Pruitt v. Warden, Pickaway Correctional Institution

Filing 8

REPORT AND RECOMMENDATIONS re 4 MOTION to Dismiss filed by Warden, Pickaway Correctional Institution, 1 Petition for Writ of Habeas Corpus filed by Kenneth Pruitt: that respondent's motion to dismiss (Doc. 4) be GRANTED; certificate of appealability SHOULD NOT ISSUE; and IFP should be DENIED. Objections to R&R due by 3/5/2012. Signed by Magistrate Judge Stephanie K. Bowman on 2/16/12. (Attachments: # 1 Certified Mail Receipt) (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KENNETH PRUITT,
Petitioner,

Case No. 1:11-cv-340
Beckwith, J.
Bowman, M.J.

vs.
WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custody at the Pickaway Correctional Institution, has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before
the Court on the petition, respondent’s motion to dismiss (Doc. 4), and petitioner’s response.
(Doc. 5).
I.

PROCEDURAL HISTORY
State Trial and Direct Appeal
On March 26, 2009, the Hamilton County, Ohio grand jury returned a seven count

indictment charging petitioner with three counts of possession of cocaine, in violation of Ohio
Rev. Code § 2924.11(A), two counts of trafficking in cocaine, in violation of Ohio Rev. Code §
2925.03(A), and one count of having weapons while under disability, in violation of Ohio Rev.
Code § 2923.13(A)(3). (Doc. 4, Ex. 1). On March 22, 2010, after having entered a not-guilty
plea, petitioner withdrew his initial plea and plead guilty to the charges. (Doc. 4, Ex. 2).
Petitioner was sentenced to an aggregate sentence of five (5) years on August 3, 2010.1 (Doc. 4,

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On May 17, 2010, prior to receiving his sentence, petitioner filed a petition for a writ of habeas corpus in
Case No. 1:10-cv-313. (Doc. 4, Ex. 4); see Pruitt v. Warden, 1:10-cv-313 (S.D. Ohio May 17, 2010) (Barrett, J;
Hogan, M.J.) (Doc. 1). The Court issued a Report and Recommendation recommending that the petition be
dismissed without prejudice, finding that the motion was premature and that petitioner had not exhausted his claims
for relief in the state court. (See Doc. 4, Ex. 5). On June 25, 2010, the Court adopted the Report and
Recommendation and the petition was denied without prejudice. (Doc. 4, Ex. 6, p. 2).

Ex. 3).
Through counsel, petitioner filed a timely appeal to the Ohio Court of Appeals on September
1, 2010. (Doc. 4, Ex. 7). In his brief, petitioner raised three assignments of error:
1.

THE TRIAL COURT ERRED AS A MATTER OF LAW BY
OVERRULING APPELLANT’S MOTION TO WITHDRAW HIS GUILTY
PLEA.

2.

THE TRIAL COURT ERRED AS A MATTER OF LAW BY
SENTENCING APPELLANT TO ALLIED OFFENSES OF SIMILAR
IMPORT.

3.

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS THUS
PREJUDICING HIS RIGHT TO A FAIR HEARING.

Id. On September 30, 2011, the Ohio Court of Appeals affirmed the judgment of the trial court
with regard to assignment of error one and three.2 The appellate court sustained petitioner’s
claim “that he was improperly convicted of trafficking and possession charges where they were
allied offenses of similar import and, as such, should have been merged at sentencing.” See
supra n.2. The Court remanded the case to the trial court for re-sentencing and, on November
14, 2011, the trial court dismissed three counts of the indictment and sentenced petitioner to an
aggregate sentence of five years.3
Post Conviction Proceedings
On August 11, 2010, petitioner filed a motion for jail time credit, requesting that the trial
court reduce his sentence pursuant to Ohio Rev. Code § 2945.71(E). See supra n.3. Petitioner

2

In the motion to dismiss, respondent noted that at the time of filing no decision had been rendered in
petitioner’s appeal. (Doc. 4, p. 3). However, since the motion was filed, the Ohio Court of Appeals issued a
judgment affirming in part and reversing in part. The decision was found at www.courtclerk.org/case.asp, under
Case No. C 1000587.
3

Found at www.courtclerk.org/case.asp, under Case No. B 0901851.

