Washington v. Warden, N. Cent. Corr. Inst.

• Decision Date: 16 July 2019
• Docket Number: Case No. 1:18-cv-709
• Parties: ANDRE D. WASHINGTON, Petitioner, v. WARDEN, NORTH CENTRAL CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

ANDRE D. WASHINGTON, Petitioner, v. WARDEN, NORTH CENTRAL CORRECTIONAL INSTITUTION, Respondent.

Case No. 1:18-cv-709

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

July 16, 2019

Dlott, J.

Bowman, M.J.

REPORT AND RECOMMENDATION

Petitioner, an inmate in state custody at the Madison Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on respondent's motion to dismiss (Doc. 11), and petitioner's response in opposition (Doc. 15). Also before the Court is petitioner's motion to stay and motion to amend/correct. (Doc. 6, 13).

For the reasons stated below, the undersigned recommends that the petition be denied and respondent's motion to dismiss be denied as moot.¹ Petitioner's motion to stay and motion toamend/correction should also be denied.

I. FACTUAL BACKGROUND

The Ohio Court of Appeals set forth the following set of facts leading to petitioner's conviction and sentence:²

During the early afternoon of February 5, 2003, Jeremy Kotzbauer was working alone at his family's business, Natural Life Nutrition, when Washington came into the store and told Jeremy that somebody was "peeping" his car. Concerned, Jeremy looked out into the parking lot. (We use first names to distinguish between the Kotzbauer brothers.) Seeing nothing unusual, Jeremy turned around to find Washington pointing a gun at his face and demanding all the money in the cash register. Jeremy took the money out, placed it in a brown paper bag, and gave it to Washington. Washington then demanded the keys to Jeremy's car. As Washington took Jeremy to the back room to get his car keys, Jeremy tripped the silent alarm.

Washington left the store, got into Jeremy's car, and drove away. As Washington left, Jeremy's brother, Nathan, pulled into the parking lot. Jeremy told his brother what had happened, and Nathan proceeded to follow Jeremy's car. For the next twenty minutes, Nathan followed Washington as he drove Jeremy's car. In the futile hope of hastening his escape, Washington decided to take Jeremy's car onto northbound Interstate 75, where Nathan continued to follow. Unfortunately for Washington, a traffic accident made the typically bottlenecked traffic on the interstate even slower than usual. As they drove on the interstate, Nathan spotted an Arlington Heights police cruiser pulled over on the shoulder. Officer Chris Bundrew was issuing another driver a traffic citation. Nathan informed Bundrew of what had occurred. Bundrew then joined the pursuit.

Shortly thereafter, Bundrew stopped Jeremy's car. The driver got out of Jeremy's car, lay on the ground, and was placed in custody. Of course, the driver was Washington, and a search of his person uncovered the stolen money as well as some crack cocaine in his pocket. A search of Jeremy's car turned up the gun used in the robberies. Jeremy later described the robber as an African-American male, roughly between 6'2" and 6'3", of unknown weight, and wearing a winter jacket, skullcap, and blue gloves.

Later that night, the police showed Jeremy a one-man holding area where they were keeping Washington. They had already told Jeremy that they had the man who had robbed the store and now asked Jeremy if he could identity that man. Jeremy identified Washington as the robber. Nathan was shown a Polaroid photograph of only Washington and asked if the person in the photograph was the robber. Nathan identified Washington's picture as the person who had robbed his brother and the store.

(Doc. 10, Ex. 9 at PageID 100-102).

II. PROCEDURAL HISTORY

State Trial Proceedings and Direct Appeal

On February 14, 2003, the Hamilton County, Ohio, grand jury returned a five-count indictment charging petitioner with two counts of aggravated robbery, two counts of robbery, and one count of possession of cocaine. (Doc. 10, Ex. 1). Petitioner entered a plea of not guilty to all charges. (Doc. 10, Ex. 2).

On August 20, 2003, following a jury trial, petitioner was convicted of all charges. (Doc. 10, Ex. 3). Petitioner was sentenced to serve a total aggregate prison sentence of twenty years in the Ohio Department of Corrections on September 5, 2003. (See Doc. 10, Ex. 4). Specifically, petitioner received consecutive, eight-year prison terms for his aggravated robbery convictions: one count based on the theft of currency from the Natural Life Nutrition Center and the other based on the theft of a motor vehicle from Jeremy Kotzbauer. Petitioner was sentenced to two three-year gun specifications on these counts, which were ordered to be served concurrently, but consecutive to the sentences imposed for his other convictions. For his possession of cocaine conviction petitioner received a one-year prison sentence. Finally, the two counts of robbery (one for the Natural Life Nutrition Center and one for Jeremey Kotzbauer) were merged with therespective aggravated robbery counts. (See id.).

