ORDER

WILLIAM H. BAUGHMAN, JR., District Judge.

This is a timely habeas corpus case in which, after referral, the Hon. William H. Baughman, Jr., United States Magistrate Judge, has filed his Report & Recommendation. (Doc. 20). Petitioner has filed objections (Doc. 21), the respondent has filed a response thereto (Doc. 22), and the petitioner has filed a reply. (Doc. 24). The petitioner has also filed a motion to apply the "legal innocence" (sic: actual innocence) standard. (Doc. 23).

Finding, on de novo review of the Report & Recommendation and after due consideration, no merit to petitioner's objection or his motion, I adopt the Report & Recommendation as the order of this court, deny the motion as moot, and dismiss the petition with prejudice.

In addition, I decline to grant a Certificate of Appealability, as jurists of reason could not reasonably disagree with either the result or rationale of the decision to dismiss the petition for habeas corpus relief.

Background

In the early morning hours of July 20, 2013, a police officer arrested the petitioner after the officer saw the petitioner crossing the center line. In due course the petitioner plead no contest to two of the four ensuing charges of operating a vehicle while impaired (OVI). As a repeat offender with multiple OVI convictions over twenty years, the petitioner received two consecutive one-year sentences.

In the instant proceeding petitioner claims that the sentence he received does not exist under state law and the sentencing court lacked jurisdiction, so that his sentence was void ab initio. As is pertinent here, his direct appeal challenged his sentence as a violation of equal protection. That appeal included none of the additional claims he brings in this habeas corpus case. Nor did his subsequent appeal to the Ohio Supreme Court, which the intermediate appellate court facilitated by certifying a conflict as to its rejection of petitioner's constitutional challenge to his sentence. The Ohio Supreme Court affirmed the appellate court's rejection of petitioner's challenge.

Petitioner first raised his present habeas claims in a state habeas corpus petition in the Ohio Supreme Court. That Court summarily dismissed that petition.

Petitioner asserts four grounds for relief:

(Doc. 20 at 4-5 (quoting Doc. 1 at 5-10)).

Discussion

First: as to all petitioner's contentions about ineffective assistance of counsel (IAC), except for what he raised (only in the Court of Appeals), see Ohio v. Snowden, 11th Dist. Trumbull No. 2014-T-0092, 2015-Ohio-2611, 2015 WL 3964670, *3, aff'd mem., Ohio v. Snowden, 60 N.E.3d 1252 (Ohio 2016), petitioner has presented none of the IAC grounds to the state courts. Thus, whether due to procedural bar or otherwise, the IAC claims are not properly before me. There was no error in denying relief as to any and all IAC claims.

Petitioner's challenges to his sentence are likewise unavailing. Those challenges, such as his claim that his no contest plea was coerced, have never been raised in state court and thus are not properly before me.

His challenges to his sentence, whether based on alleged lack of jurisdiction, defects in the cumulative punishment provisions, or due process and equal protection likewise do not merit relief.

He has not challenged the trial court's jurisdiction in state courts; thus, he cannot do so here. In any event, such challenges are not cognizable in a habeas proceeding: "A determination of whether a state court is vested with jurisdiction under state law is a function of the state courts, not the federal judiciary." Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976) (per curiam).

The Court of Appeals, with the Ohio Supreme Court affirming, resolved petitioner's challenge to the lawfulness of his sentence under state law. Snowden, supra, 2015 WL 3964670, aff'd mem., 60 N.E.3d 1252. As a state court interpretation of the legality of a sentence under state law, that decision is not cognizable on federal habeas corpus review. E.g., Walden v. Huss, 2019 WL 2996187, at *2 (E.D.Mich.).

To the extent that petitioner seeks to assert other non-constitutional challenges to his sentence, his claims collide head-on with fundamental procedural principles: "[R]es judicata will apply when a defendant raises piecemeal claims . . . that could have been raised on direct appeal.. . ." Ohio v. Rangel, 11th Dist. Lake No. 2018-L-102, 2019-Ohio-1845, 2019 WL 2085824, *2. More specifically, "res judicata applies to bar raising piecemeal claims in successive postconviction relief petitions . . . that could have been raised, but were not, in the first post-conviction relief petition. . . ." Ohio v. McCain, 2d Dist. Montgomery No. 27195, 2017-Ohio-7518, 2017 WL 3971656, *5 (citations omitted).

