Lashley v. Sloan
Filing
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Memorandum of Opinion and Order For the reasons set forth herein, Petitioner's Objections (ECF No. 15 ) are overruled and the Report and Recommendation (ECF No. 14 ) of the Magistrate Judge is hereby adopted. Respondent's Supplem ental Motion to Dismiss (ECF No. 10 ) is granted for the reasons explained in the Report and Recommendation. The Petition for a Writ of Habeas Corpus (ECF No. 1 ) is dismissed as untimely. The Court certifies that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Judge Benita Y. Pearson on 8/31/2018. (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ELIJAH J. LASHLEY, SR.,
Petitioner,
v.
WARDEN BRIGHAM SLOAN,
Respondent.
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CASE NO. 4:17CV1645
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 10]
Pro se Petitioner Elijah Lashley, Sr. filed a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (ECF No. 1), alleging one ground of relief that challenges the constitutional
sufficiency of his conviction in Mahoning County Court of Common Pleas Case No. 2015 CR
563. The case was referred to Magistrate Judge William H. Baughman, Jr. for a Report and
Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(2). Respondent filed a
motion to vacate order for an answer, or in the alternative, a motion to dismiss without prejudice
the unsigned, unverified, and unexhausted petition. ECF No. 8. In response, Petitioner filed an
“Addition” to his petition meant to provide a missing signature and verify facts earlier submitted.
ECF No. 9. Respondent then filed a supplemental motion to dismiss. ECF No. 10. The
magistrate judge issued a report recommending that the motion to dismiss be granted on grounds
other than those Respondent raised. ECF No. 14. Petitioner filed timely objections. ECF No.
15. The Court, after reviewing the objections, hereby adopts the report and recommendation, and
dismisses the petition for the reasons given by the magistrate judge.
(4:17CV1645)
I. Background
Petitioner pleaded guilty to two counts of kidnapping and two counts of felonious assault.
The trial court sentenced Petitioner to ten-year concurrent sentences for the kidnaping charges
and three-year concurrent sentences for the felonious assault charges. The felonious assault
sentences were to run consecutive to the kidnapping sentences. The trial court, however, did not
make any consecutive sentence findings. It reconvened the parties for a sentencing hearing
before it entered the sentencing entry. The trial court then sentenced Petitioner to the terms it
previously described, including consecutive sentences. The trial court issued its sentencing entry
on May 9, 2016. But when it did so, it failed to include the consecutive sentencing findings.
Petitioner filed a delayed appeal to the Ohio Seventh District Court of Appeals. The
Seventh District remanded the case to the trial court for the trial court to issue a nunc pro tunc
sentencing entry that included applicable consecutive sentence findings. State v. Lashley, 7th
Dist. Mahoning No. 16MA0094, 2017-Ohio-4026.
Petitioner did not appeal the Seventh District’s decision. Instead, Petitioner filed the
present habeas action.
Respondent filed a motion to dismiss, arguing, among other things, that Petitioner failed
to sign his petition. ECF No. 8. After Petitioner corrected this error (see ECF No. 9), the
magistrate judge denied Respondent’s motion as moot. ECF No. 13.
After Petitioner corrected his petition, Respondent filed a supplemental motion to
dismiss. ECF No. 10.
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In his Report and Recommendation granting Respondent’s supplemental motion to
dismiss, the magistrate judge held that re-sentencing Petitioner using a nunc pro tunc order does
not raise Double Jeopardy concerns.1
On July 3, 2018, the trial court re-sentenced Petitioner in a nunc pro tunc order. He
received sentences of 10 years on each of the kidnapping charges and sentences of three years on
each felonious assault charge. The kidnapping sentences run concurrent to each other; the
felonious assault sentences also run concurrent to each other. The kidnapping sentences are
consecutive to the felonious assault sentences.
II. Standard of Review for a Magistrate Judge’s Report and Recommendation
When objections have been made to the Magistrate Judge’s Report and Recommendation,
the District Court standard of review is de novo. Fed. R. Civ. 72(b)(3). A district judge:
must determine de novo 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.
Id.