2

argued that he had been confined from March 18, 2009 through July 28, 2010, that each day of
confinement is computed as three days under § 2945.71(E), and that he should therefore be
credited for approximately 1,500 days of jail time. Id. On August 24, 2010, the trial court
granted petitioner’s motion and granted “credit for time served for a total of 11 days credit (as of
the date of sentencing), plus conveyance time to the institution.” Petitioner filed a motion to
clarify the trial court’s entry granting his motion for jail time credit on December 13, 2010,
noting that the trial court had found his motion “well taken,” but had omitted the amount of jailtime credit awarded. (Doc. 4, Ex. 12, p. 6). On February 17, 2011, the trial court granted
petitioner’s motion for jail time credit, granting petitioner credit for 1530 days. (Doc. 4, Ex. 10).
The following day, the trial court entered an order setting aside the prior order, re-granting
petitioner’s motion for jail time, and awarding petitioner 553 days credit. (Doc. 4, Ex. 11).
Petitioner filed a letter and motion to verify the entry granting his motion for jail credit with the
court, however on April 26, 2011, the trial court issued an order denying all pending motions.
(See Doc. 4, Ex. 13).
Petitioner subsequently filed a petition to vacate or set aside judgment of conviction or
sentence, a motion for expedient nunc pro tunc ruling, a motion for expert assistance, and a
motion for appointment of counsel. (Doc. 4, Exs. 12, 14; supra n.3). Petitioner moved the court
to reinstate its order granting him jail-time credit of 1530 days in his motion for expedient nun
pro tunc ruling. (Doc. 4, Ex. 12). In the petition to vacate, petitioner also argued that he was
deprived of his constitutional rights under the Sixth Amendment because he “was not provided
proper notification, pursuant to Section 2925.51 of the Ohio Revised Code . . . of the alleged
substances found in [his] apartment.” (Doc. 4, Ex. 14, p. 4). On May 4, 2011, the trial court
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entered an order denying all pending motions. (Doc. 4, Ex. 15).
On July 8, 2011, petitioner filed a “complaint” to the Ohio Court of Appeals, challenging
the trial court’s rulings regarding his jail time credits and other post-conviction motions. (Doc. 4,
Ex. 16). Construing the filing as a petition for a writ of mandamus, the Ohio appellate court
dismissed petitioner’s petition on August 24, 2011.4 (See Doc. 5, p. 2). It does not appear that
petitioner has appealed this decision to the Ohio Supreme Court.
On July 13, 2011, petitioner filed a second motion for a nunc pro tunc ruling with the trial
court. See supra n.3. Therein, petitioner questioned the validity of the signatures on the trial
court’s order granting him 553 days of jail credit and subsequent orders dismissing all pending
motions. Petitioner argued “that since the ‘validity’ of the signatures hasn’t been authenticated
then this alone makes those orders invalid and would reinstitute the February 17, 2011 motion.”
Id. On July 15, 2011, the trial court denied petitioner’s motion, again dismissing all pending
motions. Id.
On November 28, 2011, petitioner filed a notice of appeal with the Ohio Court of
Appeals.5 The online docket indicates that the appeal remains pending. Petitioner has been
assigned counsel and, on December 21, 2011, the case was placed on the appellate court’s
accelerated calendar.
Finally, on January 24, 2012, petitioner filed a motion for correction, asking the trial court
to correct its order concerning jail time credit. Supra n.3. Petitioner’s motion was denied on
January 25, 2011. Id.

4

Entry found at www.courtclerk.org/case.asp, under Case No. C 1100419.

5

Found at www.courtclerk.org/case.asp, under Case No. C 1100768.

