Pough v. Coleman
Order Adopting the Magistrate Judge's Report and Recommendation. I find that this petition is "second or successive" and transfer it to the Sixth Circuit Court of Appeals. Respondent's motion to dismiss 13 is also denied. re: 26 Report and Recommendation. Judge Jeffrey J. Helmick on 12/22/2016.(SG,D)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Case No. 15-cv-772
John Coleman, Warden,
On April 21, 2015, pro se Petitioner Lance Pough filed a petition for a writ of habeas corpus
with this court pursuant to 28 U.S.C. § 2254. (Doc. No. 1).
The matter was referred to Magistrate
Judge Nancy A. Vecchiarelli for a Report and Recommendation (“R & R”). Magistrate Judge
Vecchiarelli recommended I deny Respondent’s motion to dismiss and transfer Pough’s petition to
the Sixth Circuit. (Doc. No. 26). Pough objects to the R & R. (Doc. No. 29). For the reasons
stated below, I adopt the Magistrate Judge’s recommendations as set forth in the R & R and overrule
Magistrate Judge Vecchiarelli accurately and comprehensively set forth the procedural
background of this case, and I adopt those sections of the R & R in full. (Doc. No. 26 at 1-7).
Briefly, in 2000, Pough was indicted on counts of aggravated murder and conspiracy to
commit murder. At the time, Pough was already incarcerated on pending federal drug charges. In
November 2000, Pough entered into a comprehensive plea agreement in which he pled guilty to the
state charge of complicity to commit murder with a firearm specification with the capital murder
charge being dismissed. The plea agreement stated that he could be sentenced up to 18 years for the
state charge and that sentence was to be served concurrently with his federal sentence. The plea
agreement also stated that a “period of control or supervision by the Adult Parole Authority” was
mandatory following release from prison.
Pough, with the assistance of counsel, appealed his state conviction on the grounds that the
plea was not knowing and voluntary due to ineffective assistance of counsel and that the trial court
erred in accepting the plea. The state appellate court affirmed his conviction and the Supreme Court
of Ohio declined to exercise jurisdiction over a subsequent appeal.
Pough filed his first § 2254 petition in July 2004, citing ineffective assistance of counsel and
insufficient library resources as grounds for relief. Magistrate Judge Baughman issued an R & R
recommending dismissal, to which Pough did not object. After the Court adopted the R & R,
dismissing the petition, Pough sought a certificate of appealability from the Sixth Circuit, which was
Later attempts to reopen the appeal and obtain post-conviction relief were also unsuccessful.
These attempts included a motion for sentencing clarification and a request for resentencing nunc
pro tunc in 2009, both of which were denied by the trial court, affirmed by the appellate court, and
never appealed to the Supreme Court of Ohio. In 2015, Pough again filed motions in state court
related to sentencing, this time requesting the court enter a revised judgment entry or let him
withdraw his guilty plea. These motions were based, like the action presently before me, on the
issue of post release control versus parole. The trial court denied all motions; the appellate court
On April 20, 2015, Pough filed the § 2254 petition currently before the court, raising five
grounds for relief. The first four grounds of relief cite errors in the state plea agreement; the fifth
and final ground cites error in the state sentence. Respondent moved to dismiss the petition as
“second or successive.” While Magistrate Judge Vecchiarelli found the petition to be “second or
successive,” she recommends the petition be transferred to the Circuit rather than dismissed entirely.
STANDARD OF REVIEW
A district court must conduct a de novo review of “any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject or modify the
recommended disposition, receive further evidence, or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3).
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), there are very
limited circumstances in which a prisoner’s “second or successive” petition may be considered as
opposed to simply dismissed. 28 U.S.C. § 2244(b)(2). The circuit court has jurisdiction over
“second or successive” petitions and is authorized to grant the district court jurisdiction to consider
petitions of this nature in extremely limited circumstances. 28 U.S.C. § 2244(b)(3). If it is unclear at
the outset whether a subsequent petition is “second or successive” within the meaning of the statute,
the district court must classify the petition accordingly. In re Smith, 690 F.3d 809, 809-10 (6th Cir.
2012). In short, if the district court finds a petition to be “second or successive,” it may be
transferred to the circuit or dismissed; if not, the district court has jurisdiction to consider the
petition on the merits.
