KAREN L. LITKOVITZ, Magistrate Judge.
Petitioner, an inmate in state custody at the Lebanon Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241,
For the reasons stated below, respondent's motion to dismiss (Doc. 7) should be
The procedural history of this case was set forth by the Ohio Supreme Court in State ex rel. Smith v. Schweitzer, 103 N.E.3d 816 (Ohio 2018):
Id. at 816-17.
Petitioner raised the following four issues in the Ohio Supreme Court:
(Doc. 6, Ex. 10, at pp. 74-78). On June 28, 2018, the Ohio Supreme Court affirmed the state appellate court's dismissal of petitioner's state petition for a writ of habeas corpus. See State ex rel. Smith, 103 N.E.3d at 817. Petitioner did not seek a writ of certiorari in the United States Supreme Court.
On July 25, 2018, petitioner commenced the instant federal habeas corpus action.
(Doc. 5, at pp. 8-14).
Respondent has filed a motion to dismiss, asserting that petitioner's claims are either barred by the statute of limitations or noncognizable on federal habeas review. (Doc. 7). Petitioner opposes the motion. (Doc. 8). For the reasons below, the motion to dismiss should be
The applicable standard of review governing the adjudication of constitutional issues raised by petitioner to the state courts is set forth in 28 U.S.C. § 2254(d). Under that provision, a writ of habeas corpus may not issue with respect to any claim adjudicated on the merits by the state courts unless the adjudication either:
28 U.S.C. § 2254(d).
"A decision is `contrary to' clearly established federal law when `the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). "A state court's adjudication only results in an `unreasonable application' of clearly established federal law when `the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. at 599-600 (quoting Williams, 529 U.S. at 413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600. As the Sixth Circuit explained in Otte:
Id. (emphasis in original). The Supreme Court extended its ruling in Harrington to hold that when a state court rules against a defendant in an opinion that "addresses some issues but does not expressly address the federal claim in question," the federal habeas court must presume, subject to rebuttal, that the federal claim was "adjudicated on the merits" and thus subject to the "restrictive standard of review" set out in § 2254(d). See Johnson v. Williams, 568 U.S. 289, 292 (2013).
Although the standard is difficult to meet, § 2254(d) "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings" and "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington v. Richter, 562 U.S. 86, 102 (2011). In other words, to obtain federal habeas relief under that provision, the state prisoner must show that the state court ruling on the claim presented "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
The Supreme Court has made it clear that in assessing the merits of a constitutional claim under § 2254(d), the federal habeas court must apply the Supreme Court precedents that controlled at the time of the last state-court adjudication on the merits, as opposed to when the conviction became "final." Greene v. Fisher, 565 U.S. 34, 38-40 (2011); cf. Otte, 654 F.3d at 600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a claim addressed by the state courts, the federal habeas court must "look to Supreme Court cases already decided at the time the state court made its decision"). In Greene, 565 U.S. at 38, the Court explained:
Decisions by lower courts are relevant "to the extent [they] already reviewed and interpreted the relevant Supreme Court case law to determine whether a legal principle or right had been clearly established by the Supreme Court." Otte, 654 F.3d at 600 (quoting Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)). The writ may issue only if the application of clearly-established federal law is objectively unreasonable "in light of the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state court decision." McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529 U.S. at 412).
In Ground One, petitioner asserts that the ODRC impermissibly aggregated the sentences he received in 1977 and 1994. (Doc. 5, at p. 9). Respondent asserts that Ground One stems from petitioner's 1994 and 2012 parole revocations and is barred by AEDPA's one-year statute of limitations, see 28 U.S.C. § 2244(d), because petitioner should have known about and challenged the calculation of his sentence long before now. (Doc. 7, at p. 6). Alternatively, respondent asserts that Ground One raises a state-law issue and is not cognizable on federal habeas review. (Doc. 7, at pp. 8-9).
