Norris v. Bunting

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATIONS; OVERRULING Petitioner's Objection and Addendum to Objection. This case is DISMISSED. Signed by Judge Algenon L. Marbley on 4/24/2017. (cw)(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
DERRICK CAMERON NORRIS,
Petitioner,

CASE NO. 2:15-CV-764
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KEMP

v.
JASON BUNTING,
Respondent.
OPINION AND ORDER
On February 27, 2017, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed. (ECF No. 25.) Petitioner has filed an Objection and Addendum to Objection to the
Report and Recommendation. (ECF Nos. 26, 27.) Pursuant to 28 U.S.C. § 636(b), this Court has
conducted a de novo review. For the reasons that follow, Petitioner’s Objection and Addendum
to Objection (ECF Nos. 26, 27) are OVERRULED. The Report and Recommendation (ECF
No. 25) is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner challenges his September 17, 2004, convictions in the Muskingum County
Court of Common Pleas pursuant to his guilty plea on murder with a firearm specification,
aggravated robbery, and tampering with evidence. He asserts that he was denied due process
because the trial court failed to provide him with a de novo re-sentencing hearing pursuant to the
remand of the Ohio Court of Appeals based on the trial court’s failure to advise him of the terms
of post-release control (claim one); that his guilty plea was not knowing, intelligent or voluntary
based on the State’s failure to advise him that, upon release, he would be subject to the terms of
post-release control (claim two); and that his convictions violate the Double Jeopardy Clause

(claim three). The Magistrate Judge recommended dismissal of claims one and two on the
merits, and claim three as procedurally defaulted.
Petitioner objects to the Magistrate Judge’s recommendations. Petitioner argues at length
that his initial judgment of conviction was void, and his guilty plea not knowing, intelligent or
voluntary, because the State failed to advise him regarding the requirement of terms of postrelease control. Petitioner argues that the appellate court therefore improperly remanded the case
for re-sentencing, and the trial court lacked jurisdiction to re-sentence him. Petitioner further
contends that the state courts improperly refused to permit him to raise a claim regarding the
alleged violation of the Double Jeopardy Clause in the appeal from his re-sentencing, and he
therefore did not procedurally default such claim for review in these proceedings. Petitioner
argues that he is the victim of a manifest miscarriage of justice. He complains that the Court
improperly determined that his Motion for Summary Judgment (ECF No. 17) was moot and
denied him an evidentiary hearing. Petitioner seeks a certificate of appealability.
Petitioner’s arguments are not persuasive. As to claim three, Petitioner failed to file a
timely appeal. The state appellate court dismissed his motion for a delayed appeal due to his
failure to attach a certificate of service. He did not pursue an appeal of that decision to the Ohio
Supreme Court. Moreover, he did not raise an issue regarding the Double Jeopardy Clause until
September 9, 2013, when he filed a “motion for allied offense determination” with the state trial
court, asking the court to determine whether his convictions should have been deemed as allied,
rather than separate offenses. (ECF No. 14-1, PageID# 443.) The state appellate court rejected
the claim as barred under Ohio’s doctrine of res judicata, as Petitioner could have, but did not,
raised the issue on direct appeal. See State v. Norris, No. CT2013-0052, 2014 WL 2159369, at
*1-2 (Ohio App. 5th Dist. May 19, 2014). Petitioner has plainly waived such claim for federal

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habeas corpus relief. Further, he has failed to establish cause or prejudice for this procedural
default. Moreover, the record does not reflect that Petitioner is actually innocent of the charges
against him so as to warrant a merits review of such claim.
To establish actual innocence, “a petitioner must show that it is
more likely than not that no reasonable juror would have found
petitioner guilty beyond a reasonable doubt.” Id. at 327, 115 S.Ct.
851. The Court has noted that “actual innocence means factual
innocence, not mere legal insufficiency.” Bousley v. United States,
523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). “To
be credible, such a claim requires petitioner to support his
allegations of constitutional error with new reliable evidence—
whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup, 513 U.S. at 324, 115 S.Ct. 851. The
Court counseled however, that the actual innocence exception
should “remain rare” and “only be applied in the ‘extraordinary
case.’ ” Id. at 321, 115 S.Ct. 851.
Souter v. Jones, 395 F.3d 577, 90 (6th Cir. 2005)(footnote omitted). Petitioner cannot meet this
standard here.
As to claims one and two, as discussed by the Magistrate Judge, there is no legal basis for
Petitioner’s claim that the trial court’s failure to conduct a de novo re-sentencing hearing violated
the Ex Post Facto Clause or the United States Constitution. Likewise, Petitioner’s claim that his
guilty plea was not knowing, intelligent or voluntary does not provide him a basis for relief.
Petitioner was sentenced to 33 years to life imprisonment. The trial judge explained to him that,
if he were ever to be released, he would be on parole for the aggravated murder charge, and
could be sent back to prison for life, not just the five years that could be imposed for a violation
of the terms of post-release control. Under these circumstances, the failure of the state trial court
correctly to inform Petitioner about post-release control does not render the plea unknowing or
involuntary. This Court need not conduct an evidentiary hearing in order to resolve Petitioner’s
claims. Further, the Court has considered all of the arguments raised by Petitioner in his Motion
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for Summary Judgment; however, the record reflects no basis to warrant the granting of such
request. See Griffin v. Warden, Toledo Correctional Institution, No. 2:15-cv-2920, 2016 WL
7210918, at *5 (S.D. Ohio Dec. 13, 2016), adopted and affirmed by 2017 WL 401250 (S.D. Ohio
Jan. 30, 2017) (A habeas petitioner who seeks summary judgment must at a minimum satisfy the
requirements of Rule 56 of the Federal Rules of Civil Procedure, which requires the movant to
establish that there is “no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law”)(citations omitted).
Petitioner seeks a certificate of appealability. “In contrast to an ordinary civil litigant, a
state prisoner who seeks a writ of habeas corpus in federal court holds no automatic right to
appeal from an adverse decision by a district court.” Jordan v. Fisher, -- U.S. --. --, 135 S.Ct.
2647, 2650 (2015); 28 U.S.C. § 2253(c)(1)(requiring a habeas petitioner to obtain a certificate of
appealability in order to appeal.) The petitioner must establish the substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

This standard is a codification of

Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make a substantial showing
of the denial of a constitutional right, a petitioner must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893 n. 4).
Petitioner has failed to meet this standard here. Reasonable jurists would not debate
whether the Court properly dismissed Petitioner’s claims as procedurally defaulted or without
merit. Petitioner’s request for a certificate of appealability therefore is DENIED.

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For all of the foregoing reasons, and for the reasons detailed in the Magistrate Judge’s
Report and Recommendation, Petitioner’s Objection and Addendum to Objection (ECF Nos. 26,
27) are OVERRULED. The Report and Recommendation (ECF No. 25) is ADOPTED and
AFFIRMED. This action is hereby DISMISSED.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

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