Brown v. Warden, Lebanon Correctional Institution

Filing 27

Opinion and Order: The Court DENIES Petitioner's motions to stay (ECF No. 25 ) and for reconsideration (ECF No. 26 ). Further, the Court DIRECTS the Clerk to enter judgment accordingly. Judge J. Philip Calabrese on 8/2/2022.(Y,A)

Case: 1:18-cv-02820-JPC Doc #: 27 Filed: 08/02/22 1 of 6. PageID #: 1245

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
FREDRIC A. BROWN,
Petitioner,
v.
TOM WATSON, Warden,
Respondent.

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Case No. 1:18-cv-02820
Judge J. Philip Calabrese
Magistrate Judge
William H. Baughman, Jr.

OPINION AND ORDER
Petitioner Frederic A. Brown, a prisoner in State custody, filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Shelbie
Smith, Warden of North Central Correctional Institution, filed a return of writ.
Petitioner filed a traverse in support. The Magistrate Judge issued a report and
recommendation that the Court deny the habeas petition. Petitioner did not timely
object to the report and recommendation.

Accordingly, the Court adopted the

Magistrate Judge’s report and recommendation and dismissed the petition with
prejudice. Petitioner later filed a motion for reconsideration and a motion to stay
disposition of his habeas petition and hold it in abeyance. For the reasons set forth
below, the Court DENIES Petitioner’s motions to stay and for reconsideration.
FACTUAL AND PROCEDURAL BACKGROUND
The Magistrate Judge set forth the history of the case in the report and
recommendation. (ECF No. 22, PageID #1183–87.) Petitioner Frederic A. Brown was
convicted of two counts of trafficking in persons, two counts of compelling

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prostitution, and one count of possessing criminal tools. (Id., PageID #1186.) The
State trial court sentenced Mr. Brown to 13 years in prison, plus a $10,000 fine. (Id.,
PageID #1187.)

Mr. Brown unsuccessfully challenged his conviction on direct

appeal in State court (id., PageID #1187–88), and the United States Supreme Court
denied his petition for a writ of certiorari (id., PageID #1188–89). Mr. Brown also
filed a petition to reopen his appeal, which was denied. (Id., PageID #1189–91.)
Then, in federal court Petitioner applied for a writ of habeas corpus asserting
four grounds for relief. (Id., PageID #1191–93.) Ground One alleged that the State
trial court errored by granting the State’s amendment to the indictment. (ECF No. 1,
PageID #5.) Ground Two alleged that the evidence was insufficient as a matter of
law to prove the elements essential to the counts of the indictment. (Id., PageID #6.)
Ground Three alleged ineffective assistance of trial counsel, and Ground Four alleged
ineffective assistance of appellate counsel. (Id., PageID #7–9.)
On January 7, 2022, the Magistrate Judge filed his report which recommended
that the Court deny the habeas petition in part and dismiss it in part. (ECF No. 22,
PageID #1182.) The report and recommendation was mailed to Lebanon Correctional
Institute the same day. (ECF No. 26-1, PageID #1226.) However, Petitioner was
transferred from Lebanon Correctional Institute to North Central Correctional
Institution around January 1, 2022 and did not receive the report and
recommendation until January 21, 2022. (Id.) As a result, Petitioner did not file
objections to the report and recommendation.

On February 8, 2022, the Court

adopted the Magistrate Judge’s report and recommendation and dismissed the

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petition with prejudice. (ECF No. 23, PageID #1212–1213.) Petitioner now moves to
stay and hold in abeyance his habeas petition (ECF No. 25) and moves the Court to
reconsider the four grounds of his habeas petition (ECF No. 26).
ANALYSIS
I.

