Norris v. Bunting
REPORT AND RECOMMENDATION - The Magistrate Judge RECOMMENDS that 1 Petition for Writ of Habeas Corpus be DENIED and that this action be DISMISSED. Objections to R&R due by 3/13/2017. Signed by Magistrate Judge Terence P. Kemp on 2/27/2017. (agm)(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
DERRICK CAMERON NORRIS,
Case No. 2:15-cv-764
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed this action pursuant to 28 U.S.C. § 2254 seeking a
writ of habeas corpus. This matter is before the Court on the petition, respondent's
return of writ, petitioner's traverse, the supplemental return of writ, Petitioner’s
memorandum contra, and the exhibits of the parties. For the reasons that follow, the
Magistrate Judge RECOMMENDS that the petition be DENIED and that this action be
I. Procedural History
This action involves petitioner's September 17, 2004, guilty plea in the
Muskingum County Court of Common Pleas to charges of murder with a firearm
specification, aggravated robbery, and tampering with evidence. Much of the early
procedural history of this case is taken from a prior Report and Recommendation of
this Court issued in connection with Petitioner’s first federal habeas corpus petition. See
Norris v. Moore, 2008 WL 3414133 at *1 (S.D. Ohio Aug. 8, 2008), adopted and affirmed 2008
WL 4346501 (S.D. Ohio Sept. 18, 2008).
Pursuant to the terms of a negotiated guilty plea in which Petitioner pleaded
guilty to the three offenses just mentioned (he had been indicted for other offenses as
well), the trial court sentenced petitioner to an aggregate term of thirty-three years to
life incarceration. Petitioner did not timely appeal. On April 5, 2005, he filed a motion
for delayed appeal in the state appellate court. On April 25, 2005, the appellate court
dismissed petitioner's motion due to petitioner's failure to attach a certificate of service.
He did not pursue an appeal of that decision to the Ohio Supreme Court.
On January 21, 2005, Petitioner filed a post-conviction petition in the state trial
court in which he alleged that his sentence violated Blakely v. Washington, 542 U.S. 296
(2004). On July 19, 2005, after a hearing, the trial court denied petitioner's postconviction petition. Petitioner filed a timely appeal in which he raised the following
assignments of error:
The trial court deprived the appellant of his absolute right to
procedural due process of law where the court held the evidentiary
hearing without first appointing appellant counsel prior to such
The trial court erred to the prejudice of appellant and abused its
discretion in holding that appellant was not entitled to relief
because the sentence was agreed to and therefore was
unreviewable in violation of his absolute right to due process of
The trial court deprived the appellant of his substantive right to
due process of law where the court refused to modify his definite
sentences to minimum concurrent terms of imprisonment.
Defendant-appellant's non-minimum consecutive definite
sentences are void ab initio where the appellant was denied his
fundamental due process right to notice and an opportunity to be
See State v. Norris, 2006 WL 1851698 (Muskingum Co. App. June 29, 2006). On June 29,
2006, the appellate court affirmed the judgment of the trial court. Id. Petitioner did not
appeal to the Ohio Supreme Court.
On August 13, 2007, petitioner filed, in this Court, a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In that case (Case No. 2:07-cv-795) he
alleged that he was in the custody of the respondent in violation of the Constitution of
the United States based upon the following grounds:
Definite sentences void for lack of subject matter jurisdiction per
Habeas corpus relief must be made permanent because no State
corrective process exists per 28 U.S.C. 2254(B)(I)(sic).
That case was dismissed because the petition had not been timely filed. See Norris v.
Moore, 2008 WL 4346501 (S.D. Ohio Sept. 18, 2008).
On September 10, 2008, Petitioner moved in the Fifth District Court of Appeals
for a delayed appeal, alleging that he was not notified of his right to appeal by the trial
court. He presented the following assignments of error:
Defendant-Appellant’s guilty plea is void where he was induced to
plead guilty to an indictment that fails to charge the offense.
The trial court lacked subject-matter jurisdiction to accept the plea
or to render judgment. State v. Cimpritz, (1953), 158 Ohio St, 490;
State v. Colon, 845 N.E. 2d 917 (2008), applied.
Defendant-Appellant was deprived of the effective assistance of
counsel in this case, rendering his plea void. Strickland v.
Washington, 466 U.S. 668 (1984), applied.
Defendant-Appellant’s conviction and sentence for murder under
O.R.C. 2903.02(B) was secured in violation of his equal protection
of law rights of the Ohio & U.S. Constitutions.
(Doc. 14, Ex. 1). On October 23, 2008, the appellate court denied the motion because
Petitioner had previously perfected an appeal. Id., Ex. 2.
Petitioner next appealed to the Ohio Supreme Court and raised the following
propositions of law:
A denial of the absolute right to procedural due process of law is
manifest where a court of appeals dismisses a motion for delayed
appeal where the appellant alleges ineffective assistance of counsel
and lack of notice of the right to appeal as cause for the delay in
filing for appeal.
The trial court lacked subject-matter jurisdiction to accept the guilty
pleas as to the murder and aggravated robbery convictions because
the indictment failed to charge an offense. State v. Cimpritz, ,
158 Ohio St. 490; State v. Colon, 882 N.E. 917 , applied.
Defendant-appellant's conviction and sentence for felony-murder
and aggravated robbery must be reduced to the least degree of the
offenses in accord with the due process clause of the Ohio and U.S.
Defendant-appellant was deprived of the effective assistance of
counsel in this case where trial counsel induced him to plead guilty
to felony murder and aggravated robbery counts in the indictment
where he could not have been convicted by bench or jury.
Id., Ex. 3. On March 25, 2009, the Ohio Supreme Court declined to consider the appeal.
Id., Ex. 4.
