Brown v. Warden, Warren Correctional Institution

Filing 41

SUBSTITUTED REPORT AND RECOMMENDATIONS- The Magistrate Judge again recommends that Petitioner be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore shou ld not be permitted to proceed in forma pauperis. Objections to R&R due by 4/19/2018. Signed by Magistrate Judge Michael R. Merz on 4/5/2018. (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
JEFFREY ANTONIO BROWN,
Petitioner,

:

- vs -

Case No. 3:17-cv-080
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

CHAE HARRIS, Warden,
Warren Correctional Institution,
:
Respondent.

SUBSTITUTED REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner
Brown’s Objections (ECF No. 38) to the Magistrate Judge’s Second Supplemental Report and
Recommendations (ECF No. 34). Judge Rose has recommitted the case for reconsideration in
light of the Objections (ECF No. 39).

For the reader’s convenience, all Magistrate Judge

analysis and recommendations will be combined in this Substituted Report so that prior Reports
need not be separately consulted.

Procedural History

This case arises out of incidents that occurred at the Dayton Motor Hotel on May 15-16,
2005. In September 2005, the Montgomery County Grand Jury reindicted Brown on one count
of aggravated robbery with a firearm specification, two counts of felonious assault with firearm
1

specifications, one count of having weapon while under disability, one count of tampering with
evidence, one count of kidnapping with a firearm specification, and one count of aggravated
burglary with a firearm specification. (State Court Record, ECF No. 13, PageID 541.) At a jury
trial in February 2006, Brown was convicted of both counts of felonious assault, aggravated
burglary with the firearm specification, having weapons under disability, and tampering with
evidence. Id. at PageID 556. After motions for new trial and acquittal were denied, Judge John
Kessler, to whom the case was then assigned, sentenced Brown to a total of nineteen years of
imprisonment.
Brown appealed to the Second District Court of Appeals which affirmed. State v. Brown,
No. 21540, 2007-Ohio-2098, 2007 Ohio App. LEXIS 1954 (2nd Dist. Apr. 27, 2007), appellate
jurisdiction declined, 115 Ohio St. 3d 1421 (2007).
In August 2007, Brown filed an application to reopen his direct appeal under Ohio R.
App. P. 26(B) to raise a claim of ineffective assistance of appellate counsel based on the
omission of seven assignments of error. The Second District denied the application as untimely
and the Ohio Supreme Court denied review (State Court Record ECF No. 13, PageID 755-56;
804).
Several months later Brown filed a delayed petition for post-conviction relief under Ohio
Revised Code § 2953.21. By this time Judge Kessler had retired and been replaced by Judge
Mary Wiseman. She denied the post-conviction petition February 7, 2008 (Decision, State Court
Record ECF No. 13, PageID 870-73). The Second District affirmed the denial and the Ohio
Supreme Court again denied review. Id. at PageID 929-33, 969.
On December 22, 2008, Brown filed a Petition for Writ of Habeas Corpus in this Court, raising
fifteen grounds for relief. Brown v. Brunsman, Case No. 3:08-cv-477 (“Brown I”). District

2

Judge Timothy Black dismissed the Petition and denied a certificate of appealability in May
2012 (Brown I, ECF No. 78). The Sixth Circuit Court of Appeals also denied a certificate of
appealability near the end of 2012, terminating the first habeas case.
From that point forward, Brown raised a number of claims in different ways generally
addressing asserted deficiencies in the Common Pleas Court’s judgment entry. The history of
these efforts, all of which were made pro se, is detailed in the Return of Writ (ECF No. 14,
PageID 2953-62). Only one of these efforts bore any fruit favorable to Brown’s position: on
appeal from denial of Brown’s May 3, 2012, Motion to Vacate Void Judgment, the Second
District held Judge Kessler had erred in failing to advise Brown orally of the five-year term of
post-release control to which he would be subject when he completed his term of imprisonment.
State v. Brown, No. 25653 (2nd Dist. Jun 13, 2014)(ECF No. 13, PageID 1567-78.) The case was
remanded so that the oral advice could be given. Id. at PageID 1578. On July 11, 2014, Judge
Wiseman gave Brown the required oral advice (Memorialized at State Court Record, ECF No.
13-3, PageID 2033-35). She also entered an Amended Termination Entry with the five-year
PRC term in it. Id. at PageID 2029-32. Although Brown appealed, the Second District affirmed
and the Ohio Supreme Court again denied review (State Court Record, ECF No. 13-3, PageID
2111-20, 2207).
Brown filed this, his second habeas corpus application, on March 9, 2017 (ECF No. 4).
He pleads the following twenty-one grounds for relief:
Ground One: Sixth and Fourteenth Amendment Violation to a
Speedy Trial and Speedy Sentencing.
Supporting Facts: Petitioner was arrested on July 11, 2005.
Petitioner was indicted on August 9, 2005. Petitioner plead [sic]
“not guilty” at a preliminary hearing. Petitioner Filed a motion to
dismiss for speedy trial violation on December 9, 2005, however,

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the court denied the motion. Petitioners’ [sic] trial was not
complete until officially convicted and sentenced on July 11, 2014.
Ground Two: Petitioner was denied access to the Court in
violation of the First and Fourteenth Amendment.
Supporting Facts: Petitioner signed a cash slip for postage and
deposited said cash slip and Notice of Appeal into the institutional
mail system, however, said notice of appeal did not make it to the
court in a timely fashion. Once Petitioner placed the mail in the
mail system it was out of his hands. Nevertheless, Petitioner lost
his right to appeal the trial court’s decision and entry.
Ground Three: Petitioner was denied his rights to the Clauses of
Due Process and Equal Protection when Petitioners' [sic] Motion to
Dismiss was found to be considered a post-conviction relief
petition.
Supporting Facts: Petitioner filed a Motion to Dismiss requesting
an evidentiary hearing of the trial court[’]s denial of the December
9, 2005 motion, because there had not be [sic] a final judgment of
conviction and sentence rendered in the case.
Ground Four: The trial court failed to dispose of all charges
pending against Petitioner in the single case before the trial court's
judgment with respect to any charge was final.
Supporting Facts: Petitioners' [sic] conviction and sentence was
not completed until July 11, 2014. Petitioner filed a Motion for
Reconsideration of a denial of a speedy trial violation. However,
the motion was filed before a final judgment was rendered.
Ground Five: Petitioners' [sic] rights to the Federal Due Process
Clause was violated when the Ohio Court of Appeals failed to
comply with App.R. 12(A)(1)(c).
Supporting Facts: The Court of Appeals passed on Petitioners'
[sic] first assignment of error on page 2 of the Petitioners' [sic]
Motion to Vacate. See Statement of the facts on pages, 6-8 of
Memorandum In Support of Jurisdiction, Case No. 2013-0553.
Ground Six: Court of Appeals violated Federal Due Process of
Law and Fundamental Fairness of the proceedings when it failed to
vacate the sentence it considered illegal.

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Supporting Facts: The trial court's termination entry reflected a
sentence that was not pronounced in the presence of the Petitioner.
The appellate court recognized that the sentence is illegal,
however, refused to vacate the sentence and void entry.
Ground Seven: Court of Appeals denied Petitioner Equal
Protection of the Law when it denied Petitioners' [sic] Motion for
Reconsideration of the appellate court's January 8, 2013 decision
and entry.
Supporting Facts: Petitioners' [sic] termination entry did not
reflect the manner of conviction or a sentence for all the charges
like other defendant's, however, the court failed to vacate
Petitioners' [sic] judgment of conviction and sentence, as the law
existed at the time Petitioner was tried and sentenced.
Ground Eight: Court of Appeals lacked subject-matter
jurisdiction and violated Petitioners' [sic] Federal procedural due
process rights when it heard an appeal and decided the trial court
imposed a sentence on each count in accordance to law.
Supporting Facts: The trial court failed to sentence Petitioner on
each and every charge in accordance to Criminal Rule 32, and
modified the trial court termination entry to reflect a five-year
sentence of post-release control outside of the presence of the
Petitioner.
Ground Nine: Where a Court of Appeals hears and decides a case
in which it lacked subject-matter jurisdiction, that Courts' [sic]
proclamation is void and must be vacated.
Supporting Facts: The court of appeals heard Petitioners' [sic]
appeal on April 27, 2007, however, said court remanded
Petitioners' [sic] case back to the trial court in 2014 for
resentencing. Petitioners' [sic] sentence was not a final sentence at
the time it was appealed to the appellate court.
Ground Ten: Petitioner was deprived of his liberty, and his rights
to the Federal due process and equal protection clauses when the
appellate court denied Petitioners' [sic] Motion to Vacate
Judgment, where it lacked jurisdiction over the subject-matter to
review the merits of the appeal and affirm the trial court judgment
where the trial court's termination entry fails to include a
conviction and a sentence required by law.

5

Supporting Facts: Petitioner reallege[s] and incorporate[s] by
reference supporting facts from Grounds Five-Nine, and the
statement of the facts from pages 7-11 of Petitioners' [sic]
Memorandum in Support of Jurisdiction, Case No. 2013-1921.
.
Ground Eleven: Petitioner was denied due process and equal
protection of Federal law when it denied Petitioner relief where it
granted relief to others, in the same situation.
Supporting Facts: The court of appeals after denying Petitioner
relief on April 17, 2013 held in State v. Johnston, 2d Dist.
Montgomery No. 25652, 2013-0hio-4401, that State v . Sanchez,
2d Dist. Greene 2006-CA-154, 2009-0hio-813, is law when the
trial court fails to dispose of each charge in the defendant's case.
Ground Twelve: Petitioner was denied Fundamental Fairness of
the proceeding and the appellate court abused it judicial discretion
when it failed to certify the record to the Ohio Supreme Court for
review and final determination pursuant to Article IV, Section
3(B)(4).
Supporting Facts: Petitioner reallege[s] and] incorporate[s] by
reference the statement of the case, and statement of the facts of
Petitioners' [sic] Memorandum in Support of Jurisdiction [sic],
pages, 6-9, in Case No. 2014-0254.
Ground Thirteen: Sixth and Fourteenth Amendment violation to
Criminal Rule 43(A), where sentence was not pronounced in the
presence of Petitioner.
Supporting Facts: Petitioners' [sic] termination entry differed
from the sentence pronounced from the bench by the trial judge.
Ground Fourteen: Motion to Dismiss was an interlocutory order
where a sentence remains to be imposed for a final judgment of
post-release control as the law existed prior to the effective date of
R.C. § 2929.191.
Supporting Facts: Petitioner filed a motion to dismiss for speedy
trial. The trial court denied the motion Petitioner appealed the
judgment. The court of appeals affirmed. Petitioners' [sic] trial
court judgment did not become final until July 15, 2014. However,
Petitioner filed a Motion for Reconsideration of the trial court's
denial of the speedy trial motion prior to the judgment becoming
final.

