Creech v. Warden, Chillicothe Correctional Institution

Filing 48

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Amended Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appeala bility and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 5/22/2018. Signed by Magistrate Judge Michael R. Merz on 5/8/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
SCOTT D. CREECH,
Petitioner,

:

- vs -

Case No. 1:15-cv-193
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Scott Creech, is before the Court for
decision. The relevant pleadings are the Amended Petition (ECF No. 41), the Respondent’s
Answer to the Amended Petition (ECF No. 43), and Petitioner’s Amended Reply (ECF No. 46).

Procedural History

The procedural history recited by the Fourth District Court of Appeals on direct appeal is
as follows:
{¶ 4} On April 30, 2008, the Scioto County Grand Jury returned [a
superseding] indictment charging appellant with (1) the illegal
possession of chemicals for the manufacture of drugs, (2) the illegal
manufacture of drugs, (3) four counts of having a weapon while
under a disability (counts three through six), (4) three counts of
unlawful possession of dangerous ordnance (counts seven through
nine), (5) illegally manufacturing or processing explosives, and (6)
trafficking in methamphetamine.
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{¶ 5} After hearing the evidence, the jury found appellant guilty of
(1) the illegal possession of chemicals for manufacture of
methamphetamine, (2) the illegal manufacture of drugs, (3) having
a weapon (a rifle) while under disability, (4) having a weapon
(detonation cord) while under disability, (5) having a weapon
(sensitized ammonium nitrate) while under disability, (6) having a
weapon (blasting caps) while under disability, (7) unlawful
possession of dangerous ordnance (sensitized ammonium nitrate),
(8) unlawful possession of dangerous ordnance (blasting caps), (9)
unlawful possession of dangerous ordnance (detonation cord), and
(10) illegally manufacturing or processing explosives.
{¶ 6} On October 10, 2008, the trial court sentenced appellant to
serve a total of 19 years in prison as follows: (1) five years for the
illegal possession of chemicals for manufacture of
methamphetamine (count one), (2) six years for the illegal
manufacture of drugs (count two), (3) two years for having a weapon
(rifle) while under disability (count three), (4) four years on each of
the three having a weapon while under disability offenses that
involved the detonation cord, the blasting caps, and the sensitized
ammonium nitrate (counts four through six), (5) 11 months for each
of the offenses of unlawful possession of dangerous ordnance
(counts seven though nine), and (6) seven years for illegally
manufacturing or processing explosives (count ten). The court
ordered (1) the sentences for counts one and two to be served
concurrently, (2) the sentence for count three to be served
consecutively to counts one and two, (3) the sentences for counts
four, five, and six to be served concurrently with each other, but
consecutively to counts one and two and to count three, (4) the
sentences for counts seven, eight, and nine to be served concurrently
with each other and concurrently with counts four through six, and
(5) the sentence for count ten to be served consecutively to counts
one and two, count three, and counts four, five, and six.
State v. Creech, 188 Ohio App. 3d 513 (4th Dist. June 1, 2010)(“Creech I”)(footnote omitted),
appellate jurisdiction declined, 126 Ohio St. 3d 1600 (2010).
On June 1, 2011, with the assistance of attorney Elizabeth Gaba, Creech filed in the
Common Pleas Court a “Motion to Vacate the Supposed October 2, 2008 Jury Verdicts in Case
No. 08-Cr-461, Vacate the Conviction and Sentencing Entry of October 10, 2008, and for the
Immediate Release of the Defendant from Prison” (State Court Record, ECF No. 10, PageID 5742

