Leopard v. Turner

Filing 4

Memorandum of Opinion and Order For the reasons stated herein, Petitioner's Motion to Proceed In Forma Pauperis, ECF No. 2 , is granted, the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied and this action is dismissed 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 is no basis upon which to issue a certificate of appealability. 28 U.S.C. §2253; Fed. R. App. P. 22(b). Judge Benita Y. Pearson on 8/16/2013. (JLG)

PEARSON, J.

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHARLES W. LEOPARD, II,
Petitioner,
v.
NEIL TURNER,
Respondent.

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CASE NO. 3:13cv556

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Regarding ECF Nos. 1; 2]

Pro se Petitioner Charles W. Leopard, II filed the above-captioned Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254. ECF No. 1. Petitioner is incarcerated in the North Central
Correctional Complex, serving an eight year sentence for two counts of unlawful sexual conduct
with a minor. ECF No. 1 at 1. Petitioner claims: (1) his right to a jury trial under the Sixth
Amendment was violated when the trial court made factual findings to sentence him to consecutive
sentences; (2) he was denied due process under the Fourteenth Amendment when he was sentenced
to consecutive sentences absent a judicial finding of factors under Ohio law; (3) he was denied due
process when the Ohio Supreme Court ruled that an Ohio statute did not apply to his case or others
like it; and (4) he was denied due process when the United States Supreme Court would not correct
the errors listed in the first three grounds. ECF No. 1 at 5-11. For the reasons set forth below, the
Petition is denied and this action is dismissed.

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I. Background
A. Underlying Facts
Petitioner was charged with engaging in sexual conduct with two minors. See State of Ohio
v. Leopard, 957 N.E.2d 55, 57 (Oh. Ct. App. 2011). His home was a well-known gathering place
for neighborhood teens because he permitted them to drink alcohol and use marijuana. Id. The two
victims in this case, both fifteen-year-old girls, were among the individuals that came to Petitioner’s
home. Id. Once in his home, he made it clear to the girls that he was interested in sexual activity
with them. Id. Over the course of the next several months, he engaged in sexual conduct with the
girls on multiple occasions. Id. The victims used their cellular devices to record Petitioner
discussing the sexual encounters. Id.
Based on this evidence, Petitioner was charged with six counts of unlawful sexual conduct
with a minor. Id. He pleaded not guilty at his arraignment but later agreed to plead guilty to two
counts of unlawful sexual conduct with a minor, one count for each victim, in exchange for the
dismissal of the other four counts. Id. At sentencing, the prosecution asked the court to impose a
sentence that punished Petitioner for his conduct with both victims, rather than imposing a
concurrent sentence that “basically allows him a free pass for one of the victims.” Id. at 60. The
court granted the prosecutor’s request and sentenced Petitioner to four years incarceration on each
count and ordered them to be served consecutively for a total term of eight years incarceration. Id.
at 61.
B. Direct Appeal
Petitioner filed a timely appeal of his conviction to the Ohio Second District Court of

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Appeals. He asserted three assignments of error:
1. His sentence was contrary to law because the trial court failed to
make certain findings before imposing consecutive sentences.
2. His sentence is contrary to law because the trial court failed to
properly consider the statutory principles and purposes of sentencing
and the seriousness and recidivism factors.
3. The trial court abused its discretion by imposing more than
minimum and consecutive sentences.
Id. at 57. In support of his first ground for relief, he argued that Ohio Revised Code § 2929.14(E)(4)
contains a requirement that the trial court make certain findings before it can impose consecutive
sentences. Id. at 57-58. He argued that State v. Foster, 845 N.E.2d 470 (Ohio 2006), a case in which
the Ohio Supreme Court found R.C. § 2929.14(E)(4) to be unconstitutional and severed it from the
rest of the statute, was overruled by Oregon v. Ice, 555 U.S. 160 (2009), thus reviving the
requirements of R.C. § 2929.14(E)(4). He claimed that the trial court failed to make the required
statutory findings before imposing consecutive sentences, and his sentence was contrary to Ohio law.
Leopard, 957 N.E.2d at 57-58.
The court of appeals disagreed. Id. at 58. The court pointed out that the Ohio Supreme Court
in State v. Hodge, 941 N.E.2d 768 (Ohio 2010) made clear that the Ice decision did not revive R.C.
§ 2929.14(E). Consequently, the court held that the trial court was not required to make findings or
give reasons for the sentences it imposes. The first assignment of error was overruled. Leopard, 957
N.E.2d at 58.
In support of his second claim, Petitioner asserted that the trial court failed to properly
consider the statutory principles in R.C. §§ 2929.11 and 2929.12 and balance those with the

