Morales v. Eppinger

MARCEL A. MORALES, Petitioner, v. LaSHANN EPPINGER, Warden, Respondent.

CASE NO. 5:17-cv-02629

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

November 27, 2018

JUDGE CHRISTOPHER A. BOYKO

MAGISTRATE JUDGE DAVID A. RUIZ

REPORT AND RECOMMENDATION

Petitioner, Marcel A. Morales (hereinafter "Petitioner" or "Morales"), challenges the constitutionality of his conviction in the case of State v. Morales, Summit County Court of Common Pleas Case No. CR-2004-09-3018. Petitioner, pro se, filed his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on December 18, 2017. (R. 1). On April 13, 2018, Warden LaShann Eppinger ("Respondent") filed a Motion to Dismiss the petition as time-barred. (R. 8). Petitioner filed his brief in opposition on May 11, 2018. (R. 9). This matter is before the undersigned Magistrate Judge pursuant to Local Rule 72.2. For reasons set forth in detail below, it is recommended that the habeas petition be DISMISSED as time-barred.

I. State Procedural History

A. Conviction

On September 13, 2004, a Summit County Grand Jury issued a four count indictment charging Morales with one count of felonious assault in violation of Ohio Revised Code ("O.R.C.") § 2903.11(A)(2), one count of tampering with evidence in violation of O.R.C. § 2921.12(A)(1), one count of carrying a concealed weapon in violation of O.R.C. § 2923.12(A)(2), and one count of assault in violation of O.R.C. § 2903.13(A). (R. 8-1, Exh. 3, PageID#58-59). On September 21, 2004, a supplemental indictment charged Morales with one count of aggravated robbery in violation of O.R.C. § 2911.01(A)(1), one count of kidnapping in violation of O.R.C. § 2905.01(A)(2), three counts of attempted murder in violation of O.R.C. § 2903.02(B) & 2923.02, and three counts of felonious assault in violation of O.R.C. § 2903.11(A)(2). (R. 8-1, PageID# Exh. 2, PageID# 53-57). Each of the supplemental charges carried a firearm specification. Id. On October 13, 2004, a second supplemental indictment also charged Morales with one count of aggravated robbery in violation of O.R.C. § 2911.01(A)(1) with a firearm specification, three counts of burglary in violation of O.R.C. § 2911.12(A)(2), and three counts of breaking and entering in violation of O.R.C. § 2911.13(A). (R. 8-1, Exh. 1, PageID# 49-52). Initially, Morales, through counsel, pleaded not guilty.

On June 27, 2005, Morales withdrew his former not guilty plea and entered a negotiated guilty plea to four counts of felonious assault, two counts of aggravated robbery, one count of kidnapping, three counts of burglary and three counts of breaking and entering, including firearm specifications.¹ (R. 8-1, Exhs. 4 & 5, PageID# 64-68). The trial court accepted his guilty pleas. (R. 8-1, Exh. 5, PageID# 66). Morales was sentenced to an aggregate term of 24 years imprisonment. Id.

B. Direct Appeal

Petitioner did not file a direct appeal.

C. Motion for Resentencing

On January 3, 2011, Petitioner filed a motion arguing his sentence failed to properly impose post-release control. (R. 8-1, Exh. 7, PageID# 70). On February 20, 2011, Petitioner received an identical sentence except that the court specifically imposed the mandatory 5-year term of post release control. (R. 8-1, Exhs. 8 & 9, PageID# 75-80).

On January 10, 2013, two years later, Petitioner filed a delayed direct appeal from his resentencing arguing that he had not been served with the judgment until December 18, 2012. (R. 8-1, Exh. 10, PageID# 81-82). The state appellate court denied the appeal as untimely, and observed that the service provisions of Ohio App. R. 4(A) applied to civil appeals only. (R. 8-1, Exh. 11, PageID# 93). Morales filed a motion for reconsideration that was denied as also untimely. (R. 8-1, Exhs. 12 & 13, PageID# 94-102).

On March 14, 2013, Petitioner filed a notice of appeal with the Supreme Court of Ohio. (R. 8-1, Exh. 14, PageID# 103). Petitioner asserted one proposition of law:

When a Defendant files a motion for resentencing in the context of a post release control error proceeding, the motion must still be reclassified by a trial court as a petition for post-conviction relief and the trial court must ignore the 180 day time limit prescribed in the statute. A trial court must follow this Court's holding in Bush and Reynolds because a trial court has inherent authority and power to vacate a void judgment or sentence which is codified in the plain language of O.R.C. § 2953.21's reference to the term "void."

