Creech v. Warden, Chillicothe Correctional Institution

Filing 77

ORDER adopting Report and Recommendations re 48 55 Report and Recommendations overruling 65 68 Objections; the Petitioner's 41 Amended Petition is DISMISSED with PREJUDICE. Signed by Judge Michael R. Barrett on 8/13/20. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:15-cv-00193-MRB-MRM Doc #: 77 Filed: 08/13/20 Page: 1 of 12 PAGEID #: 3249

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Scott D. Creech,
Petitioner,
Case No.: 1:15-cv-193
v.
Judge Michael R. Barrett
Warden, Chillicothe Correctional
Institution,
Respondent.
OPINION & ORDER
This matter is before the Court on the Magistrate Judge’s May 8, 2018 Report
and Recommendations (“R&R”) (Doc. 48) and July 5, 2018 Supplemental R&R (Doc.
55).
The parties were given proper notice under Rule 72(b) of the Federal Rules of
Civil Procedure, including notice that the parties would waive further appeal if they failed
to file objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d
947, 949-950 (6th Cir. 1981). Petitioner filed Objections to the R&R (Doc. 53) and the
Supplemental R&R (Doc. 60).
Also before the Court is Petitioner Objections (Doc. 65) to the Magistrate Judge’s
September 3, 2018 Notation Order denying Petitioner’s Motion to Expand the Record
(Doc. 64); and Petitioner’s Objections (Doc. 68) to the Magistrate Judge’s October 3,
2018 Order denying Petitioner’s Motion to Amend or Stay (Doc. 67).
For the reasons stated below, the Court OVERRULES Petitioner’s Objections to
the Magistrate Judge’s May 8, 2018 R&R and July 5, 2018 Supplemental R&R. The

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Court also OVERRULES Petitioner’s Objections to the Magistrate Judge’s September 3,
2018 and October 3, 2018 Orders.
I. BACKGROUND
The factual and procedural history of this case is set forth in the Magistrate
Judge’s May 8, 2018 R&R and July 5, 2018 Supplemental R&R, and the same will not
be repeated except to the extent necessary to address Petitioner’s objections.
This matter arises out of Petitioner’s pro se habeas action brought pursuant to 28
U.S.C. § 2254 to obtain relief from his convictions in the Scioto County Common Pleas
Court on charges 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.
Petitioner has set forth ten grounds for relief in his Amended Petition.

The

Magistrate Judge recommends denying relief on all ten grounds and dismissing the
Petition with prejudice.
II. ANALYSIS
A. Standard of Review
This Court shall consider objections to a magistrate judge’s order on a
nondispositive matter and “shall modify or set aside any portion of the magistrate

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judge’s order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a).
When objections to a magistrate judge’s report and recommendation are received on a
dispositive matter, the assigned district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3).

After review, the district judge “may accept, reject, or modify the

recommended decision; receive further evidence; or return the matter to the magistrate
judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
B. Motion to Expand the Record
Petitioner maintains that he should be permitted to submit evidence of the illegal
search of his home by the Scioto County Sherriff’s Office which took place on March
18th and 19th of 2008. Petitioner explains this would support his claim that trial counsel
was ineffective in arguing the motion to suppress. However, as the Magistrate Judge
explained, any new claims of ineffective assistance of counsel related to the
suppression motion are barred by the statute of limitations and are procedurally
defaulted. (Doc. 55, PAGEID# 2940-2941).
The Court finds no error in this conclusion.

Federal habeas petitions are

governed by a one-year statute of limitations that runs from the “date on which the
judgment became final by the conclusion of direct review or expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A). This one-year period may be tolled
for that amount of time in which “a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending.” 28
U.S.C. § 2244(d)(2).

However, because Petitioner’s post-conviction petition was

untimely, it was not “properly filed” under state law, and did not serve to toll the running

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of the statute of limitations under § 2244(d)(2). See Ayala v. Dewitt, 26 F. App'x 379,
380 (6th Cir. 2001) (citing Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 363-64, 148
L.Ed.2d 213 (2000)).

