Champion v. Warden, London Correctional Institution

Filing 2

REPORT AND RECOMMENDATIONS - Champion's Amended Petition is untimely by more than eleven years. It should therefore be dismissed with prejudice. 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 be objectively frivolous. Objections to R&R due by 10/10/2013. Signed by Magistrate Judge Michael R Merz on 9/23/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BRUCE R. CHAMPION,
Petitioner,

:

- vs -

Case No. 3:13-cv-315
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

DEB TIMMERMAN-COOPER,
Warden, London Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is brought pro se by Petitioner Bruce R. Champion to obtain
relief from his conviction and consequent sentence in the Montgomery County Common Pleas
Court in that court’s Case No. 1997-CR-1509. The case is before the Court for initial1 review
under Rule 4 of the Rules Governing § 2254 Cases which provides in pertinent part: “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the petition and direct the clerk to notify the
petitioner.”
Champion pleads the following Grounds for Relief:
GROUND FOR RELIEF ONE: Petitioner contest that the
offenses imposed are contrary to law and violates the United States
Constitution by being placed twice in jeopardy for the same act
and receiving multiple punishments thereafter.

1

Champion has filed what he styles as an “Amended Habeas Petition,” but the Magistrate Judge can find no prior
habeas corpus petition filed by him under this or any other case number.

1

SUPPORTING FACTS: Petitioner[sic] sentence resulted in
having multiple convictions for same conduct. It also violated State
and Federal Constitutional Rights against Double Jeopardy and
Allied Offenses, which lead being sentenced to an additional 10
years that was not authorized by law. The sentence is clearly
against the General Assembly's Intent, Legislative Intent, and
against constitutional rights. In Johnson, they were very clear to
admit that R.C. 2941.15 in [sic] now clarified, and if that is true
than [sic] when the Ohio Supreme Court made the ruling in
Johnson, they were only clarifying an existing rule that would
make that retroactive in nature because no Constitutional Rule was
disturbed. It is clear that when a Constitutional Rule is not
disturbed or charge, and an existing rule is only clarified than [sic]
it would be retroactive.
GROUND FOR RELIEF TWO: The Trial Court erred when it
failed to review the sentence error according to the Plain Error
Analysis.
SUPPORTING FACTS: The Trial Court failed to apply the Plain
Error Doctrine when it clearly exist [sic] to function as an avenue
to review Double Jeopardy Claims. Once Allied Offenses of
similar import exist, Allied Offenses Constitutes Plain Error and
must be reviewed under the doctrine accordingly.
GROUND FOR RELIEF THREE: The Petitioner was placed
twice in jeopardy was sentenced for allied offenses of similar
import, which implicates being placed twice in Jeopardy for the
same offense.
SUPPORTING FACTS: The Trial [court] Failed to recognize
Aggravated Robbery and Kidnapping are Allied Offenses of
similar import pursuant to R.C. 2941.25 in the Petitioner's case and
it clearly was the duty of the trial court to correct this sentencing
error. Petitioner is sentence in contrary to law by having more
convictions than authorized by law, and in this particular case the
Petitioner was sentenced to an additional 10 years, which is
contrary to law and are not authorized by law.
GROUND FOR RELIEF FOUR: The Petitioner was entitled to a
evidentiary hearing on a Petition for Post-Conviction Relief when
a Co-Defendant and the complainant conspire to implicate the
Petitioner and when the Co-Defendant recants his implication in a
Sworn Affidavit.