95). The motion raised the confusion in case numbers issue for the first time. It alleged the
judgment entry on which Creech was being held was void and relied on the trial court’s asserted
inherent power to vacate a void judgment at any time. Id. at PageID 575, citing Patton v. Diemer,
35 Ohio St. 3d 68 (1988).
Then on July 14, 2011, Attorney Gaba filed on Creech’s behalf a Motion for Leave to File
a Delayed Petition for Postconviction Relief (State Court Record, ECF No. 10, PageID 661-72.)
Judge Harcha denied both motions (State Court Record, ECF No. 10, PageID 722-30). Creech
appealed, assisted by Attorney Gaba, and the Fourth District decided as follows:
{¶ 2} On March 31, 2008, the Scioto County Grand Jury returned
an indictment that charged appellant with: (1) the illegal possession
of chemicals for the manufacture of methamphetamine in violation
of R.C. 2925.041(A); (2) the illegal manufacture of
methamphetamine in violation of R.C. 2925.04(A)/ (C)(2); (3) four
counts of possession of a weapon or dangerous ordinance while
under a disability in violation of R.C. 2923.13(A); (4) the illegal
manufacture of explosives in violation of R.C. 2923.17(B); and (5)
trafficking of methamphetamine in violation of R.C.
2925.03(A)(C)(1)(a). That indictment was filed under Case Number
08–CR–291 (291).
{¶ 3} On April 30, 2008, the Scioto County Grand Jury returned a
second indictment. This indictment is virtually identical to 291,
except for a change to the mens rea in count ten. The second
indictment was filed in Case Number 08–CR–461(461). 3
Apparently, as these proceedings wound their way through the trial
court, some filings were made in 291 and some in 461.
{¶ 4} On August 12, 2008, 461 was consolidated for trial with
criminal cases against Lisa Pollitt and Terry L. Martin. The matter
came on for trial in September and October 2008. At the conclusion
of the trial, the jury found appellant guilty on ten of the eleven
counts. The verdict forms, however, all bore Case Number 291
rather than Case Number 461.
{¶ 5} On October 10, 2008, a judgment entry filed in 461 dismissed
the remaining count and sentenced appellant to serve a cumulative
total of nineteen years in prison. The trial court also filed a
November 3, 2008 entry that ordered that the verdict forms be
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amended to include the correct 461 case number, rather than the
earlier (291) case number.
{¶ 6} A notice of appeal, bearing the 461 case number, was filed on
November 13, 2008. We dismissed that appeal because it was filed
out of rule. The Scioto County Clerk of Courts filed our dismissal
entry with case number 461 hand-written on the entry. Later, we
granted leave to pursue a delayed appeal. Materials filed in pursuit
of such leave bear the trial court's 461 case number and display a
handwritten case number of 09CA3291. We ultimately ruled that
several of the offenses should have merged, as allied offenses of
similar import, for purposes of sentencing and, thus, we affirmed in
part and reversed in part the trial court's judgment. State v. Creech,
188 Ohio App.3d 513, 936 N.E.2d 79, 2010–Ohio–2553 (4th Dist.)
(Creech I ).
{¶ 7} On June 1, 2011, appellant commenced the instant actions that
form the basis for this appeal. Appellant filed a motion “to strike and
vacate the supposed” jury verdicts and sentencing entry in case
number 461. The gist of appellant's argument is that cases 291 and
461 never merged, that the only entry that set the case for trial was
filed in 291 and that no trial was held in that case. Appellant further
argued that all motions and continuances that would have extended
the speedy trial limit were filed in 291 and, thus, if 461 is the actual
case tried (in which no such motions or continuances had been
filed), appellant's speedy trial rights had been violated.
{¶ 8} On July 14, 2011, appellant also filed a motion for leave to
file “delayed petition for postconviction relief.” In his motion,
appellant stated that he adopted his arguments from the previous
motion to vacate, but also sought leave if the court decided to treat
that motion as a petition for postconviction relief. In view of the
confusing nature of the two cases, the trial court held a hearing
(November 9, 2011) to try to sort things out and get “a better
understanding of the facts.”
{¶ 9} On July 5, 2012, the trial court issued a detailed decision and
judgment that overruled the motion to vacate and denied leave of
court to file a postconviction relief petition out of rule. Among other
things, the court determined the two cases, in essence, merged into
one another, the change of case numbers on the verdict forms simply
corrected a clerical error and that no structural deficiency occurred
in the trial court proceedings. The court also held that appellant had
not met the requirements for filing a delayed petition for
postconviction relief. This appeal followed.