Petitioner's submissions to the state courts indicate that he took some action regarding his sentence prior to the underlying state habeas corpus action. (See Doc. 6, Ex. 5, at p. 12; Doc. 6, Ex. 10, at p. 72; Doc. 6, Ex. 12, at p. 121). Because it is not clear from the record before the Court whether and to what extent petitioner might be entitled to any tolling of the limitations period, the Court proceeds to the merits of Ground One without deciding the timeliness issue. See Smith v. State of Ohio Dept. of Rehabilitation, 463 F.3d 426, 429 n.2 (6th Cir. 2006) (finding that because the statute of limitations is not a jurisdictional bar to review a court may proceed to the merits of a petition in the interests of justice) (citing Trussell v. Bowersox, 447 F.3d 588, 590 (8th Cir. 2006)).
Although respondent is correct that the Sixth Circuit has held that "it is a matter of substantive state law" whether sentences "should run concurrently or consecutively," Harrison v. Parke, No. 89-6495, 1990 WL 170428, at *2 (6th Cir. Nov. 6, 1990), the Court understands petitioner to be asserting in Ground One that the ODRC administratively altered his sentence. In Hill v. United States ex rel. Wampler, 298 U.S. 460, 465 (1936), the United States Supreme Court held that the Due Process Clause prohibits a state from administratively increasing a prisoner's sentence. See Hayden v. Mohr, No. 16-4051, 2017 WL 4216588, at *2 (6th Cir. May 4, 2017) (explaining that "[c]ourts have construed Wampler as holding that increasing a prisoner's sentence administratively, rather than through a judicial proceeding, is a due process violation.").
There is no due process violation here. Petitioner pleaded guilty to a new felony (robbery) in 1994 while he was under parole supervision on his kidnapping conviction. See State ex rel. Smith, 103 N.E.3d at 816-17.
Ground One does not warrant habeas corpus relief.
Ground Two of the petition effectively reasserts the claims raised in Ground One. As with Ground One, respondent asserts that Ground Two is barred by the statute of limitations or, alternatively, noncognizable. (Doc. 7, at pp. 6, 8-9). For the reasons stated above, the Court will resolve Ground Two on its merits. See Smith, 463 F.3d at 429 n.2. Ground Two lacks merit for the same reasons that Ground One lacks merit.
Ground Two does not warrant habeas corpus relief.
In Ground Three, petitioner asserts that he has fully satisfied his sentence and is entitled to release. Respondent asserts that Ground Three is based solely on an alleged violation of state law and is noncognizable. (See Doc. 7, at pp. 89). The undersigned agrees.
"Incarcerating a prisoner after the expiration of his maximum sentence may result in a constitutional violation." Powers v. Warden, No. 2:13-cv-1179, 2015 WL 46136, at *4 (S.D. Ohio Jan. 2, 2015) (Graham, J.) (quoting Kipen v. Renico, 65 F. App'x 958, 959 (6th Cir. 2003)). "However, a state court's interpretation, or misinterpretation, of its own sentencing laws and guidelines constitutes a matter of state concern only." Id. Furthermore, the imposition of consecutive terms of incarceration does not violate clearly established federal law or make the state-court proceedings fundamentally unfair. Id.
Petitioner's contention that he has completed his sentence is based on his previous assertion that the ODRC impermissibly determined that his 1977 and 1994 sentences ran consecutively. The Ohio Supreme Court rejected this contention, finding that petitioner's sentences ran consecutively by operation of law. State ex rel. Smith, 103 N.E.3d at 817. Considering the time that petitioner spent as a parole violator at large, the Ohio Court of Appeals determined that his maximum sentence now expires on March 4, 2023. State ex rel. Smith v. Schweitzer, No. CA2017-05-074, at p. 2 (Ohio App. Aug. 29, 2017) (Doc. 6, Ex. 8, at p. 58). The record thus fails to reflect that petitioner is being held beyond the maximum expiration date of his sentence.
Ground Three does not warrant habeas corpus relief.
Although Ground Four is missing from the petition filed in this Court (see supra n. 5), the undersigned understands it to raise the same claims as presented in "Proposition of Law No. Four" in petitioner's brief to the Ohio Supreme Court, namely whether the ODRC impermissibly increased petitioner's sentence. (See Doc. 6, Ex. 10, at p. 78). This issue has already been addressed in Grounds One and Two and lacks merit for the same reasons that Grounds One and Two lack merit.