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considerations of the seriousness of the offense and recidivism factors. Leopard, 957 N.E.2d at 60.
He argued that he was sentenced to two four-year consecutive sentences because he allegedly was
shown tremendous leniency when the state dismissed the four counts, and he was not given the
opportunity to argue that the state was not as generous as it appeared. Id.
The court of appeals indicated that the trial court did fully consider the principles and
purposes of sentencing set forth in R.C. §§ 2929.11 and 2929.12. The appellate court cited to the
trial court record wherein the court specifically stated it had considered these factors. Petitioner’s
second claim was overruled. Id.
Finally, in support of his third claim, Petitioner contended that the trial court abused its
discretion in sentencing him to near maximum consecutive terms of incarceration when he was a first
time offender. He argued it was unduly harsh. Id. at 61. The court of appeals denied his third
ground for relief finding that his conduct reasonably supported the imposition of a sentence within
the range set forth in R.C. §2929.14(A)(3). The court held that it was solely within the discretion
of the sentencing court to impose consecutive sentences. Id.
The court of appeals affirmed Petitioner’s conviction on August 5, 2011. Id. Petitioner
appealed that decision to the Ohio Supreme Court and asserted two propositions of law:
1. When sentencing on multiple counts, R.C. § 2929.41(A) requires
[the] trial court to impose concurrent sentences unless [the] trial court
makes findings in R.C. § 2929.14(E)(4).
2. The trial court abuses it discretion when it relies on dismissed
charg[e]s to impose a higher sentence than would be justified by
reliance on the statutory factors set forth in R.C. §§ 2929.11 &
2929.12.
ECF No. 1 at 2-3. The appeal was denied on December 21, 2011. ECF No. 1 at 2.
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C. Petition for Writ of Certiorari in United States Supreme Court
Petitioner filed a Petition for a Writ of Certiorari in the United States Supreme Court on
March 19, 2012. ECF No. 1 at 3. He questioned whether Ohio’s statutory sentencing scheme was
constitutional under the Sixth Amendment and whether the Ohio Supreme Court’s refusal to find
that Oregon v. Ice revived the sentencing scheme in R.C. § 2929.14(E)(4) denied him due process
and violated the doctrine of separation of powers. ECF No. 1 at 12. The United States Supreme
Court refused to accept certiorari and denied the petition on April 23, 2012. ECF No. 1 at 3.
II. Habeas Petition
Thereafter, Petitioner filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. He asserted four grounds for relief:
1. Petitioner is being denied United States Constitution Sixth
Amendment right to a jury trial by Ohio Sentencing law requiring
judicial fact-finding for imposing consecutive sentences.
2. Petitioner is being denied United States Constitution Fourteenth
Amendment right to due process of law absent a judicial finding of
the statutory factors identified as precedent to imposition of
consecutive sentences.
3. Petitioner is being denied his right to due process of law under the
United States Constitution Fourteenth Amendment when the Ohio
Supreme Court erroneously declared Ohio Sentencing law severable
and then refused to correct its own error.
4. Petitioner is being denied his right to due process of law by[] the
United States Supreme Court in contravention of the United States
Constitution Fourteenth Amendment as this Court refuses to address
plain error in Grounds 1-3.
ECF No. 1 at 5-11.
In support of his first claim, Petitioner states he was sentenced to two consecutive four-year
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terms of imprisonment after the trial court decided which facts were relevant to sentencing. He
indicates that “thousands of Ohio inmates remain imprisoned under sentences imposed by judicial
fact-finding in contravention of the Sixth Amendment right to a jury trial.” ECF No. 1 at 5.
In support of his second ground for relief, Petitioner claims he was sentenced to consecutive
sentences after the Ohio Supreme Court ruled that part of Ohio’s sentencing law was
unconstitutional and “had to be severed from the law.” ECF No. 1 at 7. He contends he was denied
due process when the judge imposed consecutive sentences without conducting the judicial findings
of fact necessary to impose consecutive sentences, that his sentence violates the Ohio sentencing law,
and that, although the state dismissed four counts against him, the court considered the leniency
shown by the state in dismissing these claims when the court issued his sentence. ECF No. 1 at 7.
In support of his third ground for relief, Petitioner contends that his sentence was contrary
to the separation of powers doctrine. He claims the Ohio Supreme Court did not uphold the Ohio
criminal sentencing law which was developed by the Ohio legislative branch. He claims he was
denied due process when the Ohio Court of Appeals did not correct the plain error of the Ohio
Supreme Court. ECF No. 1 at 8.
Finally, Petitioner’s fourth ground is asserted against the United States Supreme Court. He
claims the Supreme Court violated his right to due process by refusing to accept certiorari so that he
could argue his claims asserted in grounds one through three. ECF No. 1 at 10.
III. Standard of Review
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

