Wells v. Warden, Belmont Correctional Institution
REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS dismissing 1 Petition for Writ of Habeas Corpus. Objections to R&R due by 11/21/2017. Signed by Magistrate Judge Kimberly A. Jolson on 11/7/2017. (ew)(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
CASE NO. 2:17-CV-944
JUDGE MICHAEL H. WATSON
Magistrate Judge Kimberly A. Jolson
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is 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.
FACTS AND PROCEDURAL HISTORY
Petitioner challenges his December 16, 1997, convictions after a jury trial in the Jefferson
County Court of Common Pleas on five counts of rape of a child under the age of thirteen. The
trial court imposed terms of ten years, plus two life terms, such sentences to be served
consecutively. The Ohio Seventh District Court of Appeals summarized the facts and procedural
history of the case as follows:
On October 10, 1997, Appellant was indicted on five counts of
rape of a child under the age of thirteen, in violation of R.C.
2907.02(A)(1)(b). Two of the counts also contained an allegation
that Appellant used force or threat of force to accomplish the rape.
The victims were his three daughters.
A jury trial commenced on December 16, 1997 and the following
day the jury returned verdicts of guilty on all counts. On December
24, 1997, Appellant was sentenced to two life sentences and three
ten-year terms of imprisonment, all to be served consecutively. In
addition, the trial court classified Appellant as a sexually violent
predator. He filed a direct appeal, and the conviction and sentence
were affirmed. State v. Wells, 7th Dist. No. 98–JE–3, 2000 WL
309401 (Mar. 22, 2000).
State v. Wells, 7th Dist. No. 14 JE 5, 2014–Ohio–5504, ¶ 2–3. 1
On January 22, 2014, Wells filed a document he titled “Motion to
Hold a Hearing and to Correct the Illegal and Void Postrelease
Control.” The trial court overruled the motion and he appealed. We
held that the trial court “failed to give Wells the proper notices
regarding postrelease control, and that portion of the sentence
dealing with postrelease control is hereby vacated and the case
remanded for a new hearing solely on the issue of postrelease
control.” Id. ¶ 15.
On February 23, 2015 a resentencing hearing was held advising
Wells of post-release control pursuant to our remand. Wells
appealed this judgment, but subsequently filed a motion
contending the entry was not a final, appealable order. We agreed
and remanded the case to allow the trial court to enter a sentencing
order that complied with Crim.R. 32 and imposed a term of
incarceration that included the post-release control notice. At the
July 23, 2015 resentencing hearing Wells made several arguments
regarding his conviction and sentence that the trial court refused to
consider; the trial court imposed post-release control and issued a
judgment entry on July 28, 2015, to comply with Crim. R. 32.
Wells asserts five assignments of error:
The Judgment Entry of Resentencing Journalized by the Trial
Court March 06, 2015, is not a “Judgment” as Defined by Crim.R.
32(C), as it fails to Set Forth any of Several Substantive Matters
Required by Said Rule, Fails to Incorporate the Entire Judgment in
a Single Document, and Requires Reference to a Separate
Document, the Original Sentencing Entry, In Order to Attempt to
Determine What the Entire Judgment is.
Petitioner asserted on direct appeal that he had been denied the effective assistance of trial counsel, and denied a
fair trial due to the trial court’s refusal to grant his request for a continuance of the trial date. See State v. Wells, No.
98-JE-3, 2000 WL 209401 (Ohio Ct. App. Mar. 22, 2000).
The Trial Court Erred to the Prejudice of the Appellant’s Due
Process Rights by Repeatedly Refusing to Permit the Appellant to
Present and Argue His Several Objections to the Reimposition of
Postrelease Control Where Such Objections Went to the Legal
Power, Authority, and to the Jurisdiction of the Trial Court to
Reimpose PRC, and to Challenge the Legal Foundations of the
Postrelease Control as Themselves Being Void and Illegal Under
Both State and Federal Law.
