Kelley v. Brunsman

Decision Date09 June 2009
Docket NumberNo. 1:08-CV-00071.,1:08-CV-00071.
Citation625 F.Supp.2d 586
PartiesEvander KELLEY, Petitioner, v. Timothy BRUNSMAN, Warden, Respondent.
CourtU.S. District Court — Southern District of Ohio
625 F.Supp.2d 586
Evander KELLEY, Petitioner,
v.
Timothy BRUNSMAN, Warden, Respondent.
No. 1:08-CV-00071.
United States District Court, S.D. Ohio, Western Division.
June 9, 2009.

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Evander Kelley, Lebanon, OH, pro se.

Hilda Rosenberg, Office of the Ohio Attorney General, Cincinnati, OH, for Respondent.

OPINION AND ORDER

S. ARTHUR SPIEGEL, Senior District Judge.


This matter is before the Court on the Magistrate Judge's Report and Recommendation (doc. 15) and Petitioner's Objection (doc. 17). For the reasons indicated herein, the Court ADOPTS the Magistrate Judge's Report and Recommendation and DENIES Petitioner's Petition for Writ of Habeas Corpus.

I. Background

In 2005, the Hamilton County, Ohio Court of Common Pleas sentenced Petitioner on three counts of aggravated robbery, three counts of robbery, and five counts of felonious assault, each with four firearm specifications (doc. 15). On May 8, 2006, Petitioner pled guilty to three counts of aggravated robbery and three counts of felonious assault, each with one specification (Id.). The remaining charges were dismissed (Id.). Pursuant to the agreed sentence contained in the plea agreement, the trial court sentenced Petitioner to concurrent prison terms of nine years for aggravated robbery and three years for felonious assault with concurrent three year sentences for each specification (Id.).

On August 11, 2006, Petitioner filed a notice of appeal and a motion for leave to file a delayed appeal in the First District Court of Appeals (Id.). The Court of Appeals denied Petitioner leave to appeal because he did not provide a sufficient reason for his failure to perfect a timely appeal and because there was an agreed sentence (Id.).

Petitioner then filed a notice of appeal to the Ohio Supreme Court (Id.). On February 7, 2007, the Ohio Supreme Court denied Petitioner leave to appeal and dismissed the appeal as it failed to include any substantial constitutional question (Id.).

Subsequently, Petitioner filed this instant habeas action setting forth four grounds for relief (Id.). Petitioner alleged that the Court of Appeals denied his "absolute right to procedural due process "by overruling" a motion for leave to appeal in lieu of record evidence that the [Petitioner] waived his right to appeal and his right to court appointed counsel for such appeal" (Id.). Second, Petitioner alleged that the Court of Common Pleas violated his right to trial by jury by sentencing him to a term which exceeded the statutory maximum mandated by the Sixth and Fourteenth Amendments (Id.). Third, Petitioner alleged the Court of Common Pleas violated his rights under the Ex Post Facto Clause of the Constitution by sentencing him to a term which exceeded the maximum available under the statute at the time of the offenses (Id.). Finally, Petitioner alleged that his sentences were void because he was never put on notice that his sentence of six years was to be enhanced at sentencing (Id.). The Magistrate Judge has reviewed Petitioner's claims and Petitioner has responded such

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that this matter is now ripe for the Court's consideration.

II. The Magistrate Judge's Report and Recommendation

After reviewing Petitioner's grounds for relief, the Magistrate Judge found all four grounds lacking in merit. As to the first ground for relief, the Magistrate Judge found that Petitioner's allegation of a due process violation by the Ohio Court of Appeals failed to give rise to a cognizable constitutional claim subject to review in federal habeas proceedings (Id.). A federal court may review a state prisoner's habeas petition only on the ground that the challenged confinement violates the Constitution, laws or treaties of the United States, and not on a perceived error of state law. Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Here, the Magistrate Judge found Petitioner's claim, that the trial court erred by not complying with Ohio Criminal Rule 32(A), to be incognizable in this federal habeas corpus petition (doc. 15). Similarly, the Magistrate Judge found Petitioner's claim that the Ohio Court of Appeals improperly denied his motion for delayed appeal a collateral matter unrelated to Petitioner's detention and thus not cognizable in federal habeas corpus. Cress v. Palmer, 484 F.3d 844, 853 (6th Cir.2007). Finally, the Magistrate Judge determined the Ohio Court of Appeals' denial of Petitioner's motion for leave to file a delayed appeal does not, in itself, amount to a violation of due process. Granger v. Hurt, 215 Fed.Appx. 485, 494-95 (6th Cir.2007).

