Brown v. Harris
| Decision Date | 27 February 2018 |
| Docket Number | Case No. 3:17-cv-080 |
| Parties | JEFFREY ANTONIO BROWN, Petitioner, v. CHAE HARRIS, Warden, Warren Correctional Institution, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner's Objections (ECF No. 32) to the Magistrate Judge's Supplemental Report and Recommendations recommending dismissal of the Petition with prejudice ("Supplemental Report," ECF No. 31). Judge Rose has recommitted the case for reconsideration in light of the Objections (Recommittal Order, ECF No. 33).
The original Report and Recommendations ("Report," ECF No. 26) recommended that Grounds One through Eighteen of the Petition be dismissed as barred by the statute of limitations(ECF No. 26, PageID 3617-26). This was based on a determination, urged by Respondent, that the statute of limitations on these claims expired in 2010 and the Petition was not filed until 2017 (Return, ECF No. 14, PageID 2973). In contrast, Brown claimed in his first set of objections that the time runs from his 2014 resentencing because "the entry of a new judgment normally resets the statute-of-limitations clock," (Objections, ECF No. 29, In re Stansell, 828 F.3d 412 (6th Cir. 2016), and Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016).
The Supplemental Report relied on Bachman v. Bagley, 487 F.3d 979 (6th Cir., 2007), and Rashad v. Lafler, 675 F.3d 564 (6th Cir. 2012), for the proposition that the statute of limitations runs from conclusion of direct review, not collateral review as here. The Supplemental Report recognized that Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016), was to the contrary, but noted that a Sixth Circuit panel cannot overrule the published decision of a prior panel and that Crangle was, in any event, distinguishable (ECF No. 31, PageID 3659). Brown objects (ECF No. 32, PageID 3669-76).
To resolve this statute of limitations question, we must recur to the procedural history. The incidents in suit occurred at the Dayton Motor Hotel on May 15-16, 2005. Out of those incidents, the Montgomery County grand jury indicted Brown (State Court Record, ECF No. 13, PageID 541.) In February 2006 a jury convicted Brown on two counts of felonious assault, aggravated burglary with a firearm specification, having weapons while under disability, and tampering with evidence. Id. at PageID 556. Judge Richard Dodge then sentenced Brown to nineteen years' imprisonment. Direct appeal, an untimely petition for post-conviction relief, and an untimely Ohio App. R. 26(B) application, as well as an initial federal habeas corpus application provided no relief. Brown then began a series of collateral attacks on the Common Pleas judgment entry (See Returnof Writ, ECF No. 14, PageID 2953-62). On May 3, 2012, he filed a Motion to Vacate Void Judgment Where Sentence is Contrary to Law (State Court Record, ECF No. 13-1, PageID 1423, et seq.) Judge Mary Wiseman denied the Motion and Brown appealed.
State v. Brown, 2014-Ohio-2551, 2014 Ohio App. LEXIS 2508 ¶ 12 (2nd Dist. June 13, 2014). The Second District found that argument well taken. Id. at ¶¶ 13-16. It held further that he was entitled to raise the issue in his May 2012 motion "because, under existing Ohio Supreme Court precedent, the failure to advise him [orally] of the duration of post-release control at sentencing rendered the post-release control portion of his sentence void." Id. at ¶ 17, relying largely on State v. Qualls, 131 Ohio St. 3d 499 (2012). The Second District also held that only the post-release control portion of the sentence was void. Id. at ¶ 21, holding Brown was only entitled "to a limited re-sentencing to correct the imposition of post-release control." The appellate court remanded with precisely that limitation in place. Id. at ¶ 27.
On July 11, 2014, Judge Wiseman gave Brown the required oral advice of post-release control (Memorialized at State Court Record ECF No. 13-3, PageID 2033-35). She also entered an Amended Termination Entry with the five-year PRC term in it. Id. at PageID 2029-32. Although Brown appealed, the Second District affirmed and the Ohio Supreme Court again denied review (State Court Record, ECF No. 13-3, PageID 2111-20, 2207). The Ohio Supreme Court Entry was filed March 23, 2016 (Entry, State Court Record, ECF No. 13-3, PageID 2207). Brown deposited his instant Petition in the prison mail system on February 24, 2017 (PageID 290).