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***
{¶ 30} The overall gist of appellant's argument appears to be that
the 2008 jury trial was conducted in case number 291, but the
judgment of conviction and sentence was entered in case number
461. Thus, appellant argues that he was convicted and sentenced
without the panoply of trial rights that the Ohio and United States
Constitutions affords [sic] him. We, however, disagree with
appellant's argument that the trial was conducted in Case No. 291.
On August 12, 2008, Case No. 461 was ordered consolidated with
Lisa Pollitt's case. The 2008 transcripts reveal that counsel for both
appellant and Pollitt appeared at the trial. When the jury pool
appeared for voir dire, the trial judge informed them the “style of
this case is State of Ohio versus Scott Creech and State of Ohio
versus Lisa Pollitt.” Pollitt's case was not consolidated with 291, but
rather consolidated with 461, the case that was tried.
{¶ 31} We acknowledge, as appellant repeatedly emphasizes in his
brief, that the notice scheduling the trial was filed in 291 rather than
461. The fact remains, however, that appellant and his trial counsel
were present and participated at trial. Nothing in the record indicates
that appellant objected to any misfiling of the notice, and appellant
has not cited the record where he asked for, but was denied,
additional time. Appellant also does not cite anything in the
transcript or original papers to suggest that he was denied any other
trial right guaranteed under the Ohio or United States constitutions.
Consequently, we believe that the use of the 291 case number on the
verdict forms (instead of 461) is a clerical mistake, and at worse a
minor procedural error, that did not affect the “fundamental fairness
of the entire proceeding.”
{¶ 32} Once again, as appellant points out in his brief, we
acknowledge the trial court did not formally consolidate the two
cases. Nevertheless, these procedural mishaps neither deprived
appellant of any fundamental rights nor fundamental fairness.
Mislabeled case numbers on the jury verdict forms, and the
placement of some filings in 291 and others in 461, are issues that
could have been raised in the trial court where they could have been
corrected and any alleged prejudice could have been alleviated.
They were not. Appellant has not persuaded us that this rises to the
level of plain error under Crim.R. 52(B), let alone structural,
constitutional error.
State v. Creech, 2013-Ohio-3791, 2013 WL 4735469 (4th Dist. Aug. 27, 2013)(footnotes omitted);
appellate jurisdiction declined, 137 Ohio St. 3d 1475 (2014), cert. denied, 135 S.Ct. 250
5

(2014)(“Creech II”).
At this point in time Mr. Creech began proceeding pro se. He filed with the Fourth District
a motion for extension of time to file an application for reopening the appeal (State Court Record
ECF No. 10, PageID 967, et seq.). Because the appeal had been taken from denial of a collateral
attack, the Fourth District held, on July 10, 2014, that Creech’s claims were not cognizable under
App. R. 26(B)(Entry, State Court Record ECF No. 10, PageID 990-91). Thus instructed, Creech
filed, on October 29, 2014, an application to reopen his direct appeal. Id. at PageID 992, et seq.
The Fourth District denied the application because it was untimely, but more important, because
it attempted to argue issues from Creech II rather than Creech I (Entry, State Court Record ECF
No. 10, PageID 1163-66).
In April 2015 Creech again sought leave to file under App. R. 26(B). Id. at PageID 116779. The Fourth District again denied leave on July 14, 2015 (Entry, State Court Record ECF No.
10, PageID 1220- 27). Before filing his 26(B) application in April, Creech filed his Petition here
on March 19, 2015 (ECF No. 1-1, 5).
Creech’s Petition proclaims that he has exhausted his state court remedies (ECF No. 5,
PageID 175), but he also asked the Court either to adjudicate a mixed petition or to stay the habeas
proceedings pending exhaustion (ECF Nos. 3, 7). Magistrate Judge Bowman ordered the State to
answer (ECF No. 6). Although Respondent filed the state court record, she also moved to dismiss
on statute of limitations grounds (ECF No. 11). By then the case had been transferred to the
undersigned and Creech had been re-sentenced pursuant to the Fourth District’s 2010 remand.
This Magistrate Judge recommended denying the Motion to Dismiss without prejudice and ordered
that an answer be filed (ECF No. 18). District Judge Barrett adopted that recommendation when
no objections were filed (ECF No. 21).

6

In his Reply, Creech asked the Court to stay the case pending his direct appeal from the
resentencing and the Magistrate Judge granted that relief on March 18, 2016 (ECF No. 23).
Respondent’s Fourth Status Report advised that the Ohio Supreme Court had declined review of
the Fourth District’s affirmance on re-sentencing and that Creech’s application to reopen that
appeal had been denied (ECF No. 35). The Court vacated the stay and ordered Creech to move to
amend to raise any claims that had arisen during the resentencing proceedings (ECF No. 38).
Creech responded that he still had to seek review in the Ohio Supreme Court (ECF No. 39).
Nevertheless, he moved to amend (ECF No. 40) and that motion was granted without opposition
(ECF No. 42). Respondent’s Answer to the Amended Petition (ECF No. 43), and Petitioner’s
Amended Reply (ECF No. 46) brought the case to its present status.