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Ground Fifteen: Petitioner was deprived of his liberty without
due process of law when the appellate court overruled Petitioners'
[sic] Motion to Vacate Judgment relying on a previous judgment
that cited State v. Fischer, 128 Ohio St.3d 92 where Petitioner
raised a Crim.R. 43(A) due process violation where sentence was
not pronounced in the presence of the Petitioner at the sentencing
hearing but was later modified in the termination entry journalized
on March 9 2006 as the law existed at the time of the entries
journalization.
Supporting Facts: Petitioner reallege[s] and incorporate[s] by
reference the statement of the case and facts on pages 5-9 of
Petitioners' [sic] Memorandum in Support of Jurisdiction filed
April 11, 2016 in Case No. 2016-0535.
Ground Sixteen: Petitioner was deprived of his liberty without
Equal Protection of the I.aw when the appellate court overruled
Petitioners' [sic] Motion to Vacate, Application for
Reconsideration, and Motion for leave to Amend Application for
Reconsideration after it determined the March 9, 2006 termination
entry sentence of post-release control was void as the trial court
failed to verbally advise Mr. Brown as to the five-year mandatory
nature of the post-release control.
Supporting Facts: Petitioner believes that a Miscarriage of Justice
has taken place. Petitioner reallege[s] and incorporate[s] by
reference the supporting facts in Ground Fifteen.
Ground Seventeen: Petitioner was deprived of his liberty without
due process when the appellate court failed to sua sponte threshold
address the jurisdictional matter.
Supporting Facts: Petitioner believes that the appellate court is
required by law to determine whether the trial court's termination
entry is a final appealable order as the law exist at the time the
entry is appealed whether either party raise a jurisdictional issue or
not.
Ground Eighteen: Petitioner was deprived of his liberty without
due process of law where the trial court's March 9, 2006
termination entry was an interlocutory judgment/interlocutory
order until finalized on July 11, 2014, and the appellate court's
affirmation of the trial court's termination entry on April 27, 2007
was an interlocutory appeal until finalized on said date.

7

Supporting Facts: Petitioner reallege[s] and incorporate[s] by
reference page 13 of Memorandum in Support of Jurisdiction, Case
No. 2016-0535. Petitioner also reallege[s] supporting facts and
incorporate[s] by reference Ground Fifteen.
Ground Nineteen: Petitioner was deprived of his Federal Rights
to Liberty, Due Process and Equal Protection of the Law when the
Court of Appeals overruled Petitioner's request to be conveyed to
be physically present at re-sentencing hearing and where he
objected to the hearing proceeding by video conference.
Supporting Facts: Petitioner reallege[s] and incorporate[s] by
reference as supporting facts pages, 7-8 of the statement of the case
and facts of Memorandum in Support of Jurisdiction, Case No.
2016-0083.
Ground Twenty: Equal Protection of the Law when the Court of
Appeals overruled Petitioners' [sic] assignment of error as res
judicata where the trial court termination entry violated Federal
Criminal Rule 43(A), as it exi[s]ted in law on March 9, 2006, as
the five-year period of post-release control reflected in the entry
was not pronounced in the presence of Petitioner at his original
sentencing hearing.
Supporting Facts: Petitioner reallege[s] and incorporate[s] by
reference as supporting facts the supporting facts of Ground
Nineteen.
Ground Twenty One: Petitioner was deprived of his Federal
Rights to Liberty, Due Process and Equal Protection of the Law
when the Court of Appeals overruled Petitioners' [sic] assignment
of error where the trial court imposed post-release control without
conducting a de novo sentencing hearing mandated by decisions of
the Ohio Supreme Court.
Supporting Facts: Petitioner reallege[s] and incorporate[s] by
reference as supporting facts pages, 12-14 of Proposition of Law
No. III of Memorandum in Support of Jurisdiction in Case No.
2016-0083.
(Petition, ECF No. 4, PageID 265-87.)

Analysis
8

Is the Petition Second-or-Successive?

The instant Petition is Brown’s second-in-time habeas application attacking his current
custody and arising out of the same conviction. Respondent argues that the Petition is second-orsuccessive and therefore Brown requires permission from the Sixth Circuit under 28 U.S.C. §
2244(b) before he can proceed (Return of Writ, ECF No. 14, PageID 2967-70).
Upon the filing of a habeas petition, Rule 4 of the Rules Governing § 2254 Cases requires
the Court to make an initial analysis to determine “[i]f it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to relief in the district court,” in which
case “the judge must dismiss the petition and direct the clerk to notify the petitioner.”
In performing the initial review in this case, the Magistrate Judge noted the prior case
(Brown I), but also noted the Amended Termination Entry and initially concluded Brown’s
“situation parallels that of the petitioner in In Re Stansell, 828 F.3d 412 (6th Cir. 2016).” At least
for purposes of initial review, the Magistrate Judge concluded, on the basis of Stansell, that the
Petition was not second-or-successive and could proceed (Order for Answer, ECF No. 5, PageID
513-14).
Respondent submits this was error and the case should be transferred to the Sixth Circuit
under In re Sims, 111 F.3d 45 (6th Cir. 1997)(Return, ECF No. 14, PageID 2967-68). The
Warden distinguishes Stansell on the grounds that in that case the amended judgment imposed
the five-year post-release control (which is mandatory under Ohio law), whereas here the
original Termination Entry included that term and it was only the oral advisement of post-release
control that had to be added. Id.

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The Magistrate Judge finds the distinction unpersuasive. In Stansell, the Sixth Circuit
focused on the judgment on which a habeas petitioner was in custody, a judgment rendered after
the appellate court had remanded the case “for the limited purpose of properly advising and
imposing upon Stansell the requisite period of postrelease control.” Stansell, 828 F.3d at 414.
The court also noted that the Supreme Court had similarly focused on the judgment in place in
deciding that a petition attacking a different judgment from a prior habeas application was not
second-or-successive.

Id. at 415, citing Magwood v. Patterson, 561 U.S. 320 (2010).

Essentially, the court determined that where there is a successive judgment, a second-in-time
habeas petition is not second-or-successive. In King v. Morgan, 807 F.3d 154, 156-57 (6th Cir.
2015), the Sixth Circuit extended Magwood to challenges to a conviction using a judgment-based
approach.
In this case, Judge Huffman did not just orally advise Brown of the PRC term; she also
filed an Amended Termination Entry which included the five-year term. Under the Magwood
judgment-based approach, Brown’s instant Petition is not second-or-successive because it attacks
the Amended Termination Entry.
Respondent also argues Stansell incorrectly interprets both 28 U.S.C. § 2244(b) and Ohio
law (Return, ECF No. 14, PageID 2969). It is appropriate for the Warden to preserve that issue
for appeal, but that is a decision for the en banc Sixth Circuit or the Supreme Court. This Court
must follow Stansell.

Are the First Eighteen Grounds Untimely?

Respondent asserts Brown’s First through Eighteenth Grounds for Relief are barred by

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the one-year statute of limitations for habeas petitions enacted in the Antiterrorism and Effective
Death Penalty Act of 1996 (the "AEDPA") and codified at 28 U.S.C. § 2244(d). That statute
provides:
(d)(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 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.

Respondent calculates the date on which Brown’s conviction became final on direct
review as the ninetieth day after the Ohio Supreme Court declined jurisdiction of the direct
appeal from the Second District. That occurred on October 3, 2007 (Entry, State Court Record
ECF No. 13, PageID 743). 1 The time for seeking review by certiorari in the United States

1

Two file stamps appear on that page. The October 3 stamp is for filing on the Ohio Supreme Court; the October 23

11

Supreme Court expired ninety days later on January 2, 2008. The statute began to run the next
day and expired January 3, 2009, unless tolled.

The Warden concedes tolling during the

pendency of Brown’s 26(B) application to reopen his direct appeal and his petition for postconviction relief, but notes Brown had no collateral attack pending at all during 2010 (Return,
ECF No. 14, PageID 2972). The pendency of his first habeas petition during that time does not
toll the statute. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Based on this calculation, the
Warden concludes the statute expired long before Brown filed the instant Petition.
The original Report and Recommendations recommended that Grounds One through
Eighteen of the Petition be dismissed as barred by the statute of limitations (ECF No. 26, PageID
3617-26).

This was based on a determination, urged by Respondent, that the statute of

limitations on these claims expired in 2010 and the Petition was not filed until 2017 (Return,
ECF No. 14, PageID 2973). In contrast, Brown claimed in his first set of objections that the time
runs from his 2014 resentencing because “the entry of a new judgment normally resets the
statute-of-limitations clock,” (Objections, ECF No. 29, relying on In re Stansell, 828 F.3d 412
(6th Cir. 2016), and Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016).
The Supplemental Report relied on Bachman v. Bagley, 487 F.3d 979 (6th Cir. 2007), and
Rashad v. Lafler, 675 F.3d 564 (6th Cir. 2012), for the proposition that the statute of limitations
runs from conclusion of direct review, not collateral review as here. The Supplemental Report
recognized that Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016), was to the contrary, but noted that
a Sixth Circuit panel cannot overrule the published decision of a prior panel and that Crangle
was, in any event, distinguishable (ECF No. 31, PageID 3659). Brown objected (ECF No. 32,
stamp is for filing with the Montgomery County Clerk of Courts.

