Pruitt v. Warden, Pickaway Correctional Institution

Filing 15

REPORT AND RECOMMENDATION signed by Magistrate Judge J. Gregory Wehrman on 3/12/15. IT IS RECOMMENDED THAT: Petitioner's petition for a writ of habeas corpus be DENIED with prejudice. Objections to R&R due by 3/30/2015. (eh1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KENNETH PRUITT,
Petitioner,

Case No. 1:14-cv-20

Black, J.
Wehrman, M.J.

vs.

OHIO ADULT PAROLE
AUTHORITY, 1
Respondent.

REPORT AND
RECOMMENDATION

Petitioner, who was in prison until recently and is now serving a term of post-release
control under the supervision of the Ohio Adult Parole Authority (OAPA), has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The case is before the Court
on the petition and respondent’s amended return of writ with exhibits, as well as an additional
pleading filed by petitioner which this Court has stated it would consider in adjudicating his
claims for relief. (Docs. 1, 4, 13; see also Doc. 14).
I. PROCEDURAL HISTORY
State Trial Proceedings
In March 2009, the Hamilton County, Ohio, grand jury returned an indictment charging
petitioner with three counts of possession of cocaine in violation of Ohio Rev. Code §
2925.11(A), three counts of trafficking in cocaine in violation of Ohio Rev. Code § 2925.03(A),

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In the petition, petitioner properly named the Warden of Pickaway Correctional Institution (PCI) as
respondent because petitioner was confined at PCI at the time the action commenced. (See Doc. 1). Thereafter,
petitioner notified the Court that he was “scheduled to be released from prison” on February 18, 2014 and requested
“that any filings after that date be forwarded” to his attention at a residential address that he provided. (See Doc. 8).
The respondent has confirmed in the amended return of writ filed on April 16, 2014 that petitioner was released from
prison on February 18, 2014 “upon serving his maximum stated sentence” and is now serving “his post-release control
sentence” under the supervision of the Ohio Adult Parole Authority (OAPA). Because it thus appears that petitioner
is now in the custody of the OAPA, the caption of the case is hereby changed to reflect that the OAPA is the proper
party respondent. See Rule 2, Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C.
foll. § 2254.