On March 5, 2010, Petitioner filed a motion with the trial court for a re-sentencing
hearing, based on his assertion that he had not been notified of post-release control at
his original sentencing hearing. Id., Ex. 5. The trial court denied the motion. On May 3,
2010, Petitioner appealed the denial of the motion for re-sentencing, raising one
assignment of error:
The trial court erred by denying Mr. Norris’ “motion for
sentencing,” which requested that the trial court vacate his original
sentence and accord him a de novo sentencing hearing.
(Doc. 14, Ex. 6-7). This appeal was successful. The state court of appeals held that
Petitioner was entitled to a de novo sentencing hearing because, at the original
sentencing hearing held in 2004, Petitioner was not notified of his postrelease control
obligation. On December 8, 2010, the court vacated the sentence and remanded the
matter to the trial court for a re-sentencing hearing. State v. Norris, 2010 WL 5110097, *3
(Muskingum Co. App. Dec. 8, 2010).
On December 20, 2010, Petitioner filed a “motion for determination of status of
proceedings,” asking for clarification of the Court of Appeals’ ruling, seeking a prompt
re-sentencing, and asking for release from custody prior to the re-sentencing. (Doc. 14,
Ex. 10). Petitioner’s re-sentencing hearing was held on December 21, 2010. Just prior to
the re-sentencing, Petitioner filed a motion to withdraw his guilty plea. The trial court
did not address that motion at the hearing, but issued a briefing schedule on the motion
to withdraw the guilty plea. Id., Ex. 20. As to the re-sentencing, the trial court did not
hold a de novo hearing, but instead held a hearing in which it imposed the same
sentence of thirty-three years to life, and notified Petitioner of the five year mandatory
release which would follow. (Doc. 14, Ex. 11).
On January 20, 2011, Petitioner appealed his re-sentencing. Id., Ex. 12. His
counsel filed a brief asserting that the appeal was frivolous and moved to withdraw as
counsel, following the procedure set out in Anders v. California, 386 U.S. 738 (1967). Id.,
Ex. 13-14. Petitioner proposed the following assignment of error:
The trial court erred in re-imposing a period of post release control
and failed to conduct a proper re-sentencing hearing.
Id., Ex. 13. Petitioner filed a pro se memorandum but did not raise any additional
assignments of error. Id., Ex. 15. On February 3, 2012, the appellate court affirmed the
trial court’s re-sentencing. State v. Norris, 2012 WL 424957 (Muskingum Co. App. Feb. 3,
2012). The court of appeals held that a limited re-sentencing to provide post-release
control notification was sufficient and that a de novo sentencing hearing was not
required. See id., relying on State v. Fischer, 128 Ohio St.3d 92 (2010).
On March 14, 2012, Petitioner appealed that decision to the Ohio Supreme Court.
Doc. 14, Ex. 17. In his Memorandum in Support of Jurisdiction, he raised the following
propositions of law:
Trial court committed reversible error when it failed to accord
defendant a full de novo sentencing hearing as made obligatory by
Appellate Court violated due process (U.S.C.A. Const. Amend. 14)
when it failed to appoint substitute counsel pursuant to Anders v.
California (1967), 386 U.S. 738, and then compounded that plain
error by erroneously holding that "appellant did not file a pro se
brief alleging any additional assignments of error." see: State v.
Murnahan, 63 Ohio St. 3d 60; and Strickland v. Washington, 466 U.S.
Id., Ex. 18. On June 6, 2012, the Ohio Supreme Court declined jurisdiction. Id., Ex. 19.
Returning now to Petitioner’s motion to withdraw his guilty plea, which, as
noted above, was filed one day before he was re-sentenced, Petitioner argued that “had
he known that post release control was mandatory for a period of five years, he would
not have pleaded guilty.” Id., Ex. 20. The trial court denied that motion on October 31,
2012, and Petitioner appealed that ruling as well. Id., Ex. 24-25. He raised a single
assignment of error:
When the trial court completely fails to advise a criminal defendant
at the plea colloquy that a mandatory term of post-release control
will be part of the sentencing, the court fails to comply with Crim.
R. 11(C)(2)(a), and the resulting guilty plea must be vacated. See
State v. Sarkozy, 117 Ohio St.3d 86; State v. Boswell, 121 Ohio St. 3d
575; and State v. Montez-Jones, 2011-Ohio-1202, (Ohio App. 5 Dist.).
The court of appeals affirmed the judgment of the trial court, holding that the claim
was barred by res judicata because it could have been raised on direct appeal or during
one of his other appeals. State v. Norris, 2013 WL 1097821 (Muskingum Co. App. March
On April 29, 2013, Petitioner appealed to the Ohio Supreme Court, presenting the
following propositions of law:
Whether the court of appeal’s ‘modification’ of [“the second
sentence in the Bezak syllabus as ill-considered”] id: at: OPINION at
¶19, offends due process, implicates fundamental fairness, and is
facially ‘contrary to law.’ see: U.S.C.A. Const. Amend 14. *compare:
State v. Montez-Jones, 2011 Ohio 1202 (Ohio App. 5 Dist.); and State
v. Norris, 5th Dist. No. CT 10-0020, 2010 Ohio 6076; and State v.
Singleton, 124 Ohio St.3d 173, 2009 Ohio 6434, 920 N.E. 2d 958.
When a trial court completely fails to accord any mandatory post
release control notification, Crim. R. 11(C)(2)(1), at the ‘plea
colloquy,’ that plea was not knowingly, intelligently, and
voluntarily made [State v. Sarkozy, 117 Ohio St.3d 86] and must be
vacated as *unconstitutional as a matter of law and fact. See: State
v. Montez-Jones, 2011 Ohi o1202 (Ohio App.5 Dist.).
(Doc. 14, Ex. 29-30). The Ohio Supreme Court declined jurisdiction on July 24, 2013. Id.,
On September 9, 2013, Petitioner filed a “motion for allied offense
determination” with the state trial court, asking the court to determine whether his
separate convictions should have been deemed as allied, rather than separate, offenses.
