Rettig v. Jefferys, No. 3:06 CV 2252.

• Decision Date: 15 April 2008
• Docket Number: No. 3:06 CV 2252.
• Citation: 557 F.Supp.2d 830
• Parties: Michael RETTIG, Petitioner, v. Rob JEFFERYS, Warden, Respondent.
• Court: U.S. District Court — Northern District of Ohio

557 F.Supp.2d 830

Michael RETTIG, Petitioner, v. Rob JEFFERYS, Warden, Respondent.

No. 3:06 CV 2252.

United States District Court, N.D. Ohio, Eastern Division.

April 15, 2008.

Michael Rettig, Marion, OH, pro se.

Gregory T. Hartke, Office of the Attorney General, Cleveland, OH, for Respondent.

MEMORANDUM OF OPINION AND ORDER

DAN AARON POLSTER, District Judge.

Before the Court is the Report and Recommended Decision of Magistrate Judge Kenneth S. McHargh, issued on December 17, 2007 (ECF No. 12) (the "R & R"). The Magistrate Judge recommends that the Court dismiss the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody filed by Michael Rettig (ECF No. 1). Rettig is presently serving an aggregate prison term of four years pursuant to a plea agreement in which he pled no contest to three counts of Trafficking in Cocaine, and one count of Trafficking in Marijuana.

Rettig first argues that the state trial court violated his rights under the United States Constitution by sentencing him based on conduct not admitted to in his plea, i.e. his sentences were imposed consecutively, rather than concurrently, based on judicial fact-finding. The Magistrate Judge recommends dismissal of this claim because a challenge to a state court's interpretation and application of Ohio's sentencing laws is not cognizable in a federal habeas corpus action. Moreover, the Magistrate Judge notes that as a result of the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 442, 166 L.Ed.2d 314 (2006), Ohio trial courts are no longer required to make any findings or give any reasons when imposing consecutive sentences. (ECF No. 12, R & R at 838) (citing Minor v. Wilson, 213 Fed.Appx. 450, 453 n. 1 (6th Cir.2007).)

Second, Rettig argues that he received ineffective assistance of trial counsel when his attorney failed to object to consecutive sentences. The Magistrate Judge recommends dismissal of this claim because Rettig fails to satisfy his burden under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), namely because trial counsel cannot be found to have acted unreasonably in not objecting to the sentencing based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Relatedly, Rettig also claims that his counsel never consulted with him about an appeal, but the Magistrate Judge correctly notes that Rettig never raised this claim in any state courts, and thus is not entitled to consideration of this claim by the Court.

Third, Rettig argues that the post release control portions of his sentence is unconstitutional. The Magistrate Judge recommends dismissal of this claim because the Ohio Supreme Court has found that the Ohio post release control statute does not violate the Due Process Clause or the Double Jeopardy Clause of the United States Constitution, Rettig provides not authority to the contrary, and thus he has not satisfied his burden under Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) to establish that the state court decision was contrary to, or involved an unreasonable applicable of, clearly established federal law.

Fourth, Rettig argues that his motion for delayed appeal was denied by the state appellate court in violation of its own rules. The Magistrate Judge recommends dismissal of this claim because the Sixth Circuit has held that the decision to deny a motion for leave to file a delayed appeal is solely within the discretion of the appellate court, and thus Rettig cannot satisfy his burden under Williams v. Taylor.

Fifth, Rettig argues that the Ohio Supreme Court's decision in Foster is an unconstitutional ex post facto law. The Magistrate Judge recommends dismissal of this claim, citing several Ohio court decisions rejecting ex post facto challenges to Foster.

Under the relevant statute:

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.

28 U.S.C. § 636(b)(1)(C) (1988) (emphasis added). Here, almost four months have elapsed since the R & R was issued, and Rettig has filed neither an objection nor a request for an extension to file objections.

The failure to timely file written objections to a Magistrate Judge's report and recommended decision constitutes a waiver of a de novo determination by the district court of an issue covered in the report. Thomas v. Am, 728 F.2d 813 (6th Cir. 1984), aff'd, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

The Court has reviewed the Magistrate Judge's thorough and well-written R & R (ECF No. 12) and hereby ADOPTS it. Accordingly, the underlying petition for writ of habeas corpus (ECF No. 1) is DENIED.

IT IS SO ORDERED.

REPORT AND RECOMMENDED DECISION OF MAGISTRATE JUDGE

McHARGH, United States Magistrate Judge.

