Ogle v. Ohio Department of Rehabilitation and Correction

Filing 9

DECISION AND ORDER DENYING MOTION TO STAY 8 . Signed by Magistrate Judge Michael R. Merz on 5/4/2015. (kpf)(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 AT COLUMBUS
MELANIE A. OGLE,
Petitioner,

:

- vs -

Case No. 2:15-cv-776
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

GARY C. MOHR, DIRECTOR,
Ohio Department of Rehabilitation
And Correction
:
Respondent.

DECISION AND ORDER DENYING MOTION TO STAY

This habeas corpus action is before the Court on Petitioner’s “Motion to Stay Remainder
of Unlawful Sentencing Pending Resolution of Petition for Writ of Habeas Corpus” (Doc. No.
8).
Respondent has not yet filed the state court record in this case or an answer to the
Petition, so the Court is limited to the assertions of fact pled by Petitioner. According to the
Petition, Petitioner was convicted by a jury in the Hocking County Common Pleas Court of one
count of assault on a peace officer and sentenced to six months confinement and three years of
community control (Petition, Doc. No. 1, PageID1 1). The community control sanction was later
modified to five years. Id. Ms. Ogle was sentenced on September 27, 2011. Id. at ¶ 2. The
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When any document is filed with this Court, the Court’s electronic filing system affixes a unique Page
Identification Number in the upper right hand corner of every page. The attention of the parties is directed to this
Magistrate Judge’s Standing Order of May 8, 2014, which provides in pertinent part “All references to the record in
this Court must be to the filed document by title, docket number, and PageID reference. (E.g., Defendant’s Motion
to Dismiss, Doc. No. 27, PageID ___.) The large majority of cases before this Magistrate Judge are habeas corpus
cases with large state court records and correct citation to the record is critical to judicial economy. Therefore,
nonconforming filings will be stricken.

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conviction, sentence, and later modification of sentence were affirmed on appeal. State v. Ogle,
2013-Ohio-3420, 2013 Ohio App. LEXIS 3510 (4th Dist. Jul 26, 2013). On March 12, 2014, the
Ohio Supreme Court denied a motion for delayed appeal. Ms. Ogle petition for a writ of
certiorari from the United States Supreme Court was denied November 17, 2014 (Petition, Doc.
No. 1, PageID 3).
Ms. Ogle’s principal claim at this point, at least with respect to the instant Motion,
appears to be that her conviction and sentencing “are nullities, since the September 27, 2011
conviction and sentencing hearing were held in violation of Petitioner’s 6th and 14th Amendment
rights to [sic] the U.S. Constitution, divesting jurisdiction of the trial court to enforce its void
September 28, 2011 judgment entry of conviction and sentence.” (Motion, Doc. No. 8, PageID
75.) Ms. Ogle asserts the judgment is void because she did not have counsel at the September
27, 2011, hearing. Id. at PageID 73.
Petitioner is no longer incarcerated, but remains sufficiently in custody to invoke this
Court’s habeas corpus jurisdiction because she is still serving a community control sanction.
What she seeks is a suspension of at least some of the conditions of her sentence – restrictions on
her right to travel, subjection to searches of her person and home, and the continued threat of
additional imprisonment if found to violate the terms of her community control sentence.
(Motion, Doc. No. 8, PageID 83). This appears to be tantamount to ordering Petitioner released
on an own recognizance, no conditions bond.2
Although Ms. Ogle has cited no authority to this effect, a district court has power to
enlarge a state prisoner pending determination of his or her petition for writ of habeas corpus
under 28 U.S.C. § 2254. Aronson v. May, 85 S. Ct. 3, 13 L. Ed. 2d 6 (1964). However, it is

2

If, on the other hand, Petitioner is requesting that she be unconditionally released because she has already proven
her case, that result would deny the State its procedural rights in habeas corpus.

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appropriate to exercise that authority only upon a showing that a petitioner's claim is both
substantial and clear on the merits. Glynn v. Donnelly, 470 F.2d 95 (1st Cir. 1972); Calley v.
Callaway, 496 F.2d 701 (5th Cir. 1974).
In order to receive bail pending a decision on the merits, prisoners
must be able to show not only a substantial claim of law based on
the facts surrounding the petition but also the existence of "some
circumstance making [the motion for bail] exceptional and
deserving of special treatment in the interests of justice." Aronson
v. May, 85 S.Ct. 3, 5, 13 L.Ed.2d 6, 9 (1964) (Douglas, J., in
chambers); see Martin v. Solem, 801 F.2d at 329-330; Iuteri v.
Nardoza, 662 F.2d at 161. There will be few occasions where a
prisoner will meet this standard.
Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990).
Ms. Ogle has not shown that her claim is clear on the merits. The Court does not yet
have before it the certified state court record, but even that portion which Ms. Ogle filed makes
her claim less than clear. In the copy of Judge Crawford’s Judgment Entry attached to the
Motion, he makes the following finding:
The Court notified Defendant Melanie Ogle [at the hearing on
September 27, 2011] that she had a right to counsel for these
proceedings, and a right to court appointed counsel at no cost to
her if indigent. Defendant Melanie Ogle expressed that she would
not waive her right to counsel. The Court advised the Defendant
that she had the right to counsel appointed by the Court at no
expense. She refused the Court’s offer of appointed counsel. On
September 21, 2011 the Defendant signed “Motion of Pro Se
Appearance” waiving her right to counsel. The Court finds that the
Defendant knowingly and voluntarily waived her right to counsel.

(Motion, Doc. No. 8, PageID 91-92). This finding of fact by the trial court must be accepted by
this Court unless Ms. Ogle can show by clear and convincing evidence that it is erroneous. This
she has not yet done.
Moreover, Ms. Ogle argues that the State cannot show a procedural default in this case
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“for the reason that no prejudice need be shown where counsel was absent at sentencing, a
critical stage of a criminal proceeding.” Id. at PageID 74, citing Van v. Jones, 475 F. 3d 292 (6th
Cir. 2007). Because the State has not yet answered, the Court does not know what defenses it
may raise. However, the Court notes that this claim that the judgment is void for lack of counsel
at sentencing was not raised before the Fourth District Court of Appeals on direct appeal.
Accordingly, the Motion for Stay is DENIED.

May 4, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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