Watkins v. Warden, Madison Correctional Institution

Filing 3

REPORT AND RECOMMENDATION: Magistrate Judge RECOMMENDS dismissing 1 Petition for Writ of Habeas Corpus. Objections to R&R due by 7/10/2018. Signed by Magistrate Judge Kimberly A. Jolson on 6/26/2018. (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
RYAN WATKINS,
Case No. 2:18-cv-590
Judge Michael H. Watson
Magistrate Judge Kimberly A. Jolson

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

REPORT AND RECOMMENDATION
This is an action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. Petitioner
seeks release from confinement imposed pursuant to a state-court judgment in a criminal action.
This case has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and Columbus
General Order 14-1 regarding assignments and references to United States Magistrate Judges.
This matter is before the Court on its own motion under Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts (“Rule 4”). Pursuant to Rule 4, the Court
conducts 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. . . .” if it does so
appear, the petition must be dismissed.

Id.

For the reasons that follow, these are the

circumstances here.
I.

FACTS AND PROCEDURAL HISTORY
Petitioner challenges his October 19, 2001, convictions after a jury trial in the Franklin

County Court of Common Pleas on murder, aggravated robbery, felonious assault, and having a
weapon while under disability, with firearm specifications.

On September 26, 2002, the

appellate court affirmed the judgment of the trial court. State v. Watkins, 10th Dist. No. 01AP-

1376, 2002 WL 31123872 (Ohio Ct. App. Sept. 26, 2002). Petitioner did not file a timely
appeal, and on November 19, 2003, the Ohio Supreme Court denied his motion for a delayed
appeal. State v. Watkins, No. 2003-1719, 2003-Ohio-5992, 100 Ohio St.3d 1483 (Ohio Sup. Ct.
Nov. 19, 2003).
On October 16, 2003, Petitioner filed his first federal habeas corpus Petition. He asserted
(as he does here) that the trial court’s failure to instruct the jury on the essential element of theft
and aggravated robbery denied him due process, and that he was denied the effective assistance
of trial counsel based on his attorney’s failure to object to errors in the jury instructions. Watkins
v. Hurley, Case No. 2:03-cv-941.

However, on October 26, 2004, the Court issued final

Judgment dismissing that action as procedurally defaulted. Id.
Subsequently, in 2015, Petitioner filed a motion for re-sentencing in the state trial court
based on the trial court’s failure to properly notify him of post-release control at his sentencing
hearing. The trial court denied the motion, but on March 1, 2016, the state appellate court
reversed that decision, and remanded the case to the trial court for a “limited resentencing to
properly impose post-release control.” State v. Watkins, 10th Dist. No. 15AP-694, 2016 WL
817003, at *2 (Ohio Ct. App. March 1, 2016).
{¶ 3} On remand, the trial court held a resentencing hearing and properly notified
appellant of post-release control. At the hearing, appellant argued that certain of
his convictions should merge for purposes of sentencing. The trial court
concluded that in light of this court’s limited remand, the only issue it could
address at the resentencing hearing was appellant’s post-release control
notification. Therefore, the trial court did not consider appellant’s merger
argument.
State v. Watkins, 10th Dist. No. 16AP-581, 2017 WL 1162426, at *1 (Ohio Ct. App. March 14,
2017). On March 14, 2017, the appellate court affirmed the judgment of the trial court. Id. On

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July 26, 2017, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v.
Watkins, No. 2017-0535, 2017-Ohio-6964, 150 Ohio St.3d 1411 (Ohio Sup. Ct. July 26, 2017).
On June 14, 2018, Petitioner filed this pro se Petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. He asserts, as he did previously, that he was denied due process and the
right to the effective assistance of counsel because the trial court failed to define theft in its jury
instruction on aggravated robbery, and trial counsel failed to object. 1
II.

