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Hayes v. Gray

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

October 22, 2019

DUSTIN HAYES, Petitioner,
v.
DAVID W. GRAY[1], Warden, Belmont Correctional Institution, Respondent.

          DONALD C. NUGENT JUDGE

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT UNITED STATES MAGISTRATE JUDGE

         On September 20, 2017, Dustin Hayes (“Petitioner”), pro se, executed a petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was filed on September 27, 2017. ECF Dkt. #1. Petitioner requests for the Court to re-sentence him to a reduced 10 years imprisonment based upon alleged deficiencies in his life sentence and his plea agreement. ECF Dkt. #s 1, 9. On January 18, 2018, the Warden of the Belmont Correctional Institution (“Respondent”) filed an Answer/Return of Writ. ECF Dkt. #7. On March 19, 2018, Petitioner signed a Traverse, which was docketed on March 28, 2018. ECF Dkt. #9. For the following reasons, the undersigned RECOMMENDS that the Court DISMISS the petition in its entirety with prejudice.

         I. FACTUAL HISTORY

         The Ohio Eleventh District Court of Appeals set forth the facts of this case on direct appeal These binding factual findings “shall be presumed to be correct, ” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), cert. denied, 119 S.Ct. 2403 (1999). As set forth by the Eleventh District Court of Appeals, the facts are as follows:

{¶2} January 11, 2013, the Portage County Grand Jury returned an indictment in seven counts against Mr. Hayes. Each was for violation of R.C. 2907.02(A)(1)(b) and (B), alleging Mr. Hayes had engaged in a course of sexual conduct with a 12 year old girl between October 1, 2012, and December 31, 2012. At his arraignment [on] January 18, 2013, Mr. Hayes pleaded not guilty to all counts. Motion practice ensued. However, Mr. Hayes entered plea negotiations with the state. [On] June 12, 2013, he entered [into] a written plea of guilty to one charge of rape. A change of plea hearing took place that day. The trial court accepted the plea and nolled the remaining counts on motion of the state. Sentencing hearing went forward [on] September 9, 2013, with the trial court filing its judgment entry of sentence [on] September 13, 2013.

         ECF Dkt. #7-1[2] at 71.

         II. PROCEDURAL HISTORY

         A. State Trial Court

         On January 11, 2013, a Portage County Grand Jury issued an Indictment charging Petitioner with seven counts of Rape in violation of R.C. § 2907.02(A)(1)(b) & (B). ECF Dkt. #7-1 at 3-9. On June 12, 2013, Petitioner, with counsel, executed a written plea agreement whereby he pleaded guilty to count one of the Indictment, in violation of R.C. § 2907.02(A)(1)(b) & (B) and § 2971.03. Id. at 11-14. After holding a change of plea hearing, the trial court found that Petitioner knowingly, intelligently, and voluntarily entered into the plea agreement and accepted his plea, adjudging him guilty. Id. at 15-16, 117. The trial court also accepted the dismissal of the remaining counts charged in the Indictment. Id.

         On September 6, 2013, Petitioner filed a sentencing brief. ECF Dkt. #7-1 at 17-18. Notably, “Counsel states both he and Mr. Hayes are aware that based upon the offense this Court must impose a life sentence.” Id. at 17. Since Petitioner's case is to be reviewed for parole by the State Board, counsel submitted the sentencing brief to help mitigate his sentence by submitting additional information for the record and by requesting a Pre-sentence investigation report to help Petitioner when his case is eligible for review by a parole board. Id. at 17-18.

         On September 9, 2013, the trial court held a sentencing hearing. ECF Dkt. #7-1 at 19, 121-35. Subsequently, on September 13, 2013, the trial court issued an order, sentencing Petitioner “to an indefinite term of imprisonment of Ten Years to LIFE, to be served for the offense of ‘Rape', or until such time as he is otherwise legally released. Defendant is eligible for parole after ten years.” Id. at 20. Accordingly, the trial court designated Petitioner a Tier III Sex Offender. Id. at 22, 123.

         B. Direct Appeal

         Petitioner failed to file a timely direct appeal of his conviction and sentence. On July 13, 2014, Petitioner, pro se, executed a motion for leave to file a delayed appeal to the Eleventh District Court of Appeals, which was filed on July 21, 2014. ECF Dkt. #7-1 at 23-27. Petitioner also filed an accompanying memorandum in support. Id. at 28-32. On November 10, 2014, the appellate court dismissed Petitioner's appeal because he failed to comply with appellate and local rules. Id. at 33-36. On February 25, 2015, Petitioner filed a second motion for leave to file a delayed appeal, correcting his prior deficiencies. ECF Dkt. #7-1 at 37-41. On May 11, 2015, the appellate court granted his motion, reinstated his appeal on the docket, and appointed appellate counsel. Id. at 42-44.