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after that effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997); 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 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 (6th Cir. 2008) (quoting 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 at 774.
A decision is contrary to clearly established law under § 2254(d)(1) when it is
“‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed’” to federal law
as determined by the Supreme Court of the United States. Williams, 529 U.S. at 405 (Part II of
Justice O’Connor’s opinion, joined by a majority of the Court). In order to have an “unreasonable
application of ... clearly established Federal law,” the state court decision must be “objectively
unreasonable,” not merely erroneous or incorrect. Id. at 409. Furthermore, it must be contrary to
holdings of the Supreme Court, as opposed to dicta. Id. at 412.

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A state court’s determination of fact will be unreasonable under § 2254(d)(2) only if it
represents a “clear factual error.” Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). In other words,
a state court’s determination of facts is unreasonable if its finding conflict with clear and convincing
evidence to the contrary. Id. “This standard requires the federal courts to give considerable
deference to state-court decisions.” Ferensic v. Birkett, 501 F.3d 469, 472 (6th Cir. 2007). AEDPA
essentially requires federal courts to leave a state court judgment alone “unless the judgment in place
is based on an error grave enough to be called unreasonable.” Herbert v. Billy, 160 F.3d 1131, 1135
(6th Cir.1998) (quoting Lindh v. Murphy, 96 F.3d 856, 870-71 (7th Cir. 1996), rev’d on other
grounds, 521 U.S. 320 (1997)).
IV. Procedural Barriers to Habeas Review
A. Exhaustion of State Court Remedies
As a general rule, a state prisoner must exhaust all possible state remedies or have no
remaining state remedies before a federal court will review a petition for a writ of habeas corpus.
28 U.S.C. § 2254(b), (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, 842 (1999); Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994).
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 opportunity to consider
both the factual and legal basis for each claim. Wagner, 581 F.3d at 414-15. To determine if a

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petitioner “fairly presented” a federal constitutional claim to the state courts, a court considers
whether the petitioner “(1) [] phrased the federal claim in terms of the pertinent constitutional law
or in terms sufficiently particular to allege a denial of the specific constitutional right in question;
(2) [] relied upon federal cases employing the constitutional analysis in question; (3) [] relied upon
state cases employing the federal constitutional analysis in question; or (4) [] alleged facts well
within the mainstream of [the pertinent] constitutional law.” Hicks v. Straub, 377 F.3d 538, 553 (6th
Cir. 2004) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). Moreover, 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), and
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.
In the instant case, Petitioner did not exhaust his state court remedies because his grounds
for relief are raised as violations of the United States Constitution for the first time in this petition.
On direct appeal of his conviction, he claimed his sentence was a violation of Ohio law because the
trial court did not comply with the statutory requirements of R.C. §§ 2929.11, 2929.12, and 2929.14.
He also claimed the trial court erred in imposing more than the minimum sentences when it was his
first offense, and that the trial court abused its discretion because it considered that the state
dismissed four charges against him to justify imposing a higher sentence than he would have
received if the statutory factors set forth in R.C. §§ 2929.11 and 2929.12 were contemplated.
Similarly, in his appeal to the Ohio Supreme Court, he argued that when sentencing on multiple

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counts, R.C.§ 2929.41(A) requires the trial court to impose concurrent sentences unless the trial
court makes findings in R.C. § 2929.14(E)(4).
Petitioner asserts for the first time in his Petition that the trial court violated his Sixth
Amendment right to a jury trial because the trial court determined which facts where appropriate to
support the sentence imposed. He also argues for the first time that he was denied due process when
he received consecutive sentences absent judicial findings of fact as set forth in the Ohio Revised
Code. He asserts for the first time in his Petition that he was denied due process when the Ohio
Supreme Court declared R.C. § 2929.14 to be unconstitutional in violation of the separation of
powers doctrine, and then refused to correct the error in his case.
As stated above, 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. See Koontz, 731 F.2d
at 369. In addition, the claim must be presented to the state courts under the same legal theory in
which it is later presented in federal court. See Wong, 142 F.3d at 322. It cannot rest on a legal
theory which is separate and distinct from the one previously considered and rejected in state court.
Id. Because Petitioner’s claims were asserted in state court as violations of state law, not federal
constitutional law, they were not presented under the same legal theory as they are now presented.
Therefore, Petitioner’s habeas claims have not been exhausted.
B. Procedural Default
The procedural default doctrine serves to bar review of federal claims that a state court has
declined to address because the petitioner did not comply with a state procedural requirement.
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In these cases, the state judgment is not based on a