Id., Ex. 33. The court denied Petitioner’s motion. Id., Ex. 36. Petitioner appealed that
ruling, asserting the following assignments of error:
Whether the trial court’s recharacterization of appellant’s motion
for ‘allied offense determination’ O.R.C. 2941.25; as a postconviction relief petition (for the purpose of denying relief) offends
due process and fundamental fairness where the record clearly
reveals a prima facie case for the requested relief.
Whether the duty to ‘inquire’ and ‘determine’ whether multiple
offenses constitute[s] allied offenses of similar import is
jurisdictional and therefore places a mandatory duty on the trial
court, or whether, O.R.C. 2941.25 is ‘discretionary,’ and hence, may
be waived by the court or the defendant and subject to the
application of the doctrine of res judicata.
Id., Ex. 38. The appellate court affirmed the ruling of the trial court, concluding that the
motion was barred by res judicata. The court pointed out that Petitioner could have raised
the merger claim in “a timely direct appeal from his sentencing...judgment.” State v. Norris,
2014 WL 2159369 (Muskingum Co. App. May 19, 2014).
Petitioner appealed this decision to the Ohio Supreme Court, raising the following
propositions of law:
Regardless of 'recharacterization' or 'reclassification' of a
proceeding for relief from a facially void judgment, due process
and fundamental fairness requires a trial court to ignore the
procedural irregularities of the proceeding; to vacate the void
judgment, and to resentencing the offender in accordance with
established law. see: O.R.C. § 2941.25.
Where, as here, the record presents a prima facie case for 'allied
offense inquiry and determination, it is constitutional error of the
first magnitude and violative of the Federal Constitution's Fifth
Amendment Double Jeopardy Protections (which cannot be waived) for a trial court
completely disregard 'statutory requirements' thus failing to 'inquire' and 'determine'
whether those offenses were/are actually allied offenses of similar import
(Doc. 14, Exhibit 41). On September 24, 2014, the Ohio Supreme Court declined
jurisdiction. (Doc. 14, Ex. 43).
Petitioner then filed this, his second, petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2254 in the United States District Court for the Northern District
of Ohio, signing it on February 9, 2015. (Doc. 1). The case was transferred to this
District. Respondent filed a Return of Writ on July 22, 2015, (Doc. 14), arguing, in part,
that grounds two and three of the petition should be transferred to the Court of Appeals
pursuant to 28 U.S.C. §2244(b) as successive. On July 31, 2015, Petitioner filed a motion
for summary judgment, which was fully briefed but then determined by the Court to be
moot because it raised the same issues covered in the habeas petition. (Doc. 17). On
November 17, 2016, the Court issued an Order instructing Respondent to indicate
whether he would withdraw his request to have grounds two and three of the petition
transferred to the Court of Appeals as successive, noting that in In re Stansell, 828 F.3d
412, 419 (6th Cir. 2016), the Court of Appeals had held that a re-sentencing of the kind
which occurred here resulted in a new judgment and that a habeas corpus petition filed
challenging that judgment could not be deemed to be successive. (Doc. 22).
Respondent subsequently withdrew its request for a transfer and filed a supplemental
return of writ addressing grounds two and three of the petition. (Doc. 23). Petitioner
filed a supplemental traverse (Doc. 24) and the case is now ripe for consideration.
II. The Petition
The petition raises the following grounds for relief:
Ground one: Due process is implicated where a trial court, being under a
specific appellate court mandate for [‘de novo sentencing’] accords only a
partial de novo procedure renders the procedure a mere nullity and void.
Ground two: Due process is offended, and a criminal defendant’s guilty
plea must be deemed unconstitutional where such plea was not
knowingly, intelligently and voluntarily made. See: Ohio Crim.R.
11(C)(2)(a); and O.R.C. §2929.19(B)(3)(e) [‘the oral pronouncement’]
Ground three: Conviction obtained in violation of due process clause and
Fifth Amendment prohibition against double jeopardy. See: North
Carolina v. Pearce, 395 U.S. 711, 717; Ohio v. Johnson, 467 U.S. 493, 498; and
Brown v. Ohio, 432 U.S. 161, 165.
Respondent argues that ground one is procedurally defaulted and grounds two and
three are both time-barred and procedurally defaulted. The Court will first discuss the
statute of limitations.
III. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which
became effective on April 24, 1996, provides for a one-year statute of limitations on the
filing of habeas corpus actions. 28 U.S.C. § 2244(d)(1) provides:
(d) (1) A one-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a state court. The limitation period shall run from the
the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by
such State action;
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.
28 U.S.C. § 2244(d)(1),(2). The time bar may be overcome if a petitioner is able to make
a credible showing of actual innocence. See Tyler v. Ray, 610 Fed.Appx. 445 (6th Cir.
2015); Schulup v. Delo, 513 U.S. 298, 317 (1995).
Even where a §2254 petition is statutorily time-barred, equitable tolling may save
an otherwise untimely petition. The one-year statute of limitations is not jurisdictional
and is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010); Perkins v.
McQuiggin, 670 F.3d 665, 670 (6th Cir. 2012). Whether the statute of limitations should
be equitably tolled depends upon whether a petitioner shows: (1) that he has been
diligent in pursuing his rights; and (2) that an extraordinary circumstance prevented
him from filing within the prescribed time. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
The petitioner bears the burden of showing that he is entitled to equitable tolling. Id.
Respondent argues that grounds two and three (but not ground one) are timebarred. Respondent points out that neither ground relates to anything which occurred
at the re-sentencing, but rather to issues which were apparent at the time the original
sentence was imposed in 2004. Since Petitioner clearly did not file this petition within
one year of the date on which that judgment became final - indeed, that was the basis
for this Court’s dismissal of the prior petition - Respondent claims that the Court must
reach the same result here.
Because, in the Court’s view, Respondent has failed to appreciate the current
state of the law in this Circuit concerning when the statute of limitations begins to run
after a new judgment has been entered and has failed to cite controlling authority, the
Court will set out its analysis in some detail.