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Ohio Supreme Court
Meanwhile, acting pro se, petitioner filed a notice of appeal to the Supreme Court of Ohio
on November 9, 2011.6 In his memorandum in support of jurisdiction, petitioner argues that he
was forced to plead guilty and that “the appellat[e] court should have sustained Appellant’s first
assignment of error,” which challenged the trial court’s failure to withdraw his guilty plea. See
supra n.6. Petitioner also notes that he was “misled by his trial counsel, and his trial counsel was
ineffective.” Id. Petitioner argues that counsel failed to raise any pretrial issues in his case and
that he was forced to file pro se motions throughout pretrial proceedings. Id. To date, it does not
appear that the Ohio Supreme Court has issued a ruling in his case.
Federal Habeas Corpus
On May 24, 2011, prior to filing his appeal to the Ohio Supreme Court, petitioner filed
the instant petition. Petitioner raises two grounds for relief:
GROUND ONE: My motion for jail time credit was granted on February
17th, 2011, and the trial court’s bailiff interfered with the Court’s decision,
and had the Bureau of Sentence Computation change my release date, on
February 18th, 2011.
Supporting Facts: On February 17th, 2011, an entry granting motion for
jail time credit was signed by the presiding judge. The Adult Parole Board
Authority then made their decision, on the same date, to place me on Post
Release Control, for a term of 5 yrs. On February 18th, 2011, the Court’s
Bailiff sent the Bureau of Sentence Computation an order, unaccompanied
by the Judge’s signature, which minused (sic) 977 days of credit for time
served, the presiding Judge had previously granted, and clarified.
GROUND TWO: I filed a petition for post conviction relief on May 2nd,
2011, and it was denied by the Court’s Bailiff on May 4th, 2011, without
reason.

6

Found at http://www.sconet.state.oh.us/Clerk/ecms/, under Case No. 2011-1907.

5

Supporting Facts: I was charged with all counts of my indictment after I
was arrested in March 2009. I never received a notification to identify the
substances I was being charged with. I was also deprived of a fast and
speedy trial. The motion for jail time credit was granted, and clarified by
the presiding Judge on February 17th, 2011, but the Bailiff was interfering
and denying all my motions, so I filed a post conviction relief petition.
(Doc. 1, pp. 6-8).
Respondent opposes the petition and has filed a motion to dismiss. (Doc. 4). Therein,
respondent contends that the petition should be dismissed without prejudice because petitioner’s
claims are unexhausted. Id.
II.

RESPONDENT’S MOTION TO DISMISS SHOULD BE GRANTED
In Ground One of the petition, petitioner contends that the trial court’s bailiff interfered

with the trial court’s decision to award him jail time credits. (Doc. 1, p. 5). In Ground Two of
the petition, petitioner argues that he was deprived of due process on account of his never
receiving “notification to identify the substances I was being charged with” pursuant to Ohio
Rev. Code § 2925.51, and that he was deprived of a fast and speedy trial. (Doc. 1, pp. 6-8). As
noted previously, respondent contends that the petition should be dismissed without prejudice,
arguing that petitioner’s claims are unexhausted and currently pending before the Ohio courts.
(Doc. 4, p. 8).
The resolution of this issue requires an understanding of the principles of exhaustion and
waiver in habeas corpus cases, which although overlapping to some degree, are separate and
distinct concepts leading to either dismissal of unexhausted claims without prejudice when
exhaustion principles are applied or the denial of such claims with prejudice when waiver

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principles are invoked.7
The waiver and exhaustion principles are premised on the same underlying rationale. In
recognition of the equal obligation of the state courts to protect the constitutional rights of
criminal defendants, and in order to prevent needless friction between the state and federal
courts, a state defendant with federal constitutional claims must first fairly present those claims
to the state courts for consideration before raising them in a federal habeas corpus action. See 28
U.S.C. § 2254(b)(1), (c); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard
v. Connor, 404 U.S. 270, 275-76 (1971). A constitutional claim for relief must be presented to
the state’s highest court in order to satisfy the fair presentation requirement. See O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy
v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir. 1985).
Although premised on the same concerns, the waiver and exhaustion doctrines are
distinguishable in that they are applied in distinctly different situations. If the petitioner fails to
fairly present his claims through the state courts, but still has an avenue open to him in the state
courts by which he may present the claims, his petition may be dismissed without prejudice (or in

