Myers v. Coleman, CASE NO. 2:12-CV-0975

• Decision Date: 01 August 2013
• Docket Number: CASE NO. 2:12-CV-0975
• Parties: CRISTEN L. MYERS, SR., Petitioner, v. JOHN COLEMAN, WARDEN, Respondent.
• Court: U.S. District Court — Southern District of Ohio

CRISTEN L. MYERS, SR., Petitioner, v. JOHN COLEMAN, WARDEN, Respondent.

CASE NO. 2:12-CV-0975

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: August 1, 2013

JUDGE FROST

MAGISTRATE JUDGE ABEL

REPORT AND RECOMMENDATION

Petitioner Cristen L. Myers, Sr., a state prisoner, brings this action for a writ of habeas corpus under 28 U.S.C. § 2254. This matter is before the Magistrate Judge on petition, Respondent's Motion to Dismiss, Petitioner's Response, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that Respondent's Motion to Dismiss, Doc. No. 6, be GRANTED and that this action be DISMISSED.

It is FURTHER RECOMMENDED that Petitioner's Motion for Summary Judgment, Doc. No. 7, be DENIED, and that his request for injunctive relief, see Doc. No. 11, be DENIED, as moot.

FACTS and PROCEDURAL HISTORY

This action involves Petitioner's convictions after a jury trial in the Perry County Court of Common Pleas for attempted murder, aggravated burglary, felonious assault, and violation of a protection order. Petitioner's convictions arise out of an incident wherein he entered the home of his wife, Kimberly Myers, from whom he was separated in violation of a protection order, and allegedly tried to break her neck. In February 2001, Petitioner was sentenced to an aggregate term of twenty years incarceration. The Ohio Fifth District Court of Appeals affirmedPetitioner's convictions and sentence; and on May 15, 2002, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. In June 2003, Petitioner filed his first federal habeas corpus petition. See Myers v. Konteh, Case No. 2:03-cv-663. In that action, Petitioner asserted that he was denied a fair trial due to admission of evidence regarding ex parte court orders against him, that the orders violate state law, that admission of this evidence constituted plain error, and that his convictions are allied offenses of similar import and violate the Double Jeopardy Clause. In July 2004, the Court held that Petitioner was not entitled to habeas corpus relief. Petitioner appealed. On April 21, 2006, the United States Court of Appeals for the Sixth Circuit denied his application for a certificate of appealability.

Petitioner subsequently returned to the state courts to challenge his convictions. He filed a series of motions in 2005 - including a motion for delayed appeal and an application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B) - which were denied. Additionally, in 2007, Petitioner filed a state habeas corpus petition in the state trial court, which also was denied.¹

The Ohio Fifth District Court of Appeals summarized Petitioner's state court proceedings as follows:

In 2001, Appellant was convicted by a jury for one count of attempted murder, one count of aggravated burglary, one count of felonious assault and one count of violating a protection order. By judgment entry of sentence filed March 13, 2001, the trial court sentenced appellant to an aggregate term of twenty years in prison. By judgment entry of resentence filed July 13, 2001, Appellant was resentenced in order to include the findings necessary to impose consecutive sentences. The entry stated that the trial courtnotified Appellant that postrelease control up to three years was mandatory in this case. Appellant's convictions and sentences were affirmed on appeal. State v. Myers, 5th Dist. No. 01-CA-5, 2002-Ohio 253.

On May 22, 2009, Appellant filed a motion to void the unexpired term of incarceration and for resentencing to correct the error in the July 13, 2001 entry he was subject to only three years of postrelease control instead of the mandatory five years. By entry filed June 24, 2009, the trial court denied Appellant's request to void the unexpired term of incarceration. By nunc pro tunc judgment entry of resentence filed July 10, 2009, the trial court corrected the error.

Appellant appealed the nunc pro tunc judgment entry. In State v. Myers, 5 th Dist. No. 10-CA-4, 2010-Ohio-5979, (" Myers II") this Court found the trial court erred in filing a nunc pro tunc entry and resentencing Appellant without a hearing. The matter was remanded to the trial court for a de novo hearing, citing State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250 and State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085.

A resentencing hearing on the matter of postrelease control was held on March 3, 2011. By entry filed March 29, 2011, the trial court notified Appellant that postrelease control of five years was mandatory in this case, as well as the consequences of violating condition of postrelease control imposed by the Parole Board.

Appellant timely appealed the resentencing entry.

Appellant raises seven Assignments of Error:

"I. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING DEFENDANT/APPELLANT TO CONSECUTIVE SENTENCES FOR THE CONVICTIONS OF ATTEMPTED MURDER (ORC 2903.02(A) AND FELONIOUS ASSULT (ORC 2903.11(A) AS SAID CRIMES ARE ALLIED OFFENSES OF SIMILAR IMPORT.

