Kilby v. Montomgery Cnty. Court of Common Pleas, Case No. 3:14-cv-317

• Decision Date: 13 January 2015
• Docket Number: Case No. 3:14-cv-317
• Parties: MARY KILBY, Petitioner, v. MONTOMGERY COUNTY COURT OF COMMON PLEAS, JUVENILE DIVISION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

MARY KILBY, Petitioner, v. MONTOMGERY COUNTY COURT OF COMMON PLEAS, JUVENILE DIVISION, Respondent.

Case No. 3:14-cv-317

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

January 13, 2015

District Judge Walter Herbert Rice

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is an action pursuant to 28 U.S.C. §2241 for a writ of habeas corpus. Petitioner seeks relief on Double Jeopardy grounds from an impending trial in the Juvenile Division of the Court of Common Pleas of Montgomery County, Ohio (Case No. J. C. 2011-9469).

The case has been referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §636(b) and the Dayton General Order of Assignment and Reference. The parties have declined to unanimously consent to magistrate judge jurisdiction under 28 U.S.C. § 636(c) and the case therefore requires a report and recommended disposition by the assigned magistrate judge.

Upon preliminary consideration pursuant to Rule 4 of the Rules Governing §2254 Cases, which the Court determined would be applied here in this § 2241 case, the Court found it did not plainly appear from the face of the Petition that the Petitioner was not entitled to relief in this Court and Respondent was ordered to answer the Petition and file "those portions of the statecourt record needed to adjudicate this case, accompanied by an index of the documents in the record. (Doc. No. 2, PageID 17).

In response, Respondent filed a copy of the record only from the Juvenile Division case (Doc. No. 6, PageID 32-129) and not the record from the General Division case against Ms. Kilby that gives rise to the Double Jeopardy claim. Petitioner does not complain of this omission and the Court is able to access the General Division case (Case No. 2011 CR 03826/04) from the Montgomery County Clerk of Courts website to the extent necessary. The Court will proceed in that way rather than delay decision of the case to await supplementation of the record. However, if either party objects to this Report, Respondent shall supplement the record here with the General Division file not later than ten days after any objection is filed.

This Court has subject matter jurisdiction of this case under 28 U.S.C. § 2241(c)(3) by virtue of Ms. Kilby's allegation that she is being held for trial in violation of Constitution of the United States. She is sufficiently in custody to invoke our habeas jurisdiction because she is free on a personal recognizance bond as she alleges and Respondent does not deny (Doc. No. 6-1, PageID 126). Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984); Hensley v. Municipal Court, 411 U.S. 345 (1973); Lawrence v. 48^th District Court, 560 F.3d 475, (6^th Cir. 2009); McVeigh v. Smith, 872 F.2d 725, 727 (6^th Cir. 1989).

The Supreme Court has held that the Double Jeopardy Clause protects against a second trial, not just against conviction at a second trial. Abney v. United States, 431 U.S. 651 (1977). For that reason, a double jeopardy claim is cognizable in federal habeas corpus prior to the "second" trial. Justices of the Boston Municipal Court v. Lydon, 466 U.S. 294 (1984); Reimnitz v. State's Attorney of Cook County, 761 F.2d 405, 408 (7^th Cir. 1985); Malinovsky v. Court of Common Pleas of Lorain County, 7 F.3d 1263 (6^th Cir. 1993). To put it another way, a habeaspetitioner with a double jeopardy claim is not required to exhaust the remedy of direct appeal from a verdict at a second trial before invoking our habeas jurisdiction. The Sixth Circuit reaffirmed these principles and specifically affirmed a district court's granting of a stay of Ohio Common Pleas Court proceedings pending decision on a pre-trial double jeopardy habeas petition in Harpster v. Ohio, 128 F.3d 322 (6^th Cir. 1997).

Procedural History

On November 17, 2011, Ms. Kilby was indicted by a Montgomery County grand jury in two counts:

NINTH COUNT:

AND, the grand jurors of this County, in the name and by the authority of the State of Ohio, upon their oaths, do find and present that: MARY K. KILBY, between the dates of MARCH 17, 2010 THROUGH MARCH 1, 2011 In the County of Montgomery aforesaid, and State of Ohio, did recklessly fail to provide a functionally impaired person to wit MAKAYLA NORMAN, under the caretaker's care with any treatment, care, goods, or service that was necessary to maintain the health or safety of the functionally impaired person and this failure by the defendant resulted in serious physical harm to the functionally Impaired person; contrary to the form of the statute (in violation of Section 2903;16(8) of the Ohio Revised Code) in such case made and provided and against the peace and dignity of the State of Ohio.