Petitioner does not argue to the contrary.

Therefore, any

evidence pertaining to Petitioner’s ineffective assistance of counsel claim based on
suppression issues would not be properly admitted into the record.

Accordingly,

Petitioner’s objections to the Magistrate Judge’s Order denying Petitioner’s Motion to
Expand the Record are OVERRULED.
C. Motion to Amend or Stay
Petitioner filed his Petition in this Court on March 19, 2015. This Court stayed
the case while Petitioner pursued his direct appeal from resentencing. (Doc. 23). After
the Ohio Supreme Court declined review, this Court vacated the stay and ordered
Petitioner to move to amend the Petition to include any claims which may have arisen
during the resentencing appeal. (Doc. 38). Petitioner was granted leave to amend.
(Doc. 42). Petitioner seeks to stay these proceedings again and amend his Petition in
order to include “all his constitutional claims.”
In denying Petitioner’s Motion to Amend or Stay, the Magistrate Judge explained
that Petitioner has failed to inform the Court what his proposed new claims are so that
the Court can determine whether or not the amendment would be futile, or whether a
stay would be warranted. Moreover, the Magistrate Judge explained that a motion to
amend may be denied if the movant has a dilatory motive; and Petitioner’s motion to
amend when the case is already pending on dispositive reports and recommendations
plainly evinces such a motive.

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In his Objections, Petitioner explains that he understood that his previous
Amended Petition would only be a proposed draft and not ripe for decision because his
state-court proceedings where not completed until May 9, 2018.
In his May 8, 2018 R&R, the Magistrate Judge explained that Petitioner’s only
unexhausted claim is ineffective assistance of appellate counsel. The Magistrate Judge
explained that under Strickland’s two-pronged standard, a complaining defendant must
prove both deficient performance by his attorney and resulting prejudice. See Strickland
v. Washington, 466 U.S. 668, 687 (1984). The Fourth District found neither deficient
performance nor prejudice because, contrary to Petitioner’s position, the underlying
issues had in fact already been decided on direct appeal. The Magistrate Judge
concluded that this was a reasonable application of Strickland, and this Court must
defer to it. Therefore, the Magistrate Judge declined to stay these proceedings pending
judgment in the Ohio Supreme Court.
Petitioner argues that this ruling was “preemptive” because it was entered the
day before the Ohio Supreme Court declined jurisdiction over his Rule 26(b) appeal.
However, as the Magistrate Judge explained, Petitioner did not move to amend either
before or after the Supreme Court denied his appeal. Moreover, as the Magistrate
Judge explained, under Rhines v. Weber, 544 U.S. 269 (2005), a federal court’s
authority to stay a habeas proceeding pending state court action is limited to situations
where there is good cause for a petitioner’s failure to exhaust before coming to federal
court. The Court finds no error in the Magistrate Judge’s conclusion that Petitioner has
not shown good cause for his failure to exhaust, or even what claims he seeks to bring.

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Accordingly, Petitioner’s objections to the Magistrate Judge’s Order denying
Petitioner’s Motion to Stay are OVERRULED.
D. Ground One
In Ground One, Petitioner claims the Ohio courts should have granted his Motion
to Vacate his conviction. Petitioner’s claim is based upon confusion regarding the case
numbers in his underlying criminal case. Specifically, Petitioner was tried and convicted
in Case No. 08 CR 291, but the judgment was entered in Case No. 08 CR 461.
The Magistrate Judge concluded that the Ohio Fourth District Court of Appeals
properly held there was no structural, but merely clerical error. The Magistrate Judge
explained that Petitioner had not established that he was entitled to habeas relief based
on the clerical error. The Court finds no error in this conclusion. Accord Partee v.
Stegall, 8 Fed. Appx. 466, 467 (6th Cir. 2001) (holding that petitioner was not entitled to
habeas relief when he was tried, convicted, and sentenced for first-degree murder, but
clerical error in trial court's mittimus cited statute governing second-degree murder).
Therefore, Petitioner’s objections to the dismissal of Ground One are OVERRULED.
E. Ground Two
In Ground Two, Petitioner claims Ohio courts failed to follow Ohio Rule of
Criminal Procedure 32(C).
The Magistrate Judge explained that a violation by a state of its own procedural
rules does not necessarily constitute a violation of due process. The Magistrate Judge
explained that the Fourth District held the number confusion was not a violation of Ohio
law and that it had been appropriately corrected by the trial judge. The Magistrate
Judge also noted that the Fourth District found this claim procedurally defaulted. The