Analysis

Grounds Six, Seven, Eight, and Nine

Further Stay Pending Exhaustion?

As Respondent points out, the Amended Petition is a photocopy of the original Petition
from PageID 2749 to PageID 2771, comprising Grounds for Relief One through Five. At the
bottom of PageID 2772, Petitioner adds:
The next 2 pages are per this Court's Scheduling Order filed on
January 2, 2018, as Doc. #38. Providing this Court and the State of
Ohio with 5 additional grounds that the Petitioner will argue once
they are exhausted in the state courts as this Court granted a Stay to

7

permit in order to evaluate Mr. Creech's request for Habeas Corpus
relief on all the merits contained in the Grounds to be raised.
This language seems to imply Creech wants the stay reinstated to allow him to exhaust state court
remedies as to these five new grounds. This implication is strengthened by the Amended Reply
which advises that the Ohio Supreme Court has still not decided the appeal from the denial of
26(B) relief on resentencing (ECF No. 46, PageID 2821). At PageID 2828 he suggests that his
five new grounds for relief “are not exhausted and may give rise [to additional habeas claims], in
the future, after full and fair adjudication in the state courts.” However, he does not point to any
pending or possible state court proceedings except the pending appeal to the Ohio Supreme Court
of the Fourth District’s denial of his most recent 26(B) application. That case is docketed under
Case No. 2018-0190 and has been ripe for decision since the State waived its right to file a
memorandum in opposition on February 9, 2018. In order to be able to evaluate Creech’s claims,
the Magistrate Judge has retrieved a copy of the Memorandum in Support of Jurisdiction filed by
Creech February 2, 2018, and had it made part of the record.
Having examined Creech’s Supreme Court filings in Case No. 2018-0190, this Court
DECLINES to further stay consideration of this habeas corpus case pending the outcome of that
appeal. District courts have authority to grant stays in habeas corpus cases to permit exhaustion
of state court remedies in consideration of the AEDPA’s preference for state court initial resolution
of claims. However, in recognizing that authority, the Supreme Court held:
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the state courts, stay
and abeyance is only appropriate when the district court determines
there was good cause for the petitioner's failure to exhaust his claims
first in state court. Moreover, even if a petitioner had good cause for
that failure, the district court would abuse its discretion if it were to
grant him a stay when his unexhausted claims are plainly meritless.
Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas
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corpus may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of the
State"). . . .
On the other hand, it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the
petitioner had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.
Rhines v. Weber, 544 U.S. 269, 277-278 (2005). “Staying a federal habeas petition frustrates
AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of
federal proceedings. Id.
Creech’s unexhausted claim – ineffective assistance of appellate counsel – is plainly
meritless. The Fourth District Court of Appeals explained at considerable length why the
assignments of error that Creech claims were omitted by reason of ineffective assistance are not in
fact even colorable. Those proposed assignments were:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION
BY DENYING THE DEFENDANT-APPELLANT'S MOTION TO
DISMISS."
SECOND ASSIGNMENT OF ERROR :
"DEFENDANT' S ATTORNEY, RICHARD NASH, PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE
RESENTENCING HEARING: AND WAS NOT PREPARED TO
ARGUE THE MOTION TO DISMISS."
THIRD ASSIGNMENT OF ERROR:
"PROSECUTORIAL MISCONDUCT IN FAILING TO
PROPERLY DECIDE WHICH COUNT(S) THE STATE OF OHIO
INTENDED TO PURSUE PRIOR TO THE RESENTENCING
HEARING AS REQUIRED BY LAW:
DENYING THE
DEFENDANT AND HIS ATTORNEY THE ABILITY TO
PREPARE THEIR DEFENSE AND THEREFORE PREJUDICE

