Roush v. Turner

Filing 7

ORDER and REPORT AND RECOMMENDATION that Petitioner's Motion to Proceed IFP is GRANTED; It is RECOMMENDED that this action be DISMISSED and that the 6 MOTION for Default Judgment against Neil Turner, Warden, North Central Correctional Comp lex filed by Shane Roush DENIED AS MOOT. Objections to R&R due by 1/19/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on 1/5/18. (sem)(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
SHANE ROUSH,
CASE NO. 2:17-CV-755
JUDGE ALGENON L. MARBLEY
Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
WARDEN, NORTH
CENTRAL CORRECTIONAL
COMPLEX,
Respondent.

ORDER and
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Preliminarily, Petitioner has filed an Affidavit of Indigence and requests to
proceed in forma pauperis. Upon consideration, the Court finds that Petitioner’s motion is
meritorious, and it is therefore GRANTED.
IT IS ORDERED THAT the Petitioner be allowed to prosecute this action without
prepayment of fees or costs and that judicial officers who render services in this action shall do
so as if the costs had been prepaid.
This matter is also before the Court on its own motion to consider the sufficiency of the
petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts. For the reasons that follow, the Magistrate Judge RECOMMENDS that this
action be DISMISSED. Because the Court has not issued an Order for Respondent to answer
and show cause why the Petition should not be granted, the Magistrate Judge further
RECOMMENDS that Petitioner’s Motion for Default Judgment be DENIED AS MOOT.

Facts and Procedural History
Petitioner challenges his August 22, 2011, convictions pursuant to his guilty plea in the
Morrow County Court of Common Pleas on attempted aggravated murder and felonious assault,
with specifications. The Ohio Fifth District Court of Appeals summarized the procedural history
of the case as follows:
On October 27, 2010, Appellant was indicted on one count of
Attempted Aggravated Murder (R.C. 2923.02 and 2903.01(E)(1)),
a felony of the first degree, with specifications including using
body armor during the offense; four counts of Felonious Assault
(R.C. 2923.03 and 2903.11), felonies of the first or second degree,
with specifications; Illegal Cultivation of Marijuana (R.C.
2925.04), a felony of the second degree, with specifications; and,
Trafficking in Marijuana (R.C. 2925.03), a felony of the second
degree, with specifications. The indictment stemmed from an
incident during which Appellant, wearing a Kevlar flak vest, fired
an assault rifle at a group of people, striking a Morrow County
Sheriff's Deputy several times. The deputy was severely injured in
the shooting and was later medically retired.
A written plea agreement was reached on or about August 22,
2011. Pursuant to the plea agreement, in exchange for Appellant's
plea of guilty to the charges, the State agreed to recommend the
following sentence:
Ten years on Count I (Complicity to Attempted Aggravated
Murder), plus seven years mandatory consecutive for the firearm
specification and two years mandatory consecutive for the body
armor specification; six years on Count III (Complicity to
Felonious Assault) to be served consecutively; and six years on
each of the remaining Felonious Assault counts to be served
concurrently. Three years mandatory on each gun specification for
Counts III, IV and V. The trial court merged the gun specifications
on these counts. The total prison term recommended would be 25
years.
Following a Plea Hearing, the trial court imposed sentence as
follows:

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“So in addition to the factors that I have covered with you earlier,
also, and I now can consider Deputy Moore's statement as in point
of fact the victim impact statement. So then on the basis of all of
the foregoing, I will now proceed to make disposition of your case
in the following fashion:
“It is hereby ordered and adjudged that you, Shane Roush, as to the
crime of attempted aggravated murder set forth in Count 1 of the
indictment, that particular charge being in violation of Section
2923.02(A) of the Ohio Revised Code and being classified as a
felony of the first degree, be imprisoned and confined by the
Department of Rehabilitation and Correction for a mandatory
stated prison term of ten years as is required by Statute
2929.13(F)(8) of the Revised Code and to pay the costs of the
prosecution of this case for which execution is awarded.
“And it is further ordered you, Shane Roush, as to specification
one set forth at the end of the body of Count 1 of the indictment,
that specification being so defined by 2941.142 of the Ohio
Revised Code, being imprisoned and confined by the Department
of Rehabilitation and Correction for a mandatory additional stated
prison term of seven years, that particular mandatory additional
stated prison term pursuant to Statute 2929.14(D)(1)(f) of seven
years to be served consecutive and prior to the principal charge.
“And it is further ordered and adjudged that you, Shane Roush, as
to specification two set forth at the end of the body of Count 1 of
the indictment, that specification being so defined by 2929.141 of
the Ohio Revised Code, be imprisoned and confined by the
Department of Rehabilitation and Correction for a mandatory
additional stated prison term of two years and pursuant to
2929.14(D)(1)(D) that mandatory additional prison term of two
years must be served consecutive and prior to the stated prison
term imposed as to the aggravated murder charge.
“***
“Okay. It is further ordered and adjudged that you, Shane Roush,
as to the crime of felonious assault set forth in Count 3 of the
indictment herein filed, that particular charge being in violation of
Section 2903.11(A) of the Ohio Revised Code and being classified
as a felony of the second degree, be imprisoned and confined by
the Department of Rehabilitation and Correction for a mandatory
stated prison term of six years as so required by 2929.13(F)(8) of
the Revised Code and to pay the costs of the prosecution of this
case for which execution is awarded. And it is further ordered and
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adjudged that as to the specification set forth at the end of the body
of Count 3, that that merges. Counsel agree?
“MS. STEFANCIN: Yes, your Honor.
“THE COURT: Counsel agree?
“MR. DAVIS: Yes.
“THE COURT: And it is further ordered and adjudged as to
specification two, same as that, that merges. We agree? Okay.
“MS. STEFANCIN: Yes, your Honor.
“THE COURT: All right. And it is further ordered and adjudged,
that the sentence hereby imposed by this Court this day upon this
defendant as to Count 3 shall run and be served consecutive to the
sentence imposed as to Count 1. I think that takes us to the 25.
“MS. DAVIS: Yes, sir.
“MS. STEFANCIN: Yes, sir.
“THE COURT: Okay. And we'll proceed to make disposition of
Count 4 in this fashion. It is hereby ordered and adjudged that you,
Shane Roush, as to the crime of felonious assault set forth in Count
4 of the indictment, that particular charge being in violation of
Section 2903.11(A)(2) of the Ohio Revised Code and being
classified as a felony of the second degree, be imprisoned and
confined by the Department of Rehabilitation and Correction for a
mandatory stated prison term of six years as required by
2929.13(F)(8) and to pay the costs of the prosecution for which
execution is awarded. Said sentence to run and be served
concurrent with the sentence heretofore imposed, that is concurrent
to Count 1 and Count 3. And I think we are in agreement that the
specifications merge, okay.
“And then moving over to Count 5 and this is going to be a
repetition of Count 4. It is hereby ordered and adjudged that you,
Shane Roush, as to the crime of felonious assault set forth in Count
5 of the indictment herein filed, that particular charge being in
violation of Section 2903.11(A)(2) of the Ohio Revised Code, be
imprisoned and confined by the Department of Rehabilitation and
Correction for a mandatory stated prison term of six years as so
required by 2929.13(F)(8) and to pay the costs of the prosecution
of this case for which execution is awarded.
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“And once, again, the court finds that specifications one and two
merge as heretofore placed in the record. Now, there is couple
more matters to cover with you, Mr. Roush. If you would like to
have a seat, please.
“MR. DAVIS: Judge.
“THE COURT: Yeah, Mr. Davis go ahead.
“MR. DAVIS: I don't believe and maybe I didn't hear it, I don't
believe that you indicated that Count Number 5 was concurrent.
“THE COURT: I didn't say that and I thank you for telling me that.
It is hereby ordered that the sentence heretofore imposed on this
defendant this day by this Court as to Count 5 shall run and be
served concurrent with the other sentences.”
Tr. at p. 4–8
Appellant did not file a direct appeal.
However, on December 17, 2012, Appellant filed a pro se motion
to correct sentence, arguing his sentence for the offenses of
attempted aggravated murder and felonious assault were “void and
illegal.” The State filed a memorandum contra on June 20, 2013,
arguing Appellant's motion should be denied on grounds of res
judicata. Appellant filed a reply thereto onto July 17, 2013.
On September 9, 2013, the trial court denied Appellant's motion to
correct sentence, concluding the mandatory terms were
“appropriate and legal as the statutes allow,” and the motion was
barred by res judicata.
On September 30, 2013, Appellant filed the within appeal,
assigning as error:
“I. APPELLANT'S SENTENCE IS VOID BECAUSE THE
TRIAL COURT IMPOSED MANDATORY PRISON TERMS
FOR ATTEMPTED AGGRAVATED MURDER AND
FELONIOUS ASSAULT THAT WERE NOT AUTHORIZED BY
STATUTE.”
State v. Roush, No. 13CA0008, 2014 WL 5510953, at *1-3 (Ohio App. 5th Dist. Oct. 30, 2014).
On October 30, 2014, the appellate court affirmed the judgment of the trial court. Id. On June 3,
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2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Roush, 142
Ohio St.3d 1476 (Ohio 2015). Petitioner additionally indicates that, on January 14, 2016, he
filed a motion to vacate void guilty plea and sentence in the state trial court. On February 24,
2016, the trial court denied the motion as barred under Ohio’s doctrine of res judicata. (Doc. 1,
PageID# 6.) On June 13, 2016, the appellate court dismissed the appeal for want of prosecution,
based on Petitioner’s failure to file an appellate brief. (PageID# 7.)
On July 18, 2017, Petitioner executed this § 2254 petition. He asserts that the trial court
abused its discretion by misrepresenting his appellate rights and denying him due process and
equal protection (claim one); that he was denied due process and equal protection based on
prosecutorial misconduct (claim two); that he was denied due process, equal protection, and
sentenced in violation of the Double Jeopardy Clause (claim three); that the trial court abused its
discretion by imposing the wrong penalty range for a second degree felony, he was denied the
effective assistance of counsel because his attorney failed to object, the prosecutor committed
prosecutorial misconduct in this regard, and his guilty plea was not knowing, intelligent, or
voluntary as a result (claim four); that the trial court abused its discretion by refusing to permit
Petitioner to speak in mitigation of punishment, thereby depriving him of due process and equal
protection (claim five); that the trial court abused its discretion by exhibiting religious bias prior
to sentencing (claim six); that the trial court abused its discretion by not following the plea
agreement and imposing mandatory sentences, and Petitioner’s guilty plea was not knowing,
intelligent, or voluntary as a result (claim seven); that his sentence is void due to the trial court’s
failure to impose a mandatory term of five years post release control (claim eight); and that the
appellate court abused its discretion by dismissing his appeal without notifying him of the
transmittal of the record, denying him due process and equal protection (claim nine).