The Magistrate Judge also found without merit Petitioner's claims, that he was not informed of his appellate rights and his counsel mistakenly advised him he had no right to appeal his sentence (doc. 15). The Magistrate Judge determined from the record Petitioner was clearly informed and aware of his appellate rights (Id.). The Petitioner signed a guilty plea agreement indicating he understood the nature of the charges, was satisfied with his attorney's advice, counsel and competence, and Petitioner was not under the influence of drugs or alcohol (Id.). The plea agreement also showed Petitioner had been advised of his right to appeal and of the time limit for filing an appeal (Id.). Likewise, the Magistrate Judge found Petitioner failed to establish a claim for ineffective assistance of counsel under the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Under Strickland, to satisfy the first prong of the test, Petitioner must show his attorney made such serious errors that the attorney was not functioning as "counsel" as guaranteed by the Sixth Amendment (Id. at 687, 104 S.Ct. 2052). Under the second prong, Petitioner must show the attorney's poor performance prejudiced Petitioner by undermining the reliability of the sentencing result (Id. at 694, 104 S.Ct. 2052).

Here, the Magistrate Judge determined Petitioner failed to show he was denied effective assistance of counsel (doc. 15). The Magistrate Judge found any prejudice arising out of the original conviction and sentencing for four separate weapons charges was cured when Petitioner was re-sentenced (Id.). The Magistrate Judge also concluded Petitioner's attorneys had no duty to guarantee his presence at the re-sentencing hearing because the hearing was held for a very limited purpose and Petitioner had already been given an opportunity to be heard at the original sentencing hearing (Id.). Thus, there was no prejudice to Petitioner (Id.). Furthermore, the Magistrate Judge found Petitioner failed to satisfy the first prong of the test because counsel's advice was not

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objectively unreasonable in the light of the express terms of the parties' plea agreement (Id.). Due to the fact Petitioner had no right to appeal under Ohio Rev.Code § 2953.08, counsel's advice to that effect was not objectively unreasonable (Id.).

The Magistrate Judge similarly found without merit Petitioner's second ground for relief, that his sentence was "not authorized by law" under the Sixth and Fourteenth Amendments (Id.). The Magistrate Judge found the record did not reflect that Petitioner's aggregate twelve year sentence was unauthorized by law because it did not exceed the maximum terms permitted under the statutes of conviction (Id. citing Ohio Rev.Code § 2929.14(A)(1),(2)). Similarly, the Magistrate Judge found Petitioner's sentences did not exceed the statutory maximum terms for his convictions and Petitioner was not denied his constitutional right of appeal under Ohio Rev.Code § 2953.08(D) (Id.).

The Magistrate Judge also rejected Petitioner's argument that his sentence was unconstitutional as revised by State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006). When Petitioner was sentenced, Foster had already been decided and was applicable to his sentencing (doc. 15). The Magistrate Judge explained that under Foster, trial courts are allowed full discretion to impose a prison sentence within the statutory range without having to make findings or give reasons for imposing maximum, consecutive, or more than minimum sentences (Id.). Here, the Magistrate Judge opined, the trial judge did not engage in impermissible fact-finding because he imposed the non-minimum sentences to which Petitioner agreed in his plea (Id.). Thus, the Magistrate Judge found the trial court accepted the terms bargained for by the parties and the Court could not say that Petitioner's sentence violated the Sixth Amendment or the standards set forth in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). (Any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt) (Id.). Here, the Magistrate Judge found Blakely's standard satisfied because the sentence was within the statutory guidelines.

With regard to Petitioner's third ground for relief, the Magistrate Judge found meritless Petitioner's Ex Post Facto claim (Id.). The Magistrate Judge determined Petitioner's claim was based on the mistaken premise that the sentence was under the post-Foster statutory scheme, when in fact, the sentencing statute as revised by Foster was not applied to Petitioner (Id.). Because there was an agreed sentence that was imposed by the trial court, there was no impermissible Ex Post Facto effect on Petitioner's sentence (Id.).

Finally, as to Petitioner's fourth ground for relief, the Magistrate Judge determined there was sufficient notice for the sentences (Id.). Petitioner was aware of the potential penalties he faced and the elements necessary to convict him of aggravated robbery and felonious assault (Id.). Thus, the Magistrate Judge concluded Petitioner was on notice of his potential non-minimum sentences at the court's...

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  • Bennett v. Warden
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    ...the federal district courts and Ohio courts have rejected ex post facto challenges to the Foster decision”); Kelley v. Brunsman, 625 F.Supp.2d 586, 594, 605–08 (S.D.Ohio 2009) (Spiegel, S.J.; Hogan, M.J.); Rettig v. Jefferys, 557 F.Supp.2d 830, 841 (N.D.Ohio 2008) (Polster, J.; McHargh, M.J......
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