(R. 8-1, Exh. 15, PageID# 105-112). On May 8, 2013, the Supreme Court of Ohio declined to accept jurisdiction of the appeal, pursuant to Ohio Sup. Ct. Prac. R. 7.08(B)(4). (R. 8-1, Exh. 16, PageID# 119).

D. Post-Conviction Relief Proceedings

On March 18, 2015, Morales filed a "Crim.R. 52(B) Motion to Notice Plain Error and Correct Manifest Miscarriage of Justice." (R. 8-1, Exh. 17, PageID# 120). Petitioner asserted thatplain error existed because the trial court failed to make the requisite findings before imposing consecutive sentences. Id. On March 30, 2015, the motion was denied by the trial court. (R. 8-1, Exh. 18, PageID# 165).

On April 20, 2015, Petitioner appealed the decision raising one assignment of error:

The trial court abused its discretion in denying Appellant's Crim.R. 52(B) motion to notice plain error, when trial court's imposition of consecutive sanction does not comport with mandatory provisions of division (E)(4), renumbered to (C)(4) of Section 2929.14 of the Revised Code, affecting Appellant's substantial rights of due process of law, therefore, consecutive sanction is contrary to law and is also not authorized by law.

(R. 8-1, Exhs. 19 & 20, PageID# 166-186). On June 8, 2016, the state appellate court found Morales's motion to be untimely by over nine years. (R. 8-1, Exh. 23, PageID# 204-205). On June 20, 2016, Petitioner filed a motion for reconsideration, which was denied on January 26, 2017. (R. 8-1, Exhs. 24 & 25, PageID# 207-211).

On July 5, 2016, while the motion for reconsideration was pending, Morales filed an appeal with the Ohio Supreme Court setting forth three propositions of law in his memorandum in support of jurisdiction:

I. Whether, in light of Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E. 2d 522, did the Court of Appeals have the authority to Criminal Procedure, as a post-conviction relief petition, or was Appellant denied due process of law?

II. Whether in this instance, does Section 5(B), Article IV, of the Ohio Constitution confer power upon the Court of Appeals, to prescribe rules of practice and procedure, to recast Ohio Rules of Criminal Procedure, as post-conviction relief petition.

III. Whether a consecutively, imposed sentence, under former R.C. 2929.14(E)(4), is unconstitutional and severed, in Foster, by its terms, a void sanction?

(R. 8-1, Exhs. 26 & 27, PageID# 212-231).

On October 15, 2016, the Supreme Court of Ohio declined to accept jurisdiction of the appeal. (R. 8-1, Exh. 28, PageID# 232).

On December 15, 2016, Morales filed a motion to correct post release control with the trial court alleging that the court improperly imposed post release control at his resentencing. (R. 8-1, Exh. 29, PageID# 233). On December 20, 2016, the trial court denied the motion. (R. 8-1, Exh. 31, PageID# 245).

On January 17, 2017, Morales filed a notice of appeal and asserted two assignments of error:

1. The trial court erred in denying Appellant's motion to correct post release control.

2. The consecutive sanctions of the sentences are contrary to law and must be vacated.

(R. 8-1, Exhs. 32 & 33, PageID# 246-279). On June 14, 2017, the state appellate court affirmed the judgment of the trial court. (R. 8-1, Exh. 36, PageID# 301-306).

On July 20, 2017, Morales filed an appeal with the Ohio Supreme Court asserting two propositions of law:

I. Whether Appellant' post release control is contrary to law and constitutional infirm?

II. Whether in this instance, did the trial court act without authority imposing consecutive sanction as to be rendered constitutional infirm?

(R. 8-1, Exhs. 37 & 38, PageID# 307-325).

On November 17, 2017, the Ohio Supreme Court declined to accept jurisdiction pursuant to Ohio S. Ct. Prac. R. 7.08(B)(4). (R. 8-1, Exh. 39, PageID# 326).

E. Federal Habeas Petition

Petitioner indicates that he placed his Petition in the prison mailing system on November24, 2017. (R. 1, PageID# 15). The Petition for Writ of Habeas Corpus asserts the following grounds for relief:

Ground One: Petitioner was deprived of his liberty without due process of law; state court never accepted his pleas of guilty nor found him guilty beyond a reasonable doubt.

Ground Two: Petitioner is actually innocent of committing worst offenses and of being worst offender because his due process rights were violated.

Ground Three: Petitioner's due process rights were violated because the state trial court failed to give notice regarding post release control for second degree felonies.

(R. 1, PageID# 5-8).

II. Statute of Limitations

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997); Watkins v. Warden, No. 17-1388, 2017 WL 4857576 at *1 (6^th Cir. Sept. 28, 2017) ("Actions arising under § 2254 have a one-year statute of limitations.") The relevant provisions of AEDPA state:

(d)(1) A one year period of limitations shall apply to the filing of an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the

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