and one count of having weapons while under disability in violation of Ohio Rev. Code §
2923.13(A)(3). (Doc. 13, Ex. 1). On March 22, 2010, petitioner entered a guilty plea to all
charges. (Id., Ex. 2). However, on April 19, 2010, petitioner, who was assisted by new counsel,
filed a motion to set aside the plea on the ground that he “did not fully understand the issues of
his underlying case and entered a plea that was not knowing[], voluntary[y], or free of duress.”
(Id., Ex. 3). The trial court denied the motion on July 28, 2010. (Id., Ex. 4).
Following a sentencing hearing, the trial court issued an entry on August 3, 2010,
sentencing petitioner to concurrent five-year terms of imprisonment on each count. (Id., Ex. 5).
On September 22, 2010, the trial court held a resentencing hearing in order to provide petitioner
with post-release control notification. (See id., Exs. 9-10). The final resentencing entry, which
did not change petitioner’s aggregate five-year prison sentence, was filed on December 13, 2010.
(Id., Ex. 10).
State Appeal Proceedings
Petitioner filed a timely pro se notice of appeal from the August 3, 2010 entry of
judgment and sentence to the Ohio Court of Appeals, First Appellate District. (Doc. 13, Ex. 11).
With the assistance of new counsel for appeal purposes, petitioner filed a brief raising the
following 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., Ex. 12). Petitioner specifically alleged in his third assignment of error that his counsel was
ineffective by allowing him to enter guilty pleas to allied offenses of similar import and failing to
object to the sentence that was imposed for the allied offenses. (See id., p. 6, at PAGEID#: 524).
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On September 30, 2011, the Ohio Court of Appeals issued an Opinion overruling
petitioner’s first assignment of error. (See id., Ex. 14, p. 2, at PAGEID#: 542). However, the
court sustained petitioner’s second assignment of error, finding that petitioner had been
“improperly convicted of trafficking and possession charges where they were allied offenses of
similar import and, as such, should have been merged at sentencing.” (Id., p. 3, at PAGEID#:
543). The court reasoned in pertinent part:
Pruitt was charged in counts one and two for possessing and trafficking in cocaine
involved in a “controlled buy” with law enforcement. Counts three and four
involved the possession and trafficking of crack cocaine found in his residence.
And counts five and six involved the possession and trafficking of “cocaine that
was not crack cocaine,” also found in his residence. Imposing sentences for each
of the six counts, even concurrent sentences, was improper.
(Id.). The court, therefore, remanded the matter to the trial court “to allow the state to elect
between counts one and two, counts three and four, and counts five and six” and to sentence
petitioner “on only those three counts upon which the state has elected to proceed.” (Id.).
Finally, given that petitioner’s second assignment of error had been sustained, the Ohio Court of
Appeals found that petitioner’s third assignment of error was “moot.” (Id.).
Petitioner pursued a timely pro se appeal to the Ohio Supreme Court from the portion of
the Ohio Court of Appeals’ direct appeal decision affirming the trial court’s judgment. (See id.,
Ex. 16). In his memorandum in support of jurisdiction, petitioner presented one proposition of
law challenging the trial court’s decision to deny his motion to withdraw his guilty plea. (See id.,
Ex. 17). On February 1, 2012, the Ohio Supreme Court denied petitioner leave to appeal and
summarily dismissed the appeal “as not involving any substantial constitutional question.” (Id.,
Ex. 19).
State Resentencing Proceedings Following Direct Appeal
On November 7, 2011, while his appeal was pending before the Ohio Supreme Court, the
trial court held a resentencing hearing in accordance with the Ohio Court of Appeals’ remand
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order. (See Doc. 13, Ex. 15). In an entry filed November 14, 2011, petitioner was again
sentenced to a five-year prison sentence, which consisted of concurrent prison terms of three (3)
years for the weapons offense charged in Count 7 and five (5) years for the cocaine trafficking
offenses charged in Counts 2 and 5 and the cocaine possession offense charged in Count 3.
Counts 1, 4 and 6 were dismissed. (Id.). The entry also provided that petitioner was “to receive
credit for nine hundred sixty four (964) days time served.” (Id.).
Petitioner timely appealed to the Ohio Court of Appeals, First Appellate, raising four
assignments of error in a brief filed by new counsel on petitioner’s behalf. (See id., Exs. 20-21). 2
On August 3, 2012, the Ohio Court of Appeals issued a decision upholding the five-year prison
sentence that was imposed “for multiple felonies,” but reversing the resentencing judgment in
part to the extent that the case was “remanded to the trial court (1) to properly notify Pruitt of his
postrelease-control obligations associated with the felonies in counts two, three , and five; (2) to
correct the sentencing entry to reflect the proper original [five-year prison] sentence for having a
weapon while under disability; and (3) to impose the appropriate driver’s license suspension
associated with the felonies in counts two, three, and five.” (Id., Ex. 23, pp. 4-5, at PAGEID#:
592-93).
The trial court held another resentencing hearing on September 27, 2012 in accordance
with the Ohio Court of Appeals’ second remand order where the requisite corrections were
made. (See id., Brief, pp. 5-6, at PAGEID#: 461-62; see also Ex. 24). The resentencing entry
imposing concurrent five-year prison terms for the offenses charged in Counts 2, 3, 5 and 7 was
filed on October 4, 2012. (Id., Ex. 24). The entry also provided that petitioner was to “receive
credit for nine hundred sixty four (964) days time served as of November 7, 2011 and all
additional time served.” (Id.). Petitioner did not pursue an appeal from that decision.
2

It is noted that petitioner did not assert any claim in the appellate brief challenging the award of 964 days
of credit for time served. (See Doc. 13, Ex. 21).