The Trial Court Erred to the Prejudice of the Appellant’s Due
Process Rights by Reimposing PRC and by Failing to Vacate the
Illegal and Void Sentences and Convictions where the Jury
Verdicts Fail to Set Forth a Valid, Legal, and Constitutional,
Finding of Guilt for any offense; and Where the Jury Verdicts Fail
to Provide the Trial Court with the Legal Power, Authority, or
Jurisdiction to Render a Legal and Valid Judgment of Conviction,
to Impose a Sentence (sic), and to Impose PRC as Part of the
The Trial Court Ered (sic) to the Prejudice of the Appellant’s Due
Process Rights by Reimposing PRC and by Failing to Vacate the
Illegal and Void Sentences and Convictions where the. Jury
Verdicts to the “Force Specifications” are Void for Want ‘of
Subject Matter Jurisdiction; for Failing to Set Forth Sufficient
Facts to Constitute a Legal WO Constitutional Finding of Guilt; for
Constructively Amending Counts 4 and 5, Changing the Name and
Nature Thereof; for Constructively Violating Ohio’s Version of
Separation of Powers, where such Defects Deprive the Trial Court
of the Legal Power, Authority, and/or Jurisdiction to Reimpose
PRC for Want of a Valid Sentence and Judgment Necessary to
Support a valid Term of PRC
The Trial Court Erred to the Prejudice of the Appellant’s Due
Process Rights by Reimposing PRC where the Original Judgment
Entry, that Was Not Changed, is Not Final as it Sets Forth Two
Life Sentences that are Void and Illegal for the Trial Court Having
Ignored a Mandatory Statutory Sentencing Provision When the
“Attempted Sentences” were “Imposed”; and Setting Forth Two
Undefined “Life” Terms, and Unconstitutional “Bad Time”
In the 2014 appeal we remanded the case solely for the trial court
to properly advise and impose post-release control. Yet Wells is
not only challenging the post-release notification, he is attempting
to challenge his conviction and sentence. We rejected his previous
attempt to do so:
Appellant raises other errors unrelated to his arguments on
postrelease control, but the Ohio Supreme Court has made it very
clear that no other issues may be raised when making a collateral
attack on a sentence based on an error in imposing postrelease
control. [State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238,
942 N.E.2d 332 at ¶ 31]. This is because any other alleged errors
raised by Appellant regarding his sentence could have been raised
in his original appeal and are now res judicata, State v. Wells, 7th
Dist. No. 98–JE–3, 2000 WL 309401 (Mar. 22, 2000).
Wells, 7th Dist. No. 14 JE 5, 2014–Ohio–5504, ¶ 14.
Thus, we will not address any assigned error which is barred by res
judicata. The only issue before us for consideration is whether
Wells’ post-release control notification was proper. In our 2014
opinion we held:
The court’s notice in the sentencing entry correctly states that
Appellant shall be subject to postrelease control by the parole
board, but fails to state that the length of postrelease control shall
be five years. The Supreme Court has determined that the notice
was insufficient without mentioning the length of postrelease
control. State v. Bloomer, 122 Ohio St.3d 200, 2009–Ohio–2462,
909 N.E.2d 1254, ¶ 69. Further, the trial court stated at the
sentencing hearing that postrelease control would be “at least” five
years, rather than exactly five years, unless reduced by the parole
board. (12/24/97 Tr., p. 10.) Appellant cites no cases that find error
with the words “at least” in this context. One court has held that
the use of the phrase “at least” is error but does not rise to
reversible error because it still serves the purpose of putting the
defendant on notice that, at minimum, there will be five years of
postrelease control. State v. Tucker, 8th Dist. No. 95289, 2011–
Ohio1368. Nevertheless, R.C. 2967.28(B) states that there “shall
be” five years of postrelease control rather than “at least” five
years, and as the state has failed entirely to respond in this matter,
use of the phrase “at least” in the context of this appeal is error and
should be corrected on remand.
Wells, 7th Dist. No. 14 JE 5, 2014–Ohio–5504, ¶ 12.
On remand the trial court stated in the judgment entry: “Defendant
was advised that upon completion of his prison term the Defendant
shall be subject to further period of supervision being under Post–
Release Control for a mandatory five (5) year period of supervision
and as the Parole Board may determine pursuant to law.” However
during the hearing, the trial court failed to specifically notify Wells
that the post-release control period was for five years: “Now, upon
completion of your prison term the offender shall be subject to a
further period of supervision being Post–Release Control as the
Parole Board may determine pursuant to law.”
A trial court must inform a defendant of post-release control at
both the sentencing hearing and within the sentencing entry. State
v. Butler, 7th Dist. No. 10 JE 44, 2011–Ohio–6366, ¶ 6, citing
State v. Singleton, 124 Ohio St.3d 173, 2009–Ohio–6434, 920
N.E.2d 958, ¶ 22. As such, this assigned error is meritorious.
In sum, most of the assignments of error alleged by Wells are
barred from consideration by res judicata. However, the trial court
erred with respect to the post-release control notification.
Accordingly, Wells’ convictions and sentences are affirmed.
However, the trial court’s judgment is reversed, and the case
remanded for a limited resentencing hearing for the proper
advisement and imposition of post-release control.