Motion to Stay
District courts have discretion to stay habeas proceedings on exhausted claims

so that petitioners may return to State court to exhaust remedies on their remaining
claims. Sueing v. Palmer, 503 F. App’x 354, 357 (6th Cir. 2012). But this discretion
is limited. The “’stay-and-abeyance’ procedure ‘should be available only in limited
circumstances,’ because district courts normally do not have the power to issue stays,
and because over-expansive use of the procedure would thwart the finality interest
that AEDPA promotes.” Banks v. Jackson, 149 F. App’x 414, 421–22 (6th Cir. 2005)
(quoting Rhines v. Weber, 544 U.S. 269, 277 (2005)).
When determining whether to stay a habeas petition, courts consider the
following factors: “(1) whether the petitioner had good cause for failing to exhaust
his claims in State court; (2) whether the unexhausted claims are plainly meritless;
and (3) whether the petitioner is engaged in intentionally dilatory litigation tactics.”
Moss v. Sloan, No. 1:18-cv-2967, 2019 WL 2271899, at *3 (N.D. Ohio Apr. 2, 2019)
(citing Rhines, 544 U.S. at 277–78). Petitioner bears the burden of showing that his
request satisfies all three factors. Sueing, 503 F. App’x at 357 (citing Rhines, 544
U.S. at 277–78).
Here, Petitioner requests a motion to stay to exhaust his ineffective assistance
of counsel claims in State court based on newly acquired evidence. (ECF No. 25,
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PageID #1215.) Petitioner’s request plainly lacks merit. Not only does Petitioner fail
to explain how or why his claims are unexhausted, but he also fails to demonstrate
how the newly acquired evidence renders his trial counsel’s representation
ineffective.

As stated in the Magistrate Judge’s report and recommendation,

Petitioner’s ineffective assistance of counsel claims did not meet the federal standard
set out in Strickland v. Washington, 466 U.S. 668, 687 (1984). (ECF No. 22, PageID
#1204.)

And Petitioner fails to argue that his newly found evidence meets the

Strickland standard. For these reasons, and because Petitioner seeks to stay a
petition the Court already denied in part and dismissed in part, the Court DENIES
Petitioner’s motion to stay and hold in abeyance.
II.

Motion for Reconsideration
Next, Petitioner seeks reconsideration of the Court’s order adopting the

Magistrate Judge’s report and recommendation. (ECF No. 26.) Although labeled as
a motion for reconsideration, Petitioner asserts four objections to the report and
recommendation. In its Order, the Court adopted the report and recommendation on
two grounds: (1) the Court found that Petitioner forfeited his right to object by failing
to do so; and (2) the Court concluded that there was no clear error in the report and
recommendation. (ECF No. 23, PageID #1212.)
Petitioner asserts that he did not receive the report and recommendation until
after the time for objecting expired. (ECF No. 26-1, PageID #1226.) Therefore,
Petitioner argues, the Court should reconsider its Order. (Id.) This argument is
unpersuasive. The time for objecting is “fourteen days after being served” with a copy
of the report and recommendation. 28 U.S.C. § 636(b)(1)(C). Further, the report and
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recommendation itself advised that the parties had fourteen days after the date of
service to submit objections and warned that failure to object within the specified
time may waive the right to appeal the District Court’s order. (ECF No. 22, PageID
#1209.) Even if it is true that Petitioner was served the report and recommendation
on January 21, 2022, then the time for objecting was fourteen days later:
February 4, 2022. Because Petitioner did not file his objections within the fourteenday period, he waived review of the report and recommendation. Moreover, Petitioner
makes no argument and presents no evidence that the mail-box rule applies such that
his objections (such as they are) are timely. See Houston v. Lack, 487 U.S. 266, 275
(1988).
In any event, as it did when it adopted the Magistrate Judge’s report and
recommendation, the Court has independently reviewed the record and concluded
that there is no clear error in the Magistrate Judge’s report and recommendation.
Accordingly, the Court DENIES Petitioner’s motion for reconsideration.
CONCLUSION
For the foregoing reasons, the Court DENIES Petitioner’s motions to stay
(ECF No. 25) and for reconsideration (ECF No. 26). Further, the Court DIRECTS
the Clerk to enter judgment accordingly.
SO ORDERED.

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Dated: August 2, 2022

J. Philip Calabrese
United States District Judge
Northern District of Ohio

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