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State Post-Conviction Petition
In the meantime, on May 2, 2011, petitioner filed a pro se petition to vacate or set aside
judgment of conviction or sentence pursuant to Ohio Rev. Code § 2953.21 with the trial court.
(Doc. 13, Ex. 30). In the petition, petitioner asserted (1) a Fourth Amendment claim stemming
from his arrest without a warrant and search of the apartment where he allegedly did not reside;
(2) a claim of prosecutorial misconduct; (3) a Sixth Amendment claim based on the alleged lack
of “proper notification” of charges “without proper identification of the alleged substances found
in the apartment”; and (4) an Eighth Amendment claim of excessive bail. (See id.).
The trial court denied the petition on May 4, 2011 by way of an order denying “all
pending motions as of the date of this Order.” (See id., Ex. 31). Apparently unaware that his
post-conviction petition was included in the May 4, 2011 order denying “all pending motions,”
petitioner filed a motion with the trial court on July 13, 2011, requesting an “expedient ruling”
on his post-conviction petition. (Id., Ex. 32). On July 15, 2011, the trial court denied that
motion again by way of an order denying “all pending motions as of the date of this Order.” (Id.,
Ex. 33).
Respondent states that petitioner did not pursue an appeal from the denial of his state
post-conviction petition. (Id., Brief, p. 7, at PAGEID#: 463).
State Proceedings On Issue Of Jail-Time Credit
On August 11, 2010, eight days after the original judgment and sentencing entry was
issued on August 3, 2010, petitioner filed a pro se motion for credit for time served. (Doc. 13,
Ex. 7). The trial court granted petitioner’s motion on August 24, 2010. (Id., Ex. 8). However,
although petitioner requested 1500 days of credit, the trial court granted only “a total of 11 days
credit (as of the date of sentencing), plus conveyance time to the institution.” (Id.).
Over three months later, on December 13, 2010, petitioner filed another pro se motion
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with the trial court requesting both clarification of the August 24, 2010 order granting his motion
for credit for time served and that 1511 days of jail-time credit be awarded to him. (Id., Ex. 25).
On February 17, 2011, the trial court issued an entry granting petitioner’s motion and awarding
“credit for time served for a total of 1530 days credit.” (Id., Ex. 26). However, the next day, the
court issued another order setting aside the February 17, 2011 entry as “inadvertently entered”
and granting petitioner “a total of 553 days credit” as of the date of his resentencing on
September 22, 2010. (Id., Ex. 27). On April 25, 2011, petitioner next filed a pro se motion with
the trial court seeking verification of the February 17, 2011 entry and challenging the February
18, 2011 order, which petitioner claimed was improperly issued “by way of ex parte
communication” and/or “forgery.” (Id., Ex. 28). On April 26, 2011, the trial court denied the
motion in a summary order addressing “All Pending Motions.” (Id., Ex. 29).
Petitioner did not seek appellate review of either the trial court’s February 18, 2011 order
setting aside the February 17, 2011 entry or the denial of his April 25, 2011 motion. Instead, he
pursued a variety of other avenues of relief in the state courts, which are set forth below in
chronological order:
1.

July 2011 “Complaint”/Petition For Writ Of Mandamus to Ohio Court of Appeals
On July 8, 2011, petitioner filed a pro se “Complaint” with the Ohio Court of Appeals,

First Appellate District. (Id., Ex. 42). In that pleading, petitioner essentially requested that the
trial court be ordered to reinstate the February 17, 2011 award of 1530 days of jail-time credit.
(See id.). The State responded by filing a motion to dismiss the complaint, which was construed
as a petition for writ of mandamus. (Id., Ex. 43). The state argued that petitioner had “chosen
the wrong vehicle to raise his claim” given that the Ohio Supreme Court had expressly ruled that
“[a]lleged errors regarding jail-time credit are not cognizable in mandamus” but instead must “be
raised by way of the defendant’s direct appeal of his criminal case.” (See id., at PAGEID#: 692)
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(quoting State ex rel. Rankin v. Ohio Adult Parole Auth., 786 N.E.2d 1286 (Ohio 2003)).
On August 24, 2011, the Ohio Court of Appeals granted the State’s motion to dismiss and
dismissed the petition for writ of mandamus. (Id., Ex. 44). Respondent states that petitioner did
not pursue a further appeal to the Ohio Supreme Court in that matter. (Id., Brief, p. 9, at
PAGEID#: 465).
2.

July 2011 “Motion For An Expedient Nunc Pro Tunc Ruling”
On July 13, 2011, petitioner filed a pro se motion entitled “Motion For An Expedient

