United States District Court, S.D. Ohio, Western Division
Michael R. Merz, Magistrate Judge.
DECISION AND ENTRY ADOPTING THE REPORT AND
RECOMMENDATION (DOC. 13) AND THE SUPPLEMENTAL REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (DOC.
Timothy S. Black, United States District Judge.
case is before the Court pursuant to the Order of General
Reference to United States Magistrate Judge Michael R. Merz.
Pursuant to such reference, the Magistrate Judge reviewed the
pleadings filed with this Court and, on May 17, 2018,
submitted a Report and Recommendation (the
“R&R”). (Doc. 13). Petitioner Tommy Lee Brown
filed an objection on June 11, 2018.
(“Objection”) (Doc. 15). On June 12, 2018, The
Magistrate Judge submitted an order striking the Objection as
untimely. (Doc. 16). Petitioner then filed objections to the
Magistrate Judge's order striking the Objection as
untimely. (Doc. 17). Following the Petitioner's
objections, (Docs. 15, 17), this Court ordered the matter
recommitted to the Magistrate Judge for a Supplemental Report
and Recommendation. (Doc. 18). On June 25, 2018, the
Magistrate Judge submitted an order allowing Petitioner's
untimely objections and a supplemental Report and
Recommendation (the “Supplemental R&R”)
analyzing the Objection. (Doc. 19). Petitioner filed another
objection to the Supplemental R&R on July 11, 2018. (Doc.
objections are not well-taken. After reviewing both the
R&R, Supplemental R&R, and Petitioner's
objections, the Court finds that the three grounds for relief
presented by the Petitioner lack merit. The Court will
address Petitioner's grounds for relief in turn.
First ground for relief: unconstitutional charges and
claims that his convictions on counts 95 (complicity to rape)
and 106 (corrupting another with drug) are unauthorized by
law and therefore unconstitutional. (Doc. 2, at PageID #
19-23). The R&R and Supplemental R&R correctly
determined that Petitioner's claims are baseless on
several grounds. First, an Ohio court already considered this
argument - only a hypothetical consideration because, as
here, Brown's filing was untimely - and found it lacked
merit. (Doc. 9, at PageID # 583). This Court is bound by Ohio
courts' interpretation of Ohio law; thus,
Petitioner's first grounds for relief is not cognizable
in habeas corpus. Additionally, Petitioner failed to
timely present his case to the state court, and thus the
first ground for relief is “barred by procedural
default in presenting it to the Ohio courts.” (Doc. 13,
Second ground for relief: defective indictment
asserts that he was deprived of his due process right to fair
notice of the charges against him and of his right to a grand
jury indictment because the indictment did not sufficiently
charge an offense and was impermissibly amended. (Doc. 2, at
9). The R&R and Supplemental R&R correctly determined
that Petitioner's argument fails because there is no
federal constitutional right to a grand jury indictment in
state court. (Doc. 19, at 5). Moreover, the amendment of
Petitioner's indictment was favorable to him and was made
as part of a plea bargain. (Id.). Additionally, the
R&Rs note that, similar to the first ground for relief,
the second ground for relief was subject to procedural
Third ground for relief: delay in issuing a final appealable
claims that a delay in issuing a final appealable order
denied him parole eligibility for two additional years. The
R&R and Supplemental R&R appropriately recommended
dismissal of this claim because there is no established
federal precedent requiring state courts to include certain
content in their criminal judgment or that judgments be
issued in a certain time period. (Doc. 19, at 8).
Petitioner's Objection claims his appellate attorney
abandoned him in pursuing claims of ineffective assistance of
counsel in the Supreme Court of Ohio. (Doc. 15, at 28).
However, the Supplemental R&R properly finds that a
criminal defendant does not have a Sixth Amendment right to
appointed counsel on a discretionary appeal to a state
supreme court and therefore Petitioner did not state a
constitutional claim. (Doc. 19, at 9).
required by 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b),
the Court has reviewed the comprehensive findings of the
Magistrate Judge and considered de novo all of the
filings in this matter. Upon consideration of the foregoing,
the Court does determine that the R&R (Doc. 13) and
Supplemental R&R (Doc. 19) should be and are hereby
ADOPTED in their entirety. Accordingly, for
the reasons stated above, IT IS ORDERED
1) Petitioner's petition for writ of habeas
corpus (Doc. 2) is DISMISSED WITH
2) The Court certifies that pursuant to 28 U.S.C. §
1915(a)(3), an appeal of this Order would not be taken in
good faith and therefore Plaintiff is denied leave to appeal
in forma pauperis.
3) The Clerk shall enter judgment accordingly, whereupon this
case is TERMINATED from the ...