"II. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING DEFENDANT/APPELLANT TO CONSECUTIVE SENTENCES FOR THE CONVICTIONS OF FELONIOUS ASSAULT (ORC 2903.11(A)(1) AND ATTEMPTED MURDER (ORC 2903.02(A)(1) AS SAID CRIMES ARE ALLIED OFFENSES OF SIMILAR IMPORT.

"III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DISREGARDING THE MANDATE OF THE FIFTH DISTRICT COURT OF APPEALS WHICH VACATED DEFENDANT/APPELLANT'S SENTENCE WITH REMAND FOR A DE NOVO RE-SENTENCING HEARING, CREATING AN INJUSTICE.

"IV. THE TRIAL COURT WAS IN ERROR WHEN IT APPLIED THE PRINCIPLE OF RES JUDICATA TO BAR THE APPLICATION OF THE NEW SUBSTANTIVE INTERPRETATION ANNOUNCED IN STATE V JOHNSON, 124 OHIO ST. 3D 153.

"V. THE MITTIMUS ISSUED BY THE COMMON PLEAS COURT OF PERRY COUNTY, OHIO FOLLOWING THE MARCH 3, 2011 RESENTENCING HEARING IS VOID AND INSUFFICIENT TO WARRANT THE DETENTION OF CRISTEN L. MYERS, SR.

"VI. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT BY EXCEEDING ITS JURISDICTIONAL AUTHORITY WHEN IMPOSED CONSECUTIVE SENTENCES IN THE ABSENCE OF STATUTORY AUTHORITY.

"VII. THE CONSECUTIVE SENTENCE IMPOSED BY TRIAL COURT IS VIOLATIVE OF THE DEFENDANT/APPELLANT'S LIBERTY INTEREST PROTECTED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

State v. Myers, No. 11-CA-7, 2012 WL 554432, at *1-2 (Ohio App. 5th Dist. Feb. 15, 2012). On February 15, 2012, the appellate court affirmed the trial court's judgment. On June 20, 2012, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Myers, 132 Ohio St.3d 1424 (2012).

Respondent indicates that on May 4, 2011, Petitioner filed a second state habeas corpus petition in the state trial court, asserting that he is being unlawfully held under an unlawfulsentence.² The state trial court dismissed Petitioner's state habeas corpus petition. Petitioner filed a motion for relief from judgment in the state trial court On June 13, 2011, the trial court denied Petitioner's motion. On November 7, 2011, the appellate court affirmed the judgment of the trial court. Petitioner apparently did not file an appeal to the Ohio Supreme Court.

On October 22, 2012, Petitioner filed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of the Constitution of the United States based upon the following grounds:

1. The state trial court violated the Double Jeopardy Clause of the Fifth Amendment and Cristen L. Myers, Sr.'s liberty interest when it imposed separate statutory convictions for the allied offenses of attempted murder, aggravated burglary, and felonious assault.

2. The state trial court violated the Double Jeopardy Clause of the Fifth Amendment when the trial court sentenced Cristen L. Myers, Sr. to consecutive terms of incarceration for the allied offenses of attempted murder, aggravated burglary, and felonious assault.

3. Cristen L. Myers, r. is currently incarcerated under a vacated sentence that has not been re-instated by a trial court, violating his Fifth and Fourteenth Amendment rights.

4. The state trial court violated Cristen L. Myers, Sr.'s liberty interest when it failed to provide him the equal protection of the retroactive interpretation of State v. Johnson, 128 Ohio St.3d 153.

5. The state trial court violated Cristen L. Myers, Sr.'s right to the equal protection of the law when the trial court determined that it was a valid use of the retroactive interpretation of State v. Fischer, 128 Ohio St.3d 92 to correct the void portion ofMyers' sentence that violated O.R.C. 2967.28 while simultaneously determining that it was not a valid use of the retroactive interpretation of State v. Fischer, 128 Ohio St.3d 92 to correct the void portions of Myers' sentence that violated O.R.C. 2941.25.

6. The trial court violated due process and equal protection of the law when it denied Cristen L. Myers, Sr. the resentencing rights pursuant to Ohio Revised Code 2929.19.

7. The state trial court violated Cristen Myers, Sr.'s constitutionally protected liberty interest of having his conduct weighed when the trial court failed to provide him with the equal protection of Ohio's allied offense statute, O.R.C. 2941.25, resulting in multiple convictions for the same criminal offense that violates the Double Jeopardy Clause of the Fifth [and Fourteenth Amendments of the United States Constitution.

It is the position of the Respondent that this action constitutes a successive petition. Alternatively, Respondent contends that Petitioner's claims are barred by the one-year statute of limitations, not cognizable for federal habeas corpus review, or waived.

MOTION FOR SUMMARY JUDGMENT

Petitioner has filed a Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.³ Doc. No. 7. In support of this motion, he has attached documents relating to his conviction and sentence, as well as an affidavit in support and proposedundisputed facts....