Nunc Pro Tunc Ruling” with the trial court. (Id., Ex. 32, at PAGEID#: 635). In that motion,
petitioner challenged the validity of the February 18, 2011 decision setting aside the February 17,
2011 award of 1530 days of jail-time credit and granting petitioner only 553 days of credit. (See
id.). Petitioner requested the issuance of a “Nunc Pro Tunc Entry” to correct the error by
“reinstitut[ing] the February 17, 2011” order. (See id., at PAGEID#: 637).
The motion was denied on July 15, 2011, when the trial court issued an order denying
“all pending motions as of the date of this Order.” (Id., Ex. 33). Apparently, petitioner did not
pursue an appeal from that ruling. (See id., Brief, p. 7, at PAGEID#: 463).
3. December 2011/January 2012 “Motions For Correction”
On January 24, 2012, petitioner filed a pro se motion entitled “Motion For Correction”
with the trial court. (Id., Ex. 34). In that motion, petitioner requested that the sentence imposed
following his resentencing on November 7, 2011 in accordance with the Ohio Court of Appeals’
first remand order be reduced “by the total number of days granted to the defendant in the entry
filed . . . on February 17th, 2011.” (Id.). Petitioner apparently had filed a similar motion for
correction on another earlier date in December 2011. (See id., Ex. 39, at PAGEID#: 668). On
January 25, 2012, the trial court denied the motions by way of an order denying “all pending
motions as of the date of this Order.” (Id., Ex. 35).
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Petitioner appealed to the Ohio Court of Appeals, First Appellate District, claiming that
the trial court had “erred as a matter of law by overruling [his] motion[s] for correction.” (See
id., Exs. 36-37). On August 29, 2012, the Ohio Court of Appeals overruled the assignment of
error and affirmed the trial court’s judgment, reasoning in pertinent part as follows:
In his motions, Pruitt asserted the number of jail-time credit that the trial court
had “intended” to afford him was reflected in the February 17, 2011 entry
granting him 1530 days of jail-time credit, and not in the February 18, 2011 entry
setting aside the February 17 entry and crediting only 553 days. He prayed for a
nunc pro tunc entry reanimating the February 17 entry.
A defendant may challenge the calculation of his jail-time credit in the direct
appeal of his conviction, in a petition under R.C. 2953.21 et seq. for
postconviction relief, or in a motion under Crim.R. 36 for “correct[ion]” of a
“clerical mistake[.]” . . .
Pruitt did not raise the matter of jail-time credit in his direct appeal from his 2010
judgment of conviction. . . . He instead raised the matter in a series of
posconviction motions.
In the December 2011 and January 2012 “Motion[s] for Correction” from which
this appeal derives, Pruitt did not designate the statute or rule under which he
sought relief. Nor did he articulate a ground for relief.
In light of the arguments advanced in his earlier postconviction motions, Pruitt’s
December 2011 and January 2012 motions could fairly be read to allege a factual
mistake in the trial court’s calculation of his jail-time credit. But Pruitt was not
entitled to relief under Crim.R. 36 because he failed to demonstrate that the trial
court had credited him with too few days.
Pruitt’s arguments on appeal, coupled with his assertion in his motions that the
trial court had “intended” to afford him the days of jail-time credit reflected in the
February 17, 2011 entry and not those reflected in the February 18 entry, suggest
a challenge not to the court’s calculation of his credit, but to the lawfulness of the
February 18 entry setting aside the February 17 entry. To the extent that the
motions could thus be read to allege an error of law, they constituted petitions for
postconviction relief, reviewable under the standards provided by R.C. 2953.21 et
seq. . . . But the common pleas court had no jurisdiction to entertain the motions
on their merits because Pruitt failed to satisfy either the time restrictions of R.C.
2953.21 or the jurisdictional requirements of R.C. 2953.23.
(Id., Ex. 39, at PAGEID#: 667-69).
Respondent states that petitioner did not pursue a further appeal to the Ohio Supreme
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Court in that matter. (Id., Brief, p. 7, at PAGEID#: 463).
4.

March 2012 Petition For Writ Of Mandamus to Ohio Supreme Court
On March 7, 2012, petitioner filed a pro se petition for writ of mandamus with the Ohio

