Scuba v. Brigano

• Citation: 527 F.3d 479
• Decision Date: 27 December 2007
• Docket Number: No. 04-3895.,04-3895.
• Parties: Robert S. SCUBA, Petitioner-Appellant, v. Anthony BRIGANO, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

527 F.3d 479

Robert S. SCUBA, Petitioner-Appellant, v. Anthony BRIGANO, Warden, Respondent-Appellee.

No. 04-3895.

United States Court of Appeals, Sixth Circuit.

Submitted: July 25, 2007.

Decided and Filed: December 27, 2007.^*

ON BRIEF: David C. Stebbins, Law Offices, Columbus, Ohio, for Appellant. Mark Joseph Zemba, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellee.

Before: KEITH and GRIFFIN, Circuit Judges; VAN TATENHOVE, District Judge.^**

OPINION

VAN TATENHOVE, District Judge.

Robert S. Scuba was convicted in Geauga County, Ohio, on one count of aggravated robbery and one count of felonious assault. After a lengthy appeals process, Scuba filed a petition for a writ of habeas corpus in federal district court. The district court dismissed Scuba's petition, finding that he had procedurally defaulted his state court claims. Because we agree, the dismissal of Scuba's habeas petition is affirmed.

I. Background

For the purposes of this appeal, the parties agree to the facts that unfolded on September 4, 1997. On that day, Scuba and two others, brandishing weapons, entered the home of Gordon Faith. During a struggle, Scuba grabbed Faith by his hair and threw him down. He then bound Faith's arms and legs with duct tape, beat him, and threatened to shoot him. While the others were searching the house, a smoke alarm sounded, causing all three intruders to flee. Eventually, Faith managed to summon help and was taken to the hospital where he was treated for fractures to his eye socket and skull, broken ribs and nose, and numerous lacerations. Upon Scuba's conviction in 1998, the trial court sentenced Scuba to ten years on the first count (aggravated robbery), seven years on the second count (felonious assault), and three years for the firearms violation, all to be served consecutively.

With the assistance of his trial counsel, Scuba appealed his conviction and sentence on five grounds. Relevant to the current appeal, Scuba raised the following arguments as his fourth and fifth grounds respectively: (1) "the trial judge abused his discretion by sentencing the Appellant to consecutive terms of incarceration when the factual findings relied on were against the manifest weight of the evidence;" and (2) "the trial court committed reversible error when sentencing Appellant to the maximum prison term allowed under the sentencing guidelines for aggravated robbery because such sentence was not supported by the record." The appellate court affirmed Scuba's conviction and the consecutive nature of his sentences but remanded the case because "[t]he trial court must [and failed to] adequately state its reasons ... for imposing the maximum sentence pursuant to [Ohio statutory law.]"

Prior to his re-sentencing and with the assistance of new counsel, Scuba filed a Notice of Appeal along with a Motion for Delayed Appeal in the Supreme Court of Ohio. The Supreme Court granted the motion but ultimately dismissed "the appeal as not involving any substantial constitutional question." None of Scuba's assignments of error to the Supreme Court invoked federal constitutional issues. Additionally, Scuba's only claim related to his sentence was that "[t]he trial court abused its discretion in sentencing defendant-appellant to consecutive terms when the trial court merely recites the statutory provisions and the evidence was against the manifest weight of the evidence."

At his re-sentencing, the trial court permitted Scuba to represent himself pro se but appointed a standby legal advisor. The trial court imposed the same sentence, with the exception that Scuba received nine years for aggravated robbery, rather than his initial ten. His sentences were again to be served consecutively.

Scuba appealed this sentence as well, raising three claims of error. The appellate court concluded that two issues were barred as res judicata. That court noted that it had "already addressed the issue of consecutive sentences [in Scuba's first appeal], and ... Scuba failed to raise the issue that he was issued excessive prison terms as a punishment for failing to enter a plea agreement in his initial appeal." Scuba's third assignment of error, based on the denial of his motion for the trial judge to recuse for re-sentencing, was dismissed as moot because the Ohio Supreme Court had already denied an affidavit of disqualification from Scuba.

Next, after nearly four years of legal challenges, Scuba appealed pro se to the Supreme Court, alleging two assignments of error:

Whether the appellant was denied Due Process of Law under Article I, § 16 of the Ohio Constitution and the Fourteenth Amendment of the United States Constitution, when the appellate court failed to adjudicate and reach the merit of appointed appellate counsels [sic] Motion for Leave to Appeal Consecutive Sentences as Allied Offenses Of [sic] Similar Import; Alternatively, Defendant-Appellant's Application For Reopening.