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Magistrate Judge explained that 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.
The Court finds no error in this conclusion. See Estelle v. McGuire, 502 U.S. 62,
67–68 (1991) (“it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions”). An error in state procedure does not rise to the
level of a federal constitutional claim warranting habeas relief “unless the error renders
the proceeding so fundamentally unfair as to deprive the petitioner of due process under
the Fourteenth Amendment.”

McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004)

(quoting Estelle, 502 U.S. at 69-70). Petitioner has not shown that the case number
confusion resulted in a deprivation of due process. As the Magistrate Judge explained,
Petitioner has not claimed that he was not given proper notice of the charges or unable
to defend himself. (Doc. 48, PAGEID# 2877).
Therefore, Petitioner’s objections to the dismissal of Ground Two are
OVERRULED.
F. Ground Three
In Ground Three, Petitioner maintains that he was denied a speedy trial by the
number confusion.
The Magistrate Judge explained Petitioner did not raise this number confusion
issue until 2011, and the claim was held to be barred by the statute of limitations.
Petitioner explains he did not raise the claim earlier due to ineffective assistance of trial
counsel and ineffective assistance of appellate counsel.

However, the Magistrate

Judge found no merit to this claim because Petitioner did not present evidence of any

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confusion by his attorneys or different legal arguments which would have been made if
the numbers were correct.

The Court finds no error in the Magistrate Judge’s

conclusion.
In his objections, Petitioner relies on United States v. Thomas, 167 F.3d 299 (6th
Cir. 1999) to argue that he has a Sixth Amendment right to a speedy re-sentencing on
remand.

However, as the Magistrate Judge explained, Thomas is Sixth Circuit

precedent, and cannot serve as the basis for habeas relief. Accord Lopez v. Smith, 574
U.S. 1, 6, 135 S. Ct. 1, 4, 190 L. Ed. 2d 1 (2014) (“AEDPA permits habeas relief only if a
state court's decision is ‘contrary to, or involved an unreasonable application of, clearly
established Federal law’ as determined by this Court, not by the courts of appeals.”)
(quoting 28 U.S.C. § 2254(d)(1)).
Therefore, Petitioner’s objections to the dismissal of Ground Three are
OVERRULED.
G. Ground Four
In Ground Four, Petitioner claims that the Ohio courts erred in determining that
the time limit in Ohio Revised Code § 2953.23(A) is jurisdictional.
The Magistrate Judge explained that this is a question of Ohio law on which the
federal courts are bound by state court determinations. The Court finds no error in this
conclusion. Federal habeas corpus relief does not lie for errors of state law. Lewis v.
Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102, 111 L. Ed. 2d 606 (1990).
Therefore, Petitioner’s objections to the dismissal of Ground Four are
OVERRULED.

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H. Grounds Five
In the Fifth Ground for relief, Petitioner claims his attorneys provided ineffective
assistance of counsel.
Petitioner claims his appellate counsel was ineffective based on counsel’s failure
to raise his claim that his re-sentencing was untimely according to State v. Bezak, 114
Ohio St. 3d 94 (Ohio 2007). As the Magistrate Judge explained, the Fourth District held
that there was no ineffective assistance of counsel based on the failure to raise this
claim because Petitioner’s remand was for merger of allied offenses under Ohio
Revised Code § 2941.25; and therefore, he was not entitled to a full re-sentencing
hearing under Bezak. The Magistrate Judge concluded that this was a reasonable
application of the Supreme Court’s clearly established precedent in Strickland v.
Washington, 466 U.S. 668 (1984). The Court finds no error in this conclusion.
In his objections, Petitioner points to a variety of actions his attorneys should
have taken relative to the suppression of evidence found during the search of his house.
As explained above, the Magistrate Judge found that Petitioner’s claims of
ineffective assistance of trial counsel related to the suppression matter are barred by
the statute of limitations; and are also procedurally defaulted because the claims were
never presented to the Ohio courts in a petition for postconviction relief under Ohio
Revised Code § 2953.21. The Court finds no error in this conclusion. While Petitioner
did file a petition for post-conviction relief, the petition was untimely; and in any event,
the petition he filed did not include these particular claims of ineffective assistance of
trial counsel. Therefore, Petitioner did not fairly present both the factual and legal bases

