Kirchoff v. Warden, Chillicothe Correctional Institution

Filing 16

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - The Petition is both procedurally barred and without merit and should be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous. Objections to R&R due by 9/15/2014. Signed by Magistrate Judge Michael R Merz on 8/27/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
MARK G. KIRCHOFF,
Petitioner,

:

- vs -

Case No. 1:13-cv-362
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

NORM ROBINSON, WARDEN,
Chillicothe Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This case is before the Court on Petitioner=s Objections (Doc. No. 13) to the Magistrate
Judge’s Report and Recommendations (the “Report,” Doc. No. 11).

Judge Barrett has

recommitted the case for reconsideration in light of the Objections (Doc. No. 14). As permitted
by Fed. R. Civ. P. 72, the Warden has filed a Response to the Objections (Doc. No. 15).
Kirchoff pleads three grounds for relief. The Report recommended that all three be
dismissed as barred by the federal one-year statute of limitations and as barred by Kirchoff’s
procedural defaults in presenting them to the Ohio courts. The Report also concluded in the
alternative that all three grounds were without merit. Kirchoff objects to all conclusions reached
in the Report.
Kirchoff’s overarching objection is that the Magistrate Judge has recommended dismissal
on what he calls “technicalities.” He asserts that as a pro se litigant he should not be barred by
technicalities, citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Petitioner fails to

distinguish between liberal construction of pleadings, which Haines supports, and ignoring the
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procedural requirements of federal habeas corpus law, which Haines does not support.

For

example, 28 U.S.C. § 2244, the statute of limitations, requires that a petition be filed within one
year of the date the conviction is final. Nothing in Haines or any other Supreme Court case
known to the Magistrate Judge provides that if a petitioner is proceeding pro se, he gets thirteen
months to file. Pro se status does not excuse failure to meet procedural requirements.

Statute of Limitations

The Report calculated that Kirchoff missed the filing deadline of November 5, 2012, by
more than six months (Report, Doc. No. 11, PageID 272). Kirchoff calculates his time to file as
running from the Ohio Supreme Court’s refusal to hear his appeal from denial of his Motion to
Correct1 on March 13, 2013 (Objections, Doc. No. 13, PageID 289). But Kirchoff’s Motion to
Correct was a collateral attack in his conviction and 28 U.S.C. § 2244 makes the time to file a
habeas petition run from finality on direct review.
A properly filed collateral attack on a judgment will toll the statute of limitations while it
is pending. 28 U.S.C. § 2244(d)(2). Kirchoff claims his Motion to Correct was a “properly
filed” collateral attack and therefore tolled the federal statute of limitations Id. The Motion to
Correct was filed March 12, 2012 (Return of Writ, Doc. No. 8-1, PageID 141). Clermont County
Common Pleas Judge Ferenc denied the Motion on the merits, holding that, because the Twelfth
District Court of Appeals had affirmed the sentence, “the issue of the correctness of the
Defendant’s sentence is res judicata and this Court has no jurisdiction to modify it.” (Return of
Writ, Doc. No. 8-1, PageID 145.) The Twelfth District Court of Appeals held the Motion was
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The Twelfth District Court of Appeals treated this as a petition for post-conviction relief under Ohio Revised Code
§ 2953.21. State v. Kirchoff, Case No. CA2012-05-035 (unreported, copy at Doc. No. 8-1, PageID 167). Ohio does
not have a proceeding in a criminal case initiated by a “motion to correct.”

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untimely, having been filed almost six months beyond the deadline. State v. Kirchoff, Case No.
CA2012-05-035 (unreported, copy at Doc. No. 8-1, PageID 167-68). It also held his claim was
without merit because Am. Sub. H.B. No. 86, on which he relied only became effective after he
was sentenced. Id. at PageID 168. Kirchoff “asks this Court to find that it [the Motion to
Vacate] was timely filed,” (Objections, Doc. No. 13, PageID 289), but he gives no basis for
doing so and no authority on which this Court could overrule the Twelfth District on this
question of state law. In Artuz v. Bennett, 531 U.S. 4 (2000), the Supreme Court held that, to be
properly filed under § 2244(d)(2), a collateral attack had to be timely under state law. In Pace v.
DiGuglielmo, 544 U.S. 408 (2005), the Court held that a postconviction petition rejected by the
state courts as untimely is not “properly filed” within 28 U.S.C. § 2244(d)(2). Accord, Allen v.
Siebert, 552 U.S. 3 (2007)(an untimely post-conviction petition is not properly filed regardless of
whether the time element is jurisdictional or an affirmative defense.)
Kirchoff asserts this “technicality” of the statute of limitations is no bar because he has
pled due process violations under the Fifth and Fourteenth Amendments (Objections, Doc. No.
13, PageID 289). But only petitions alleging constitutional violations can be heard at all in
federal habeas cases of state prisoners. 28 U.S.C. § 2254(a). And there is no exception in §
2244 (d) for petitions which plead due process violations.