2

SUPPORTING FACTS: Lloyd Jackson didn't testify at
Petitioner's trial, and the parties stipulated that Jackson would
assert his Fifth Amendment privilege if called. The State was then
allowed to introduce evidence of Jackson's statements to police
implicating Petitioner.
In the affidavits that were presented in support of Champion's
petition, Jackson states that he lied to police when he implicated
Champion, acting out of fear that if he didn't he would suffer the
death penalty upon conviction. Jackson also states: "I should have
said something earlier but Mr. Levinson (the prosecuting attorney)
didn't allow me in court." Jackson further states that Beverly
Williams, a victim who did testify for the State, cooperated with
him by giving false evidence implicating Petitioner.
The statements that Lloyd Jackson made in his affidavits, to the
effect that Petitioner was "framed" by the false statements that
Jackson made to police and the false evidence that Beverly
Williams gave at trial, was material to Petitioner's guilt of the
offenses with which he was charged. It was also, to the extent that
it demonstrates that Petitioner was not involved in those offenses,
most favorable to the state to get the convictions.
Finally, Jackson made it clear to the prosecuting attorney that
Petitioner was unaware of the existence of the affidavit, but
Jackson was going to make Petitioner and his counsel aware at
some point in the future that he was recanting his statement.
Thereafter, once Petitioner received the information he acted
diligently to procure his legal remedy by filing the post-conviction,
which was the appropriate legal avenue to show evidence outside
of the record.
GROUND FOR RELIEF FIVE: The State Court Erred in
Admitting a Statement of Petitioner's Co-Defendant in Violation of
Petitioner's Constitutional Right to Confrontation.
SUPPORTING FACTS: The state court precluded Petitioner
from cross-examine Jackson's statement during trial to prevent
Petitioner from verify the authenticity of the statement made to
officials. Jackson statement was clearly induce by indicting he
would receive the death penalty if he did not implicate Petitioner in
the offenses committed. Moreover, Jackson wanted to testify at
trial, to which, his testimony became a necessity to the entire trial
court proceeding. In the present case, at least during trial, the only
circumstance surrounding the making of the statement that was
shown was that Jackson was under arrest, and had received a rights
3

explanation "routine." The Court was aware, however, by virtue of
the State's February 4, 1998 notice, that other circumstances
surrounding the statement included an attempt by Jackson to shift
the blame to Petitioner.
Cross-examination of Jackson was vital for purpose of determining
whether he even made the admission, and, if so, under what
circumstance. The manner in which Jackson alleged admission was
presented to the jury deprived Petitioner of his constitutional right
to confront and cross-examine Jackson. As a result, the extreme
prejudice action by the received a conviction on 4 counts out of the
five count indictment.
(Amended Petition, Doc. No. 1, PageID 5-7.)

Procedural History

Champion was convicted in Montgomery County Common Pleas case No. 97-CR-1509
of one count of aggravated burglary, two counts of kidnapping, and two counts of aggravated
robbery, all with firearm specifications. He appealed, claiming violation of his Confrontation
Clause rights by admission of the statement of a co-perpetrator, and violation of his rights to
merger of allied offenses of similar import under Ohio Revised Code § 2941.25, but the court of
appeals affirmed the convictions. State v. Champion, Case No. C.A. 17176, 1999 Ohio App.
LEXIS 841 (2nd Dist. Mar. 5, 1999). Champion does not claim and the Lexis database does not
show any further appeal to the Ohio Supreme Court.
Champion filed a petition for post-conviction relief under Ohio Revised Code § 2953.21,
supported by affidavits of co-perpetrator Lloyd Jackson who swore that:
he lied to police when he implicated Champion, acting out of fear
that if he didn’t he would suffer the death penalty2 upon
conviction. Jackson also states: "I should have said something
earlier but Mr. Levinson (the prosecuting attorney) didn't allow me
2

Champion and Jackson were indicted for aggravated murder; Champion was acquitted on that count.

4

in court." Jackson further states that Beverly Williams, a victim
who did testify for the State, cooperated with him by giving false
evidence implicating Champion.
State v. Champion, Case No. C.A. 18394, 2001 Ohio App. LEXIS 219, *2 (2nd Dist. Jan. 26,
2001). The trial court dismissed the petition on the State’s motion for summary judgment.
Champion appealed raising three assignments of error:
FIRST ASSIGNMENT OF ERROR
IT WAS AN ABUSE OF DISCRETION AND PREJUDICIAL
ERROR FOR THE TRIAL COURT TO TREAT THE STATE'S
MOTION FOR SUMMARY JUDGMENT AS A MOTION TO
DISMISS AND GRANT SUCH JUDGMENT [*3]
IN
VIOLATION OF APPELLANT'S ABSOLUTE RIGHT TO
PROCEDURAL DUE PROCESS OF LAW.
SECOND ASSIGNMENT OF ERROR
IT WAS AN ABUSE OF DISCRETION AND PREJUDICIAL
ERROR FOR THE TRIAL COURT TO GRANT THE
RESPONDENT-APPELLEE A SUMMARY JUDGMENT WHEN
GENUINE ISSUE OF MATERIAL FACT REMAINED IN THE
CASE AND THE JUDGMENT WAS NOT BASED UPON
DOCUMENTARY EVIDENCE SUBMITTED BY THE STATE
OF OHIO THEREBY MANIFESTING THAT JUDGMENT WAS
NOT WARRANTED BY LAW.
THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT'S ENTRY OF DISMISSAL DEPRIVED
APPELLANT OF HIS ABSOLUTE RIGHT TO PROCEDURAL
DUE PROCESS OF LAW WHERE THERE ARE
INSUFFICIENT FINDING OF FACT AND CONCLUSIONS OF
LAW TO SUPPORT THE SUMMARY DISMISSAL.
Id. at *3, 6.