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for his claim to the state courts at the time review was available. See McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
Therefore, Petitioner’s objections to the dismissal of Ground Five are
OVERRULED.
I. Grounds Six, Seven, Eight, Nine
As the Magistrate Judge explained, Grounds Six though Nine are the same four
assignments of error which the Fourth District Court of Appeals considered as part of
Petitioner’s ineffective assistance of appellate counsel claim.

The Fourth District

concluded that appellate counsel was not ineffective for failing to raise these
assignments of error because the underlying claims had no merit. (Doc. 48, PAGEID#
2872-2873).
The Magistrate Judge found that 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, the Fourth District’s decision is
entitled to deference under 28 U.S.C. § 2254(d). Petitioner presents little to argue to
the contrary.
Therefore, any objections to the dismissal of Grounds Six, Seven, Eight or Nine
are OVERRULED.
J. Ground Ten
Petitioner added his Tenth Ground for relief in his Amended Petition. Petitioner
claims he was denied the effective assistance of appellate counsel when counsel on
appeal refused to raise any assignments of error other than raising an assignment of
error about allied offenses of similar import.

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The Magistrate Judge explained that this ground for relief is very cursory and
gives the Court no facts on which to base a decision. Petitioner does not provide any
clarification in his objections.
Therefore, any objections to the dismissal of Ground Ten is OVERRULED.
III. CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1. Petitioner’s Objections to the Magistrate Judge’s September 3, 2018 and October
3, 2018 Orders (Docs. 65, 68) are OVERRULED;
2. The Magistrate Judge’s May 8, 2018 Report and Recommendations (“R&R”)
(Doc. 48) and July 5, 2018 Supplemental R&R (Doc. 55) are ADOPTED;
3. Petitioner’s Amended Petition (Doc. 41) is DISMISSED with PREJUDICE;
4. A certificate of appealability is not issued with respect to the claims alleged in
Grounds One, Two, and Four through Ten of the petition, which were addressed
on the merits herein, in the absence of a substantial showing that petitioner has
stated a “viable claim of the denial of a constitutional right” or that the issues
presented in those grounds for relief are “adequate to deserve encouragement to
proceed further.” See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing
Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. §
2253(c); Fed. R. App. P. 22(b).
5. In addition, a certificate of appealability is not issued with respect to the
remaining claims alleged, which this Court has concluded are procedurally
barred from review, because under the first prong of the two-part standard
enunciated in Slack, 529 U.S. at 484-85, “jurists of reason” would not find it
debatable whether this Court is correct in its procedural ruling. Because the first
prong of the Slack test has not been met, the Court need not address the second
prong of that test. Nevertheless, assuming that “jurists of reason” could find the
procedural ruling debatable, the Court further finds that the second prong of the
Slack test has not been met because “jurists of reason” would not find it
debatable whether petitioner has stated a viable constitutional claim in the
defaulted grounds for relief. See id. at 484.
6. With respect to any application by Petitioner to proceed on appeal in forma
pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of
this Order adopting the R&R and Supplemental R&R would not be taken in “good
faith” and, therefore, this Court DENIES petitioner leave to appeal in forma
pauperis upon a showing of financial necessity. See Fed. R. App. P. 24(a);
Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997); and

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7. This matter shall be CLOSED and TERMINATED from the active docket of this
Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT

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