United States District Court, S.D. Ohio, Western Division
ANDRE D. WASHINGTON, Petitioner,
WARDEN, NORTH CENTRAL CORRECTIONAL INSTITUTION, Respondent.
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
an inmate in state custody at the Madison Correctional
Institution, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This
matter is before the Court on respondent's motion to
dismiss (Doc. 11), and petitioner's response in
opposition (Doc. 15). Also before the Court is
petitioner's motion to stay and motion to amend/correct.
(Doc. 6, 13).
reasons stated below, the undersigned recommends that the
petition be denied and respondent's motion to dismiss be
denied as moot. Petitioner's motion to stay and motion
to amend/correction should also be denied.
Ohio Court of Appeals set forth the following set of facts
leading to petitioner's conviction and
During the early afternoon of February 5, 2003, Jeremy
Kotzbauer was working alone at his family's business,
Natural Life Nutrition, when Washington came into the store
and told Jeremy that somebody was “peeping” his
car. Concerned, Jeremy looked out into the parking lot. (We
use first names to distinguish between the Kotzbauer
brothers.) Seeing nothing unusual, Jeremy turned around to
find Washington pointing a gun at his face and demanding all
the money in the cash register. Jeremy took the money out,
placed it in a brown paper bag, and gave it to Washington.
Washington then demanded the keys to Jeremy's car. As
Washington took Jeremy to the back room to get his car keys,
Jeremy tripped the silent alarm.
Washington left the store, got into Jeremy's car, and
drove away. As Washington left, Jeremy's brother, Nathan,
pulled into the parking lot. Jeremy told his brother what had
happened, and Nathan proceeded to follow Jeremy's car.
For the next twenty minutes, Nathan followed Washington as he
drove Jeremy's car. In the futile hope of hastening his
escape, Washington decided to take Jeremy's car onto
northbound Interstate 75, where Nathan continued to follow.
Unfortunately for Washington, a traffic accident made the
typically bottlenecked traffic on the interstate even slower
than usual. As they drove on the interstate, Nathan spotted
an Arlington Heights police cruiser pulled over on the
shoulder. Officer Chris Bundrew was issuing another driver a
traffic citation. Nathan informed Bundrew of what had
occurred. Bundrew then joined the pursuit.
Shortly thereafter, Bundrew stopped Jeremy's car. The
driver got out of Jeremy's car, lay on the ground, and
was placed in custody. Of course, the driver was Washington,
and a search of his person uncovered the stolen money as well
as some crack cocaine in his pocket. A search of Jeremy's
car turned up the gun used in the robberies. Jeremy later
described the robber as an African-American male, roughly
between 6'2” and 6'3”, of unknown weight,
and wearing a winter jacket, skullcap, and blue gloves.
Later that night, the police showed Jeremy a one-man holding
area where they were keeping Washington. They had already
told Jeremy that they had the man who had robbed the store
and now asked Jeremy if he could identity that man. Jeremy
identified Washington as the robber. Nathan was shown a
Polaroid photograph of only Washington and asked if the
person in the photograph was the robber. Nathan identified
Washington's picture as the person who had robbed his
brother and the store.
(Doc. 10, Ex. 9 at PageID 100-102).
Trial Proceedings and Direct Appeal
February 14, 2003, the Hamilton County, Ohio, grand jury
returned a five-count indictment charging petitioner with two
counts of aggravated robbery, two counts of robbery, and one
count of possession of cocaine. (Doc. 10, Ex. 1). Petitioner
entered a plea of not guilty to all charges. (Doc. 10, Ex.
August 20, 2003, following a jury trial, petitioner was
convicted of all charges. (Doc. 10, Ex. 3). Petitioner was
sentenced to serve a total aggregate prison sentence of
twenty years in the Ohio Department of Corrections on
September 5, 2003. (See Doc. 10, Ex. 4).
Specifically, petitioner received consecutive, eight-year
prison terms for his aggravated robbery convictions: one
count based on the theft of currency from the Natural Life
Nutrition Center and the other based on the theft of a motor
vehicle from Jeremy Kotzbauer. Petitioner was sentenced to
two three-year gun specifications on these counts, which were
ordered to be served concurrently, but consecutive to the
sentences imposed for his other convictions. For his
possession of cocaine conviction petitioner received a
one-year prison sentence. Finally, the two counts of robbery
(one for the Natural Life Nutrition Center and one for
Jeremey Kotzbauer) were merged with the respective aggravated
robbery counts. (See id.).
September 23, 2003, through different counsel, petitioner
filed a timely notice of appeal to the Ohio Court of Appeals.
