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Black v. Harris

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

May 10, 2019

KENNETH L. BLACK, II, Petitioner,
v.
CHAE HARRIS, Warden Respondent.

          JACK ZOUHARY, JUDGE

          REPORT & RECOMMENDATION

          JONATHAN D. GREENBERG, UNITED STATES MAGISTRATE JUDGE

         This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the Petition of Kenneth L. Black, II (“Black” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Black is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Black, Richland County No. 2012-CR-0489D. For the following reasons, the undersigned recommends the Petition be DISMISSED.

         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 Black's conviction as follows:

{¶ 2} On August 13, 2012, under common pleas case number 2012-CR-0489, the Richland County Grand Jury indicted appellant on one count of aggravated burglary (a first-degree felony), two counts of kidnapping (both first-degree felonies), one count of assault (a fourth-degree felony), one count of having weapons under a disability (a third-degree felony), and one count of possessing a defaced firearm (a first-degree misdemeanor). The first three counts each included a repeat violent offender specification. The charges stemmed from appellant's July 20, 2012 armed break-in of his estranged wife's residence.
{¶ 3} On October 10, 2012, under 2012-CR-0489, appellant pled guilty to all six counts and the three RVO specifications. Appellant and the State jointly recommended an agreed sentence. The trial court thereupon sentenced appellant to six years in prison on Count I, six years on Counts II and III (merged), eighteen months on Count IV, two years on Count V, and six months on Count VI. The terms were ordered to be served concurrently, but consecutive to an 861-day prison sentence imposed under case number 2008-CR-0288 for violating appellant's post-release control in that case.

State v. Black, 2016-Ohio-5612, at ¶¶2-3 (Ohio App. 5th Dist., Aug. 16, 2016).

         II. Procedural History

         A. Trial Court Proceedings

         On August 13, 2012, the Richland County Grand Jury indicated Black with (1) one count of aggravated burglary in violation of Ohio Revised Code (“O.R.C.”) §2911.11(A)(2)(Count One); (2) two counts of kidnapping in violation of O.R.C. §2905.01 (Counts Two and Three); (3) one count of assault in violation of O.R.C. §2903.13 (Count Four); (4) one count of having weapons under a disability in violation of O.R.C. §2923.13 (Count Five); and (5) one count of possessing a defaced firearm in violation of O.R.C. §2923.201 (Count Six). (Doc. No. 7-1, Exh. 1.) Black entered pleas of guilty to all charges. (Doc. No. 7-1, Exh. 2.) Pursuant to a plea agreement, Black and the State agreed Counts Two and Three were allied offenses and recommended an agreed upon sentence of six years plus post release control. (Id.)

         On October 10, 2012, the state trial court held a sentencing hearing, at which time the court merged Counts Two and Three. (Doc. No. 7-1, Exh. 3.) The trial court sentenced Black to six years on Count One, six years on the merged Counts Two and Three, 18 months on Count Four, two years on Count Five, and six months on Count Six, with five years mandatory post release control. (Id.) The trial court ordered these sentences to be served concurrently, for an aggregate sentence of six years. (Id.) However, the trial court ordered Black to serve his six year sentence consecutively to a 861-day prison sentence for violating post release control in Richland County No. 2008-CR-288D. (Id.) Black did not file a direct appeal.

         B. Petition to Vacate or Set Aside Judgment/Motion to Vacate Judicial Sanction

         On March 29, 2013, Black, proceeding pro se, filed a “Petition to Vacate or Set Aside Judgment of Convivtion[sic] or Sentence” with the state trial court. (Doc. No. 7-1, Exh. 5.) Within this Petition, [1] Black raised the following grounds for relief:

I. Petitioner was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution when counsel failed to file a notice of appeal as requested;
II. Petitioner was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution when counsel failed to file a notice of appeal when the trial court imposed a void judicial sanction of petitioner;
III. Petitioner was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution when counsel failed to file a notice of appeal when the trail court failed to imposed post release control for assault and having weapon while under disability;
IV. Petitioner was denied effective assistance of counsel in violation of the Sixth Amendment to the United States when counsel failed to file a notice of appeal when the trial court imposed sentences on allied offense of similar imports; and
V. Petitioner was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution when counsel failed to file a notice of appeal when the trial court ordered petitioner to pay ‘any fees permitted pursuant to revised code section 2929.18.

