Carnail v. Bradshaw

Filing 53

Opinion & Order signed by Judge James S. Gwin on 6/11/19 sustaining in part and overruling in part respondent's objection to Magistrate Judge William H. Baughman, Jr.'s order granting petitioner's motion to file a petition for habeas corpus. (Related Doc. 51 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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E’YEN CARNAIL,
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Petitioner,
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vs.
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MARGARET BRADSHAW, Warden
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Respondent.
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CASE NO. 1:12-CV-1042

OPINION & ORDER
[Resolving Doc. 51]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Respondent Warden Margaret Bradshaw objects to Magistrate Judge William H.
Baughman’s October 3, 2018 order granting Petitioner E’Yen Carnail’s motion to file a
petition for habeas corpus.
For the following reasons, the Court SUSTAINS IN PART and OVERRULES IN PART
Respondent’s objection.
I.

Background

In November 1999, Petitioner Carnail plead guilty to two rape counts in state court.
He was sentenced to two consecutive life terms, with the possibility of parole after ten
years.1 On July 22, 2002, he filed a petition for habeas corpus under 28 U.S.C. § 2254,
raising seven claims for relief. The Court denied his petition.2
On June 16, 2010, the Supreme Court of Ohio ordered the trial court to resentence
Petitioner. Because Carnail’s original sentencing judge failed to include a five-year post-

1

Doc. 27.

2

Id.

Case No. 1:12-cv-1042
Gwin, J.
release control period, the Ohio Supreme Court found that his original sentence was void.3
The trial court subsequently resentenced Carnail, adding a post-release control period to
his sentence.4
On April 12, 2012, Carnail, proceeding pro se, petitioned for habeas relief a second
time.5 This time, Carnail only raised one ground for relief—that his guilty plea was not
knowingly, intelligently, and voluntarily made.6 On January 16, 2015, the Court adopted
Magistrate Judge Baughman’s recommendation to transfer the petition to the Sixth Circuit
for consideration as a successive opinion.7 Petitioner appealed.
Before the Sixth Circuit, Petitioner argued that his petition was not actually a second
or successive petition because his resentencing was a new judgment, making his second
post-resentencing petition an original one. On June 29, 2016, the Sixth Circuit rejected
Petitioner’s argument, holding that the addition of post-supervision release to his sentence
did not result in a new judgment.8
On July 1, 2016, two days after it denied Petitioner’s motion, the Sixth Circuit
issued its opinion in In re Stansell.9 Considering nearly identical facts, the Stansell panel
adopted the position that Carnail’s panel had rejected two days earlier. The Stansell panel
held that the imposition of post-release control on resentencing “created a new judgment
for purposes of second or successive assessment.”10 Carnail submitted a petition to the

3

State ex rel. Carnail v. McCormick, 931 N.E.2d 110, 117 (Ohio 2010).

4

Doc. 27.
Doc. 1.

5
6

Id.

7

Doc. 19.
Doc. 21.
9
828 F.3d 412 (6th Cir. 2016).
10
Id. at 418.
8

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Gwin, J.
Sixth Circuit to rehear his case in light of Stansell, but the Clerk of Court declined to file his
rehearing petition under 28 U.S.C. §2244(b)(3)(E) and In re King.11
On September 7, 2016, Petitioner moved this Court for relief from judgment under
Federal Rule of Civil Procedure 60(b)(6), arguing that the discrepancy between the Sixth
Circuit’s decisions in his own case and Stansell justified setting aside the judgment.12 The
Court denied his motion,13 and Petitioner appealed.14
On April 16, 2018, the Sixth Circuit held that the Court did not have jurisdiction to
consider Carnail’s Rule 60(b) motion.15 However, it also found that the Sixth Circuit clerk
erred by refusing to file his petition for rehearing. Given “the unusual and extraordinary
circumstances present here—both our intervening decision in In re Stansell issued just two
days after we denied Carnail permission to file a second or successive habeas petition and
the fact that Carnail was erroneously prevented from petitioning for rehearing on this very
issue,” the Sixth Circuit panel sua sponte chose to rehear Carnail’s challenge to its
determination that his petition was successive. The panel vacated the Court’s Rule 60(b)
denial and remanded “the matter with instructions to consider Carnail’s petition with as an
initial petition.”16
On remand before Magistrate Judge Baughman, Carnail (now represented by
appointed counsel) moved for leave to file a writ of habeas corpus after defendant review.17

11

190 F.3d 479 (6th Cir. 1999) (holding that 28 U.S.C. §2244(b)(3)(E) prohibits a habeas petitioner from
petitioning for rehearing from a denial of an authorization to file a second or successive habeas petition).
12
Doc. 22.
13
Doc. 27.
14
Doc. 35.
15
Id. at 7.
16
Id. at 8.
17
Doc. 48.

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Gwin, J.
Ohio opposed the request for leave.18 On September 27, 2018, Petitioner filed a petition
arguing nine grounds for relief.19
On October 3, 2018, Magistrate Judge Baughman made a marginal judgment entry
granting Petitioner Carnail’s motion to file a writ of habeas corpus, stating that it “is
deemed filed” as of September 27, 2018. Respondent Bradshaw objects to this order.20
II.

