White v. Warden, Madison Correctional Institution

Filing 12

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the court exercise jurisdiction over this case, concluding that such exercise is not barred by 28 U.S.C. § 2244(b). It is further recommended that the Petition be dismissed with pr ejudice. 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 and therefore sho uld not be permitted to proceed in forma pauperis. Objections to R&R due by 8/7/2015. Signed by Magistrate Judge Michael R. Merz on 7/21/2015. (kpf)(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
WESTERN DIVISION AT DAYTON
GREGORY G. WHITE,
Petitioner,

:

- vs -

Case No. 3:15-cv-092
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

RHONDA RICHARDS, Warden,
Madison Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Gregory White under 28 U.S.C.
§ 2254. White pleads three grounds for relief:
Ground One:
Amendment.

Due Process violation in violation of 14th

Supporting Facts: Even though Petitioner served current ten (10)
year sentence in full in case number 04-CR-574 which ended June
30, 2014, Respondent continues to maintain custody of Petitioner
presumably for parole violation though no final parole revocation
hearing has been ordered or held.
Ground Two: Denial of due process – speedy trial rights.
Supporting Facts: Respondent assessed Petitioner a three (3)
year continuance on June 6, 2014 presumably for a parole violation
which in effect was a delayed final revocation hearing which
occurred more than nine (9) years after parole violator warrant was
executed in violation of Morrissey v. Brewer; Black Romano;
Pollard v. United States, 352 U.S. 354 (1957); Barker v. Wingo,
(1972), 407 U.S. 514 and Ohio Revised Code 2967.15(B).

1

Ground Three: Denial of Due Process and Equal Protection
under 14th Amendment where Respondent violated separation of
Powers Doctrine.
Supporting Facts: Although by operation of State law (O.R.C.
2929.41(A)) Petitioner's old and new sentences were to be served
concurrently with each other, Respondent re-opened trial court's
judgment by causing multiple sentences to be served consecutively
with each other without legal authority to do so.
(Petition, Doc. No. 1.)

Procedural History

The Return of Writ recites the history of White’s convictions and sentences, a history he
does not dispute in the Traverse. In 1969 White was convicted of armed robbery and sentenced
to an indefinite term of ten to twenty-five years, from which he was paroled on May 4, 1979
(Return, Doc. No. 10, PageID 238).1 In 1979, he was convicted again of aggravated robbery2
and sentenced to an indefinite term of seven to twenty-five years consecutive to the 1969
sentence. He served ten years before being released on parole from this term of imprisonment in
1989. Undeterred by nearly twenty years of imprisonment, White committed a new aggravated
robbery in 1989 and was sentenced to fifteen to twenty-five years (along with three years on a
firearm specification and eighteen months for having weapons under disability), again
consecutive to his prior sentences. He was paroled December 1, 2003. Id.

1

When any document is filed with this Court, the Court’s electronic filing system affixes a unique Page
Identification Number in the upper right hand corner of every page. The attention of the parties is directed to this
Magistrate Judge’s Standing Order of May 8, 2014, which provides in pertinent part “All references to the record in
this Court must be to the filed document by title, docket number, and PageID reference. (E.g., Defendant’s Motion
to Dismiss, Doc. No. 27, PageID ___.)” The large majority of cases before this Magistrate Judge are habeas corpus
cases with large state court records and correct citation to the record is critical to judicial economy. Therefore,
nonconforming filings will be stricken.
2

In 1974 the Ohio criminal law was re-codified and “armed robbery” became “aggravated robbery.”