Supreme Court. (Id., Ex. 45). Petitioner requested the issuance of an order compelling the Ohio
Department of Rehabilitation and Correction (ODRC) to follow the trial court’s February 17,
2011 entry awarding 1530 days of jail-time credit rather than the “void” February 18, 2011 order
containing the forged signature of the trial judge. (See id.). The ODRC responded to the
petition by filing a motion to dismiss. (Id., Ex. 46). In that pleading, the ODRC argued that (1)
petitioner was unable to establish entitlement to a writ of mandamus because the ODRC was
required to credit petitioner with the amount of jail time determined by the trial court and could
not “ignore” the trial court’s February 18, 2011 order setting aside the February 17, 2011 entry
“based on a judgment call regarding a judge’s signature”; (2) the alleged errors regarding jailtime credit were not cognizable in mandamus; and (3) habeas corpus, rather than mandamus, was
the proper remedy to the extent that petitioner sought to be immediately released from prison due
to jail-time credit. (See id.).
On May 9, 2012, the Ohio Supreme Court granted the motion to dismiss and dismissed
the cause without opinion. (Id., Ex. 47).
5. June 2012 Petitions For Writ Of Habeas Corpus
In June 2012, petitioner filed two pro se petitions for a writ of habeas corpus in the
Pickaway County, Ohio, Court of Common Pleas. (Id., Exs. 48, 50). The cases were
consolidated. (Id., Ex. 51). On November 14, 2012, the Pickaway County court granted a
motion to dismiss that had been filed by the respondent prison warden. (Id., Ex. 52). The court
reasoned in pertinent part that the “issues raised by Petitioner are not cognizable in habeas
corpus” because he had an adequate remedy of an appeal “to raise any error by the trial court in
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calculating his jail-time credit.” (See id.).
Petitioner filed a notice of appeal to the Ohio Court of Appeals, Fourth Appellate District.
(Id., Ex. 53). However, on December 21, 2012, the Ohio Court of Appeals sua sponte dismissed
the appeal because petitioner had not provided the necessary documentation required by Ohio
Rev. Code § 2969.25 for the waiver of prepayment of court filing fees. (Id., Ex. 54).
Respondent states that petitioner did not pursue an appeal from that decision to the Ohio
Supreme Court. (Id., Brief, p. 10, at PAGEID#: 466).
6. February 2013 Petition For Writ Of Habeas Corpus: Ohio Supreme Court
On February 25, 2013, petitioner filed another pro se petition for a writ of habeas corpus
with the Ohio Supreme Court. (Id., Ex. 55). On October 30, 2013, the Ohio Supreme Court
dismissed the action. (Id., Ex. 56). The court reasoned in pertinent part:
First, habeas is not a substitute for appeal or other remedy in the ordinary course
of law such as postconviction relief. . . . Pruitt could have appealed the February
18, 2011 entry, which set aside the February 17, 2011 entry. Indeed, he made the
two entries the subject of numerous proceedings, including at least one mandamus
action and one motion and appeal. Because he had alternate remedies, this habeas
action is properly dismissed. . . .
Second, res judicata precludes Pruitt from filing successive habeas petitions. . . .
Because he has filed one previous habeas action raising the same claims, on June
5, 2012, in the Pickaway County Court of Common Pleas, he is precluded from
bringing a second one here.
Third, Pruitt’s claim is clearly invalid on the merits. He based the original request
for 1,500 days of jail-time credit on a statute that does not apply to his situation.
R.C. 2945.71(E) requires that each day an accused is held in jail in lieu of bail
pending trial be counted as three days for purposes of calculating when the
accused should be brought to trial, not for purposes of reducing an eventual prison
term.
(Id., at PAGEID#: 801-02). Petitioner filed a motion for reconsideration, which was denied on
December 24, 2013. (See id., Ex. 57).
Federal Habeas Corpus
The instant federal habeas action commenced on January 7, 2014, when petitioner was
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still incarcerated at the Pickaway Correctional Institution in Orient, Ohio. (See Doc. 1). Solely
for statute of limitations purposes, it is presumed that petitioner’s habeas petition was filed on
December 26, 2013, the date that petitioner claims he placed the pro se pleading in the prison
mailing system for submission to this Court. (See id., at PAGEID#: 15). 3 In his petition,
petitioner presents the following grounds for relief:
Ground One: The Respondent acted outside the scope of its employment and
authority with malice, in bad faith, in a wanton and reckless manner.
Supporting Facts: The Respondent’s – Bureau of Sentence Computation
illegally contacted the Judge’s office after rec[ei]ving the Entry Granting Motion
for Jail Time Credit. . . . The duty of the Respondent was to carry out the order of
the court, dated February 17th, 2011, and nothing more.
Ground Two: The trial court, through its Bailiff, violated Petitioner’s due
process rights, and circumvented the appeal process.
Supporting Facts: The trial court’s Bailiff [redid] the court’s original order, and
sent the Respondent an unlawful order/entry dated February 18th, 2011, that
illicitly set aside the Judge’s original order, and he forged the Judge’s signature on
the Judge’s signature line of that order. . . . The trial court’s ex parte entry of the
order dated February 18th, 2011 was unlawful. The only way I found out about
the order was when I contacted the Respondent.
Ground Three: Petitioner is being restrained of his liberty in violation of the
14th Amendment to the United States Constitution.
Supporting Facts: The February 17th, 2011 Entry Granting Motion for Jail Time
Credit was a final appealable order, and was not appealed by any party, which
made it the judgment of case. . . . My release date and start date of post release
control was certified as May 23rd, 2011, which was determined by the Ohio Adult
Parole Authority on February 17th, 2011, as a result of the 2-17-2011
assessment.... By refusing to enforce that order the Respondent was also in
contempt of court.
Ground Four: Petitioner is considered “false imprisonment” as of this date, and
is entitled to monetary relief.
Supporting Facts: I am currently deprived of my liberty at Pickaway
Correctional Institution, and restrained of my liberty due to Respondent’s refusal
3

It is well-settled that the filing date of a federal habeas corpus petition submitted by a pro se prisoner is
the date on which the prisoner provides his papers to prison authorities for mailing. See Houston v. Lack, 487 U.S.
266 (1988); see also Miller v. Collins, 305 F.3d 491, 497-98 (6th Cir. 2002); Goins v. Saunders, 206 F. App’x 497,
499 n.1 (6th Cir. 2006).

