Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hopson v. Miller

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

July 8, 2019

PEYTON HOPSON, PETITIONER,
v.
MICHELLE MILLER, Warden, RESPONDENT.

          MEMORANDUM OPINION AND ORDER

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.

         Before the Court is the report and recommendation (Doc. No. 21 [“R&R”]) of Magistrate Judge James R. Knepp, II, recommending that the Court deny petitioner Peyton Hopson's (“Hopson”) writ of habeas corpus petition under 28 U.S.C. § 2254 (Doc No. 1 [“Pet.”]) in its entirety. Hopson filed timely objections to the R&R. (Doc. No. 24 [“Obj.”].) Respondent filed neither a response to Hopson's objections, nor her own objections. Also before the Court is Hopson's motion for leave to amend his habeas petition to include an additional claim for relief. (Doc. No. 26 [“Mot.”].) For the reasons discussed herein, Hopson's motion for leave to amend is DENIED, his objections to the R&R are OVERRULED and the R&R is ACCEPTED.

         I. BACKGROUND[1]

         On February 3, 2014, a Stark County grand jury indicted Hopson on two counts of felonious assault, with a repeat violent offender specification; one count rape, with repeat violent offender and sexually violent predator specifications; one count kidnapping, with repeat violent offender, sexually violent predator, and sexual motivation specifications; and one count of notice of change of address/registration of new address, all in violation of Ohio law. (Doc. 7-1, Ex. 1 at 97.[2]) On April 14, 2014, Hopson moved to sever the counts of the indictment and set them for separate trials. (Doc. 7-1, Ex. 2 at 102.) The trial court sustained the motion, ordered counts 1 and 5 be tried separately, and counts 2, 3, and 4 be tried together, but separately from counts 1 and 5. (Doc. 7-1, Ex. 3 at 104.)

         Prior to a pretrial hearing held on May 19, 2014, Hopson advised the court of his desire to represent himself at trial. (See Doc. No. 20 [“May 19 Hr'g Tr.”] at 517-18). At the May 19, 2014 pretrial hearing, the trial court explained that the failure to notify of change of address (“failure to notify”) charge would be tried first, and Hopson indicated he wished to proceed pro se on that charge. Id. at 552-53. After a colloquy, the trial court found Hopson knowingly, intelligently, and voluntarily waived his right to counsel on the failure to notify charge. (Id. at 558-59; see also Doc. No. 7-1, Ex. 4, at 105 (signed waiver).) Several times during the May 19, 2014 pretrial hearing, the trial court indicated that it was only considering Hopson's request to represent himself on the failure to notify charge at that time. (May 19 Hr'g Tr. at 528-29, 559.)

         At a hearing on May 22, 2014, Hopson's desire to represent himself on the other pending charges was discussed. (See Doc. 7-2 [“May 22 Hr'g Tr.”] at 410.) The trial court ultimately appointed new counsel to represent Hopson on the other charges and Hopson did not object. (Id. at 420; see also Doc. 7-1, Ex. 5 at 106 (appointing new counsel).)

         Following a State-requested continuance as to the failure to notify charge, the State elected to try the felonious assault charge first. State v. Hopson, No. 2014CA00163, 2015 WL 4270317, at *4 (July 13, 2015). On the morning of the trial for the felonious assault charge, Hopson represented to the trial court that he wished to proceed pro se on the felonious assault charge. (Doc. No. 20 [“Trial Tr.”] at 574.) Finding that the request was untimely, and that Hopson failed to establish any other good cause, the trial court denied his request and Hopson proceeded to trial, with counsel, on the felonious assault charge. (Id. at 576-78.) The jury found Hopson guilty of the felonious assault charge. (Doc. No. 7-1, Ex. 7, at 109-10 (guilty verdict).) Following the jury's guilty verdict on the felonious assault charge, the state trial court determined Hopson qualified as a repeat violent offender pursuant to Ohio Rev. Code § 2929.01(CC), and sentenced Hopson to an aggregated prison term of fourteen years: eight for the felonious assault and six years for the repeat violent offender specification in accordance with Ohio Rev. Code § 2929.14(B)(2)(a).

