McBroom v. Warden Madison Correctional Institution

Filing 11

REPORT AND RECOMMENDATIONS - It is respectfully recommended that Respondent's Motion to Dismiss be GRANTED and the Petition herein DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, the Court should al so deny any requested certificate of appealability and certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 4/4/2017. Signed by Magistrate Judge Michael R. Merz on 3/21/2017. (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
LEONARD McBROOM,
Petitioner,

:

- vs -

Case No. 3:16-cv-514
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

RHONDA R. RICHARD, WARDEN,
Madison Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus action under 28 U.S.C. § 2254 is before the Court on Respondent’s
Motion to Dismiss on grounds the Petition is barred by the statute of limitations (ECF No. 8).
Petitioner opposes the Motion (ECF No. 10).

Procedural History

The procedural history is recited in the Motion to Dismiss as follows:
In 1989, McBroom was convicted of four counts of robbery and
four counts of aggravated robbery with firearm specifications. The
Montgomery County Court of Common Pleas imposed a total
prison term of 3 years for the firearm specification plus an
indefinite prison term of 27-40 years. (Doc. #7, SCR, Exhibits 1-3,
Case No. 89-CR-268, PAGEID #: 50-52.)
Also, in 1989, McBroom was convicted of one count of robbery.
The Greene County Court of Common Pleas sentenced McBroom
to an indefinite term of 3-15 years in prison, to run concurrently
with the sentences imposed in Montgomery County Case Number
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89-CR-268. (Doc. #7, SCR, Exhibit 4, Case No. 89-CR-156,
PAGEID #: 53.)
McBroom was released on parole on May 1, 2001. (Doc. #7, SCR,
Exhibit 5, PAGEID #: 55.)
On August 13, 2002, McBroom was convicted of one count of
robbery. The Montgomery County Court of Common Pleas
sentenced McBroom to a 5-year term of imprisonment. (Doc. #7,
SCR, Exhibit 6, Case No. 2001 CR 03082, PAGEID #: 57.)
McBroom was released on parole on June 1, 2007. (Doc. #7, SCR,
Exhibit 7, PAGEID #: 59.)
On October 22, 2008, McBroom pled guilty to and was convicted
of one count of robbery. The Montgomery County Court of
Common Pleas sentenced McBroom to 2 years of imprisonment.
(Doc. #7, SCR, Exhibit 8, Case No. 2008 CR 01771, PAGEID #:
63.)
Less than one month later, on November 18, 2008, McBroom
waived his right to a Kellogg mitigation hearing. (Doc. #7, SCR,
Exhibit 9, PAGEID #: 65.) On January 7, 2009, McBroom was
declared a parole violator, his parole was revoked, and he was
notified that he would be scheduled for parole release
consideration upon completion of his new 2-year sentence. (Doc.
#7, SCR, Exhibit 10, PAGEID #: 66.)
McBroom went before the parole board for a release consideration
hearing on March 12, 2010. The parole board recommended a
parole on or about date of December 1, 2010 with actual release
subject to an approved placement plan. (Doc. #7, SCR, Exhibit 11,
PAGEID #: 67.)
On January 21, 2011, the parole board issued a Stop Release to
allow the board to consider additional information. (Doc. #7, SCR,
Exhibit 12, PAGEID #: 70.) At a rescind and rehear hearing on
March 10, 2011, the parole board voted to continue McBroom to
March 1, 2012. (Doc. #7, SCR, Exhibit 13, PAGEID #: 72.)
At a Central Office Board Review hearing on February 28, 2012,
COBR found that McBroom was not suitable for release and voted
to continue McBroom to May 1, 2014. (Doc. #7, SCR, Exhibit 14,
PAGEID #: 73.)

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At a hearing on March 19, 2014, the parole board found that
McBroom was not suitable for release and voted to continue
McBroom to March 1, 2016. (Doc. #7, SCR, Exhibit 15, PAGEID
#: 74.)
.
At a COBR hearing on January 26, 2016, COBR found that release
would not further the interests of justice and voted to continue
McBroom to January 2, 2018. (Doc. #7, SCR, Exhibit 16, PAGEID
#: 75.)
On September 6, 2016, McBroom, pro se, filed a petition for relief
in mandamus the Supreme Court of Ohio. In his petition,
McBroom sought an order to compel the Ohio Parole Board to
reinstate his status as a parolee under O.R.C § 2967.15(B).
McBroom argued that the parole revocation process in 2008 was
not finalized because no sanction was imposed for the parole
violation. (Doc. #7, SCR, Exhibit 19, PAGEID #: 103.) The
respondent filed an answer. (Doc. #7, SCR, Exhibit 20, PAGEID
#: 127.) On November 23, 2016, the Supreme Court of Ohio
dismissed McBroom’s petition pursuant to S.Ct. Prac.R. 12.04.
(Doc. #7, SCR, Exhibit 21, Case No. 2016-1320, PAGEID #: 132.)
(Motion, ECF No. 8, PageID 147-49).
As adopted by the Antiterrorism and Effective Death Penalty Act of 1996, 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;
(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
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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.

