Pruitt v. Ohio Adult Parole Auth.
| Decision Date | 12 March 2015 |
| Docket Number | Case No. 1:14-cv-20 |
| Parties | KENNETH PRUITT, Petitioner, v. OHIO ADULT PAROLE AUTHORITY, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Wehrman, M.J.
Petitioner, who was in prison until recently and is now serving a term of post-release control under the supervision of the Ohio Adult Parole Authority (OAPA), has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The case is before the Court on the petition and respondent's amended return of writ with exhibits, as well as an additional pleading filed by petitioner which this Court has stated it would consider in adjudicating his claims for relief. (Docs. 1, 4, 13; see also Doc. 14).
In March 2009, the Hamilton County, Ohio, grand jury returned an indictment charging petitioner with three counts of possession of cocaine in violation of Ohio Rev. Code § 2925.11(A), three counts of trafficking in cocaine in violation of Ohio Rev. Code § 2925.03(A),and one count of having weapons while under disability in violation of Ohio Rev. Code § 2923.13(A)(3). (Doc. 13, Ex. 1). On March 22, 2010, petitioner entered a guilty plea to all charges. (Id., Ex. 2). However, on April 19, 2010, petitioner, who was assisted by new counsel, filed a motion to set aside the plea on the ground that he "did not fully understand the issues of his underlying case and entered a plea that was not knowing[], voluntary[y], or free of duress." (Id., Ex. 3). The trial court denied the motion on July 28, 2010. (Id., Ex. 4).
Following a sentencing hearing, the trial court issued an entry on August 3, 2010, sentencing petitioner to concurrent five-year terms of imprisonment on each count. (Id., Ex. 5). On September 22, 2010, the trial court held a resentencing hearing in order to provide petitioner with post-release control notification. (See id., Exs. 9-10). The final resentencing entry, which did not change petitioner's aggregate five-year prison sentence, was filed on December 13, 2010. (Id., Ex. 10).
Petitioner filed a timely pro se notice of appeal from the August 3, 2010 entry of judgment and sentence to the Ohio Court of Appeals, First Appellate District. (Doc. 13, Ex. 11). With the assistance of new counsel for appeal purposes, petitioner filed a brief raising the following assignments of error:
1. The trial court erred as a matter of law by overruling Appellant's motion to withdraw his guilty plea.
2. The trial court erred as a matter of law by sentencing Appellant to allied offenses of similar import.
3. Appellant was denied effective assistance of counsel in violation of his constitutional rights thus prejudicing his right to a fair hearing.
(Id., Ex. 12). Petitioner specifically alleged in his third assignment of error that his counsel was ineffective by allowing him to enter guilty pleas to allied offenses of similar import and failing to object to the sentence that was imposed for the allied offenses. (See id., p. 6, at PAGEID#: 524).
On September 30, 2011, the Ohio Court of Appeals issued an Opinion overruling petitioner's first assignment of error. (See id., Ex. 14, p. 2, at PAGEID#: 542). However, the court sustained petitioner's second assignment of error, finding that petitioner had been "improperly convicted of trafficking and possession charges where they were allied offenses of similar import and, as such, should have been merged at sentencing." (Id., p. 3, at PAGEID#: 543). The court reasoned in pertinent part:
Pruitt was charged in counts one and two for possessing and trafficking in cocaine involved in a "controlled buy" with law enforcement. Counts three and four involved the possession and trafficking of crack cocaine found in his residence. And counts five and six involved the possession and trafficking of "cocaine that was not crack cocaine," also found in his residence. Imposing sentences for each of the six counts, even concurrent sentences, was improper.
(Id.). The court, therefore, remanded the matter to the trial court "to allow the state to elect between counts one and two, counts three and four, and counts five and six" and to sentence petitioner "on only those three counts upon which the state has elected to proceed." (Id.). Finally, given that petitioner's second assignment of error had been sustained, the Ohio Court of Appeals found that petitioner's third assignment of error was "moot." (Id.).
Petitioner pursued a timely pro se appeal to the Ohio Supreme Court from the portion of the Ohio Court of Appeals' direct appeal decision affirming the trial court's judgment. (See id., Ex. 16). In his memorandum in support of jurisdiction, petitioner presented one proposition of law challenging the trial court's decision to deny his motion to withdraw his guilty plea. (See id., Ex. 17). On February 1, 2012, the Ohio Supreme Court denied petitioner leave to appeal and summarily dismissed the appeal "as not involving any substantial constitutional question." (Id., Ex. 19).
