Horna v. Warden, Chillicothe Correctional Institution

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 9 Report and Recommendations. The Petition herein is DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner is denied a certificate of appealability and the Court certifies to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.,. Signed by Judge Susan J. Dlott on 2/14/17. (Attachments: # 1 Certified Mail Receipt) (wam)(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
VICTOR J. HORNA,
Petitioner,

:

- vs -

Case No. 1:15-cv-680
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

WARDEN,
Chillicothe Correctional Institution,
:
Respondent.

DECISION AND ORDER ADOPTING REPORT AND
RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court upon Objections by
Petitioner Victor Horna (ECF No. 10) to the Report and Recommendations of Magistrate Judge
Michael R. Merz recommending that the Petition be dismissed with prejudice (the “:Report,”
ECF No. 9). As required by Fed. R. Civ. P. 72(b), the Court has reviewed de novo those portions
of the Report to which objection is made.
Mr. Horna pleads the following grounds for relief:
Ground One: Due Process and Equal Protection
Supporting Facts: As provided by statute via the General
Assembly, the courts failed at the plea hearing and at sentencing to
comport with legislative mandates for “first-time” offenders. The
bill of information cannot cure a statutory defect nor can Petitioner
consent or acquiesce subject-matter jurisdiction where it is
otherwise lacking.
The “truth-in-sentencing” guidelines as
intended by the legislature were ignored by the courts and counsel.
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Ground Two: Double Jeopardy
Supporting Facts: Despite the legislative provision of [Ohio
Revised Code] § 2941.25 which codifies the protections of the
Double Jeopardy Clause, Petitioner was not afforded this statutory
mandate and constitutional provision which prohibits multiple
punishments for offenses of similar import. Counsel and the court
at the plea hearing and at sentencing did not address, resolve, or
submit any waivers of this Fifth Amendment right.
Ground Three: Ineffective Assistance of Counsel
Supporting Facts: At all critical stages, counsel failed in his clear
duty to advise Petitioner of his rights under the existing language
of the legislature, the Ohio Constitution, and the United States
Constitution. Moreover, despite ignoring the felony sentencing
mandates, counsel advised Petitioner to be less than truthful at the
plea hearing
(Petition, ECF No. 3).
In his First Ground for Relief, Horna asserts the Common Pleas Court denied him due
process and equal protection of the laws because it did not “comport with legislative mandates
for ‘first-time’ offenders.” The Report found that this claim had been made to the Twelfth
District Court of Appeals as a claim that the Common Pleas Court failed to make the statutory
findings required before imposing consecutive sentences. The Twelfth District found as a matter
of fact that those findings had been made. Magistrate Judge Merz found Mr. Horna had never
presented this claim as a federal constitutional claim to the Ohio courts and the Twelfth District’s
decision definitively disposed of the claim as a state law claim.
In his Objections, Mr. Horna essentially argues, not that the trial court did not make the
required findings, but that they were wrong in that his sentence is disproportionate to sentences
imposed on other for the same offenses. He claims the requirement in Ohio law on which he
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relies was derived from Oregon v. Ice, 555 U.S. 160 (2009). In that case the Supreme Court
upheld the practice of imposing consecutive sentences on the basis of findings made by a judge
rather than the jury. The case does not mandate any particular considerations that judges must
make before imposing consecutive sentences.

In general, federal habeas courts are not

authorized to reconsider sentences imposed by state courts if they are within the boundaries set
by state law. Here the Twelfth District Court of Appeals found Mr. Horna’s sentence was within
those boundaries, and this Court is bound by that state law decision.
Petitioner’s Second Ground for Relief is that he is being punished multiple times for
allied offenses of similar import as forbidden by Ohio Revised Code § 2941.25 and therefore by
the Double Jeopardy Clause of the United States Constitution. The Report found the Twelfth
District’s conclusion that the crimes in question were not allied offenses of similar import to be
decisive. The Report also noted that the charging instrument in the case charged offenses
occurring at different times.
In his Objections, Mr. Horna notes that the time periods in the Information are “vague.”
That is not a claim made in the Petition, nor does the record indicate that Mr. Horna ever sought
a bill of particulars to clear up any vagueness. What is clear is that the time period in Count 1
ends a whole year before the time period in Count 2 begins. Neither the Double Jeopardy Clause
nor Ohio Revised Code § 2941.25 prevents the State from punishing a persons for two similar
crimes committed more than a year apart.
Mr. Horna’s Third Ground for Relief asserts he received ineffective assistance of trial
counsel when his trial attorney (1) failed to advise him of his rights under the law; (2) ignored
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Ohio felony sentencing mandates; and (3) advised Petitioner to be less than truthful at the plea
hearing. The Report analyzed this claim under the general standard adopted by the Supreme
Court in Strickland v. Washington, 466 U.S. 668 (1984). It noted that Mr. Horna had raised an
ineffective assistance of trial counsel claim on direct appeal and the Twelfth District had decided
it on the merits, adversely to Mr. Horna’s claims, by finding that failure to raise meritless
underlying claims was fatal to Horna’s ineffective assistance of trial counsel claims.
The Report found this Court should defer to the Twelfth District on the claims actually
raised there and that Horna had procedurally defaulted his off-the-record claim (that his lawyer
told him to lie) by not presenting it at all to the state courts.
Mr. Horna’s Objections do not deal with specific points in the Report on this Third
Ground for Relief. He merely asserts “the trial attorney completely failed in his competence.”
(ECF No. 10, PageID 189). A petitioner who fails to make specific objections to a magistrate
judge’s report forfeits his right to appeal the aspects of the report to which he did not object. See
Thomas v. Arn, 474 U.S. 140, 155 (1985); Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th
Cir. 2006).

Conclusion

Having reviewed the Report de novo, the Court finds the Objections are not well-taken.
Accordingly, the Report is ADOPTED and the Petition herein is DISMISSED WITH
PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner is
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denied a certificate of appealability and the Court certifies to the Sixth Circuit that any appeal
would be objectively frivolous and therefore should not be permitted to proceed in forma
pauperis.

February 14, 2017.
S/Susan J. Dlott__________________
Susan J. Dlott
United States District Judge

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