United States District Court, S.D. Ohio, Western Division
DANIEL G. PAYTON, Petitioner,
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
REPORT AND RECOMMENDATION
L. Litkovitz O United States Magistrate Judge
an inmate in state custody at the Chillicothe Correctional
Institution, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Doc. 4). This
matter is before the Court on respondent's motion to
dismiss (Doc. 8) and petitioner's response in opposition.
(Doc. 11). For the reasons stated below, the undersigned
recommends that the motion to dismiss be granted and petition
be dismissed on the ground that it is time-barred pursuant to
28 U.S.C. § 2241(d)(1).
2003, the Scioto County, Ohio, grand jury returned a
four-count indictment charging petitioner with four counts of
rape of a child under the age of thirteen, with each count
carrying force and sexually violent predator specifications.
(Doc. 7, Ex. 1). Petitioner entered a not guilty plea. (Doc.
7, Ex. 2).
subsequently filed a plea of not guilty by reason of
insanity. (Doc. 7, Ex. 3). The trial court ordered the
evaluation of petitioner's mental condition at the time
of the commission of the offense, as well as his competence
to stand trial. (Doc. 7, Ex. 4, 5). On November 26, 2003,
following a hearing on the matter, the trial court found
petitioner competent to stand trial. (Doc. 7, Ex. 6).
plea negotiations, petitioner withdrew his former not-guilty
plea and entered a plea of guilty to three counts of rape and
one of the sexually violent predator specifications. (Doc. 7,
Ex. 7). On February 23, 2004, the trial court accepted
petitioner's guilty plea and sentenced him to a total
aggregate prison sentence of 30 years to life in the Ohio
Department of Corrections. (Doc. 7, Ex. 8).
failed to file a direct appeal of his convictions and
to Correct Sentence
November 18, 2016, more than twelve years after sentencing,
petitioner filed a pro se "verified motion to correct
sentence." (Doc. 7, Ex. 9). On January 4, 2017, the
trial court denied petitioner's motion. (Doc. 7, Ex. 10).
filed a notice of appeal to the Ohio Court of Appeals. (Doc.
7, Ex. 11).
raised the following single assignment of error in his merit
The Trial Court erred and abused its discretion when it
denied and overruled Defendant-Appellant's Verified
Motion to correct Sentence, without holding a Hearing to
obtain evidence and facts outside the record and to give the
Defendant-Appellant the opportunity to speak without the
influence of psychotropic drugs.
(Doc. 7, Ex. 12). On September 18, 2017, the Ohio Court of
Appeals overruled petitioner's assignment of error and
affirmed the judgment of the trial court. (Doc. 7, Ex. 14).
filed a notice of appeal to the Ohio Supreme Court. (Doc. 7,
Ex. 15), In his memorandum in support of jurisdiction,
petitioner raised the following two propositions of law:
1. Whether the lower courts committed reversible error; by
affirming the denial as well as the Trial Court's error
and abuse of discretion, when it overruled and denied
Appellant's properly filed Verified Motion to Correct
Sentence alleging sentencing issues, without any review on
the merits or even holding a Hearing; and further ruling that
the Sentence imposed was not contrary to law, but regardless,
these issues can only be raised on direct appeal and are
barred from review as res judicata. In fact, ignored by both
lower courts, this Ohio Supreme Court recently expanded the
Void Sentence Doctrine and held "contrary to law,"
in sentencing context, means when the trial court disregards
statutory mandates of General Assembly; and such review can
happen at any time, and is not barred by res judicata. See
State v. Williams, 148 Ohio St.3d 403, 2016 Ohio 7558, 2013
Ohio LEXIS 2782 (2016). Accordingly, this Court should accept
Jurisdiction and provide additional clarification for review
of sentencing issues.
2. Whether the Court of Appeals erred in affirming the Trial
Court's error in finding Appellant is a Sexual Predator;
against the manifest weight of evidence, as the State failed
to present any additional evidence outside the case at bar to
support the likeliness to engage in the future in one or more