Sullivan v. Warden, Madison Correctional Institution

Filing 2

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Montie Sullivan. The Magistrate Judge RECOMMENDS that this action be DISMISSED. Objections to R&R due by 11/22/2017. Signed by Magistrate Judge Chelsey M. Vascura on 11/8/2017. (kpt)(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
MONTIE SULLIVAN,
CASE NO. 2:17-CV-974
JUDGE ALGENON L. MARBLEY
Magistrate Judge Chelsey M. Vascura

Petitioner,
v.
RHONDA RICHARD, WARDEN,
MADISON CORRECTIONAL INSTITUTION,
Respondent.

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 convictions pursuant to his no contest pleas in the Franklin
County Court of Common Pleas on aggravated burglary, burglary, and attempted aggravated
burglary. On January 21, 2016, the appellate court affirmed the judgment of the trial court.
State v. Sullivan, No. 15AP-809, 2016 WL 300175 (Ohio App. 10th Dist. Jan. 21, 2016). On
May 18, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v.
Sullivan, 145 Ohio St.3d 1472 (Ohio 2016). On October 31, 2016, the United States Supreme
Court denied the petition for a writ of certiorari. Sullivan v. Ohio, 137 S.Ct. 395 (2016).
On October 26, 2017, Petitioner executed this habeas corpus petition. He asserts that his
convictions violate the Fourth Amendment because police obtained evidence via warrantless

GPS searches, and the state courts unconstitutionally applied the good faith exception to the
exclusionary rule. However, as a general matter, the Fourth Amendment does not provide a
basis for federal habeas corpus relief, so long as the petitioner had an opportunity to present the
claim to the state courts. Stone v. Powell, 428 U.S. 465, 482 (1976); Riley v. Gray, 674 F.2d
522, 526 (6th Cir. 1982) (opportunity for full and fair litigation of a Fourth Amendment claim
exists where the state procedural mechanism presents an opportunity to raise the claim, and
presentation of the claim was not frustrated by a failure of that mechanism).
One, the key purpose of federal habeas corpus is to free innocent
prisoners. But whether an investigation violated the Fourth
Amendment has no bearing on whether the defendant is guilty.
[Stone v. Powell], at 490, 96 S.Ct. 3037. Two, exclusion is a
prudential deterrent prescribed by the courts, not a personal right
guaranteed by the Constitution. Any deterrence produced by an
additional layer of habeas review is small, but the cost of undoing
final convictions is great. Id. at 493, 96 S.Ct. 3037.
Good v. Berghuis, 729 F.3d 636, 637 (6th Cir. 2013). Such plainly appear to be the
circumstances here. See State v. Sullivan, 2016 WL 300175, at *1.1

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The state appellate court rejected Petitioner’s claims, indicating:
This case has an extended history with different courts reaching different results as to the question
of whether Sullivan's motion to suppress evidence should have been granted. The trial court
initially sustained the motion to suppress evidence based upon the decision of the United States
Supreme Court in United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945 (2012). A panel of this
appellate court affirmed the ruling of the trial court, but the Supreme Court of Ohio in turn
reversed our decision in State v. Sullivan, 141 Ohio St.3d 1419, 2014–Ohio–5567.
The Supreme Court of Ohio did not direct the trial court to overrule the motion to suppress, but
remanded the case to the trial court to apply its ruling in State v. Johnson, 141 Ohio St.3d 136,
2014–Ohio–5021. In Johnson, the Supreme Court of Ohio ruled that the good-faith exception to
the exclusionary rule crafted by the United States Supreme Court in other Fourth Amendment
situations should apply to searches which are based on GPS searches conducted before Jones was
decided.
We are not in a position to overrule the Supreme Court of Ohio. Thus, we must follow Johnson
until such time as the Supreme Court of Ohio reverses itself or until the Supreme Court of the
United States decides that Johnson was wrongly decided.
As a result, we must overrule the sole assignment of error and affirm the ruling of the trial court.
We do so rule.

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Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
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.

/s/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

State v. Sullivan, 2016 WL 300175, at *1

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