Foster v. Warden, Toledo Correctional Institution
ORDER adopting Report and Recommendations re 41 61 71 Report and Recommendations; granting 52 Motion to Dismiss; and denying 71 Motion for Judgment; the 1 Petition is dismissed with prejudice. Signed by Judge Michael R. Barrett on 7/24/17. (ba)(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
Case No.: 1:15-cv-713
Judge Michael R. Barrett
Warden, Toledo Correctional Institution,
This matter is before the Court on the Magistrate Judge’s November 17, 2016
Report and Recommendation (“R&R”) on Motion to Dismiss (Doc. 41); March 10, 2017
R&R on Motion to Dismiss (Doc. 61); and May 10, 2017 R&R on Motion for Judgment
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 timely objections to the R&Rs. (Docs. 42,
62, 63, 69, 71, 75, 77). Respondent filed a Response to the objections related to the
Motion to Dismiss. (Doc. 64).
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).
Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254. The
Magistrate Judge explained that the grounds Petitioner sets forth for habeas relief
center on a nunc pro tunc sentencing entry made by the Hamilton County Court of
Common Pleas. 1
This nunc pro tunc sentencing entry came about in the following manner.
Petitioner was convicted by a jury of having weapons while under a disability and
felonious assault with attached firearm specifications. On June 6, 2012, the Hamilton
County Court of Common Pleas sentenced Petitioner to consecutive terms of
incarceration for a total of twenty years. (Doc. 10, Exh. 7, PageID # 57). As part of
Petitioner’s direct appeal, the First District Court of Appeals remanded the case to the
Court of Common Pleas to consider whether the imposition of consecutive sentences
was warranted, and if so, to make the necessary statutory findings before imposing
consecutive sentences. (Id., Exh. 12, PageID # 94-95). On August 21, 2013, the Court
of Common Pleas made the necessary findings and re-imposed the same twenty-year
aggregate sentence. (Id., Exh. 17, PageID # 112). On July 2, 2015, the Court of
Common Pleas issued a nunc pro tunc sentencing entry reflecting that Petitioner had
been found guilty by a jury, but also clarifying that in addition to the five years of postrelease control as to Count Three, Petitioner was also sentenced to three years of postrelease control as to Count Two. (Id., Exh. 18, PageID # 115).
Petitioner did set forth other grounds for relief, however he seems to have abandoned
those claims because his objections are limited to the issue of the nun pro tunc sentencing
Petitioner claims that it was error for the Court of Common Pleas to correct the
judgment entry without a hearing where he was physically present. Petitioner argues
that imposing three years of post-control release resulted in an imposition of a new
Respondent maintains that Petitioner’s grounds for relief are not cognizable in
habeas corpus, or are procedurally defaulted.
Respondent moved to dismiss the
petition in Case No. 15cv713 before it was consolidated with Case No. 16cv846. (Doc.
11). Respondent also filed a motion to dismiss in Case No. 16cv846. (Doc. 52). The
Magistrate Judge recommends granting these motions.
Petitioner has filed a Supplemental Motion for Judgment (Doc. 71) based on
safety concerns of necessity. The Magistrate Judge recommends denying Petitioner’s
B. Motions to Dismiss
The Magistrate Judge concluded that Petitioner’s claims for relief are not
cognizable in habeas corpus, or are procedurally defaulted. In his objections, Petitioner
does not dispute that he did not present his claim based on the nunc pro tunc
sentencing entry to the state courts.
Petitioner explains that he did not have an
opportunity to raise this issue in his direct appeal in the state court because the
judgment did not exist until after all of his state proceedings were complete.
“[A] petitioner may procedurally default a claim by failing to raise a claim in state
court, and pursue that claim through the state's ordinary appellate review procedures.”
Carter v. Mitchell, 693 F.3d 555, 563 (6th Cir. 2012) (quoting Williams v. Anderson, 460
F.3d 789, 806 (6th Cir. 2006)).
A petitioner may overcome procedural default by
showing “cause” and “prejudice” for his or her failure to comply with the state's
procedural rule. Id. at 564 (citing Ege v. Yukins, 485 F.3d 364, 378 (6th Cir. 2007)).
However, “federal courts are not required to address a procedural-default issue
before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212,
215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525, 117 S.Ct. 1517, 137
L.Ed.2d 771 (1997) (“Judicial economy might counsel giving the [other] question priority,
for example, if it were easily resolvable against the habeas petitioner, whereas the
procedural-bar issue involved complicated issues of state law.”)).
Here, the Magistrate Judge overlooked the procedural default issue and
determined that Petitioner’s claims are not cognizable in habeas corpus because the
claim raised by Petitioner is an issue of Ohio law.
The Supreme Court has made it clear that “federal habeas corpus relief does not
lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 480, 116
L. Ed. 2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092,
3102, 111 L.Ed.2d 606 (1990)). Instead, “in conducting habeas review, a federal court
is limited to deciding whether a conviction violated the Constitution, laws, or treaties of
the United States.” Id. (citing 28 U.S.C. § 2241).
Petitioner argues that pursuant to Ohio Revised Code § 2929.191(C) 2 and Ohio
Criminal Rule 43, 3 the Court of Common Pleas was required to hold a hearing with him
It would appear that Ohio Revised Code § 2929.191 does not apply to Petitioner.
Section 2929.191 applies if, prior to July 11, 2006, a court imposed a sentence including a
prison term and failed to notify the offender regarding the possibility of the parole board
imposing a prison term for a violation of supervision or a condition of post-release control.