Under 28 U.S.C. § 2244(d)(1)(A), the statute of limitations begins to run on the date the judgment of conviction becomes final on direct review or expiration of the time for seeking direct review. The Warden calculated the date of finality as January 2, 2008, the date on which Brown's right to petition the United States Supreme Court for a writ of certiorari expired. Allowing for statutory tolling while Brown's 2007 Ohio R. App. P. 26(B) application and petition for post-conviction relief under Ohio Revised Code § 2953.21 were pending, the statute would still have expired in 2010 because Brown had no post-conviction actions pending during that year (Return, ECF No. 14, PageID 2972-73).
In his Amended Reply, Brown argued for statutory tolling under 28 U.S.C. § 2244(d)(2) and equitable tolling either on the basis of his diligence in pursuing his claims or because of the "actual innocence" gateway first recognized in Schlup v. Delo, 513 U.S. 298, 316 (1995). The Report rejected those claims (ECF No. 26, PageID 3619-26).
Brown did not respond to that analysis in his first set of Objections, but instead shifted to the argument he now makes that the calculation of finality runs from Judge Wiseman's Amended Termination Entry on remand (Objections, ECF No. 29, PageID 3640-50, relying principally on Magwood v. Patterson, 561 U.S. 320 (2010); King v. Morgan, 807 F.3d 154 (6th Cir. 2015); and In re Stansell, 828 F.3d 412 (6th Cir. 2016). He again relies on these cases and others in his present Objections.
To make sense of the case law involved here, it is necessary to disentangle two issues: whether a petition is second-or-successive and whether it is barred by the statute of limitations. These potential bars to habeas corpus relief were both adopted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
The second-or-successive bar is codified at 28 U.S.C. § 2244(b) and provides that a secondor successive habeas application may not be considered by a district court unless or until the circuit court has given permission. The statute of limitations is codified at 28 U.S.C. § 2244(d) and provides that a habeas petition is barred if it is not filed within one year of the date on which the conviction becomes final on direct review. Both sections have acquired a considerable judicial gloss since 1996.
The first hurdle Brown's instant Petition had to surmount was the second-or-successive bar. When he filed his instant Petition, he had not obtained permission to proceed from the circuit court and the Petition was a second-in-time application because Brown had previously filed a habeas petition related to his 2006 conviction, Brown v. Brunsman, Case No. 3:08-cv-477. The Magistrate Judge had to resolve that issue sua sponte, at least initially, because district courts have no jurisdiction over second-or-successive habeas applications without the required circuit permission. Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 549 U.S. 147 (2007).
In the Order for Answer, the Magistrate Judge concluded this was not a second-or-successive habeas petition because Brown's situation "parallels that of the petitioner in In re Stansell, 828 F.3d 412 (6th Cir. 2016)" (ECF No. 5, PageID 513-14). In the Return of Writ, the Warden disagreed with that conclusion (Return, ECF No. 14, PageID 2967-70, also arguing Stansell was incorrectly decided). However, the Warden has made no effort to force this Court to transfer the case to the Sixth Circuit.
The statute of limitations is a separate provision of the AEDPA, codified at 28 U.S.C. § 2244(d), but Brown insists the statute of limitations issue is settled by King v. Morgan, supra. The holding in King, however, is that "a habeas petitioner, after a full resentencing and the new judgment that goes with it, may challenge his undisturbed conviction without triggering the'second or successive' requirements." 807 F.3d at 156 (emphasis in original). King, like Brown, had moved to vacate his Ohio criminal judgment because it did not contain the mandatory post-release control term. However, on re-sentencing the trial court increased the imprisonment portion of the sentence from twenty-one years to life to thirty-three years to life. Id. The King court was unsure what effect its decision would have on habeas practice in this circuit, but commented "[t]he entry of a new judgment normally resets the statute of limitations clock." 807 F.3d at 159, citing 28 U.S.C. § 2244(d)(1)(A) and Rashad, supra.
In re Stansell, supra, also involved the second-or-successive issue. It was before the Sixth Circuit on a request for permission to proceed with a second-or-successive habeas application. While Stansell's case was on appeal on a different issue, the Eighth District observed that the trial court had erred in failing to impose a term of post-release control and remanded the case "for the limited purpose...
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