Whether appellant was deprived of his rights under the Fifth Amendment of the United States Constitution from double jeopardy ... because the trial and appellate court(s) failed to apply the Allied Offenses of Similar Import to appellant's convictions....

The Supreme Court dismissed the appeal "as not involving any substantial constitutional question" on August 7, 2002.

Scuba's long litigation project also produced several collateral motions,¹ including an untimely Application to Reopen [Appellant's Original] Direct Appeal pursuant to Ohio Rule of Appellate Procedure 26(B). Scuba filed the Application while his "re-sentencing appeal" was still pending with the appellate court. Under Rule 26(B), a defendant has ninety days to file an application for reopening.

The appellate court issued its judgment triggering the ninety-day deadline on or about November 8, 1999. In his Application, Scuba alleged that all three attorneys who acted as his counsel at various times were ineffective. Specifically, he contended that his counsel were collectively ineffective for failing to file an Application to Reopen within the ninety-day deadline. Scuba further argued that he had been denied Due Process of law for a variety of reasons and that he was deprived of his Fifth Amendment protection from double jeopardy, regarding his consecutive sentences for aggravated robbery and felonious assault. The Eleventh District Court of Appeals dismissed the Application on April 16, 2003, based upon Scuba's failure to show cause "why he [] waited over two and one-half years to file an application for reopening."

Scuba's original petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed on July 12, 2001. The district court dismissed that petition without prejudice, as Scuba's "re-sentencing appeal" was still pending in state court. Scuba then filed his current pro se petition on August 21, 2003, raising eight grounds for relief. Because Scuba only contested the State's Answer/Return of Writ with regard to three of his claims for relief, only those three grounds remain relevant to this appeal. The grounds are as follows:

GROUND ONE: Petitioner was deprived of his Fourteenth Amendment Rights because the (11th District) Court of Appeals failed to properly adjudicate, barred by the doctrine of res judicata, appellate counsel's Motion to Leave to Appeal Consecutive Sentences as Allied Offenses of Similar Import, Alternatively, Application for Reopening.²

GROUND TWO: Petitioner was deprived of his Rights under the Fifth Amendment from Double Jeopardy as applicable to the states through the Due Process Clause of the Fourteenth Amendment because the trial court failed to apply Allied Offenses of Similar Import to Petitioner[']s convictions, and by the appellate court's dismissal of the issue on appeal, barred by the doctrine of res judicata.

GROUND FIVE: Petitioner was deprived of his Fourteenth Amendment Rights because the 11th district court of appeals dismissed, failed to adjudicate petitioner[']s application for reopening raising a viable issue petitioner was denied choice of counsel prior to trial depriving him of his Sixth and Fourteenth Amendment Rights.

The Magistrate Judge concluded that Scuba's claims were procedurally defaulted and, therefore, recommended that his petition be dismissed. The district court adopted the Report and Recommendation ("R & R") on the same grounds pursuant to 28 U.S.C. § 2254.

II. Analysis

A. Waiver

The State argues that Scuba waived his right to appeal the dismissal of his habeas petition by failing to file objections, or move for an extension of time to object, to the Magistrate Judge's R & R within the prescribed time period. The R & R contained the following notice: "ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Courts within ten (10) days of receipt of this notice. Failure to file objections within the specified time WAIVES the right to appeal the District Court's order." The R & R was dated and entered on May 17, 2004. The district court entered an order adopting the R & R on June 7. The next day, Scuba's Motion to Extend Time for Filing Objections to Magistrate Judge's Report and Recommendation was entered on the docket.

Scuba contends that he received the R & R, and first notice thereof, on or about May 21, as he was an incarcerated pro se petitioner. Nothing in the record suggests to the contrary. According to FED. R. CIV. P. 6(a), "[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation." As such, excluding May 22, 23, 29, 30, June 5, and 6 as weekend days and May 31, 2004, as Memorial Day, the deadline for Scuba to file objections was June 7. Although Scuba's Motion was not entered on the docket until June 8, the certificate of service indicates that it was sent via U.S. Mail on May 25. Therefore, pursuant to the federal pro se prisoner mailbox rule, Scuba's Motion "was filed at the...