7

Because the instant petition is not a “mixed” petition containing both exhausted and unexhausted claims,
see Rose v. Lundy, 455 U.S. 509 (1982), the “stay-and-abeyance” procedure adopted to protect “the class of
petitioners whose timely filed habeas petitions remain pending in district court past the limitations period, only to be
dismissed after the court belatedly realizes that one or more claims have not been exhausted,” Duncan v. Walker,
533 U.S. 167, 184 (2001) (Stevens, J., concurring), is inapplicable. Under such procedure, the district court may
stay the exhausted portion of the petition pending the resolution of the unexhausted claims in the state courts.
However, in cases such as this, where the petitioner has failed to exhaust any of his claims for relief, the court has no
basis to retain jurisdiction during the time petitioner returns to the state courts to exhaust an available remedy. See,
e.g., Carpenter v. Reynolds, 212 F.Supp.2d 94, 98 (E.D.N.Y. 2002); Baity v. McCary, No. 02 Civ.1817 LAPAJP,
2002 W L 31433293, at *2 & n.3 (S.D.N.Y. Oct. 31, 2002) (unpublished) (and cases cited therein); cf. Stedman v.
Hurley, No.1:05cv2051, 2006 W L 2864319, *8-9 (N.D. Ohio Oct. 4, 2006) (Report & Recommendation)
(unpublished) (involving a petition containing only exhausted claims, where the petitioner sought to exhaust a claim
not alleged in the petition); Razo v. Bradshaw, 1:05cv1106, 2006 W L 1805896 (N.D. Ohio June 29, 2006)
(unpublished) (same). In any event, a stay is inappropriate in the absence of “good cause” for petitioner’s failure to
exhaust his claims first in the state courts as required under Rhines v. Weber, 544 U.S. 269, 277 (2005).

7

cases involving “mixed” petitions, administratively stayed) pending his exhaustion of the
available state remedy. See 28 U.S.C. § 2254(c); see also Duncan v. Walker, 533 U.S. 167, 18284 (2001) (Stevens, J., concurring); Griffin v. Rogers, 308 F.3d 647, 652 & n.1 (6th Cir. 2002);
cf. Rhines v. Weber, 544 U.S. 269, 276-77 (2005). The exhaustion requirement is not
jurisdictional, and an application for writ of habeas corpus may be denied on the merits
notwithstanding the petitioner’s failure to exhaust state remedies. See 28 U.S.C. § 2254(b)(2).
Nevertheless, there is a strong presumption in favor of requiring exhaustion of state court
remedies. See Granberry v. Greer, 481 U.S. 129, 131 (1987).
On the other hand, if petitioner fails to fairly present his claims through the requisite
levels of state appellate review to the state’s highest court or commits some other procedural
default relied on to preclude review of the merits of his claims by the state’s highest court, and if
no avenue of relief remains open or if it would otherwise be futile for petitioner to continue to
pursue his claims in the state courts, the petition is subject to dismissal with prejudice on the
ground that petitioner has waived his claims for habeas corpus relief. See O’Sullivan, 526 U.S. at
847-48; Harris v. Reed, 489 U.S. 255, 260-62 (1989); McBee v. Grant, 763 F.2d 811, 813 (6th
Cir. 1985); see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989). If, because of a
procedural default, petitioner has not had his claims considered by the state’s highest court and
he can no longer present his claims to the state courts, he has waived the claims for purposes of
federal habeas corpus review unless he can demonstrate cause for the procedural default and
actual prejudice resulting from the alleged constitutional errors, or that failure to consider the
claims will result in a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991); see also Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S.
8