Here is the key part of Respondent’s argument:
The state trial court’s imposition of post-release control does not
affect the statute of limitations regarding claim (sic) arising out of Norris’
convictions or original sentence. See Jackson v. Lazaroff, No. 15-4335, slip.
op at 3, n. 1 (6th Cir. Nov. 21, 2016)(attached)(citing In re Stansell, 828 F.3d
412, 418 (6th Cir. 2016) which noted continuing validity of Bachman v.
Bagley, 487 F.3d 979 (6th Cir. 2007) in context of statute of limitations
Since the petition was due in April 2007 and the current habeas
corpus petition was filed in 2015, the petition is time-barred.
Supplemental Return, Doc. 23, at 6.
Jackson v. Lazaroff does indeed say that the validity of Bachman - which applied a
concept of “divisible judgments” for limitations purposes, holding that when a new
judgment is entered, it does not start the limitations clock running again for any part of
the prior judgment which was not altered - was not called into question in Stansell. That
statement (which, by the way, is found in a footnote in an opinion which is not only
unpublished but which cannot be found on Westlaw) is dictum, and while it is literally
correct in its reading of Stansell, it simply does not address how the case law relating to
the limitations period developed after Stansell was decided.
Stansell was a successive petition case and not a limitations case. In reaching its
decision that a petition filed after a re-sentencing cannot be deemed successive, Stansell
held that “the federal habeas statute speaks of one ‘judgment,’ not many, per term of
custody.” Stansell, 828 F.3d at 418. Stansell recognized that Bachman had adopted a
different approach (splitting a single judgment into “multiple mini-judgments”for
limitations purposes, see id.) but it rejected that approach in the context of successive
petitions. However, because the statute of limitations question was not before the Court
of Appeals in Stansell, it pointed out that its decision, and the decisions on which it
relied, “do not answer the distinct statute-of-limitations question raised in Bachman.”
Id. In other words, that remained an open question.
The Court of Appeals was quickly confronted with that open question, however,
and answered it in Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016). The facts of that case which cannot be distinguished from the facts of this one - are these. Crangle, the
petitioner, was originally sentenced in 2007. Although his plea agreement indicated
that he would be subject to post-release control after serving his sentence of
imprisonment, he was told differently at his sentencing hearing, and the judgment entry
did not impose post-release control. That judgment became final in 2008.
In 2010, the Ohio Supreme Court held, in State ex rel. Carnail v. McCormick, 126
Ohio St.3d 124 (2010), that imposition of post-release control in certain felony cases was
mandatory. Crangle, seizing on this decision, moved to withdraw his guilty plea,
claiming that his original sentence was unlawful and his plea was therefore not
knowing and voluntary. The state court denied that motion but, recognizing that it had
erred, entered a new judgment which included the mandatory term of post-release
control. Crangle pursued multiple appeals of that decision but was unsuccessful. He
then filed a petition for a writ of habeas corpus. Because it was not filed within one
year of the date that the original judgment became final, the respondent argued that it
was time-barred, and the District Court (based on the state of the law at that time)
agreed. Crangle appealed.
The Court of Appeals reversed. Citing to Magwood v. Patterson, 561 U.S. 320
(2010) and King v. Morgan, 807 F.3d 154 (6th Cir. 2015) - the same decisions cited by the
Stansell court in support of its decision - the Court of Appeals held that “[t]he
interpretation of ‘judgment’ in Magwood and King applies with equal force to §
2244(d)(1)(A) and § 2254(a)[the limitations provisions in question].” Crangle, 838 F.3d at
678. Applying that reasoning led the Crangle court to conclude that “a new sentence not
only permits a challenge to either the new sentence or the undisturbed conviction, but
also restarts AEDPA's one-year window to challenge that judgment.” Id. In making
that determination, the Court of Appeals specifically observed that “Magwood and King
likewise abrogated Bachman v. Bagley, 487 F.3d 979, 983 (6th Cir. 2007), where we held
that a sexual predator designation that was imposed after the original judgment
restarted the one-year clock only for a challenge to the sexual predator designation.” Id.
And if one views Bachman on Westlaw, it has been “red-flagged” with this notation:
“Abrogation Recognized by Crangle v. Kelly, 6th Cir.(Ohio), September 22, 2016.”
As noted, the Court finds it impossible to distinguish Crangle. Here, the plea
agreement was silent as to post-release control - a fact which is actually more favorable
to Petitioner, because Crangle’ plea agreement advised him about post-release control and post-release control was not imposed in Petitioner’s 2004 sentencing entry. See
Case No. 2:07-cv-795, Doc. 6, Ex. 5. That entry recited only that Petitioner might, at
some point, be released on parole, and that any parole “would be subject to the rules
and regulations adopted by the parole authority.” Id. The state court of appeals
remanded Petitioner’ case for re-sentencing based on the same Ohio Supreme Court
case, State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124 (2010), that precipitated
Crangle’s re-sentencing. See State v. Norris, 2010 WL 5110097 (Muskingum Co. App.
Dec. 8, 2010). The new judgment entry filed in Petitioner’s case (Doc. 14, Ex. 11)
imposed post-release control. Crangle also held, rejecting a contrary argument from the
State, that a new sentence imposing post-release control is more restrictive than a
sentence which contemplates parole, stating that “[p]ost-release control materially
increases the potential restrictions on Crangle's liberty ” beyond any parole restrictions
he might have been facing as a result of his original sentence. Crangle, 838 F.3d at 679.
The same is true here. That fact is significant because Crangle acknowledged and did
not overrule a line of cases holding that when a re-sentencing benefits a defendant, the
limitations period is not restarted by the new judgment entry. Given that the same facts
underlie both this case and Crangle, this Court is duty-bound to reach the same result.
