Glenn v. Warden, Warren Correctional Institution et al

Filing 50

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 7/5/2018. Signed by Magistrate Judge Michael R. Merz on 6/20/2018. (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
DUSTIN GLENN,
Petitioner,

:

- vs -

Case No. 3:17-cv-435
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz

PREBLE COUNTY SHERIFF
DEPARTMENT AND STATE OF
OHIO
:
Respondents.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Motion to Dismiss
of Chae Harris, Warden of the Warren Correctional Institution (ECF No. 42). Petitioner has filed
an Opposition (ECF No. 49).
Warden Harris reports that Petitioner was confined in his custody until May 18, 2018, and
is thereafter in the custody of the Ohio Adult Parole Authority serving a term of post-release
control. The Petition names as Respondents the Sheriff of Preble County, Ohio, and the State of
Ohio (ECF No. 3, PageID 37). Although Petitioner was in the custody of Warden Harris when he
filed, he was not confined on the conviction listed in the Petition as the one on which he sought
relief, and on his Motion the Warden was dismissed as a Respondent (ECF Nos. 5 & 6). The
Magistrate Judge concludes Glenn is sufficiently in custody to invoke habeas corpus jurisdiction
and that the proper Respondent is the Ohio Adult Parole Authority. Assistant Attorney General

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Fosnaught has moved for dismissal on behalf of the Warden, who was the custodian on the date
the Motion to Dismiss was filed, and on behalf of the Ohio Adult Parole Authority. She does not
represent the Sheriff of Preble County (ECF No. 42, PageID 331, n. 1).
Maintenance of a sex offender registry as required by state law does not constitute keeping
a person in custody within the meaning of habeas corpus jurisprudence. Classification under the
Ohio sexual predator statute does not result in custody sufficient to permit testing by writ of habeas
corpus. Leslie v. Randle, 296 F.3d 518 (6th Cir. 2002). Because the Sheriff does not have custody
of Glenn, he is not a proper party Respondent and should be dismissed.

Procedural History

In September 2013 Glenn was indicted by the Preble County grand jury on one count of
unlawful sexual conduct with a minor (Indictment, State Court Record ECF No. 41, PageID 21516). He was convicted at jury trial and sentenced to one year imprisonment and five years of postrelease control. Id. at PageID 223-24. Glenn took no direct appeal. Instead, on October 20, 2017,
he filed a motion for delayed appeal. Id. at PageID 228-29. The Twelfth District Court of Appeals
denied that motion on December 12, 2017, and a motion for reconsideration on March 8, 2018,
explaining that the delayed appeal was denied because Glenn had not offered any acceptable
excuse for the delay. Id. at PageID 268-69. The Ohio Supreme Court declined to exercise
jurisdiction over a subsequent appeal. Id. at PageID 282.
Glenn filed his Petition for Writ of Habeas Corpus in this Court on December 27, 2017,
pleading three grounds for relief:
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Ground One: Petition U.S. Constitution right to counsel was
violated [AND1] when no waiver of counsel was executed.
Ground Two: Petition U.S. Constitutional right to due process was
violated when no consent hearing was held to determine Tier II
status.
Ground Three: Petitioner U.S. Constitutional right to due process
was violated when Petitioner was denied to appeal.
(Petition, ECF No. 3.)

Analysis

Ground One: Lack of Signed Waiver of Counsel

In his First Ground for Relief, Petitioner asserts he was denied his right to counsel under
the United States Constitution when he was tried after having waived counsel orally, but without
having executed a written waiver of counsel.

Statute of Limitations

Respondent asserts this claim is barred by the statute of limitations (Motion, ECF No. 42,
PageID 336). Petitioner responds that he has been a ward of the State since before his conviction
in 2013 ( ECF No. 49, PageID 372).
28 U.S.C. § 2244(d) provides:
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Added by amendment at ECF No. 14, PageID 129, ECF No. 49, PageID 372.

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(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.

