Dukles v. Chuvalas
Memorandum of Opinion and Order adopting Report and Recommendation re #22 dismissing #4 Petition for Writ of Habeas Corpus (2254). Judge Christopher A. Boyko on 8/10/2017. (R,D) Modified on 8/11/2017 (S,HR).
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
RICHARD CHUVALAS, Warden,
CASE NO. 1:15CV2164
JUDGE CHRISTOPHER A. BOYKO
MEMORANDUM OF OPINION
CHRISTOPHER A. BOYKO, J:
This matter comes before the Court on Petitioner Marc Dukles’ Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF #4). For
the following reasons, the Court accepts and adopts the Magistrate Judge’s Report and
Recommendation and dismisses Petitioner’s Petition.
The following is a factual synopsis of Petitioner’s claims. The Magistrate Judge’s
Report and Recommendation, adopted and incorporated, provides a more complete and
detailed discussion of the facts.
On December 7, 2011, the Medina County Grand Jury indicted Petitioner on two
counts of Felonious Assault and one count of Carrying a Concealed Weapon. At
arraignment Petitioner attempted to enter a plea of “once in jeopardy” asserting that his
post-release control violation hearing from a previous conviction regarding this incident
placed him in double jeopardy. Petitioner was found not to be in violation of his postrelease control. The trial court made note of Petitioner’s request to plead that way and
also entered a plea of not guilty on his behalf. Petitioner waived his right to a trial by
jury. The trial to the court began on March 26, 2012, and continued on June 15, 2012,
and August 2, 2012. After the parties had presented their evidence, the trial court
ordered Petitioner to file a Motion for Acquittal pursuant to Ohio Criminal Procedure
Rule 29. Petitioner filed a Motion for Acquittal on August 14, 2012.
The court directed a verdict of acquittal on Count Two and then later issued a
written verdict of guilty on the remaining counts, but the journal entry incorrectly stated
guilty on Counts Two and Three instead of Counts One and Three. The court corrected
this by a nunc pro tunc entry on November 14, 2012. On November 15, 2012,
Petitioner was sentenced to six years imprisonment on Count One and one year on
Count Three to be served concurrently for an aggregate sentence of six years.
Petitioner filed a timely Notice of Appeal in the Ohio Court of Appeals. On
December 2, 2013, the Court of Appeals affirmed the Judgment of the trial court.
Petitioner filed a Notice of Appeal to the Ohio Supreme Court. The Supreme Court
declined jurisdiction over the Appeal on April 23, 2014. Petitioner filed a Motion for
Reconsideration, which was denied. On July 22, 2014, Petitioner filed a Petition for Writ
of Certiorari in the United States Supreme Court. The Supreme Court denied the
Petition on October 20, 2014. Petitioner filed a Motion for Rehearing on November 10,
2014, which was denied on January 28, 2015.
Petitioner filed the instant Petition on October 20, 2015, asserting five grounds
for relief, but withdrew Grounds Four and Five in his Traverse. The remaining three
GROUND ONE: The Medina County Court of Common Pleas violated the
Double Jeopardy Clause of the Ohio and U.S. Constitutions by proceeding
to trial after I had already been placed in jeopardy and acquitted of the
same incident, contrary to U.S. Supreme Court decisions.
GROUND TWO: The Medina County Court of Common Pleas was
without jurisdiction to proceed to trial without first addressing and
disposing of the plea it accepted of “once in jeopardy.”
GROUND THREE: The Medina County Court of Common Pleas was
without jurisdiction to vacate its own valid final judgment of acquittal,
violating the Double Jeopardy Clauses of the Ohio and U.S. Constitutions.
On November 3, 2015, the Court referred Petitioner’s Petition to the
Magistrate Judge for a Report and Recommendation. The Magistrate Judge issued his
Report and Recommendation on July 5, 2017. On July 20, 2017 Petitioner filed an
Objection to the Magistrate’s Report and Recommendation.
STANDARD OF REVIEW
When a federal habeas claim has been adjudicated by the state courts, 28
U.S.C. § 2254(d)(1) provides 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.” Further, a federal court may
grant habeas relief if the state court arrives at a decision opposite to that reached by the
Supreme Court of the United States on a question of law, or if the state court decides a
case differently than did the Supreme Court on a set of materially indistinguishable
facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). The appropriate measure of
whether or not a state court decision unreasonably applied clearly established federal
law is whether that state adjudication was “objectively unreasonable” and not merely
erroneous or incorrect. Williams, 529 U.S. at 409-411.
Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are
presumed correct, rebuttable only by clear and convincing evidence to the contrary.
McAdoo v. Elo, 365 F. 3d 487, 493-494 (6th Cir. 2004). Finally, Rule 8(b)(4) of the
Rules Governing §2254 states:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the
court may accept, reject, or modify in whole or in part any
findings or recommendations made by the magistrate.
This case is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337
(1997). The Act “recognizes a foundational principle of our federal system: State courts
are adequate forums for the vindication of federal rights.” Burt v. Titlow, 134 S. Ct. 10,
15 (2013). It therefore “erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court.” Id.
In Ground One, Petitioner argues that the trial court violated the Double Jeopardy
Clause of the Fifth Amendment. Petitioner contends that when the Ohio Adult Parole
Authority (“OAPA”) conducted a hearing regarding the incident with the victim from this
case and found that he did not violate the conditions of the post-release control imposed
in a prior criminal case, jeopardy attached. The Court of Appeals addressed this issue.
The Magistrate Judge thoroughly reviewed the record of the Court of Appeals
finding and points to State v. Martello, 97 Ohio St.3d 398, 2002–Ohio–6661, syllabus.
