Taylor v. Warden Correctional Reception Center

Filing 14

REPORT AND RECOMMENDATIONS. The Magistrate Judge RECOMMENDS that Petitioner's Notice and Motion Reply to Quash Responden's Motion for Additional Time Notice and Motion for Summary Judgment, ECF 11 , be DENIED and that this action be DISMISSED. Objections to R&R due by 6/26/2015. Signed by Magistrate Judge Norah McCann King on 6/9/2015. (pes) (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
EASTERN DIVISION
BRENTFORD TAYLOR,
Petitioner,
Case No. 2:14-cv-1368
Judge Marbley
Magistrate Judge King

v.
TIM BUCHANAN, WARDEN,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254.

This matter is before the Court on the Petition as amended, ECF 3, 7,

Respondent’s Return of Writ, ECF 12, Petitioner’s Reply, ECF 13, and Petitioner’s Notice and
Motion Reply to Quash Respondent’s Motion for Additional Time Notice and Motion for
Summary Judgment (“Reply Motion”), ECF 11.
For the reasons that follow, the Magistrate Judge RECOMMENDS that Petitioner’s
Reply Motion, ECF 11, be DENIED and that this action be DISMISSED.
Facts and Procedural History
On December 21, 2009, pursuant to the terms of his negotiated plea, Petitioner pleaded
guilty to one felony count of robbery and the trial court imposed a sentence of four years’
community control. Exhibit 3 to Return of Writ, PageID# 206-07. In December 2010, Petitioner
stipulated that he had violated conditions of community control and was sentenced to two years
in prison to be followed by a three year term of post-release control. Exhibit 5 to Return of Writ,
PageID# 210-11. On April 28, 2011, Petitioner filed a “Notice and Motion for Additional
Sentence Credit and Rehearing Plus Vacating the Judgment of Conviction a Void Sentence

1 

‘Abinitio [sic]’”. ECF 12-1, PageID# 212. A complete copy of that motion has not been made a
part of the record before this Court. Apparently, however, the trial court has not issued a ruling
on the motion. See Return of Writ, ECF 12, PageID# 189. In July 2014, after his release from
prison and placement on post-release control, Petitioner was found guilty of violating terms of
post-release control and was sentenced to 130 days’ imprisonment. Exhibit 10 to Return of Writ,
PageID# 250. On August 12, 2014, Petitioner filed with the trial court a habeas corpus petition
alleging that Petitioner was entitled to immediate release on the basis of ineffective assistance of
counsel, and because the trial court illegally imposed the sentence in 2009 without having first
considered a presentence investigation report. ECF 12-1, PageID# 238. It does not appear that
the trial court has yet issued a ruling on that petition.
Petitioner executed the pro se federal habeas corpus petition on July 31, 2014.1

All of

Petitioner’s claims relate to the original 2009 sentence. Specifically, Petitioner claims that the
sentence was imposed in violation of state law because the trial court failed to first consider a
presentence investigation report. Because that sentence was “void ab initio,” Petitioner alleges,
his subsequent sentences in connection with violations of the terms of release were likewise
unlawful. Reply, ECF 13, PageID# 271. Petitioner also asserts that he was denied the effective
assistance of counsel because his attorney failed to challenge the imposition of the sentences.
Respondent contends that Petitioner’s claims are unexhausted and otherwise fail to
provide a basis for relief.
Exhaustion
Before a federal habeas court may grant relief, a state prisoner must exhaust his available
remedies in the state courts. Castille v. Peoples, 489 U.S. 346, 349 (1989); Silverburg v. Evitts,

1

It appears that Petitioner remains on probation as a result of the sentences now under attack. See ECF 12-1.
PageID# 250.  

2 

993 F.2d 124, 126 (6th Cir. 1993). If a habeas petitioner has not presented a claim to the state
courts and still has the right under state law to raise the claim by any available procedure, he has
not exhausted that claim. 28 U.S.C. § 2254(b), (c). Moreover, a constitutional claim for relief
must be presented to the state's highest court in order to satisfy the exhaustion requirement.
O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th
Cir.1990).
Based on the record before the Court, it does not appear that Petitioner presented any of
his claims to the state courts on direct appeal from his 2009 conviction and sentence. Although
the time for filing a direct appeal from Petitioner’s 2009 conviction has now expired, Petitioner
may still pursue a motion for delayed appeal in the state appellate court. Petitioner insists that he
has exhausted his state court remedies because he raised his claims in his “Notice and Motion for
Additional Sentence Credit and Rehearing Plus Vacating the Judgment of Conviction a Void
Sentence ‘Abinitio’” and in his state habeas corpus petition. Reply, ECF 11. Even assuming,
arguendo, that Petitioner thereby exhausted his claims, the record does not establish that
Petitioner is entitled to relief.
All of Petitioner’s claims, with the exception of his claim of ineffective assistance of
counsel, raise issues of state law that are not appropriate for federal habeas corpus review and
relief. See 28 U.S.C. 2254(a). Petitioner’s claims appear to be based on the requirement, under
Ohio law, that a sentence of community control not be imposed in lieu of prison in a felony case
“until a written presentence investigation report has been considered by the court.” O.R.C. §
2951.03(A)(1). See also Ohio R. Crim. P. 32.2 (“In felony cases the court shall . . . order a
presentence investigation and report before imposing community control sanctions or granting
probation.”). However, a federal court may not issue a writ of habeas corpus “on the basis of a

3 

perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848
F.2d 735, 738 (6th Cir.1988). A federal habeas court does not function as an additional state
appellate court reviewing state courts' decisions on state law or procedure. Allen v. Morris, 845
F.2d 610, 614 (6th Cir. 1988). “‘[F]ederal courts must defer to a state court's interpretation of its
own rules of evidence and procedure’” in considering a habeas petition. Id. (quoting Machin v.
Wainwright, 758 F.2d 1431, 1433 (11th Cir.1985)).
Further, the record fails to establish the ineffective assistance of counsel. The United
States Supreme Court has established a two-prong test for determining the ineffective assistance
of counsel:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). “Judicial scrutiny of counsel's performance
must be highly deferential.” Id. at 689. “[A] court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance [ . . . ].” Id.
“The defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Even assuming that the trial court failed to review a presentence investigation report prior
to imposing a sentence of community control in 2009, that failure only worked to the benefit of
Petitioner, who presumably would otherwise have been sentenced to prison.

Moreover,

Petitioner has referred to no Ohio case holding that a sentence is void because of a trial court’s
4 

failure to review a presentence investigation report prior to imposing a term of community
control. In any event, Petitioner proffers no evidence even suggesting that he could have
obtained a lesser sentence, or that his sentences would have been vacated, either in 2009 or at his
subsequent revocation proceedings, had counsel challenged the Petitioner’s original sentence on
this basis. In short, Petitioner cannot establish that he was prejudiced by his counsel’s failure to
object to the sentence of community control without consideration of a presentence investigation
report.
For all these reasons, the Magistrate Judge RECOMMENDS that Petitioner’s Reply
Motion, ECF 11, be DENIED and that this action be DISMISSED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. 636(B)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

5 

The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
June 9, 2015

6