         Through counsel, Petitioner filed a brief, raising the following single assignment of error: “The Trial Court erred in failing to inform Appellant of the consequences of his plea pursuant to the Constitutions of the United States and the State of Ohio, as well as Crim.R.11.” Id. at 46-57. The statement of issues also added the following:

The Trial Court failed to inform Appellant that he had the right to remain silent at trial, could refuse to testify, and that his silence and refusal could not be commented upon at trial. Did the Trial Court not fail then to confirm he made his plea knowingly, intelligently, and voluntarily?

Id. at 49. On October 23, 2015, the State filed a brief in response. Id. at 59-69. On May 2, 2016, the appellate court found the single assignment of error was without merit, and, consequently, it affirmed the judgment of the trial court. Id. at 70-76.

         C. Ohio Supreme Court

         On June 6, 2016, Petitioner, pro se, executed his Notice of Appeal and accompanying Memorandum in Support of Jurisdiction to the Ohio Supreme Court, both of which were filed on June 10, 2016. ECF Dkt. #7-1 at 77-90. Petitioner raised the following two propositions of law:

1. The sentence is contrary to law Ohio Revised Code 2907.02 and in violation of United States Constitutional Amenment[sic] Eight(8) Cruel and Unusual Punishment as a life sentence should not be imposed pursuant to Ohio Revised Code 2907.02 as there was no evidence of force: A life sentence is only allowable when the Defendant has been found guilty of Ohio Revised Code 2907.02(B) it is the element of force present in that section that increases the permittable[sic] penalty to life imprisonment.
2. The trial court erred in failing to inform Appellant of the consequences of his plea pursuant to the Constitutions of the United States and the State of Ohio, as well as Criminal Rule 11.

Id. at 84-87. The State did not file a response brief. On October 5, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4). Id. at 106.

         III. FEDERAL HABEAS CORPUS PETITION

         Petitioner, pro se, executed the instant petition for a writ of habeas corpus on September 20, 2017, which was filed on September 27, 2017. ECF Dkt. #1. Petitioner raised the following grounds for relief and supporting facts:

1. GROUND ONE: The sentence is contrary to law [O.R.C.] 2907.02 Rape in violation of U.S. Constitutional Amendment Five, Fourteen-Due Process of law and Eight Cruel and Unusual Punishment.
Supporting facts: Pursuant to [O.R.C.] 2907.02 Rape: (B) Whoever violates this section is guilty of rape, a felony of the first degree[.] If the offender did not cause serious physical harm to the victim, the victim was ten years of age or older, the offender has not been previously convicted of or pleaded guilty to a violation of this section, the court shall not sentence the offender to a prison term or term of life imprisonment pursuant to section 2971.03 of the Revised Code. See Appendix B Letter from [B.T.][3] which states “I was the one who pursued sexual relations with Dustin”. Appendix C “I was the one who asked to have sex”. Appendix D Letter from [B.T.'s mother.] Appendix E Letter from [B.T's] step-father.
2. GROUND TWO: The Trial Court erred in failing to inform Petitioner of the consequences of his plea pursuant to the Constitutions of the United States and the State of Ohio, as well as Criminal Rule 11. Therefore, the Trial Court failed to inform Petitioner made[sic] his plea knowingly, intelligently, and voluntarily.
Supporting facts: The Petitioner did not fully understand that he could receive both the minimum and maximum sentence when there was no force, no physical harm to the victim, he had never been convicted of any crimes[.] The Petitioner agrees that he voilated[sic] the law, but should have been sentenced to the 10 years, not the life sentence, because there was no force, and other than the age of the victim pursuant to Ohio Law, there was no force or rape, See Appendix B and C letters from the victim, [B.T.], that state the fact that the sex was her idea, and that neither of them considered the contact as rape. Clearly Dustin Hayes should only be sentenced to 10 years as to the nature of the crime involving no force or violence.
3. GROUND THREE: The Petitioner's plea was not made knowingly, intelligently, and voluntarily.
Supporting facts: The Petitioner was unaware that by pleading guilty he would receive 10 years plus a life sentence, when there was no serious harm, no force, and pursuant to the victim's statements there was not even a rape. See Appendix B and C, letters from the victim, [B.T.].