Accordingly, this Court has conducted a de novo review of the portions of the Magistrate
Judge’s Report to which Petitioner has properly objected.
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Respondent’s motion was based on a failure to exhaust. Although the magistrate
judge granted the motion, he did so under a rationale different than exhaustion.
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(4:17CV1645)
III. Discussion
Petitioner makes three objections to the Report and Recommendation. First, Petitioner
contends that Respondent failed to show the true cause of his custody. ECF No. 15 at PageID #:
151-52. Second, Petitioner argues that the magistrate judge mischaracterized his Double
Jeopardy claim as a matter of state law. Id. at PageID #: 152-53. Third, Petitioner asserts that
the magistrate judge failed to analyze properly whether Petitioner’s claim was exhausted before
he filed his habeas action. Id. at PageID #: 154. None of these objections are well-taken.
As to Petitioner’s first two objections, entering a nunc pro tunc judgment entry that
corrects a prior error does not implicate Double Jeopardy. Dukles v. Chuvalas, No. 15CV2164,
2017 WL 3447830, at *11-14 (N.D.Ohio Jul. 5, 2017) (Parker, Mag. J.) adopted by 2017 WL
3438552 (Aug. 10, 2017) (appeal pending). In the present case, much like in Dukles, the use of a
nunc pro tunc judgment only corrected a judgment; therefore, it “was not a reconsideration of a
valid final judgment.”2 Id. at *13, n. 7 (quotation and emphasis omitted). Because the nunc pro
tunc entry was clerical, rather than substantive, Petitioner’s first two objections lack merit, as
they do not implicate Double Jeopardy.3
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The trial court issued a nunc pro tunc judgment entry after the magistrate judge
issued his report and recommendation, but that does not alter the magistrate judge’s
analysis. The magistrate judge held that the entry of a nunc pro tunc order that does not
substantially change the sentence in the original order would not implicate Double
Jeopardy or affect issues of exhaustion. See ECF No. 14 at PageID #: 147-49. The trial
court’s nunc pro tunc entry is not substantially different from what the trial court initially
intended when sentencing Petitioner.
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Petitioner contends that the magistrate judge erred by not accepting his theory as
(continued...)
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(4:17CV1645)
As to Petitioner’s third objection, the magistrate judge was correct that exhaustion does
not apply. That is so, because “Ohio law does not permit an appeal from a judgment entry
changed nunc pro tunc.” Davis v. Coleman, No. 11CV996, 2012 WL 967300, at *6 (N.D.Ohio
Mar. 6, 2012) (Burke, Mag. J.) adopted by 2012 WL 5385209 (Nov. 1, 2012).
Petitioner contends that the magistrate judge should have relied on Harpster v. State of
Ohio, 128 F.3d 322 (6th Cir. 1997) for the proposition that he is entitled to have his Double
Jeopardy claim heard before entry of the nunc pro tunc judgment. While Harpster stands for the
proposition that Double Jeopardy challenges are properly heard before the second instance of
jeopardy (see id. at 325-26), that does not affect the outcome in this case. The Report and
Recommendation did not hold that the Double Jeopardy claim was not ripe; it held that the
Double Jeopardy claim lacked merit. Thus, Harpster does not control, and Petitioner’s third
objection is overruled.
IV. Conclusion
For the foregoing reasons, Petitioner’s Objections (ECF No. 15) are overruled and the
Report and Recommendation (ECF No. 14) of the Magistrate Judge is hereby adopted.
Respondent’s supplemental motion to dismiss (ECF No. 10) is granted for the reasons explained
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true (ECF No. 15 at PageID #: 151), but he misunderstands the mechanics of a motion to
dismiss. When ruling on a motion to dismiss, a court only construes the allegations in a
petition in a light most favorable to the petitioner, not the legal conclusions. See Urbina
v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001) (“In ruling on a motion to dismiss, the
allegations in a pro se petition must be taken as true and construed in favor of the
petitioner.”).
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in the Report and Recommendation. The Petition for a Writ of Habeas Corpus (ECF No. 1) is
dismissed as untimely. The Court certifies that there is no basis upon which to issue a certificate
of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
August 31, 2018
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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