12

PageID 3669-76).
To resolve this statute of limitations question, we must recur to the procedural history.
The incidents in suit occurred at the Dayton Motor Hotel on May 15-16, 2005. Out of those
incidents, the Montgomery County grand jury indicted Brown (State Court Record, ECF No. 13,
PageID 541). In February 2006, a jury convicted Brown on two counts of felonious assault,
aggravated burglary with a firearm specification, having weapons while under disability, and
tampering with evidence, id. at PageID 556, and Judge Richard Dodge sentenced Brown to
nineteen years’ imprisonment. Direct appeal, an untimely petition for post-conviction relief, and
an untimely Ohio App. R. 26(B) application, as well as an initial federal habeas corpus
application provided no relief. Brown then began a series of collateral attacks on the Common
Pleas judgment entry (See Return of Writ, ECF No. 14, PageID 2953-62). On May 3, 2012, he
filed a Motion to Vacate Void Judgment Where Sentence is Contrary to Law (State Court
Record, ECF No. 13-1, PageID 1423, et seq.) Judge Mary Wiseman denied the Motion and
Brown appealed.
On appeal Brown claimed that the March 9, 2006, sentencing entry
is void because he did not receive oral notification of the duration
of post-release control. According to him, even if the sentencing
entry recites the length of post-release control, that aspect of his
sentence remains illegal and unenforceable because the trial court
did not mention the number of years [of post-release control] at
sentencing.
State v. Brown, 2014-Ohio-2551, 2014 Ohio App. LEXIS 2508 ¶ 12 (2nd Dist. June 13, 2014).
The Second District found that argument well taken. Id. at ¶¶ 13-16. It held further that he was
entitled to raise the issue in his May 2012 motion “because, under existing Ohio Supreme Court
precedent, the failure to advise him [orally] of the duration of post-release control at sentencing
rendered the post-release control portion of his sentence void.” Id. at ¶ 17, relying largely on
13

State v. Qualls, 131 Ohio St. 3d 499 (2012). The Second District also held that only the postrelease control portion of the sentence was void. Id. at ¶ 21, holding Brown was only entitled “to
a limited re-sentencing to correct the imposition of post-release control.” The appellate court
remanded with precisely that limitation in place. Id. at ¶ 27.
On July 11, 2014, Judge Wiseman gave Brown the required oral advice of post-release
control (Memorialized at State Court Record ECF No. 13-3, PageID 2033-35). She also entered
an Amended Termination Entry with the five-year PRC term included. Id. at PageID 2029-32.
Although Brown appealed, the Second District affirmed and the Ohio Supreme Court again
denied review (State Court Record, ECF No. 13-3, PageID 2111-20, 2207). The Ohio Supreme
Court Entry was filed March 23, 2016 (Entry, State Court Record, ECF No. 13-3, PageID 2207).
Brown deposited his instant Petition in the prison mail system on February 24, 2017 (PageID
290).
Under 28 U.S.C. § 2244(d)(1)(A), the statute of limitations begins to run on the date the
judgment of conviction becomes final on direct review or expiration of the time for seeking
direct review. The Warden calculated the date of finality as January 2, 2008, the date on which
Brown’s right to petition the United States Supreme Court for a writ of certiorari expired.
Allowing for statutory tolling while Brown’s 2007 Ohio R. App. P. 26(B) application and his
petition for post-conviction relief under Ohio Revised Code § 2953.21 were pending, the statute
would still have expired in 2010 because Brown had no post-conviction actions pending during
that year (Return, ECF No. 14, PageID 2972-73).
In his Amended Reply, Brown argued for statutory tolling under 28 U.S.C. § 2244(d)(2)
and equitable tolling either on the basis of his diligence in pursuing his claims or because of the
“actual innocence” gateway first recognized in Schlup v. Delo, 513 U.S. 298, 316 (1995). The

14

original Report rejected those claims (ECF No. 26, PageID 3619-26).
Brown did not respond to that analysis in his first set of Objections, but instead shifted to
the argument he now makes that the calculation of finality runs from Judge Wiseman’s Amended
Termination Entry on remand (Objections, ECF No. 29, PageID 3640-50, relying principally on
Magwood v. Patterson, 561 U.S. 320 (2010); King v. Morgan, 807 F.3d 154 (6th Cir. 2015); and
In re Stansell, 828 F.3d 412 (6th Cir. 2016).
To make sense of the case law involved here, it is necessary to disentangle two issues:
whether a petition is second-or-successive and whether it is barred by the statute of limitations.
These potential bars to habeas corpus relief were both adopted as part of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA).
The second-or-successive bar is codified at 28 U.S.C. § 2244(b) and provides that a
second or successive habeas application may not be considered by a district court unless or until
the circuit court has given permission. The statute of limitations is codified at 28 U.S.C. §
2244(d) and provides that a habeas petition is barred if it is not filed within one year of the date
on which the conviction becomes final on direct review.

Both sections have acquired a

considerable judicial gloss since 1996.
The first hurdle Brown’s instant Petition had to surmount was the second-or-successive
bar. When he filed his instant Petition, he had not obtained permission to proceed from the
circuit court and the Petition was a second-in-time application because Brown had previously
filed a habeas petition related to his 2006 conviction, Brown I.

The Magistrate Judge had to

resolve that issue sua sponte, at least initially, because district courts have no jurisdiction over
second-or-successive habeas applications without the required circuit permission. Franklin v.
Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 549 U.S. 147 (2007).

15

In the Order for Answer, the Magistrate Judge concluded this was not a second-orsuccessive habeas petition because Brown’s situation “parallels that of the petitioner in In re
Stansell, 828 F.3d 412 (6th Cir. 2016)” (ECF No. 5, PageID 513-14). In the Return of Writ, the
Warden disagreed with that conclusion (Return, ECF No. 14, PageID 2967-70, also arguing
Stansell was incorrectly decided). However, the Warden did not move this Court to transfer the
case to the Sixth Circuit.
The statute of limitations is a separate provision of the AEDPA, codified at 28 U.S.C. §
2244(d), but Brown insists the statute of limitations issue is settled by King v. Morgan, supra.
The holding in King, however, is that “a habeas petitioner, after a full resentencing and the new
judgment that goes with it, may challenge his undisturbed conviction without triggering the
‘second or successive’ requirements.” 807 F.3d at 156 (emphasis in original). King, like Brown,
had moved to vacate his Ohio criminal judgment because it did not contain the mandatory postrelease control term. However, on resentencing the trial court increased the imprisonment
portion of the sentence from twenty-one years to life to thirty-three years to life. Id. The King
court was unsure what effect its decision would have on habeas practice in this circuit, but
commented “[t]he entry of a new judgment normally resets the statute of limitations clock.” 807
F.3d at 159, citing 28 U.S.C. § 2244(d)(1)(A) and Rashad, supra.
In re Stansell, supra, also involved the second-or-successive issue. It was before the
Sixth Circuit on a request for permission to proceed with a second-or-successive habeas
application. While Stansell’s case was on appeal on a different issue, the Ohio Eighth District
Court of Appeals observed that the trial court had erred in failing to impose a term of postrelease control and remanded the case "for the limited purpose of properly advising and
imposing upon Stansell the requisite period of post-release control." 828 F.3d at 414, quoting

16

State v. Stansell, 10 N.E.3d at 799. The Sixth Circuit held that Stansell’s partial resentencing to
impose, for the first time, a term of post-release control permitted him to raise challenges to his
original undisturbed conviction and term of imprisonment. Judge Sutton expressly disclaimed
deciding any statute of limitations issue:
Because we must apply the term "second or successive" to the
application as a whole, not to the individual claims within it,
Magwood precludes us from adopting Bachman's approach in the
second or successive context. None of this should be taken to call
Bachman into doubt. All that this decision and all that King
attempt to do is try to apply Magwood faithfully in the second-orsuccessive context. These decisions, and most importantly
Magwood, do not answer the distinct statute-of-limitations
question raised in Bachman.
828 F.3d at 418.
Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016), was an appeal from a dismissal of a
habeas petition as barred by the statute of limitations. Crangle had pleaded guilty to rape of a
minor and was sentenced to life imprisonment. His conviction became final on direct review
December 20, 2008. Id. at 675. Over a year later, the Ohio Supreme Court decided State ex rel
Carnail v. McCormick, 126 Ohio St. 3d 124 (2010), one of a series of Ohio Supreme Court cases
dealing with the mandatory post-release control term. Armed with Carnail, Crangle sought to
withdraw his guilty plea, but obtained instead a nunc pro tunc amendment of his judgment which
imposed the mandatory five-year term of post-release control. 838 F.3d at 676. Crangle filed his
petition for habeas corpus on March 28, 2013. The District Court dismissed the petition as
untimely, but the Sixth Circuit held the “2010 nunc pro tunc order was a new judgment that reset
the statute of limitations clock.” 838 F.3d at 677. In the course of doing so, it held that the new
sentence imposed on Crangle was “worse than before” because it substituted post-release control
for parole.

17

Brown’s present sentence is not “worse than before.” All that changed was (1) Judge
Wiseman’s oral advisement of the five-year term of post-release control and (2) her
memorialization of that advice in an amended entry. Thus the Magistrate Judge distinguished
Crangle in the Supplemental Report on this basis (ECF No. 31, PageID 3659).

The

Supplemental Report also accepted the Respondent’s argument that Crangle could not overrule
Bachman v. Bagley, 487 F.3d 979 (6th Cir. 2007), and Rashad v. Lafler, 675 F.3d 564 (6th Cir. 2012),
which are prior published decisions of the Sixth Circuit, and again recommended dismissal of the
first eighteen grounds as time-barred (ECF No. 31).
However, Brown again objected, Judge Rose recommitted the case, and the Magistrate Judge
withdrew this recommendation, reasoning that Judge Sutton wrote both King and Stansell and he was
a member of the panel that issued the per curiam decision in Crangle. While he had said in King that
the court did not question the continued validity of Bachman on the limitations question, in Crangle
he joined an opinion that found Bachman had been abrogated by Magwood and King. Crangle also
concluded that King abrogated Mackey v. Warden, 525 F. App’x 357 (6th Cir. 2013), a case arising
from this Court on the same limitations question. It is unlikely that the three panels which all
included Judge Sutton failed to consider the interaction of those decisions.
The Magistrate Judge now believes this Court should not second-guess the Sixth Circuit’s
decision in Crangle by limiting it to post-release control corrections that impose a “worse-thanbefore” sentence. The language of Crangle’s holding does not make that distinction. Therefore this
Court should apply the Crangle holding as stated and overrule the Warden’s statute of limitations
defense.
Moreover, the statute of limitations is not a jurisdictional bar. McClendon v. Sherman, 329

F.3d 490 (6th Cir. 2003); Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001). Therefore
deciding the merits of the first eighteen grounds for relief will not be a vain act, as it would be to
18

decide any of the merits questions in a second-or-successive application. Should the Sixth
Circuit decide on appeal that an amended judgment such as Brown’s does not restart the
limitations period, it will be able to consider this Court’s holding on the merits without a remand.

