Hill v. Bracy
| Decision Date | 31 August 2021 |
| Docket Number | 1:20CV1799 |
| Parties | DAVID HILL, aka DAVID TYRONE HILL aka DAVID T. HILL, Petitioner, v. WARDEN CHARMAINE BRACY, et al., Respondents. |
| Court | U.S. District Court — Northern District of Ohio |
CHRISTOPHER A. BOYKO JUDGE
REPORT AND RECOMMENDATION RE RESPONDENTS' MOTION TO DISMISS AND/OR TRANSFER
The mere possibility of freedom through federal habeas law can tempt state prisoners to take several stabs at obtaining post-conviction relief. Sometimes this makes sense. For example, changes in the law can create new grounds for habeas relief. Sometimes this doesn't make sense. For example rehashing the same failed arguments with no new law to point to will result in the same denial of relief.
The law takes into account not only these different scenarios but other interests as well, such as the need for finality in criminal judgments. Otherwise, that temptation to take another stab at freedom by filing yet another habeas petition would continue unabated. This would be especially true for prisoners serving long sentences who already may be inclined to ignore the wise counsel of legal writing experts who champion concise, uncluttered writing in court submissions.[1]
One way the law balances these different interests is to impose stringent requirements on second or successive habeas petitions. If the prisoner's second or successive petition doesn't meet these requirements, the law does not permit this Court to review the petition. Moreover, the law has designated the Court of Appeals as the decision-maker who authorizes review of a second or successive petition. Without its permission, this Court lacks jurisdiction to review a prisoner's second or successive petition, regardless of merit.
This is David Hill's fourth federal habeas petition.[2] He is incarcerated in the Trumbull Correctional Institution for a total of 28½ years resulting from convictions in four cases. The respondents, the prison warden and the Ohio Attorney General, argue that I need not reach the petition's merits. Instead, I should recommend that Hill's newest petition be dismissed and/or transferred to the Court of Appeals as a second or successive habeas corpus application.[3]
Because I find that Hill's petition is a second or successive habeas corpus application, Hill must first seek authorization from the Court of Appeals before his petition can be heard. Furthermore, because Hill has not sought that authorization, I recommend that his fourth petition be transferred to the Court of Appeals for a determination by that Court as to whether his petition meets the stringent requirements before I review it.
Normally, adjudication of a habeas petition under 28 U.S.C. § 2254 starts out with a long discussion of the facts of the petitioner's state criminal case and the grounds for relief in the habeas petition. In this instance, though, federal law regarding second or successive petitions is the guiding light. I, therefore, start with an abbreviated rendition of the facts to provide some context and then move on to my analysis and recommendation under applicable law.
Hill's criminal cases.
The first case involves a shooting on the east side of Cleveland on August 10, 2002.[6] Antoinette Polk and some friends were at her brother's house. Polk and Hill had had a previous sexual relationship, but earlier that afternoon, they got into a verbal altercation. Polk claimed Hill hit her with his hand and she threw a beer bottle at him. Hill left the house but later returned with a gun. Others at the house saw Hill had a gun and was pointing it in Polk's direction. A person at the house pushed Polk out of the way of the gunfire, but ended up himself getting shot several times but not fatally.
Case #2-CR-02-430754.
The second case occurred at the same location during the early morning hours the following day.[7] Hill again returned to the scene with a gun, wounded both Polk and another individual who were taking out the trash when Hill approached them.
The trial judge consolidated Case #1 and Case #2 for trial.[8] A jury convicted Hill of two counts of felonious assault with firearm specifications, one count of carrying a concealed weapon (from the indictment in the first case), and two counts of attempted murder with firearm specifications (from the indictment in the second case).[9]
Case #3-CR-02-430213.
The third case arose two and a half months later at the end of October 2002 when police stopped Hill for running a red light.[10] Instead of complying with the officers, Hill led the police on a high-speed chase and then on foot. While on foot, Hill shot at one of the officers. The police eventually caught up with Hill, and arrested him behind a shed in a residential neighborhood. A jury convicted Hill of one count of felonious assault with specifications, one count of failure to comply with a police order, and one count of carrying a concealed weapon.[11]
Case #4-CR 04-451972.
