Johnson v. Coleman

Filing 20

Opinion and Order signed by Judge James S. Gwin on 10/8/13 adopting the Report and Recommendation of the Magistrate Judge. (Related Docs. 1 , 15 , 18 , 19 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
BRIAN JOHNSON,
:
:
Petitioner,
:
:
vs.
:
:
KEVIN JONES,
:
:
Respondent.
:
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CASE NO. 1:13-CV-00582

OPINION & ORDER
[Resolving Doc. No. 1, 15, 18, 19]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Magistrate Judge Kenneth S. McHargh recommends that this Court dismiss Petitioner Brian
Johnson’s § 2254 petition because it is a mixed petition.1/ For the following reasons, the Court
ADOPTS the recommendations of Magistrate Judge McHargh and DISMISSES WITHOUT
PREJUDICE Johnson’s petition.
I. Factual and Procedural Background
The facts of this case, as found by the Ohio Court of Appeals are as follows:
On April 15, 2008, Brian and Carol Johnson gave birth to a son, N.J. On June 6,
2008, the Johnsons brought N.J. into the emergency room after noticing something
was wrong with his arm. N.J. was diagnosed with a displaced fracture of the right
humerus and twelve additional bone fractures in various stages of healing.
Brian Johnson was indicted on three counts of felonious assault: one count for May
23rd through May 30th; one count for May 31st through June 6th; and one count for
June 6th. In addition, Johnson was indicted on five counts of child endangering: two
counts covering the time period of May 23rd through May 30th; one count for May
31st through June 5th; one count for May 31st through June 6th; and one count for
June 6th.
A jury found Johnson not guilty of felonious assault for May 23rd through May 30th
and guilty of the remaining counts. The court sentenced Johnson to seven years for
each of the two felonious assaults, and six years for one of the child endangering
1/

Doc. 15.

Case No. 1:13-CV-00582
Gwin, J.
charges for May 23rd through May 31st. The court found the remaining child
endangering counts were allied offenses of similar import. The court ordered
Johnson's sentences to be served consecutively, for a total of twenty years in prison.
Johnson appealed and this Court affirmed in part, reversed in part, and remanded for
re-sentencing.
On remand the trial court conducted several hearings and ultimately sentenced
Johnson to seven years on each of the two felonious assault convictions and six
months on each of the child endangering convictions. The court found the two
felonious assaults were not allied offenses of similar import and ordered the
sentences to be served consecutively. The court further ordered the child endangering
sentences to be served consecutive to one another, but concurrent to the felonious
assault.2/
On July 29, 2013, on appeal from Petitioner Johnson’s new sentence, the court of appeals
again reversed his sentence and remanded for resentencing; specifically, the court directed the trial
court to hold a hearing on whether consecutive sentences were appropriate.3/
On March 18, 2013, Johnson filed a petition under 28 U.S.C. § 2254.4/ He asserts two
grounds for relief. First, he says that pervasive prosecutorial misconduct deprived him of his right
to a fair trial, to due process, and to a fair and reliable determination of his guilt.5/ Second, he says
that the imposition of consecutive sentences on his four convictions when the same conduct served
as the basis for each conviction violates his right to be free from double jeopardy.6/
On May 21, 2013, Respondent moved to dismiss Johnson’s petition because it contains one
exhausted and one unexhausted claim.7/ For his response, Johnson says that the Court should stay

2/

State v. Johnson, No. 12CA0050-M, 2013 WL 3944210, at *1 (Ohio Ct. App. July 29, 2013) (citation

omitted).
3/

Id. at *2-3.

4/

Doc. 1.

5/

Id. at 5.
Id. at 7.

6/
7/

Doc. 8 at 5.

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Case No. 1:13-CV-00582
Gwin, J.
his petition until he exhausts his unexhausted claim.8/ Magistrate Judge McHargh recommends that
the Court dismiss Johnson’s petition without prejudice so that he can refile it.9/ Petitioner filed a
timely objection to the Report and Recommendation.10/
II. Analysis
Before bringing a § 2254 claim in federal court, a petitioner must exhaust his available state
remedies by giving the state courts the opportunity to rule on his claims.11/ Here, Petitioner does not
dispute that his present petition is a mixed petition—a petition with both exhausted and unexhausted
claims—because the Ohio courts are still adjudicating his sentencing claim.12/ A court presented
with a mixed petition has four choices: 1) dismiss it, 2) stay it, 3) allow the exhausted claims to
proceed, or 4) adjudicate all of the claims if none have merit.13/
Johnson says that the Court should stay his petition. He says that because there is a risk that
the statute of limitations may expire on his exhausted claim while he litigates his unexhausted claim
a stay is appropriate.14/ The stay-and-abeyance option is used when dismissing a mixed petition
might cause the statute of limitations to expire on some or all of his claims.15/ But Johnson is not
in danger of having the limitations period lapse for either of his claims.

8/

Doc. 9 at 3.
Doc. 15.

