United States District Court, S.D. Ohio, Western Division
L. Litkovitz Magistrate Judge
DECISION AND ENTRY ADOPTING THE REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (DOC.
TIMOTHY S. BLACK, UNITED STATES DISTRICT JUDGE
case is before the Court pursuant to the Order of General
Reference to United States Magistrate Judge Karen L.
Litkovitz. Pursuant to such reference, the Magistrate Judge
reviewed the pleadings filed with this Court, and on July 30,
2019, submitted a Report and Recommendation. (Doc. 12). On
August 8, 2019, Petitioner Herbert Smith filed objections.
objections concern the first, second, third, and fourth
grounds for relief raised in his habeas petition. After
reviewing the Report and Recommendation, Petitioner's
objections, and the case record, the Court finds that
Petitioner's objections are not well-taken.
first and second grounds for habeas relief relate to his
assertion that the Ohio Department of Rehabilitation and
Correction (“ODRC”) improperly administratively
increased his sentence. (Doc. 1-1 at 9-13). The Magistrate
Judge accurately stated that courts have found increasing a
prisoner's sentence administratively, rather than through
a judicial proceeding, constitutes a due process violation.
(Doc. 12 at 8) (citing Hayden v. Mohr, No. 16-4051,
2017 WL 4216588, at *2 (6th Cir. May 4, 2017)). Pursuant to
the state court record, the Magistrate Judge found that at
Petitioner's 1994 sentencing for his robbery conviction,
the court determined that his robbery sentence and prior 1977
kidnapping sentence should be served consecutively.
(Id. at 8-9, 9 n.7). Thus, the Magistrate Judge
concluded that Petitioner's sentence was not
objection to the Magistrate Judge's finding as to his
first and second grounds for relief is primarily an issue of
semantics. Petitioner states that the Magistrate Judge
discussed whether the state court improperly
“aggregated” his sentences and did not address
the specific issue he raised regarding ODRC's alleged
administrative increase of his sentence. (Doc. 14 at 4).
However, this objection is meritless. As noted above, the
Magistrate Judge identified this issue, discussing that it is
a due process violation for ODRC to administratively increase
a prison sentence. The Magistrate Judge went on to properly
find that no administrative increase occurred here based on
the state-court record. Accordingly, Petitioner's
objection is overruled.
also takes issue with the Magistrate Judge's finding that
the state court was not required to specifically state that
his two sentences were to run consecutively. (Id. at
11). However, the Magistrate Judge correctly held that
because Ohio law at the time mandated that petitioner's
1977 kidnapping sentence and 1994 robbery sentence run
consecutively, the state court was not obligated to expressly
state that it was imposing a consecutive sentence. (Doc. 12
at 9) (citing Hayden, 2017 WL 4216588, at *2). Thus,
this objection also lacks merit.
respect to Petitioner's third ground for relief-that his
sentence has been satisfied-the Magistrate Judge first held
that this issue is purely a matter of state law, and thus
does not involve a cognizable issue for federal habeas
review. (Doc. 12 at 10). The Judge further held Petitioner
failed to demonstrate he is being held beyond his maximum
sentence expiration date. (Id. at 10-11).
objection here is that the Magistrate Judge failed to address
his concern that his sentence has been fulfilled, instead
discussing the state court's decision to run his
sentences consecutively. (Doc. 14 at 7-8). However, the Court
agrees with the Magistrate Judge's reasoning that based
on the state-court record, and considering the consecutive
sentences imposed, Petitioner is not being held beyond his
maximum release date. Thus, Petitioner is not entitled to
habeas relief on this ground.
as to Petitioner's fourth ground for relief, the
Magistrate Judge found Petitioner's argument to be
missing from his submitted memorandum. (Doc. 12 at 11).
Petitioner asserts in his objections that his arguments were
included at pages thirteen and fourteen of his habeas
petition, but the pages do not appear in the petition filed
of record. (Doc. 1; Doc. 14 at 8). Nevertheless, the
Magistrate Judge correctly guessed that Petitioner intended
to raise as his fourth ground for habeas relief, the
“Proposition of Law No. Four.” that Petitioner
previously asserted in his brief to the Supreme Court of
Ohio. (See Doc. 6 at 78; Doc. 12 at 11). Further,
the Magistrate Judge properly found that the issues
Petitioner intended to raise as his fourth ground for relief
are duplicative of Petitioner's earlier claims that the
ODRC improperly increased his prison sentence. (Doc. 14 at
10-11). Accordingly, this objection is also meritless.
required by 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b),
the Court has reviewed the comprehensive findings of the
Magistrate Judge and considered de novo all of the
filings in this matter. Upon consideration of the foregoing,
the Court does determine that such Report and Recommendation
(Doc. 12) should be and is hereby ADOPTED in
for the reasons stated above:
Respondent's Motion to Dismiss Petitioner's petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
(Doc. 7) is GRANTED;
Petitioner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (Doc. ...