Regardless of the implication of the footnote which Respondent cited from
Jackson v. Lazaroff - a footnote which post-dates Crangle and which did not address
whether some case other than In re Stansell had called Bachman v. Bagley into question Respondent’s failure to discuss, or even cite, to Crangle is troubling. Crangle is a case
from a controlling jurisdiction, is not distinguishable on its facts, and is directly contrary
to Respondent’s position. It should have been cited in the supplemental return.
For all of the reasons just explained, the Court holds that the December 21, 2010
entry is the applicable judgment for limitations purposes. It thus rejects Respondent’s
argument that the statute of limitations for any of the grounds presented in the petition
expired in 2007, and will not recommend dismissal of any portion of the petition as
IV. Procedural Default
As an alternative ground for dismissal, Respondent argues that grounds two and
three are both subject to dismissal on grounds of procedural default. The Court will
now examine the merits of that argument.
In recognition of the equal obligation of the state courts to protect the
constitutional rights of criminal defendants, and in order to prevent needless friction
between the state and federal courts, a state criminal defendant with federal
constitutional claims is required to present those claims to the state courts for
consideration. 28 U.S.C. § 2254(b), (c). If the defendant fails to do so, but still has an
available way to present those claims, the petition is subject to dismissal for failure to
exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103 (1982) (citing Picard v.
Connor, 404 U.S. 270, 275–78 (1971)). Where a petitioner has failed to exhaust the claims
raised in the petition but would find those claims barred if later presented to the state
courts, “there is a procedural default for purposes of federal habeas....” Coleman v.
Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular
claim to the highest court of the State so that the State has a fair chance to correct any
errors made in the course of the trial or the appeal before a federal court intervenes in
the state criminal process. This “requires the petitioner to present ‘the same claim under
the same theory’ to the state courts before raising it on federal habeas review.” Hicks v.
Straub, 377 F.3d 538, 552–53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th
Cir. 1987)). One of the aspects of “fairly presenting” a claim to the state courts is that a
habeas petitioner must do so in a way that gives the state courts a fair opportunity to
rule on the federal law claims being asserted. That means that if the claims are not
presented to the state courts in the way in which state law requires, and the state courts
therefore do not decide the claims on their merits, neither may a federal court do so. In
the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977),
“contentions of federal law which were not resolved on the merits in the state
proceeding due to respondent's failure to raise them there as required by state
procedure” also cannot be resolved on their merits in a federal habeas case-that is, they
are “procedurally defaulted.”
In the Sixth Circuit, a four-part analysis must be undertaken when the state
argues that a federal habeas claim is waived by the petitioner's failure to observe a state
procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must
determine that there is a state procedural rule that is applicable to the petitioner's claim
and that the petitioner failed to comply with the rule.” Second, the Court must
determine whether the state courts actually enforced the state procedural sanction.
Third, it must be decided whether the state procedural forfeiture is an adequate and
independent state ground upon which the state can rely to foreclose review of a federal
constitutional claim. Finally, if the Court has determined that a state procedural rule
was not complied with, and that the rule was an adequate and independent state
ground, then the petitioner must demonstrate that there was cause for him not to follow
the procedural rule, and that he was actually prejudiced by the alleged constitutional
error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve
issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985). The
Ohio rule of res judicata satisfies the first three factors in Maupin. See Jacobs v. Mohr, 265
F.3d 407, 417 (6th Cir. 2001). The fourth factor is that the petitioner must demonstrate
that there was cause for him not to follow the procedural rule, and that he was actually
prejudiced by the alleged constitutional error. “Cause” for a procedural default is
ordinarily shown by “some objective factor external to the defense” which impeded the
petitioner's efforts to comply with the state's procedural rule. Coleman v. Thompson, 501
U.S. 722, 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). The Court will
discuss grounds two and three separately to determine if either was, as Respondent
contends, procedurally defaulted.
A. Ground Two
Petitioner’s second ground for relief is that his guilty plea was involuntary
because the trial court failed to notify him when he pleaded guilty that, if he was ever
released from prison, he would have to serve a term of post-release control. The first
time he raised that issue in state court was in the motion to withdraw guilty plea which
he filed on December 20, 2010. Doc. 14, Ex. 20. Petitioner argued in that motion that he
did not know, and was not informed, at the time he pleaded guilty that he would be
subject to a mandatory five-year term of post-release control upon his release from
prison. Had he known that fact, he argued, he would not have pleaded guilty but
would have gone to trial.
The State’s opposing memorandum (Ex. 21) , filed on March 28, 2012, took the
position, first, that the motion had to be judged under the standards applicable to postsentence motions (Petitioner had argued that because his original sentence was
unlawful, he should get the benefit of the more liberal standard which is applied to presentence motions) and, second, that Petitioner could not satisfy the “manifest injustice”
standard which the court had to apply. The State noted that the motion was not
accompanied by either an affidavit or any other credible evidence supporting
Petitioner’s assertion that, had he known about the possibility of post-release control,
he would have insisted on a trial. The State reasoned that Petitioner accepted a
minimum sentence of thirty-three years, with the possibility of life imprisonment, and
that it seemed extremely unlikely that the imposition of five years of post-conviction
release, instead of a parole term, would have been a “deal-breaker.” It also argued that
under a prior decision of the Fifth District Court of Appeals, res judicata barred any
attack on the validity of the three convictions and as to all of the sentences imposed
other than post-release control. Petitioner filed a reply, and the trial court, in an entry
unaccompanied by an opinion, denied the motion. Ex. 24.
Petitioner timely appealed. He made essentially the same arguments on appeal,
asserting that the failure to advise him about the possibility of post-release control
violated Ohio Crim. R. 11(C)(2)(a) and that the trial court had been required to vacate
the guilty plea. He also cited the Fourteenth Amendment Due Process clause in his
brief. Ex. 26. The State’s opposing memorandum (Ex. 27) mirrored the brief it filed at
the trial court level. In its decision overruling Plaintiff’s assignment of error, the state
court of appeals said:
Appellant asserts that his plea must be vacated because the trial court
failed to advise him of mandatory postrelease control at the plea hearing.