State v. Wells, No. 15 JE 7, 2016 Ohio App. LEXIS 789, *5–7 (Ohio Ct. App. 2016). On May 9,
2016, the appellate court denied Petitioner’s motion for reconsideration as untimely. State v.
Wells, No. 15 JE 0007, 2016 Ohio App. LEXIS 1876 (Ohio Ct. App. 2016). The Supreme Court
of Ohio declined to accept jurisdiction of the appeal. State v. Wells, 146 Ohio St.3d 1470 (Ohio
2016). On January 23, 2017, the United States Supreme Court denied the petition for a writ of
certiorari. Wells v. Ohio, 137 S.Ct. 834 (2016).
On October 26, 2017, Petitioner filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He asserts nine grounds for relief:
1. The Petitioner was denied Due Process and his Jury Trial rights
where the State Trial Court entered judgment of conviction and
imposed sentence where the Jury failed to find, and failed to set
out in their verdicts, every element essential to the conviction and
sentence; and where the Jury Verdict Forms, which matched the
jury instructions, constructively amended and changed the name
and/or nature of the charged offenses, and reduced the State’s
burden of proof by delaying determination of elements essential to
the guilty finding essential to the enhanced offenses from the jury’s
2. The Petitioner was denied Due Process when the State Trial
Court imposed/re-imposed postrelease control (PRC) without a
valid sentence, without a valid judgment of conviction, and
without a valid guilt determination set out in one or more Jury’s
3. The Petitioner was denied due process when the State Trial
Court rendered judgment of conviction and imposed multiple
sentences with a want of jurisdiction over the subject matter of the
sets of facts upon which the jury made their guilt determinations as
shown within the record and set out in the Jury’s verdicts.
4. The Petitioner was denied Due Process where the State Trial
Court refused to hear or properly determine the Petitioner’s
objections and challenges to the void and illegal judgment,
sentences, and re-imposition/correction of PRC that were made
during the resentencing hearings, and where the State Appellate
and Supreme Courts refused to determine the Petitioner’s appeal
on the merits.
5. The Petitioner was denied Due Process, his Jury Trial rights,
and Constitutional Double Jeopardy Protections when the State
Trial Court rendered judgment of conviction and imposed several
sentences for five Counts that charged the same offense repeatedly.
6. The Petitioner was denied Due Process when the State Trial
Court impose[d] two undefined “life” terms.
7. The Petitioner was denied Due Process when the State Trial
Court imposed, then re-imposed, “bad time”, which the Ohio
Supreme Court determined was unconstitutional approximately 15
years before it was reimposed.
8. The Petitioner was denied Due Process when the State Trial
Court sentenced him beyond the maximum terms allowed on the
basis of the facts found by the jury in its verdicts.
9. The Petitioner was denied Due Process where the State Trial
Court ignored statutory mandatory sentencing provisions when
imposing the multiple sentences.
As noted, Petitioner has raised nine assignments of error.
A. Procedural Default
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a writ of
habeas corpus. 28 U.S.C. § 2254(a). 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 prisoner fails to do so, but still has an avenue open to present the claims, then the petition
is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4,
6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a
petitioner has failed to exhaust claims but would find those claims barred if later presented to the
state courts, “there is a procedural default for purposes of federal habeas.”
Thompson, 501 U.S. 722, 735 n.1 (1991).
This Court may sua sponte raise the issue of
procedural default when conducting preliminary review of the habeas corpus petition under Rule
4. See Watkins v. Warden, Dayton Corr. Inst., No. 2:16-cv-00501, 2016 WL 4394138, at *2
(S.D. Ohio Aug. 18, 2016) (“[A]lthough federal courts are not required to raise procedural
default sua sponte, neither are they precluded from doing so.”).
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. As the Supreme Court found 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.”
To determine whether procedural default bars a habeas petitioner’s claim, courts in the
Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);
see also Scuba v. Brigano, 259 F. App’x 713, 718 (6th Cir. 2007) (following the four-part
analysis of Maupin). 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, the court must determine whether the forfeiture is an adequate and independent state
ground on which the state can rely to foreclose review of a federal constitutional claim. Maupin,
785 F.2d at 138. Finally, if “the court determines that a state procedural rule was not complied
with and that the rule [has] an adequate and independent state ground, then the petitioner” may
still obtain review of his or her claims on the merits if the petitioner establishes: (1) cause
sufficient to excuse the default and (2) that he was actually prejudiced by the alleged
constitutional error. Id.