The Merits

Ground One: Speedy Trial and Speedy Sentencing

In his First Ground for Relief, Brown asserts he was denied his Sixth and Fourteenth
Amendment rights to a speedy trial and speedy sentencing (Petition, ECF No. 4, PageID 266.)
The Warden notes Brown raised this claim in his prior habeas petition in this Court and it was
decided adversely to him (Brown I, ECF No. 13-1, PageID 1180-82; adopted at PageID 120001).
Brown presented a speedy trial claim on direct appeal to the Second District Court of
Appeals, but it was limited to a claim under Ohio Revised Code § 2945.71 and rejected on that
basis. State v. Brown, 2007-Ohio-2098, 2007 Ohio App. LEXIS 1954 (2nd Dist. Apr. 27, 2007).
In his Reply Brown argues there should be no deference to the Second District’s conclusion
because that court acted without jurisdiction, based on Brown’s claim that the original judgment
of conviction (March 9, 2006) was not a final appealable order (ECF No. 21, PageID 3074). He
makes the same objection to deferring to this Court’s own prior decision on the merits. Id.
Brown raised this lack-of-final-appealable-order claim in the Second District Court of Appeals
which rejected it because the Ohio Supreme Court had rejected the same argument in State v.
Fischer, 114 Ohio St. 3d 94 (2007).

State v. Brown, Case No. 21540 (2nd Dist. Jan. 8,
19

2013)(copy at ECF No. 13-2, PageID 1677 et seq.)
The question of what constitutes a final appealable order in Ohio is obviously a question
of state law on which this Court is bound by state court decisions in point. "[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). Because the Second District, applying controlling Ohio precedent, rejected this lack-offinal-appealable-order argument, this Court must also reject it.
The doctrine of res judicata does not strictly apply in habeas corpus, so that doctrine does
not bar consideration of Ground One on the merits. However, Judge Black’s adoption of
Magistrate Judge Ovington’s Report on this Ground for Relief in Brown I does establish the law
of the case on the speedy trial question, reinforced by the Sixth Circuit’s refusal to grant a
certificate of appealability on any of the issues in the case.

Denial of a certificate of

appealability becomes the law of the case, binding in subsequent stages of the litigation.
Dillingham v. Jenkins, Case No. 17-3813 (6th Cir. Nov. 8, 2017)(unreported; copy at ECF No. 65
in 3:13-cv-468), citing Moore v. Mitchell, 848 F.3d 774, 776 (6th Cir. 2017).
Under the doctrine of law of the case, findings made at one point in the litigation become
the law of the case for subsequent stages of that same litigation. United States v. Moored, 38
F3d 1419, 1421 (6th Cir. 1994), citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993).
"As most commonly defined, the doctrine [of law of the case] posits that when a court decides
upon a rule of law, that decision should continue to govern the same issues in subsequent stages
in the same case." Arizona v. California, 460 U.S. 605, 618 (1983), citing 1B Moore's Federal
Practice ¶0.404 (1982); Patterson v. Haskins, 470 F.3d 645, 660-61 (6th Cir. 2006); United States

20

v. City of Detroit, 401 F.3d 448, 452 (6th Cir. 2005). “If it is important for courts to treat like
matters alike in different cases, it is indispensable that they ‘treat the same litigants in the same
case the same way throughout the same dispute.’” United States v. Charles, 843 F.3d 1142,
1145 (6th Cir. 2016)(Sutton, J.), quoting Bryan A. Garner, et al., The Law of Judicial Precedent
441 (2016).
"Law of the case directs a court's discretion, it does not limit the tribunal's power." Id.,
citing Southern R. Co. v. Clift, 260 U.S. 316, 319 (1922); Messenger v. Anderson, 225 U.S. 436
(1912); see also Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589-90 (6th Cir.
1995). "While the 'law of the case' doctrine is not an inexorable command, a decision of a legal
issue establishes the 'law of the case' and must be followed in all subsequent proceedings in the
same case in the trial court or on a later appeal in the appellate court, unless the evidence on a
subsequent trial was substantially different, controlling authority has since made a contrary
decision of the law applicable to such issues, or the decision was clearly erroneous and would
work a manifest injustice." White v. Murtha, 377 F.2d 428 (5th Cir. 1967), quoted approvingly in
Ass’n of Frigidaire Model Makers v. General Motors Corp., 51 F.3d 271 (6th Cir. 1995.) The
doctrine applies with equal force to the decisions of coordinate courts in the same case and to a
court's own decisions. Christianson v. Colt Industries, 486 U.S. 800, 816 (1988).
The purpose of the doctrine is twofold: (1) to prevent the continued litigation of settled
issues; and (2) to assure compliance by inferior courts with the decisions of superior courts.
United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990), citing Moore's Federal Practice §
0.404[1] at 118 (1988).

A generally liberal view is expressed in Gillig v. Advanced

Cardiovascular Systems, Inc. 67 F.3d 586 (6th Cir. 1995).
We generally will not disturb these [prior] holdings unless there is
'(1) an intervening change of controlling law; (2) new evidence
21

available; or (3) a need to correct a clear error or prevent manifest
injustice.'" Entm't Prods., Inc. v. Shelby Cnty., 721 F.3d 729, 742
(6th Cir. 2013), cert. denied, 134 S. Ct. 906, 187 L. Ed. 2d 778
(2014) (quoting Louisville/Jefferson Cnty. Metro Gov't v.
Hotels.com, L.P., 590 F.3d 381, 389 (6th Cir. 2009)).
Howe v. City of Akron, 801 F.3d 718, 741 (6th Cir. 2015).
Brown has shown no reason to abandon the law of the case as established here. Therefore
the Magistrate Judge previously recommended Ground One should be dismissed on the merits
with prejudice on the same basis as Judges Ovington and Black did so in Brown I (ECF No. 34,
PageID 3694-97.)
Brown now objects 2 that the speedy trial and sentencing claims made in his instant Petition
are not the same claims made in Brown I. In that case Ground Three read:
Ground Three: Trial court[‘]s failure to grant petitioner's motion
to dismiss in Contradiction to Ohio's speedy trial statute violated
petitioner's due process and deprived him of his constitutional right
to the Sixth and Fourteenth Amendment's [sic] to the United States
Constitution and Article I § 10 and 16 of the Ohio Constitution.
Supporting Facts: On December 9, 2005, petitioner filed a
motion to dismiss for speedy trial violations through counsel in
Case Nos. 05-CR-1469 and 05-CR-2813. see:(Appx. Ex.(16)). On
December 12-13, 2005, a hearing on the motion was held. At said
hearing, the prosecutor argued that petitioner cannot receive the
triple-count provision provided by R.C. 2945.71(E), because he is
also being held on an unrelated drug possession indictment from an
arrest on March 26, 2005. Defense counsel argued that
petitioner[’]s speedy trial clock began to run from that date of
arrest. Petitioner was released on March 27, 2005, and did not
receive an arraignment or preliminary hearing in Case No. 05-CR1469 before he was indicted on May 17, 2005. see ( Appx EX. ( 1
5)) On February 2, 2006, the trial court rendered its decision and
entry overruling petitioners motion to dismiss finding that, On
March 26, 2005 defendant was arrested for possession of crack
cocaine by Vandalia Police but was released and not held on the
charge. Defendant was then indicted on the same charge on May
15, 2005 and arrested on a warrant for same on May 18, 2005.
see:(Appx. Ex.(17)). On July 12, 2005, petitioner was arraigned at
2

Brown’s Objections on the speedy trial and sentencing claim run fifteen pages, ECF No. 38, PageID 3724 to 3738.

22

about 5:45PM by the Dayton Municipal Court, Dayton, Ohio
Criminal Division in Case No. 05CRA09381, for aggravated
robbery and felonious assault. see:(Appx. Ex. ( 19)}. Petitioner
was then processed into the Montgomery County Jail at 10:38PM.
A preliminary hearing was held on July 18, 2005. Id. Petitioner
was bonded over to grand jury after said hearing, and indicted on
August 9, 2005. Petitioner was arraigned in Case No. 05-CR-2813
on August 25, 2005. The drugs in Case No. 05-CR-1469 were
destroyed in October of 2005 by the Miami Valley Regional Crime
laboratory. This evidence was not made know [sic] to the defense
until December 14, 2005 after the speedy trial hearing. Petitioner
was held in jail for 106 days before trial in Case No. 05-CR-2813.
The court[’]s judgment in this case is in violation of clearly
established federal law. see:(Appx. Ex.(17)).
(Objections, ECF No. 38, PageID 3724-25, quoting Petition in Brown I, State Court Record, ECF
No. 13, PageID 1030-31.) As quoted above, Brown’s First Ground in the instant case reads:
Ground One: Sixth and Fourteenth Amendment Violation to a
Speedy Trial and Speedy Sentencing.
Supporting Facts: Petitioner was arrested on July 11, 2005.
Petitioner was indicted on August 9, 2005. Petitioner plead [sic]
“not guilty” at a preliminary hearing. Petitioner Filed a motion to
dismiss for speedy trial violation on December 9, 2005, however,
the court denied the motion. Petitioners’ [sic] trial was not
complete until officially convicted and sentenced on July 11, 2014.