On November 7, 2011, while his appeal was pending before the Ohio Supreme Court, the trial court held a resentencing hearing in accordance with the Ohio Court of Appeals' remandorder. (See Doc. 13, Ex. 15). In an entry filed November 14, 2011, petitioner was again sentenced to a five-year prison sentence, which consisted of concurrent prison terms of three (3) years for the weapons offense charged in Count 7 and five (5) years for the cocaine trafficking offenses charged in Counts 2 and 5 and the cocaine possession offense charged in Count 3. Counts 1, 4 and 6 were dismissed. (Id.). The entry also provided that petitioner was "to receive credit for nine hundred sixty four (964) days time served." (Id.).
Petitioner timely appealed to the Ohio Court of Appeals, First Appellate, raising four assignments of error in a brief filed by new counsel on petitioner's behalf. (See id., Exs. 20-21).2 On August 3, 2012, the Ohio Court of Appeals issued a decision upholding the five-year prison sentence that was imposed "for multiple felonies," but reversing the resentencing judgment in part to the extent that the case was "remanded to the trial court (1) to properly notify Pruitt of his postrelease-control obligations associated with the felonies in counts two, three , and five; (2) to correct the sentencing entry to reflect the proper original [five-year prison] sentence for having a weapon while under disability; and (3) to impose the appropriate driver's license suspension associated with the felonies in counts two, three, and five." (Id., Ex. 23, pp. 4-5, at PAGEID#: 592-93).
The trial court held another resentencing hearing on September 27, 2012 in accordance with the Ohio Court of Appeals' second remand order where the requisite corrections were made. (See id., Brief, pp. 5-6, at PAGEID#: 461-62; see also Ex. 24). The resentencing entry imposing concurrent five-year prison terms for the offenses charged in Counts 2, 3, 5 and 7 was filed on October 4, 2012. (Id., Ex. 24). The entry also provided that petitioner was to "receive credit for nine hundred sixty four (964) days time served as of November 7, 2011 and all additional time served." (Id.). Petitioner did not pursue an appeal from that decision.
In the meantime, on May 2, 2011, petitioner filed a pro se petition to vacate or set aside judgment of conviction or sentence pursuant to Ohio Rev. Code § 2953.21 with the trial court. (Doc. 13, Ex. 30). In the petition, petitioner asserted (1) a Fourth Amendment claim stemming from his arrest without a warrant and search of the apartment where he allegedly did not reside; (2) a claim of prosecutorial misconduct; (3) a Sixth Amendment claim based on the alleged lack of "proper notification" of charges "without proper identification of the alleged substances found in the apartment"; and (4) an Eighth Amendment claim of excessive bail. (See id.).
The trial court denied the petition on May 4, 2011 by way of an order denying "all pending motions as of the date of this Order." (See id., Ex. 31). Apparently unaware that his post-conviction petition was included in the May 4, 2011 order denying "all pending motions," petitioner filed a motion with the trial court on July 13, 2011, requesting an "expedient ruling" on his post-conviction petition. (Id., Ex. 32). On July 15, 2011, the trial court denied that motion again by way of an order denying "all pending motions as of the date of this Order." (Id., Ex. 33).
Respondent states that petitioner did not pursue an appeal from the denial of his state post-conviction petition. (Id., Brief, p. 7, at PAGEID#: 463).
On August 11, 2010, eight days after the original judgment and sentencing entry was issued on August 3, 2010, petitioner filed a pro se motion for credit for time served. (Doc. 13, Ex. 7). The trial court granted petitioner's motion on August 24, 2010. (Id., Ex. 8). However, although petitioner requested 1500 days of credit, the trial court granted only "a total of 11 days credit (as of the date of sentencing), plus conveyance time to the institution." (Id.).
Over three months later, on December 13, 2010, petitioner filed another pro se motionwith the trial court requesting both clarification of the August 24, 2010 order granting his motion for credit for time served and that 1511 days of jail-time credit be awarded to him. (Id., Ex. 25). On February 17, 2011, the trial court issued an entry granting petitioner's motion and awarding "credit for time served for a total of 1530 days credit." (Id., Ex. 26). However, the next day, the court issued another order setting aside the February 17, 2011 entry as "inadvertently entered" and granting petitioner "a total of 553 days credit" as of the date of his resentencing on September 22, 2010. (Id., Ex. 27). On April 25, 2011, p...
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