Avery v. Bunting

Filing 25

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 15 in that this case is DISMISSED. The Court further Orders that Petitioner's petition be TRANSFERRED to the Court of Appeals for the Sixth Circuit for a determination of whether Petitioner is entitled to file a successive habeas corpus petition. Signed by Judge Gregory L Frost on 9/13/13. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
EDWARD B. AVERY,
CASE NO. 2:13-CV-97
JUDGE GREGORY L. FROST
MAGISTRATE JUDGE KEMP

Petitioner,
v.
JASON BUNTING,
Respondent.

OPINION AND ORDER
On July 12, 2013, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 be
transferred to the United States Court of Appeals for the Sixth Circuit for authorization for filing
as a successive petition and that all of Petitioner’s pending motions be denied as moot. (ECF
No. 15.) Petitioner Edward B. Avery objects to the Magistrate Judge’s recommendation that this
case be transferred to the Court of Appeals as a successive petition and objects to the Magistrate
Judge’s recommendation of dismissal of Petitioner’s motions as moot. (ECF No. 19.)1
I.
In August 1997, Petitioner was convicted in Union County, Ohio, of rape, robbery,
aggravated burglary, and kidnapping.

The trial court sentenced Petitioner to ten years

imprisonment on each count of rape, aggravated burglary, and kidnapping, terms to be served
consecutively.

On the robbery count, the trial court sentenced Petitioner to eight years

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This Court previously scheduled Petitioner’s objections to come on for a non-oral hearing on September
18, 2013. Respondent did not, however, file a response to Petitioner’s objections. Because the briefing
has therefore closed, this Court shall proceed to address the motion in advance of the scheduled non-oral
hearing. See e.g. Farkas v. Ohio, No. 2:12-cv-547, 2012 U.S. Dist .LEXIS 117695 (S.D. Ohio Aug. 21,
2012); Anderson v. Holliday, No. 2:10-cv-508, 2010 U.S. Dist. LEXIS 92544, at *2 (S.D. Ohio Sept. 7,
2010).
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imprisonment, to be served concurrently with the other convictions. The trial court also found
Petitioner to be a sexual predator under Ohio Rev. Code § 2950.09(B). Ohio’s Third District
Court of Appeals affirmed Petitioner’s conviction and sentence on appeal. State v. Avery, 126
Ohio App. 3d 36, 709 N.E. 2d 875 (Ohio Ct. App. 1998). After Petitioner failed to file a timely
appeal to the Supreme Court of Ohio, his motion for leave to file a delayed appeal was denied.
State v. Avery, 91 Ohio St. 3d 1462, 743 N.E. 2d 401 (Ohio 2001).
On May 12, 1999, Petitioner filed his first petition for a writ of habeas corpus with this
Court (Case No. 2:99-cv-459), asserting 17 grounds for relief. On June 9, 2000, this Court
granted Petitioner’s motion to withdraw his petition and dismissed the case without prejudice to
refiling it upon the exhaustion of his state court remedies. On February 13, 2003, Petitioner filed
his second petition for writ of habeas corpus in this Court (Case No. 2:02-cv-139), also setting
forth 17 claims for relief. The Court dismissed this petition as time-barred under the one-year
statute of limitations.
Several years later, in February 2008, Petitioner filed a motion for relief from judgment,
attempting to relitigate the claims dismissed in his second habeas corpus petition. The Court
denied Petitioner’s motion as untimely and without merit. Avery v. Brigano, No. 2:99-cv-459
(S.D. Ohio Mar. 4, 2008).
In March 2010, Petitioner filed a motion for re-sentencing with the state court in which
he was convicted. The trial court ordered a de novo sentencing hearing on the ground that
Petitioner was not advised of the mandatory post-release control term during his original
sentencing hearing. State v. Avery, Union Cty. C.P. No. 1997-CR-0020 (Ohio C.P. Ct. Oct. 6,
2010) (Journal Entry). At resentencing, the state court reimposed terms of imprisonment and
notified Petitioner of the imposition of post-release control. State v. Avery, Union Cty. C.P. No.