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to enforce the trial court’s original order, granting me credit for time served, on
February 17th, 2011. That order became the Judgment of the Case, and was not
appealed by any party. The 2-17-2011 shall be enforced as written. I have
suffered extreme loss, and damages as a result of this continued confinement.
(Id., at PAGEID#: 5, 7, 8-9, 10). Petitioner has also filed an additional pleading in support of
his claims, which the Court has agreed to consider in adjudicating his grounds for relief. (Doc.
4; see also Doc. 14).
In the amended return of writ filed in response to the petition, respondent contends that
petitioner has waived his claims for relief due to his numerous procedural defaults in the state
courts. (Doc. 13, Brief, pp. 14-20, at PAGEID#: 470-76). Respondent also argues that the
claims alleged in Grounds One through Three “are all non-cognizable state law claims as well as
monumentally meritless” and that the tort claim for damages alleged in Ground Four “is not a
federal constitutional claim challenging the fact or duration of [petitioner’s] confinement” and
thus “is not cognizable on habeas review.” (Id., pp. 20-26, at PAGEID#: 476-81).
II. OPINION
Petitioner Procedurally Defaulted And Has Waived His Claims For Relief
In all four grounds for relief alleged in the petition, petitioner essentially claims that the
trial court’s February 17, 2011 entry awarding him 1530 days of credit for time served should
have been honored and that the trial court’s subsequent entry on February 18, 2011 setting aside
the February 17, 2011 order and awarding only 553 days of credit for time served is invalid.
(See Doc. 1). As respondent has contended in the amended return of writ, petitioner procedurally
defaulted and has waived those claims by failing to pursue the proper avenues of relief in the
state courts.
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 fairly present those claims to the
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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). In order to satisfy the fair presentation requirement, the
claims asserted in the federal habeas petition must be based on the same facts and same legal
theories that were presented to the state courts. Carter v. Mitchell, 693 F.3d 555, 568 (6th Cir.
2012) (citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Wong v. Money, 142 F.3d
313, 322 (6th Cir. 1998)). Moreover, a claim is deemed fairly presented only if the petitioner
presented his constitutional claims for relief to the state’s highest court for consideration. See
O’Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (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). If the petitioner fails
to fairly present his constitutional claims through the requisite levels of state appellate review to
the state’s highest court, or commits some other procedural default that prevents a merit-based
review of the federal claims by the state’s highest court, he may have waived the claims for
purposes of federal habeas review. 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).
It is well-settled under the procedural default doctrine that the federal habeas court may
be barred from considering an issue of federal law from a judgment of a state court if the
judgment rests on a state-law ground that is both “independent” of the merits of the federal claim
and an “adequate” basis for the state court’s decision. See Harris, 489 U.S. at 260-62. The
Supreme Court has stated:
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the
default, and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.
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Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner
files an untimely appeal, Coleman, 501 U.S. at 750, if he fails to present an issue to a state
appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or
if he fails to comply with a state procedural rule that required him to have done something to
preserve the issue for appellate review. United States v. Frady, 456 U.S. 152, 167-69 (1982);
Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996).
The Sixth Circuit employs a three-prong test, which was initially established in Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir. 1986), to determine if a claim is procedurally defaulted under
the adequate and independent state ground doctrine:
First, the court must determine that there is a state procedural rule that is
applicable to the petitioner’s claim and that the petitioner failed to comply with
the rule. . . . Second, the court must decide whether the state courts actually
enforced the state procedural sanction. . . . Third, the court must decide whether
the state procedural forfeiture is an “adequate and independent” state ground on
which the state can rely to foreclose review of a federal constitutional claim.
Hoffner v. Bradshaw, 622 F.3d 487, 495 (6th Cir. 2010) (quoting Jacobs v. Mohr, 265 F.3d 407,
417 (6th Cir. 2001) (in turn quoting Maupin)); see also Johnson v. Bradshaw, 493 F. App’x 666,
669 (6th Cir. 2012). Under Maupin and as discussed above, if the three prerequisites are met for
finding a claim is procedurally defaulted under the adequate and independent state ground
doctrine, federal habeas corpus review of the defaulted claim is precluded unless the petitioner
can demonstrate cause for and prejudice from his procedural default or that failure to consider
the defaulted claim will result in a “fundamental miscarriage of justice.” Hoffner, 622 F.3d at
495 (citing Maupin, 785 F.2d at 138); Johnson, 493 F. App’x at 669. See also Coleman, 501
U.S. at 750; Harris, 489 U.S. at 262; Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v.
Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In this case, petitioner committed numerous procedural defaults. First, he failed to raise
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the issue of jail-time credit on direct appeal even though the trial court had awarded him only 11
days of credit in an entry filed August 24, 2010. (See Doc. 13, Ex. 8). Second, petitioner did not
