Brown v. Miller et al.
Filing
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Memorandum Opinion and Order Adopting the Report and Recommendation re 18 of the Magistrate Judge. The petition is dismissed. This Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that an appeal of this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. Judge John R. Adams on 9/27/18. (K,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MILOUS BROWN,
Petitioner,
v.
MICHELLE MILLER, Warden, et al.,
Respondents.
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CASE NO.: 4:15 CV 1782
JUDGE JOHN ADAMS
MEMORANDUM OPINION
AND ORDER
This action is before the Court upon objections (Doc. #19) filed by Petitioner, Milous
Brown, asserting error in the Magistrate Judge’s Report and Recommendation (“the R&R”). (Doc.
#18.) The Court OVERRULES Petitioner’s objections, ADOPTS the conclusions reached in the
R&R as written. The Petition is DISMISSED in its entirety.
I.
FACTUAL AND PROCEDURAL HISTORY
Petitioner’s objections address the analysis of three of his four remaining grounds for relief.
Petitioner does not object to the factual background and procedural history presented in the R&R.
In the absence of objection, this Court will accept the factual and procedural history reflected in
the Report as written.
II.
STANDARD OF REVIEW
Motions made pursuant to 28 U.S.C. § 2254 are governed by the standard of review set
forth in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA
prescribes a narrow habeas corpus remedy only where a State court adjudication has resulted in
(1) “a decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law,” or (2) 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). AEDPA
further limits “clearly established Federal law” to those principles “determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). For the purposes of habeas review after
AEDPA, “clearly established Federal law” refers to the express holdings of the United States
Supreme Court “as opposed to the dicta” of that Court’s decisions “of the time of the relevant
state-court decision.” Williams v. Taylor, 529 U.S. 362, 365, 120 S.Ct. 1495 (2000).
When evaluating a § 2254 petition this Court notes that AEDPA and decisional law
applying its restrictions have clearly stated that a district court may not “apply its own views of
what the law should be” but must issue a writ only where “clearly established federal law” has
been applied unreasonably, not merely erroneously or incorrectly. Bailey v. Mitchell, 271 F.3d
652, 656 (6th Cir. 2001) (emphasis added). The Supreme Court reiterates:
If this standard is difficult to meet, that is because it was meant to be. As amended
by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court
relitigation of claims already rejected in state proceedings. It preserves authority
to issue the writ in cases where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the United States Supreme
Court’s] precedents. It goes no further. Section 2254(d) reflects the view that
habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.
Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770 (2011) (Citations omitted). The Sixth
Circuit explains:
A state court decision is ‘contrary to’ clearly established Federal law ‘if the state
court arrives at a conclusion opposite to that reached by [U.S. Supreme Court] on
a question of law,’ or ‘if the state court confronts facts that are materially
indistinguishable from a relevant [U.S.] Supreme Court precedent’ and arrives at a
different result. A state court decision is an ‘unreasonable application of’ clearly
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established Federal law ‘if the state court correctly identifies the correct governing
legal rule from [U.S. Supreme Court’s] cases but unreasonably applies it to the facts
of the particular state prisoner’s case. An ‘unreasonable application’ can also occur
where ‘the state court either unreasonably extends a legal principle from [the U.S.
Supreme Court’s] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should
apply.
Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005) (internal citations to Williams v. Taylor,
529 U.S. at 405-407, omitted).
Where, as here, a party files written objections to the report and recommendation issued by
the magistrate judge, this Court “shall make” a de novo “determination of those portions of the
record or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636 (b)(1). Only those portions of a report and recommendation to which the parties have made
an objection are subject to review; absent an objection, this Court may adopt the magistrate’s report
without review. 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 145, 106 S.Ct. 466
(1985). With regard to those portions of the Report and Recommendation under review, this Court
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1).
The Magistrate Judge Act (28 U.S.C. § 636 et seq.) “does not allow parties to raise at the
district court stage new arguments or issues that were not presented to the magistrate.” Murr v.
United States, 200 F.3d 895, 907, n. 1 (6th Cir. 2000); see also Clark v. U.S., 764 F.3d 653 (6th
Cir. 2014) and Enyart v. Coleman, 29 F.Supp.3d 1059 (N.D. Ohio 2014). Thus, this Court’s review
is predicated on a proper objection to the Magistrate’s evaluation of the issues presented to the
Magistrate. Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.”) It is incumbent upon the party
seeking relief to file objections “which shall specifically identify the portions of the proposed
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findings, recommendations, or report to which objection is made and the basis for such objections.”
