Brister v. Warden, Grafton Correctional Institution

Filing 8

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Darrell Brister. The Magistrate Judge RECOMMENDS that this action be DISMISSED.Procedure on Objections. Objections to R&R due by 11/30/2015. Signed by Magistrate Judge Norah McCann King on 11/13/2015. (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
DARRELL BRISTER,
Petitioner,
CASE NO. 2:14-CV-2024
Chief Judge Sargus
Magistrate Judge King

v.
BENNIE KELLY, WARDEN,
GRAFTON 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, 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 relevant procedural history of
this case as follows:
Appellant, Darrell Brister, appeals from two trial court entries both
dated May 15, 2013. On April 23, 2013, Appellant filed a “Motion
to Correct Void Sentence” with the trial court. In response to the
motion, the trial court issued two entries. One of the entries grants
in part and denies in part Appellant's “Motion to Correct Void
Sentence.” The second entry is a “Nunc Pro Tunc Judgment Entry
of Sentence.”
Appellant was found guilty of murder with a firearm specification
by a jury in 2004. He appealed his conviction and sentence to this
Court which was affirmed by this Court in 2005.
When Appellant was sentenced in 2004, the trial court imposed a
mandatory term of post release control. In his “Motion to Correct

Void Sentence,” Appellant argued the trial court erred in imposing
a term of post release control because Appellant had been
convicted of murder which is an unclassified felony to which post
release control is inapplicable.
The trial court agreed in part with Appellant and issued a “Nunc
Pro Tunc” sentencing entry deleting the reference to post release
control. The trial court denied Appellant's request for a de novo
sentencing hearing. A timely notice of appeal was filed from the
May 15, 2013 entries.
Counsel for Appellant has filed a motion to withdraw and brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18
L.Ed.2d 493 (1967). In Anders, the United States Supreme Court
held if, after a conscientious examination of the record, a
defendant's counsel concludes the case is wholly frivolous, then he
should so advise the court and request permission to withdraw. Id.
at 744. Counsel must accompany his request with a brief
identifying anything in the record that could arguably support his
client's appeal. Id. Counsel also must: (1) furnish his client with a
copy of the brief and request to withdraw; and, (2) allow his client
sufficient time to raise any matters that the client chooses. Id. Once
the defendant's counsel satisfies these requirements, the appellate
court must fully examine the proceedings below to determine if
any arguably meritorious issues exist. If the appellate court also
determines that the appeal is wholly frivolous, it may grant
counsel's request to withdraw and dismiss the appeal without
violating constitutional requirements, or may proceed to a decision
on the merits if state law so requires. Id.
Counsel for Appellant has filed a brief with one proposed
assignment of error. Appellant has also filed a pro se brief raising
an additional assignment of error. The assignments of error are as
follows:
I.
“THE TRIAL COURT ERRED WHEN IT RESENTENCED
APPELLANT”
II.
“THE TRIAL COURT IMPROPERLY REMOVED POST–
RELEASE CONTROL WITHOUT THE DEFENDANT BEING
PRESENT, IN VIOLATION OF R.C. 2929.121, R.C. 2967.28,
CRIM. R. 36, AND CRIM. R. 43”
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State v. Brister, No. 13CA21, 2013 WL 6918861, at *1 (Ohio App. 5th Dist. Dec. 17, 2013). On
December 17, 2013, the appellate court affirmed the judgment of the trial court. Id. On May 14,
2014, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Brister, 138
OhioSt.3d 1493 (Ohio 2014).
On October 23, 2014, Petitioner filed the Petition, alleging as follows:
The trial court erred to the prejudice of Petitioner, when it
improperly resentenced the Petitioner by removing post-release
control without his presence in court and when the Fifth
Appellate District affirmed that failure, in violation of the Sixth
Amendment, Crim. R. 43 Crim. R. 36, O.R.C. 2929.191, and
2967.28. Petitioner must be remanded so that he may appear
before the Court as is his statutory and constitutional right.
Petitioner argues that he was denied his right to be present at a critical stage of the proceedings
when the trial court issued its nunc pro tunc entry removing the term of post release control.
Respondent contends that this claim offers no basis for federal habeas corpus relief.
Standard of Review
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and
Effective Death Penalty Act (“AEDPA”) sets forth standards governing this Court's review of
state-court determinations. The United State Supreme Court recently described AEDPA as “a
formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in
state court” and emphasized that courts must not “lightly conclude that a State's criminal justice
system has experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.”
Burt v. Titlow, ––– U.S. ––––, ––––, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562
U.S.786, ––––, 131 S.Ct. 770, 786 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010)
(“AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and

