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Roberts v. Wainwright

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

June 3, 2019

DOUGLAS ROBERTS, Pro Se, Petitioner



         Before the court is Pro Se Petitioner Douglas Roberts' (“Petitioner” or “Roberts”) Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). (ECF No. 1.) For the reasons that follow, the Petition is hereby denied.

         I. BACKGROUND

         Roberts states in the Petition that he pleaded guilty and was sentenced in the Cuyahoga County Court of Common Pleas for burglary, theft, grand theft, and escape in August 2014. He filed a direct appeal, claiming that the trial court did not satisfy the requirements of Ohio Revised Code § 2929.14(C)(4) when imposing consecutive sentences and denied him the right of allocution. State v. Jenkins (a.k.a. Douglas Roberts), No. 101899, 2015 WL 4133152, at *1 (Ohio Ct. App. July 9, 2015).

         Ohio's Eighth District Court of Appeals sustained Roberts' appeal regarding the trial court's compliance with § 2929.14(C)(4), vacated Roberts' sentence, and remanded the case to the trial court for resentencing. Id. at *2. With respect to Roberts' claim that he was denied the right to allocution, the court of appeals denied that assignment of error, but noted that in any event, Roberts would have an opportunity to address the trial court when he was resentenced. Id. at *3.

         On remand, the trial court imposed consecutive sentences. Roberts appealed, arguing among other assignments of error, that the record did not support the trial court's Ohio Revised Code § 2929.14(C)(4) finding that consecutive service of his multiple sentences was proportionate to the seriousness of his conduct and danger posed to the public. The Ohio Eighth District Court of Appeals found that, on remand, the trial court complied with the requirements of Ohio Revised Code § 2929.14(C)(4) and that the record supported the sentence imposed, but remanded the case again for the limited purpose of issuing a nun pro tunc entry to correct a typographical error in the final sentencing entry. State v. Roberts, 101 N.E.3d 1067, 1072-75 (Ohio Ct. App. 2017). With respect to Roberts' remaining assignments of error, the appellate court denied them as barred by res judicata. Id. at 1070-71. The Ohio Supreme Court declined Roberts' motion for a delayed appeal. State v. Roberts, 97 N.E.3d 499 (Table) (Ohio 2018).


         A. Standard of Review

         Federal district courts are required to undertake a preliminary review of habeas corpus petitions to determine whether it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]” Rule 4 of the Rules Governing Habeas Corpus under Section 2254; see also 28 U.S.C. § 2243. If the district court determines that a petitioner is plainly not entitled to relief, the petition must be summarily dismissed. Id.; see also Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (Under § 2243, the district court “has a duty to screen out a habeas corpus petition which should be dismissed for lack of merit on its face.”). Like all pro se pleadings, pro se habeas petitions are entitled to liberal construction. Franklin v. Rose, 756 F.2d 82, 85 (6th Cir. 1985) (citation omitted).

         B. Analysis

         Roberts raises two grounds for relief. In the first, Roberts claims that he was denied his right to allocution. (ECF No. 1 at 5.) For the second, he claims that the trial court did not take into account the “necessary factors” in Ohio Revised Code § 2929.14(C)(4) when imposing consecutive sentences. (Id. at 7.)

         It is evident from the face of the petition that Roberts is not entitled to habeas relief under 28 U.S.C. § 2254. As an initial matter, Rule 2(c) of the Rules Governing Section 2254 Cases requires that the petition must “specify all of the ground for relief available to the petitioner” and set forth “supporting each of the grounds thus specified.” Flood v. Phillips, 90 Fed.Appx. 108, 113 (6th Cir. 2004) (citation omitted). This pleading rule is “more demanding” than the pleading requirements of Fed.R.Civ.P. 8(a). Mayle v. Feliz, 545 U.S. 644, 655-56 (2005) (“A prime purpose of Rule 2(c)'s demand that habeas petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to ‘show cause why the writ should not be granted.'”). Notice pleading is insufficient in the habeas context and the petitioner must state facts that point to the real possibility of a constitutional error. Blackledge v. Allison, 431 U.S. 63, 76 (1977) (citing Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases).

         Roberts does not identify the constitutional basis for either ground for relief, or offer any facts in support thereof. Nor does Petitioner state the relief requested, and the Petition is unsigned. Roberts fails to satisfy the pleading requirements of Rule 2(c), and the Petition is subject to dismissal for this reason, alone. See Id. at 76.

         Assuming for the purpose of this analysis that the habeas pleading standard is satisfied, the Petition is denied. In order for a claim to be cognizable for federal habeas review, Roberts must be in custody in violation of the federal constitution or federal laws, not state law. Swarthout v. Cooke,562 U.S. 216, 218 (2011) (“‘[F]ederal habeas corpus relief does not lie for errors of ...

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