Fed. R. Civ. P. 72(b)(3). “An ‘objection’ that does nothing more than state a disagreement with a
magistrate’s suggested resolution or simply summarizes what has been presented before, is not an
‘objection’ as that term is used in this context.” Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D.
Mich. 2004), citing U.S. v. Walters, 638 F.2d. 947, 949-50 (6th Cir. 1981).
III.
LAW AND ANALYSIS
Petitioner originally identified seven grounds for relief, three of which were dismissed
previously as procedurally barred. Petitioner now addresses his objections to three of his four
remaining grounds. The R&R recommends that Petitioner’s remaining four grounds for relief be
dismissed as they are not cognizable in habeas or in the alternative are procedurally barred. In the
absence of an objection to the analysis in the R&R as to ground three, the Court ADOPTS the
R&R as written as to ground three. The Court will address Petitioner’s remaining grounds.
(A) Ground One
The R&R concludes that Petitioner’s first ground for relief is without merit because it
addresses an issue of state law and as such is not cognizable in habeas. Petitioner addresses his
objections to the analysis of his sentencing argument. The R&R recommends in the alternative
that the ground be dismissed as procedurally defaulted. Petitioner does not address the default
analysis. As a whole, Petitioner’s objections to the R&R substantively restate arguments made
both in his traverse and in his 2012 appeal to the Ohio Seventh District Court of Appeals.
Nevertheless, to the extent that Petitioner states specific objections to the R&R’s analysis, the
Court will address them. Petitioner objects to the R&R’s references to the Ohio Seventh District
Court of Appeals decision on his direct appeal of his 2011 sentence. Petitioner contends that the
R&R erred in accepting the state appellate court’s conclusion that severing charges had the
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practical effect of creating two separate indictments. Petitioner further objects to the conclusion
that his arguments fail to raise a federal constitutional issue and to the conclusion that State v.
Smith, 104 Ohio St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283, is both inapposite and superseded
by statute. Petitioner’s interdependent arguments revolve around his belief that Smith should
operate to preclude a guilty verdict resulting from the first trial of a count severed from a single
indictment serving as the basis for a mandatory term of incarceration, pursuant to O.R.C. §
2907.05(C)(2)(b), at sentencing after a guilty verdict in the second trial. Petitioner urges the Court
to conclude that this application of Smith is necessary to prevent a violation of his Federal due
process rights. The facts relevant to Petitioner’s objections are briefly summarized below.
Petitioner was originally charged in May 2009 by the Mahoning County Grand Jury in a
single indictment. The indictment included two counts of gross sexual imposition (“GSI”) in
violation of O.R.C. § 2907.05(A)(4)(B) and one count of rape in violation of O.R.C. §
2907.02(A)(1)(b)&(B). Both GSI counts were alleged to have occurred in 2009 involving two
different minor child victims under the age of 13. The rape count was alleged to have occurred in
2006 and involved a third minor child victim under the age of 13. Petitioner sought to have the
three counts in his May 2009 indictment severed because each alleged offense involved a different
victim at a different time and in a different location and he believed his due process rights would
be severely prejudiced if a jury was allowed to hear evidence on all charges in a single trial. The
trial court granted Petitioner’s motion for severance in part. The court ordered that the GSI counts
– one and two in the indictment – would be tried together. Count three – rape – would be tried
separately. Petitioner was first tried in April 2011 and found guilty of two counts of GSI.
On June 5, 2012, more than a year after a verdict and sentence were entered on counts one
and two, count three was separately tried to the bench. At trial Petitioner was found guilty of the
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lesser included offense of gross sexual imposition in violation of O.R.C. § 2907.05(A)(4) and
scheduled for sentencing on June 7, 2012. At sentencing, the trial court imposed a five year
sentence, to run consecutively with the sentences previously imposed for his convictions on counts
one and two in the indictment for an aggregate term of fifteen years. The trial court further found
that, pursuant to O.R.C. § 2907.05(C)(2)(b), Petitioner’s five year sentence would be mandatory
due his 2011 GSI convictions.
Petitioner contends that the trial court misinterpreted O.R.C. § 2907.05(C)(2)(b) which
provides that an Ohio court “shall impose” a “mandatory prison term” on an offender who “[was]
previously convicted of or pleaded guilty to [gross sexual imposition] . . . and the victim of the
previous offense was less than thirteen years of age.” Petitioner asserts that a prior conviction
resulting from charges severed from a single indictment cannot be considered a “previous
conviction” for the purposes of sentencing. In support of his argument, Petitioner cites an Ohio
Supreme Court decision finding that a sexually-violent-predator specification could only be based
on a conviction entered prior to the indictment charging the specification. State v. Smith, 104 Ohio
St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283.