On September 23, 2003, through different counsel, petitioner filed a timely notice of appeal to the Ohio Court of Appeals. (Doc. 10, Ex. 6). In his appellate brief, petitioner raised the following two assignments of error:

1. The jury committed prejudicial error in finding Washington guilty of Aggravated Robbery, Robbery, and Possession of Cocaine as the verdict was against the manifest weight of the evidence.

2. The identification of Andre Washington by Nathan Kotzbauer and Jeremy Kotzbauer should be suppressed as it was unreasonably suggestive and violated Washington's right to a fair trial under the Ohio and United States Constitutions.

(Doc. 10, Ex. 7). By judgment entry entered on November 3, 2004, the Ohio Court of Appeals overruled petitioner's assignments of error and affirmed the judgment of the trial court. (Doc. 10, Ex. 9).

Petitioner did not seek further review in the Ohio Supreme Court.

Motion for a New Trial

On May 25, 2010, several years later, petitioner filed a "delayed motion for a new trial to correct a void judgment or sentence and defective indictment of robbery and aggravated robbery." (Doc. 10, Ex. 10). Petitioner challenged his indictment for not expressly charging the mens rea element for the aggravated robbery and robbery charges. On May 24, 2010, the trial court denied petitioner's motion. (Doc. 10, Ex. 12).

Petitioner filed an appeal to the Ohio Court of Appeals from the trial court's judgment. (Doc. 10, Ex. 13). However, on November 12, 2010, the Ohio appeals court dismissed the appeal for petitioner's failure to file an appellate brief. (Doc. 10, Ex. 14).

Petitioner did not seek further review in the Ohio Supreme Court.

Application to Reopen Appeal

Next, on February 9, 2012, petitioner filed an application to reopen his appeal pursuant to Ohio App. R. 26(B). (Doc. 10, Ex. 15). Petitioner argued that his appellate counsel was ineffective for failing to raise a claim that his convictions amounted to allied offenses of similar import under Ohio Rev. Code § 2941.25. (See id.). On March 7, 2012, the Ohio Court of Appeals denied petitioner's application, finding that petitioner failed to provide sufficient reasons for his failure to file a timely application. (Doc. 10, Ex. 17).

Petitioner did not file an appeal to the Ohio Supreme Court.

Motion to Vacate

On April 11, 2016, petitioner filed a motion to vacate a void sentence. (Doc. 10, Ex. 19). Petitioner argued that he was not advised of the length of his post-release control term or the consequences of violating its terms. The trial court appointed petitioner counsel and, on August 31, 2016 held a hearing. (Doc. 10, Ex. 20). During the hearing, petitioner argued that because post-release control was not properly imposed that his sentence was void and that petitioner should be entitled to a new sentencing hearing, during which he would argue that his two aggravated robbery convictions were allied offenses of similar import and should merge for the purposes of sentencing. (See Doc. 10-2, Trans. at PageID 330-31).

On August 31, 2016, the trial judge advised petitioner that he will be subject to mandatory post-release control for five years once he has served his sentence and of the consequences for violating its terms. (See id. at PageID 335-36). The trial court otherwise leftthe original sentence undisturbed.³ Petitioner's motion to vacate was denied by the trial court on September 19, 2016. (Doc. 10, Ex. 22). A nunc pro tunc sentencing entry was issued on November 23, 2016, imposing the same sentence but including the post-release control information. (See Doc. 10, Ex. 21).

On September 6, 2016, petitioner filed a notice of appeal and motion to appoint counsel in the Ohio Court of Appeals. (Doc. 10, Ex. 23, 24). Petitioner's motion for counsel was granted. (Doc. 10, Ex. 25). Petitioner, through counsel, raised the following two assignments of error in his appellate brief:

1. The trial court erred by failing to comply with the principles and purposes of sentencing at a de novo resentencing hearing.

2. The trial court erred when it failed to merge allied offenses of similar import under R.C. 2941.25 and as such prison on the firearm specifications on those counts cannot be given.

(Doc. 10, Ex. 27). On August 9, 2017, the Ohio Court of Appeals overruled petitioner's assignments of error and affirmed the decision of the trial court. (Doc. 10, Ex. 29). The appeals court ruled that the trial court properly limited the scope of the resentencing hearing to the imposition of post release control and that petitioner's allied offenses assignment of error should have been brought on direct appeal and was now barred under the doctrine of res judicata. (See id.).⁴

On October 4, 2017, petitioner filed a notice of appeal and motion for delayed appeal to the Ohio Supreme Court. (Doc. 10, Ex. 32, 33). Petitioner claimed that he could not timely file a notice of appeal because he was not notified that a pass was issued for him to access the mailroom in time. (See Doc. 10, Ex. 33). On December 6,...