Petitioner was first sentenced on June 6, 2012.
physically present before correcting the judgment entry.
Petitioner argues that the
failure to provide him with a hearing violated his right to due process under the United
The Supreme Court has held that a defendant has a due process right to be
present “‘whenever his presence has a relation, reasonably substantial, to the fullness
of his opportunity to defend against the charge’” and when “‘a fair and just hearing
would be thwarted by his absence.’” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct.
2658, 96 L.Ed.2d 631 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-106,
54 S.Ct. 330, 78 L.Ed. 674 (1934)).
In Floyd v. Alexander, the petitioner was mistakenly sentenced to concurrent
terms of imprisonment and the trial court later changed his sentence to consecutive
terms without the petitioner being present. 148 F.3d 615, 617 (6th Cir. 1998). The
Sixth Circuit recognized that “Ohio Criminal Rule 43 requires the defendant's presence
at any sentencing, including situations where the original sentence was amended or
modified.” Id. (citing State v. Ranieri, 84 Ohio App.3d 432, 434, 616 N.E.2d 1191, 1192
(Ohio Ct. App. 1992)). However, as the Sixth Circuit explained:
while the trial court may have violated Ohio Criminal Rule 43 in entering
the nunc pro tunc order changing Floyd's sentence from concurrent to
consecutive sentences in his absence, this error does not rise to a
“fundamental miscarriage of justice” or constitute a violation of procedural
due process of law. Floyd has alleged a violation of a state law that is not
cognizable in a federal habeas corpus proceeding.
Id. at 618-19; see also Brister v. Kelly, No. 2:14-CV-2024, 2015 WL 7076607, at *5
(S.D. Ohio Nov. 13, 2015), report and recommendation adopted, No. 2:14-CV-2024,
Ohio Criminal Rule 43 requires a criminal defendant's presence “at the arraignment and
every stage of the trial, including the impaneling of the jury, the return of the verdict, and the
imposition of sentence, except as otherwise provided by these rules.” Ohio Crim. R. 43(A).
2015 WL 8485262 (S.D. Ohio Dec. 9, 2015) (“Petitioner had no constitutional right to be
present because the issuance of the nunc pro tunc judgment entry does not constitute a
critical stage of the criminal proceedings.”) (and collecting cases). While it may have
been a violation of Ohio Criminal Rule 43 by the Court of Common Pleas to enter the
nunc pro tunc order clarifying that in addition to the five years of post-release control as
to Count Three, Petitioner was also sentenced to three years of post-release control as
to Count Two in his absence, this error does not rise to a constitutional violation.
Moreover, as Respondent has pointed out, Petitioner’s sentence has not
changed. Under Ohio Revised Code § 2967.28: “If an offender is subject to more than
one period of post-release control, the period of post-release control for all of the
sentences shall be the period of post-release control that expires last, as determined by
the parole board or court. Periods of post-release control shall be served concurrently
and shall not be imposed consecutively to each other.” Therefore, Petitioner will only be
subject to five years of post-release control.
Because Petitioner has alleged an error of state law, the Court finds no error in
the Magistrate Judge’s conclusion that Petitioner’s grounds for relief are not cognizable
in habeas corpus.
C. Motion for Judgment
The Magistrate Judge explained that in his Motion for Judgment, Petitioner claims
that he is entitled to immediate relief under Lynce v. Mathis, 519 U.S. 433 (1997).
However, as the Magistrate Judge explained, Petitioner had not made an ex post facto
claim. Petitioner objects to the denial of his Motion on various grounds.
To the extent that Petitioner raises same arguments regarding the nunc pro tunc
entry in his objections, those objections have been addressed above.
Petitioner also maintains that he has been severely, physically and mentally
attacked by prison staff. (Doc. 75, PageID #1551-1552). Petitioner has made these
allegations elsewhere. However, as the Magistrate Judge explained, to the extent that
Petitioner is arguing that prison conditions rise to the level of a constitutional violation,
he must raise those claims in a separate civil rights action under 42 U.S.C. § 1983. See
Preiser v. Rodriguez, 411 U.S. 475, 499, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)
(explaining that “a § 1983 action is a proper remedy for a state prisoner who is making a
constitutional challenge to the conditions of his prison life, but not to the fact or length of
Therefore, the Court finds no error in the Magistrate Judge’s conclusion that
Petitioner’s Motion for Judgment should be denied.
Based on the foregoing, the Magistrate Judge’s November 17, 2016 R&R on
Motion to Dismiss (Doc. 41); March 10, 2017 R&R on Motion to Dismiss (Doc. 61); and
May 10, 2017 R&R on Motion for Judgment (Doc. 72) are ADOPTED. Accordingly, it is
hereby ORDERED that:
1. Respondent’s Motions to Dismiss (Docs. 11, 52) are GRANTED;
a. Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is DISMISSED
2. Petitioner’s Motion for Judgment (Doc. 71) is DENIED;
3. When a claim has been denied on the merits, a certificate of appealability may
issue only if the petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a
petitioner “must demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)),
or that “the issues presented were ‘adequate to deserve encouragement to
proceed further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Because Petitioner has not
made the requisite showing, Petitioner is DENIED a certificate of appealability;
4. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing
reasons an appeal of this Order would not be taken in good faith and Petitioner is
DENIED 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.
5. This matter is 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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