United States District Court, N.D. Ohio, Western Division
MEMORANDUM OPINION AND ORDER
Jeffrey J. Helmick United States District Judge.
Michael Williamson seeks a writ of habeas corpus under 28
U.S.C. § 2254, concerning his conviction on charges of
rape of a minor in the Cuyahoga County, Ohio Court of Common
Pleas. (Doc. No. 1). Magistrate Judge Kathleen B. Burke
reviewed the petition as well as the related briefing
pursuant to Local Rule 72.2(b)(2) and recommends I dismiss
the petition in part and deny it in part. (Doc. No. 34).
Judge Burke also recommends I deny Williamson's motion
for a stay. (Doc. No. 8). Williamson has filed objections to
Judge Burke's Report and Recommendation. (Doc. No. 41).
also has filed three motions to amend his petition, (Doc. No.
37; Doc. No. 38; Doc. No. 43), as well as a motion for the
appointment of counsel. (Doc. No. 42). The briefing on those
motions is complete. For the reasons stated below, I overrule
Williamson's objections, adopt Judge Burke's Report
and Recommendation, and deny Williamson's motions to
amend and for counsel.
December 21, 2001, a Cuyahoga County, Ohio jury found
Williamson guilty of twelve counts of rape of a minor. He
received 12 consecutive life sentences. In March 2004,
Williamson filed a pro se habeas petition in the
United States District Court for the Northern District of
Ohio, challenging his conviction on the alleged grounds of
prosecutorial misconduct, ineffective assistance of counsel,
and failure to disclose evidence. That petition was denied.
Williamson's appeal to the Sixth Circuit Court of Appeals
and his petition to the Supreme Court of the United States
both were unsuccessful.
2012, Williamson filed a motion to correct his sentence,
claiming the trial court had committed an error in the manner
in which it imposed a term of post-release control. The trial
court denied the motion and Williamson appealed. In August
2013, the Eighth District Court of Appeals rejected some of
Williamson's assignments of error, but concluded the
sentencing entry failed to include a proper notification of
post-release control and remanded the case to the trial court
to correct the omission with a nunc pro tunc judgment entry.
(Doc. No. 13-1 at 384). Williamson appealed that decision to
the Supreme Court of Ohio.
that appeal was pending, the trial court issued a corrected
journal entry on September 27, 2013, pursuant to the Eighth
District's remand order. Williamson also appealed that
entry, claiming the nunc pro tunc journal entry was improper
because the trial court had not imposed post-release control
during the initial sentencing hearing.
Supreme Court of Ohio declined to accept jurisdiction of
Williamson's appeal of the Eighth District's August
2013 decision on December 24, 2013. In February 2014, while
Williamson's appeal of the September 2013 nunc pro tunc
entry was pending, the trial court held a resentencing
hearing for the purpose of meeting the statutory requirements
for imposition of a term of post-release control. Williamson,
through appointed counsel, appealed the February 2014
resentencing hearing on March 14, 2014.
September 11, 2014, the Eighth District issued an opinion
concerning both the September 2013 nunc pro tunc entry and
the February 2014 resentencing hearing. It concluded the nunc
pro tunc remand was improper because a review of the
sentencing transcript showed the trial court had not
initially advised Williamson about post-release control, and
that the trial court did not have jurisdiction to hold the
2014 resentencing hearing because the September 2013 entry
was on appeal at the time of the 2014 resentencing hearing.
(Doc. No. 13-1 at 492-94).
November 6, 2014, Williamson again appeared with appointed
counsel for a resentencing hearing, limited to the imposition
of post-release control. Williamson appealed, but his appeal
was unsuccessful. After filing a variety of other state court
motions, Williamson filed his present application for a writ
of habeas corpus on February 28, 2018.
does not object to Judge Burke's recitation of the
factual and procedural history of Williamson's case, and
I adopt those sections of the Report and Recommendation in
full. (Doc. No. 34 at 2-19).
magistrate judge has filed a report and recommendation, a
party to the litigation may “serve and file written
objections” to the magistrate judge's proposed
findings and recommendations, within 14 days of being served
with a copy. 28 U.S.C. § 636. Written objections
“provide the district court with the opportunity to
consider the specific contentions of the parties and to
correct any errors immediately . . . [and] to focus attention
on those issues - factual and legal - that are at the heart
of the parties' dispute.” Kelly v.