SUCCESSIVE PETITIONS
As discussed, this is not Petitioner’s first federal habeas corpus Petition. This Court

therefore must first address whether the action is subject to transfer to the Sixth Circuit for
authorization for filing as successive.
Before a second or successive petition for a writ of habeas corpus can be filed in a district
court, a petitioner must ask the appropriate circuit court of appeals to authorize the district
court’s consideration of the application. 28 U.S.C. § 2244(b)(3)(A). If a district court in the
Sixth Circuit determines that a petition is a second or successive petition, see In re Smith, 690
F.3d 809 (6th Cir. 2012), the district court must transfer the petition to the United States Court of
Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir.
1997). The Sixth Circuit, in turn, will authorize the filing of a second petition only if the
petitioner establishes either that the claim sought to be asserted relies on a new rule of
constitutional law made retroactive by the United States Supreme Court to cases on collateral
review; or if the factual predicate for the claim could not have been discovered previously
through the exercise of diligence, and these facts, if proven, would establish by clear and
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Petitioner has attached to his Petition a motion for reconsideration under Rule 60(b)(6) of the Federal Rules of
Civil Procedure, in which he argues that this action should not be dismissed as successive or untimely. (Doc. 1-3,
PAGEID # 18-24). As discussed infra, this Court agrees. However, the Court will not address these arguments
under Rule 60(b) because this action involves a new habeas corpus Petition filed under a separate case number from
Petitioner’s prior habeas corpus Petition.

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convincing evidence that, but for the constitutional error, no reasonable fact finder would have
found the applicant guilty. Id.
However, in certain “limited circumstances, a § 2254 petition is not considered ‘second
or successive’ within the meaning of § 2244(b) even though the petitioner filed a previous
habeas application.” Storey v. Vasbinder, 657 F.3d 372, 376 (6th Cir. 2011).
For example, a habeas petition is not considered “second or successive” under
§ 2244(b) when the claim has been raised in a prior petition, but dismissed as
unripe, although other claims in the initial petition were decided on the merits.
Stewart v. Martinez-Villareal, 523 U.S. 637, 643–46, 118 S.Ct. 1618, 140 L.Ed.2d
849 (1998). Even if the claim was not presented in an earlier petition, a
subsequent petition raising the claim does not constitute a “successive” petition
for purposes of § 2244(b) if the claim would have been dismissed as unripe in the
initial petition. Panetti, 551 U.S. at 945, 127 S.Ct. 2842. Nor do the successive
petition restrictions apply if the first petition was dismissed for lack of exhaustion.
Slack, 529 U.S. at 478, 487, 120 S.Ct. 1595. The restrictions also do not apply if
an intervening state court judgment (such as a resentencing) occurred after the
first habeas petition was decided. Magwood, 561 U.S. at 335, 339, 130 S.Ct.
2788; King v. Morgan, 807 F.3d 154, 157 (6th Cir. 2015).
In re Campbell, 874 F.3d 454, 459 (6th Cir. 2017).
As discussed, the Supreme Court has held that a habeas corpus petition is not successive
where it is filed after the trial court conducts a re-sentencing hearing that results in the issuance
of a new judgment. Magwood, 561 U.S. at 331–39 (2010). In Magwood, the petitioner had
originally filed a § 2254 petition challenging his 1981 death sentence. “[T]he District Court
upheld Magwood’s conviction but vacated his sentence and conditionally granted the writ based
on the trial court’s failure to find statutory mitigating circumstances relating to Magwood’s
mental state.”

Id. at 326 (footnote omitted).

The state trial court thereafter held a new

sentencing hearing, again imposing death sentence. Id. Magwood filed a second petition under
28 U.S.C. § 2254, in which he alleged that he had not received fair notice that he could be
sentenced to death and that he had been denied the effective assistance of counsel during the re-