As the Magistrate Judge understands the Petition as interpreted by the Objections, Brown is
not now raising a claim about denial of his motion to dismiss back in 2005. He is now claiming
that his “trial” was not complete until he was “officially convicted and sentenced on July 11,
2014.” (ECF No. 38, PageID 3725.)
This claim has no sound basis in the record. The record shows the case was tried February
6-9, 2006. (State Court Record, ECF No. 13-5, PageID 2309, et seq.) The post-trial actions did
not result in a new trial, but only in an amended Termination Entry. There is no Supreme Court
precedent cited by Brown or known to the Magistrate Judge that measures the constitutional right

23

to a speedy trial against the date when an amended judgment is entered many years later at the
instance of the convicted defendant.
Although Brown claims his Ground One here is a different claim from Ground Three in
Brown I and the Magistrate Judge has analyzed it here on that basis, Brown also argues that
deciding the speedy trial claim made in Brown I was improper because “the reviewing of the
speedy trial claim prior to the final judgment of conviction and sentence prior to the final
judgment of conviction and sentence on July 15, 2014, was contrary to clearly established federal
law.” (Objections, ECF No. 38, PageID 3726, quoting Reply, ECF No. 21, PageID 3074, and
citing Ex parte Siebold, 100 U.S. 371 (1880)). In Siebold, the Supreme Court held it had
appellate jurisdiction in habeas to review the constitutionality of the Congressional statute under
which certain election officials of the City of Baltimore had been convicted in federal court.
Siebold says nothing about the habeas corpus jurisdiction of a federal district court to review a
state court conviction under which a person alleges he has been confined unconstitutionally a
number of years before he obtains partial vacation of the state court judgment.
Brown quotes the Magistrate Judge’s holding that “[t]he question of what constitutes a
final appealable order under Ohio law is obviously a question of state law on which this Court is
bound by state court decisions in point.” (Objections, ECF No. 38, PageID 3727, quoting ECF
No. 34, PageID 3695.) He then proceeds to cite various Ohio decisions on what constitutes a
final appealable order under Ohio Revised Code § 2505.02. Id. at PageID 3727-28. What the
Ohio courts may have decided in other cases was or was not a final appealable order is beside the
point in this case where the Second District expressly held that it had jurisdiction on direct
appeal when later confronted with this argument. Brown had invoked that jurisdiction by
appealing to that court and did not question the jurisdiction prior to judgment in that court. It is

24

the Second District’s finding that the original conviction was a final appealable order that
governs in this case, not some arguable application of that doctrine this Court might construct
from other Ohio case law. (See State Court Record, ECF No. 13-2, PageID 16.)
Even if the original judgment was not technically a final appealable order, that ought not
persuade this Court to set aside its determination in Brown I that there was no speedy trial
violation. A state court judgment that results in custody is reviewable in habeas whether or not a
petitioner has properly obtained state court review of that judgment because the doctrine of
exhaustion of state court remedies is not jurisdictional. Ex parte Royall, 117 U.S. 241 (1886);
Granberry v. Greer, 481 U.S. 129 (1987); Phillips v. White, 851 F.3d 567, 576 (6th Cir. 2017).
Brown repeatedly argues that “[t]his Court should abandon the law of the case on the
speedy trial question because the post-release control sentence was determined to be void”
(Objections, ECF No. 38, PageID 3729) or “because the state court’s [sic] used subterfuge to
evade consideration of the federal issue” (id.) or because “[t]he Second District corrected its fact
about the two indictments” (Id. at PageID 3732). None of these arguments speaks either to the
law of the case doctrine or to the correctness of Judge Black’s decision in Brown I on the speedy
trial claim.
Brown objects to following Brown I on the speedy trial claim because he says he alerted
this Court prior to its decision of the alleged voidness of the original Termination Entry
(Objections, ECF No. 38, PageID 3734, citing Brown I, ECF No. 32, PageID 1805-06.)
Magistrate Judge Ovington rejected this argument, concluding that Brown did not raise his Ohio
R. Crim. P. 32 claim (the claim related to the content of the original termination entry) as a
ground for relief in Brown I or in the state courts prior to that time, July 29, 2011 (Brown I, ECF
No. 45, PageID 1995).

25

Brown also objects that his First Ground for Relief in the instant case contains not only a
speedy trial claim, but also a speedy sentencing claim “that the Magistrate Judge failed to review
on the merits (Objections, ECF No. 38, PageID 3735). He argues that he was not sentenced until
July 15, 2014, when the Amended Termination Entry was filed. Id. Brown cites no Supreme
Court precedent clearly establishing a right to speedy sentencing apart from the right to speedy
trial or precedent holding that any such right is measured against the time when a required
amendment of the judgment in a criminal case is entered some years after trial, sentencing, and
the original judgment.
Brown’s First Ground for Relief should therefore be dismissed on the merits.

Ground Two: Denial of Access to the Courts

In his Second Ground for Relief, Brown asserts he was denied access to the courts in
violation of the First and Fourteenth Amendments when the Second District Court of Appeals
dismissed one of his appeals because it was untimely filed; his notice of appeal did not get to the
court of appeals in time although he had deposited it in the institutional mail system in a timely
manner.
Brown asserts he raised this issue in a motion for reconsideration filed in the Second District
Court of Appeals and denied by that court July 11, 2011(Petition, ECF No. 4, PageID 267, referring
to State v. Brown, Case No. CA 24658 (2nd Dist. July 11, 2011)). Examination of that decision shows
that the Second District did indeed dismiss an appeal by Brown on that date because it had been filed
untimely. Brown moved to reconsider on the grounds he deposited the notice of appeal in the prison
mailing system before the time expired, so he certainly did not present to the Second District the
claim he makes here that he was deprived of his constitutional right of access to the courts by not

26

having the notice counted as timely. In its dismissal order, the Second District also concluded the
appeal was without merit:

Id.

Furthermore, insofar as Brown argues that his 1995 [sic]
termination entry is not a final appealable order, Brown’s relief is a
revised sentencing entry requested from the trial court. McAllister
v. Smith, 119 Ohio St. 3d 163, 2008-Ohio-3881, ¶ 7-8. In the event
the trial court refuses to issue a revised sentencing entry, Brown
can file an action for writ of mandamus or procedendo to compel
the court to act. Id. at ¶ 18.

In the federal courts, filing by an incarcerated person is complete upon deposit in the
prison mailing system. Houston v. Lack, 487 U.S. 266 (1988); Cook v. Stegall, 295 F.3d 517,
521 (6th Cir. 2002). However, the mailbox rule is not binding on the States. Maples v. Stegall,
340 F.3d 433 (6th Cir. 2003); Adams v. LeMaster, 223 F.3d 1177, 1183 (10th Cir. 2000). Ohio has
refused to adopt the mailbox rule.

State, ex rel Tyler, v. Alexander, 52 Ohio St. 3d 84

(1990)(noting that Houston is not a constitutional decision and finding its logic unpersuasive.)
Assuming the truth of Brown’s claim that he deposited the notice of appeal in the prison mail
system before the due date, it did not arrive in time and the Second District did not violate
Brown’s constitutional rights in refusing to accept it.
The Magistrate Judge had reached this point in the analysis in the Second Supplemental
Report and Recommendations. In his instant Objections, Brown claims the Magistrate Judge
erred in not expanding the record to include “Exhibit 15 and Exhibit 48.” (ECF No. 38, PageID
3739). As to these two exhibits, the Order denying expansion of the record reads:
Exhibit 15 (PageID 3490-99) does not show that it was ever filed
in the state court and is excluded on that basis.
Exhibit 48 (PageID 3574-80) purports to be a memorandum in
opposition to motion to dismiss by appellees in the Second District
27

Court of Appeals. The document does not show that it was ever
filed in the Second District and is excluded on that basis.

(Decision and Order, ECF No. 24, PageID 3587-88.) That Decision was filed December 1,
2017, and Brown took no appeal to the District Judge. He has therefore forfeited the argument
these documents should have been added to the record.
Brown relies on Dorn v. Lafler, 601 F.3d 439 (6th Cir. 2010), where the court held that
prison officials’ failure to timely mail a notice of appeal on an appeal of right deprived the
habeas petitioner of access to the courts. Dorn is not in point because the appeal in question was
not an appeal of right and in any event the Second District decided it was without merit.
Ground Two should therefore be dismissed with prejudice.

Ground Three: Improper Characterization of Motion to Dismiss

In his Third Ground for Relief, Brown claims he was denied due process and equal
protection of the laws when the Common Pleas Court treated his Motion to Dismiss as a motion
for post-conviction relief under Ohio Revised Code § 2953.21. The Warden asserts this Ground
does not plead any constitutional basis.
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
28

conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68 (1991).
Brown fails to explain how this treatment deprived him of any constitutional right. On
appeal from the trial court’s order, the Second District agreed with treating the Motion to
Dismiss as a petition for post-conviction relief. State v. Brown, supra, at n. 2. This decision by
the Second District on a question of Ohio law – how to characterize a motion such as the one
Brown filed – is binding on this Court. Brown points to no decision of the United States
Supreme Court or the Sixth Circuit to the contrary. Merely putting a constitutional label such as
denial of due process or equal protection on a state law claim does not elevate it to the status of a
claim cognizable in habeas corpus. “[A] talismanic reliance on labels should not be a substitute
for sensitive consideration of the procedures required by due process.” Board of Curators of the
University of Missouri v. Horowitz, 435 U.S. 78, 106 (1978).
Brown objects that this Court should consider Ground Three de novo (Objections, ECF
No. 38, PageID 3740-41. The Magistrate Judge has done so and is not aware of any Supreme
Court decision clearly establishing a due process or equal protection violation in circumstances
parallel to those raised in Ground should therefore be dismissed for failure to state a claim upon
which habeas corpus relief can be granted.

Ground Four: Incompleteness of the State Court Judgment

In his Fourth Ground for Relief, Brown asserts the trial court “failed to dispose of all
charges pending against Petitioner in the single case before the trial court’s judgment with
respect to any charge was final.” (ECF No. 4, PageID 269.)
The Magistrate Judge recommended denial of this claim also, because it does not state a

29

constitutional violation and should be dismissed on the same basis as Ground Three. Brown objects
that his state court case was not ripe for review until Judge Wiseman entered the July 2014 Amended
Termination Entry. The Second District rejected this lack-of-final-appealable-order argument on the
basis outline above. That decision in no way contravenes federal law. Brown cites Collins v. Miller,
252 U.S. 364 (1920), but that case concerns finality of a judgment in habeas corpus for purposes of
appeal to the United States Supreme Court on writ of error. It has nothing to do with finality of a
state court judgment.
The Magistrate Judge again recommends that the Fourth Ground for Relief be dismissed for
failure to state a claim upon which habeas corpus relief can be granted.