“Second or successive” is a term of art within the statute, considering the content of a
subsequent habeas petition rather than taking a strictly textualist approach. See Slack v. McDaniel, 529
U.S. 473, 486 (2000); Panetti v. Quarterman, 551 U.S. 930, 944 (2007). In developing the term “second
or successive” within the meaning of the AEDPA, courts have relied on case law interpreting the
abuse of writ doctrine, which preceded AEDPA. See Slack, 529 at 486 (“[P]re-AEDPA law governs,
though we do not suggest the definition of second or successive would be different under
AEDPA.”); Panetti, 551 U.S. at 943-44 (“The phrase ‘second or successive’ is not self-defining. It
takes its full meaning from our case law, including decisions predating the enactment of
[AEDPA].”). An abuse of writ with respect to a second petition occurred when the petitioner
“rais[ed] a claim in a subsequent petition that he could have raised in his first, regardless of whether
the failure to raise it earlier stemmed from a deliberate choice.” McCleskey v. Zant, 499 U.S. 467, 489
(1991); see also Delo v. Stokes, 495 U.S. 320, 321-22 (1990) (holing a subsequent petition to be an abuse
of writ when the claims “could have been raised in his first petition for federal habeas corpus.”).
Ultimately, when applying the principles of abuse of writ to AEDPA, the term “second or
successive” asks whether the petitioner had a full and fair opportunity in the initial petition to assert
the grounds for relief raised in a subsequent petition. Magwood v. Patterson, 561 U.S. 320, 344-45
(Kennedy, J., dissenting). In Stewart v. Martinez-Villareal, 523 U.S. 637, 645 (1998), the Court, using
principles of abuse of writ, held that a Ford claim dismissed as unripe in a previous petition was not
“successive” because the “petitioner [did] not receive an adjudication of his claim.” Likewise, in
Slack, a petition challenging the same judgment as was in the initial petition was not considered
“second or successive” because the initial petition was dismissed for procedural reasons—
unexhausted claims—not on the merits. 529 U.S. at 487-88. When confronted with a second
petition in Burton v. Stewart, 549 U.S. 147, 154-55 (2007) , the Court distinguished Stewart and Slack,
noting that the petitioner’s initial petition was fully litigated on the merits; the claims of the second
were not asserted in the initial petition, and were dismissed as unripe as in Stewart or as unexhausted
as in Slack. Instead, the second petition with new claims was declared as “second or successive”
because “twice brought claims contesting the same custody imposed by the same judgment of a state
court.” Id. at 153.
As in Burton, Pough had a full opportunity to raise the grounds for relief now asserted when
he filed his initial petition which was decided on the merits. The plea agreement Pough is contesting
was executed in November 2000 and explicitly referred to control or supervision by the Adult Parole
Board. In fact, in his first § 2254 petition filed in July 2004, Pough addressed his dissatisfaction with
the plea agreement, asserting it was “less than knowing and voluntary.” (Ex. 23 at 17; Ex. 24). In
the petition, Pough not only stated that he would have “consecutive parole” but also that he would
“be released in 2014 on the federal sentence with good time and will have to return to the state
sentence to do an extra 5 yrs. or 4 yrs. on the 18-life state sentence.” (Ex. 23 at 22) (emphasis
added). These statements display Pough’s knowledge and understanding of the substance of the
plea agreement. As such, the ambiguity Pough now cites could have been included in Pough’s initial
challenge of the plea agreement and simply was not. In accordance with both abuse of writ and
AEDPA, Pough’s failure to assert the claims now before this court in his initial petition require the
petition at hand be classified as “second or successive.”
While the interest in providing petitioners with a full and fair opportunity to be heard on the
merits is of the utmost importance, the procedural requirements must be followed. “Second or
successive” petitions must go through the “gatekeeping” process of the Circuit Court to serve the
purpose of AEDPA: promoting comity, finality, and federalism. Felker v. Turpin, 518 U.S. 651, 657
(1996); Panetti, 551 U.S. at 947. I find Pough’s second petition to be “second or successive” within
the meaning of AEDPA. As such, I will follow Magistrate Judge Vecchiarelli’s recommendation and
transfer the petition as “second or successive” to the Sixth Circuit for review. I also deny
Respondent’s motion to dismiss at this time.
In addition, I also find Magistrate Judge Vecchiarelli’s determination to be accurate with
respect to the fifth ground of relief raised by Pough regarding pre-conviction incarceration. The
issue of the amount of time that counts toward a state court sentence is governed by state statutory
law. See O.R.C. § 2967.191. Therefore, by Lewis v. Jeffers, 497 U.S. 764, 780 (1990), as stated by
Magistrate Judge Vecchiarelli, this claim is not cognizable for federal habeas review.
I adopt the recommendations stated in Magistrate Judge Vecchiarelli’s R & R. I find that
this petition is “second or successive” and transfer it to the Sixth Circuit Court of Appeals.
Respondent’s motion to dismiss is also denied.
s/ Jeffrey J. Helmick
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?