United States District Court, S.D. Ohio, Western Division, Dayton
MICHAEL A. DEAN, Petitioner,
DONNIE MORGAN, Warden, Ross Correctional Institution, Respondent.
M. Rose District Judge
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
a habeas corpus action, brought pro se by petitioner
Michael A. Dean under 28 U.S.C. § 2254 to obtain relief
from his conviction in the Champaign County Court of Common
Pleas of assault and resisting arrest charges. All collateral
attacks on criminal judgments are referred to the undersigned
by General Order DAY 13-01.
Rule 4 of the Rules Governing § 2254 Cases, the clerk
must promptly forward the petition to a judge under the
court's assignment procedure, and the judge must promptly
examine it. If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.
reports that he was convicted May 26, 2017 (Petition, ECF No.
1, PageID 1, ¶ 2.) He appealed to the Ohio Second
District Court of Appeals which affirmed his conviction on
April 6, 2018. Id. at PageID 2, ¶ 9. He did not
seek further review by the Ohio Supreme Court. Id.
He filed an application for reopening of his direct appeal
under Ohio R. App. P. 26(B), but that application was denied
on August 13, 2018. Id. at PageID 3, ¶ 11. The
Supreme Court of Ohio declined to review the decision in
December 2018. Id. PageID 5, citing Sup. Ct. Case
No. 18-1302. Dean filed this Petition a year later on
December 4, 2019. Id. at PageID 15.
pleads one ground for relief:
Ground One: Denied the effective assistance
of appellate counsel on direct appeal from a jury trial
Supporting Facts: Assigned appellate counsel
failed to read the transcript and discovery with the bill of
particulars, then investigate the Urbana City Police
Department's tactics in conjunction with the Ohio Adult
Parole Authority to circumvent the 4th,
5th, 6th, and 14thAmendments
to the Federal Constitution through the use of Ohio Revised
Code § 2967.131(C) and 2967.15 where no parole violation
warrant was issued and no parole officer was present at the
time of the warrantless entry.
(Petition, ECF No. 1, PageID 5.)
raised this claim in the Ohio Second District Court of
Appeals when he filed his Application for Reopening under
App. R. 26(B), including claims that the Ohio Revised Code
did not authorize actions taken by his parole officer and the
Urbana Police and, if it did, the statute would be
unconstitutional under the Fourth Amendment.
denying Dean relief, the Second District first held that Ohio
Revised Code § 2967.15 does in fact authorize a
warrantless arrest by a peace officer at the direction of a
parole officer without either a paper warrant or the parole
officer's presence. (State v. Dean,
2nd Dist. Case No.2017CA19, Aug. 13,
2018)(unreported; copy at ECF No. 1, PageID 65, et
seq.). That interpretation of Ohio law is binding on
this Court. Federal habeas corpus is available only to
correct federal constitutional violations. 28 U.S.C. §
2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010);
Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
Smith v. Phillips, 455 U.S. 209, 221 (1982),
Barclay v. Florida, 463 U.S. 939, 957-58 (1983),
citing Gryger v. Burke, 334 U.S. 728, 731 (1948).
"[I]t is not the province of a federal habeas court to
reexamine state court determinations on state law questions.
In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States." Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); see also
Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160
(1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d
248 (6th Cir. 2018)(Thapar, J. concurring).
Fourth Amendment question raised by Dean, the Second District
found that Officer Molton's initial entry into Dean's
home was consensual and that Dean had presented no evidence
to the contrary. This would satisfy the Fourth Amendment
requirement spelled out by the Supreme Court in Payton v.
New York, 445 U.S. 573 (1980).
Court cannot, however, re-examine the Second District's
decision on this Fourth Amendment issue. Federal habeas
corpus relief is not available to state prisoners who allege
they were convicted on illegally seized evidence if they were
given a full and fair opportunity to litigate that question
in the state courts. Stone v. Powell, 428 U.S. 465,
494-95 (1976). Stone requires the district court to
determine whether state procedure in the abstract provides
full and fair opportunity to litigate, and Ohio procedure
does. The district court must also decide if a
Petitioner's presentation of claim was frustrated because
of a failure of the state mechanism. Habeas relief is allowed
if an “unanticipated and unforeseeable application of a
procedural rule prevents state court consideration of the
merits of the claim.” Riley v. Gray, 674 F.2d
522, 527 (6th Cir. 1982). In qui discussing the
concept of a “full and fair opportunity, ” the
Riley court held:
The mechanism provided by the State of Ohio for resolution of
Fourth Amendment claims is, in the abstract, clearly
adequate. Ohio R.Crim.P. 12 provides an adequate opportunity
to raise Fourth Amendment claims in the context of a pretrial
motion to suppress, as is evident in the petitioner's use
of that procedure. Further, a criminal defendant, who has
unsuccessfully sought to suppress evidence, may take a direct
appeal of that order, as of right, by filing a notice of
appeal. See OhioR.App.P. 3(A) and Ohio R.App.P. 5(A). These
rules provide an adequate procedural mechanism for the
litigation of Fourth Amendment ...