2

In December 2004 White pled guilty to another charge of aggravated robbery and a
charge of robbery for which he received an agreed sentence of ten years consecutive to the prior
sentences. That ten-year term expired July 16, 2014. Id.
The Warden pleads that the cause of White’s present imprisonment is the revocation of
his parole in 2005. Id. at PageID 239. The Warden concedes that White would have been
entitled to a mitigation hearing in 2005 under the consent decree in Kellogg v. Shoemaker, 927 F.
Supp. 244 (S.D. Ohio 1996), but White waived the hearing.
In 2007 White sought relief in this Court from the 2004 conviction. White v. Brunsman,
Case No. 3:07-cv-26. This Court ultimately denied relief and White did not appeal. White v.
Brunsman, 2010 U.S. Dist. LEXIS 114102 (S.D. Ohio Oct. 27, 2010).
Regarding his continued incarceration after expiration of his 2004 sentence, White filed a
mandamus action in the Ohio Court of Appeals November 16, 2010, and a state habeas petition
in the Court of Appeals on January 11, 2013, both unsuccessful on procedural grounds.
On May 27, 2014, shortly before expiration of his 2004 sentence, White received a parole
hearing after which the Parole Board continued his incarceration for at least an additional three
years and set a next review date for May 1, 2017. Contending that the May 2014 hearing was in
fact a final parole revocation hearing, White unsuccessfully sought habeas corpus relief from the
Ohio Supreme Court.
It is the May 27, 2014, Parole Board decision that White attacks in this case.

3

Analysis

Second or Successive Petition

The Warden argues that this is a second or successive habeas corpus petition by White on
which this Court cannot act, but which it must transfer to the Sixth Circuit for consideration of
certification under 28 U.S.C. § 2244(b).
District courts do not have jurisdiction to consider second or successive habeas petitions
on their merits. Burton v. Stewart, 549 U.S. 147 (2007). On the other hand, the district court
must decide in the first instance whether a petition is second or successive and cannot pass that
decision to the court of appeals. In re: Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May
25, 2012); In re: Kenneth W. Smith, 690 F.3d 809 (6th Cir. 2012).
White’s prior habeas case was decided on the merits as the Warden asserts. However,
White correctly rejoins that the prior case concerned his 2004 conviction and this case does not.
Under those circumstances, this Court’s consideration is not barred by § 2244(b). Magwood v.
Patterson, 561 U.S. 320 (2010).

Procedural Default

The Warden asserts that White’s Grounds One and Three are barred by his procedural
defaults in presenting them to the Ohio courts.

4

The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a
federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright,
433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S.
391 (1963). Coleman, 501 U.S. at 724.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.
2001).
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.
....
5

Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
As the Warden notes, both White’s mandamus state habeas corpus actions were
dismissed for failure to comply with mandatory state procedural rules set forth in statutes at Ohio
Revised Code § 2969.25 and 2725.04(D). State courts certainly have an adequate interest in
enforcing reasonable procedural rules, particularly when they have been enacted by the
legislature. White has not offered any excusing cause and prejudice under Maupin’s fourth
prong, Therefore Grounds One and Three should be dismissed with prejudice as procedurally
defaulted.3

Cognizability

The Warden asserts that Ground Three is not cognizable in federal habeas corpus
(Return, Doc. No. 10, PageID 248-49).

3

White reads the Warden’s Return as asserting that all three of this claims are barred by procedural default
(Traverse, Doc. No, 11, PageID 258). However, the Warden actually raises that defense only as to Grounds One and
Three (Return, Doc. No. 10, PageID 254).

6

Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is
not the province of a federal habeas court to reexamine state court determinations on state law
questions.

In conducting habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68 (1991).
In his Third Ground for Relief, White asserts that by operation of Ohio Revised Code §
2929.41(A), his old and new sentences are required to be served concurrently. He claims that
when the Parole Board determined the sentences were to be served consecutively, it violated the
Separation of Powers Doctrine, in that it is part of the executive branch of Ohio government and
questions of consecutive versus concurrent sentencing are require to be made by General
Assembly or the courts.
There is no separation of powers doctrine imposed on the States by the United States
Constitution. White seems to concede that this is a question of Ohio law because he asserts this
Court can consider it under the pendent jurisdiction doctrine of United Mine Workers v. Gibbs,
383 U.S. 715 (1966).4 Repeated holdings by the Supreme Court that habeas courts cannot grant
relief for errors of state law negates application of supplemental jurisdiction in these cases.
White’s Third Ground for Relief, whether considered as a claim for interpretation of Ohio
Revised Code § 2929.41(A) or a separation of powers claim under the Ohio Constitution or a
claim that the federal constitution requires separation of powers within the States is not
cognizable in habeas corpus and should therefore be dismissed.