In light of the state law prohibition against piecemeal presentation of claims, the state courts would deny relief on the basis of procedural default. Such denial would, and does, given petitioner's failure to enunciate adequate cause and resulting prejudice, bar review in this proceeding. The Magistrate Judge thus correctly applied res judicia principles to find that, under state law, petitioner, due to his procedural default, cannot bring the claims he asserts for the first time here. It is indisputable that petitioner's default (failing to assert all his challenges on direct appeal), being unexplained or excused on a showing of cause, is precluded from federal habeas review.

Finally, the decision in Snowden, supra, 2015 WL 3964670, cut the constitutional underpinning out from underneath the petitioner's renewed constitutional claims. He bottoms his claims of equal protection and due process violations on the contention that the OVI repeat offender provisions did not, by their own terms, require cumulative sentences. As a result, the door was open to unlimited discretion, thereby, petitioner postulates, allowing discriminatory sentencing.

In Snowden, supra, 2015 WL 3964670 at *3 (quoting Ohio v. Hartsook, 21 N.E.3d 617, 631 (Ohio App. 2014)), the court stated: "the language of the respective [OVI repeat offender] statutes clearly indicates that the General Assembly intended R.C. 4511.19 and R.C. 2941.1413 to authorize cumulative punishments for a single OVI offense by a repeat offender."

This determination of the meaning of a state statute is conclusive, and not subject to federal court second-guessing: "[W]hen a federal habeas court determines," as I have here, ". . . a state legislature intended to authorize separate, cumulative punishments under the circumstances presented, the [Federal] Court `must accept the state court's interpretation of the legislative intent for the imposition of multiple punishments.'" Nelson v. Trierweiler, 2019 WL 1977422, *6 (E.D.Mich.) (citing Brimmage v. Sumner, 793 F.2d 1014, 1015 (9th Cir. 1986)).

Conclusion

I overrule the petitioner's objections to Magistrate Judge's Report & Recommendation, though, to some extent, I take a somewhat different pathway to reach the same conclusions that he did. In the end, in any event, the results are the same.

It is, accordingly, hereby

ORDERED THAT:

Jurists of reasons could not reasonably dispute the result reached herein or its rationale. I decline, therefore, to issue a Certificate of Appealability.

So ordered.

REPORT AND RECOMMENDATION

Introduction

Before me by referral1 is the pro se petition of William Snowden, Jr. seeking a writ of habeas corpus under 28 U.S.C. § 2254.2 At the time the petition was filed,3 Snowden was incarcerated by the State of Ohio at the Trumbull Correctional Institution in Leavittsburg, Ohio. He was serving an aggregate sentence of two years in prison after in pleading no contest in 2014 as part of a plea deal to two counts of operating a vehicle while impaired ("OVI"), with repeat offender specifications.4

Facts

The basic background facts are simply stated. Snowden was arrested in the overnight hours of July 20, 2013, for continued weaving over the center line.5 After appearing intoxicated to the officer who pulled him over, Snowden refused field sobriety tests and was arrested.6 Pretrial motions focused on the presence in the indictment of four prior OVI convictions over a period of twenty years, which were used to support the repeat offender specification.7 A motion to dismiss the specification was denied, and Snowden, after negotiations, then pled no contest to two counts of OVI.8 Under the plea agreement, the court merged the two counts for sentencing and imposed the sentence set forth above.

As discussed in relevant detail below, Snowden then filed a timely direct appeal to the Ohio appellate court, which affirmed the decision of the trial court.9 On the basis of that decision, Snowden moved the appeals court to certify a conflict between that decision and one of another district court of appeals, which the appellate court did.10 Snowden also appealed a single proposition of law.11 The Supreme Court determined there was a conflict and consolidated Snowden's conflict with a related case.12 After resolving the conflict, Snowden's appeal was dismissed and the decision of the appeals court affirmed.13

Snowden then filed a post-conviction motion to set aside judgment, which was dismissed without opinion because the direct appeal was pending — a decision Snowden did not appeal.14 He also filed a pro se state petition for habeas corpus with the Ohio Supreme Court, which sua sponte dismissed the petition.15