Petitioner has procedurally defaulted the claims he presents for review because res
judicata now bars the claims he failed to bring on direct appeal. The trial court convicted
Petitioner in 1997, and his time to appeal expired long ago. Indeed, the state appellate court
expressly noted that res judicata bars most of the claims Petitioner raises. Wells, 2016 Ohio
App. LEXIS 789 at*7 (“In sum, most of the assignments of error alleged by Wells are barred
from consideration by res judicata.”). Further, Petitioner’s other claims—if brought in state
court now—likewise would be barred. See State v. Perry, 226 N.E.2d 104, 108 (Ohio 1967)
(holding that claims must be raised on direct appeal, if possible, or they will be barred by the
doctrine of res judicata); see also State v. Cole, 443 N.E.2d 169, 171 (Ohio 1982); State v.
Ishmail, 423 N.E.2d 1068, 1070 (Ohio 1981).
Ohio courts have consistently refused, in reliance on the doctrine of res judicata, to
review the merits of procedurally barred claims. See Cole, 443 N.E.2d at 170–71; Ishmail, 423
N.E.2d at 1070. The Sixth Circuit has held that Ohio’s doctrine of res judicata is an independent
and adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 765
(6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); Seymour v. Walker,
224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir. 2000); Norris
v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Finally, with respect to the last Maupin factor,
the independence prong, the Court concludes that Ohio’s doctrine of res judicata in this context
does not rely on or otherwise implicate federal law. Accordingly, the Court is satisfied from its
own review of relevant case law that res judicata rule articulated in Perry is an adequate and
independent ground for denying relief, and the Maupin factors are satisfied.
Petitioner may, however, still secure review of his claims on the merits if he demonstrates
cause for his failure to follow the state procedural rules, as well as actual prejudice from the
constitutional violations that he alleges. “‘[C]ause’ under the cause and prejudice test must be
something external to the petitioner, something that cannot fairly be attributed to him[,] ‘ . . .
some objective factor external to the defense [that] impeded . . . efforts to comply with the
State’s procedural rule.’” Coleman v. Thompson, 501 U.S. 722, 753 (1991) (quoting Murray v.
Carrier, 477 U.S. 478, 488 (1986)). It is Petitioner’s burden to show cause and prejudice.
Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (citing Lucas v. O’Dea, 179 F.3d 412, 418
(6th Cir. 1999) (internal citation omitted)). A petitioner’s pro se status, ignorance of the law, or
ignorance of procedural requirements are insufficient bases to excuse a procedural default.
Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004). Instead, in order to establish cause, a
petitioner “must present a substantial reason that is external to himself and cannot be fairly
attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007). Here, the record does
not show that Petitioner can establish cause for his procedural default.
Petitioner’s claims are procedurally defaulted.
B. Claim Four
Claim four merits a separate discussion. In that claim, Petitioner asserts that the state
court’s refusal to address the merits of his claims as barred under Ohio’s doctrine of res judicata
deprived him of due process. In other words, Petitioner contends that Ohio’s application of the
doctrine of res judicata violates the Constitution. This claim fails to provide a basis for relief.
As discussed, federal courts have routinely and consistently enforced application of Ohio’s
doctrine of res judicata as a basis for a procedural default. “Res judicata bars not only the
relitigation of issues actually litigated but also issues ‘which could have been raised with respect
to that claim.’” Evans v. Franklin County Court of Common Pleas, 184 F. Supp.2d 707, 710
(S.D. Ohio 2001) (citing Westwood Chem. Co., Inc. v. Kulick, 656 F.2d 1224, 1227 (6th Cir.
1981); Brown, 442 U.S. at 131). “A key policy concern of res judicata is the avoidance of
piecemeal litigation.” Id. (citing Westwood Chemical Co., at 1229). Due process does not
require that a criminal defendant be provided more than one opportunity to present his claims to
the state courts. See, e.g., Frazier v. Bobby, No. 3:09-cv-1208, 2011 WL 5086443, at *17–18
(N.D. Ohio Oct. 25, 2011) (Ohio’s application of res judicata in post-conviction proceedings
does not violate due process); Christie v. Milligan, No. 3:11-cv-02049, 2014 WL 1246850, at
*7–8 (N.D. Ohio March 24, 2014) (enforcing application of Ohio’s doctrine of res judicata to
bar review of claims raised after a re-sentencing hearing) (citation omitted). Moreover, habeas
corpus relief under 28 U.S.C. 2254(d)(1) may be granted only where the state courts contravene
or unreasonably apply clearly established federal law of the United States Supreme Court, see
Howes v. Fields, 565 U.S. 499, 505 (2012), and the Supreme Court has never issued such a
For the foregoing reasons, the Magistrate Judge RECOMMENDS that this action be
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 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.
IT IS SO ORDERED.
Date: November 7, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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