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THE DEFENDANT'S DEFENSE IN THE RESENTENCING
HEARING."
FOURTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN NOT KEEPING WITH THE
STATUTORY FACTORS IN O.R.C. 2941.25(A), WHEN IT
ONCE AGAIN FOUND THE APPELLANT GUILTY OF ALL OF
THE REMANDED SIX COUNTS OF ALLIED OFFENSES."
State v. Creech, Case No. 16CA3730 (4th Dist. Dec. 20, 2017)(copy at ECF No. 47.)
As to the first proposed assignment, the Fourth District held that the claim Creech wanted
to make about delay in re-sentencing was without merit because it relied on a case, State v. Bezak,
114 Ohio St. 3d 94 (2007), which only applied to re-sentencing upon remand for improprieties in
the imposition of post-release control. Id at PageID 2858. Moreover, the Fourth District had
already decided on direct appeal that the speedy sentencing provisions of Ohio R. Crim. P. 32 did
not apply to re-sentencing.
Creech’s second proposed assignment of error was that his trial attorney on re-sentencing
provided ineffective assistance and his appellate attorney was ineffective for not claiming
ineffective assistance of trial counsel. 1 The Fourth District noted that it had already held on direct
appeal that there was no speedy sentencing provision of Ohio law applicable to re-sentencing and
thus it could not have been ineffective assistance of appellate counsel to fail to raise this claim. Id.
at PageID 2859.
As to the third proposed assignment, the court concluded it had already held on direct
appeal that, because the trial court had properly merged on remand the allied offenses of similar
import, there could be no prejudice from the State’s failure to give notice prior to the resentencing
hearing, of what counts it would elect. Id. at PageID 2859.

1

The second proposed assignment of error is argued purely as an ineffective assistance of trial counsel claim, but
Ohio R. App. P. 26(B) is only available to raise claims of ineffective assistance of appellate counsel.

10

In his fourth proposed assignment, Creech wanted his appellate attorney to argue that the
trial court erred when, on remand, it still found him guilty of all the offenses on which the jury had
returned guilty verdicts. The Fourth District pointed out that Ohio Revised Code § 2941.25 allows
a defendant to be found guilty on allied offenses of similar import; the State is only required to
make an election after verdict. The appellate court had already held on direct appeal that the
merger was proper. Id. at PageID 2860.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.
Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 69394 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
Here the Fourth District was presented with a federal constitutional claim – ineffective
assistance of appellate counsel – which Creech has also raised in the Amended Petition. It applied
the correct standard of review of counsel’s conduct, to wit, the standard enunciated in Strickland
v. Washington, 466 U.S. 668 (1984)(See citation and explanation of Strickland at ECF No. 47,
PageID 2861). Under Strickland’s two-pronged standard, a complaining defendant must prove
both deficient performance by his attorney and resulting prejudice. The Fourth District found
neither deficient performance nor prejudice because the underlying issues had in fact already been
decided on direct appeal contrary to Creech’s position. Because this was a thoroughly reasonable
application of Strickland, this Court must defer to it. Therefore the Court declines to stay these
proceedings pending judgment in the Ohio Supreme Court.

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The Merits of Ground Six, Seven, Eight, and Nine

The exhaustion doctrine is not jurisdictional and is thus waivable by the State, Ex parte
Royall, 117 U.S. 241 (1886); Granberry v. Greer, 481 U.S. 129 (1987). However, 28 U.S.C. §
2254(b)(3) as added by the Antiterrorism and Effective Death Penalty Act of 1996, provides "A
State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance
upon the requirement unless the State, through counsel, expressly waives the requirement." The
warden may waive exhaustion by counsel’s conduct which “manifested a clear and unambiguous
intent to waive the requirement.” D’Ambrosio v. Bagley, 527 F.3d 489, 496 (6th Cir. 2008).
Respondent’s position in the Amended Answer clearly waives any further exhaustion of these
claims in the Ohio courts. (ECF No. 43, PageID 2800 et seq.)
For the reasons already given, these four Grounds for Relief are also without merit. That
is, the Fourth District’s decision on these claims is neither contrary to nor an objectively
unreasonable application of clearly established Supreme Court precedential holdings and therefore
is entitled to deference under 28 U.S.C. § 2254(d).