Ground Five: Second District’s Failure to Comply with Ohio R. App. P. 12(A)(1)(c)

The Magistrate Judge previously wrote “[o]n its face, this Ground for Relief raises only a
state law claim and should be dismissed on the same basis as Ground Three.” (ECF No. 34, PageID
3700.) Brown objects on the basis of Evitts v. Lucey, 469 U.S. 387 (1985), and Martin v. Wilson,

419 F.Supp.2d 976 (N.D. Ohio 2006). Evitts is an equal protection case dealing with the right to
effective assistance of appellate counsel and has no application here. The habeas petition in
Martin was denied, so it is not precedent for treating a state court rule as creating a constitutional
requirement.
Ground Five should therefore be dismissed for failure to state a claim upon which habeas
corpus relief can be granted.

Ground Six: Second District Failure to Vacate Illegal Sentence

30

In his Sixth Ground for Relief, Brown claims the Second District violated his
constitutional rights to Due Process when it failed to vacate the sentence it regarded as illegal.
In the many cases dealing with Ohio inmates re-sentenced to impose or announce orally
the imposition of post-release control, some of which are cited above, the Sixth Circuit has never
suggested that Ohio has a constitutional obligation to vacate either the entire sentence or the
entire conviction. Since at least State v. Fischer, 128 Ohio St. 3d 92 (2010), Ohio has followed
the practice of vacating as void only that portion of the criminal judgment dealing (or not
dealing) with post-release control and the Sixth Circuit has not questioned the constitutionality of
that process. Thus Brown has not shown that the failure to completely vacate the judgment
violated a constitutional right as clearly established by the Supreme Court.
The Magistrate Judge previously recommended Ground Six should be dismissed as
without merit on this basis. Brown objects that before Fischer the Ohio Supreme Court was
remanding cases with improper imposition of post-release control for full resentencing and
asserts the Ohio Supreme Court cannot change this retroactively (Objections, ECF No. 38,
PageID 3743). The only federal case cited by Brown is George v. Camacho, 119 F.3d 1393 (9th
Cir. 1997), in which the Ninth Circuit chose to make a new rule applicable only prospectively.
The decision says nothing about the power of state courts to make rulings apply retroactively.

Ground Seven: Denial of Equal Protection in Second District’s Denial of Reconsideration

In recommending denial of this Ground for Relief, the Magistrate Judge previously wrote:

In his Seventh Ground for Relief, Brown claims the Second
District denied him equal protection of the laws when it denied
reconsideration of its January 8, 2013, decision. The denial of
31

reconsideration appears at State Court Record, ECF No. 13-2,
PageID 1689-90. Brown has failed to plead, much less
demonstrate, that in denying reconsideration here the Second
District treated him differently from any other similarly situated
litigant. Such adverse differential treatment is necessary to state a
claim for relief under the Equal Protection Clause. Ground Seven
should be dismissed for failure to state a claim upon which habeas
corpus relief can be granted.

(ECF No. 34, PageID 3701.)
In his Objections, Brown concedes “the Magistrate Judge has a valid point,” but then asks
that his argument made in his Motion for Reconsideration in the Second District which appears
in the State Court Record (ECF No. 13-2, PageID 1682-88) be substituted as his Seventh Ground
for Relief. Having considered that Motion, the Magistrate Judge finds it raises no issues that are
not adequately dealt with elsewhere in this Report. Therefore the Motion to Amend is denied.

Ground Eight: The Second District Lacked Appellate Jurisdiction

In his Eighth Ground for Relief, Brown claims the Second District acted without subject
matter jurisdiction and thereby deprived him of his Fourteenth Amendment right to due process
when “it heard an appeal and decided the trial court imposed a sentence on each count in
accordance to [sic] law.” (ECF No. 4, PageID 273.)
As the Magistrate Judge reads this claim, it is that the Second District erred when it found
that the trial court had imposed a sentence on each count of conviction. A state appellate court
charged with reviewing a trial court judgment does not lose its jurisdiction when it makes a
mistake, e.g., by incorrectly interpreting the judgment that it is reviewing.

Based on this

analysis, the Magistrate Judge recommended denying Ground Eight for failure to state a
32

constitutional claim. (ECF No. 34m PageID 3701.)
Brown objects that his claim is really that the Second District violated his due process
rights by deciding a case over which it did not have subject matter jurisdiction (ECF No. 38,
PageID 3743). Although he does not restate the basis of this claim, it is apparently another
variation of the lack-of-final-appealable-order claim which is, for reasons given above, without
merit.

Ground Nine: Lack of Appellate Jurisdiction

This variation on the lack-of-final-appealable-order claim is also without merit for the
same reasons given above. Brown objects to this recommendation on the basis of Hohorst v.
Hamburg-American Packet Co., 148 U.S. 262 (1893). 3 In that case the Supreme Court held it
did not have subject matter jurisdiction over an appeal in a patent case because the judgment was
not final in that there remained parties or claims which had not been decided.

Although

appellate practice in the United States has changed a great deal since 1893, particularly by the
establishment of the circuit courts of appeals, the result would still be the same under Fed. R.
Civ. P. 54 and 28 U.S.C. § 1291. But neither the Rule, the statute, nor Hohorst purports to
impose any constitutional obligation on state courts.

Ground Ten: Lack of Appellate Jurisdiction
As to Ground Ten, the Magistrate Judge previously wrote, “In his Tenth Ground for Relief,
Brown incorporates by reference the arguments made and facts asserted in Grounds Five through

3

The Magistrate Judge is relatively certain that in more than forty years of judicial practice, he has never had the
Hohorst case cited to him before.

33

Nine. Thus Ground Ten is surplusage and should be dismissed as such.” (ECF No. 34, PageID
3702). Brown objects that the “Magistrate Judge’s contention is meritless,” (ECF No. 38, PageID
3744), but does not explain how incorporating meritless claims by reference makes them rise to a
new level of actually stating a claim.

Ground Eleven: Equal Protection Violation by the Second District Court of Appeals

In his Eleventh Ground for Relief, Brown asserts he was denied equal protection of the
laws when he was treated differently than criminal defendants in State v. Johnston, 2013-Ohio4401, 2013 Ohio App. LEXIS 4636 (2nd Dist. Sept. 30, 2013), and State v. Sanchez, 2009-Ohio813 (2nd Dist. Feb. 23, 2009).

Having reconsidered the cited cases in light of Brown’s

Objections (ECF No. 38, PageID 3746), the Magistrate Judge still fails to perceive any way in
which the appellants in those two cases were treated more favorably than Brown.

Ground Twelve: Second District’s Failure to Certify Record to the Ohio Supreme Court

In his Twelfth Ground for Relief, Brown asserts the Second District denied him
fundamental fairness and abused its discretion when it refused to certify the record in his case to
the Ohio Supreme Court under Article IV, § 3(B)(4). Brown does not state any supporting facts,
but purports to incorporate by reference the statement of facts in his Memorandum in Support of
Jurisdiction in Ohio Supreme Court Case No. 2014-0254 (Petition, ECF No. 4, PageID 277).
In the referenced Memorandum in Support of Jurisdiction, Brown argued to the Ohio
Supreme Court that the Second District’s decision of December 6, 2013, was in conflict with a
34

decision of the Fourth District Court of Appeals which he does not cite (State Court Record, ECF
No. 13-2, PageID 1810). The Ohio Supreme Court declined to accept jurisdiction without any
explanation (ECF No. 13-2, PageID 1822).
Article IV, § 3(B) of the Ohio Constitution permits a court of appeals to certify the record
to the Ohio Supreme Court when their judgment in a case “is in conflict with a judgment
pronounced upon the same question by any other court of appeals of the state.” In his Motion to
Certify, Brown cited a number of decisions of the Fourth District Court of Appeals which he
claimed were in conflict (State Court Record, ECF No. 13-2, PageID 1773).

In denying the

Motion to Certify, the Second District found that in none of the cited cases had there actually
been a judgment of the Fourth District, a conflicting judgment being a required predicate for
certification. State v. Brown, Case No. 21540 (2nd Dist. Dec. 6, 2013)(unreported; copy at State
Court Record, ECF No. 13-2, PageID 1786-88.)
There is no Ohio constitutional right to have a conflict between decisions of two appellate
courts. Rather, Article IV, §3(B) provides a mechanism whereby the Ohio Supreme Court can, if
it chooses, resolve a conflict between two appellate courts. More importantly, there is no clearly
established federal constitutional right to have a state supreme court resolve conflicts between
two intermediate appellate courts.
There is no federal constitutional right to appeal criminal verdicts for error review.
McKane v. Durston, 153 U.S. 684 (1894), cited as still good law in Lopez v. Wilson, 426 F.3d
339, 355 (6th Cir. 2005); Halbert v. Michigan, 545 U.S. 605 (2005). “Due process does not
require a State to provide appellate process at all.” Goeke v. Branch, 514 U.S. 115, 120 (1995).
An allegation that a state court judge has abused his or her discretion in making a
decision does not state a claim for relief in habeas. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).

35

Based on this analysis, the Magistrate Judge recommended this Twelfth Ground for
Relief be dismissed for failure to state a claim upon which habeas corpus relief could be granted
(ECF No. 34, PageID 3704).
Brown objects, relying on Evitts, supra, for the proposition that if States do create an
appellate process, they must administer it in accordance with the Due Process and Equal
Protection Clauses (ECF No. 38, PageID 3746). But as for examples of how the State of Ohio’s
process failed to comport with those Clauses as to this particular Ground for Relief, he merely
says “the record speaks for itself in this case.” Id. The record does not show that the Second
District refused to certify the record for some invidiously discriminatory reason that applied to
Brown, a necessary predicate for an Equal Protection claim. The fact that Ohio provides for a
resolution by the Ohio Supreme Court of conflicts between decisions of intermediate appellate
courts does not logically imply it must, as a matter of federal constitutional law, do so in every
case where a litigant claims there is such a conflict.
Therefore Ground Twelve should be dismissed for failure to state a claim upon which
habeas corpus relief can be granted.