Discussion

The Court’s review of non-dispositive magistrate judge orders is limited. The Court
only overturns the magistrate’s determination where it is “clearly erroneous or contrary to
law.”21
Respondent Bradshaw argues that the Magistrate Judge’s order filing Carnail’s
petition was mistaken, because the September 27, 2018 petition raises eight new grounds
for relief that were not included in his 2012 petition. Respondent contends that adding
these eight grounds is a petition amendment, and that this amendment violates the oneyear statute of limitations for habeas cases.22 Petitioner Carnail responds that because the
Sixth Circuit remanded the matter with instructions to consider Carnail’s petition as an
original habeas petition, he can now raise the grounds and arguments in his current
petition.

18

Doc. 49.
Doc. 50.
20
Doc. 51. The objection is captioned as "Respondent’s Appeal From (Objections to) the Magistrate Judge’s
Order Granting Motion for Discovery (Fed. R. Civ. P. 72(A)).” This is puzzling, because the Magistrate Judge
did not grant a motion for discovery.
21
Fed. R. Civ. P. 72(a).
22
See 28 U.S.C. § 2244(d)(1)(A) (habeas petition must be brought within one year of “the date on which
the judgment became final by the conclusion of direct review or the expiration of the time for seeking such
review”).
19

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Essentially, the parties dispute the effect of the Sixth Circuit’s remand—Petitioner
Carnail says that it wipes the slate clean, and Respondent Bradshaw says that it only opens
the door for the Court to consider the post-resentencing petition as originally filed.
The Court agrees with Respondent. The Sixth Circuit stated that it “remand[s] the
matter with instruction to consider Carnail’s petition as an initial habeas petition.” 23 The
petition referenced in this command is Carnail’s post-resentencing petition, because that is
the petition the Sixth Circuit erroneously deemed second or successive. This order did not,
by its terms, permit Carnail to restart the habeas process afresh.
Thus, the Court construes Carnail’s motion to file a new petition as a motion to
amend his petition. Because the Antiterrorism and Effective Death Penalty Act’s one-year
limitation period has long passed, Carnail can only add new grounds if the amendments
“relate back” under Federal Rule of Civil Procedure 15(c).24
In Mayle v. Felix, the Supreme Court held that the Act’s one-year statute of
limitations narrows Rule 15(c)’s relation-back doctrine.25 The court held that an amended
petition “does not relate back (and thereby escape AEDPA's one-year time limit) when it
asserts a new ground for relief supported by facts that differ in both time and type from
those the original pleading set forth.”26 The court further explained that “relation back
depends on the existence of a common core of operative facts uniting the original and
newly asserted claims.”27

23

Doc. 35 at 8.
See Fed. R. Civ. P. 15(c).
25
545 U.S. 644 (2005).
26
Id. at 650.
27
Id. at 659 (internal quotation marks omitted).
24

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Gwin, J.
Here, the sole ground for relief stated in Carnail’s 2012 post-resentencing petition is
that his guilty plea was not knowingly, intelligently, and voluntarily made. The facts cited
in support are “[p]rior to the trial court correcting the Petitioner’s initial void sentence, he
moved to withdraw his plea as a pre-sentence motion and the trial court denied the
motion.”28
The Court finds that two claims properly relate back to this initial ground. In part of
Ground Two, Carnail claims his trial attorney rendered constitutionally ineffective
assistance by “failing to properly inform petitioner of the consequences of his guilty plea.” 29
And in Ground Eight, Carnail claims that his attorney was ineffective because of “trial
counsel’s coercive tactics to extract a guilty plea from petitioner.”30
The relevant facts to these claims—presumably, what Carnail’s trial counsel told him
about the consequences of his plea and whatever “tactics” he allegedly used to arguably
coerce Carnail into pleading guilty—are the same type of facts that are relevant to whether
his plea was knowingly, intelligently, and voluntarily made. Magistrate Judge Baughman’s
order was not clearly erroneous or contrary to law with respect to these two claims.
However, the other grounds asserted in Carnail’s new petition do not relate back.
They challenge the trial court’s subject-matter jurisdiction,31 the trial court’s finding that
Petitioner was a sexual predator under O.R.C. § 2950.01,32 and his trial counsel’s

28

Doc. 1 at 4.
Doc. 50 at 17. The remainder of Ground 2 challenges his counsel’s effectiveness on the ground that he
allowed Petitioner Carnail to stipulate to being a “sexual predator” under Ohio Revised Code § 2950.09.
This claim does not relate back.
30
Id. at 19.
31
Ground Three.
32
Ground Four.
29

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performance in matters unrelated to Petitioner’s choice to plead guilty.33 The Court finds
that Magistrate Judge Baughman’s order was contrary to law as to these new grounds for
relief.
III.

Conclusion

For the foregoing reasons, the Court SUSTAINS IN PART and OVERRULES IN PART
Respondent’s objection.
IT IS SO ORDERED.

s/

Dated: June 11, 2019

James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

33

Ground Five claims that Carnail’s counsel was ineffective because he allowed Carnail to stipulate to being
a sexual predator. Ground Six claims that his counsel was ineffective because he failed to produce certain
witnesses on Carnail’s behalf. Ground Nine claims that the Ohio Court of Appeals erred by not finding that
his trial counsel was ineffective.

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