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Hawkins v. Shoop

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

December 27, 2019

BRIAN HAWKINS, Petitioner,
TIMOTHY SHOOP, Warden, Chillicothe Correctional Institution Respondent.

          Thomas M. Rose District Judge


          Michael R. Merz United States Magistrate Judge

         This habeas corpus case, brought pro se by Petitioner Brian Hawkins pursuant to 28 U.S.C. § 2254, is before the Court on Hawkins' Objections (ECF No. 20) to the Magistrate Judge's Report and Recommendations recommending dismissal (“Report, ECF No. 19). District Judge Rose has recommitted the case for reconsideration in light of the Objections (Recommittal Order, ECF No. 21). Hawkins does not object to the dismissal of Grounds Two and Three, but makes specific objections as to the other Grounds, as well as to the recommendation to deny a certificate of appealability and certify that an appeal would be objectively frivolous. Hawkins' Objections are considered seriatim.

         Ground One: Denial of Due Process by Pre-Indictment Delay

         The conduct upon which Hawkins was convicted happened in July 2002 and he was not indicted until May 2015. He filed a motion to dismiss for pre-indictment delay which the trial court denied after an extensive evidentiary hearing. After he was convicted by a jury, Hawkins appealed, raising the pre-indictment delay as a principal as his First Assignment of Error. The Second District Court of Appeals that issue at great length; its opinion is reproduced in the Report (ECF No. 19, PageID 2339-48, quoting State v. Hawkins, 2018-Ohio-867 (2nd Dist. Mar. 9, 2018). The Report concluded that this state court decision was neither contrary to nor an objectively unreasonable application of relevant Supreme Court precedent and was therefore entitled to deference under 28 U.S.C. § 2254(d). Id. at PageID 2349.

         Statute of Limitations Objection

         In his Reply Hawkins claimed that his prosecution was barred by the statute of limitations in Ohio Revised Code § 2901.13(D)(1) and (2)(ECF No. 18, PageID 2309). The Report found this was a new claim, one that was neither raised in the Petition nor at any time in the state courts. Passing over these procedural points, the Report found the limitations claim was without merit. § 2901.13(D)(2) provides:

(2) If a DNA record made in connection with the criminal investigation of the commission of a violation of section 2907.02 or 2907.03 of the Revised Code is determined to match another DNA record that is of an identifiable person and if the time of the determination is within twenty-five years after the offense is committed, prosecution of that person for a violation of the section may be commenced within the longer of twenty-five years after the offense is committed or five years after the determination is complete.

         This is indeed a case in which the DNA found in the victim's rape kit was matched with Hawkins' DNA. That determination was made “within twenty-five years after the offense [was] committed, ” to wit, before July 2027, which would be twenty-five years after July 2002, the time of the rape. The prosecution was also commenced within that twenty-five year period, so there was no violation of the statute of limitations. But Hawkins argues that the phrase “or five years after the determination is complete” controls instead. This construction makes no sense of the English of the sentence. It would turn “longer of” into “shorter of.” It would also defeat the purpose of the statute, which was to extend the statute of limitations in rape cases, as Hawkins himself admits in his Objections (ECF No. 20, PageID 2371). In a case such as this, Hawkins' construction of the language would have shortened the statute of limitations well below the twenty years provided by Ohio law before the 2015 amendment. See State v. Jones, 148 Ohio St.3d 167 (2016).

         In interpreting a statute a court should:

1. Decide what purpose ought to be attributed to the statute and to any subordinate provision of it which may be involved; and then
2. Interpret the words of the statute immediately in question so as to carry out the purpose as best it can, making sure, however, that it does not give the words either (a) a meaning they will not bear, or (b) a meaning which would violate any established policy of clear statement.

         Hart and Sacks, The Legal Process (Eskridge & Frickey ed. 1994), p. 1169. Interpreting “longer of” to mean “shorter of” makes no sense of the language or purpose of Ohio Revised Code § 2901.13(D)(2).

         Moreover, the Reply is the first time Hawkins raised this statute of limitations claim. He criticizes the Report for treating it as a stand-alone claim and says it is just part of his pre-indictment delay claim. Not so. A statute of limitations claim is analytically distinct from a due process undue delay claim. If the statute of limitations has run, a person may not be prosecuted at all, whether or not he has been prejudiced by the delay; the bar is the statute and not the Due Process Clause. Hawkins never pleaded a statute of limitations bar in his Petition and new claims may not be raised in a reply. Jalowiec v. Bradshaw, 657 F.3d 293 (6th Cir. 2011), citing Tyler v. Mitchell, 416 ...

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