However, appellant's attempt to withdraw his guilty plea, made
subsequent to this Court's remand for resentencing, is barred by the
doctrine of res judicata. See State v. Hazel, 11th Dist. Nos. 10AP–1013,
10AP–1014, 2011–Ohio–4427. Res judicata bars the assertion of claims
against a valid, final judgment of conviction that have been raised or
could have been raised on appeal. State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967). “Ohio courts of appeals have applied res judicata to bar
the assertion of claims in a motion to withdraw guilty plea that were or
could have been raised at trial or on appeal. State v. Ketterer, 126 Ohio
St.3d 448, 2010–Ohio–3831, 935 N.E.2d 9, ¶ 59, citations omitted. Appellant
clearly could have raised the issue he now raises on direct appeal or
during one of his earlier appeals. As is stated above, appellant did raise
the issue of postrelease control in 2010.
Appellant's sole assignment of error is, therefore, overruled.
State v. Norris, 2013 WL 1097821, *3 (Muskingum Co. App. March 15, 2013). As noted
above, Petitioner timely but unsuccessfully sought review from the Ohio Supreme
Court. As the last reasoned decision from a state court, this Court must accept the Fifth
District Court of Appeals’ decision as stating the rationale used by the State in rejecting
Petitioner’s claim. The question raised by that decision, and by Respondent’s assertion
of procedural default, is whether the state court’s application of res judicata to this
situation - which prevented the state courts from reaching the merits of Petitioner’s
constitutional claim - is an adequate and independent ground for its decision.
The state court reasoned that Petitioner could have presented the issue of having
entered a guilty plea without knowing the full consequences of it in one of his earlier
appeals. Although the court did not say which one of them it was using as the basis of
its res judicata ruling, it implied that he could have raised it in the 2010 appeal he
pursued which led to the order that he be re-sentenced. It is therefore helpful to
examine the filings which led to that appeal.
That process began when Petitioner filed a motion with the trial court on March
5, 2010. Because the Ohio Supreme Court’s decision in State ex rel. Carnail v. McCormick,
126 Ohio St.3d 124 (2010), which was what led to the re-sentencing, was not issued
until June 16, 2010, Petitioner did not cite that decision as the basis for his motion, but
rather a prior decision, State v. Bezak, 114 Ohio St. 3d 94 (2007), which stated, in the
When a defendant is convicted of or pleads guilty to one or more offenses
and postrelease control is not properly included in a sentence for a
particular offense, the sentence for that offense is void. The offender is
entitled to a new sentencing hearing for that particular offense.
Petitioner’s argument was confined to the proposition that, as was the case in Bezak, his
sentence was void and a new sentencing hearing was required. See Doc. 14, Ex. 5. The
trial court denied the motion in an entry which states, in full, “Defendant’s motion for
resentencing is denied. Defendant is not subject to post release control.” See Ex. 6. The
only issue presented on appeal related to whether a new sentencing hearing was
required. After the State conceded error, the remand was ordered. It is not clear exactly
why the state court later concluded that a claim relating to the voluntariness of
Petitioner’s guilty plea either could or should have been included as part of that appeal.
The State, in its briefing on Petitioner’s motion to withdraw his guilty plea, cited
to the Ohio Supreme Court’s decision in State v. Fischer, 128 Ohio St.3d 92 (2010), which,
among other things, overruled the second sentence of the syllabus in Bezak and held
that a de novo sentencing hearing was not required to correct an error about the
imposition of post-release control. The court also concluded, however, that once such a
sentencing proceeding was held, any appeal from that proceeding could properly raise
issues only about the new portion of the sentence, and that other “claims which did
not involve a void sentence or judgment, were barred by res judicata.” Id. at 101. Under
that holding, Petitioner’s appeal from the resentencing had to be limited to issues about
that process, which it was. Although Fischer says nothing about whether res judicata
would also bar relief in the context of a motion to withdraw a guilty plea, one might
argue - as the State did - that, at least as to Petitioner’s murder conviction, on which
post-release control was not imposed, his prior entry of the plea and the failure to attack
it as part of his first direct appeal precluded any later effort to withdraw his plea.
Part of the problem with any such argument - and Respondent has not made that
argument, limiting the response to two sentences which do no more that cite to the Fifth
District Court of Appeals opinion, see Doc. 23, at 11 - is that the Ohio Supreme Court
has also held that a post-sentence motion for leave to withdraw a guilty plea is not a
post-conviction petition and is therefore not subject to the same res judicata rules which
apply to those proceedings. See State v. Bush, 96 Ohio St.3d 235 (2002). Ohio courts
have applied res judicata principles to successive motions for leave to withdraw a guilty
plea, see, e.g., State v. Sneed, 2005 WL 926993 (Cuyahoga Co. App. Apr. 21, 2005), but
here Petitioner filed only a single motion for leave to withdraw. This Court is not
persuaded that the Ohio courts regularly apply the doctrine of res judicata in this
situation to preclude reaching the merits of a motion for leave to withdraw a guilty
plea, especially one which was premised on the development of case law subsequent to
the plea. Since Respondent has not addressed this element of the procedural default
analysis, the Court declines to dismiss the second ground for relief on grounds of
B. Ground Three
Ground three stands on a different footing. Petitioner raised this claim for the
first time in state court by way of his “Motion for Allied Offense Determination” which
he filed on September 9, 2013. Doc. 14, Ex 33. In it, he cites a plethora of case law, but
does not state exactly which of the three offenses to which he pleaded guilty, and for
which he was sentenced, should have been treated as allied offenses of similar import
and therefore merged for sentencing purposes. The State responded that review of this
issue was barred by res judicata because it was not raised on direct appeal. The trial
court denied the motion and the appeals court affirmed, holding that “Appellant had a
prior opportunity to litigate the allied-offenses claims he sets forth in the instant appeal
via a timely direct appeal from the sentencing hearing and resulting judgment entry; his
most recent round of arguments are therefore barred under the doctrine of res judicata.”
