Birdsall v. Miller

• Decision Date: 01 June 2015
• Docket Number: CASE NO. 1:14 CV 2408
• Court: U.S. District Court — Northern District of Ohio
• Parties: DEAN BIRDSALL, Petitioner v. MICHELLE MILLER, Warden Respondent

DEAN BIRDSALL, Petitioner v. MICHELLE MILLER, Warden Respondent

CASE NO. 1:14 CV 2408

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

June 1, 2015

MEMORANDUM OF OPINION AND ORDER

UNITED STATES DISTRICT JUDGE LESLEY WELLS

Petitioner Dean Birdsall filed the above-captioned Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. Petitioner is currently incarcerated in the Belmont Correctional Institution, serving a sentence of 7 to 25 years for rape, and one count of escape. Although the Petition contains multiple grounds for relief, they are all based on Petitioner's contention that his conviction on escape charges violated ex post facto laws. Petitioner seeks unconditional release from prison. For the reasons explained below, all of the Petitioner's claims are procedurally defaulted. The Court will accordingly deny the Writ.

I. Background

Petitioner was convicted of rape in Medina County, Ohio in 1994. He was sentenced to an indefinite term of incarceration of 7 to 25 years. He did not appeal that conviction or sentence. He was paroled after serving 13 years.

In 2010, while on parole, Petitioner was charged in Richland County, Ohio with one count of failure to register as a sexually oriented offender, and one count of escape. He entered into a plea agreement in April 2011 wherein he agreed to plead no contest to the charge of escape in exchange for the state's agreement to dismiss the other charge. The parties jointly recommended a sentence of 6 years for the escape conviction to run concurrent to the 7 to 25 year sentence he received for rape. The trial court accepted the plea and recommendation and sentenced Petitioner to 6 years to run concurrent with his sentence for rape.

Petitioner did not file a timely direct appeal of that conviction. He filed a Motion for Delayed Appeal in the Ohio Fifth District Court of Appeals. The Court of Appeals denied the Motion on August 22, 2012.

Petitioner did not file a timely appeal of that decision to the Supreme Court of Ohio. Instead, he filed a Motion for Delayed Appeal on December 21, 2012. The Supreme Court denied the Motion on February 6, 2013. See State of Ohio v. Birdsall, No. 2012-2144 (Ohio S. Ct. filed Dec. 21, 2012).

Thereafter, Petitioner filed a Petition for a Writ of Habeas Corpus in the Ohio Fifth District Court of Appeals. The Court of Appeals found two discernable arguments in the Petition:

1. Petitioner's conduct did not constitute escape as defined by Ohio Revised Code § 2921.34(A)(1) because he was on parole, not post release control, at the time he failed to register.

2. The act of escape was used to punish him for violating parole and was also used to convict him of the crime of escape, in violation of the Double Jeopardy Clause.

See Birdsall v. Miller, No. 13 BE 10, 2013 WL 3463417 (Ohio App. 7th Dist. June 28, 2013). The Court held that these grounds could have been raised on direct appeal, and because Petitioner had an adequate remedy at law, denied the writ. The Court also noted that if it had ruled on the merits, the claims would have been denied. Id. at 2.

Petitioner filed a second Petition for a Writ of Habeas Corpus in the Supreme Court of Ohio on November 14, 2013. He asserted four grounds for relief:

1. Denial of due process right to access of courts/full and fair trial due to counsel's failure to exhibit normal customary degree of skill/knowledge possessed by attorneys who are reasonably knowledgeable of criminal law. This fact will furnish grounds for reversal...as a result of counsel's failure to address Ohio Law.

2. A law impairing obligation of contract violation has been created when this court applied a post release control sanction to a preenactment sentence which never had PRC in trial sentencing entry done in clear violation of Ohio law.

3. Specific facts that support claims are law. Case no. 10 CR 0380 Richland County (issue of this Habeas Corpus petition) as this court has applied Senate Bill (2) R.C. 2967.28 sanction of R.C. 2921.34(A). S.B. (2) listed sanction have become a clear Bill of Attainder (Bill of Pains/Penalties) prohibited by U.S.C. Art. I sec. 10 when a criminal felony is added years later for a failure of the most basic heart of parole which is understood as to belong to incarceration. This is directed to a specific class of Ohio parolees.

4. A criminal felony is understood to be a punishment, made retroactive years after original trial court sentence. Defendant's sentence was correct in 1994, not void, therefore jeopardy does attach.