Withrow, 25 F.3d 363, 365 (6th Cir. 1994) (quoting
United States v. Walters, 638 F.3d 947, 949-50 (6th
Cir. 1981) and Thomas v. Arn, 474 U.S. 140, 147
(1985)). A district court must conduct a de novo
review only of the portions of the magistrate judge's
findings and recommendations to which a party has made a
specific objection. 28 U.S.C. § 636(b)(1)(C);
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) prohibits the issuance of a writ of
habeas corpus “with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.”
28 U.S.C. § 2254(d). “The prisoner bears the
burden of rebutting the state court's factual findings
‘by clear and convincing evidence.'” Burt
v. Titlow, 571 U.S. 12, 18 (2013) (quoting 28 U.S.C.
does not clearly or consistently identify or describe his
grounds for relief in his petition or his briefing.
Respondent proposed a summary and numbering system for his
claims, which Judge Burke adopted and to which Williamson
does not object. I will adopt the same categorization of
GROUND ONE: Special First Assignment of
Error and Grounds for Petition: Remand to the trial Court is
Mandated Under the Federal Constitution for a
constitutionally proper hearing on, and issuance of and for,
a judgment of conviction and sentence, from which petitioner
must be given his constitutionally mandated rights under the
Constitution of the United States, of ab initio appeal and
collateral attack on that judgment pursuant to, inasmuch as
they are not in violation of that mandate, the laws of the
State of Ohio.
Doc. 1, p. 8; Doc. 1-1, pp. 2, 19.
GROUND TWO: Special Second Assignment of
Error and Grounds for Petition: Each of the other grounds for
this Petition call for the effectuation of an remedy,
Williamson asserts, by order and judgment of this Court, of
the reversal of the T.C. judgment of 11.6.2014 (and its
journal entry of 11.6.2014), and Williamson's remand to
the trial court at a position in the state in which
Williamson has yet to receive an effective, full and
“real” judgment of conviction and sentence.
The courts of Ohio, however, pursuant to Fischer,
supra, hold that the 11.6.2014 sentence-only
“judgment” was a valid constitutionally permitted
judgment[.] If this is so, Williamson here argues: (1)
[another resentencing would violate] the due process clauses,
and/or the prohibition against cruel and unusual punishment
clause (incorporated into the due process clause of the 14
Amendment). . . .
Argued in the alternative, since the Ohio appellate courts
will not entertain a further appeal directly from the 2002
“conviction” portion of the judgment because they
would invoke a state collateral estoppel rule/which
contradicts the holding of Stansell, supra, . . .
grounds, or claims Williamson makes in his petition stemming
directly from the 2002 conviction/sentence new, or not are,
and should be deemed, exhausted for § 2254 purposes.
Doc. 1, pp. 12-13; Doc. 1-1, pp. 2, 19.
GROUND THREE: Prosecutorial Misconduct.
Supporting Facts: A trial court commits
plain error by permitting the prosecutor (1) to elicit
inadmissible, irrelevant and highly prejudicial hearsay
testimony, (2) to cross-examine defense witnesses'
regarding the truth of additional inadmissible, irrelevant
and highly prejudicial hearsay statements not in evidence,
and (3) to argue the truth of further irrelevant,
inadmissible and highly prejudicial hearsay statement not in
evidence to the jury in closing arguments.
GROUND FOUR: Ineffective Assistance of
Supporting Facts: A criminal defendant is
denied the effective assistance of counsel where counsel
failed to enter rudimentary objections and grossly mishandled
an exculpatory witness by failing to offer his testimony,
failing to adequately proffer that his testimony would have
been that he coached the alleged victim's accusations,
and failing to file a motion for new trial based upon this
exculpatory witness's more detailed post-verdict
GROUND FIVE: Withholding evidence.