There are references in the record to Attorney Jacob Kovach’s being appointed as guardian
of the estate of Mr. Glenn, but no details have been furnished to this Court on the scope of that
appointment or anything about the condition or conditions that made that seem appropriate to the
Preble County Probate Court. Regardless of that appointment, Glenn was never found incompetent
to stand trial and was even found competent to represent himself when he rejected court appointed
counsel. Glenn has offered no proof that his mental condition at any time during the thirty-day
period after his conviction rendered him incompetent to tell appointed counsel to file an appeal on

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his behalf.
Glenn’s conviction became final on the thirtieth day after his conviction – July 12, 2014 - when he failed to appeal. It expired one year later on July 13, 2015. The Petition here was not
filed until December 28, 2017, when it was scanned to the Court from Lebanon Correctional
Institution. Thus the Petition is time barred and the First Ground for Relief should be dismissed
on that basis.

Procedural Default

As to the First Ground for Relief, Respondent asserts that consideration on the merits is
also barred by Petitioner’s procedural default in presenting the claim to the Ohio courts.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433
U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
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habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted);
Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott
v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
As applied in this case, Ohio has a rule that a direct appeal from a criminal conviction must
be filed within thirty days of the sentence and judgment. The Twelfth District enforced that rule
in this case by turning down Glenn’s motion for delayed appeal on the ground it was very untimely
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with no acceptable explanation. There is no question that a State may impose a limit on the time
within which a criminal conviction may be appealed in protecting its interest in the finality of those
judgments.
As excusing cause, Glenn again asserts his status as a ward of the State, but offers no more
proof than that offered on the statute of limitations defense. The mere formal status of having a
guardian of the estate is insufficient to prove that Glenn was unable to pursue a timely appeal (for
which he would have had appointed counsel) or at least a more timely motion for delayed appeal.

Cognizability

As pleaded originally, Glenn’s First Ground for Relief was limited to his claim that he
never executed a written waiver of counsel. As Respondent points out, there is no clearly
established United States Supreme Court precedent that requires that waiver of counsel be in
writing.
Whether or not lack of written waiver violates Ohio law is immaterial to these proceedings.
Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. §
2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith
v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province
of a federal habeas court to reexamine state court determinations on state law questions. In
conducting habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991);
see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall Ch. J.); Bickham v.
Winn, 888 F.3d 248 (6th Cir. 2018)(Thapar, J. concurring).

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In the set of Objections in which he made his amendment to the Petition, Glenn raised a
different claim, to wit, that his waiver of counsel was altogether invalid. As Respondent notes in
the Motion to Dismiss, this claim was never raised in the Ohio courts at all and is therefore
procedurally defaulted.

Ground Two: Lack of Consent Hearing on Sexual Offender Classification

Petitioner claims he was denied his constitutional rights when the Common Pleas Court
classified him as a Tier II sex offender without a consent hearing, i.e., a hearing to determine if the
sexual conduct was consensual.
Respondent explains that Ohio Revised Code § 2950.01(F) classifies a person as a Tier II
offender if the person has been convicted of one of a series of offenses, including the offense of
conviction here under Ohio Revised Code § 2907.04(A), sexual conduct by a person over eighteen
with another whom he or she knows to be over thirteen but not over sixteen. Ohio Revised Code
§ 2950.01(B)(2) exempts from that classification an offender whose victim was over thirteen and
consented unless the offender is more than four years older than the victim.
Glenn sought a consent hearing in the Preble County Common Pleas Court which Judge
Abruzzo denied upon a finding that Glenn was not less than four years older than the victim (State
Court Record, ECF No. 41, PageID 319). Glenn does not deny the accuracy of this finding and in
any event did not appeal that decision.
Moreover, Glenn has not established that there is any clearly established United States
Supreme Court precedent which would have entitled him to such a hearing.
Ground Two should be dismissed for failure to state a claim upon which habeas corpus

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relief can be granted.

Ground Three: Denial of Appeal

In his Third Ground for Relief, Petitioner claims he was unconstitutionally denied his right
to appeal. Like the first two grounds, this claim is also barred by the statute of limitations and by
Glenn;s failure to present it to the state courts. In particular, when he filed for a delayed appeal,
he did not claim he was constitutionally entitled to the appeal. (See State Court Record, ECF No.
41, PageID 229.) While he did make that claim on further appeal to the Ohio Supreme Court, that
court will not hear claims that have not been first raised in the intermediate appellate court.
More fundamentally, denial of delayed appeal does not violate the United States
Constitution. 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).

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to

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proceed in forma pauperis.

June 20, 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).

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