Ground Thirteen: Failure to Pronounce Sentence in the Presence of the Defendant

In his Thirteenth Ground for Relief, Brown claims that the sentence pronounced in open
court was not the same as the sentence imposed in the original termination entry. The gravamen
of this claim appears to be that the five-year term of post-release control was included in the original
termination entry but not pronounced in open court. Assuming that this states a claim for habeas
corpus relief, Brown has already received an adequate remedy when the Second District remanded
for oral pronouncement of the post-release term and then Judge Wiseman complied with that

36

mandate. To the extent Brown’s claim is that he was entitled to be present in person at the
resentencing, rather than by video, that claim is dealt with in Ground Nineteen, infra. Therefore the
Magistrate Judge recommended Ground Thirteen be dismissed as moot (ECF No. 34, PageID 3705.)
Brown objects to this conclusion because he says he “filed pre-sentencing motions.” (ECF
No. 38, PageID 3746, referencing ECF No. 25, PageID 3606.) The referenced document does not
recite what those pre-sentencing motions were or why they were properly before the Common Pleas
Court on resentencing under Fischer, supra, or how the federal constitution required the Common
Pleas Court to consider those motions on a limited resentencing.
Accordingly, the Magistrate Judge adheres to his prior recommendation that Ground Thirteen
be dismissed as moot.

Ground Fourteen: Lack of Finality When Speedy Trial Motion Denied

Brown’s Fourteenth Ground appears to be that denial by the trial court of his motion to
dismiss on speedy trial grounds was not final and appealable during his first direct appeal because the
termination entry did not yet contain the post-release control term. As noted above, the question of
what is a final appealable order under Ohio law is itself a question of Ohio law. Failure to comply
with the final appealable order rule does not constitute a federal constitutional violation. On the basis
of this analysis, the Magistrate Judge recommended that Ground Fourteen be dismissed for failure to
state a claim upon which habeas corpus relief can be granted.
Brown objects “[t]he Magistrate Judge’s findings are clearing [sic] erroneous. Brown has
argued this contention at pages 5-11.” (ECF No. 38, PageID 3747). This argument is unavailing for
the reasons already given with respect to the Ohio law of final appealable orders. Therefore the
Magistrate Judge adheres to his prior recommendation.

37

Ground Fifteen: Due Process Violation in Overruling Motion to Dismiss

As best the Magistrate Judge can tell, Brown is complaining in this Ground Fifteen that the
Second District violated his due process rights when it reversed and remanded for the oral advice of
post-release control without vacating the entire judgment.
No clearly established federal law mandates that a state appellate court vacate an entire
criminal judgment when it vacates a portion of the judgment to allow a correction to comply with
mandatory state sentencing law. On that basis, the Magistrate Judge recommended Ground Fifteen
be dismissed for failure to state a claim upon which habeas corpus relief can be granted (ECF No. 34,
PageID 3706). All Brown says in objection is, “[t]he Magistrate Judge’s findings are erroneous.”
(ECF No. 38, PageID 3747.) That objection is completely conclusory.

Only specific objections are preserved for appellate review. Smith v. Detroit Federation
of Teachers, 829 F.2d 1370 (6th Cir. 1987). The district court need not provide de novo review
where objections to a magistrate judge's report and recommendations are frivolous, conclusive,
or general. Parties have a duty to pinpoint portions of the report that the Court should consider.
Mira v. Marshall, 806 F.2d 636 (6th Cir. 1986).

If a party files a general objection and

incorporates other papers by reference and that approach undermines the purposes of the
Magistrate’s Act, that party will have waived the right to appeal. Neuman v. Rivers , 125 F.3d
315 (6th Cir. 1997).
The Magistrate Judge accordingly adheres to his original recommendation.

Ground Sixteen: Equal Protection Violation in Overruling Motion to Dismiss
Brown relies on the same supporting facts for Ground Sixteen as he did for Ground Fifteen.
The Magistrate Judge therefore recommended it be dismissed on the same basis (ECF No. 34,

38

PageID 3706). Again, Brown makes no specific objection (ECF No. 38, PageID 3747), so the
Magistrate Judge adheres to his prior recommendation.

Ground Seventeen: Due Process Violation in Failure of Second District to Make Threshold
Appealability Decision

In his Seventeenth Ground for Relief, Brown asserts he was deprived of due process of law
when the Second District did not sua sponte determine whether it did or did not have jurisdiction of
the initial direct appeal before proceeding to decide the merits. As part of his claim, Brown asserts
the Second District was required to determine whether the March 2006 termination entry was a final
appealable order “as the law exist[ed] at the time the entry is appealed whether either party raise[es] a
jurisdictional issue or not.” (ECF No. 4, PageID 283.)
As noted in the Second Supplemental Report and Recommendations, it is not clearly
established by any United States Supreme Court precedent that a state appellate court must sua
sponte raise and decide the issue of its own jurisdiction, much less embody that finding in a written
decision, before it proceeds to decide a case presented to it (ECF No. 34, PageID 3706-07). The
Magistrate Judge therefore recommended that Ground Seventeen be dismissed for failure to state a
claim upon which habeas corpus relief can be granted. Id. at PageID 3707.
Brown objects that

On every writ of error or appeal, the first and fundamental question
is that of jurisdiction, first, of this Court, and then of the court from
which the record comes. This question the Court is bound to ask
and answer for itself, even when not otherwise suggested, and
without respect to the relation of the parties to it.
(Objections, ECF No. 38, PageID 3748, purporting to quote from Steel Co. v. Citizens for a Better

39

Env’t, 523 U.S. 83 (1998). 4 “[T]his Court” in Steel Co. refers to the Supreme Court of the United
States and “the court from which the record comes” refers to the particular lower court whose record
is before the Supreme Court on writ of certiorari. The quoted language is still good law, although the
case from which Steel Co. quotes it is more than one hundred years old and the Supreme Court no
longer hears cases on writ of error. It is a rule of constitutional law in that the Supreme Court
interprets the boundaries of federal judicial power under Article III of the United States Constitution.
Among its many implications are that the absence of subject matter jurisdiction in a federal court
must be raised sua sponte by the Court, even if none of the parties does so. Louisville & Nashville

R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Capron v. Van Noorden, 6 U.S. 126 (1804);
Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir.
2009); Clark v. United States, 764 F. 3d 653 (6th Cir. 2014). Congress cannot add to the Article
III powers of federal courts by, for example, granting the Supreme Court original jurisdiction in
mandamus. Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60 (1803). The Court has recently
reinforced these limitations by holding a circuit court of appeals cannot decide the merits of a
habeas case without first granting a certificate of appealability. Buck v. Davis, 580 U.S. ___, 137
S.Ct. 759, 773, 197 L. Ed. 2d 1 (2017).
But these rules about ensuring a court’s own jurisdiction and that of the lower court apply
only to the federal courts. Nothing in the United States Constitution requires a state appellate
court to examine first the jurisdiction of the court from which an appeal is taken and then its own
jurisdiction before proceeding.
The Magistrate Judge remains persuaded that Ground Seventeen does not state a claim
for relief in habeas and should be dismissed on that basis.

4

The quoted language does appear in Steel Co., where it is quoted from the Court’s earlier decision Great Southern
Fire Proof Hotel Co. v. Jones, 177 U.S. 449,453 (1900).

40

Ground Eighteen: Lack of a Final Appealable Order until July 11, 2014

In support of his Eighteenth Ground for Relief, Brown incorporates by reference page 13
of his Memorandum in Support of Jurisdiction in the Ohio Supreme Court (ECF No. 13-3,
PageID 1929) and the supporting facts for Ground Fifteen.
As already stated many times in this Report, the question of whether a trial court entry in
an Ohio Common Pleas Court is a final appealable order under Ohio law is a question purely of
Ohio law. Ground Eighteen should be dismissed for failure to state a claim upon which habeas
corpus relief can be granted.
Brown’s objections on this Ground for Relief are duplicative of prior arguments (ECF
No. 38, PageID 3748).

Ground Nineteen: Unconstitutional Failure to Provide Physical Presence at Resentencing

In his Nineteenth Ground for Relief, Brown asserts he was deprived of liberty, due process,
and equal protection when he was not transported to be personally present for the resentencing
hearing at which Judge Wiseman orally advised him of the five-year term of post-release control.

Brown had raised this claim in the Second District on appeal from the resentencing and
that court had decided it adversely to him.

In the original Report, the Magistrate Judge

concluded the Second District’s decision was not an unreasonable application of Snyder v.
United States, 291 U.S. 97 (1934), and was therefore entitled to deference under 28 U.S.C. §
2254(d)(1)(Report, ECF No. 26, PageID 3628-29). On the initial recommittal, the Magistrate
Judge adhered to that conclusion (Supp. Report, ECF No. 31, PageID 3660).
Brown then objected that a trial court is required by Ohio R. Crim. P. 43 to obtain a
41

signed waiver of physical presence and this omission is not cured by Ohio Revised Code §
2929.191 where the defendant objects prior to the hearing (Objections, ECF No. 32, PageID
3676). The cited statute is the Ohio General Assembly’s effort to provide a mechanism for these
remands to impose post-release control and specifically authorizes video conferencing
appearance on the trial court’s own initiative whether or not a defendant consents. In any event,
resolving any apparent conflict between Ohio R. Crim. P. 43 and Ohio Revised Code § 2929.191
is a question of Ohio law, not federal constitutional law.
Brown also objected to the Magistrate Judge’s reliance on Snyder, supra, and argues the
relevant Supreme Court precedent is Kentucky v. Stincer, 482 U.S. 730 (1987), and Hicks v.
Oklahoma, 447 U.S. 343 (1980).
In Stincer, the Supreme Court held that a defendant in a sex offense case had no right under
either the Confrontation Clause or the Due Process Clause to be personally present during the
competency hearing for two young girls who were victim witnesses. The Second District’s decision
on Brown’s claim is an objectively reasonable application of Stincer in that Brown’s interest in being
personally present at the resentencing hearing is substantially less than the interests of Stincer in
being present at the competency hearing.
In Hicks, the Supreme Court held that a defendant’s liberty interest in having a jury fix his
sentence was not merely a matter of state procedural law but protected by the Due Process Clause of
the Fourteenth Amendment. In that case, the provision of Oklahoma’s habitual offender statute
under which the jury had been instructed to impose a particular sentence had later been declared
unconstitutional. Hicks has no application to the question of whether a defendant is entitled to be
present in person for a resentencing.