Accord State v. Fairley, 9th Dist. Lorain No. 00CA007675, 2001 WL 324376, *1 (Apr. 4,
2001) (“[B]ecause a post-release control sanction is not a criminal punishment, the
Double Jeopardy Clause does not prohibit a subsequent prosecution * * * based on the
same conduct.”) The Court of Appeals concluded that a post-release control violation
proceeding is not a criminal prosecution and that the State was not barred from
prosecuting Petitioner simply because the OAPA found that he did not violate the
conditions of his post-release control.
The Magistrate Judge concluded that Supreme Court precedent aligns with Ohio
law, as cited by the Court of Appeals, that proceedings regarding violations of
supervised release do not implicate the Double Jeopardy Clause and bar subsequent
prosecution for the same offense. In Johnson v. United States, 529 U.S. 694 (2000),
the Court stated:
Where the acts of violation [of conditions of supervised release] are criminal in
their own right, they may be the basis for separate prosecution, which would
raise an issue of double jeopardy if the revocation of supervised release were
also punishment for the same offense. Treating postrevocation sanctions as part
of the penalty for the initial offense, however (as most courts have done), avoids
Id. at 700.
The Court agrees with the Magistrate Judge that Petitioner has provided no
authority for his argument. Petitioner has not provided any Supreme Court precedent,
which controls in determining whether a state-court decision has violated AEDPA’s §
2254(d)(1). See 28 U.S.C. § 2254(d)(1) (permitting habeas relief where a state-court
decision contravened or unreasonably applied “clearly established Federal law, as
determined by the Supreme Court of the United States”); White v. Woodall, 134 S. Ct.
1697, 1702 (2014) (“‘[C]learly established Federal law’ for purposes of § 2254(d)(1)
includes only the holdings, as opposed to the dicta, of this Court’s decisions.”) (Internal
quotation marks and citations omitted). Therefore, Ground One is without merit.
In Ground Two, Petitioner claims that the trial court was without jurisdiction to
proceed to trial without disposing of his “once in jeopardy” plea. The Court of Appeals
addressed this claim. Ohio Revised Code 2943.06 outlines the procedure for a plea of
former jeopardy. However, Criminal Rule 12 took effect in 1973 and superseded R.C.
2943.06. The Court of Appeals found that trial court was not required to follow those
procedures because Criminal Rule 12 limits pleas to not guilty, not guilty by reason of
insanity, guilty, or no contest.
The Magistrate Judge notes that the Court of Appeals also considered that
Petitioner did not raise the issue again in a pre-trial motion or provide the court with any
evidence to support his claim of double jeopardy. The Court of Appeals overruled this
Respondent contends that Petitioner’s claim regarding his “once in jeopardy”
plea is a matter of state law and is therefore not cognizable on federal habeas review.
The Magistrate Judge points out that Petitioner recognized that Respondent was correct
and thus changed his focus in his Traverse to argue that his indictment was flawed
because it did not state whether there were prior legal proceedings against him for the
same offense. The Court agrees with the Magistrate Judge that both of Petitioner’s
Petitioner’s argument that the trial court should have disposed of his double
jeopardy claim is based on state law and is not cognizable on federal habeas review.
To the extent that claims asserted in federal habeas petitions allege only state-law
violations, they are not cognizable on federal habeas review and must be dismissed on
that basis. “It is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citing 28 U.S.C. § 2241).
Petitioner’s argument that his indictment was defective also fails. The Magistrate
Judge determined that there is no federal constitutional right to an indictment in state
criminal proceedings. See, e.g., Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984)
(citing Brazenburg v. Hayes, 408 U.S. 665 (1972)). The Court agrees with the
Magistrate Judge’s conclusion that an indictment is not required if sufficient notice is
given to the accused. In this case, Petitioner is not alleging that he did not know the
crimes for which he was charged or that the indictment was so vague that he could not
prepare a defense. Therefore, the Court finds that Ground Two is not cognizable in
federal habeas review.
In Ground Three, Petitioner contends that the trial court’s nunc pro tunc entry to
correct a misstatement on the written verdict was a violation of his double jeopardy
rights. The court acquitted Petitioner on Count Two prior to closing arguments. The
court later found Petitioner guilty on Counts One and Three, but the verdict entry
erroneously noted the acquittal of Count One instead of Count Two. The Court of
Appeals made clear in its ruling that the trial court’s error was a clerical mistake
appropriately corrected by a nunc pro tunc entry.
Respondent correctly argues that Ground Three is not cognizable in federal
habeas review. The Magistrate Judge determined that although Petitioner insists that
the Court of Appeals incorrectly interpreted Ohio law regarding nunc pro tunc entries,
Petitioner is mistaken. The Court of Appeals’ decision is correct.
A state court has adjudicated a claim “on the merits,” and AEDPA deference
applies, regardless of whether the state court provided little or no reasoning at all for its
decision. Harrington v. Richter, 562 U.S. 86, 99 (2011). Here, the Court of Appeals
gave clear and thorough reasoning for its decision that the nunc pro tunc entry was
used properly and did not offend the principles of double jeopardy. The Court of
Appeals decision was not based on an unreasonable application of clearly established
For the foregoing reasons, the Court ADOPTS and ACCEPTS the Magistrate
Judge’s well-reasoned Report and Recommendation and dismisses Petitioner’s Petition
Under 28 U.S.C. §2254 for Writ of Habeas Corpus by a Person in State Custody.
The Court finds an appeal from this decision could not be taken in good faith. 28
U.S.C. § 1915 (a)(3). Since Petitioner has not made a substantial showing of a denial
of a constitutional right directly related to his conviction or custody, the Court declines to
issue a certificate of appealability. 28 U.S.C. § 2253 (c)(2); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
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