Smith v. Warden Marion Correctional Institution
Filing
16
OPINION and ORDER adopting and affirming 14 the Report and Recommendation; granting 8 Respondent' Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Michael H. Watson on 12/8/16. (jk) (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
RALPH BLAINE SMITH,
Petitioner,
Case No. 2:16-cv-00627
JUDGE MICHAEL H. WATSON
V.
Magistrate Judge King
JASON BUNTING, WARDEN,
Respondent.
OPINION AND ORDER
On November 9,2016, the Magistrate Judge recommended that
Respondent's Motion to Dismiss, EOF No. 8, be granted and that this action be
transferred to the United States Court of Appeais for the Sixth Circuit as a
successive petition. Report and Recommendation ("R&R"), ECF No. 14. The
Magistrate Judge further recommended that Petitioner's Motion to Moid Petition
in Abeyance be denied as moot. Id. Petitioner objects to those recommendations.
Objection, ECF No. 15. Pursuant to 28 U.S.C. 636(b), this Court has conducted
a de novo review. For the reasons that follow, Petitioner's Objection, ECF No.
15, is OVERRULED. The R&R, ECF No. 14, is ADOPTED and AFFIRMED.
Respondent's Motion to Dismiss, ECF No. 8, is GRANTED, and this action is
TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a
successive petition. The Court does not address Petitioner's Motion to Hold
Petition in Abeyance, ECF No. 2.
Petitioner challenges his September 2000 convictions, following a jury trial
in the Fairfield County Court of Common Pleas, on two counts of aggravated
burglary, three counts of robbery, two counts of kidnapping, and one count of
theft, with firearm specifications. He claims in this action that he was convicted
pursuant to a constitutionally improper and unreliable witness identification (claim
one); that the trial court improperly imposed maximum consecutive terms of
incarceration (claim two); that he was improperly sentenced on allied offenses of
similar import (claim three); that he was denied the effective assistance of trial
counsel (claim four); that the trial court refused to permit allocution at his
sentencing hearing (claim five); that he was convicted in violation of the Double
Jeopardy Clause (claim six); and that he was denied the effective assistance of
counsel at his re-sentencIng hearing (ciaim seven).
This is Petitioner's second petition in this Court chalienging these same
convictions. See Smith v. Hurley, No. 2:03-cv-580 (S.D. Ohio). On April 19,
2004, this Court dismissed that prior action on the merits. Id. (Judgment, ECF
No. 14).
Because Petitioner already raised the claims he raises in this action, the
Magistrate Judge recommended that the current action be transferred to the
Court of Appeals as a successive petition. See R&R, at 4 (citing 28 U.S.C. ยง
2244(b)(3)(A); In re Smith, 690 F.3d 809 (6th Cir. 2012)).
Petitioner objects to this recommendation. In his Objection, Petitioner
argues that this action does not constitute a successive petition in light of his July
2
13,2015, re-sentencing hearing. In Petitioner's original appeal, the state
appellate court affirmed Petitioner's conviction but remanded the action for a re-
sentencing hearing because, although the trial court had imposed a mandatory
term of post-release control, it had not orally advised Petitioner of that term at the
original sentencing hearing. See State v. Smith, No. 14-CA-18,2014 WL
5365511, at *3 (Ohio App. 5th Dist. Oct. 16,2014). The state trial court
conducted the re-sentencing hearing on July 13, 2015, during which it verbally
notified Petitioner of the terms of the post-release control that had been originally
imposed. A new judgment was thereupon entered by the trial court. See Obj.,
EOF No. 15, at 11-12.
The Magistrate Judge noted that," '[wjhen a court alters a sentence to
include post-release control, it substantially and substantively changes the terms
under which an individual is held 'in custody.'.. .That means it has created a
new judgment for purposes of the second or successive assessments.'" R&R,
ECF No. 14, at 7-8 (quoting In re Stansell, 828 F.3d 412, 417 (6th Cir. 2016)).
However, the Magistrate Judge reasoned that Petitioner's re-sentencing hearing
did not result in a new judgment for purposes of this determination because it
resolved only a discrepancy between the trial court's oral pronouncements and
its formal judgment. "Petitioner does not allege, and it does not appear from the
record, that any new terms were included in any new judgment entry issued as a
result of the appellate court's order of remand." R&R, ECF No. 14, at 10.
In his Objection, Petitioner insists that, on remand, the thai court in fact
changed the terms of his sentence and conducted an entirely new sentencing
hearing, thereby exceeding the scope of the appellate court's remand. Petitioner
has attached to his Objection a copy of the trial court's initial judgment entry of
sentence, and the judgment entry of sentence issued following the re-sentencing
hearing. Objection, EOF No. 15, at 5-16).^
The record does not support Petitioner's contention that the trial court
conducted an entirely new sentencing hearing or changed the terms of its original
sentence. To the contrary, the record establishes that the terms of Petitioner's
original sentence remained unchanged foliowing the re-sentencing hearing.
Moreover, the state appellate court confirmed this fact: "Appellant was well aware
of postrelease control as It was included in the original 2000 judgment entry. The
trial court verbally notified appellant of postrelease control in accordance with
Ohio law as directed by this court's iimited remand." State v. Blaine-Smith, No.
15-CA-46, 2016 WL 3608634, at *3 (Ohio App. 5th Dist. July 5, 2016). Under
these circumstances, this Court agrees with the Magistrate Judge that the re-
sentencing hearing, conducted for the sole purpose of verbally advising
Petitioner of the terms of the post-release control imposed in the original
judgment, did not result in a new judgment that would permit the fiiing of a
numerically second petition without first obtaining authorization from the Sixth
' Respondent moved to dismiss the action as successive without the benefitof the state court records.
Mot. to Dismiss, EOF No. 8.
Circuit for the filing of a successive petition. That being the case, this Court lacks
jurisdiction to entertain this action absent authorization by the Court of Appeals.
See In re Sims, 111 F.3d 45,47 (6th Cir. 1997) (per curiam).
Petitioner also objects to the Magistrate Judge's recommendation that the
motion for a stay of proceedings be denied. In light of the Court's conclusion that
it lacks jurisdiction in this matter, the Court may not and will not address
Petitioner's Motion to Hold Petition in Abeyance.
For the foregoing reasons and for the reasons detailed in the R&R,
Petitioner's Objection, ECF No. 15, is OVERRULED. The Report and
Recommendation, ECF No. 14, is ADOPTED and AFFIRMED. Respondent's
Motion to Dismiss, ECF No. 8, is GRANTED, and this action is TRANSFERRED
to the United States Court of Appeals for the Sixth Circuit as a successive
petition.
IT IS SO ORDERED.
(ICHAEL H. WATSON. JUDGE
United States District Court
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