The petitioner Michael Rettig ("Rettig") has filed pro se a petition for a writ of habeas corpus arising out of his 2005 convictions for trafficking in cocaine and marijuana in the Henry County, Ohio, Court of Common Pleas. (Doc. 1.) Rettig raises five grounds for relief in his petition:

1. Violations occurred of Appellant's rights under the Sixth Amendment, Due Process, and under the Fourteenth Amendment of the U.S. Constitution.

2. The trial attorney was ineffective for not objecting to the consecutive sentences imposed on appellant.

3. Appellant was denied due process, equal protection and his Amendment Rights under the U.S. Constitution when post release control was imposed by the Department of Corrections and Ohio APA.

4. Appellant [sic] court denied appellant's motion for delayed appeal in violation of the rules set forth by the Courts.

5. The unconstitutional application and the violation of ex post facto of the remedy in State v. Foster decided February 2006. The remedy removed the constitutional protections that were in place at the time of the appellant's sentencing. Thus, removing the Blakely and Apprendi jurisprudence in Ohio sentencing laws that were in place and leaving the appellant without the Sixth Amendment rights he did have.

(Doc. 1, at §§ 12.A-12.E.)

I. PROCEDURAL BACKGROUND

On Feb. 3, 2004, Rettig was indicted on two counts of trafficking in cocaine and two counts of trafficking in marijuana. (Doc. 6, RX 1, Case No. 04CR13.) On Oct. 19, 2004, Rettig was subject to a second indictment on another count of trafficking in cocaine. (Doc. 6, RX 3, Case No. 04CR101.) Both indictments were amended on Feb. 15, 2005. (Doc. 6, RX 2, 4.)

That same date, Feb. 15, 2005, Rettig entered pleas of no contest to one count of Trafficking in Cocaine, a fourth degree felony in violation of Ohio Revised Code [R.C.] § 2925.03(A)(1)(C)(4)(a)(b); one count of Trafficking in Marijuana, a fourth degree felony in violation of R.C. § 2925.03(A)(1)(C)(3)(a)(b); one count of Trafficking in Cocaine, a third degree felony in violation of R.C. § 2925.03(A)(1)(C)(4)(d); and, from the second indictment, a count of Trafficking in Cocaine, a fourth degree felony in violation of R.C. § 2925.03(A)(1)(C)(4)(c). (Doc. 6, RX 5-6; RX 16.) On April 4, 2005, he was sentenced to concurrent sentences of eight months on count one, eight months on count two, and three years on count four from the first indictment. He was sentenced to a prison term of twelve months on the single count from the second indictment, to run consecutively. In sum, Rettig was sentenced to a consecutive prison term of four years. (Doc. 6, RX 7-8; RX 17.)

On Sept. 9, 2005, Rettig filed a motion for leave to file a delayed appeal, pursuant to Ohio App. R. 5(A). (Doc. 6, RX 9-10.) In his motion, Rettig proposed three assignments of error:

1. Violations occurred of appellant's rights under the Sixth Amendment, due process, and under the Fourteenth Amendment of the U.S. Constitution, which occurred during appellant's sentencing, when the trial court used factors found by a preponderance of the evidence, and not charged in the indictment and proved beyond a reasonable doubt to a jury or admitted to by the appellant to sentence appellant to punishment beyond that authorized by the appellant's guilty plea alone.

2. The trial attorney was ineffective for not objecting to the consecutive sentences in violation of appellant's constitutional rights as described in Apprendi and Blakely and Ring. Further, the trial court erred in imposing consecutive sentences, as the sentences are contrary to law.

3. Appellant was denied due process, equal protection, and his Sixth Amendment rights under the U.S. Constitution when the Department of Rehabilitation and Corrections and Ohio Adult Parole Authority imposed post-release control and its prison/jail sanction pursuant to RC § 2967.28. The vague and unconstitutional post-release control pursuant to RC § 2967.28, and exposed appellant to the unconstitutional statute RC § 2929.14.1.

(Doc. 6, RX 10, at 6, 9, 14.)

On Nov. 9, 2005, the appellate court denied his motion for leave, finding that he had not shown good cause for the untimely filing. (Doc. 6, RX 11.)

Rettig next filed an appeal with the Supreme Court of Ohio on Dec. 27, 2005, based on four propositions¹ of law:

1. Violations occurred of appellant's rights under the Sixth Amendment, due process, and under the Fourteenth Amendment of the U.S. Constitution, which occurred during appellant's sentencing, when the trial court used factors found by a preponderance of the evidence, and not charged in the indictment and proved beyond a reasonable doubt to a jury or admitted to by the appellant to sentence appellant to punishment beyond that authorized by the appellant's guilty plea alone.

2. The...