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sentencing hearing. Id. at 328. Noting that the later sentencing hearing had resulted in a new
judgment, the Supreme Court held that Magwood’s second habeas corpus petition did not
constitute a successive petition. Id. at 331.
Similarly, in In re Stansell, 828 F.3d 412 (6th Cir. 2016), the Sixth Circuit held that, even
where a sentence has been vacated only partially (because it did not include a term of postrelease control) and the state trial court re-sentenced the Petitioner for the limited purpose of
imposing that term, that action resulted in a new or intervening judgment that permitted Stansell
to raise challenges to his original conviction and his original sentence to a term of incarceration,
as well as to his new term of post-release control. Id. at 416. “Final judgment in a criminal case
means sentence. The sentence is the judgment.” Id. (quoting Berman v. United States, 302 U.S.
211, 212 (1937); Burton v. Stewart, 549 U.S. 147, 156 (2007)). The Court noted that
[b]efore his resentencing, the judgment that kept Stansell “in custody” was a term
of imprisonment ranging from twenty years to life. After his resentencing, the
judgment that kept Stansell “in custody” was a term of imprisonment ranging
from twenty years to life plus five years of post-release control. See Jones, 371
U.S. at 238–43, 83 S.Ct. 373. Because a new custodial sentence means a new
judgment for purposes of § 2254, Stansell’s partial resentencing restarted the
second or successive count.
Id. at 416–17. “When 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.’ 28 U.S.C.
§ 2254(a), (b)(1). That means it has created a new judgment for purposes of the second or
successive assessment.” Id. at 417. Under such circumstances, a petitioner’s numerically second
petition does not constitute a successive petition within the meaning of 28 U.S.C. § 2244(b).
Such are the circumstances here, and this Petition is not successive.

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III.

STATUTE OF LIMITATIONS
The Court next addresses whether the one-year statute of limitations bars review of

Petitioner’s claims. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
which became effective on April 24, 1996, provides for a one-year statute of limitations on the
filing of habeas corpus actions. 28 U.S.C. § 2244(d)(1) provides:
(d) (1) A one-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 post-conviction 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.

28 U.S.C. § 2244(d)(1),(2). The time bar may be overcome if a petitioner is able to make a
credible showing of actual innocence. See Tyler v. Ray, 610 F. App’x 445, 452-53 (6th Cir.
2015); Schulup v. Delo, 513 U.S. 298, 317 (1995).
Additionally, even where a § 2254 petition is statutorily time-barred, equitable tolling
may save an otherwise untimely petition. The one-year statute of limitations is not jurisdictional
and is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010); Perkins v.
McQuiggin, 670 F.3d 665, 670 (6th Cir. 2012). Whether the statute of limitations should be
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equitably tolled depends upon whether a petitioner shows: (1) that he has been diligent in
pursuing his rights; and (2) that an extraordinary circumstance prevented him from filing within
the prescribed time. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The petitioner bears the
burden of showing that he is entitled to equitable tolling. Id.
However, where the trial court re-sentences the petitioner, the new sentence “not only
permits a challenge to either the new sentence or the undisturbed conviction, but also restarts the
AEDPA’s one-year window to challenge that judgment.” Crangle v. Kelly, 838 F.3d 673, 678
(6th Cir. 2016). This Court has applied Crangle to a trial court’s limited re-sentencing made to
advise the petitioner of the terms of post-release control. See McKinney v. Warden, Warren
Corr. Inst., No. 2:14-cv-1992, 2017 WL 2336009, at *10–11 (S.D. Ohio May 30, 2017); Norris
v. Bunting, No. 2:15-cv-764, 2017 WL 749200, at *7–8 (S.D. Ohio Feb. 27, 2017); see also
Brown v. Harris, No. 3:17-cv-080, 2018 WL 1069986, at *4 (S.D. Ohio Feb. 27, 2018) (The
“Court should not second-guess the Sixth Circuit’s decision in Crangle by limiting it to postrelease control corrections that impose a ‘worse-than-before’ sentence.”)
Therefore, this action is timely and not subject to dismissal under the provision of 28
U.S.C. § 2244(d). 2
IV.

PROCEDURAL DEFAULT
Petitioner has procedurally defaulted both of the claims he now presents for relief.