Supporting Facts: On April 20, 2001,
appellant was arrested, during the arrest, officers removed a
blanket from appellant's home saying that appellant's
DNA was on it. Appellant was ordered to take a DNA test.
During the trial, this item that was taken from
appellant's home was never entered in as evidence. If
this item would have been at trial, it would of showed that
the wrong person was being charged. Because of
prosecution's and defense counsel's multiple
instances of misconduct, both prosecutor and defense counsel
failed to protect appellant's right to seek dire[ct]
appellant's review of the inadmissibility of this item
which was taken from appellant's home. This fell well
below an objective standard of reasonableness.
Doc. 1, p. 33; Doc. 1-1, p. 2.
GROUND SIX: Habeas Grounds A and B:
Appointed appellate counsel Sweeney made one
‘maybe' claim in his Anders brief, that Williamson
may have been improperly advised on his state PRC
right/obligation. . . . Williamson had a right . . . to file
his own brief. . . . Williamson never was delivered the
notice. . . .
GROUND SEVEN: Habeas Ground C: Direct Appeal
Anders Brief counsel Sweeney provided ineffective appellate
counsel in failing to raise the 11.6.2014 trial court's
error in failing to impose a “Judgment” passing
constitutional muster at hearing, and the same, in writing
thereafter in a judgment (journal) entry. Constitutionally
speaking, it was inherently ineffective assistance for
appellate counsel not to even raise an underlying argument of
lack of jurisdiction, and ineffectiveness of 11.6.2014
counsel for not objecting to lack of jurisdiction. . . .
Failure to raise a dispositive motion causing a lesser
sentence constitutes ineffective assistance of appellate
counsel. . . .
GROUND EIGHT: Habeas Ground D: Direct Appeal
Anders brief counsel Sweeney provided ineffective assistance
of counsel in failing to raise the 11.6.2014 trial
court's harmful error in failing to grant Williamson
leave to alloc[u]te.
GROUND NINE: Habeas Ground E: (A) The
indictment under which Williamson was convicted was
unconstitutionally void for duplicitousness [sic]. Anders
Appellate counsel Sweeney was ineffective for failing to
raise lack of jurisdiction to proceed at all on 11.6.2014
because the indictment was duplicitous [sic] or otherwise in
violation of the cruel and unusual, double jeopardy and due
process clauses. . . . (B) It was obvious this indictment was
carbon-copy to anyone reading it. . . .
GROUND TEN: Habeas Ground F: Williamson is
being denied finality of sentencing under the due process,
double jeopardy, and cruel and unusual punishment clauses, in
these continuing “resentencings” caused by trial
court error or malice.
GROUND ELEVEN: Habeas Ground G: This is a
grounds based upon Williamson's underlying claim that,
the “allied” offense notion of double jeopardy
codified in the O.R.C. (State v. Ruff, 143 Oh. St.
3d 114, 117-118 (2015)) required that Williamson be sentenced
for only one offense of rape, not twelve; or that the
sentences should have run concurrently.
Doc. 1-1, pp. 2, 21, 24-25, 28, 30-31, 32.
GROUND TWELVE: Habeas Ground 1: Given the
Ohio trial court's previous history of judicial
vindictiveness against this Defendant and others similarly
situated, coupled with the trial court's failure to
provide substantive Findings of Fact and Conclusion of Law in
its JE denial of Williamson's PCRP, the 5th and 14th
Amendments' due process clauses mandate the vacation of
the underlying criminal convictions, and/or sentences.
GROUND THIRTEEN: Habeas Ground 2: The trial
court erred in denying Petitioner's PCRP motion for
appointment of counsel.
Claim No. 1: Re-Sentencing Hearing Counsel
(11.6.2014) failed to raise the lack of the trial court's
jurisdiction to enter judgment on conviction of the 12 counts
or to sentence or resentence the Defendant to one
life-sentence per count because of a violation of the
Defendant's federal and state constitutional rights to
due process of law and a fair trial and against double
jeopardy, because all the counts of the indictment, as well
as the descriptions in the Bill of Particulars were,
duplicative, U.S. v. Foster, 765 F.3d 610 (6th Cir.