4

White cites this case as Gibbs v. United Auto Workers, thus awarding one of George Meany’s great victories to
Walter Reuther. Pendent jurisdiction is now codified as supplemental jurisdiction in 28 U.S.C. § 1367.

7

Merits Analysis

Ground One: Failure to Hold a Final Parole Revocation Hearing

In his First Ground for Relief, White asserts he was denied a final parole revocation
hearing to which he was constitutionally entitled. The record filed by Respondent shows that
White was screened for his eligibility for a Kellogg hearing, found to be eligible, and waived that
hearing on April 22, 2015 (State Court Record, Doc. No. 9, Ex. 20, PageID 191). Prior to that on
March 8, 2005 the parole board hearing officer recommended that his parole be revoked. Id. at
PageID 193. Because the parole hearing officer had no discretion regarding revocation upon
White’s conviction for a new felony offense, the record reflects that parole was revoked and
White was advised “You will be schedule for a parole release consideration hearing upon
completion of your new sentence, unless you have reached your maximum expiration date.” Id.
That is what happened here. As White approached the conclusion of his 2004 sentence,
the Parole Board held a “release consideration hearing” and determined not to release White on
parole at least until after another hearing May 1, 2017.
White argues his “final parole revocation hearing did not become final until the Ohio
Adult Parole Authority imposed the three (3) year sanction on May 27, 2014.” (Traverse, Doc.
No. 11, PageID 259.) As authority, White relies on Klopp v. Wolfe, 8 Fed. Appx. 444 (6th Cir.
2001), but that case supports the Warden’s position. The Sixth Circuit held:
Under Ohio Admin. Code § 5120:1-1-18(B), a parole revocation
becomes final when a hearing officer for the Ohio Adult Parole
Authority determines that the defendant violated the conditions of
his release and, therefore, the revocation sanction should be
imposed. In Klopp's case, it is undisputed that the hearing officer
revoked his parole on June 24, 1998. While Klopp argues that a
8

post-revocation hearing held in November 1998 actually
represented the final decision concerning his parole, Klopp
provides no evidence concerning this hearing's subject matter, and
Ohio law clearly provides that his parole revocation became final
at the time of the June 1998 decision.
Id. at 446. White was entitled to a hearing under Kellogg in 2005, but waived that hearing.
White’s claim that he was entitled to a final parole revocation hearing in 2014 because no
sanction was imposed in 2005 is belied by the Klopp decision: the sanction of parole revocation
was imposed in 2005.
The 2014 hearing was not a revocation hearing, but a release consideration hearing.
There is no liberty interest in parole unless created by mandatory language in the state statute
creating the parole system. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987); Greenholtz v.
Nebraska Penal Inmates, 442 U.S. 1 (1979). Ohio Revised Code § 2967.03, which vests
discretion in the Adult Parole Authority to grant a parole, does not create an expectancy of parole
or a constitutional liberty interest sufficient to establish a right to procedural due process. State,
ex rel Adkins, v. Capots, 46 Ohio St. 3d 187, 188 (1989); State, ex rel Blake, v Shoemaker, 4
Ohio St. 3d 42 (1983).

Ground Two: Denial of Speedy Revocation Hearing

The analysis with respect to Ground One is also dispositive as to Ground Two. White’s
revocation occurred in 2005 after he waived the only hearing to which he was entitled, a
mitigation hearing under Kellogg. Because the hearing that occurred in May 2014 was not a
final revocation n hearing, White’s right to a speedy hearing on revocation was not denied.

9

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the court exercise
jurisdiction over this case, concluding that such exercise is not barred by 28 U.S.C. § 2244(b). It
is further recommended that the Petition 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
and therefore should not be permitted to proceed in forma pauperis.

July 20, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

10