Evans v. Bradshaw
Filing
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Memorandum Opinion and Order: The Court accepts and adopts the Report and Recommendation of Magistrate Judge Limbert. For all of the reasons stated above, as well as those stated in the Report and Recommendation of the Magistrate Judge, the pending Petition for a Writ of Habeas Corpus is hereby dismissed. Judge Patricia A. Gaughan on 11/6/12. (LC,S) re 11
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
GEORGE EVANS,
Petitioner,
vs.
MARGARET BRADSHAW, Warden,
Respondent.
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CASE NO. 1: 11 CV 379
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge Limbert (Doc. 11) recommending that the Court dismiss petitioner’s pending Petition
for a Writ of Habeas Corpus. Petitioner has filed objections to the Report and
Recommendation. For the reasons stated below, the Court accepts the Report and
Recommendation and dismisses the petition.
Standard of Review
Pursuant to Fed. R. Civ. P. 72(b), the district court reviews de novo “any part of [a]
magistrate judge’s disposition that has been properly objected to.” “The district judge may
accept, reject, or modify the recommended disposition; receive further evidence or return the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(3). “When no timely
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objection is filed, the court need only satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s
notes (citation omitted).
Background
In January 2004, the Cuyahoga County Grand Jury indicted petitioner of rape and
kidnaping. The rape charge contained a notice of prior conviction, a repeat violent offender
specification, one and three year firearm specifications, and a sexually violent predator
specification. The kidnaping charge contained a notice of prior conviction, a repeat violent
offender specification, one and three year firearm specifications, a sexually violent predator
specification, and a sexual motivation specification.
Petitioner entered a plea of not guilty to the charges and waived his right to a trial by
jury, electing to have his case tried by the court. On August 20, 2004, after a bench trial, the
trial court found petitioner guilty of rape and kidnaping with all of the specifications except
the three-year firearm specifications. Petitioner was subsequently sentenced by the court to
fourteen years to life imprisonment: one year on the firearm specifications plus three years on
the repeat violent offender specifications to be served prior to and consecutively to ten years
each on the rape and kidnaping charges, with those sentences to run concurrently with each
other due to the sexually violent predator specifications.
Petitioner appealed to the Ohio Court of Appeals. The court of appeals affirmed
petitioner’s convictions but remanded the case for re-sentencing and to vacate the firearm
specification. The court found that the sentence imposed for the repeat violent offender
specification was contrary to law because the trial court failed to make findings required by
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former Ohio Rev. Code §2929.14(D)(2)(b).1 The court also found that the trial court
committed plain error in convicting petitioner of the one-year firearm specification because
there was not enough circumstantial evidence to support the conviction. The court of appeals
vacated the entire sentence and remanded for re-sentencing.
The case was appealed to the Ohio Supreme Court, which reversed the court of
appeal’s decision to vacate petitioner’s entire sentence. After remand to the trial court,
petitioner was re-sentenced to ten years imprisonment on the kidnaping conviction, an
additional three years imprisonment pursuant to a repeat violent offender specification, and a
term of ten years to life on the rape conviction due to a sexually violent offender
specification.
Petitioner again appealed his sentence to the Ohio Court of Appeals, asserting one
assignment of error: that the “RVO enhanced sentence imposed” upon him constituted a
deprivation of his liberty without due process of law and a violation of his constitutional right
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At the time, Ohio Revised Code § 2929.14(D)(2)(b) provided:
(b) If the court imposing a prison term on a repeat violent offender imposes the
longest prison term from the range of terms authorized for the offense under
division (A) of this section, the court may impose on the offender an additional
definite prison term of one, two, three, four, five, six, seven, eight, nine, or ten
years if the court finds that both of the following apply . . .
(i) The terms so imposed are inadequate to punish the offender and protect the
public from future crime . . .
(ii) The terms so imposed are demeaning to the seriousness of the offense,
because one or more of the factors under section 2929.12 of the Revised Code
indicating that the offender’s conduct is more serious than conduct normally
constituting the offense are present, and they outweigh the applicable factors
under that section indicating that the offender’s conduct is less serious than
conduct normally constituting the offense.
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to a trial by jury. Petitioner argued that the trial court’s imposition of a prison term for the
repeat violent offender specification was in contravention of the Ohio Supreme Court’s
pronouncements in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (Ohio 2006). In Foster,
the Ohio Supreme Court held, in accordance with Apprendi v. New Jersey, 530 U.S. 466
(2000) and Blakely v. Washington, 542 U.S. 296 (2004), that statutes requiring judicial
findings prior to the imposition of maximum, non-minimum, or consecutive sentences
violated the Sixth Amendment right to a jury trial on the facts relied upon in enhancing
sentences.