State v. Norris, 2014 WL 2159369, *2 (Muskingum Co. App. May 10, 2014).
That holding is undoubtedly a correct application of Ohio law and one which is
regularly followed. Any issue about allied offenses was evident on the face of the
record, and such claims must be raised in Ohio by way of direct appeal. Petitioner did
not present such a claim either in first delayed direct appeal, which is where it should
have been raised (although it may have been defaulted even then) or in his appeal from
the judgment entered after re-sentencing. There is no mechanism by which such an
issue can be raised by post-judgment motion, especially one which, as here, was filed so
late in time. Further, the state court of appeals also concluded that his claim failed on
its merits because the state law on which he relied could not be applied to his case.
Finally, the Court cannot see any possibility that he has asserted a meritorious federal
double jeopardy claim here. Petitioner is simply not entitled to relief on Ground Three.
V. The Merits
A. Ground One
Petitioner’s first ground for relief attacks the procedure followed by the state
court on December 21, 2010, when, pursuant to the remand from the Fifth District Court
of Appeals, it imposed a term of post-release control. He argues that although the
court of appeals had concluded that he was entitled to an entirely new, or de novo,
sentencing hearing, he got less than a full hearing. The transcript of the hearing shows
that the trial judge announced that the purpose of the hearing was to advise Petitioner
of the terms of post-release control. After that was done, Petitioner’s counsel objected
to the proceedings, stating that Petitioner “should have been in the same position today
if the initial sentencing hearing had not occurred.” Doc. 14, Transcript of Resentencing.
In his appeal from that proceeding, Petitioner argued that he had been denied the full
hearing which, in his view, the court of appeals had ordered. That court, finding that
the procedure comported with the Ohio Supreme Court’s decision in State v. Fischer,
supra, disagreed and overruled his assignment of error. State v. Norris, 2012 WL 424957
(Muskingum Co. App. Feb. 3, 2012).
Respondent argues that any claim that the trial court failed to follow the mandate
of the state court of appeals is a state law claim which cannot be raised in federal habeas
corpus. Respondent also asserts that any federal component to this claim, which might
include either an Ex Post Facto claim or a due process claim, has been procedurally
defaulted because it was not presented in that fashion to the Fifth District Court of
Appeals. Finally, Respondent says that this claim fails on its merits.
Two briefs were filed on this issue at the court of appeals level. Petitioner’s
counsel filed an Anders brief which noted that Fischer had been decided shortly after the
sentencing hearing and that the procedure followed by the trial judge was authorized
by Fischer. That brief clearly raised no federal constitutional claim. Doc. 14, Ex. 13.
Petitioner’s pro se brief, Ex. 15, does assert both a due process claim and an Ex Post
Facto claim. The state court of appeals did not strike that brief, simply commenting that
the brief did not allege any additional assignments of error. State v. Norris, 2012 WL
424957, *1. The Court concludes that this claim was fairly presented to the state courts.
The fact that the court of appeals chose not to address the federal constitutional issues is
not determinative and, in fact, if this Court were to conclude that those issues were
simply overlooked, rather than evaluated and decided on their merits, by the state
court, Petitioner’s claim could be reviewed de novo rather than under the ordinary
deferential standard of appeal found in the AEDPA. See, e.g., Johnson v. Williams, 133
S.Ct. 1088, 1097 (2013).
On its merits, however, the claim fails. A very similar claim was raised, and
rejected on its merits, in Pryor v. Oppy, 2014 WL 7014673 (S.D. Ohio Dec. 9, 2014). The
petitioner in that case was also denied a de novo sentencing hearing when his sentence
was amended to include a term of post-release control. This Court fully endorses
Magistrate Judge Deavers’ explanation of the law in Pryor when she stated:
The Ex Post Facto Clause derives from the basic principle that a criminal
statute must give fair warning of the conduct that it makes a crime. Bouie
v. City of Columbia, 378 U.S. 347, 350–51, 84 S.Ct. 1697, 12 L.Ed.2d 894
(1963). This is because “[d]ue process ... does not countenance an
‘unforeseeable and retroactive judicial expansion of narrow and precise
statutory language.’ “ Metrish v. Lancaster, ––– U.S. ––––, ––––, 133 S.Ct.
1781, 1787, 185 L.Ed.2d 988 (2013) (citing Bouie, 378 U.S. at 352). “The
crucial test is ‘whether the statute, either standing alone or as construed,
made it reasonably clear at the relevant time that the defendant's conduct’
could be criminally penalized.” O'Neal v. Bagley, 743 F.3d 1010, 1015 (6th
Cir. 2013) (citing Lanier, 520 U.S. at 267; Bouie, 378 U.S. at 353–55. The Ex
Post Facto Clause limits the powers of the legislature “and does not of its
own force apply” to judicial decision making. Rogers v. Tennessee, 532 U.S.
451, 456, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) (quoting Marks v. United
States, 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).
Pryor, 2014 WL 7014673, *7. Although at the time Pryor received his resentencing
hearing, the law in Ohio did not require a de novo hearing (as it appears to have done in
the interim between the decisions in Bezak and Fischer), this Court simply cannot
conclude that the difference between the two proceedings has any constitutional
significance. As Pryor also observed, “[t]he fact that [Pryor] was not entitled to a de novo
sentencing hearing based on the trial court's failure to advise him that he would be
subject to post release control did not change the punishment for, or the elements of the
crimes with which he was charged.” Id. at *8. That is true here as well. The law at the
time Petitioner was sentenced provided for - indeed, required - that on the two felony
counts other than the murder count, he receive a term of post-release control. That is
what he received at the re-sentencing hearing. That is simply not retroactive
punishment. As aptly put by the court in Braddy v. Bunting, 2014 WL 4285605, *13
(N.D. Ohio Aug. 6, 2014), adopted and affirmed 2014 WL 4285632 (N.D. Ohio, Aug. 29,
2014), “Fischer does not criminalize conduct nor does it expose Petitioner to the
possibility of a greater sentence than the sentence originally imposed.” Because that is
so, there is no merit to the constitutional claims raised as part of Ground One.