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Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became
effective on April 24, 1996, imposes a one-year statute of limitations on the filing of habeas
corpus petitions. 28 U.S.C. § 2244(d) provides:
(d) (1) A 1–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
latest of(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) 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;
(C) 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
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
(2) The time during which a properly filed application for State
postconviction 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.
Applying the language of § 2244(d)(1)(A), Petitioner's conviction became final on
September 21, 2011, thirty days after imposition of sentence, when the time period expired to file
a timely appeal. See Board v. Bradshaw, 805 F.3d 769, 772 (6th Cir. 2015); Keeling v. Warden,
Lebanon Corr. Inst., 673 F.3d 452, 460 (6th Cir. 2012) (citing Gonzalez v. Thaler, 565 U.S. 134,

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150 (2012); Ohio App. R. 4(A)); The statute of limitations began to run on the following day,
and expired one year later, on September 22, 2012. Petitioner’s December 17, 2012, and January
14, 2016, motions to correct sentence and to vacate void guilty plea and sentence did not affect
the running of the statute of limitations, because Petitioner filed these actions after the statute of
limitations had already expired. “State collateral actions filed after the statute of limitations has
expired do not toll the running of the statute of limitations under 28 U.S.C. § 2244(d) (2).”
Lacking v. Jenkins, No. 2:15-cv-3069, 2016 WL 4505765, at *3 (S.D. Ohio Aug. 29, 2016)
(citing Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (“The tolling provision does
not...‘revive’ the limitations period (i.e., restart the clock at zero); it can only serve to pause a
clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no
longer serve to avoid a statute of limitations.”). Further, the record does not indicate that
Petitioner acted diligently in pursuing relief or that some extraordinary circumstances prevented
him from timely filing such that equitable tolling of the statute of limitations would be
appropriate. See Holland v. Florida, 560 U.S. 631, 650 (2010) (A petitioner is entitled to
equitable tolling only if he shows “1) that he has been pursuing his rights diligently, and 2) that
some extraordinary circumstances stood in his way” and prevented timely filing)(citing Pace,
544 U.S. at 418). The record likewise does not indicate that Petitioner can establish a credible
claim of actual innocent that would justify equitable tolling of the statute of limitations. See
Cook v. Ohio, No. 2:15-cv-02669, 2016 WL 374461, at *10 (S.D. Ohio Feb. 1, 2016) (citing
Souter v. James, 395 F.3d 577, 602 (6th Cir. 2005)).
Additionally, Petitioner’s claim that the state appellate court abused its discretion by
dismissing his post conviction appeal “without perfecting proper notification of transmittal of the
record,” fails to provide a basis for relief. Petitioner indicates that he did not receive notice of

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the transmittal of the record on April 19, 2016, and that the state appellate court therefore
improperly dismissed his appeal for want of prosecution due to his failure to file an appellate
brief.

However, “[t]he Sixth Circuit has consistently held that errors in post-conviction

proceedings are outside the scope of federal habeas corpus review.” Cress v. Palmer, 484 F.3d
844, 853 (6th Cir. 2007) (citing Kirby v. Dutton, 794 F.2d 245, 246-47 (6th Cir. 1986); Roe v.
Baker, 316 F.3d 557, 571 (6th Cir. 2002)). See also Leonard v. Warden, Ohio State Penitentiary,
846 F.3d 832, 854-55 (6th Cir. 2017) (declining to revisit the issue) (citations omitted). Roberts
v. Sutton, 217 F.3d 1337 (11th Cir. 2000), to which Petitioner refers, involves the issue of
whether a petitioner can establish cause for a procedural default based on the clerk’s failure to
transmit the record on appeal. That issue is not before this Court.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
Because the Court has not issued an Order for Respondent to answer and show cause why the
Petition should not be granted, the Magistrate Judge further RECOMMENDS that Petitioner’s
Motion for Default Judgment be DENIED AS MOOT.
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

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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/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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