Simpson v. Warden Warren Correctional Institution
OPINION AND ORDER denying 147 Petitioners motion asking the Court to enforce its March 11, 2015, Order conditionally granting, in part, his petition for habeas relief under 28 U.S.C. § 2254. Signed by Judge Edmund A. Sargus on 5/9/2022. (cmw)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
DONOVAN E. SIMPSON,
Civil No. 2:06-CV-127
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Chelsey M. Vascura
WARDEN, WARREN CORRECTIONAL
OPINION AND ORDER
This matter is before the Court for consideration of Petitioner’s motion asking the Court
to enforce its March 11, 2015, Order conditionally granting, in part, his petition for habeas relief
under 28 U.S.C. § 2254. (Doc. 147.) Respondent opposes the motion. (Doc. 148.) For the
following reasons, Petitioner’s motion is DENIED.
Discussion and Analysis
Petitioner previously filed motions seeking the relief sought here (Doc. 113, 117), and the
Court determined that such relief was unwarranted (Doc. 118, 142).
On March 11, 2015, this Court issued an Order conditionally granting Petitioner’s
petition for habeas relief as to his convictions in the Franklin County Court of Common Pleas for
aggravated murder, murder, and attempted murder because they had been obtained in violation
of Petitioner’s constitutional rights. (Doc. 93, 94.) That conditional grant required the state to
vacate those convictions “subject to the State of Ohio commencing a re-trial within 90 days.”
(Doc. 93.) The matter was stayed, however, pending an appeal in the United States Court of
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Appeals for the Sixth Circuit, which issued a mandate on June 27, 2016, affirming the March 11,
2015, Order. (Doc. 99, 103, 104.) Accordingly, the state had 90 days from June 27, 2016, or
until September 26, 2016, 1 to comply with the March 11, 2015, Order.
The state timely complied. Indeed, the record reflects that on July 28, 2016, which was
well before the compliance deadline, the Franklin County Court of Common Pleas vacated
Petitioner’s unconstitutional convictions for aggravated murder, murder, and attempted murder.
(Doc. 105–1.) At that time, and as this Court has already determined (Doc. 118, 142), this
Court’s jurisdiction terminated because Petitioner was no longer in custody because of an
unconstitutional conviction. Eddleman v. McKee, 586 F.3d 409, 413 (6th Cir. 2009) (explaining
that “once the unconstitutional judgment is gone, so too is federal jurisdiction under § 2254.”)
Petitioner contends, however, that the state failed to fully comply with this Court’s March
11, 2015, Order. (Doc. 147, PageID # 4598.) Specifically, Petitioner asserts that the state could
only fully comply with that Order if the state also commenced a new trial or entered nolle
prosequi for counts one through seven of the indictment in his state criminal case by September
26, 2016. (Id.) The state, however, did not enter nolle prosequi for those counts until December
6, 2016. (Id., PageID # 4599.) Accordingly, Petitioner reasons, the state failed to fully comply,
and thus, this Court maintains jurisdiction over this matter “at least to the extent necessary to
ensure that the State of Ohio complied with the conditional writ.” (Id. at PageID # 4601.)
Petitioner is mistaken. He filed his habeas petition under § 2254. (Doc. 1.) That statute
empowers this Court to “entertain an application for a writ of habeas corpus in behalf of a person
in custody pursuant to a judgment of a State court only on the ground that he is in custody in
Because the 90-day deadline fell on Sunday, September 25, 2016, the deadline did not expire
until the next business day, Monday, September 26, 2016.
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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a)
(emphasis added). “For federal habeas jurisdiction to exist under § 2254, therefore, a state
prisoner must be held pursuant to a judgment—rather than, say, an indictment or criminal
information.” Eddleman, 586 F.3d at 413. Therefore, even if counts one through seven of the
indictment were operative after the September 26, 2016, compliance deadline, and even if he was
in custody because of them after that, this Court no longer possessed habeas jurisdiction.
In any event, Petitioner was not in custody after the September 26, 2016, compliance
deadline because of counts one through seven of the indictment. Instead, he remained in custody
after his unconstitutional convictions were vacated July 28, 2016, because of his other
convictions— for aggravated arson and five counts of felonious assault— none of which were
found to be unconstitutional. (Doc. 93.)
Petitioner was resentenced by the state trial court for those other convictions on
December 6, 2016. He appears to challenge that resentencing. (Doc. 147, PageID # 4600–01.)
The Court expresses no opinion as to whether Petitioner can successfully make such a challenge.
Nevertheless, and as this Court previously explained, if Petitioner wishes to challenge the state
trial court’s December 6, 2016, resentencing entry, he must follow the proper procedures— he
must first exhaust his state court remedies and then file a new § 2254 petition attacking that state
court judgment. He cannot bootstrap a new habeas challenge onto this habeas petition.
Accordingly, Petitioner’s motion (Doc. 147) is DENIED.
Certificate of Appealability (“COA”)
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts, the Court must consider whether to issue a COA. A state prisoner who seeks a
writ of habeas corpus in federal court does not have an automatic right to appeal a district court’s
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adverse decision unless the court issues a COA. 28 U.S.C. § 2253(c)(1)(A). When a claim has
been denied on the merits, a COA may be issued 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 show “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a
claim has been denied on procedural grounds, a COA may be issued if the petitioner establishes
that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling. Id.
The Court DECLINES to issue a COA. The Court is not persuaded that reasonable
jurists could debate that this the state complied with this Court’s March 11, 2015, Order on July
28, 2016, and that this Court’s jurisdiction terminated at that time.
The Court also CERTIFIES that an appeal would not be in good faith and that any
application to proceed in forma pauperis on appeal would be DENIED.
IT IS SO ORDERED.
s/Edmund A. Sargus, Jr.
EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT COURT JUDGE
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