In the present timely federal petition, Snowden raises four grounds for relief.16 The State has filed a return of the writ arguing, inter alia, that all four grounds were procedurally defaulted because Snowden failed to timely present them on direct appeal to the Supreme Court of Ohio.17 In his traverse, Snowden contends first that his conviction was "clearly void on its face" and subject to collateral attack in any court at any time.18 He also maintains that although he did not present his claims to the Ohio Supreme Court on direct appeal, he did raise them in the habeas corpus petition submitted to the Ohio Supreme Court.19

Analysis

The essence of the State's procedural default contention is that Snowden did not raise any of his current four grounds for federal habeas relief to the Supreme Court of Ohio in a timely appeal from the decision of the Ohio appeals court.20 To that end, the State observes that after the appellate court affirmed Snowden's conviction and sentence, Snowden elected to raise only a single proposition of law to the Ohio Supreme Court, contending that a conflict existed as to the constitutionality of Ohio's repeat OVI offender specifications pursuant to Ohio Revised Code 2941.1413.21 The State maintains that the only issue presented to the Supreme Court of Ohio on direct review was a claim that the repeat OVI specification, as applied, violated Snowden's constitutional right to equal protection.22

In so doing, the State asserts, Snowden did not raise the issues now set out in this federal habeas petition:

Snowden admits he did not raise either ground one or ground two on direct appeal, citing as the reasons that "[his] attorney did not understand the sentencing" (ground one)27 and "[his] attorneys [sic] did not understand the complicated felony OVI statute" (ground two).28 He also admits that he did not raise ground three in the briefs on direct appeal, asserting that the issue was raised "in oral argument" and again in a later post-conviction motion to vacate his sentence.29 The record shows that Snowden raised an issue of ineffective assistance of counsel to the Ohio appeals court on direct appeal,30 but, as noted, ineffective assistance of counsel was not part of the single issue presented to the Supreme Court of Ohio on direct review:

As the State observes, by not raising the current grounds for federal habeas relief to the Ohio Supreme Court in a timely manner by appealing the decision of the appeals court on direct review, Snowden did not complete one full round of Ohio's established appellate review procedure, thus procedurally defaulting these claims.32 Moreover, in addition to Snowden's admission cited above that he did not raise the present Ground One to the Supreme Court of Ohio, the single proposition of law that was presented to the Supreme Court of Ohio is not "the same claim on the same theory" as was Snowden's first ground for relief in the Ohio appeals court nor the same as the first ground for habeas relief here.33

Snowden also appears to contend that because he filed a state habeas corpus petition with the Supreme Court of Ohio in September 2016, this filing somehow removes the basis for any procedural default owing to his failure to timely appeal all appellate grounds for relief to the Ohio Supreme Court in 2015 during direct review.34 However, Ohio's res judicata rule35 also requires that all claims be asserted at the earliest opportunity. As I stated in addressing a very similar situation in Townsend v. Warden:36

Accordingly, all four grounds for federal habeas relief should be dismissed as procedurally defaulted unless Snowden can demonstrate cause for the default and prejudice,38 or alternatively, actual innocence.39 Here, Snowden appears to raise the ineffectiveness of his counsel as cause for the procedural default at least as to grounds one and two. While ineffective assistance of counsel may serve to excuse a procedural default, the ineffective assistance claim itself must not be procedurally defaulted.40 Plainly, because Snowden did not appeal from that holding of the appeals court decision that denied his ineffective assistance of counsel claim on direct appeal,41 he has procedurally defaulted that claim and so it cannot serve as cause to excuse the procedural default of his current federal habeas claims.

Further, Snowden has not presented any new reliable evidence that he is actually innocent. Indeed, his plea of no contest and acceptance of a negotiated plea deal is generally understood as precluding a subsequent claim of actual innocence unless, unlike here, the plea itself is challenged as being invalid.42

Finally, and alternatively, the State points out that the Ohio Supreme Court has ruled that the Ohio OVI repeat offender statute at issue here was constitutional and did not violate equal protection.43 It was this decision that the Ohio Supreme Court relied upon in affirming the decision of the appeals court in Snowden's case,44 and generally applies to the issues raised in current ground two. Inasmuch as Snowden has not shown how this Ohio decision is in any way contrary to any holding of the United States Supreme Court, the federal habeas court must accord deference to that finding.45

Conclusion

Therefore, for the reasons stated, I recommend that the pro se petition of William Snowden, Jr. for a writ of habeas corpus pursuant to 28 U.S.C. § 225446 be dismissed as procedurally defaulted.

IT IS SO RECOMMENDED.

Objections

Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order.47