The Ohio Court of Appeals, however, rejected petitioner’s appeal and held that the
trial court’s enhancement of petitioner’s sentence pursuant to Ohio’s repeat violent offender
specification was appropriate and did not violate the Sixth Amendment. The court of appeals
reasoned that the Supreme Court’s decision in Foster did not invalidate Ohio’s repeat violent
offender specification itself but only excised the portions of Ohio’s sentencing statutes that
required judicial fact-finding in order to impose an enhanced sentence.
Petitioner appealed the court of appeals’ ruling to the Ohio Supreme Court. The Ohio
Supreme Court affirmed the judgment of the court of appeals on the basis of the Ohio
Supreme Court’s subsequent decision in State v. Hunter, 123 Ohio St.3d 164, 915 N.E.2d 292
(Ohio 2009). In Hunter, the Ohio Supreme Court held that Foster did not invalidate Ohio’s
repeat violent offender specification altogether but simply “excised judicial fact-finding from
former R.C. 2929.14(D)(2).” Hunter, 123 Ohio St. at 166. Hunter held that the Sixth
Amendment rights of a defendant were not violated by an enhanced sentence. The court
reasoned that the defendant waived any possible rights he may have had to a jury trial on
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issues relating to sentence enhancements by asking for a bench trial on the issue and by
stipulating to facts supporting the specification. In addition, the court held that, even if the
defendant had not waived his right to a jury trial or stipulated to the required facts, the trial
court did not violate the defendant’s Sixth Amendment rights in designating the defendant as
a repeat violent offender because the facts required to support the sentence could be
determined from the “judicial record” and did not involve unconstitutional judicial factfinding. The court held: “[W]hen designating an offender as a repeat violent offender
pursuant to former R.C. 2929.01(DD), a trial court does not violate the Sixth Amendment by
considering relevant information about the offender’s prior conviction that is part of the
judicial record.” Id. at 172.
Discussion
Petitioner asserts a single claim in his habeas petition: that he “was denied his Sixth
Amendment right to trial by jury when he was sentenced to three years on the basis of Ohio’s
Repeat Violent Offender Statute, which provides for punishment on the basis of judicial
findings that exceeds that available on the basis of a jury’s verdict.” (Pet. at 4.)
The Magistrate Judge recommends that the Court deny the petition. First, the
Magistrate Judge asserts that
as in Hunter, Petitioner waived his right to trial by jury and consented to have
his case tried by the court. He also stipulated to his prior conviction, although
he later asserted on appeal that counsel was ineffective in making such a
stipulation. Nevertheless, issues of waiver and stipulation arise and the Court
could find that Petitioner waived his Apprendi/Blakely rights by consenting to
a trial to the court and stipulating to his prior convictions.
(R&R at 17.)
Further, the Magistrate Judge recommends that even if the Court does not find
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“waiver and/or stipulation” to bar petitioner’s claim, the Court should find that the Ohio
Supreme Court’s decision, which relied on Hunter in affirming petitioner’s re-sentencing, is
not contrary to or involve an unreasonable application of federal law.
Petitioner objects to the Report and Recommendation, contending that Hunter is
contrary to and constitutes an unreasonable application of Apprendi and Blakely. In support
of this position, petitioner makes the same arguments in his objections as he made before the
Magistrate Judge.
The Court accepts the recommendation of the Magistrate Judge and dismisses the
petition. The Magistrate Judge considered all of petitioner’s arguments and correctly found
that petitioner’s Sixth Amendment rights were not violated. The Court agrees with the
reasoning and conclusion of the Magistrate Judge that the Ohio Supreme Court’s application
of Hunter in the case was not contrary to and did not involve an unreasonable application of
federal law. As in Hunter, petitioner consented to have his case tried by the court and
stipulated to a prior conviction. Further, Hunter demonstrates that petitioner’s enhanced
sentence for being a repeat violent offender was not the result of constitutionally improper
judicial fact-finding. Where the basis for a federal habeas claim has been previously
adjudicated by the state courts, the Antiterrorism and Effective Death Penalty Act of 1996
provides that the writ shall not issue unless the state decision “was contrary to, or involved an
unreasonable application of, clearly established federal law as determined by the Supreme
Court of the United States.” 28 U.S.C. §2254(d)(1). A writ of habeas corpus is not
warranted here as the Ohio Supreme Court reasonably determined that petitioner’s
constitutional rights were not violated by petitioner’s enhanced sentence.
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Conclusion
The Court accepts and adopts the Report and Recommendation of Magistrate Judge
Limbert. For all of the reasons stated above, as well as those stated in the Report and
Recommendation of the Magistrate Judge, the pending Petition for a Writ of Habeas Corpus
is hereby dismissed.
IT IS SO ORDERED.
Dated: 11/6/12
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
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