2014), HN. 1; and, accordingly, void.
Claim 2: Re-Sentencing Counsel (11.6.2014) failed to
raise the lack of the trial court's jurisdiction to
resentence unless it actually did vacate the previous
sentencing and resentence in full pursuant to the order of
the Cuyahoga County Court of Appeals in State v.
Williamson, No. CA-102320....
Claim 3: Sentencing Counsel failed to raise the lack
of the trial court's jurisdiction to resentence the
Defendant to add additional punishment, post-release control,
or 5 years of post-release control, upon a conviction for
which the defendant had already received punishment, and for
which he had already served prison time, with jail-time
credit, as of 11.6.2014, of 13 years, because the imposition
of the additional punishment, was, and is, a violation of the
double jeopardy and due process of law clauses of the U.S.
and Ohio Constitutions. See, Hernandez v. Kelly, 108
Ohio St.3d 395 (2006).
Claim 4: Sentencing Counsel failed to raise the
voidness of resentencing, or sentencing, the Defendant to 12
life-sentences because of the trial court's
vindictiveness caused by trial counsel's ineffectiveness
in promising the Defendant a plea agreement (see, infra) not
realizable, causing the Defendant to exercise his right to go
to trial and to confront the witnesses against the Defendant,
especially the victim, called as a prosecution, not a defense
witness at trial, in violation of the Defendant's rights
to Ohio and federal due process of law.
Claim 5: Sentencing Counsel failed to raise the
voidness of the resentencing hearing because the Defendant
was being brought back, and had been brought back previously,
from his places of incarceration all over Ohio to the trial
court for repetitive resentencings in disregard of due
process of the law, and against the prohibition of cruel and
Claim 6: Re-Sentencing Counsel (11.6.2014 Hearing)
offered the Defendant a new plea deal to a limited reasonable
term of years, and then told him inside the courtroom he was
not going to get it. This so mentally deranged the Defendant
he was not capable of allocuting intelligibly, or
understanding the nature of the sentencing hearing to be able
to effectively assist his counsel. See Lafler v
Cooper, 132 S.Ct. 1376 (2012).
Claim 7: The trial court lacked subject matter
jurisdiction, a federal constitutional right, to enter
judgment on conviction of the 12 counts or to sentence or
resentence the Defendant to one life-sentence per count
because of a violation of the Defendant's federal
constitutional rights to due process of law, and a fair
trial, and against double jeopardy because all the counts of
the indictment, as well as the description in the Bill of
Particulars, were duplicative. See, Foster supra. The
indictment itself, therefore, was void.
Claim 8: This Court lacked subject matter
jurisdiction, a federal constitutional right, to resentence
the Defendant, unless it actually did vacate all previous
sentences, and resentenced the Defendant, in full, which it
Claim 9: The Trial Court lacked subject matter
jurisdiction, a federal constitutional right, to add an
additional punishment of 5 years mandatory PRC after the
defendant had already received punishment and had served 13
years of his sentence because such a resentencing was in
violation of the double jeopardy and due process clause of
the U.S. Constitution, Foster, supra, HN. 1.
Claim 10: The Trial Court lacked subject matter
jurisdiction to sentence the Defendant to 12 consecutive life
sentences plus $240, 000.00 in fines, because Defendant went
to trial, a right he had under the 5th and 6th Amendments. .
Claim 11: The Trial Court lacked subject matter
jurisdiction to re-sentence the Defendant because the
Defendant was being brought back to the common pleas court
repetitive times for known-to-be-violative-of-due-process
sentencings, in disregard of his federal and Ohio
constitutional rights to due process of law and against cruel
and unusual punishment, see, Hernandez v. Kelly,
Claim 12: The trial court lacked subject matter
jurisdiction to resentence the Defendant when it
affirmatively denied him his Ohio and federal due process
right of allocution at sentencing, and his concomitant right
under R. Crim P. 32. ...