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Stephens v. Warden, Pickaway Correctional

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

January 8, 2020

Darrell W. Stephens, Petitioner,
v.
Warden, Pickaway Correctional, Respondent.

          ORDER

          MICHAEL R. BARRETT, JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on the Magistrate Judge's Substituted Report and Recommendation (“R&R”) and Supplement to the Substituted R&R that recommend that Petitioner's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. (Docs. 32, 45).

         The parties received proper notice under Rule 72(b) of the Federal Rules of Civil Procedure, including notice that the parties would waive further appeal if they failed to file objections to the Substituted R&R and Supplement to the Substituted R&R in a timely manner. (Doc. 32 at PageID 1081); (Doc. 45 at PageID 1135-36); see United States v. Walters, 638 F.2d 947, 949-950 (6th Cir. 1981). Petitioner filed timely objections. (Docs. 37, 43, 48). Respondent filed timely Responses in Opposition to Petitioner's objections. (Docs. 44, 49).

         I. STANDARD OF REVIEW

         When the assigned district court judge receives objections to a magistrate judge's R&R on a dispositive matter, the district judge “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). After that review, the district judge “may accept, reject, or modify the recommended decision; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.

         II. ANALYSIS

         As a threshold matter, Petitioner most recently filed a notice of change of address that reflects that he is no longer incarcerated and has been released from prison. (Doc. 50). Petitioner previously explained that he anticipated release from incarceration and that the Ohio Adult Parole Authority would impose a three-year term of post-release control.[1](Doc. 43 at PageID 1119). The Magistrate Judge agreed with Petitioner that release on post-release control would not render the petition moot. (Doc. 45 at PageID 1135). The Court assumes that Petitioner is, in fact, no longer incarcerated and currently subject to post-release control and finds that he remains “in custody” such that this habeas case, filed while he was incarcerated, is not moot. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Ward v. Knoblock, 738 F.2d 134, 138 (6th Cir. 1984).

         Petitioner brings this action to obtain relief from his March 1992 conviction in the Hamilton County Court of Common Pleas No. B-916529 upon his entry of guilty pleas to charges of felonious sexual penetration and rape for which he was sentenced to five to twenty-five years' incarceration. (Doc. 1 at PageID 1). He requests that the Court issue a writ of habeas corpus or order the Ohio state courts to permit him to withdraw his guilty plea pursuant to Ohio Rule of Criminal Procedure 32.1. (Id. at PageID 15). In each of his three Grounds for Relief, he asserts that the Hamilton County Sheriff's Department and Ohio state courts are improperly subjecting him to post-release control and sex offender registration duties under the requirements of the Adam Walsh Act (“AWA”), when he should only be subject to the requirements of Megan's Law. (Doc. 1).

         For background regarding Ohio's sex offender registration statutes that underlie Petitioner's arguments, and as another Magistrate Judge in this District has explained,

Ohio has had sex offender registration statutes since 1963. See State v. Hayden, 773 N.E.2d 502, 504 (Ohio 2002). . . . “[T]he law became more complex in 1996 due in large part to New Jersey's 1994 passage of 'Megan's Law.'” Ohio Rev. Code Chapter 2950 [(“Sex Offenders”)] was repealed and reenacted in 1997 to incorporate the Megan's Law registration and notification requirements for sex offenders upon their release from prison. See Id. Since 1997, the Ohio legislature has enacted amendments to Chapter 2950 by way of Senate Bill 5 in 2003 and Senate Bill 10 in 2007. See State v. Ferguson, 896 N.E.2d 110, 112 & n.1 (Ohio 2008). The Ohio Supreme Court has held that changes made to the statute prior to Senate Bill 10 may be applied retroactively to convicted sex offenders. See Ferguson, 896 N.E.2d at 119-20; State v. Cook, 700 N.E.2d 570 (Ohio 1998). However, the Ohio Supreme Court has held that unlike prior amendments, Senate Bill 10, which became effective January 1, 2008, imposes requirements based on the federal Adam Walsh Act (AWA) that are punitive and cannot be applied retroactively to a person whose crime was committed before the bill's enactment. See State v. Williams, 952 N.E.2d 1108, 1110 (Ohio 2011); see also State v. Howard, 983 N.E.2d 341, 345 (Ohio 2012) (pointing out that in light of its decision in Williams, “Ohio has, in effect, separate statutory schemes governing sex offenders depending on when they committed their underlying offense. Those who committed their offense before the effective date of the AWA are subject to the provisions of Megan's Law; those who committed their offense after the effective date of the AWA are subject to the AWA.”).

Denoma v. Kasich, No. 1:15-CV-594, 2015 WL 9906255, at *2, n.1 (S.D. Ohio Nov. 2, 2015), report and recommendation adopted, No. 1:15CV594, 2016 WL 279239 (S.D. Ohio Jan. 22, 2016).

         Turning to the facts necessary to address the Petitioner's objections, in 2004, Petitioner was classified as a sexually oriented offender under Megan's Law. State v. Stephens, 1st Dist. Hamilton No. C-040810 (Oct. 12, 2005). He appealed that classification and the Ohio First District Court of Appeals affirmed that classification. Id.

         In 2008, Petitioner was indicted in the Hamilton County Court of Common Pleas and charged with failing to register according to his registration duties as a sexually oriented offender. (Doc. 8-1 at PageID 845-46). The 2008 indictment noted that the most serious sexually oriented offense that gave rise to his duty to register was his March 1992 conviction of rape. (Id.). In January 2012, Petitioner was indicted in the Hamilton County Court of Common Pleas and charged with failing to register. (Id. at PageID 859-60). The January 2012 indictment noted Petitioner's prior conviction for failure to register in 2008 and that the most serious sexually oriented offense that gave rise to his duty to register was his March 1992 conviction of rape. (Id.) In August 2012, Petitioner was indicted in the Hamilton County Court of Common Pleas and charged with failing to register. (Id. at PageID 848-49). The August 2012 indictment noted Petitioner's prior conviction for failure to register in 2008 and that the most serious sexually oriented offense that gave rise to his duty to register was his March 1992 conviction of rape. (Id.).

         In response to the two 2012 indictments, Petitioner pleaded no contest, was convicted of failing to provide notice of an address change, failing to periodically verify his address, and failing to register as a sex offender, and was sentenced for third-degree felonies for one-year. (Id. at PageID 861, 883). Petitioner appealed those convictions and argued that the retroactive application of Megan's Law to him was unconstitutional. (Id. at PageID 861-62); (Doc. 45 at PageID 1132). In ...


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