Procedural Default

Applying the four-part analysis required by Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.
1986); the Report found Kirchoff’s claims procedurally defaulted by (1) not appealing his
sentencing issues to the Ohio Supreme Court on direct appeal, having raised them in the

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intermediate court of appeals or (2) res judicata as found by the Twelfth District in postconviction (Report, Doc. No. 11, PageID 276-77). Kirchoff says this conclusion is “baseless”
(Objections, Doc. No. 13, PageID 290). He says he can show excusing cause and prejudice, but
he offers none. Id. He also says failing to consider his claims on the merits will result in a
“fundamental miscarriage of Justice.” Id. However, the miscarriage of justice exception to
procedural default is only available to those who are actually innocent. Calderon v. Thompson,
523 U.S. 538, 557-58 (1998) (holding that "avoiding a miscarriage of justice as defined by our
habeas corpus jurisprudence" requires "a strong showing of actual innocence"); see Sawyer v.
Whitley, 505 U.S. 333, 339 (1992). Kirchoff pled guilty and has offered no new evidence that he
is actually innocent.
Kirchoff relied heavily in his Reply and now in his Objections on Smith v. Moore, 415
Fed. Appx. 624 (6th Cir. 2011). He says Smith was able to challenge his sentence “even though
he failed to raise it on direct appeal.” (Objections, Doc. No. 13, PageID 290.) The Sixth Circuit
held that, because the Ohio Supreme Court had remanded many cases for reconsideration in light
of State v. Foster, 109 Ohio St. 3d 1 (2006), without regard to whether a Blakely claim had been
raised on direct appeal, the Ohio rule requiring raising such claims was not “regularly enforced.
415 Fed. Appx. at 628. In contrast to enforcing procedural default rules relating to Blakely
claims, the Ohio Supreme Court does regularly enforce its criminal res judicata rules. The
Report cites numerous Sixth Circuit cases for this point (Report, Doc. No. 11, PageID 277).
Another reason why Smith does not support Kirchoff’s position is timing: Smith was
sentenced in 2005 under a sentencing statute found unconstitutional (for violating Blakely) in
State v. Foster, supra. Kirchoff was sentenced after Foster and without the offending statute in
place.

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A third reason why Smith does not control here is that it is a non-precedential decision of
the Sixth Circuit. “Unpublished opinions are never controlling authority.” Fonseca v. CONRAIL,
246 F.3d 585, 591 (6th Cir. Ohio 2001), 6th Cir. R. 28(g); Salamalekis v. Commissioner of Soc.
Sec., 221 F.3d 828, 833 (6th Cir. 2000); United States v. Sanford, 476 F.3d 391, 396 (6th Cir.
2007); TriHealth, Inc., v. Bd. of Comm’rs, Hamilton Cty., Ohio, 430 F.3d 783, 789 (6th Cir.
2005).
Kirchoff argues the Ohio General Assembly reenacted the law under which Smith was
sentenced in 2011 in Am. Sub. H.B. 86 which applies retroactively (Objections, Doc. No. 13,
PageID 291). On that basis he claims Smith is still controlling law. Id., citing Tobin v. Banks,
2011 U.S. Dist. LEXIS 152621 (S.D. Ohio 2011)(Ovington, M.J.), and Brantley v. Bradshaw,
2012 U.S. Dist. LEXIS 110643 (S.D. Miss. 2012). Tobin says nothing about Am. Sub. H.B. 86;
not surprisingly, Brantley says nothing about Ohio law. In fact Am. Sub. H.B. does not reenact
the provisions under which Smith was sentenced but formally repeals them.

Merits

Kirchoff asserts again his sentences are disproportionate to his crime and therefore
constitute cruel and unusual punishment in violation of the Eighth Amendment.
The relevant law is cited in the Report. Kirchoff cites no Supreme Court case which comes
anywhere near holding a sentence like his is unconstitutional. He cites United States v. Warshak,
631 F.3d 266 (6th Cir. 2010), but that case has nothing to do with the Eighth Amendment.
Kirchoff criticizes the Report for not considering his argument that his offenses should be
merged under Ohio Revised Code § 2941.25 (Objections, Doc. No. 13, PageID 291). The

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Report notes that “[t]his claim is barred by Kirchoff’s failure to present it to the state courts.”
(Report, Doc. No. 11, PageID 282.) In any event, whether his offenses are allied offenses of
similar import under Ohio law is a question of Ohio law which this Court cannot consider in
federal habeas; our habeas jurisdiction is limited to federal constitutional questions. 28 U.S.C. §
2254(a); Wilson v. Corcoran, 562 U.S. ___, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010); Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida,
463 U.S. 939 (1983).
Kirchoff also criticizes the Report for not considering a Double Jeopardy possibility
(Objections, Doc. No. 13, PageID 291).

But the Report did consider a double jeopardy

interpretation of the relevant Ground for Relief and concluded “[i]f the claim were to be
considered under the Double Jeopardy Clause, it would not have merit because of the separate
victims and/or different elements of the offenses. See United States v. Dixon, 509 U.S. 688, 696
(1993); Blockburger v. United States, 284 U.S. 299, 304 (1932).” (Report, Doc. No. 11, PageID
282.) Kirchoff makes no response to that analysis.

Conclusion

Kirchoff concludes “[t]he District Court must get beyond the technical deficiencies and
rule that the Magistrate lost his way; perhaps was in too big of a hurry, and rushed to judgment.”
(Objections, Doc. No. 13, PageID 291.) The foregoing analysis, to the contrary, demonstrates
that the Petition is both procedurally barred and without merit and should be dismissed with
prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should
be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any

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appeal would be objectively frivolous.

August 27, 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).

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