Brown v. Warden Warren Correctional Institution

Filing 35

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - The Magistrate Judge again respectfully recommends that the Petition be dismissed with prejudice and that Brown be denied a certificate of appealability and leave to appeal in forma pauperis. Objections to R&R due by 4/7/2014. Signed by Magistrate Judge Michael R Merz on 3/20/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JAMES L. BROWN,
Petitioner,

:

- vs -

Case No. 1:12-cv-644
Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

WARDEN, Warren Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by petitioner James L. Brown, is before the
Court on Brown’s Objections (Doc. No. 33) to the Magistrate Judge’s Report and
Recommendations recommending dismissal with prejudice (the “Report,” Doc. No. 30). Chief
Judge Dlott has recommitted the case for reconsideration in light of the Objections (Doc. No.
34).
Brown pleads the following grounds for relief:
Ground One: The trial court erred by imposing maximum,
consecutive sentences under each trial case number without
considering the purposes and principles of sentencing pursuant to
violation of my Fourteenth Amendment right under the United
States Constitution.
Ground Two:
Appellant’s convictions for robbery and
kidnapping were allied offenses of similar import. Trial court
violation of Appellant’s constitutional rights by sentencing him to
maximum and consecutive sentences violating his Eight [sic] and
Fourteenth Amendment rights under the United States
Constitution.

1

(Petition, Doc. No. 1, PageID 6-8.) The Report recommended that the First Ground for Relief be
dismissed as procedurally defaulted because Brown had not fairly presented that claim to the
state courts as a federal constitutional claim (Report, Doc. No. 30, PageID 332-33). Brown
makes no objection to that analysis and recommendation and it should therefore be adopted.
As to the Second Ground for Relief, the Warden had argued that this claim also was
procedurally defaulted by being presented to the state courts only as a state law claim under the
Ohio multiple offenses statute, Ohio Revised Code § 2941.25.

(Respondent’s Motion to

Dismiss, Doc. No. 15, PageID 56.) The Report rejected that position and found that this claim
had been fairly presented as a Double Jeopardy claim because Ohio Revised Code § 2941.25 has
been held to protect the same interests. (Report, Doc. No. 30, PageID 333), citing State v.
Johnson, 128 Ohio St. 3d 153 (2010). Nevertheless, the Report found that, as a decision on the
merits of the Double Jeopardy claim, the First District’s decision was entitled to deference under
28 U.S.C. § 2254(d)(1) and that it was neither contrary to nor an objectively unreasonable
application of Supreme Court precedent on this subject. Id. at 333-36.
Brown objects that the First District did not decide the merits of his Double Jeopardy
claim, even though he presented it fairly (Objections, Doc. No. 33, PageID 344). He relies on
Randy Hertz and James S. Liebman, Federal Habeas Corpus Practice and Procedure, Sixth
Edition § 32.2, which asserts
A state court decision also cannot be classified as an “adjudication
on the merits” if the state court failed to resolve all determinative
issues of federal law, either because they were not before the state
court [footnote omitted] or because the state court’s framing or
analysis of the claim omitted one or more dimensions of the
requisite constitutional analysis.
Id. at 1752-54, citing, inter alia, Porter v. McCollum, 558 U.S. 30, 39 (2009); Rompilla v.
Beard, 545 U.S. 374, 390 (2005); Miller v. Stovall, 608 F.3d 913, 921-22 (6th Cir. 2010); Wynne
2

v. Renico, 606 F.3d 867, 870 (6th Cir. 2010); English v. Romanowski, 602 F.3d 714, 728 (6th Cir.
2010); McElrath v. Simpson, 595 F.3d 624, 631 (6th Cir. 2010); Johnson v. Bagley, 544 F.3d 592,
603 (6th Cir. 2008); and other Sixth Circuit cases. The reader will note, however, that all of the
cited cases were decided before Harrington v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770, 792
(2011).

As Hertz and Liebman acknowledge in the 2014 Supplement to their treatise,

Harrington requires federal courts to presume a state court decision was an adjudication on the
merits of the federal claim if it decides that claim, even if it gives no explanation at all.
Supplement at 146. And in its later case, Johnson v. Williams, 133 S. Ct. 1088 (2013) , the
Supreme Court held the presumption would apply if the state law standard is “at least as
protective as the federal standard.” Id. at 1096. .
There can be no doubt that Ohio Revised Code § 2941.25 is more protective of the
interests of a person in not being punished multiple times for one act than the Double Jeopardy
Clause. Offenses are distinct for federal Double Jeopardy purposes if one of the offenses has an
element that the other does not. United States v. Dixon, 509 U.S. 688, 696 (1993); Blockburger
v. United States, 284 U.S. 299, 304 (1932). In contrast, multiple punishments are prohibited
under Ohio Revised Code § 2941.25 if the offenses in question are allied offenses of similar
import committed with the same animus. State v. Johnson, 128 Ohio St. 3d 153 (2010). That is a
much stronger protection than the Double Jeopardy case law provides.
Therefore the First District’s decision in this case is an adjudication of the merits of the
Double Jeopardy claim entitled to deference under 28 U.S.C. § 2254(d)(1). But Brown argues
that the First District’s decision is erroneous as a matter of Double Jeopardy law whether it is
reviewed deferentially or de novo (Objections, Doc. No. 33, PageID 345-46).
Brown relies on Harris v. Oklahoma, 433 U.S. 682 (1977), where the Supreme Court

3

held that when conviction for the more serious crime (felony murder) could not be had without
conviction of the lesser crime (robbery with firearms) the Double Jeopardy Clause barred
conviction on the lesser offense after conviction on the greater.