(Id.) The State filed a response in opposition. (Doc. No. 7-1, Exh. 8.)

         On April 26, 2013, Black filed a “Motion for Appointment of Counsel and Transcripts at States' Expense, ” asserting he could not “seek effective post conviction relief without the transcripts of the plea and sentencing proceedings.” (Doc. No. 7-1, Exh. 9.) That same date, Black also filed “Written Submissions in Support of Petition for Post Conviction Relief.” (Doc. No. 7-1, Exh. 10.)

         On July 17, 2013, Black, with the assistance of counsel, filed a “Motion to Vacate Judicial Sanction.” (Doc. No. 7-1, Exh. 11.) Within this Motion, Black argued the “861-day judicial sanction was illegal, and that portion of Mr. Black's sentence in No. 2012 CR 0489D must be vacated.” (Id.)

         On September 23, 2013, the State filed a response, to which Black, through counsel, replied. (Doc. No. 7-1, Exh. 12, 13.)

         On February 5, 2014, the state trial court issued a “Judgment Entry Overruling Various Motions of the Petitioner.” (Doc. No. 7-1, Exh. 14.) Within this Judgment Entry, the state trial court denied Black's March 29, 2013 Petition, his March 29, 2013 Motion for Counsel, and his July 17, 2013 Motion to Vacate. (Id.)

         On March 3, 2014, Black, proceeding pro se, filed a Notice of Appeal of the state trial court's February 5, 2014 judgment entry. (Doc. No. 7-1, Exh. 15.) However, Black did not file an appellate brief and the state appellate court dismissed this appeal for want of prosecution on May 20, 2014. (Doc. No. 7-1, Exh. 16.) Black thereafter filed a “Motion for Re-Consideration” of this dismissal on June 2, 2015. (Doc. No. 7-1, Exh. 20.) The state appellate court denied this request. (Doc. No. 7-1, Exh. 21.)

         On May 23, 2014, Black filed a “Motion to Use Transcripts to Submit Merit Brief, ” asserting he could not submit “a merit brief without the transcript of the plea and sentencing hearing.” (Doc. No. 7-1, Exh. 17.) That same date, Black also filed a “Motion for Enlargement of Time to File Merit Brief” with the state appellate court. (Doc. No. 7-1, Exh. 18.) The state appellate court denied these motions on June 2, 2014. (Doc. No. 7-1, Exh. 19.)

         C. Motion to Correct Sentence Unauthorized by Law

         On June 22, 2015, Black filed a pro se “Motion to Correct Sentence Unauthorized by Law” with the state trial court. (Doc. No. 7-1, Exh. 22.) The State filed a brief in response. (Doc. No. 7-1, Exh. 23.) The state trail court denied this Motion on January 8, 2016. (Doc. No. 7-1, Exh. 24.)

         Black, proceeding pro se, filed a Notice of Appeal of this decision on January 28, 2016. (Doc. No. 7-1, Exh. 25.) Within his brief, Black raised the following assignment of error:

The trial court abused its discretion and committed reversible error when it imposed a consecutive judicial-sanction sentence in 2012 based upon a void post-release control in 2008 then improperly construed Mr. Black's motion to correct that sentence unauthorized by law, as a petition for post-conviction relief, when a void judgment can be attacked at any time. Article I, §§ 1, 16; Ohio Constitution and Fourteenth Amendment to the United States Constitution.

(Doc. No. 7-1, Exh. 26.) The State filed a brief in response, to which Black replied. (Doc. No. 7-1, Exh. 27, 28.)

         On August 19, 2016, the state appellate court affirmed the decision of the state trial court. (Doc. No. 7-1, Exh. 29.)

         On September 15, 2016, Black filed a pro se Notice of Appeal with the Supreme Court of Ohio. (Doc. No. 7-1, Exh. 30.) Within his Memorandum in Support of Jurisdiction, Black raised the following proposition of law:

The Fifth District Court of Appeals erred when it affirmed the trail court's imposition of a sanction for violating a the imposition of post-release control from a previous sentence which was void and open to collateral attack at any time when there was noting[sic] that the Appellant might due or fail to ...

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