United States District Court, S.D. Ohio, Eastern Division
ALAN D. BRIGNER, Petitioner,
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
Kimberly A. Jolson, Magistrate Judge
OPINION AND ORDER
L. GRAHAM, UNITED STATES DISTRICT JUDGE
matter is now before the Court for consideration of
Petitioner's Motion to Amend or Alter Judgment
(“Motion”), (ECF No. 9), brought pursuant to Rule
59(e) of the Federal Rules of Civil Procedure (“Rule
59(e)”). For the reasons that follow, Petitioner's
Motion is DENIED. (ECF No. 9.) The Court
further DECLINES to issue a certificate of
filed this action for a writ of habeas corpus under 28 U.S.C.
§ 2254, alleging that the state court violated his
Double Jeopardy rights when it failed to merge allied
offenses at his sentencing. (ECF No. 1.) On May 30, 2019, the
Court entered final judgment dismissing the action pursuant
to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts reasoning that Petitioner's
claim is procedurally barred. (ECF Nos. 7, 8.) The Court
reasoned that Petitioner's allied offenses claim was
apparent from the face of the record, and thus, under Ohio
law, it needed to be brought in a direct appeal or it would
be barred under Ohio's doctrine of res judicata.
Because Petitioner failed to raise the claim in a timely
direct appeal in the state courts and he instead raised it in
a post-conviction motion to correct sentence, the state
appellate court found that the claim was barred by res
judicata. Accordingly, on May 30, 2019, this Court
concluded that it was procedurally barred in this federal
habeas action. (ECF No. 7.)
days later, Petitioner filed his Motion pursuant to Rule
59(e). (ECF No. 9.) Rule 59(e) provides that a party may seek
to have a court alter or amend its judgment by moving for
such relief no later than 28 days after a judgment is
entered. Fed.R.Civ.P. 59(e). Such motions do not, however,
“allow the losing party to repeat arguments previously
considered and rejected, or to raise new legal theories that
should have been raised earlier.” Owner-Operator
Indep. Drivers Assoc. v. Arctic Express, Inc., 288
F.Supp.2d 895, 900 (S.D. Ohio 2003) (internal quotations and
citations omitted). Moreover, Rule 59(e) motions are only
granted in limited circumstances- when there is: (1) a clear
error of law; (2) newly discovered evidence; (3) an
intervening change in controlling law; or (4) a need to
prevent manifest injustice. Intera Corp. v.
Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (citing
GenCorp, Inc. v. Am. Int'l Underwriters, 178
F.3d 804, 834 (6th Cir.1999)).
contends that this Court's procedural bar analysis
represents a clear error of law. Specifically, he asserts
that under Ohio law, his sentence was void because the state
trial court failed to merge his allied offenses. As a result,
he contends, he could attack his sentence by bringing his
allied offenses claim at any time in the state courts without
being barred by Ohio's doctrine of res judicata.
contention is unavailing. Under Ohio law, a void judgment is
indeed subject to attack at any time. See State v.
Fisher, 128 Ohio St.3d 92 (2010). For that reason, when
a state trial court finds that offenses are allied, but
nevertheless imposes separate sentences for them, those
sentences are void, and res judicata will not bar a
defendant from raising an allied offense claim after the
conclusion of a direct appeal. See State v.
Williams, 148 Ohio St.3d 403 (2016).
when a state trial court finds that convictions are not
allied offenses, or when it fails to make any findings with
regard to whether offenses are allied, the sentences are not
void, and any allied offense claim must be brought in a
direct appeal or be barred by Ohio's doctrine of res
judicata. Id. See also State v.
Hamilton, No. 16CA17, 2017 WL 1291388, at * 3 (Ohio Ct.
App. March 31, 2017) (citing State v. Hardie, No.
14CA24, 2015 WL 1897437, at * 3 (Ohio Ct. App. April 24,
2015) (explaining that an allied-offenses claim does not
render a sentence void but is instead an error that must be
raised in a direct appeal)); State v. Moore, No. 12
MA 197, 2013 WL 5230716, at * 3 (Ohio Ct. App. Aug 30, 2013)
(explaining that the void sentence doctrine does not extend
to allied offenses claims).
are the circumstances here. “[T]he state trial court
did not make any finding regarding whether the three rape
charges that petitioner pleaded guilty to were allied
offenses of similar import.” State v. Brigner,
No. 17CA3, 2017 WL 2774659 (Ohio Ct. App. June 9, 2017). As a
result, Petitioner was required to raise his allied offense
claim in a direct appeal. He failed to do so. The state
appellate court thus properly found that the claim was barred
by Ohio's res judicata doctrine. Id.
Because the claim was barred by Ohio's res
judicata doctrine, it is procedurally barred in this
action. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th
Cir. 2006) (explaining that Ohio's res judicata
rule is an adequate and independent state ground that bars
federal habeas relief); Coleman v. Mitchell, 268
F.3d 417, 427-29 (6th Cir. 2001) (same).
to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court must consider
whether to issue a COA. A state prisoner who seeks a writ of
habeas corpus in federal court does not have an automatic
right to appeal a district court's adverse decision
unless the court issues a COA. 28 U.S.C. §
2253(c)(1)(A). When a claim has been denied on the merits, a
COA may be issued only if the petitioner “has made a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make such a
showing, a petitioner must show “that reasonable
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.'”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)).
When a claim has been denied on procedural grounds, a
certificate of appealability may be issued if the petitioner
establishes that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling. Id.
Court DECLINES to issue a COA. The Court is
not persuaded that reasonable jurists could debate whether
Petitioner's Double Jeopardy claim was procedurally
Court also CERTIFIES pursuant to Fed. R.
App. P. 24, that an appeal would not be in good faith and
that any application to proceed in forma pauperis on appeal