Brown asserts his own

convictions for robbery and kidnapping cannot survive the same elements test applied in Harris
(Objections, Doc. No. 33, PageID 345, citing Blockburger, supra; Brown v. Ohio, 432 U.S. 161,
165(1977); and Gavieres v. United States, 220 U.S. 338 (1911)). The relevant Ohio statutes are:
§ 2911.02. Robbery
(A) No person, in attempting or committing a theft offense or in
fleeing immediately after the attempt or offense, shall do any of the
following:
(1) Have a deadly weapon on or about the offender's person or
under the offender's control;
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on
another;
(3) Use or threaten the immediate use of force against another.

§ 2905.01. Kidnapping
(A) No person, by force, threat, or deception, or, in the case of a
victim under the age of thirteen or mentally incompetent, by any
means, shall remove another from the place where the other person
is found or restrain the liberty of the other person, for any of the
following purposes:
(1) To hold for ransom, or as a shield or hostage;
(2) To facilitate the commission of any felony or flight thereafter;
(3) To terrorize, or to inflict serious physical harm on the victim or
another;
(4) To engage in sexual activity, as defined in section 2907.01 of
the Revised Code, with the victim against the victim's will;
(5) To hinder, impede, or obstruct a function of government, or to
4

force any action or concession on the part of governmental
authority;
(6) To hold in a condition of involuntary servitude.

Comparing the elements of these two offenses, a theft or attempted theft is a necessary
element of robbery but not of kidnapping. Conversely, a removal or restraint is a necessary
element of kidnapping but not of robbery. Thus convictions of both of these offenses arising
from the same criminal transaction do not offend the Double Jeopardy Clause.
Reverting back to arguments about state law, Brown argues that the Ohio Supreme Court
has held that “kidnapping and robbery are not separate offenses otherwise permitting multiple
punishments.” (Objections, Doc. No. 33, PageID 346, citing State v. Winn, 121 Ohio St. 3d 413
(2009).) The First District dealt with this claim as follows:
[*P23] In his fifth and final assignment of error, Brown contends

that he was improperly sentenced because the charges for robbery
and kidnapping involved allied offenses of similar import.
[*P24] Under R.C. 2941.25, if a defendant commits two or more
allied offenses of similar import, he can only be convicted of one.
But if two allied offenses are committed with a separate animus,
the defendant may be convicted of each. R.C. 2941.25(B). The
Ohio Supreme Court has recognized that, unless there is a separate
animus, the commission of robbery necessarily results in the
commission of a kidnapping, and therefore that the crimes are
allied offenses of similar import under R.C. 2941.25(A). State v.
Cabrales, 118 Ohio St.3d 54, 2008 Ohio 1625, 886 N.E.2d 181, at
P18, citing State v. Fears, 89 Ohio St.3d 329, 344, 1999 Ohio 111,
715 N.E.2d 136; see, also, State v. Winn, 121 Ohio St.3d 413, 2009
Ohio 1059, 905 N.E.2d 154 (holding that aggravated robbery and
kidnapping are allied offenses of similar import under R.C.
2945.21[A]).
[*P25] The question then is whether the robbery and the

kidnapping in this case were committed with a separate animus.
The Ohio Supreme Court has held that "[w]here the restraint or
movement of the victim is merely incidental to a separate
underlying crime, there exists no separate animus sufficient to
5

sustain separate convictions; however, where the restraint is
prolonged * * * [or] where the asportation or restraint of the victim
subjects the victim to a substantial increase in risk of harm separate
and apart from that involved in the underlying crime, there exists a
separate animus as to each offense to support separate
convictions." State v. Logan (1979), 60 Ohio St. 2d 126, 397 N.E.
2d 1345, syllabus. See, also, Fears, supra.
[*P26] In this case, the state demonstrated a separate animus for
the kidnapping charges. After Brown and his accomplices had
stuffed money from the bank into their bags, the robbery was over.
But at that [**13] point, one of the robbers then told the bank
employees, "[D]on't move if you value your life." The robbers then
left. The employees did not immediately move to pull the alarm
after the robbers had left due to their fear of being harmed, and
thus their liberty was effectively restrained apart from the robbery.
Accordingly, it was proper for the trial court to enter separate
convictions for the kidnappings.
State v. Brown, 2009 Ohio App. LEXIS 1675 (1st Dist. Apr. 24, 2009). In other words, the First
District recognized that robbery and kidnapping are allied offenses of similar import under Ohio
law and cannot be punished separately unless they are committed with a separate animus, which
the Court found happened here. Determining whether there was a separate animus within the
meaning of Ohio Revised Code § 2941.25 is a question of applying state law to fact. This Court
cannot overturn that determination at all with respect to the interpretation of state law and only
on the facts if it is unreasonable in light of the state court evidence of record. The fact that it is
common to tell bank employees not to move on peril of their lives after you have robbed them
does not mean they are not separate crimes, so the First District’s determination of separate
animus is not unreasonable.

Conclusion

Having reconsidered the case in light of Petitioner’s Objections, the Magistrate Judge
6

again respectfully recommends that the Petition be dismissed with prejudice and that Brown be
denied a certificate of appealability and leave to appeal in forma pauperis.
March 20, 2014.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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 Recommendations are based in whole or in part upon matters occurring of 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 fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

7