pursue an appeal from the trial court’s February 18, 2011 order setting aside the February 17,
2011 entry or from the trial court’s orders denying his subsequent motions filed in April and July
2011 challenging the validity of the February 18, 2011 order and seeking reinstatement of the
February 17, 2011 entry. (See id., Exs. 28-29, 32-33). Third, petitioner did not assert any claim
challenging the credit he had received in his state post-conviction petition filed in May 2011,
after the February 17 and 18, 2011 orders were issued. (See id., Ex. 30). Moreover, although
petitioner was resentenced twice after the issuance of the February 17 and 18, 2011 orders, he
did not raise the claim in appealing the resentencing decision filed on November 7, 201l, in
which he was expressly credited with only 964 days for “time served,” and did not pursue any
appeal from the final resentencing decision entered on October 4, 2012, in which he was again
credited with only 964 days for time served “as of November 7, 2011 and all additional time
served.” (See id., Exs. 15, 24).
Petitioner did raise some of the issues presented herein for the first time to the Ohio Court
of Appeals in his “Complaint,” construed as a petition for writ of mandamus, which was filed
with that court in July 2011. (See id., Ex. 42). However, the Ohio Court of Appeals relied on an
adequate and independent state ground when it granted the respondent’s motion to dismiss based
on the argument that the “alleged errors regarding jail-time credit” were not cognizable in
mandamus. (See id., Exs. 43-44). In any event, petitioner committed another procedural default
in that matter because he did not appeal the Ohio Court of Appeals’ ruling to the Ohio Supreme
Court.
Petitioner next sought to bring the issue to the state courts’ attention by way of his
motions for correction of sentence filed with the trial court in December 2011 and January 2012.
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However, the Ohio Court of Appeals again relied on an adequate and independent state ground
when it refused to consider the merits of petitioner’s claim challenging the lawfulness of the
February 18, 2011 order setting aside the February 17, 2011 entry because the claim constituted
a petition for post-conviction relief that was time-barred under Ohio law. (See id., Ex. 39). In
any event, petitioner committed another procedural default in that matter by again failing to
pursue a further appeal to the Ohio Supreme Court.
Petitioner’s next attempt involved a petition to the Ohio Supreme Court filed in March
2012, in which petitioner requested the issuance of a writ of mandamus against the ODRC as the
named respondent. However, the Ohio Supreme Court did not address the merits of petitioner’s
claims and instead granted the ODRC’s motion to dismiss based on the following adequate and
independent state-law grounds: (1) the ODRC was required to abide by the trial court’s
determination of credit and thus could not “ignore” the February 18, 2011 order setting aside the
February 17, 2011 entry; (2) the alleged errors regarding jail-time credit were not cognizable in
mandamus; and (3) habeas corpus, rather than mandamus, was the proper remedy to the extent
that petitioner sought to be immediately released from prison due to jail-time credit. (See id.,
Exs. 46-47).
Thereafter, petitioner raised the claims in habeas corpus petitions filed in June 2012 with
the Pickaway County Common Pleas Court. However, the court granted the respondent prison
warden’s motion to dismiss based on the adequate and independent state ground that the “issues
raised by Petitioner are not cognizable in habeas corpus” given that petitioner had an adequate
remedy of an appeal “to raise any error by the trial court in calculating his jail-time credit.” (See
id., Ex. 52). In any event, petitioner committed additional procedural defaults in that matter by
(1) failing to perfect an in forma pauperis appeal to the Ohio Court of Appeals, and (2) failing to
pursue an appeal to the Ohio Supreme Court from the Ohio Court of Appeals’ decision to sua
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sponte dismiss the appeal because the petitioner had not provided the necessary documentation
for waiver of prepayment of court filing fees. (See id., Ex. 54).
Finally, petitioner procedurally defaulted the claims that he raised in his February 2013
habeas corpus petition to the Ohio Supreme Court. The state supreme court relied on adequate
and independent state grounds when it dismissed the petition because petitioner could have
pursued other alternative remedies, such as an appeal or state post-conviction relief, and was
precluded by res judicata from filing a successive habeas petition. (See id., Ex. 56). The court
also found petitioner’s claims to be meritless under state law. However, the adequate and
independent state ground doctrine still applies as the federal court is required “to honor a state
holding that is a sufficient basis for the state court’s judgment” even in cases where the state
court reaches the merits of the federal claim in an alternative holding. See Harris, 489 U.S. at
264 n.10; see also Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994).
In sum, the undersigned concludes that because of petitioner’s numerous procedural
defaults in the state courts, his claims for federal habeas relief are waived and thus barred from
review by this Court unless petitioner “can demonstrate cause for the default[s] and actual
prejudice . . . or demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.” See Hoffner, 622 F.3d at at 497 (quoting Coleman, 501 U.S. at 750).
Petitioner has neither argued nor otherwise demonstrated that failure to consider his claims will
result in a “fundamental miscarriage of justice,” or in other words, that the alleged errors
“probably resulted in the conviction of one who is actually innocent.” See Murray, 477 U.S. at
495-96; see also Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, petitioner has not
argued or otherwise established cause for his numerous procedural defaults in this case.
Therefore, petitioner’s defaulted claims for relief are barred from review.

