Brigner v. Warden, Chillicothe Correctional Institution

Filing 5

REPORT AND RECOMMENDATION: ECF 3 Report and Recommendation is WITHDRAWN. Magistrate Judge RECOMMENDS dismissing 1 Petition for Writ of Habeas Corpus. Objections to R&R due by 3/12/2018. Signed by Magistrate Judge Kimberly A. Jolson on 2/26/2018. (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
EASTERN DIVISION
ALAN D. BRIGNER,
CASE NO. 2:17-CV-1045
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson

Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254.

(Doc. 1).

As an initial matter, the Court issued a Report and

Recommendation on January 16, 2018, recommending that this action be dismissed for want of
prosecution as a result of Petitioner’s failure to pay the filing fee or file a proper motion to
proceed in forma pauperis. (Doc. 3). However, it was later discovered that the filing fee was
actually received by the Clerk’s Office on December 14, 2017, but inadvertently not placed on
the docket until January 25, 2018. Accordingly, the Court’s January 16, 2018 Report and
Recommendation is hereby WITHDRAWN.
Turning to Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Court (“Rule 4”), this Court must conduct a preliminary review to determine whether “it
plainly appears from the face of the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court . . . .” Rule 4. If it does so appear, the petition must be
dismissed. Id. Rule 4 allows for the dismissal of petitions which raise legally frivolous claims,
as well as petitions that contain factual allegations that are palpably incredible or false. Carson
v. Burke, 178 F.3d 434, 436–37 (6th Cir. 1999). Here, for the reasons that follow, it plainly

appears from the face of the petition that Petitioner is not entitled to relief, and the undersigned
RECOMMENDS that this action be DISMISSED.
I.

FACTS AND PROCEDURAL HISTORY
The Court of Appeals for Ohio’s Fourth District summarized the facts and procedural

history of this case as follows:
The Athens County Grand Jury returned an indictment charging Brigner with six
counts of rape. The parties entered into a plea agreement, which the trial court
accepted, whereby Brigner pleaded guilty to three counts of rape in return for the
dismissal of the remaining three rape counts. After the trial court sentenced
Brigner to an aggregate 20-year prison term, he appealed. We reversed and
remanded the cause for further proceedings because the trial court failed to
substantially comply with Crim.R. 11(C)(2)(a), which invalidated his guilty plea.
State v. Brigner, 4th Dist. Athens No. 14CA19, 2015–Ohio–2526.
On remand Brigner again pleaded guilty to three rape charges in exchange for the
dismissal of the remaining three rape charges; the trial court accepted his guilty
plea. In June 2016, the trial court sentenced Brigner separately on each rape
conviction, for an aggregate 12-year prison term. No evidence in the record exists
of any argument by the parties or finding by the trial court addressing the issue of
merger of the rape counts. This time Brigner did not appeal his convictions and
sentence.
In December 2016, almost six months after the trial court sentenced him, Brigner
filed a pro se motion to correct his sentence. Brigner claimed that because they
are allied offenses of similar import, the trial court erred by denying his motion to
merge his rape offenses. The trial court denied Brigner’s motion citing res
judicata as barring his sentencing claim.
II. ASSIGNMENT OF ERROR
Brigner assigns the following error for our review:
THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN FAILING TO
MERGE ALL COUNTS.
State v. Brigner, 4th Dist. No. 17CA3, ¶ 3–6, 2017 WL 2774659, at *1 (Ohio Ct. App. June 9,
2017). On June 9, 2017, the Ohio Court of Appeals affirmed the judgment of the trial court,
finding that Petitioner was barred by res judicata from raising his allied-offenses claim in a post2

conviction motion to correct his sentence when he could have raised that claim in a timely direct
appeal. Id. at *2. Petitioner appealed that determination to the Ohio Supreme Court, but it
declined to exercise jurisdiction. State v. Brigner, No. 2017-0879, 2017-Ohio-8136, 150 Ohio
St.3d 1454 (Ohio Sup. Ct. Oct. 11, 2017). Petitioner subsequently filed this habeas action on
December 1, 2017. (Doc. 1).
II.

DISCUSSION
In this action, Petitioner raises two grounds for relief.

The undersigned finds that

Petitioner is not entitled to relief on either ground and that dismissal pursuant to Rule 4 is proper.
A.