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On July 26, 2017, the Ohio Supreme Court declined to accept jurisdiction of Petitioner’s re-sentencing appeal.
State v. Watkins, 150 Ohio St.3d at 1411. His judgment of conviction therefore became final under the provision of
28 U.S.C. § 2244(d)(1)(A) in October 2017, when the time period expired to file a petition for a writ of certiorari to
the United States Supreme Court. See Jackson v. Bradshaw, No. 1:16-cv-1852, 2017 WL 3475517, at *8 (N.D.
Ohio June 22, 2017) (citing Lawrence v. Florida, 549 U.S. 327, 333 (2007)). The statute of limitations expired one
year later, in October 2018. On June 14, 2018, Petitioner filed the Petition.

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A. Standard
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
must first present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If
he fails to do so but still has an avenue open to him by which he may present his claims, then his
petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless,
459 U.S. 4, 6, 103 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)).
However, where a petitioner has failed to exhaust his claims but would find those claims barred
if later presented to the state courts, “there is a procedural default for purposes of federal
habeas[.]” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term “procedural default” describes 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 such that the State has not had 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. One aspect 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. See
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (“The federal courts do not have
jurisdiction to consider a claim in a habeas petition that was not “fairly presented” to the state
courts.”) (citing Franklin v. Rose, 811 F.2d 322, 324–25 (6th Cir. 1987) ). In the Sixth Circuit, a
petitioner can satisfy the fair presentment requirement in any one of four ways: (1) reliance upon

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federal cases employing constitutional analysis; (2) reliance upon state cases employing federal
constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms
sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts
well within the mainstream of constitutional law. Id. A claim is considered “fairly presented”
only if the petitioner asserted both the factual and legal basis for his claim to the state courts. Id.
If a petitioner fails to fairly present his claims through the requisite of levels of state appellate
review to the state’s highest court and no avenue of relief remains open, or if it would otherwise
be futile for a petitioner to continue to pursue his claims in the state courts, the claims are subject
to dismissal with prejudice as procedurally defaulted. See O’Sullivan v. Boerckel, 526 U.S. 838,
847–48 (1999).
A petitioner can overcome procedural default by showing (1) there was cause for him not
to follow the procedural rule and that he was actually prejudiced by the alleged constitutional
error or (2) a fundamental miscarriage of justice would result from a bar on federal habeas
review. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also Hodges v. Colson, 727
F.3d 517, 530 (6th Cir. 2013) (holding that if a claim is procedurally defaulted, it must not be
considered unless “review is needed to prevent a fundamental miscarriage of justice, such as
when the petitioner submits new evidence showing that a constitutional violation has probably
resulted in a conviction of one who is actually innocent”) (citing Murray v. Carrier, 477 U.S.
478, 495–96 (1986)). Of note, the “cause and prejudice” analysis applies to failures to raise or
preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94, 97–99 (6th Cir.
1985).

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B. Application
Petitioner asserts that he was denied a fair trial based on the issuance of improper jury
instructions, and that he was denied the effective assistance of counsel due to his attorney’s
failure to object. Petitioner raised both of the foregoing claims on direct appeal; however, he did
not file a timely appeal of the appellate court’s decision denying his claims, and the Ohio
Supreme Court denied his motion for a delayed appeal. As discussed in this Court’s dismissal of
Petitioner’s prior § 2254 action, Petitioner has thereby procedurally defaulted his claims. See
Johnson v. Turner, No. 2:14-cv-01908, 2016 WL 6963177, at *3 (S.D. Ohio Nov. 29, 2016)
(citing Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004); Womack v. Konteh, No. 3:06-cv157, 2008 WL 123867, at *2 (N.D. Ohio Jan. 10, 2008)). Moreover, this Court has previously
concluded that Petitioner cannot establish either cause for this procedural default, or that he is
actually innocent so as to permit review of his procedurally defaulted claims. See Watkins v.
Hurley, Case No. 2:03-cv-00941.
V.

RECOMMENDED DISPOSITION
For the foregoing reasons, the Undersigned 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

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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.

Date: June 26, 2018

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

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