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IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1)
be DENIED with prejudice.
2. A certificate of appealability should not issue with respect to the claims for relief
alleged in the petition, which this Court has concluded are barred from review on a procedural
ground, because under the first prong of the applicable two-part standard enunciated in Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000), “jurists of reason” would not find it debatable whether
the Court is correct in its procedural ruling. 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 Report and Recommendation would not be taken in “good faith” and, therefore, should
DENY petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See

4

Because the first prong of the Slack test has not been met, the Court need not address the second prong of
Slack as to whether “jurists of reason” would find it debatable whether petitioner has stated a viable constitutional
claim in his waived grounds for relief. See Slack, 529 U.S. at 484. However, it is noted that as respondent has
alternatively argued in the return of writ, petitioner’s claims stemming from an alleged error in the calculation of
jail-time credits are not cognizable in this federal habeas corpus proceeding. Federal habeas review is limited to
consideration of claims alleging a violation of “the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Claims based on a “perceived error of state law” fall outside the scope of the Court’s review and,
therefore, do not constitute cognizable grounds for federal habeas relief. See id.; see also Wilson v. Corcoran, 562
U.S. 1, 5 (2010) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) (“it is not the province of a federal court to
reexamine state-court determinations on state-law questions”); Pulley v. Harris, 465 U.S. 37, 41 (1984). Claims of
error in interpreting and applying state sentencing and crediting statutes raise issues of state law only and thus are
not subject to federal habeas review. See, e.g., Howard v. White, 76 F. App’x 52, 52-53 (6th Cir. 2003) (holding that
the petitioner’s claim challenging the trial court’s failure to credit him “for the entire time that he was detained in
jail prior to the imposition of his sentence” involved “a matter of state concern only” and, therefore, was not a
cognizable claim for federal habeas relief); Turner v. Moore, No. 1:12cv683, 2014 WL 861196, at *14 (N.D. Ohio
Feb. 5, 2014) (Report & Recommendation) (and cases cited therein) (holding that “claims challenging the amount of
jail time credit applied (or not applied) to state sentences under state law . . . are a matter of state law and are not
cognizable on federal habeas review”), adopted, 2014 WL 861119, at *3 (N.D. Ohio Mar. 4, 2014); Davis v.
Voorhies, Nos. 2:08cv1099, 2:09cv1125, 2:10cv48, 2010 WL 3384983, at *10 (S.D. Ohio July 1, 2010) (Report &
Recommendation) (and numerous cases cited therein) (same), adopted, 2010 WL 3384981 (S.D. Ohio Aug. 23,
2010); see also Armstrong v. Salinas, Civ. Act. No. 6:13-179-KKC, 2014 WL 340399, at *7 (E.D. Ky. Jan. 30,
2014). Furthermore, to the extent that the Ohio Supreme Court decided the state-law issue against petitioner in
ruling on his 2013 state habeas petition, this Court is bound by and must defer to the state supreme court’s
interpretation of state law. See, e.g., Bennett v. Warden, Lebanon Corr. Inst., 782 F. Supp.2d 466, 478 (S.D. Ohio
2011) (citing Estelle; Mullaney v. Wilbur, 421 U.S. 684, 690-91 (1975); Warner v. Zent, 997 F.2d 116, 133 (6th Cir.
1993)).

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Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date: March 12, 2015

s/ J. Gregory Wehrman
J. Gregory Wehrman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KENNETH PRUITT,
Petitioner

Case No. 1:14-cv-20

vs

Black, J.
Wehrman, M.J.

OHIO ADULT PAROLE AUTHORITY,
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).
cbc

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