107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In this case, it is clear from the record before the Court that petitioner has not exhausted
his available state court remedies with respect to his two grounds for relief. Although petitioner
raised these claims in his May 2, 2011 post-conviction petition in the trial court and in his July 8,
2011 “complaint” to the Ohio Court of Appeals, petitioner has not presented the claims to the
Ohio Supreme Court. Furthermore, because petitioner did not appeal to the Ohio Supreme Court
within 45 days of the Ohio Court of Appeals’ August 24, 2011 judgment, as is required under
Ohio Sup. Ct. R. II, § 2(A)(1), petitioner may no longer have an avenue of relief for these claims.
See Ohio Sup. Ct. R. II, § 2(A)(4)(c) (noting that the provisions for delayed appeals do not apply
to appeals involving post-conviction relief).
Nevertheless, out of an abundance of caution and because petitioner currently has a
pending appeal in Case No. C 1100768 before the Ohio Court of Appeals,8 petitioner’s
unexhausted claims should not be dismissed with prejudice as waived, but rather without
prejudice on exhaustion grounds. The Court is unable to determine whether petitioner’s pending
appeal includes any of the grounds for relief raised in the instant petition. Because Ohio R. App.
P. 5(A) provides the Ohio Court of Appeals with the discretion to consider a delayed appeal, it is
at least possible that petitioner could exhaust his claims by presenting them to the Ohio Supreme
Court if unsuccessful in the Court of Appeals.
The Court also notes that the one year statute of limitations set forth in 28 U.S.C. §

8

Supra n.5.

9

2244(d)(1)(A) has not yet begun to run because petitioner’s conviction is not yet “final.”9
Because the statute of limitations has not commenced running in this case, petitioner “is not in
danger of running afoul of the statute of limitations so long as he diligently pursues his state
court remedies” currently pending in the Ohio courts. Cf. Mingo v. Michigan, No. 1:06-CV-24,
2006 WL 151901, at *3 (W.D. Mich. Jan. 18, 2006) (unpublished). Accordingly, dismissal of
this federal habeas corpus proceeding for lack of exhaustion is warranted so that petitioner can
fully exhaust his state remedies and then return to this Court, if he so desires, after exhaustion
has been properly and fully accomplished.
IT IS THEREFORE RECOMMENDED THAT:
1.

Respondent’s motion to dismiss (Doc. 4) be GRANTED and the petition (Doc. 1)

be dismissed without prejudice to refiling after petitioner has exhausted his state court remedies.
2.

A certificate of appealability should not issue under the standard set forth in Slack v.

McDaniel, 529 U.S. 473, 484-85 (2000), because “jurists of reason” would not find it debatable
whether this Court is correct in its procedural ruling that petitioner has failed to exhaust state
remedies and that this case should be dismissed without prejudice pending exhaustion of such
remedies.10 Cf. Mingo, supra, 151901, at *4.
3.

With respect to any application by petitioner to proceed on appeal in forma pauperis, the

Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this

9

Under § 2244(d)(1)(A), the statute begins to run when the judgment of conviction becomes “final” by the
conclusion of direct review or the expiration of time for seeking such review. As respondent has noted in the motion
to dismiss, because direct review has not concluded, petitioner’s judgment has not become final under §
2244(d)(1)(A).
10

Because this Court finds the first prong of the Slack standard has not been met in this case, it need not
address the second prong of Slack as to whether or not “jurists of reason” would find it debatable whether petitioner
has stated viable constitutional claims for relief in his habeas petition. See Slack, 529 U.S. at 484.

10

Report and Recommendation would not be taken in “good faith,” and therefore DENY petitioner
leave to appeal in forma pauperis. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d
949, 952 (6th Cir. 1997).

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KENNETH PRUITT,
Petitioner,

Case No. 1:11-cv-340
Beckwith, J.
Bowman, M.J.

vs.
WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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