constitute a
new judgment for purposes of this determination."
(citing In re Stansell, 828 F.3d 412, 420 (6th Cir.
2016) (internal citations omitted).
second-in-time § 2254 action also may escape the
successive filing requirements of § 2243 where it raises
a claim that was unripe for review when the first habeas
petition was filed. See In re Tibbetts, 869 F.3d
403, 406 (6th Cir. 2017) (citing Panetti v.
Quarterman, 551 U.S. 930, 945-47 (2007); In re
Jones, 652 F.3d 603, 605-06 (6th Cir. 2010)). Petitioner
argues that these are the circumstances here, and states that
his claim of the denial of the effective assistance of
appellate counsel relates solely to the performance of his
attorney in filing an appeal from the trial court's
October 5, 2015, corrected Judgment Entry of Sentence.
However, Petitioner's claims were readily apparent at the
time of his first appeal, and nothing prevented him
from raising these issues in his prior federal habeas corpus
petition. The state appellate court noted:
The record reflects appellant was charged with, tried upon,
convicted of, and sentenced upon aggravated burglary. Count I
of the indictment cites R.C. 2911.11(A)(2) and uses the
statutory language. Appellant's proposed jury
instructions filed October 30, 2006 reference aggravated
burglary and track the language of R.C. 2911.11(A)(2). The
jury's verdict form upon Count I states appellant was
found guilty of "aggravated burglary."
Appellant argues., . he is subject to a maximum eight-year
term for burglary instead of the ten-year term for aggravated
burglary. This is not a case in which the trial court
increased appellant's sentence by means of a nunc pro
tunc entry. See, State v. Miller, 127 Ohio St.3d
407, 2010-Ohio-5705, 940 N, E.2d 924 [court cannot use nunc
pro tunc entry to impose sanction not imposed as part of
original sentence]. Appellant's original sentence was,
and remains, ten years upon aggravated burglary. The amended
journal entry in this case reflects what the trial court
imposed at sentencing.
State v. Mitchell, No. CT2015-0055, 2016 WL 4039243,
at *3-4 (footnotes omitted). Moreover, Petitioner similarly
asserted, as he does now, in his in his March 9, 2009, Rule
26(B) application, and in his prior federal habeas corpus
Petition that the trial court improperly sentenced
him on the charge of aggravated burglary and a predicate
kidnapping offense after the jury acquitted him of rape and
sexual motivation specifications. See State v.
Mitchell, No. CT2006-0090, 2009 WL 3155055, at *2 (Ohio
Ct. App. Sept. 30, 2009);Mitchell v. Smith, No.
2:10-cv-299. Therefore, the Court cannot now again consider
claims one and two, absent authorization for the filing of a
successive § 2254 action from the United States Court of
Appeals. Further, as discussed by the Magistrate Judge,
Petitioner had no constitutional right to be present for ...