Hill's 28½-year sentence is also based on a fourth criminal case.[12] The half-year portion of the sentence arises from a two-count conviction in August 2004 for assaulting a corrections officer.[13] Hill does not raise any post-conviction claim associated with this case in any of his past or current federal habeas petitions.
Hill's federal habeas petitions.
As I mentioned, Hill has been before this Court on three earlier occasions pursuant to 28 U.S.C. § 2254. Each of these petitions relates in one way or another to the first three criminal cases above.
Hill filed his first federal habeas petition on May 10, 2005.[14]He challenged his convictions and sentences from Case #1, Case #2, and Case #3 involving the shooting incidents on August 10 and 11, 2002 and the police pursuit on October 29, 2002.[15] When I recommended on March 10, 2006 that the grounds of his petition be dismissed, [16] Hill objected and then filed a motion to dismiss his petition without prejudice.[17] Hill's first petition thus ended on November 21, 2006 when the District Judge granted his motion and dismissed the petition without prejudice.[18] Hill appealed months before this final order, but voluntarily dismissed his appeal the same day he filed it.[19]
Hill filed his second federal habeas petition on January 5, 2011.[20] In this petition, Hill challenged his convictions and sentence from Case #3 involving the police pursuit on October 29, 2002.[21] I recommended that this petition be dismissed, because Hill was (and still is) not in custody pursuant to the state court judgment he identified in his petition.[22] I made this recommendation, because on May 3, 2006, the Ohio Supreme Court vacated the sentence in Case #3 and remanded for resentencing[23] in light of its ruling in State v. Foster[24] where the Court held that statutes requiring judicial findings prior to the imposition of maximum, non-minimum, or consecutive sentences violated the Sixth Amendment right to a jury trial on facts relied upon in enhancing the sentence. At the time I made my recommendation (and still today[25]), the trial court had not yet resentenced Hill, [26] who apparently has refused to speak to his attorney.[27]
I based my recommendation in that case on 28 U.S.C. § 2254, which requires a prisoner who challenges his detention to be “in custody pursuant to the judgment of a State court.”[28] The respondents argue this same ground in their pending motion to dismiss and/or transfer as to Hill's claims challenging the convictions and sentence in Case #3.[29] I address this point below.
On February 3, 2012, the District Judge adopted my report and recommendation over Hill's objections, and dismissed Hill's second petition.[30] The District Judge also declined to issue a certificate of appealability.[31] Hill did not appeal this ruling.
Hill filed his third federal habeas petition on February 11, 2011-slightly more than a month after having filed his second petition.[32] In this petition, Hill ostensibly challenged his convictions and sentence from Case #2 involving the attempted murders on August 11, 2002. Recall that the state trial judge consolidated Case #1 and Case #2 for purposes of trial. Although Hill's third petition initially identifies the docket number only for Case #2 as the judgment of conviction he is challenging, [33] only three of the 17 grounds in his third petition (Grounds Five, Six, and Seven[34]) allege specific errors related to Case #2 alone. Two other grounds (Grounds Three and Four[35]) allege specific errors related to Case #1 as well as Case #2. The other 12 grounds allege errors without specifying either Case #1 or Case #2 but are presumably applicable to both since the trial judge consolidated the two cases for purposes of trial.[36]
On January 17, 2012, I recommended that Hill's third habeas petition be dismissed because it was time-barred.[37] Because Hill failed to timely object, the District Judge adopted my report and recommendation, and dismissed Hill's third petition.[38] The District Judge also certified that an appeal could not be taken in good faith, thus finding no basis upon which to issue a certificate of appealability.[39] Hill did not appeal this ruling.
Hill's fourth habeas petition.
In his newest petition, Hill challenges the initial conviction and sentencing orders from 2003 associated with Case #1, Case #2 and Case #3.[40] He asserts...
To continue reading
Request your trial