As Respondent argues, the standard time period for calculating the habeas corpus statute
of limitations is one year from the date the conviction complained of became final. McBroom’s
latest conviction occurred when he pleaded guilty to one count of robbery and was sentenced on
October 26, 2008. Since no appeal was taken, the statute began to run on the last date an appeal
could have been taken (November 25, 2008) and expired, absent some tolling event or later start
date, one year later on November 25, 2009. Giving McBroom the benefit of the prison mailbox
rule, his Petition is deemed filed in this Court when he mailed it, December 16, 2016.
However, McBroom’s Petition does not attack that October 2008 conviction, but rather
the Parole Authority’s delay in “not finalizing revocation process within [a] reasonable time
period as mandated by Ohio Revised Code § 2967.15(B) and Morrissey v. Brewer [408 U.S. 471
(1972)]” (Petition, ECF No. 3, PageID 29). In his Response to the Motion, McBroom makes it
clear that he is attacking the “subject-matter jurisdiction of the Ohio Adult Parole Authority to
continue to incarcerate him.” (ECF No. 10, PageID 161). Because he raised that claim in a
mandamus action before the Ohio Supreme Court which did not deny him relief until November
23, 2016, he reasons that his petition is timely because brought within one year of that decision.
Id.
McBroom argues by analogy to Magwood v. Patterson, 561 U.S. 320 (2010). In that case
the United States Supreme Court held that a second-in-time habeas corpus application, made

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after a habeas petitioner was re-sentenced, was not a second-or-successive habeas application
requiring prior permission from the circuit court of appeals to proceed under 28 U.S.C. §
2244(b). Because it is judgments that are attacked in habeas, rather than initial convictions,
Magwood’s second-in-time petition attacking his second judgment of conviction did not require
circuit court permission. Although this is a different question from the statute of limitations,
Magwood’s time to file would have run from the second judgment.
It is not clear to this Court whether McBroom pursued the appropriate remedy in the
Ohio courts. In Ohio, mandamus is available to compel Adult Parole Authority to do nondiscretionary duties, e.g., under Morrissey v. Brewer, 408 U.S. 471 (1972), citing State ex rel.
Atkins v. Denton, 63 Ohio St. 2d 192 (1980); State ex rel. Jackson v. Denton, 5 Ohio St. 3d 179
(1983); State ex rel. Ferguson v. Ohio Adult Parole Authority, 45 Ohio St. 3d 355 (1989). On
the other hand habeas corpus in the Ohio courts is available to test a parole action when it results
in person's being confined after jurisdiction over him has expired. Brewer v. Dahlberg, 942 F.2d
328 (6th Cir. 1991), citing In re Anderson, 55 Ohio App. 2d 199 (Cuyahoga Cty. 1978). Habeas
corpus rather than mandamus is the appropriate action for persons claiming entitlement to
immediate release from prison. State ex rel Lemmon v. Ohio Adult Parole Auth., 78 Ohio St. 3d
186, 188 (1997); State ex rel Pirman v. Money, 69 Ohio St. 3d 591, 594 (1994). Mandamus is
also available to review claims of denial of due process by the Adult Parole Authority. State, ex
rel. Coulverson, v. Ohio Adult Parole Authority, 62 Ohio St. 3d 12 (1991).
The Court will assume for purposes of this case that mandamus was a proper remedy to
attempt on McBroom’s claim of lack of jurisdiction of the Parole Authority to continue to
confine. The problem from the perspective of the instant Motion to Dismiss is that McBroom
waited far too long to file that mandamus action. Under 28 U.S.C. § 2244(d)((2), a properly filed

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state court remedial action will toll the federal statute of limitations, but will not re-start it.
Searcy v. Carter, 246 F.3d 515 (6th Cir. 2001).
McBroom asserts he is not attacking the 2008 judgment of the Common Pleas Court, but
the “intervening action of the Ohio Parole Authority which terminated on December 23, 2016.”
(ECF No. 10, PageID 161-62). He does not tell the Court what it is that the Parole Authority did
on December 23, 2016, seven days after he filed his habeas petition in this Court.
As the Court understands McBroom’s theory, it is that the Adult Parole Authority lost
jurisdiction to continue to confine him when it failed to impose a sanction within a “reasonable
time” after his parole revocation hearing. McBroom does not make a claim as to what that
reasonable time would have been. He admits his parole was revoked on January 7, 2009, but
asserts no sanction was imposed until March 10, 2010, after he had served most of the 2008
sentence (Response, ECF No. 10, PageID 163). If that were a valid constitutional claim, then it
certainly arose no later than March 10, 2010. McBroom provides no explanation of why he
waited more than six years to seek mandamus relief from the Ohio courts. While mandamus or
state habeas corpus is certainly a remedy he would have been expected to exhaust before coming
to federal court, his failure to seek that relief in a timely fashion makes his federal petition
untimely.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that Respondent’s
Motion to Dismiss be GRANTED and the Petition herein DISMISSED WITH PREJUDICE.
Because reasonable jurists would not disagree with this conclusion, the Court should also deny

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any requested certificate of appealability and certify to the Sixth Circuit that any appeal would be
objectively frivolous and should not be permitted to proceed in forma pauperis.

March 21, 2017.
s/ Michael R. Merz
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 mail. .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).

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