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demands that state-court decisions be given the benefit of the doubt.”) (internal quotation marks,
citations, and footnote omitted).
The factual findings of the state appellate court are presumed to be correct:
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
28 U.S.C. § 2254(e)(1). Habeas corpus should be denied unless the state court decision was
contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court, or based on an unreasonable determination of the facts in light
of the evidence presented to the state courts. 28 U.S.C. § 2254(d)(1); Coley v. Bagley, 706 F.3d
741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)). See also 28
U.S.C. § 2254(d)(2) (a petitioner must show that the state court relied on an “unreasonable
determination of the facts in light of the evidence presented in the State court proceeding”). The
United States Court of Appeals for the Sixth Circuit explained these standards as follows:
A state court's decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court's decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court's cases but unreasonably applies it to the facts of the
particular . . . case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389.

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Coley, 706 F.3d at 748-49. The burden of satisfying the standards set forth in § 2254 rests with
the petitioner. Cullen v. Pinholster, –––U.S. ––––, ––––, 131 S.Ct. 1388, 1398 (2011).
“In order for a federal court to find a state court's application of [Supreme Court
precedent] unreasonable, . . . [t]he state court's application must have been objectively
unreasonable,” not merely “incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520–21,
(2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and
Lockyer v. Andrade, 538 U.S. 63, 76 (2003)). See also Harrington v. Richter, 131 S.Ct. at 786
(“A state court's determination that a claim lacks merit precludes federal habeas relief so long as
“‘fairminded jurists could disagree’ on the correctness of the state court's decision.” (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of “unreasonable
application” under § 2254(d)(1), courts must focus on the reasonableness of the result, not on the
reasonableness of the state court's analysis. “‘[O]ur focus on the ‘unreasonable application’ test
under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and
not whether the state court considered and discussed every angle of the evidence.’ ” Holder v.
Palmer, 588 F.3d 328, 341 (6th Cir. 2009) (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.
2002) (en banc)). See also Nicely v. Mills, 521 F. App'x 398, 403 (6th Cir. 2013) (considering
evidence in the state court record that was “not expressly considered by the state court in its
opinion” to evaluate the reasonableness of state court's decision). Moreover, in evaluating the
reasonableness of a state court's ultimate legal conclusion under § 2254(d)(1), a federal habeas
court must review the state court's decision based solely on the record that was before the state
court at the time that it rendered its decision. Pinholster, 131 S.Ct. at 1398. Put simply, “review
under § 2254(d)(1) focuses on what a state court knew and did.” Id. at 1399.

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Discussion
The state appellate court rejected Petitioner’s claim as follows:
Both counsel and Appellant argue Appellant's sentence should
have been vacated in its entirety. Appellant further argues he
should have been physically present to receive a new sentence
rather than the trial court issuing a nunc pro tunc entry. Finally,
counsel for Appellant argues Appellant should have received a
new trial after the sentence was vacated.
The Ohio Supreme Court has explained when a problem exists in a
sentencing entry related to post release control, “It is only the post
release-control aspect of the sentence that is void and that must be
rectified.” State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238,
942 N.E.2d 332.
Appellant's sole basis for suggesting his sentence was void was the
fact that post release control was improperly imposed for
Appellant's murder conviction and sentence. The only issue
presented to the trial court was the contention that post release
control is inapplicable to a murder conviction because it is an
unclassified felony. “[A]n individual sentenced for aggravated
murder . . . is not subject to post release control, because that crime
is an unclassified felony to which the post release-control statute
does not apply. R.C. 2967.28.” State v. Clark, 119 Ohio St.3d 239,
2008–Ohio–3748, 893 N.E.2d 462.
The trial court did err in 2004 when it included post release control
as a term of Appellant's sentence. Because the only alleged error in
the sentence is post release control, we find only the post release
control portion of Appellant's 2004 sentence was subject to
change.
The question before us is whether the trial court was required to
conduct a new sentencing hearing to remove the improperly
imposed term of post release control. Other courts have held a new
hearing is unnecessary.
In a case similar to the case at bar, the Tenth District explained, “It
is not disputed that appellant was convicted of murder, which is an
unclassified felony to which the post-release control statute does
not apply. Clark, supra, 119 Ohio St.3d 239, 893 N.E.2d 462,
2008–Ohio–3748, ¶ 36; State v. Gripper, 10th Dist. No. 10AP–
1186, 2011–Ohio–3656, ¶ 10. Accordingly, the inclusion of postrelease control language in appellant's sentencing entry was in
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error. It is appellant's position that this renders his entire sentence
void and that a de novo sentencing hearing is required to correct
this error. We disagree. * * *
In the case sub judice, the trial court included post-release control
language in appellant's sentence even though appellant was
convicted of murder, an unclassified felony. Pursuant to Fischer,
and also Evans and Lawrence, it is clear that this does not render
appellant's entire sentence void, nor does it require a de novo
sentencing hearing. Moreover, the record reflects that the
superfluous post-release control language has been removed from
the sentencing entry pursuant to the judgment entry filed on March
17, 2011.” State v. Silguero, 10th Dist. Franklin No. 11AP–274,
2011–Ohio–6293.
The legislature has provided in R.C. 2929.191 an avenue to correct
post release control in certain situations such as where the
sentencing entry conflicts with the oral pronouncement or where
the term of post release control was omitted. The statute, however,
does not address a scenario where the term of post release control
was improperly included.
In approving the use of a nunc pro tunc entry to correct the
erroneous inclusion of post release control, the Eighth District
held, “[Th]e instant matter presents none of the three scenarios
outlined in R.C. 2929.191(A) or (B), set forth above. The trial
court did not fail to notify defendant that he would be subject to
post-release control, did not fail to notify him that the parole board
could impose a prison term for a violation of post release control,
and did not fail to have statutorily mandated notices incorporated
into his sentencing entries. R.C. 2929.191(A) and (B). We
therefore conclude that R.C. 2929.191 and Singleton are
inapplicable herein.
Further, with regard to whether the trial court employed a correct
procedure in entering a nunc pro tunc deletion of the post release
control provision, we note that a trial court may use a nunc pro
tunc entry to correct mistakes in judgments, orders, and other parts
of the record so the record speaks the truth. State v. Greulich, 61
Ohio App.3d 22, 24, 572 N.E.2d 132 (9th Dist.1988).” State v.
Rolling, 8th Dist. Cuyahoga No. 95473, 2011–Ohio–121.
Based upon the foregoing, we find the trial court did not err in
issuing a nunc pro tunc entry removing the improperly imposed
term of post release control. Finally, there is no authority for

