White v. Warden, Ross Correctional Institution

Filing 9

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Dustin J. White. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due by 10/16/2015. Signed by Magistrate Judge Norah McCann King on 9/28/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DUSTIN WHITE,
Petitioner,
Case No. 2:14-cv-1905
Judge Sargus
Magistrate Judge King

v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION
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, ECF No. 1, Respondent’s Return
of Writ, ECF No. 7, Petitioner’s Reply, ECF No. 8, and the exhibits of the parties. For the
reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Facts and Procedural History
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of
the case as follows:
On July 25, 2012, a bill of information was filed [in the
Muskingum County Court of Common Pleas] charging appellant,
Dustin White, with two counts of unlawful sexual conduct with a
minor in violation of R.C. 2907.04. At the time of the offenses, the
victim was 15 years old and appellant was 18 years of age or older.
Appellant pled guilty to the counts on July 25, 2012. By sentencing
entry filed August 29, 2012, the trial court sentenced appellant to
three years of community control, ninety days of local
incarceration included therein, and classified him as a Tier II
sexual offender.
Appellant filed an appeal and this matter is now before this court
for consideration. Assignments of error are as follows:

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I “THE BILL OF INFORMATION WAS STRUCTURALLY
INSUFFICIENT UNDER OHIO LAW AND THE STATE AND
FEDERAL CONSTITUTIONS AS IT FAILED TO CONTAIN A
NECESSARY ALLEGATION THAT THE OFFENSE IN
QUESTION WAS A SEXUALLY ORIENTED OFFENSE FOR
PURPOSES OF OHIO REVISED CODE CHAPTER 2950.”
II “THE DEFENDANT–APPELLANT'S CONVICTION AND
SENTENCE
FOR
HAVING
UNLAWFUL
SEXUAL
RELATIONS WITH A MINOR AS A FELONY OF THE
FOURTH DEGREE AND HIS RESULTING CLASSIFICATION
AS A TIER II SEX OFFENDER ARE VOID AS THE
INFORMATION FAILED TO ALLEGE THAT APPELLANT
WAS FOUR OR MORE YEARS OLDER THAN THE MINOR
VICTIM AS REQUIRED BY OHIO LAW AND THE STATE
AND FEDERAL CONSTITUTIONS.”
III “THE DEFENDANT–APPELLANT'S PLEA WAS
UNKNOWING, UNINTELLIGENT AND INVOLUNTARY
CONTRARY TO OHIO LAW AND THE STATE AND
FEDERAL CONSTITUTIONS.”
State v. White, No. CT2012-0046, 2013 WL 2299191, at *1 (Ohio App. 5th Dist. May 22, 2013).
The state court of appeals rejected the issues presented on appeal and affirmed the judgment of
conviction. Id. On October 23, 2013, the Ohio Supreme Court declined to accept jurisdiction of
the appeal. State v. White, 137 Ohio St.3d 1462 (Ohio 2013).1
On October 14, 2014, Petitioner filed this action, alleging that he was convicted and
classified as a Tier II sexual offender, in violation of both state law and the United States
Constitution, because the bill of information failed to allege that he was four or more years older
than the minor victim as required by Ohio law. Respondent contends that Petitioner’s claim does
not warrant federal habeas corpus relief and has been waived by virtue of Petitioner’s guilty plea.

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 On February 25, 2013, Petitioner plead guilty to violating the terms of his community control. ECF 7-1, PageID#
166. The trial court imposed an aggregate term of eleven months incarceration. PageID# 168. On November 5,
2013, the trial court denied Petitioner’s Motion for Judicial Release. PageID# 175.

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The crux of Petitioner’s claim presents a claim of alleged violation of state law, which
offers no basis for federal habeas corpus relief. The Ohio appellate court rejected this claim,
reasoning, “The bill of information set forth all of the elements of the offenses, specifically
referenced R.C. 2907.04, and included sufficient information to determine the ages of the parties
involved.” State v. White, No. CT2012-0046, 2013 WL 2299191, at *2. A federal court may
review a state prisoner's habeas petition only on the ground that the challenged confinement is in
violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A
federal court may not issue a writ of habeas corpus “on the basis of a 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)). Only where the error resulted in the denial of fundamental fairness
will habeas relief be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). Such are
not the circumstances here.
Further, to the extent that Petitioner alleges that the charging document was
constitutionally inadequate, this claim has been waived by virtue of Petitioner’s guilty plea.
[A] guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea.
Tollett v. Henderson, 411 U.S. 258, 267 (1973). Thus, Petitioner waived his right to challenge
any defect in the bill of information. Id. See also Burrows v. Engle, 545 F.2d 552, 553 (6th Cir.
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1976) (guilty plea precluded petitioner from raising a claim based on “allegations of technical
defects in the indictment”). See also Myers v. Warden, No. 1:10-cv-343, 2011 WL 7039933, at
*13-14 (S.D. Ohio Aug. 9, 2011)(allegation that indictment was fatally defective because it
failed to include the mens rea of the offense foreclosed by the petitioner’s guilty plea); Canon v.
Walton, No. 1:08-cv-612, 2010 WL 1253484 (S.D. Ohio March 4, 2010)(claim that petitioner
was not adequately informed of the charges against him waived by entry of guilty plea)(citing
Burrows v. Engle, 545 F.2d at 553).
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS 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,
106 S.Ct. 466 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

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s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
September 28, 2015

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