Bronston v. D.R.C.

Filing 3

Opinion and Order signed by Judge James S. Gwin on 12/18/13. Petitioner's application to proceed in forma pauperis is granted and the petition for writ of procedendo is denied. (Related Docs. 1 , 2 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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EDWARD BRONSTON,
:
:
Petitioner,
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vs.
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:
D.R.C.
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C/O MARION CORRECTIONAL INST., :
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Respondent.
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:
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CASE NO. 1:13-CV-1526

OPINION & ORDER
[Resolving Doc. No. 1]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Pro se petitioner Edward Bronston filed this petition for a writ of procedendo against the
Ohio Department of Rehabilitation and Correction “c/o the Marion Correctional Institution.”
Bronston is incarcerated in the Marion Correctional Institution, having been convicted in 2004
of rape and kidnaping with sexual motivation. In his petition, Bronston claims that, pursuant to
a mandate from the Ohio Court of Appeals, the trial court issued a corrected judgment entry to
clarify his sexual offender registration status. That judgment entry only made the correction
required by the Court of Appeals and did not restate the fact of his conviction or the term of
imprisonment to which he was sentenced. Bronston therefore concludes that his conviction has
been overturned and he is no longer subject to a term of incarceration. He demands to be
released from prison.

Bronston also filed an Application to Proceed In Forma Pauperis (Doc. No. 2). That
Application is granted.
I. Background
Bronston pled guilty in 2004 in Cuyahoga County Court of Common Pleas Case No. CR451589 to charges of rape of a child under the age of 13 and kidnaping with sexual motivation.
He was sentenced to a total of 13 years in prison with post release control for the maximum
period allowed by Ohio Revised Code §2967.28. The trial court additionally found Bronston to
be a “sexually oriented offender” under Megan’s Law, former Ohio Revised Code § 2950.1 A
“sexually oriented offender” was required to register with the sheriff in the counties of his/her
residence, employment, and school annually for a period of ten years. This registration was not
subject to community notification, and as such, the information the offender was required to
provide to the sheriff was not shared with the public.
Bronston filed a Motion for Resentencing in 2010 claiming his sentence was void
because his journal entry of conviction did not specify the period of post release control he
would be required to serve. The trial court conducted a hearing on March 22, 2010, imposed the
original thirteen-year sentence of imprisonment, and imposed a five-year term of post release
control. The trial court then revisited Bronston’s sex offender registration status and held that
Megan’s Law no longer applied to Bronston due to the enactment of the Adam Walsh Act after
1

Ohio version of “Megan's Law” became effective July 1, 1997. See former OHIO REV. CODE
§ 2950; State v. Cook, 83 Ohio St.3d 404, 406 (1998). Megan’s Law modified existing sex offender
classifications and registration requirements, and classified those individuals convicted of sexual
offenses as either “sexually oriented offenders”, “habitual sex offenders”, or “sexual predators.”
Classification as a “sexually oriented offender” occurred by operation of law, and carried the least
restrictive registration requirements.
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his conviction.2 The court determined that under the Adam Walsh Act, Bronston’s crimes
required him to be classified as a Tier III sexual offender, the most restrictive registration. As a
Tier III sexual offender, Bronston was required to register his home and employment addresses
with the county sheriff’s office every ninety days for the remainder of his life. He was also
subject to community notification, and was prohibited from residing within 1,000 feet of a
school, preschool or day care facility.
Bronston appealed his classification as a Tier III sexual offender. The Eighth District
Court of Appeals determined that the trial court erred in reclassifying Bronston under the Adam
Walsh Act, reversed the court’s determination that Bronston was a Tier III sexual offender and
remanded the action to the trial court with an order to reinstate Bronston’s prior sex offender
classification under Megan’s Law. In compliance with this mandate, the trial court issued a
journal entry on October 14, 2011 vacating the determination that Bronston was a Tier III sex
offender, and reinstating its original finding that he is a sexually oriented offender under
Megan’s Law. That entry addressed only Bronston’s sexual offender classification and did not
restate the other portions of Bronston’s prior judgment entry, including the fact of his
conviction, or length of his sentence of imprisonment. The court issued another entry on the
same day simply stating, “case is terminated.” (Doc. No. 1-1 at 1).
Bronston concludes that because the trial court did not restate all of the elements of his

2

The Adam Walsh Act, enacted on June 30, 2007, Ohio House Bill 10, amended Ohio’s
version of Megan’s Law by restructuring the offender classification scheme and modifying
registration and community notification requirements. The Adam Walsh Act now classifies
offenders by statute as “Tier I”, “Tier II”, and “Tier III” based solely on the offense of conviction.
No consideration is given to the offender’s risk to the community or likelihood of recidivism.
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original judgment entry and stated that the “case is terminated,” his conviction was overturned
and he is no longer subject to a term of incarceration. He seeks immediate release from prison.
He indicates he cannot pursue remedies through the state courts because his case has been
terminated and he has no case to contest. He does not assert legal claims in his Petition.
II. Legal Standard
Although Bronston filed this action as a petition for a writ of procedendo, he challenges
his Ohio conviction and sentence and seeks release from prison. The exclusive vehicle for
prisoners in custody pursuant to a state court judgment who wish to challenge anything affecting
that custody is a petition for a writ of habeas corpus under 28 U.S.C. §2254. Greene v.
Tennessee Dep’t of Corrections, 265 F.3d 369, 372 (6th Cir. 2001); see James v. Walsh, 308
F.3d 162, 167 (2d Cir. 2002) (“[A] state prisoner may challenge either the imposition or the
execution of a sentence under Section 2254.”). Bronston must proceed, if at all, under 28 U.S.C.
§ 2254. Greene, 265 F.3d at 372.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which amended
28 U.S.C. § 2254, was signed into law on April 24, 1996 and applies to habeas corpus petitions
filed after that effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see Woodford v.
Garceau, 538 U.S. 202, 210 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999). The
AEDPA was enacted “to reduce delays in the execution of state and federal criminal sentences,
and ‘to further the principles of comity, finality, and federalism.’” Woodford, 538 U.S. at 206
(citing Williams v. Taylor, 529 U.S. 362, 436 (2000)). Consistent with this goal, when
reviewing an application for a writ of habeas corpus by a person in custody pursuant to the