         For purposes of an appeal, the trial court appointed new counsel to Hopson. (Doc. No. 7-1, Ex. 11, at 121 (judgment entry).) Hopson, through counsel, filed a timely notice of appeal (Doc. No. 7-1, Ex. 12, at 122 (notice of appeal)), and in his brief raised two assignments of error: (1) the trial court erred in preventing Hopson from acting as his own counsel for the purposes of jury trial; and (2) Hopson's conviction for felonious assault was against the manifest weight and sufficiency of the evidence. (Doc. No. 7-1, Ex. 13, at 123-48 (brief of appellant).)

         Hopson, acting pro se, filed a letter with the appellate court stating he intended to represent himself on appeal, and had terminated the services of his court-appointed appellate counsel. (Doc. No. 7-1, Ex. 14-15, at 149-57 (terminating counsel and notice of pro se status).) Hopson also filed a motion to void the appellate brief filed on his behalf by his appellate counsel. (Doc. No. 7-1, Ex. 16, at 158-63). The appellate court removed Hopson's appellate counsel and permitted Hopson to proceed pro se. (Doc. No. 7-1, Ex. 17, at 164 (judgment entry).) The appellate court did not permit Hopson to amend the brief previously filed by his appellate counsel, but explained that he could file a pro se reply brief after the State's opposition brief was filed. Id. On July 13, 2015, the appellate court overruled Hopson's assignments of error and affirmed the judgment of the trial court. Hopson, 2015 WL 4270317, at 11.

         On August 26, 2015, Hopson, acting pro se, timely appealed the appellate court's decision affirming his conviction. (Doc. No. 7-1, Ex. 27, at 282-83 (notice of appeal).) In Hopson's memorandum in support of jurisdiction, he asserted two propositions of law: (1) denial of self-representation, and (2) sufficiency of the evidence. (Doc. No. 7-1, Ex. 28, at 284-325.) On November 10, 2015, the Ohio Supreme Court declined to accept jurisdiction. (Doc. No. 7-1, Ex. 30, at 343.)

         While his direct appeal was pending before the Ohio Supreme Court, Hopson filed a pro se application to reopen his direct appeal pursuant to Ohio Appellate Rule 26(B). (Doc. No. 7-1, Ex. 31, at 344-52 (application for reopening).) In his application, Hopson alleged that his appellate counsel was ineffective for failing to raise two assignments of error on direct appeal: (1) judicial bias, and (2) ineffective assistance of trial counsel: conflict of interest. (Id.) On December 2, 2015 (after the Ohio Supreme Court had declined jurisdiction of his direct appeal), the appellate court denied Hopson's application for reopening. (Doc. No. 7-1, Ex. 32, at 353-60 (judgment entry).)

         Hopson timely appealed this denial to the Ohio Supreme Court. (Doc. No. 7-1, Ex. 33, at 361-62 (notice of appeal).) In his memorandum in support of jurisdiction, Hopson asserted two propositions of law: (1) judicial bias, and (2) ineffective assistance of trial counsel: conflict of interest. (Doc. No. 7-1, Ex. 34, at 363-78.) The Ohio Supreme Court declined to accept jurisdiction. (Doc. No. 7-1, Ex. 36, at 390.)

         On July 25, 2016, Hopson filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this Court. In his petition, Hopson raised four grounds for relief: (1) judicial bias, (2) denial of right to self-representation, (3) ineffective assistance of trial counsel: conflict of interest, and (4) sufficiency of the evidence. The action was referred to Magistrate Judge James R. Knepp, II to prepare an R&R as to Hopson's petition. On December 28, 2017, the magistrate judge issued his R&R recommending that this Court deny Hopson's petition in its entirety. (Doc. No. 21.) The magistrate judge found Hopson's claims of judicial bias and ineffective assistance of trial counsel: conflict of interest were procedurally defaulted, and further found Hopson's claims of denied right to self-representation and sufficiency of the evidence were meritless. Hopson filed timely objections to each of the magistrate judge's findings. (Doc. No. 24.)

         Hopson did not appeal the repeat violent offender specification in any of these original appeals, or in his original habeas corpus petition.