TENTH COUNT:

AND the grand jurors of this County, in the name and by the authority of the State of Ohio, upon their oaths, do find and present that: MARY K. KILBY on or about FEBRUARY 24, 2011 in the County of Montgomery, aforesaid, and State of Ohio, who was acting in an. official or professional capacity and knew, or had reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect, that a child under 18 years of age or a mentally retarded, developmentally

disabled, or physically impaired child under 21 years of age, to wit: MAKAYLA NORMAN, had suffered or faced a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicated abuse or neglect of the child, did fail to immediately report that knowledge or reasonable cause to suspect to the appropriate entity or persons, to wit: the public children services agency or a municipal or county peace officer in the county in which the child resided or in which the abuse or neglect was occurring, and that said child did suffer or faced the threat of suffering the physical or mental wound, injury, disability, or condition that would be the basis of the required report when the child was under the direct care or supervision of the offender who was then acting In the offender's official or professional capacity or when the child was under the direct care or supervision of another person over whom the offender while acting in the offender's official or professional capacity had supervisory control; contrary to the form of the statute (in violation of Section 2151.421(A)(1)(a) and 2151.99(C)(2) of the Ohio Revised Code) in .such case made and provided, and against the peace and dignity of the State of Ohio.

(Indictment, Doc. No. 7-1, PageID 151-52.)

Apparently it was quickly realized that the Juvenile Division has exclusive jurisdiction of charges of failure to report child abuse. Therefore, the prosecutor on November 21, 2011, filed a Complaint in the Juvenile Division in Case No. J.C. 2011-9469 charging Ms. Kilby with a failure to report child abuse as follows:

The complainant being first duly sworn says that on or about the 25th day of February 2011 in the County of Montgomery, in the State of Ohio, one Mary K. Kilby, who was acting in an official or professional capacity and knew, or had reasonable cause to suspect based on facts that would cause a reasonable person in a similar position to suspect, that a child under eighteen years of age or a mentally retarded, developmentally disabled, or physically impaired child under twenty-one years of age, to wit: MAKAYLA NORMAN, had suffered or faced a threat of suffering any physical or mental wound, injury, disability, or condition of a nature that reasonably indicated abuse or neglect of the child, did fail to immediately report that knowledge or reasonable cause to suspect to the appropriate entity or persons, to wit: the public children services agency or a municipal or county peace officer in the county in which the child resided or in which the abuse or neglectwas occurring, and that said child did suffer or faced the threat of suffering the physical or mental wound, injury, disability, or condition that would be the basis of the required report when the child was under the direct care or supervision of the offender who was then acting in the offender's official or professional capacity or when the child was under the direct care of supervision of another person over whom the offender while acting in the offender's official or professional capacity had supervisory control; contrary to the form of the statute (in violation of Section 2151.421 (A)(1 )(a) and 2151.99 (C)(2) of the Ohio Revised Code); in such case made and provided, and against the peace and dignity of the State of Ohio.

(Doc. No. 6-1, PageID 128.)

Judge Huffman, the General Division Judge to whom Case No. 2011 CR 03826/04 was assigned, then dismissed Count 10 of the Indictment without prejudice and on the State's motion (Termination Entry of November 23, 2011, Doc. No. 7-1, PageID 155).

In response to a motion to dismiss Count 9, the prosecutor obtained a new indictment for failure to provide services that charged Ms. Kilby acted knowingly as opposed to recklessly. On September 14, 2012, Ms. Kilby pled no contest to both counts (Waiver, Doc. No. 7-1, PageID 158). Judge Huffman then merged the two counts and on October 25, 2012, sentenced Ms. Kilby to five years of community control (Answer, Doc. No. 7, PageID 131, ¶ c.)

Several days later Ms. Kilby orally moved to dismiss the Juvenile Division case on the grounds conviction in that case is barred by the Double Jeopardy Clause (Entry, Doc. No. 6-1, PageID 104). Ms. Kilby's written Motion to Dismiss was filed November 20, 2012 (Doc. No. 6-1, PageID 82-89). Judge Capizzi granted the Motion to Dismiss February 7, 2013 (Entry and Order, Doc. No. 6-1, PageID 56-63). The State appealed and the Second District Court of Appeals reversed. State v. Kilby, 2013-Ohio-5340, 2013 Ohio App. LEXIS 5559 (Donovan, J.). On May 14, 2014, the Supreme Court of Ohio declined to exercise jurisdiction over Ms. Kilby's further appeal. State v, Kilby, 138 Ohio St. 3d 1493 (2014). The ...