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judgment of a state court, a determination of a factual issue made by a state court shall be
presumed to be correct. Wilkins v. Timmerman-Cooper, 512 F.3d 768, 774-76 (6th Cir. 2008).
The petitioner has the burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). A federal court, therefore, may not grant habeas
relief on any claim that was adjudicated on the merits in any state court unless the adjudication
of the claim either: “(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; or (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);
Wilkins, 512 F.3d 768, 774 -76 (6th Cir. 2008).
III. Procedural Barriers to Habeas Review
In addition, before a federal court will review the merits of a petition for a writ of habeas
corpus, a petitioner must exhaust all possible state remedies or have no remaining state
remedies. 28 U.S.C. § 2254(b) and (c); see Baldwin v. Reese, 541 U.S. 27 (2004). Exhaustion
is fulfilled once a state supreme court provides a convicted defendant a full and fair opportunity
to review his or her claims on the merits. O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.
1990).
To be properly exhausted, each claim must have been “fairly presented” to the state
courts. See e.g. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Frazier v. Huffman, 343
F.3d 780, 797 (6th Cir. 2003). Fair presentation requires that the state courts be given the

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opportunity to see both the factual and legal basis for each claim. Wagner, 581 F.3d at 414. For
the claim to be exhausted, it must be presented to the state courts as a federal constitutional
issue, not merely as an issue arising under state law. Koontz v. Glossa, 731 F.2d 365, 369 (6th
Cir. 1984). Moreover, the claim must be presented to the state courts under the same legal
theory in which it is later presented in federal court. Wong v. Money, 142 F.3d 313, 322 (6th
Cir. 1998). It cannot rest on a legal theory which is separate and distinct from the one
previously considered and rejected in state court. Id. This does not mean that the applicant
must recite “chapter and verse” of constitutional law, but the applicant is required to make a
specific showing of the alleged claim. Wagner, 581 F.3d at 414.
IV. Analysis
Bronston’s petition contains several fatal flaws. First, it does not contain any federal
claims for relief. A federal habeas court sitting in review of a state court judgment cannot
second guess a state court’s decision concerning matters of state law. Greer v. Mitchell, 264
F.3d 663, 675 (6th Cir. 2001); Gall v. Parker, 231 F.3d 265, 303 (6th Cir. 2000) (“Principles of
comity and finality equally command that a habeas court can not revisit a state court’s
interpretation of state law”). Therefore, a claim based solely on an error of state law is not
redressable through the federal habeas process. Norris v. Schotten, 146 F.3d 314, 328-29 (6th
Cir. 1998); Hutchison v. Marshall, 744 F.2d 44, 46-47 (6th Cir. 1984). Bronston’s petition
contains very few factual allegations and no legal claims. Unless Bronston asserts that his
conviction, sentence or continued incarceration violates federal constitutional law, this Court
cannot disturb a state court judgment.

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Furthermore, even if Bronston had asserted grounds for relief arising under the United
States Constitution, this Court could not address the merits of those grounds unless Bronston
first presented them to the state courts. Bronston, however, states that there is no remedy for
him to pursue because he has no criminal case to challenge. He contends his conviction and
sentence were terminated but he has not been released from prison. An inmate who claims he is
being held beyond the expiration of his sentence may seek relief under Ohio Revised Code §
2725.01, Ohio’s state habeas corpus statute. See Frazier v. Stickrath, 42 Ohio App. 3d 114,
115-16 (1988)(“The statutory language of Ohio Revised Code § 2725.01 clearly permits an
individual to petition [the State of Ohio] for a writ of habeas corpus if his maximum sentence
has expired and that individual is being held unlawfully.) An Ohio writ of habeas corpus is an
extraordinary writ which will be granted only when an individual meets the stringent criteria
under the statute and is without an adequate remedy at law. See Id. at *2 (citing Burch v. Perini,
66 Ohio St.2d 174 (1981)). While that remedy is very narrow and ultimately may prove
inapplicable to Bronston’s case, he cannot claim he is unable to exhaust his state court remedies
because his case has been terminated. Bronston must first exhaust all available state court
remedies prior to filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254.
V. Conclusion
Accordingly, Bronston’s Application to Proceed In Forma Pauperis (Doc. No. 2) is
granted, the Petition is denied and this action is dismissed without prejudice pursuant to Rule 4
of the Rules Governing Section 2254 Cases. Further, the Court CERTIFIES pursuant to 28
U.S.C. §1915(a)(3) that an appeal from this decision could not be taken in good faith, and there

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is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253; Fed.R.App.P.
22(b).
IT IS SO ORDERED.

Dated: December 18, 2013

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

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