The version of the statute involved in Smith required that a sexually-violent-predator
specification be included in “the indictment, count in an indictment, or information” as a statement
“in substantially the following form: ‘SPECIFICATION (or SPECIFICATION AS TO THE
FIRST COUNT). The grand jury (or insert the person’s or prosecuting attorney’s name when
appropriate) further find and specify that the offender is a sexually violent predator.’” 1996 Ohio
Laws File 200 (H.B. 180), § 2941.148 (A), effective 1-1-97.
The statute further directed “[i]n determining for purposes of this section whether a person
is a sexually violent predator, all of the factors set forth in divisions (H)(1) to (6) of section 2971.01
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of the Revised Code that apply regarding the person may be considered as evidence tending to
indicate that it is likely that the person will engage in the future in one or more sexually violent
offenses.” 1996 Ohio Laws File 200 (H.B. 180), § 2941.148 (B), effective 1-1-97. At that time
O.R.C. § 2971.01(H)(1) stated “‘Sexually violent predator’ means a person who has been
convicted of or pleaded guilty to committing, on or after January 1, 1997, a sexually violent offense
and is likely to engage in the future in one or more sexually violent offenses.” 1996 Ohio Laws
File 200 (H.B. 180), § 2971.01 (H)(1), effective 1-1-97.
In Smith the Ohio Supreme Court was presented with the issue of whether the conviction
“required to support the sexually violent predator specification” could be alleged in the same
indictment that included the specification. Smith, 104 Ohio St.3d at 116. The Smith Court found
in the negative and held, pursuant the version of O.R.C. § 2971.01(H)(1) then in force, that “only
a conviction that existed prior to the indictment of the underlying offense can be used to support
the specification.” Smith, 104 Ohio St.3d at 116. The Ohio Supreme Court reached this conclusion
using that court’s own principles of statutory interpretation without reference to federal law or
United States Supreme Court precedent.
In 2012, the Ohio Seventh District Court of Appeals declined to apply Smith in Petitioner’s
appeal of his sentence. The reviewing court found that the case was both superseded by statute
and inapposite because unlike the sentencing factor at issue here, Smith dealt with a specification
that must (1) be charged in an indictment as an element of the offense and (2) be proved at trial.
Doc. #5-1. Ex. 13, p. 8. The Ohio statute applied by the trial court to impose a mandatory sentence
on Petitioner includes no indictment or trial prerequisite akin to those analyzed in Smith. Even if
the analysis in Smith had some arguable application to Petitioner’s circumstances, any arguable
relevance was extinguished by the Ohio State Legislature in January 2005 when, approximately
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“[f]our months after the court’s holding in Smith, the legislature amended the statute, effective
April 29, 2005.” State v. Wagers, 12th Dist. Preble No. CA2009-06-018, 2010-Ohio-2311, ¶ 30.
The opening paragraphs of H.B. 473 stated that the purpose of the amendments to O.R.C. §
2971.01(H)(1) were “to clarify that the Sexually Violent Predator Sentencing Law does not require
that an offender have a prior conviction of a sexually violent offense in order to be sentenced under
the law.” 2004 Ohio Laws File 163 (Am. Sub. H.B. 473). After the amendments passed, the
resulting statute, effective April 29, 2005, stated “‘Sexually violent predator’ means a person who,
on or after January 1, 1997, commits a sexually violent offense and is likely to engage in the future
in one or more sexually violent offenses.” O.R.C. § 2971.01(H)(1), 2004 H 473, eff. 4-29-05.
Thus, since April 29, 2005, Smith reflects neither the letter nor the spirit of Ohio sentencing law.
Even if Smith included any reference to Federal Constitutional law, which it does not, any arguable
relevance to Petitioner’s sentencing ended before he committed the offenses he was convicted of
in 2011 and in 2012. No principle articulated in Smith had any application to Petitioner’s
sentencing more than six years after the case was superseded by statute.
Apart from his mistaken references to Smith, Petitioner offers no decisional law or other
legal support for the balance of his sentencing argument. Petitioner objects to decisions made by
Ohio courts applying Ohio sentencing statutes. The United States Supreme Court cautions federal
courts to defer to state court interpretations of state law: “[w]e are mindful that Ohio courts, ‘have
the final authority to interpret . . . that State’s legislation.’” Brown v. Ohio, 432 U.S. 161, 167
(1977) (quoting Garner v. Louisiana, 368 U.S. 157, 169 (1961)) (in Brown the United States
Supreme Court concluded that an Ohio appellate court’s interpretation of an Ohio statute defining
the elements of a crime was authoritative, but reversed on the issue of Federal double jeopardy).
