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Houston v. Harris

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

January 3, 2020

RAJ HOUSTON, Petitioner,
v.
CHAE HARRIS, Warden, Warren Correctional Facility, Respondent.

          Michael R. Merz Magistrate Judge

          OPINION AND ORDER

          MICHAEL R. BARRETT UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Report and Recommendations of the Magistrate Judge (Doc. 13), Petitioner's pro se objections (Doc. 14), the Supplemental Report and Recommendations of the Magistrate Judge (Doc. 17), and Petitioner's pro se supplemental objections (Doc. 20). Having considered the filings de novo, the Court will dismiss the petition.

         I. BACKGROUND

         Petitioner was convicted after a jury trial for kidnapping, aggravated robbery, aggravated burglary, theft, and having weapons while under disability. State v. Houston, 2014-Ohio-3111, ¶ 8 (Ohio Ct. App.).[1] On the record, the trial court sentenced him to 65 and a half years in prison. Id. at ¶ 9. Petitioner's direct appeal was unsuccessful, but Ohio's First District Court of Appeals (the “First District”) did note that his sentencing judgment entry had missed a count that, per the manifest intention of the trial court, was supposed to run consecutively to the other counts. Id. at ¶ 41. It remanded the cause to the trial court for a nunc pro tunc corrected sentencing judgment entry. Id. at ¶ 42.

         Approximately a year following the decision rendered by the First District, Petitioner filed a state court habeas petition, which (Respondent concedes) tolled the federal habeas statute of limitations.[2] Immediately upon the dismissal of that petition, Petitioner filed his first federal habeas petition, which Judge Dlott ultimately dismissed without prejudice on exhaustion grounds as it related to his ineffective assistance of appellate counsel claim. (Doc. 9 at PAGEID 66). Shortly thereafter, Petitioner sought leave to file a delayed Ohio App. R. 26(B) application, which was denied in early 2017. The present petition followed in March of 2017.

         As grounds, this petition raises (1) the ineffective assistance of appellate counsel and (2) the trial court's error in imposing consecutive maximum sentences. (Doc. 1 at PAGEID 5-6). The Magistrate Judge recommended that the petition be dismissed as barred by the statute of limitations[3] and not appropriate for equitable tolling. (Doc. 13 at PAGEID 171). In his objections thereto, Petitioner first pointed to the nunc pro tunc sentencing judgment entry in the state trial court (Doc. 9, Ex. 25) and argued that the federal habeas statute of limitations reset to begin running on the date of this entry: November 23, 2016. Second, he challenged the Magistrate Judge's determination that that he had not demonstrated entitlement to equitable tolling. In his Supplemental Report and Recommendations, the Magistrate Judge distinguished the case authority offered by Petitioner to support his contention that the statute of limitations reset with the nunc pro tunc sentencing judgment entry. (Doc. 17 at PAGEID 401-03). The Magistrate Judge also concluded that the trial transcript was not required in order for Petitioner to file his Ohio App. R. 26(B) application, because it was not dispositive of his ineffective assistance of appellate counsel claim. (Id. at PAGEID 404-05).

         In his pending supplemental objections (Doc. 20), Petitioner first asks the Court to give greater weight to his cited authority in support of the proposition that the nunc pro tunc sentencing judgment entry reset the federal habeas statute of limitations: State v. Juan, 2016-Ohio-5339 (Ohio Ct. App.). He further maintains that the alleged improper service of the nunc pro tunc sentencing judgment entry has some bearing on the pending federal habeas petition. Petitioner additionally argues that the trial transcript was a prerequisite to his Ohio App. R. 26(B) application.

         For reference, the timeline of relevant events is as follows[4]:

July 16, 2014 The First District decided Petitioner's direct appeal.
December 24, 2014 Supreme Court of Ohio declined review.
March 24, 2015 Time for seeking United States Supreme Court review expired and federal habeas statute of limitations began to run.
September 16, 2015 State court habeas petition filed.
November 10, 2015 State court habeas petition dismissed and first federal habeas petition ...

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