Petitioner’s Double Jeopardy Claim (Ground Two) is Procedurally Defaulted

Petitioner argues that his conviction violates the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution because “[d]espite actual innocence, the state court
charged [him] for multiple counts that did not take place.” (Doc. 1, PAGEID #: 7). The
undersigned concludes that this claim has been procedurally defaulted.
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 them barred if later presented to the state

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courts, “there is a procedural default for purposes of federal habeas.” Coleman v. 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 described in Maupin v. Smith. 785 F.2d 135, 138 (6th

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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 upon 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.
Applying the Maupin test, the undersigned concludes that Petitioner has procedurally
defaulted his double jeopardy claim. Ohio’s general rule is that claims must be raised on direct
appeal if possible or they will be barred by res judicata in subsequent state proceedings. See
State v. Perry, 10 Ohio St. 2d 175, 180, 226 N.E. 2d 104 (1967); see also Buell v. Mitchell, 274
F.3d 337, 348–49 (6th Cir. 2001). Ohio also has a specific rule regarding allied offense claims—
when an Ohio trial court finds that convictions are not allied offenses, or makes no findings
about whether offenses are allied, a claim that the offenses are allied and should have been
merged for sentencing must be made in a direct appeal or the claim will be barred by res
judicata. State v. Williams, 148 Ohio St.3d 403, 409, 71 N.E. 3d 234, 240 (Ohio 2016). The
Ohio courts applied these rules in Petitioner’s case—Petitioner did not file a timely direct appeal
and instead filed a “motion to correct” his sentence approximately six months after he was
convicted. Petitioner apparently argued that the rape charges against him were allied charges

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and that the trial court’s failure to merge them violated the Double Jeopardy clause. See
Memorandum in Support of Jurisdiction, No. 17 CA 00023, 2017 WL 2843591, at *3. The trial
court determined that those claims could have been presented in a timely direct appeal, and thus
they were barred by res judicata. Brigner, 2017 WL 2774659, at *2. The Ohio appellate court
explicitly affirmed that determination, also citing Ohio’s general res judicata rule. Id. The Ohio
appellate court further acknowledged Ohio’s specific rule that allied offense claims will be
barred by res judicata if they are not raised on direct appeal when, as was the case here, a trial
court is silent about whether offenses are allied or not. Id. (citing Williams, 148 Ohio St. 3d at
409).
Ohio courts consistently rely on res judicata to refuse review of procedurally barred
claims, including allied offense claims. See, e.g., State v. Szefcyk, 77 Ohio St. 3d 93, 95–96, 671
N.E. 2d 233 (Ohio 1996); State v. Cole, 2 Ohio St. 3d 112, 113, 443 N.E.2d 169, 171 (Ohio
1982); State v. Ishmail, 67 Ohio St. 16, 19, 423 N.E.2d 1068, 1070 (Ohio 1981); State v. Fayne,
8th Dist. No. 105641, 2017-Ohio-8889, ¶9, 2017 WL 6055038, at *2 (Ohio Ct. App. Dec. 7,
2017); State v. Alston, 9th Dist. No. 17CA011146, ¶5–6, 2017 WL 5588449, at *1 (Ohio Ct.
App. Nov. 20, 2017); State v. Florence, 2nd Dist. No. 27478, ¶14, 2018 WL 679429, at *4 (Ohio
Ct. App. Feb. 2, 2018). Moreover, the Sixth Circuit has held that Ohio’s doctrine of res judicata
is an independent and adequate state 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 Maupin’s independence prong, the Court concludes that in this context, Ohio’s
doctrine of res judicata does not rely on or otherwise implicate federal law. Accordingly, after a

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review of the relevant case law, the undersigned concludes that the state actually enforced its res
judicata rules against Petitioner; res judicata is an adequate and independent ground for denying
relief; and that the first three Maupin factors are satisfied.
Under the fourth Maupin factor, Petitioner may nevertheless secure review of his claims
on the merits if he demonstrates cause for his failure to follow 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). In this case,
however, Petitioner does not allege a cause for failing to raise his claim on direct appeal.
Because Petitioner cannot make a showing of cause, the Court need not address the issue of
prejudice. See Smith v. Murray, 477 U.S. 527, 533, 106 S.Ct. 2661, 2666 (1986).
There is a narrow exception to the “cause and prejudice” requirement. In order to avoid a
“fundamental miscarriage of justice” a petitioner’s claims may be heard on the merits when a
constitutional violation has “probably resulted” in the conviction of someone who is “actually
innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 1852