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Simply stated “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers,
497 U.S. 764, 780 (1990); Jackson v. Smith, 745 F.3d 206, 210 (6th Cir. 2014).
Petitioner briefly attempts to remedy the absence of relevant Federal law by citing two
United States Supreme Court cases, Chewning v. Cummingham, 368 U.S. 443 (1962) and Reynolds
v. Cochran, 365 U.S. 525 (1961), that discuss the denial of the right to counsel at trial on recidivist
charges. Petitioner urges this Court to find a basis for 28 U.S.C. § 2254 review, overlooked by the
Magistrate, therein. Petitioner is mistaken. What he requests would not be the application of
clearly established federal law, he is not challenging procedural or substantive fairness of either of
his trials, instead he objects to a state court’s interpretation of what constitutes a prior conviction
for purposes of sentencing. Petitioner has not identified the unreasonable application of clearly
established Federal law expressed by the Supreme Court of the United States necessary to
demonstrate a basis for habeas relief under 28 U.S.C. § 2254. See e.g. Kipen v. Renico, 65 Fed.
Appx. 958, 959 (6th Cir. 2003): “the actual computation of Kipen’s prison term involves a matter
of state law that is not cognizable under 28 U.S.C. §2254” (citing Estelle v. McGuire, 502 U.S. 62,
68 112 S.Ct. 475 (1991) (in which the U.S. Supreme Court found that evidence incorrectly
admitted pursuant to state law did not merit Federal habeas review because “federal habeas corpus
relief does not lie for errors of state law.”)). Without delving any further into the interpretation of
State law that ADEPA was specifically designed to avoid, this Court joins the R&R and the Ohio
Seventh District Court of Appeals and rejects Petitioner’s argument that Smith should in any way
govern his sentence on due process grounds or otherwise. Petitioner has not identified an error of
fact or law in the Magistrate’s Report and Recommendation; accordingly this Court will accept
the R&R as written with regard to Ground One of the Petition. 28 U.S.C. § 636(b)(1). Petitioner’s
objection to the R&R’s analysis of Ground One is OVERRULED.
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(B) Grounds Two and Four
Petitioner’s objections to the R&R’s analysis of his second and fourth grounds for relief
reproduce entire pages of his Traverse to the Writ, simply state his disagreement with the R&R
and the state reviewing court’s decision, and are devoid of the necessary violation of “clearly
established Federal law” or “unreasonable determination of the facts in light of the evidence
presented” necessary to sustain habeas relief under AEDPA. 28 U.S.C. § 2254(d). This Court is
constrained to issue a writ only where such law has been “applied unreasonably, not merely
erroneously or incorrectly.” Williams v. Taylor, supra at 365; Bailey v. Mitchell, supra at 656
(emphasis added). Petitioner has made no such showing. The materials offered in support of his
second and fourth Grounds omit any reference to an unreasonable application of federal law and
instead indicate Petitioner’s dissatisfaction with the evidence presented at trial and counsel’s
decision not to offer duplicative testimony at trial.
Much as Petitioner has ignored the requirements of AEDPA in choosing and framing his
arguments, he has similarly ignored Fed. R. Civ. Pro. 72 (b)(3), which requires him to “specifically
identify the portions of the proposed findings, recommendations, or report to which objection is
made and the basis for such objections,” in making his objections. In lieu of specifically
identifying an error of fact or law in the proposed findings and recommendations, Petitioner has
elected to recycle the arguments made in his Traverse. As such his “objections” which do “nothing
more than state a disagreement with a magistrate’s suggested resolution or simply [summarize]
what has been presented before” are not objections “as that term is used in this context.” Aldrich
v. Bock, 327 F.Supp.2d at 747 citing U.S. v. Walters, 638 F.2d. at 949-950. Thus, in the absence
of a cognizable claim for relief in habeas\and without a substantive objection to the R&R
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Petitioner’s second and fourth grounds for relief are OVERRULED in their entirety. The R&R is
adopted as written as to Petitioner’s second and fourth grounds.
IV.
Conclusion
For the reasons set forth herein, this Court finds Petitioner’s Objections to the R&R on
grounds one, two, and four of his Petition are without merit. Petitioner’s Objections are therefore
OVERRULED. Petitioner states no objection as to his third ground. This Court has reviewed the
Report and Recommendation and, having found it legally and factually accurate, hereby ADOPTS
the Report and Recommendation as to all remaining grounds. The Petition for Writ of Habeas
Corpus is DISMISSED IN ITS ENTIRETY.
This Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that an appeal of this decision
could not be taken in good faith, and that there is no basis upon which to issue a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
/s/ John R. Adams
_________________________________
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF OHIO
Dated: September 27, 2018
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