The court of appeals affirmed the dismissal. Id. The Ohio Supreme Court then

declined further review. State v. Champion, 92 Ohio St. 3d 1412 (2001).
On May 27, 2011, Champion filed in the Common Pleas Court a motion for resentencing
under the Ohio Supreme Court’s decision in State v. Johnson, 128 Ohio St. 3d 153 (2010). That
5

court declined relief and Champion appealed, raising three assignments of error:
[*P2] Champion advances three assignments of error on appeal.
First, he contends the trial court erred in refusing to address the
merits of his allied-offense argument and an argument about plain
error. Second, he claims the trial court erred in failing to apply the
plain-error doctrine. Third, he asserts that the trial court erred in
failing to recognize that aggravated robbery and kidnapping are
allied offenses of similar import.

State v. Champion, Case No. 24782, 2012 Ohio 2537, 2012 Ohio App. LEXIS 2237 (June 6,
2012). The court of appeals affirmed. Id. The Ohio Supreme Court again declined review.
State v. Champion, 133 Ohio St. 3d 1424 (2012). Champion then filed the instant habeas corpus
petition.

Analysis

The Statute of Limitations

28 U.S.C. § 2244, enacted as part of the Antiterrorism and Effective Death Penalty Act of
1996, provides a one-year statute of limitations for habeas corpus petitions filed under 28 U.S.C.
§ 2254, that is, by state prisoners seeking federal review of their state imprisonment. 28 U.S.C.
§2244 (d) provides:
(1) A 1-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;

6

(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.
A district court may dismiss a habeas petition sua sponte on limitations grounds when
conducting an initial review under Rule 4 of the Rules Governing § 2254 Cases. Day v.
McDonough, 547 U.S. 198 (2006)(upholding sua sponte raising of defense even after answer
which did not raise it); Scott v. Collins, 286 F.3d 923 (6th Cir. 2002).
For a state prisoner who does not seek review in a State’s highest court, the conviction
becomes final on the last day when such review could have been sought. Gonzalez v. Thaler,
565 U.S. ___, 132 S. Ct. 641, 653 (2012). Under Ohio law, an appeal to the Ohio Supreme
Court must be filed not later than the forty-fifth day after the court of appeals judgment. The
Second District’s judgment on direct appeal was entered March 5, 1999. Therefore the judgment
became final April 19, 1999.
The statute of limitations is tolled during the pendency of any properly filed collateral
attack on the judgment. The docket of the Montgomery County Common Pleas Court in this
case shows that Champion’s post-conviction petition was filed November 16, 1998.3 Since that
3

Available at www.clerk.co.montgomery.os.us/pro, visited September 21, 2013.

7

is before the judgment became final, it served to toll the statute until the Ohio Supreme Court
declined review on June 6, 2001. The statute began to run on that date and expired June 6, 2002.
Champion did not file the instant petition until September 20, 2013, more than eleven years later.
Champion asserts that he complies with § 2244(d) because it was “necessary to exhaust
all available State remedies that I have been able to discover.” (Amended Petition, Doc. No. 1,
PageID 8.) Since the Ohio Supreme Court’s denial of review on his motion for resentencing did
not occur until October, 2012, he may believe his petition is timely because it was filed within
one year of that decision.
It is true that if the Common Pleas Court had reopened the judgment and resentenced
Champion, the statute of limitations would have begun to run again from the October, 2012,
decision of the Ohio Supreme Court. If a conviction is affirmed but the sentence is vacated and
the person is re-sentenced, the statute of limitations runs from finality of the new sentence.
Burton v. Stewart, 549 U.S. 147 (2007); Rashad v. Lafler, 675 F.3d 564 (6th Cir. 2012).
However, that did not happen here. Rather, the trial court refused to re-sentence and the court of
appeals affirmed that decision.
Champion’s Amended Petition is untimely by more than eleven years. It should therefore
be dismissed with prejudice. 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 be objectively frivolous.

September 23, 2013.
s/ Michael R. Merz
United States Magistrate Judge

8

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).

9