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(2004) (citing Murray, 477 U.S. at 496); see also Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct.
851, 867 (1995). To establish a credible claim of actual innocence that can excuse a procedural
default, a petitioner must “support his allegations of constitutional error with new reliable
evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence— that was not presented at trial.” Schlup, 513 U.S. at 324; see also
Souter v. Jones, 395 F.3d 577, 589–90 (6th Cir. 2005) (applying Shulp). Here, again, Petitioner
does not allege the existence of new evidence. He merely states that “despite” his actual
innocence, he was charged with multiple counts. This is not enough to overcome procedural
default. Consequently, the undersigned finds that Petitioner’s claims are procedurally defaulted
and that Petitioner has not alleged cause for the default or a credible claim of actual innocence
that would excuse the default. The undersigned notes that Petitioner will have an opportunity to
respond to the issue of procedural default by filing objections. See Watkins, 2016 WL 4934138,
at * 2.
B.

Petitioner’s Restitution Related Claim (Ground One) Is Not Cognizable

Petitioner also claims that the “financial sanctions” in his sentence violate the Due
Process Clause of the Fourteenth Amendment. Specifically, Petitioner asserts that “[d]espite the
controlling language of the legislature, the lower court did not follow the governing statutes prior
to imposing financial sanctions or not imposing sentence.” (Doc. 1, at PAGEID #: 5). The
public docket for the Court of Common Pleas in Athens County, Ohio, reveals that as part of his
sentence, Petitioner was ordered to pay restitution in the amount of $6,545.62 and court costs.
(State of Ohio v. Alan Brigner, No. 12CR057, Athens County Court of Common Pleas, Docket
Sheet). Petitioner did not directly appeal the imposition of restitution. (Id.) Instead, Petitioner
filed an unsuccessful motion to vacate that portion of his sentence, followed by an unsuccessful

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appeal, an unsuccessful motion to reconsider, and an unsuccessful application with the Ohio
Supreme Court after the trial court denied the motion to vacate. (Id.; see also State of Ohio v.
Brigner, No. 16CA25 Court of Appeals for Athens County, Docket Sheet).
Regardless of procedural posture, the undersigned finds that this claim is not cognizable.
Subject matter jurisdiction exists under § 2254 “‘only for claims that a person is ‘in custody in
violation of the Constitution or laws or treaties of the United States.’”

Washington v.

McQuiggin, 529 F. App’x 766, 772–73 (6th Cir. July 11, 2013 ) (quoting Dickerson v. United
States, 530 U.S. 428, 439 n. 3, 120 S.Ct. 2326 (2000); 28 U.S.C. § 2254(a)). “In general, fines or
restitution orders fall outside the scope of the federal habeas statute because they do not satisfy
the ‘in custody’ requirement of a cognizable habeas claim.” Washington, 529 F. App’x at 773
(finding that §2254 does not confer subject matter jurisdiction over claim challenging imposition
of court-appointed counsel’s fees; fines are not tantamount to custody); Mitchell v. Woods,
No.17-1013, 2017 WL 6820127, at * 3 (6th Cir. June 26, 2017) (finding that a restitution claim
was not amenable to habeas relief under § 2254; the statute only addresses custody); see also
United States v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995) (finding that 28 U.S.C. § 2255 cannot
be used to challenge the imposition of costs of imprisonment and supervised release; monetary
fines are not a sufficient restraint on liberty to meet the custody requirement). Moreover, a court
does not obtain jurisdiction over a challenge to a restitution order simply because a petitioner is
in custody at the time he files a claim. Washington, 529 F. App’x at 773. Accordingly, the
undersigned finds that this claim should be dismissed for lack of subject matter jurisdiction.
III.

RECOMMENDED DISPOSITION
For the foregoing reasons, the undersigned RECOMMENDS that this action be

DISMISSED.

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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).
IT IS SO ORDERED.
Date: February 26, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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