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resolution of federal constitutional law, but instead “rests on independent and adequate state
procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 730 (1991). When the last explained
state court decision rests upon procedural default as an “alternative ground,” a federal district court
is not required to reach the merits of a habeas petition. McBee v. Abramajtys, 929 F.2d 264, 267 (6th
Cir. 1991). In determining whether a state court has addressed the merits of a petitioner’s claim,
federal courts must rely upon the presumption that there is no independent and adequate state
procedural grounds for a state court decision absent a clear statement to the contrary. See Coleman,
501 U.S. at 735.
A claim that is procedurally defaulted in state court will not be reviewed by a federal habeas
court unless a petitioner “can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. “‘Cause’ is a legitimate excuse for
the default; ‘prejudice’ is actual harm resulting from the alleged constitutional violation.” Magby
v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984).
As noted above, a petitioner cannot obtain federal habeas relief unless he has completely
exhausted his available state court remedies to the state’s highest court. Buell v. Mitchell, 274 F.3d
337, 349 (6th Cir. 2001); 28 U.S.C. § 2254(b)(1)(A). The Supreme Court has emphasized that the
“interests of comity and federalism dictate that state courts must have the first opportunity to decide
a petitioner’s claim,” because “it would be unseemly in our dual system of government for a federal
district court to upset a state court conviction without an opportunity to the state courts to correct a
constitutional violation.” Rhines v. Weber, 544 U.S. 269, 273-74 (2005)(citations omitted).

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Accordingly, when a habeas petition contains unexhausted claims, there is a “strong presumption”
in favor of requiring a petitioner to pursue his available state remedies. Granberry v. Greer, 481
U.S. 129, 131 (1987). See also O’Guinn v. Dutton, 88 F.3d 1409, 1412 (6th Cir. 1996) (stating that
“the Supreme Court has been quite clear that exhaustion is the preferred avenue and that exceptions
are to be for narrow purposes only”).
In conducting the inquiry as to whether claims are procedurally defaulted, a court must
determine whether: (1) “there is a state procedural rule that is applicable to the petitioner’s claim and
the petitioner failed to comply with the rule”; (2) “the state courts actually enforced the state
procedural sanction”; and (3) the state procedural forfeiture is an “‘adequate and independent’ state
ground on which the state can rely to foreclose review of a federal constitutional claim.” Maupin
v. Smith, 785 F.2d 135, 138 (6th Cir.1986). Ohio courts have set forth a default rule barring
consideration of claims that could and should have been raised on direct appeal. See Buell, 274 F.3d
at 348-49(citing State v. Perry, 226 N.E.2d 104 (Ohio 1967)).
In the instant case, Petitioner pursued a direct appeal but did not assert his first three grounds
for relief as violations of the United States Constitution. Because the claims were not raised in the
first instance, they are barred by the Ohio rule of res judicata. Lott v. Coyle, 261 F.3d 594, 611-612
(6th Cir. 2001). There is no procedural vehicle for Petitioner to return to state court and assert these
claims, and res judicata is an independent and adequate state procedural ground that forecloses
federal habeas review. Id.
Because Petitioner’s first three grounds for habeas relief are procedurally defaulted, federal
habeas review is barred unless he can demonstrate cause for the default and actual prejudice as a

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result of the alleged violation of federal law, or can demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. “[T]he existence
of cause for a procedural default must ordinarily turn on whether the prisoner can show that some
objective factor external to the defense impeded counsel’s efforts to comply with the State’s
procedural rule.” Murray v. Carrier, 477 U.S. 478, 484 (1986). “Such factors may include
‘interference by officials,’ attorney error rising to the level of ineffective assistance of counsel, and
‘a showing that the factual or legal basis for a claim was not reasonably available.’”
Hargrave–Thomas v. Yukins, 374 F.3d 383, 388 (6th Cir. 2004) (quoting McCleskey v. Zant, 499
U.S. 467, 493–94 (1991)).

