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Payton v. Warden, Chillicothe Correctional Institution

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

December 10, 2019

DANIEL G. PAYTON, Petitioner,
v.
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

          Dlott, Judge

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz O United States Magistrate Judge

         Petitioner, 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).

         I. PROCEDURAL HISTORY

         State Trial Proceedings

         In May 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).

         Petitioner 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).

         After 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).

         Petitioner failed to file a direct appeal of his convictions and sentence.

         Motion to Correct Sentence

         On 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).

         Petitioner filed a notice of appeal to the Ohio Court of Appeals. (Doc. 7, Ex. 11).

         Petitioner raised the following single assignment of error in his merit brief:

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).

         Petitioner 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 ...

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