Based on this analysis, the Magistrate Judge again

recommended dismissal of Ground Nineteen (ECF No. 34, PageID 3709).
Brown objects that the Ohio Supreme Court has resolved the exact question of Ohio law

42

involved – possible conflict between Ohio R. Crim. P. 43 and Ohio Revised Code § 2929.191 – in
State ex rel Silcott v. Spahr, 50 Ohio St. 3d 110 (1990). In that case, the Ohio Supreme Court did
indeed adopt the general rule that Ohio rules of procedure, adopted by the Ohio Supreme Court under
the Modern Courts Amendment, prevail over conflicting statutes. But the Silcott case did not address
the supposed conflict in this case.
Brown raised this claim as his First Assignment of Error on appeal from the resentencing
(State Court Record, ECF No. 13-3, PageID 2039). The Second District decided that, regardless of
the supposed conflict between the rule and the statute, Brown had suffered no prejudice from not
being present in person. State v. Brown, Case No. CA 26320 (2nd Dist. Sep. 25, 2015)(State Court
Record, ECF No. 13-3, PageID 2111 et seq.) If the Second District was wrong on this question of
Ohio law, it is beyond the authority of this Court to change that ruling. On the other hand, the
Second District also found there was no federal constitutional error, relying expressly on Snyder,
supra. That decision was not an unreasonable application of Supreme Court precedent and is
consequently entitled to deference under 28 U.S.C. § 2254(d)(1).
Brown’s Nineteenth Ground for Relief should therefore be dismissed with prejudice on the
merits.

Ground Twenty: Unconstitutional Application of Res Judicata

In his Twentieth Ground for Relief, Brown complains of the denial of his First
Supplemental Assignment of Error on appeal from resentencing on the basis of res judicata. The
original Report found that as pleaded, the Twentieth Ground for Relief did not state a cognizable
claim because it relied on Ohio and Federal Rules of Criminal Procedure 43. The latter rule has
never applied to state criminal proceedings and violation of the former rule was not presented to

43

the state court as a constitutional question (Report, ECF No. 26, PageID 3629-30).
Brown objected that he had intended to include Ohio Rule 43 in his Petition, but had
omitted it as a result of typographical error which this Court was bound to excuse.

The

Supplemental Report concluded that inserting the Ohio Rule would not make a difference
because failure to abide by state law is not a federal constitutional violation (Supp. Report, ECF
No. 31, PageID 3661).
Brown then objected on the basis of Hicks v. Oklahoma, supra, which is certainly a case
in which the United States Supreme Court held that a particular state criminal procedural rule created
a liberty interest protected by the Due Process Clause. Brown also relies on Hoffner v. Bradshaw,
622 F.3d 487, 495 (6th Cir. 2010)(quoting Barclay v. Florida, 463 U.S. 939, 957-58 (1983)), and
Carter v. Mitchell, 693 F.3d 555 (6th Cir. 2012).
In Carter, the Sixth Circuit held that in a capital case, the trial court’s use of nonstatutory
aggravating factors in deciding the sentence implicated the Eighth Amendment “because the
statutory aggravating factors play the ‘constitutionally necessary function’ of circumscribing the
class of persons eligible for the death penalty” and the Due Process Clause “because a ‘defendant has
a legitimate interest in the character of the procedure which leads to the imposition of sentence even
if he may have no right to object to a particular result of the sentencing process.’” Carter, 693 F.3d
at 562, quoting Gardner v. Florida, 430 U.S. 349, 358 (1977). The Carter court relied on Hoffner
for the general proposition that “[s]tate law errors may warrant habeas relief if the errors ‘rise for
some other reason to the level of a denial of rights protected by the United States Constitution.’” 693
F.3d at 562, quoting Hoffner, 622 F.3d at 495.
There are probably thousands of Ohio criminal procedural rules when one considers the
statutes, the Rules of Criminal Procedure prescribed by the Ohio Supreme Court under the Modern
Courts Amendment, and the rules announced in various cases. Certainly some of those rules protect

44

rights arising from the United States Constitution.

For example, Ohio’s rules provide for the

appointment of counsel protect the Sixth Amendment right to be represented by counsel in any case
where there is a possibility of jail time.

See Argersinger v. Hamlin, 407 U.S. 25 (1972)

(misdemeanor cases where imprisonment is a possibility); Alabama v. Shelton, 535 U.S. 654
(2002)(even if sentence is suspended).

But the Sixth Circuit and Supreme Court have held that not all those procedural rights are
elevated to a constitutional level.

“A state cannot be said to have a federal due process

obligation to follow all of its procedures; such a system would result in the constitutionalizing of
every state rule, and would not be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir.
1993), cert. denied, 509 U.S. 907 (1993). Federal habeas corpus has long been 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). Since adoption of the Antiterrorism and Effective
Death Penalty Act of 1996, the authority of habeas courts has been further limited to granting
relief only if a state court judgment violates a right as clearly established by precedent of the
United States Supreme Court. In other words, habeas courts may not consider constitutional
questions de novo.
While Brown has pointed to Supreme Court precedent which decides as a general matter that
a violation of state criminal procedural law may rise to a constitutional level, he has pointed to no
such precedent which holds that the Ohio law on personal presence at sentencing creates a federal
constitutional right.

Even supposing there were such precedent, there is none holding thatthe

supposed right is violated when a state court applies its res judicata doctrine to decide a question or
that forbids a state from using video conferencing to procure a defendant’s participation in a hearing
just because that method was not authorized when the defendant was first sentenced.

45

Based on this analysis, the Magistrate Judge recommended that the Twentieth Ground for
Relief be dismissed on the merits for failure to state a claim upon which habeas corpus relief can be
granted. (ECF No. 34, PageID 3711.)
Brown’s objections as to this Ground for Relief are entirely conclusory and do not require
further analysis (ECF No. 38, PageID 3749).

Ground Twenty-One: Failure to Conduct a De Novo Sentencing Hearing

In his Twenty-First Ground for Relief, Brown claims he was deprived of liberty, due
process, and equal protection when the trial court imposed post-release control without
conducting a de novo sentencing hearing. In denying this claim, the Second District relied on
State v. Fischer, 128 Ohio St. 3d 392 (2010), and Brown argued this violated the constitutional
prohibition on ex post facto laws, relying on Miller v. Florida, 482 U.S. 423 (1987). The Report
distinguished Miller as having dealt with a change made by the legislature and Brown objected,
relying on Rogers v. Tennessee, 532 U.S. 451 (2001); Bouie v. South Carolina, 378 U.S. 347
(1964); and Weaver v. Graham, 450 U.S. 24 (1981). The Supplemental Report concluded:
None of this case law supports Brown’s claim. Fischer did not
expand basic criminal liability at all. Instead it clarified what
disposition the Ohio courts must make of cases where post-release
control was not properly imposed. This clarification cannot be said
to violate anyone’s right to fair notice of what conduct the State
will punish criminally. To put it another way, a person in Brown’s
position has no reliance interest in a particular interpretation of
what must be done on remand in a post-release control case; no
primary (“on the street”) conduct of the criminal defendant can
possibly be affected by this change.
(ECF No. 31, PageID 3664.)
Brown then objected, relying on Lancaster v. Metrish, 683 F.3d 740 (6th Cir. 2012). Brown
neglects to advise the Court that Lancaster was unanimously reversed on the point for which it is

46

cited by Metrish v. Lancaster, 569 U.S. 351 (2013). Lancaster had complained in habeas that the
Michigan Supreme Court’s abolition of the diminished capacity defense had been applied to him
retroactively when he was retried for homicide; the defense had been available at his first trial.
Justice Ginsburg concluded that the retroactive application of this decision was not an unreasonable
application of Rogers or Bouie.
Brown then objected that he had a reliance interest in the law on resentencing as it existed
before Fischer, but fails to explain how that can be possible, i.e., what he did or could have done in
reliance on the pre-Fischer state of the law (Objections, ECF No. 32, PageID 3683). Fischer
certainly did not expand criminal liability in the way the state supreme court decision at issue in
Bouie had. That is, it did not make any primary conduct by a person subject to criminal punishment
that he had not been subject to before. Based on this analysis, the Magistrate Judge recommended
Ground Twenty-One be dismissed on the merits.
Brown now objects that he had a reliance interest in the six-year sentence promised to him if
he pleaded guilty (ECF No. 38, PageID 3749), but his explanation is not plausible. Is he saying that
if he had known the 2006 state of the law regarding resentencing in cases where a term of postrelease was incorrectly imposed, he would have agreed to the proffered plea arrangement? He offers
no corroborating detail to prove this was his state of mind at the time and it is completely
unbelievable.
Brown also objects that he had a liberty interest in the pre-Fischer state of resentencing law,
to wit, that there would be a complete resentencing (ECF No. 38, PageID 3749). State law may

create protectable liberty interests. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454,
462 (1989).

To create such a liberty interest, the State must use “‘explicitly mandatory

language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive
predicates are present, a particular outcome must follow, in order to create a liberty interest.”

47

Id., citing Hewitt v. Helms, 459 U.S. 460, 471-72 (1983). State-created procedural rights that do
not guarantee a particular substantive outcome are not protected by the Fourteenth Amendment,
even where such procedural rights are mandatory. Pusey v. City of Youngstown, 11 F.3d 652,
656 (6th Cir. 1993). A hearing right does not command a particular substantive outcome and
therefore does not create a liberty interest. Fields v. Henry Cty., 701 F.3d 180 (6th Cir. 2012).
The pre-Fischer law provided for a resentencing de novo, but it in no way guaranteed a lesser
sentence.

Certificate of Appealability

The Magistrate Judge has consistently recommended that Brown be denied a certificate
of appealability because reasonable jurists would not disagree with dismissal of the Petition.
Brown objects that “[n]ot once in all of the Magistrate Judge’s [reports] has the Magistrate Judge
concluded Brown is wrong about being ‘unlawfully’ held ‘in custody’ prior to a final judgment
of conviction and sentence, which did not happen until July 15, 2014.” (ECF No. 38, PageID
3750). Brown is correct about that. Ohio law required that Brown be orally advised of the postrelease control condition and that the incomplete 2006 termination entry be amended to reflect
that that had not been done.

But neither of those facts makes Brown’s imprisonment

unconstitutional and a federal court can only issue a writ of habeas corpus upon a finding of
unconstitutional confinement. Not only has Brown’s imprisonment been constitutional, but it is
also the case that no reasonable jurist would disagree with this conclusion. Despite hundreds of
pages of briefing, Brown has not cited a single federal habeas case in which the court found the
writ should issue because of state-law inadequacies in the imposition of post-release control.

48

Because of that fact, the Magistrate Judge again recommends that Petitioner 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.

April 5, 2018.
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 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).

49