9/

10/

Doc. 18. Respondent has also filed a response. Doc. 19.

11/

Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
See Doc. 18 at 1 (“Petitioner’s Petition is a mixed Petition, some claims have been exhausted in State Court
while others have no because direct review is not final”).
12/

13/

Harris v. Lafler, 553 F.3d 1028, 1031-32 (6th Cir. 2009).

14/

Doc. 18 at 4 (“If the Petitioned [sic] is dismissed and Mr. Johnson’s new sentence is concurrent and not
consecutive, the limitations period on his First Ground of Relief could expire.”); see also Pliler v. Ford, 542 U.S. 225,
230-31 (2004) (“The stay-and-abeyance procedure involves three steps: first, dismissal of any unexhausted claims from
the original mixed habeas petition; second, a stay of the remaining claims, pending exhaustion of the dismissed
unexhausted claims in state court; and third, amendment of the original petition to add the newly exhausted claims that
then relate back to the original petition.”).
15/

Pliler, 542 U.S. at 230.

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Case No. 1:13-CV-00582
Gwin, J.
In Rashad v. Lafler,16/ relying on the recent Burton v. Stewart decision,17/ the Sixth Circuit
held that the statute of limitations does not run on any habeas claim until the petitioner’s sentence
is final.18/ The court specifically rejected the idea that there are two judgments in a criminal
conviction, one for the conviction and the other for the sentence.19/ Accordingly, the statute of
limitations for Johnson’s Section 2254 petition has not begun to run on either of Johnson’s claims
because he does not have a final sentence yet.
Johnson makes three points in response to Magistrate Judge McHargh’s analysis. First, he
says that the State might argue that his sentencing claim has already been exhausted, and so the
statutory period would already have begun to run.20/ It is irrelevant when a claim became exhausted
for the purposes of the statute of limitations. The statute of limitations refers to “the date on which
the judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review.”21/ The date the judgment becomes final is the date Johnson’s sentence
becomes final.22/ Accordingly, this argument fails.
Second, Johnson says that if he is successful in his sentencing litigation, his second ground
will be moot and he “may be foreclosed from seeking relief because it will not be a mixed Petition

16/

675 F.3d 564 (6th Cir. 2012).

17/

549 U.S. 147 (2007).

18/

Rashad, 675 F.3d at 567-69 (“Rashad's judgment did not become final after his first round of direct review
because he no longer was subject to a sentence. The judgment became final upon the conclusion of direct review of the
new sentence he received at resentencing.”).
19/

Id. at 568 (“A contrary approach would require Rashad to bifurcate the claims arising from his criminal case
into distinct judgments—one related to the conviction, one related to the sentence. Yet the AEDPA statute of limitations
speaks of one ‘judgment,’ not many. And Burton tells us the ‘judgment in a criminal case means sentence.’” (citations
omitted)).
20/

Doc. 18 at 1-2.

21/

28 U.S.C. § 2244(d)(1)(A).

22/

See Rashad, 675 F.3d at 567-69.

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Case No. 1:13-CV-00582
Gwin, J.
and will be beyond the one-year statute of limitations from exhaustion of state court remedies.”23/
This argument fails for the same reason: the statute of limitations runs from the date his sentence
becomes final.
Finally, Johnson says that there is case law “to support the argument that the statute of
limitations is claim based and not anchored to a final resolution of the entire case.”24/ In support of
this argument, Johnson cites two Eleventh Circuit cases25/ and the Supreme Court case Rose v.
Lundy.26/ Rose v. Lundy does not address the question of when a judgment becomes final for habeas
purposes. And the two Eleventh Circuit cases were decided before Burton v. Stewart and Rashad
v. Lafler, which are binding precedent for this Court. Indeed, as Petitioner acknowledges,27/ the
Eleventh Circuit has said that Burton v. Stewart implies that “AEDPA’s statute of limitations begins
to run from the date both the conviction and the petitioner’s sentence become final because judgment
is based on both the conviction and the sentence.”28/
Therefore, Johnson’s grounds for relief will not become time-barred until one year after the
date his new sentence becomes final.
III. Conclusion
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of

23/

Doc. 18 at 2 (emphasis added).

24/

Id.

25/

Brooks v. Sec’y, Dep’t of Corr., 201 F. App’x 725 (11th Cir. 2006); Boone v. Sec’y Dep’t of Corr., 371 F.3d
1317 (11th Cir.), vacated by 377 F.3d 1315 (11th Cir. 2004).
26/

455 U.S. 509 (1982).

27/

See Doc. 9 at 2-3 (citing a case which “suggests that the Eleventh Circuit has since abandoned the reasoning
of its holdings in Brooks and Boone”).
28/

Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286, 1293 (11th Cir. 2007) (emphasis in original).

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Case No. 1:13-CV-00582
Gwin, J.
Magistrate Judge McHargh and DISMISSES WITHOUT PREJUDICE the petition.
IT IS SO ORDERED

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: October 8, 2013

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