         Instead, on June 22, 2018, Hopson filed a pro se motion for resentencing with the state trial court. Hopson contended that his six-year sentence for the repeat violent offender specification should be void because the trial court erred in making independent judicial findings of the seriousness of the crime and because Hopson was “innocent” of being a repeat violent offender under former Ohio Rev. Code. 2929.01(DD)(1) and (2)(a)(i), which was in effect at the time of Hopson's predicate offenses. (Mot. at 1008.) The trial court denied Hopson's motion for resentencing.

         Hopson appealed the state trial court's decision, and on November 5, 2018, the state appellate court overruled Hopson's assignments of error and affirmed the judgment of the state trial court. The state appellate court held that Hopson's appeal was procedurally defaulted because he did not raise the issue on appeal. State v. Hopson, No. 2018CA00109, 2018 WL 5920451, at

         *1-2 (Ohio Ct. App. Nov. 5, 2018). The state appellate court also stated that even if Hopson's innocence claim wasn't defaulted, it lacked any merit because the trial court applied the correct law. (Id. at *2.) Hopson then appealed the state appellate court's decision to the Ohio Supreme Court, but the Ohio Supreme Court declined to exercise jurisdiction.

         Hopson now seeks leave to amend his almost three-year-old habeas corpus petition to include a fifth ground for relief: actual innocence. (Mot. at 1011.) Hopson contends that he is “innocent” of being a repeat violent offender under Ohio law because the trial court applied the wrong statutory law. (Id. at 1011-13.)

         II. MOTION FOR LEAVE TO AMEND

         On April 15, 2019, Hopson filed a motion for leave to amend his habeas corpus petition pursuant to Fed.R.Civ.P. 15(a). A habeas corpus petition may be amended as provided in the Federal Rules of Civil Procedure. 28 U.S.C. § 2242. As such, leave to amend a habeas petition is guided by Rule 15, which encourages leave to be freely given when justice so requires. However, a district court need not authorize an amendment where the amendment has no chance of success on the merits. Kottmyer v. Maas, 436 F.3d 684, 692 (6th Cir. 2006).

         Here, the amendment Hopson seeks is completely futile and has no chance of success on the merits. Hopson seeks to amend his petition to include an argument that he is “innocent, ” i.e. not a repeat violent offender, because the state trial court applied the wrong law in determining whether he was a repeat violent offender. (Mot. at 1011-12.)

         In 2014, after the jury found Hopson guilty of the felonious assault charge, the trial court applied Ohio Rev. Code. § 2929.01(CC) in determining that Hopson qualified as a repeat violent offender because he had previously been convicted of or pleaded guilty to kidnapping and/or attempted rape, on or about February 20, 1991. Hopson, 2018 WL 5920451, at *2. Section 2929.01 (CC) provides that “repeat violent offender” means

         [A] person about whom both of the following apply:

(1) The person is being sentenced for committing or for complicity in committing any of the following:
(a) Aggravated murder, murder, any felony of the first or second degree that is an offense of violence, or an attempt to commit any of these offenses if the attempt is a felony of the first or second degree;
(b) An offense under an existing or former law of this state, another state, or the United States that is or was substantially equivalent to an offense described in division (CC)(1)(a) of this section.
(2) The person previously was convicted of or pleaded guilty to an offense described in division (CC)(1)(a) or (b) of this section.

         Hopson contends that the 2014 version of § 2929.01 (CC) was the incorrect law to apply in determining whether he is a repeat violent offender because the 2014 version of § 2929.01(CC) was not in effect at the time of his predicate convictions in 1991. (Mot. at 1011-12.) When Hopson was convicted of his predicate offenses, the former Ohio Rev. Code. § 2929.01(DD) governed the definition of a repeat violent offender for purposes of the specification. (Mot. at 1012.) Hopson contends that under the former § 2929.01(DD), he would not fall into the repeat violent offender specification. And because the former § 2929.01(DD) governed when he committed the predicate offenses, the state trial court should have used the former law to determine whether his predicate offenses qualified him for the repeat violent offender specification.

         Hopson's argument is completely contrary to law. Hopson cites to State v. Hunter, 915 N.E.2d 292 (Ohio 2009), for the proposition that the state trial court should have applied the former § 2929.01(DD) because that is the provision the state trial court applied in Hunter. However, the state trial court in Hunter imposed the repeat violent offender specification in 2006, when ยง 2929.01(DD) still governed. However, after 2006, the Ohio state legislature ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.