Ground Four does not warrant habeas corpus relief.
In Ground Five, petitioner states that he "is being held as a parole violator for a 5 to 15 year sentence that is 42 years old and he has not been afforded [a hearing under Morrissey v. Brewer, 408 U.S. 471 (1972).]" Respondent argues that Ground Five is barred by the statute of limitations. (See Doc. 7, at p. 6). Although this Court does not reach the timeliness issue, see Smith, 463 F.3d at 429 n.2, the undersigned finds that Ground Five is in part duplicative of Ground Three and fails for the same reasons, and in part procedurally defaulted because petitioner did not raise it as a substantive claim in the Ohio Supreme Court.
First, to the extent that petitioner asserts in Ground Five that he is being held beyond the maximum expiration date of his sentence, such a claim has previously been addressed in Ground Three and lacks merit for the same reasons that Ground Three lacks merit.
Next, to the extent that petitioner attempts to assert a constitutional violation by alleging that he was denied a Morrissey hearing upon the revocation of his parole in 1994, petitioner did not raise this issue as a substantive claim before the Ohio Supreme Court. (See Doc. 6, Ex. 10).
In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state defendant with federal constitutional claims must fairly present those claims to the state courts for consideration before raising them in a federal habeas corpus action. See 28 U.S.C. § 2254(b)(1), (c); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). A constitutional claim for relief must be presented to the state's highest court in order to satisfy the fair presentation requirement. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir. 1985). If the petitioner fails to fairly present his constitutional claims through the requisite levels of state appellate review to the state's highest court, or commits some other procedural default that prevents a merit-based review of the federal claims by the state's highest court, he may have waived the claims for purposes of federal habeas review. See O'Sullivan, 526 U.S. at 847-48; Harris v. Reed, 489 U.S. 255, 260-62 (1989); McBee v. Grant, 763 F.2d 811, 813 (6th Cir. 1985); see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989). See, e.g., Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998) (finding that the doctrine of res judicata applies to constitutional claims that could have been raised on direct appeal) (citing State v. Combs, 652 N.E.2d 205, 209 (Ohio App. 1994)).
Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501 U.S. at 750, if he fails to present an issue to a state appellate court at his only opportunity to do so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural rule that required him to have done something to preserve the issue for appellate review. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996).
Petitioner did not raise the Morrissey issue as a substantive claim to the Ohio Supreme Court. Petitioner's opening brief merely mentioned his alleged failure to receive a Morrissey hearing to bolster his argument that the ODRC impermissibly concluded that his 1977 sentence for kidnapping and his 1994 sentence for robbery were to be served consecutively. (See Doc. 6, Ex. 10, at pp. 76, 79). As such, Ground Five, to the extent that it seeks to raise a substantive Morrissey claim, is procedurally defaulted. See, e.g., Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998) (finding that the doctrine of res judicata applies to constitutional claims that could have been raised in a direct appeal) (citing State v. Combs, 652 N.E.2d 205, 209 (Ohio App. 1994)). Further, petitioner has failed to assert any cause for the procedural default of this claim or otherwise shown that failure to consider it would result in a fundamental miscarriage of justice. See Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977).
Moreover, courts have generally recognized that the remedy for an alleged Morrissey violation is a new hearing, not immediate release from confinement. See, e.g., Dolfi v. Bogan, No. 93-1159, 1993 WL 213683, at *2 (6th Cir. June 17, 1993) (absent showing of severe prejudice, parolee's remedy is limited to compelling the parole commission to conduct a hearing) (citing cases).
Ground Five does not warrant habeas corpus relief.
Accordingly, in sum, the undersigned
1. Respondent's motion to dismiss (Doc. 7) be
2. A certificate of appealability should not issue with respect to the petition. To the extent that petitioner has raised claims which this Court has concluded are procedurally defaulted, a certificate of appealability should not issue because, under the first prong of the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), "jurists of reason" would not find it debatable whether the Court is correct in its procedural ruling.
3. With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore
In light of the above recommendation, petitioner's motions to comply (Doc. 10) and for judgment on the pleadings (Doc. 11) are