(Doc. 10, Ex. 6). In his appellate brief, petitioner raised
the following two assignments of error:
1. The jury committed prejudicial error in finding Washington
guilty of Aggravated Robbery, Robbery, and Possession of
Cocaine as the verdict was against the manifest weight of the
2. The identification of Andre Washington by Nathan Kotzbauer
and Jeremy Kotzbauer should be suppressed as it was
unreasonably suggestive and violated Washington's right
to a fair trial under the Ohio and United States
(Doc. 10, Ex. 7). By judgment entry entered on November 3,
2004, the Ohio Court of Appeals overruled petitioner's
assignments of error and affirmed the judgment of the trial
court. (Doc. 10, Ex. 9).
did not seek further review in the Ohio Supreme Court.
for a New Trial
25, 2010, several years later, petitioner filed a
“delayed motion for a new trial to correct a void
judgment or sentence and defective indictment of robbery and
aggravated robbery.” (Doc. 10, Ex. 10). Petitioner
challenged his indictment for not expressly charging the
mens rea element for the aggravated robbery and
robbery charges. On May 24, 2010, the trial court denied
petitioner's motion. (Doc. 10, Ex. 12).
filed an appeal to the Ohio Court of Appeals from the trial
court's judgment. (Doc. 10, Ex. 13). However, on November
12, 2010, the Ohio appeals court dismissed the appeal for
petitioner's failure to file an appellate brief. (Doc.
10, Ex. 14).
did not seek further review in the Ohio Supreme Court.
to Reopen Appeal
on February 9, 2012, petitioner filed an application to
reopen his appeal pursuant to Ohio App. R. 26(B). (Doc. 10,
Ex. 15). Petitioner argued that his appellate counsel was
ineffective for failing to raise a claim that his convictions
amounted to allied offenses of similar import under Ohio Rev.
Code § 2941.25. (See id.). On March 7, 2012,
the Ohio Court of Appeals denied petitioner's
application, finding that petitioner failed to provide
sufficient reasons for his failure to file a timely
application. (Doc. 10, Ex. 17).
did not file an appeal to the Ohio Supreme Court.
April 11, 2016, petitioner filed a motion to vacate a void
sentence. (Doc. 10, Ex. 19). Petitioner argued that he was
not advised of the length of his post-release control term or
the consequences of violating its terms. The trial court
appointed petitioner counsel and, on August 31, 2016 held a
hearing. (Doc. 10, Ex. 20). During the hearing, petitioner
argued that because post-release control was not properly
imposed that his sentence was void and that petitioner should
be entitled to a new sentencing hearing, during which he
would argue that his two aggravated robbery convictions were
allied offenses of similar import and should merge for the
purposes of sentencing. (See Doc. 10-2, Trans. at
August 31, 2016, the trial judge advised petitioner that he
will be subject to mandatory post-release control for five
years once he has served his sentence and of the consequences
for violating its terms. (See Id. at PageID 335-36).
The trial court otherwise left the original sentence
undisturbed. Petitioner's motion to vacate was
denied by the trial court on September 19, 2016. (Doc. 10,
Ex. 22). A nunc pro tunc sentencing entry was issued
on November 23, 2016, imposing the same sentence but
including the post-release control information. (See
Doc. 10, Ex. 21).
September 6, 2016, petitioner filed a notice of appeal and
motion to appoint counsel in the Ohio Court of Appeals. (Doc.
10, Ex. 23, 24). Petitioner's motion for counsel was
granted. (Doc. 10, Ex. 25). Petitioner, through counsel,
raised the following two assignments of error in his
1. The trial court erred by failing to comply with the
principles and purposes of sentencing at a de novo
2. The trial court erred when it failed to merge allied
offenses of similar import under R.C. 2941.25 and as such
prison on the firearm specifications on those counts cannot
(Doc. 10, Ex. 27). On August 9, 2017, the Ohio Court of
Appeals overruled petitioner's assignments of error and
affirmed the decision of the trial court. (Doc. 10, Ex. 29).
The appeals court ruled that the trial court properly limited
the scope of the resentencing hearing to the imposition of
post release control and that petitioner's allied
offenses assignment of error should have been brought on
direct appeal and was now barred under the doctrine of
res judicata. (See
October 4, 2017, petitioner filed a notice of appeal and
motion for delayed appeal to the Ohio Supreme Court. (Doc.
10, Ex. 32, 33). Petitioner claimed that he could not timely
file a notice of appeal because he was not notified that a
pass was issued for him to access the mailroom in time.
(See Doc. 10, Ex. 33). On December 6, 2017, the Ohio
Supreme Court denied petitioner's motion for a delayed
appeal. (Doc. 10, Ex. 34).
to Vacate a Void and Illegal Sentence
1, 2018, petitioner filed a motion to vacate a void and
illegal sentence. (Doc. 10, Ex. 35). The trial court denied
petitioner's motion on June 12, 2018, finding that the
issues raised by petitioner “had to be raised in a
direct appeal and are now barred by res judicata.”
(Doc. 10, Ex. 36).