The First Five Grounds for Relief

In his original and Amended Petitions, Creech raised the following five grounds for relief:
GROUND ONE: The Ohio State Courts erred to the prejudice of
petitioner by denying and affirming said denial; his Motion to
Vacate his illegal conviction and sentence; and further by not
finding that petitioner’s judgment in Case No. 08 CR 461 was Void
Ab Initio, and as such could be vacated at any time. This Habeas
Court must provide de novo review of the Ohio State Court’s actions
and decisions violating petitioner’s 5th, 6th, and 14th Amendment
rights under the United States Constitution.
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GROUND TWO: The Ohio State Courts erred and abused their
discretion by not vacating petitioner’s judgment of conviction and
sentence; as the Termination Entry failed to conform to mandates of
Ohio Law.
GROUND THREE: The Ohio State Courts erred by allowing the
judgment of conviction and sentence to stand; as this judgment
violated his statutory and constitutional speedy trial rights under the
5th, 6th and 14th Amendments of the United States Constitution.
GROUND FOUR: Due process requires full and fair litigation. The
petitioner was denied due process and access to the courts in Ohio
and was prejudiced by said denial; when the Ohio State Courts erred
by denying his motion for leave to file a petition for post conviction
relief, and then affirming that denial.
GROUND FIVE: The petitioner was deprived of effective
representation of counsel in all state court proceedings. The facts
herein support this determination and outcome. The Ohio State
Courts erred and abused their discretion by denying him the right to
Re-Open his appeal based on ineffective assistance of appellate
counsel in both 09-CA-3291 and 12-CA-3500. More specifically,
these cumulative errors so greatly prejudiced petitioner that a
different outcome would have resulted, but for these issues and
assignment of errors not presented by counsel. Moreover, under
Cumulative Error Doctrine, petitioner was denied his constitutional
right to fair proceedings in Ohio courts.
(Amended Petition, ECF No. 41).
All five of these claims are based on Creech’s confusion-of-case-numbers argument. That
is, he claims that he was tried and convicted in Case No. 08 CR 291, but the judgment was entered
in Case No. 08 CR 461. This claim is an extraordinary example of elevating form over substance.
What the Fourth District has classified as a mere clerical error, Petitioner has elevated into an
invasion of his fundamental rights. Because habeas corpus does not address clerical errors in state
court proceedings unless they actually result in the deprivation of constitutional rights, Petitioner’s
confusion-of-case-numbers argument does not warrant habeas relief, as is shown below for each
of the first five grounds for relief.
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Ground One: Denial of the Motion to Vacate

In his First Ground for Relief, Petitioner argues the Ohio courts should have granted his
Motion to Vacate his conviction. This claim was first raised by Attorney Gaba in the June 2011
filing and consisted of claiming that the confusion of case numbers from the two indictments meant
that Creech had never been tried in Case 08CR461. In the portion of Creech II quoted above, the
Fourth District concluded that this was merely a clerical error that in any event had caused Creech
no harm.
In support of Ground One, Creech argues that a court has the power to vacate a void
judgment (Amended Petition, ECF No. 41, PageID 2759). That is an unexceptionable premise of
law, but it does not apply to this case in any way. Creech seems to be arguing that, because of the
confusion of case numbers, the judgment of conviction was void. But the Fourth District in Creech
II held this was not the case and that Creech’s constitutional arguments about the number confusion
could only be raised in a petition for post-conviction relief, i.e., in a proceeding which would
declare the judgment voidable, not void. Moreover, the Court also held that Creech’s postconviction petition, the companion to his motion to vacate, was untimely and the time limits in
Ohio Revised Code § 2953.23 are jurisdictional.
Creech repeats in his Amended Petition the argument that this confusion of numbers was
structural error (ECF No. 41, PageID 2761). However, the Fourth District in Creech II properly
held there was no structural, but merely clerical error which did not prejudice Creech. Creech’s
approach to arguing this claim is very formal: the confusion of numbers means he was never tried
in the 461 case and “this act – alone – violates any concept of due process or equal protection and

14

constitutes a clear fundamental miscarriage of justice.” But he never tries to explain what the
prejudice was, e.g., how he was not given proper notice of the charges or enabled to defend himself.
Clerical error does not amount to a fundamental miscarriage of justice. Creech’s First Ground for
Relief is without merit.

Ground Two: Failure of the Ohio Courts to Vacate the Conviction

Creech begins his argument on Ground Two by asserting the Ohio courts in this case did
not follow their own rules, to wit, Ohio R. Crim. P.32(C) which sets the form of criminal judgment
in Ohio. It turns out on examination that this is a reprise of the case number confusion argument
(Amended Petition, ECF No. 41, PageID 2763). He concludes:
This District Court, sitting as a Habeas Court, must correct these
errors and rule that the Judgment Entry entered against Scott D.
Creech fails to comply -on its face - with the mandates of Ohio law.
This Judgment must be vacated and the conviction and sentence set
aside.
Id. at PageID 2764.
Failure to abide by state law is not itself a constitutional violation. Roberts v. City of Troy,
773 F.2d 720 (6th Cir. 1985). Violation by a State of its own procedural rules does not necessarily
constitute a violation of due process. Bates v. Sponberg, 547 F.2d 325 (6th Cir. 1976); Ryan v.
Aurora City Bd. of Educ., 540 F.2d 222, 228 (6th Cir. 1976). “A state cannot be said to have a
federal due process obligation to follow all of its procedures; such a system would result in the
constitutionalizing of every state rule, and would not be administrable.” Levine v. Torvik, 986 F.2d
1506, 1515 (6th Cir. 1993), cert. denied, 509 U.S. 907 (1993). Even if Creech had shown a

