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Smith v. Warden, Lebanon Correctional Institution

United States District Court, S.D. Ohio, Western Division

July 30, 2019

HERBERT A. SMITH, Petitioner,
v.
WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.

          Black, J.

          ORDER AND REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE

         Petitioner, an inmate in state custody at the Lebanon Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, [1] asserting that he is being held beyond the maximum expiration date of his sentence. (Doc. 5). This matter is before the Court on the petition (Doc. 5) and respondent's motion to dismiss (Doc. 7), to which petitioner has replied (Doc. 8). Also before the Court are petitioner's "Motion to Comply under Fed. Civil Rule 7(B)" (Doc. 10) and petitioner's "Motion for Judgment on the Pleadings" (Doc. 11).

         For the reasons stated below, respondent's motion to dismiss (Doc. 7) should be GRANTED but, in part, for reasons other than provided by respondent. In light of this recommendation, petitioner's motions to comply (Doc. 10) and for judgment on the pleadings (Doc. 11) are DENIED as moot

         I. PROCEDURAL HISTORY

         The procedural history of this case was set forth by the Ohio Supreme Court in State ex rel. Smith v. Schweitzer, 103 N.E.3d 816 (Ohio 2018):

{¶ 2} In 1977, Smith was convicted of kidnapping and was sentenced to 5 to 15 years in prison. On August 3, 1981, he was released on parole. While under supervision, he committed a new felony. Between December 2, 1981, and May 7, 1991, he was a parole violator at large. On October 17, 1994, Smith pleaded guilty to one count of robbery. The common pleas court judge sentenced him to 6 to 15 years' imprisonment. The sentencing entry did not indicate whether this term was to be served concurrently with or consecutively to the time remaining on his kidnapping sentence.
{¶ 3} Smith received parole a second time in 2005 and escaped detention. He remained at large for the next six years, until he was returned to confinement in September 2012.
{¶ 4} On May 22, 2017, Smith filed a petition for a writ of habeas corpus against [Warden] Schweitzer, alleging that Smith had now served more than 15 years on his robbery sentence and was therefore entitled to immediate release. Smith asserted that he had also completed his sentence on the original kidnapping charge because, he said, the two sentences had run concurrently, and the Department of Rehabilitation and Correction has no authority to alter a prison sentence.
{¶ 5} On August 29, 2017, the Twelfth District Court of Appeals granted Schweitzer's motion to dismiss, concluding that Smith was not entitled to immediate release because his sentences ran consecutively by operation of law. Smith appealed.

Id. at 816-17.[2]

         Petitioner raised the following four issues in the Ohio Supreme Court:

1. The ODRC [Ohio Department of Rehabilitation and Correction] [d]oes not have the authority to change or alter in any way a clear and unambiguous statement contained in a court judgment. The duty of the ODRC is to carry out the judgment of the court-and nothing more.
2. The ODRC denied the appellant the right to Due Process by aggregating the appellant['s] sentence to 11 to 30 years in blatant disregard of the Ohio [C]onstitution, and the 5th and 14th amendments to the U.S. Constitution, and the Ohio revised code. Only the courts have the right or the authority to correct an original sentence and even then it must be done through the appellate process.
3. The sentence that was given to the appellant [by the courts], has been satisfied and completed and should be considered void.
4. The ODRC [d]id not follow the guidelines set forth under the Ohio [C]onstitution and the Ohio [R]evised [C]ode.

         (Doc. 6, Ex. 10, at pp. 74-78). On June 28, 2018, the Ohio Supreme Court affirmed the state appellate court's dismissal of petitioner's state petition for a writ of habeas corpus. See State ex rel. Smith, 103 N.E.3d at 817. Petitioner did not seek a writ of certiorari in the United States Supreme Court.[3]

         Federal Habeas Corpus

         On July 25, 2018, petitioner commenced the instant federal habeas corpus action.[4]

         Petitioner raises the following five grounds for relief:

GROUND ONE:
The ODRC does not have the authority to change or alter in any way a clear and unambiguous statement contained in a court judgment. The duty of the ODRC is to carry out the judgment of the court and nothing more.
GROUND TWO:
The ODRC denied the appellant the right to due process by aggregating the appellant's sentence and changing his sentence to 11 to 30 years in blatant disregard of the Ohio [C]onstitution, and the 5th and 14th amendments to the U.S. Constitution, and the Ohio [R]evised [C]ode. Only the courts have the right or authority to correct an original sentence and even then it must be done through the appellate process.
GROUND THREE:
The sentence that was given to the appellant [by the courts], has been satisfied and complete[d] and should now ...

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