Birdsall v. Miller, No 13-1804 (S. Ct. Ohio filed Nov. 14, 2013). The Supreme Court denied the Petition on March 12, 2014. Petitioner requested findings of fact and conclusions of law. The Supreme Court responded on January 29, 2015 by reiteratingthat the Petition was denied and stating Petitioner was on parole and parole constitutes detention for purposes of escape under R.C. 2921.34.

II. Habeas Petition

Petitioner has now filed the within Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He asserts four grounds for relief:

1. Clear violation of Ex Post Facto Clause due to direct violation of federal Supreme Court under Cornell Johnson v. U.S., (May 15, 2000), 529 U.S. 694, 120 S. Ct. 1795. Contrary to Sixth Circuit's reasoning, post revocation penalties are attributable to the original conviction not to defendants' [sic] new offenses for violating their supervised release conditions.

2. Entire "innocence" here, is due to withheld LAW. See Townsend v. Sain, 372 U.S. 293 (1963), state determinations of fact not finding in federal habeas corpus proceeding if not based on full/fair factfinding procedures. Withholding due process of law: A exculpatory U.S. supreme Ct. ruling: Cornell Johnson v. U.S., (May 15, 2000), 529 U.S. 694 mandating contrary to "This" case 1-CR-0380 (Mansfield, OH) and Ohio v. Pointer, Mar. 24, 2011) 193 Ohio App. 3d 674 953 N.E.2d 853) ¶ 5 "Trial Court had failed to properly impose post release control in defendant's underlying sentence, depriving Dept. of Rehab./Corr. of authority to enforce portion of underlying judgment entry, thus defendant could not be convicted of escape for failing to report to parole officer."

3. This entire petition is based on U.S. Const./state law being not addressed or disregarded. The law is everything here. Violation as applied as a law impairing obligation of contracts. U.S. Const. Art. I sec. 9/10 The Medina Co. OH Feb. 1994 case # 92 CR 0367 did not have any form of post-release control under which today is required for a post revocation sanction of "escape" is required to enforce a P.R.C. sanction.

4. After cited Sup. Ct. case: Cornell Johnson v. U.S., (May 15, 2000)(529 U.SD. 694) made clear and convincing that this Richland Co. OH case No. 10 CR 0380 verdict is a violation of ex post facto clause, there is insufficiency ofevidence to produce a manifest injustice (U.S. Cont. Art. I, sec. 9/10) withheld by counsel by five Ohio courts disregarding the very same issues cited.

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which amended 28 U.S.C. § 2254, was signed into law on April 24, 1996 and applies to habeas corpus petitions filed after that effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see Woodford v. Garceau, 538 U.S. 202, 210 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999). The AEDPA was enacted "to reduce delays in the execution of state and federal criminal sentences. . . , and 'to further the principles of comity, finality, and federalism."' Woodford, 538 U.S. at 206 (quoting Williams v. Taylor, 529 U.S. 362, 436 (2000)). Consistent with this goal, when reviewing an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. Wilkins v. Timmerman-Cooper, 512 F.3d 768, 774-76 (6th Cir. 2008). The Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). A federal court, therefore, may not grant habeas relief on any claim that was adjudicated on the merits in any state court unless the adjudication of the claim either: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Wilkins, 512 F.3d 768, 774 -76 (6th Cir. 2008).

A decision is contrary to clearly established law under §2254(d)(1) when it is "diametrically different, opposite in character or nature, or mutually opposed" to federal law as determined by the Supreme Court of the United States. Williams v. Taylor, 529 U.S. 362, 405 (2000). In order to have an "unreasonable application of ... clearly established Federal law," the state-court decision must be "objectively unreasonable," not merely erroneous or incorrect. Id. at 409. Furthermore, it must be contrary to holdings of the Supreme Court, as opposed to dicta. Id. at 415.

A state court's determination of fact will be unreasonable under §2254(d)(2) only if it represents a "clear factual error." Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). In other words, a state court's determination of facts is unreasonable if its finding conflict with clear and convincing evidence to the contrary. Id. "This standard requires the federal courts to give considerable deference to state-court decisions." Ferensic v. Birkett, 501 F.3d 469, 472 (6th Cir. 2007). AEDPA essentially requires federal courts to leave a state court judgment alone unless the judgment in place is "based on an error grave enough to be called 'unreasonable.'" Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998).

IV. Procedural Barriers to Habeas...