Bray v. Warden Lebanon Correctional Institution

Filing 16

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION FOR RELIEF FROM JUDGMENT - The Magistrate Judge concludes the Court was not in error in its judgment in this case and therefore the Motion for Relief from Judgment should be denied. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would not be taken in objective good faith. Objections to R&R due by 3/8/2013. Signed by Magistrate Judge Michael R Merz on 2/19/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

MICAH BRAY,
:
Petitioner,

Case No. 3:12-cv-303
:

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vsWARDEN, Lebanon Correctional
Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION
FOR RELIEF FROM JUDGMENT
This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 14) to
the Magistrate Judge’s Report and Recommendations on Motion for Relief from Judgment (Doc.
No. 11). Judge Black has vacated his adoption of that Report and recommitted the case for
further consideration in light of the Objections (Doc. No. 15).
Bray continues to object to disposition of this case under Rule 4 of the Rules Governing §
2254 Cases, essentially on the ground that the Magistrate Judge has thereby become an advocate
for the State of Ohio. The Magistrate Judge has already provided a response to this argument
and further analysis is not warranted.

Ground One: Insufficient Proof of Tampering with Evidence

In his First Ground for Relief, Bray claims he was convicted on insufficient evidence of

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the crime of tampering with evidence of a crime, in violation of the Due Process Clause of the
Fourteenth Amendment. His claim on direct appeal was that he could not be convicted on the
sole basis that the gun had disappeared from the scene. The court of appeals relied on other facts
as well: a victim eyewitness testified Bray shot him in the parking lot, Bray admitted he took
from the scene two live .38 caliber bullets which had been in the gun before the struggle began,
and Bray was seen in the parking lot carrying a balled-up shirt in both hands. The court of
appeals, applying the correct constitutional standard under Jackson v. Virginia, 443 U.S. 307
(1979), found this evidence was sufficient. Applying the double deference required under
AEDPA, the Magistrate Judge concluded this was not an objectively unreasonable application of
Jackson.
Bray now calls the jury and court of appeals’ conclusion “pure speculation, in the
absence of physical proof or eyewitness testimony.” (Objections, Doc. No. 14, PageID 90.) The
Magistrate Judge disagrees, concluding that removal of the gun by Bray is a reasonable inference
from the facts proved either by his admission or direct or circumstantial evidence.
Bray complains that the Magistrate Judge found that the admitted removal of the bullets
was sufficient for conviction when he says the Indictment charged him with removing the gun.
Not so. Count Nine of the Indictment reads as follows:
That Micah L. Bray, on or about May 30th 2009, in Clark County,
Ohio, knowing that an official proceeding or investigation was in
progress, or was about to be or likely to be instituted, did alter,
destroy, conceal, or remove any thing with purpose to impair its
value or availability as evidence in such proceeding or
investigation in violation of Ohio Revised Code section
2921.12(A)(1).

That language would include both the bullets and the gun.

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Ground Two: Double Jeopardy

In his Second Ground for Relief, Bray claims the State of Ohio violated his rights under
the Double Jeopardy Clause by punishing him separately for entering a liquor establishment with
a firearm and having that same firearm at the same time while under a disability. Initially, the
Magistrate Judge found no violation of the Double Jeopardy Clause because each of these
offenses, as defined in the Ohio Revised Code, has an element not included in the other, thus
making them separate offenses under United States v. Dixon, 509 U.S. 688, 696-97 (1993), citing
Blockburger v. United States, 284 U.S. 299 (1932).
Bray claims that the governing precedent is instead North Carolina v. Pearce, 395 U.S.
711 (1969). Pearce is a case about resentencing after a successful appeal and held that time
already served before reversal had to be credited on resentencing.
We think it is clear that this basic constitutional guarantee is
violated when punishment already exacted for an offense is not
fully "credited" in imposing sentence upon a new conviction for
the same offense. The constitutional violation is flagrantly
apparent in a case involving the imposition of a maximum sentence
after reconviction. Suppose, for example, in a jurisdiction where
the maximum allowable sentence for larceny is 10 years'
imprisonment, a man succeeds in getting his larceny conviction set
aside after serving three years in prison. If, upon reconviction, he is
given a 10-year sentence, then, quite clearly, he will have received
multiple punishments for the same offense. For he will have been
compelled to serve separate prison terms of three years and 10
years, although the maximum single punishment for the offense is
10 years' imprisonment. Though not so dramatically evident, the
same principle obviously holds true whenever punishment already
endured is not fully subtracted from any new sentence imposed.
We hold that the constitutional guarantee against multiple
punishments for the same offense absolutely requires that
punishment already exacted must be fully "credited" [Footnote
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omitted.] in imposing sentence upon a new conviction for the same
offense. If, upon a new trial, the defendant is acquitted, there is no
way the years he spent in prison can be returned to him. But if he is
reconvicted, those years can and must be returned -- by subtracting
them from whatever new sentence is imposed.
395 U.S. at 718-719.