B. Ground Two
Ground Two has been discussed extensively above. That discussion
demonstrates that Petitioner did present this claim to the Ohio courts and that they did
not reach the merits due to what appears to be an erroneous, or at least inconsistent,
application of the doctrine of res judicata. Again, it would appear that this Court can
review the claim de novo. Further, because Respondent has raised only procedural
defenses to the claim, the Court does not have the benefit of any merits briefing from
Respondent. However, because the claim appears on its face to lack merit, rather than
prolong these proceedings, the Court will address it here rather than asking Respondent
for a third round of briefing.
The gist of Petitioner’s federal constitutional claim (as opposed to his state law
claim, which rests on the application of Ohio R. Crim. P. 11 and which is not cognizable
in federal habeas corpus) is that his guilty plea was not knowing and voluntary because
of the State’s failure to advise him that, if released, he could be subjected to a term of
post-release control on one or both of the felony counts other than aggravated murder.
He claims that, had he known that fact, he would not have entered his plea. He makes
that claim despite the fact that, as the trial judge explained to him at the resentencing
hearing, if he were ever to be released, he would also be on parole for the aggravated
murder charge and if that parole were revoked, he could be sent back to prison for life,
and not just the five years that could be imposed for violations of post-release control.
The Court has of Appeals has set out the general legal principles which apply to
cases like this one in decisions like King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994):
To be valid, a guilty plea must be made voluntarily and intelligently.
Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274
(1969). The plea must be made with knowledge of the “relevant
circumstances and likely consequences.” Brady v. United States, 397 U.S.
742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). .... Determining
whether a plea was made voluntarily requires an evaluation of all the
relevant circumstances surrounding the plea. Caudill v. Jago, 747 F.2d 1046,
1050 (6th Cir. 1984); Brown, 718 F.2d at 786. The “ultimate question” is if
the plea was in fact voluntary and intelligent. Pitts v. United States, 763
F.2d 197, 200 (6th Cir. 1985).
Applying these principles, this Court has held that the failure of a state trial court
correctly to inform a defendant about post-release control does not render a plea
knowing and involuntary. For example, in Myers v. Warden, Warren Correctional
Institution, 2011 WL 7039933 (S.D. Ohio Aug. 9, 2011), adopted and affirmed 2012 WL
122568 (S.D. Ohio Jan. 17, 2012), the petitioner claimed that his plea was not knowing
and voluntary because he was told, incorrectly, that he would be subject to post-release
control, when, in fact, the offense he pleaded guilty to was not a crime for which that
sentence was available. Although the petitioner was clearly misinformed about the
possible consequences of his plea, this Court found no merit in his constitutional claim
because he was not misled “into believing that the maximum term of imprisonment he
faced was less than a life term” - which is also true in this case - and because, given the
fact that the petitioner knew he would not be released on any type of control before the
expiration of his minimum sentence (15 years) and knew that he could go back to prison
after release, “it is highly unlikely that the misinformation regarding post-release
control influenced or was even considered by petitioner in deciding whether or not to
plead guilty.” Id. at *8-9.
The situation presented here is similar to a claim that, but for the failure of
counsel to advise a defendant properly prior to the entry of a plea, that defendant
would have rejected the plea agreement and gone to trial. In that context, the courts
have said that
The petitioner must ... show a reasonable probability that but for
counsel's errors, he would not have pleaded guilty, because there would
have been a reasonable chance that he would have been acquitted had
he or she insisted on going to trial. See Garrison v. Elo, 156 F. Supp. 2d
815, 829 (E.D. Mich. 2001). A habeas petitioner's conclusory allegation
that, but for an alleged attorney act or omission he or she would not
have pleaded guilty, is therefore insufficient to prove such a claim. Id.
The test of whether a defendant would have not pleaded guilty if he or
she had received different advice from counsel “is objective, not
subjective; and thus, 'to obtain relief on this type of claim, a petitioner
must convince the court that a decision to reject the plea bargain would
have been rational under the circumstances.”' Pilla v. U.S., 668 F.3d 368,
373 (6th Cir. 2012)(quoting Padilla v. Kentucky, 559 U.S. at 372).
Hairston v. Barrett, 2016 WL 1392015, *5 (E.D. Mich. Apr. 7, 2016).
Petitioner did offer, at the re-sentencing hearing, to take the stand and swear that
had he known about the mandatory imposition of post-release control, he would not
have pleaded guilty. The trial judge was skeptical of that claim, and so is this Court.
Saying something, even under oath, does not make it so, or even make it credible.
There is only a minuscule likelihood that Petitioner would ever suffer consequences
from being placed on post-release control. As the state trial judge noted, if he is ever
paroled on the aggravated murder charge, it would not be for at least 33 years
(according to the ODRC website, Petitioner’s first parole hearing will not be held until
August of 2036), and that date is unaffected by the sentence of post-release control.
Further, if released, he would be on parole as well as post-release control, and the
maximum term he could receive for a violation of parole would be life in prison, as
opposed to five years for a violation of post-release control. It is true that the conditions
of post-release control might be somewhat more restrictive, but it is difficult to accept
that a rational defendant in Petitioner’s position, who was facing the death penalty if he
went to trial, would have taken that risk just to avoid those conditions some thirty or
forty years into the future. Given the extreme unlikelihood of Petitioner’s claim that he
would have done just that, the Court is entitled to insist on something other than his
bare statement to support that claim. The record contains no such evidence. Therefore,
Ground Two fails on its merits.
VI. Recommended Disposition
For the reasons set forth above, the Magistrate Judge RECOMMENDS that the
petition for a writ of habeas corpus be DENIED and that this action be DISMISSED..
VII. Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) 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).
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/ Terence P. Kemp
United States Magistrate Judge
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