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counsel's bare assertion that a new trial is required when a term of
post release control has been improperly imposed.
State v. Brister, 2013 WL 6918861, at *2-3.
The crux of Petitioner’s claim – that Ohio law mandated the trial court to conduct a new
sentencing hearing before issuing a nunc pro tunc order correcting the improper imposition of
post release control – presents an issue regarding the interpretation of state law, which fails to
present a basis for federal habeas corpus relief.
A federal court may review a state prisoner's habeas corpus petition only on the grounds
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 (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. Machin v. Wainwright,
758 F.2d 1431, 1433 (11th Cir. 1985).
To the extent that Petitioner presented to the state courts his federal claim regarding the
denial of his right to be present at the time of the trial court’s issuance of the nunc pro tunc entry,
this claim likewise fails to warrant relief.
The Constitution guarantees a criminal defendant the right to be
present at trial. U.S. v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482,
84 L.Ed.2d 486 (1985).
But the right is not absolute. Rather, “a defendant is guaranteed the
right to be present at any stage of the criminal proceeding that is
critical to the outcome if his presence would contribute to the
fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745,
107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). “[T]his privilege of
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presence is not guaranteed ‘when presence would be useless, or the
benefit but a shadow.’ ” Id. (quoting Snyder v. Massachusetts, 291
U.S. 97, 105–106, 54 S.Ct. 330, 78 L.Ed. 674 (1934)).
Bryan v. Bobby, No. 1:11-cv-60, 2015 WL 4394371, at *66 (N.D. Ohio July 16, 2015).
Petitioner had no constitutional right to be present because the issuance of the nunc pro tunc
judgment entry does not constitute a critical stage of the criminal proceedings. See Johnson v.
Warden, Lebanon Correctional Inst., No. 1:12-cv-560, 2014 WL 935222, at *9 (S.D. Ohio
March 10, 2014)(citing Jimenez v. Janda, No. CV 12–06701–JST (MLG), 2013 WL 1658543, at
*5 (S.D.Cal. Jan. 23, 2013)(Report and Recommendation), adopted, 2013 WL 1387288
(S.D.Cal. Apr. 4, 2013); Martin v. Hall, No. 1:09–cv–378, 2010 WL 8435571, at *13–I4 (Mar.
31, 2010 N.D. Ohio) (Report and Recommendation), adopted, 2012 WL 601912 (N.D.Ohio Feb.
23, 2012); Kleparek v. Fla., No. 08–60876–Civ., 2009 WL 6621465, at *12 (Aug. 17, 2009 S.D.
Fla).
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).

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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).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
November 13, 2015

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