Id. On January 18, 2018, Respondent filed an Answer/Return of Writ. ECF Dkt. #7. On March 19, 2018, Petitioner executed a Traverse, which was filed on March 28, 2018. ECF Dkt. #9.

         IV. PROCEDURAL BARRIERS TO REVIEW

         A petitioner must overcome several procedural barriers before a court will review the merits of a petition for a federal writ of habeas corpus. Justice O'Connor noted in Daniels v. United States: “Procedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim.” 532 U.S. 374, 381 (2001) (citing United States v. Olano, 507 U.S. 725, 731 (1993)).

         A. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) statute of limitations period for filing a petition for a writ of federal habeas corpus is one year, and it begins to run on the date judgement became final. 28 U.S.C. § 2244(d)(1). The AEDPA statute of limitations is not at issue in this case.

         B. Exhaustion of State Remedies

         Subject to the statute of limitations, federal habeas corpus relief is only available to persons that are in custody in violation of the United States Constitution, laws or treaties. 28 U.S.C. § 2254(a); Engle v. Isaac, 456 U.S. 107 (1982); Smith v. Phillips, 455 U.S. 209, 221 (1983). As a general rule, a state prisoner must exhaust all possible state remedies or have no remaining state remedies before a federal court will review a petition for a writ of habeas corpus. 28 U.S.C. § 2254(b) and (c); see Baldwin v. Reese, 541 U.S. 27, 29 (2004); Wilson v. Mitchell, 498 F.3d 491, 498 (6th Cir. 2007). Exhaustion is required before a state prisoner may bring a habeas corpus petition under either 28 U.S.C. § 2241 or 28 U.S.C. § 2254. See Collins v. Million, 121 Fed.Appx. 628, 630-31 (6th Cir. 2005). The petitioner bears the burden of proving exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Also, the court of appeals may raise and consider the issue of exhaustion sua sponte. Clinkscale v. Carter, 375 F.3d 430, 438 (6th Cir. 2004) (citing Harris v. Rees, 794 F.2d 1168, 1170 (6th Cir. 1986)). Exhaustion does not require a state court adjudication on the merits of the claim at issue. Clinkscale, 375 F.3d at 438 (citing Smith v. Digmon, 434 U.S. 332, 333 (1978); Manning v. Alexander, 912 F.2d 878, 883 (6th Cir. 1990)).

         The exhaustion requirement is satisfied “once the federal claim has been fairly presented to the state courts, ” which means “the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner's claims.” Smith v. State of Ohio Dep't of Rehab. & Corr., 463 F.3d 426, 430 (6th Cir. 2006) (citing Lott v. Coyle, 261 F.3d 594, 608 (6th Cir. 2001)); see O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Wilson v. Mitchell, 498 F.3d 491, 498-99 (6th Cir. 2007); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990); Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987). A petitioner will not be allowed to present claims never before presented in the state courts, unless he can show cause to excuse his failure to present the claims in the state courts and actual prejudice to his defense at trial or on appeal, or that he is actually innocent of the crime for which he was convicted. Coleman v. Thompson, 501 U.S. 722, 748 (1991) (citing Engle v. Isaac, 456 U.S. 107 (1982) and Murray v. Carrier, 477 U.S. 478 (1986)).

         In addition to full presentation, a claim must also be fairly presented to the state courts as a federal constitutional issue rather than merely as a state law issue. Franklin v. Rose, 811 F.2d 322, 325 (6th Cir. 1987); Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). To exhaust a claim, a petitioner must present it to the state courts under the same theory that it is later presented in federal court. Wagner v. Smith, 581 F.3d 410, 417 (6th Cir. 2009); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). For a claim to be “fairly presented, ” the petitioner must assert both a factual and legal basis for his claim in state court. Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006). A petitioner “fairly” presents the substance of his federal constitutional claim to the state courts by: (1) relying upon federal cases that use a constitutional analysis; (2) relying upon state cases using a federal constitutional analysis; (3) phrasing his claim in terms of constitutional law or in terms sufficiently particular to allege the denial of a specific constitutional right; or (4) alleging facts that are obviously within the mainstream of constitutional law. Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004) (internal citation omitted); McMeans, 228 F.3d at 681 (citing Franklin, 811 F.2d at 326). Although general allegations of the denial of rights to a “fair trial” and “due process” do not ...


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