15

violation of state law, that would not elevate a claim about confused case numbers to the level of
a violation of the Fourteenth Amendment.
As noted with respect to Ground One, the Fourth District held the number confusion was
not a violation of Ohio law and that it had been appropriately corrected by Judge Harcha. It also
found no prejudice and Creech has not shown any.
Moreover, the Fourth District upheld a procedural bar in that the petition for postconviction relief was too late. The procedural default doctrine in habeas corpus is described by
the Supreme Court as follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of 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.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433
U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted);
Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Coleman, 501 U.S. at 724.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S. Ct. 612, 175 L.
16

Ed. 2d 417 (2009). This is an important “corollary” to the exhaustion
requirement. Dretke v. Haley, 541 U.S. 386, 392 (2004). “Just as in
those cases in which a state prisoner fails to exhaust state remedies,
a habeas petitioner who has failed to meet the State’s procedural
requirements for presenting his federal claims has deprived the state
courts of an opportunity to address” the merits of “those claims in
the first instance.” Coleman, 501 U.S., at 731-732, 111 S. Ct. 2546,
115 L. Ed. 2d 640. The procedural default doctrine thus advances
the same comity, finality, and federalism interests advanced by the
exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111
S. Ct. 1454, 113 L. Ed. 2d 517 (1991).

Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott
v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
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, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).

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.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
17

(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Ohio clearly has an interest in finality of criminal judgments, one which is properly upheld
by placing a time limit on filing petitions for post-conviction relief. The Fourth District enforced
that bar on Creech in this case and he has not shown any excusing cause and prejudice.
Therefore Creech’s Second Ground for Relief should be dismissed with prejudice.

Ground Three: Speedy Trial

In his Third Ground for Relief, Creech argues again that he was denied a speedy trial by
the number confusion. Specifically, he claims he remained in jail from March 31, 2008, when first
indicted for 291 days until tried on September 29, 2008. “Although Motions filed, including
motions for continuance, would perhaps toll the time for speedy trial purposes in 291, nothing was
filed to trigger the tolling of time in 461.” (Amended Petition, ECF No. 41, PageID 2764). Once
again this argument elevates form over substance. He claims that “[g]iven the confusion between
the two cases, he never was able to assert his rights.” But he presents no evidence of any confusion
by his attorneys or different arguments that could have been made if the numbers were correct,
etc.
He of course did not raise this number confusion issue until 2011 and was held to be barred
by the statute of limitations. He blames this on ineffective assistance of trial counsel and
ineffective assistance of appellate counsel. If the number confusion issue were a matter of real
rights or prejudice, he might have a point. But it is pure formality. Ground Three is without merit.

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Ground Four: Denial of Leave to File Post-Conviction Petition

In this Ground for Relief, Creech takes issue with the holding in Creech II that the time limit
in Ohio Revised Code § 2953.23(A) is jurisdictional. That is a question of Ohio law on which the
federal courts are bound by state court determinations. "[I]t is not the province of a federal habeas
court to reexamine state court determinations on state law questions. In conducting habeas review,
a federal court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf
v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall Ch. J.); Bickham v. Winn, ___ F.3d ___,
2018 WL 1902612 (6th Cir. Apr. 23, 2018)(Thapar, J., concurring).
Creech relies on Klopfer v. North Carolina, 386 U.S. 213 (1967), for the proposition that
the federal constitutional right to a speedy trial applies to the States, but Klopfer provides no basis
for relief here. Klopfer does not hold that the States cannot impose reasonable time limits on
assertion of the right to a speedy trial. Ground Four is without merit.