Thus the case is not about multiple punishments for different offenses

committed on the same occasion, but multiple punishments for the same offense imposed both
before and after a successful appeal. Nothing of that sort occurred in this case.

Ground Three: Ineffective Assistance of Counsel

In his Third Ground for Relief, Bray claims he received ineffective assistance of trial
counsel when his attorney advised him to plead no contest to the weapons under disability claim.
Previously the Magistrate Judge analyzed this advice as reasonable, given that the jury would
have learned of the basis for the disability which would have undermined Bray’s credibility with
the jury. Bray now objects:
The untried indictment which forms the basis of the alleged
disability is Clinton County Municipal Court Case Number CRA
0600482. The untried charge, which is still pending, is Attempted
Trafficking in Marijuana.

(Objections, Doc. No. 14, PageID 92.) Attempted Trafficking in Marijuana is a felony under
Ohio law. An indictment for a felony creates a disability for possession of a firearm under Ohio
law whether or not there has been a conviction, so by Bray’s own admission there were sufficient
facts in existence to prove the disability. None of the charges for which he was tried in this case
was drug-related, so it seems likely revelation of the marijuana dealing charge to the jury would
in fact have undermined his credibility.

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Ground Four: Defective Indictment

In his Fourth Ground for Relief, Bray asserts that the indictment was not signed by the
foreperson in every place required by Ohio law. The Ohio court of appeals decided this claim
against Bray and the Magistrate Judge concluded that, because there is no federal constitutional
right to grand jury indictment which applies to the States, this claim was without merit.
In his original Objections Bray asserted that this violation of the Ohio guarantee of grand
jury indictment also violated the Due Process Clause of the Fourteenth Amendment.

The

authority he cited, Erwin v. Warden, 2010 WL 1257900 (S.D. Ohio Jan. 12, 2010)(Merz, M.J.),
is in fact directly to the contrary. (Report, Doc. No. 11, PageID 80.)
Bray now says he relies on “Supreme Court precedence in Ponce, which outlines four
separate constitutional violations which occur due to a defective indictment, one of which is Due
Process.”

(Objections, Doc. No. 14, PageID 93.)

The case in question, United States v.

Resendiz-Ponce, 549 U.S. 102 (2007), involved a federal, not a state, indictment. Even with
respect to federal indictments, the case made no finding about a due process requirement for
signature.

Ground Five: Change in the Law

In his Fifth Ground for Relief, Bray claims that while his case was pending on appeal,
Ohio changed the law and began to permit carrying a weapon inside a liquor permit premises, an
offense for which he was convicted and sentenced. The Report concluded that the legislature had

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not and was not constitutionally required to make this new law retroactive, so as to require the
release of those convicted before the new law was passed (Report, Doc. No. 4, PageID 42). No
further analysis is needed on this claim.

Ground Six: Erroneous Evidentiary Rulings in Sentencing

In his Sixth Ground for Relief, Petitioner asserts the trial court made findings of fact
contrary to what the jury had decided. The Report concluded this claim was without merit
because the court of appeals found the sentences imposed were within the limits provided by law
for the offenses of conviction. (Report, Doc. No. 4, PageID 42-43.) No further analysis is
needed on this claim.

Conclusion

Based on the foregoing analysis, the Magistrate Judge concludes the Court was not in
error in its judgment in this case and therefore the Motion for Relief from Judgment should be
denied. Because reasonable jurists would not disagree with this conclusion, Petitioner should be
denied a certificate of appealability and the Court should certify to the Sixth Circuit that any
appeal would not be taken in objective good faith.

February 19, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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