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1997-CR-0020 (Ohio C.P. Ct. Nov. 24, 2010) (Journal Entry of Re-Sentence). The state court of
appeals affirmed. State v. Avery, 2011-Ohio-4182, 2011 Ohio App. LEXIS 3495 (Ohio Ct. App.
Aug. 22, 2011). The Ohio Supreme Court denied review. State v. Avery, 131 Ohio St.3d 1412,
2012-Ohio-136, 959 N.E. 2d 1056 (Ohio 2012).
Petitioner then filed the current habeas corpus petition, raising four grounds for relief.
Respondent moved to dismiss, arguing that the current petition is a second or successive petition
that must be dismissed or transferred to the United States Court of Appeals for the Sixth Circuit.
(ECF No. 12.) In his Report and Recommendation, the Magistrate Judge agreed that the current
habeas corpus petition is a second or successive petition and accordingly recommended that the
petition be transferred to the Sixth Circuit for a determination of whether Petitioner is permitted
to file a successive petition. (ECF No. 15 at PageID# 182.) Petitioner filed timely objections to
the Report and Recommendation (ECF No. 19) and the matter is now before this Court for
review.
II.
Petitioner argues that his current habeas corpus petition should not be transferred to the
Sixth Circuit because his 1999 habeas corpus petition was dismissed without prejudice to refiling upon exhaustion of state remedies and because his current habeas corpus petition was filed
after his November 2010 re-sentencing hearing. Petitioner argues that the Court improperly
dismissed his 2002 habeas corpus petition as time-barred.

He contends that a manifest

miscarriage of justice will occur should the Court adopt the Magistrate Judge’s recommendations
in this case.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. It is true that
a habeas corpus petition is not a “second or successive” petition within the meaning of 28 U.S.C.

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§ 2244(b) merely because the petitioner has filed a prior application for habeas corpus relief. See
In re Smith, 690 F.3d 809 (6th Cir. 2012). But in this case, as noted by the Magistrate Judge,
Petitioner challenges the same 1997 convictions as he challenged in his prior two habeas corpus
petitions. Because the current petition challenges the underlying conviction that was the basis of
his previous habeas corpus petitions, the current petition is a second petition within the meaning
of 28 U.S.C. § 2244(b).
The Court is cognizant of the fact that Petitioner was resentenced by the state court in
November 2010, long after the disposition of Petitioner’s first two habeas corpus petitions. But
this circumstance is of no moment. Petitioner’s current petition challenges his 1997 state court
conviction; it does not raise any issues related to the November 2010 resentencing or any issues
related to post-release control, which was formally imposed at resentencing. Further, while
Petitioner’s first habeas corpus petition may have been dismissed without prejudice to re-filing,
Petitioner waited until the one-year statute of limitations had expired to file his second habeas
corpus petition. The dismissal of Petitioner’s second petition as time-barred was a dismissal on
the merits, rendering the current petition a second or successive habeas corpus petition under 28
U.S.C. § 2244(b). See In re Cook, 215 F.3d 606, 607-08 (6th Cir. 2000).
Accordingly, for the reasons set forth in the Magistrate Judge’s Report and
Recommendation, Petitioner must obtain authorization for filing this habeas corpus action, as his
current petition is a second or successive petition within the meaning of 28 U.S.C. § 2244(b).
The Court must therefore dismiss this action and transfer Petitioner’s petition to the Court of
Appeals for the Sixth Circuit for a determination of whether Petitioner may file a successive
habeas corpus petition. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam); see also 28
U.S.C. § 1631.

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III.
For the foregoing reasons, this Court OVERRULES Petitioner’s Objections (ECF No.
19). The Court ADOPTS AND AFFIRMS the Magistrate Judge’s Report and Recommendation
(ECF No. 15) and hereby DISMISSES this action. The Court further Orders that Petitioner’s
petition be TRANSFERRED to the Court of Appeals for the Sixth Circuit for a determination of
whether Petitioner is entitled to file a successive habeas corpus petition. The Court DENIES AS
MOOT Petitioner’s remaining pending motions (ECF Nos. 9, 10, 11, 13, 14).
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
United States District Judge

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