Ground Five: Ineffective Assistance of Counsel; Cumulative Error

Creech asserts in Ground Five that he was “deprived of effective representation of counsel
in all state court proceedings.” (Petition, ECF No. 41, PageID 2769.)
First he claims his first appellate counsel, Claire Cahoon, “never asserted his right to be resentenced on the allied offenses.” Id. This argument is belied by the appellate brief Ms. Cahoon
filed which specifically raises assignments of error about allied offenses of similar import and was

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successful in obtaining a remand for resentencing (State Court Record ECF No. 10, PageID 338
et seq.) Second, if Creech believes Ms. Cahoon provided ineffective assistance of appellate
counsel, he never raised that claim by the appropriate vehicle in Ohio law, an application to reopen
the appeal under Ohio R. App. P. 26(B), and so he has procedurally defaulted that claim. A claim
of ineffective assistance of appellate counsel, before being brought in habeas corpus, must first be
presented to the state courts. Edwards v. Carpenter, 529 U.S. 446 (2000).
Next he claims ineffective assistance from his second appellate attorney. “This deprivation
was further compounded by his second appellate counsel, Elizabeth Gaba, who failed and refused
to assert these rights ordered by the Court of Appeals in Case No. 09-CA-3291.” (Amended
Petition, ECF No. 41, PageID 2769.) But Ms. Gaba represented Mr. Creech in his 2011 efforts to
get the judgment vacated because of the number confusion. Any failure on her part to assert other
claims that she did not make is not ineffective assistance of appellate counsel because that
constitutional right only applies to proceedings in which one is entitled to effective assistance
under the Sixth Amendment, to wit, trial and direct appeal. Ineffective assistance of counsel can
excuse procedural default only when it occurs in a proceeding where a defendant is constitutionally
entitled to counsel under the Sixth Amendment. 2 Wainwright v. Torna, 455 U.S. 586 (1982)(where
there is no constitutional right to counsel there can be no deprivation of effective counsel); Riggins
v. Turner, 1997 U.S. App. LEXIS 6115, *5 (6th Cir. 1997); Barkley v. Konteh, 240 F. Supp. 2d
708, 714 (N.D. Ohio 2002).
Under this Fifth Ground for Relief, Creech claims he is serving prison time for “crimes he did not
commit.” (ECF No. 41, PageID 2770.) “His sentence is so unjust; it must be set aside and this

2

But see Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013), neither of which is argued
here although the state court construed Creech’s Motion to Strike and Vacate, etc. (ECF No. 10, PageID 574, et seq.)
as, in part, a petition for post-conviction relief. (Decision and Judgment Entry on Motion to Strike and Vacate, and
Motion for Postconviction Relief, ECF No. 10, PageID 722, et seq.)

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clear argument can be asserted at any time. There is no time limit for the correcting of an illegal
sentence. These arguments cannot be barred by res judicata.” Id. That just is not the law. A claim
that a sentence is unconstitutional cannot be brought in habeas corpus unless it is brought within
the time allowed by 28 U.S.C. § 2244. And a claim that one is actually innocent 3 does not state a
ground upon which habeas corpus relief can be granted. Herrera v. Collins, 506 U.S. 390 (1993).

Under Ground Five he also makes a brief cumulative error argument. (Amended Petition,
ECF No. 41, PageID 2770). Cumulative error is not a basis for granting habeas relief in noncapital cases. Eskridge v. Konteh, 88 F. App’x 831, 836 (6th Cir. 2004).
Ground Five is without merit.

Ground Ten for Relief Added by the Amended Petition

In his Amended Petition, Creech added five grounds for relief. Grounds Six, Seven, Eight,
and Nine are dealt with above.

GROUND TEN Petitioner was denied the Effective Assistance of
Appellate Counsel in case number 16-CA-3730 - Fourth Appellate
Court for Scioto County, when counsel on appeal refused to address
his client's assignment of errors, even after signing a Attorny-Client
[sic] Agreement to do such thereby, Petitioner was denied his Sixth
and Fourteen[th] Amendment Rights.
(ECF No. 41, PageID 2773-74.)
As Respondent points out, this Ground for Relief is very cursory – it gives the Court no
facts on which to base a decision. Creech does not plead what assignments of error were omitted

3

As Respondent points out, Petitioner presents no new evidence of actual innocence.

21

or offer any argument as to why they are meritorious. Nor does he explain why he did not include
this claim in his most recent 26(B) application to the Fourth District. The Tenth Ground for Relief
should therefore be dismissed.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Amended Petition 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 and therefore should not
be permitted to proceed in forma pauperis.

May 8, 2018.
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 mail. .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
22

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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