To establish prejudice, a petitioner must demonstrate that the

constitutional error “worked to his actual and substantial disadvantage.” Perkins v. LeCureux, 58
F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)).
Petitioner does not suggest that any factor external to the defense precluded him from
presenting the claims as federal constitutional violations in the state courts. He raised similar claims
based on violations of state law, but changed his legal theories once he filed this Petition. There
does not appear to have been any barrier to filing these claims in state court. Thus, Petitioner has
not demonstrated “cause” for the default.
Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the
cause requirement where a constitutional violation has “probably resulted” in the conviction of one
who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (2004)
(citing Murray, 477 U.S. at 495-96). Petitioner does not claim he is innocent of the crimes in the

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underlying conviction. There is no suggestion that a fundamental miscarriage of justice occurred as
a result of this procedural default.
In sum, a federal court may review only federal claims that were evaluated on the merits by
a state court. Claims that were not evaluated, either because they were never presented to the state
courts (i.e., exhausted) or because they were not properly presented to the state courts (i.e., were
procedurally defaulted), are generally not cognizable on federal habeas review. Petitioner’s claims
fail under both doctrines.
V. Merits of Habeas Claims
Finally, even if Petitioner’s claims were not procedurally defaulted, they are not cognizable
in a habeas petition. In his first ground for relief, Petitioner contends he was denied his Sixth
Amendment right to a jury trial because the judge had the discretion to make factual determinations
to support consecutive sentences. However, Petitioner pleaded guilty to the charges as amended by
the state. In doing so, he waived his right to a jury trial, the protection against self-incrimination,
and the right to confront his accusers. See Florida v. Nixon, 543 U.S. 175, 187 (2004); Stillings v.
Harry, 2:12-CV-15639, 2013 WL 408914, at *2 (E.D. Mich. Feb. 1, 2013). By virtue of his waiver
of his right to a jury trial, all factual determinations that are required for sentencing were already in
the hands of the trial judge.
In addition, Petitioner contends that the Ohio Supreme Court violated the separation of
powers doctrine by declaring an Ohio statute to be unconstitutional. He claims this denied him due
process because the Ohio Court of Appeals refused to correct that error. This claim is not cognizable
for purposes of federal habeas corpus review. The separation of powers between a state court and

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state legislature is a matter of state law, and a federal court may not grant habeas relief based upon
“a perceived error of state law.” Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000); see Whalen
v. United States, 445 U.S. 684, 689 n. 4 (1980) (“the doctrine of separation of powers embodied in
the Federal Constitution is not mandatory on the States”).
Moreover, with respect to his first three grounds for relief, Petitioner is effectively asking this
Court to reverse or discard a decision of the Ohio Supreme Court which held that a portion of an
Ohio statute violated the Ohio Constitution, and order the Ohio courts to apply that portion of the
statute retroactively to Petitioner’s case. Generally, a federal habeas court sitting in review of a state
court judgment should not second guess a state court’s decision concerning matters of state law.
Gall v. Parker, 231 F.3d 265, 303 (6th Cir. 2000). “[I]t 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, 67-68 (1991).
An error of state law, however, may serve as a basis for habeas relief when the petitioner was
denied fundamental fairness in the trial process. Id. at 70; see also Serra v. Michigan Dep’t of
Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). To demonstrate a violation of fundamental fairness,
a petitioner must show that the state action “offends some principle of justice so rooted in the
traditions and conscience of our people as to be ranked as fundamental.” Stumpf v. Robinson, ___
F.3d ___, 2013 WL 3336739, at *7 (6th Cir. July 3, 2013) (quoting Patterson v. New York, 432 U.S.
197, 201–02 (1977)). The fundamental fairness principle has only been applied to pretrial
proceedings where there is some effect on the fairness of the trial itself. Norris v. Schotten, 146 F.3d

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314, 329 (6th Cir. 1998).
In this case, Petitioner has not asserted any violation that “offends some principle of justice
so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Stumpf,
___ F.3d ___, 2013 WL 3336739, at *7. Petitioner merely seeks to have an Ohio statute applied to
his case in the hope of obtaining a concurrent sentence of four years rather than a consecutive
sentence of eight years. Concurrent sentences are not so rooted in our traditions as to be considered
fundamental.

Nothing in the Petition justifies federal court interference with the state’s

interpretation of its own laws.
Finally, in his last ground for relief, Petitioner contends that the United States Supreme Court
denied him due process by refusing to accept certiorari over his challenge to Ohio’s decision that its
sentencing statute violated the Ohio Constitution. This claim is not cognizable in a habeas petition.
Petitioner is not attacking his state court judgment of conviction, but rather is challenging a decision
of the United States Supreme Court. This Court has no jurisdiction under 28 U.S.C. § 2254 to
review decisions of the United States Supreme Court.
VI. Conclusion
Accordingly, Petitioner’s Motion to Proceed In Forma Pauperis, ECF No. 2, is granted, the
Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied and this action is
dismissed 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

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in good faith, and there 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.

August 16, 2013
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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