Zeune v. Warden, Francisco Pineda

Filing 11

REPORT AND RECOMMENDATION re 9 MOTION to Amend the 4 Petition for Writ of Habeas Corpus filed by Rodney D. Zeune and re 8 MOTION to Dismiss filed by Warden, Franklin Medical Center. It is RECOMMENDED that the Motion to Amend the 2254 Petition be GRANTED and that the Petition be deemed amended to delete ground three. It is also RECOMMENDED that the Motion to Dismiss be DENIED and that Respondent be directed to file a Return of Writ, addressing grounds one and two, within tw enty-one days of any order adopting this Report and Recommendation. Objections to R&R due by 3/16/2015. Signed by Magistrate Judge Terence P Kemp on 2/27/15. (sem1)(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
RODNEY D. ZEUNE,
Petitioner,

CASE NO. 2:14-cv-1459

v.
WARDEN, FRANKLIN MEDICAL
CENTER,

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed this habeas corpus action pursuant to 28 U.S.C.
§2254, challenging a conviction entered in the Franklin County Court of Common Pleas.
He asserts several grounds for relief, stated as follows:
Ground one: My sentence and conviction is void and/or voidable because
the State withheld exculpatory evidence and thus violated my due process
rights at trial. Fifth and fourteenth amendments to the U.S. Const. And Ohio
Const.
Ground two: My conviction is void because I was denied the right to
effective assistance of counsel at trial under the Sixth and Fourteenth
Amendments of the United States Constitution.
Ground three: My resentencing hearing was and sentence was unlawful
because I was sentenced outside the statutory guidelines of section 2929.14
of the Ohio Revised Code for a Felony of the Third Degree.
Petition, Doc. 4.
On December 11, 2014, Respondent filed a motion to dismiss. The basis of the
motion was Petitioner’s alleged failure to exhaust ground three of his petition. Respondent

points out that this issue was raised on direct appeal to the Tenth District Court of Appeals,
but that the decision of that court was not further appealed to the Ohio Supreme Court.
Under these circumstances, Petitioner still has available to him the remedy of a delayed
direct appeal to the Ohio Supreme Court. Consequently, based on the “total exhaustion”
rule set forth in Rose v. Lundy, 455 U.S. 509 (1982), Respondent asserts that the entire
petition should be dismissed.
In response, Petitioner filed a motion to amend or correct his petition to delete his
third ground for relief or, alternatively, to stay the case until he exhausts that claim. Doc.
9. In response, Respondent indicates no objection to the amendment of the petition, but
does ask the Court not to stay these proceedings. In his motion to dismiss, Respondent
argued that Petitioner would not be entitled to a stay because Petitioner has made no
showing that his claim is meritorious. Under the leading case on staying cases of this sort,
Rhines v. Weber, 544 U.S. 269, 277 (2005), “stay and abeyance is only appropriate when the
district court determines there was good cause for the petitioner's failure to exhaust his
claims first in state court” and “even if a petitioner had good cause for that failure, the
district court would abuse its discretion if it were to grant him a stay when his unexhausted
claims are plainly meritless.”
The Court agrees that a stay is not appropriate here, but for somewhat different
reasons than those asserted by Respondent. Ground three does not challenge Petitioner’s
conviction, but only the length of his custodial sentence. However, he has now served his
entire sentence. Although claims which, if successful, would result in the elimination of
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a conviction are not moot due to the collateral consequences which flow from a felony
conviction, see Sibron v. New York, 392 U.S. 40 (1968), claims relating to a sentence are moot
once the sentence has been served. See Spencer v. Kemna, 523 U.S. 1, 7 (1998); Demis v.
Sniezek, 558 F.3d 508, 512 (6th Cir. 2009). Since it appears that Petitioner could not obtain any
relief from this Court on ground three, it would serve no purpose to stay the case, thus
postponing a decision on his other two grounds for relief, until he exhausts ground three
through the state court system.
For these reasons, it is recommended that Petitioner’s motion to amend his petition
(Doc. 9) be GRANTED and that the Petition be deemed amended to delete ground three.
Under these circumstances, it is also recommended that the motion to dismiss (Doc. 8) be
DENIED and that Respondent be directed to file a return of writ, addressing grounds one
and two, within twenty-one days of any order adopting this Report and Recommendation.
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
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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).

/s/ Terence P. Kemp
United States Magistrate Judge

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