Powers v. Warden

SCOTT POWERS, Petitioner, v. WARDEN, LONDON CORRECTIONAL INSTITUTION, Respondent

CASE NO. 2:13-CV-1179

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

January 2, 2015

JUDGE JAMES L. GRAHAM

MAGISTRATE JUDGE KEMP

OPINION AND ORDER

On August 14, 2014, the Magistrate Judge issued a Report and Recommendation recommending that Respondent's Motion to Dismiss this case as time-barred under 28 U.S.C. § 2244(d) be denied and that Respondent be directed to respond to the merits of Petitioner's claim. Report and Recommendation, ECF 8. Respondent has filed an Objection to the Magistrate Judge's Report and Recommendation. Alternatively, Respondent contends that Petitioner's claim lacks merit. Objection, ECF 11.

For the reasons that follow, the Magistrate Judge's Report and Recommendation (ECF 8) is ADOPTED and AFFIRMED. Respondent's Motion to Dismiss (ECF 6) is DENIED. Respondent's Objection to the Magistrate Judge's Report and Recommendation (ECF 11) is SUSTAINED on the basis that Petitioner's claim lacks merit. Petitioner's Motion to Appoint Counsel (ECF 10) is DENIED. The petition for a writ of habeas corpus is hereby DISMISSED.

Petitioner asserts that he illegally is being held beyond the maximum expiration date of his sentence, in violation of the doctrine of separation of powers and due process. Petitioner argues that under 28 U.S.C. § 2244(d)(1)(D), the running of the statute of limitations on thisclaim did not begin until February 2012,¹ the date on which his maximum sentence expired and prison officials refused to release him. In November 2012, Petitioner filed a habeas corpus petition in the state trial court, which remained pending until November 6, 2013. On November 22, 2013, Petitioner filed this habeas corpus petition. .

28 U.S.C. § 2244(d)(1)(D) provides:

(d)(1) A 1-year period of limitation shall apply to 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 --

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Respondent objects to the Magistrate Judge's recommendation that the Motion to Dismiss this case as time-barred be denied. Respondent contends that the statute of limitations began to run on the date that Petitioner's underlying convictions became final within the meaning of 28 U.S.C. § 2244(d)(1)(A), which provides:

(d)(1) A 1-year period of limitation shall apply to 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[.]

Respondent contends this is so because O.R.C. § 2929.41(B), which requires a sentence to be served consecutively to any new felony committed by a probationer or parolee, is "self executing" and was in effect at the time of sentencing. Objection, Doc. No. 11, PageID# 340-41 (citing State v. Rhodes, No. 00 CA 160, 2001 WL 950685, at *2 (Ohio App. 7^th Dist. Aug. 14,2001)(stating that O.R.C. § 2929.41 does not require a trial court to state at sentencing that any new sentence will be served consecutively with the old sentence(s)). At the time the trial court imposed sentence, O.R.C. § 2929.41 provided in relevant part:

"(B) A sentence of imprisonment shall be served consecutively to any other sentence of imprisonment, in the following cases:

"(1) When the trial court specifies that it is to be served consecutively;

"(2) When it is imposed for a violation of division (A)(2), (3), or (4) of section 2907.21, division (B) of section 2917.02, section 2907.321, section 2907.322, division (B)(5) or (6) of section 2919.22, section 2921.34, or division (B) of section 2921.35 of the Revised Code, for a violation of section 2907.22 of the Revised Code that is a felony of the second degree, or for a violation of section 2903.13 of the Revised Code for which a sentence of imprisonment is imposed pursuant to division (C)(2) of that section;

"(3) When it is imposed for a new felony committed by a probationer, parolee, or escapee[.]

O.R.C. § 2929.41(B)(Amendment Note 1995).

This Court is not persuaded by Respondent's argument that the statute of limitations began to run when Petitioner's judgment(s) of conviction(s) became final. Petitioner does not challenge the underlying convictions or the sentences imposed in 1991 or 2005. If he did, this action plainly would be time-barred. But that is not the case. Petitioner is challenging Respondent's refusal to release him beyond what he contends is the date that his sentence completely expired under state law. He asserts that he therefore is being illegally held in prison, depriving him of due process, and in violation of the doctrine of separation of powers. This Court is not persuaded that Petitioner could have known of the basis for this claim, i.e., that hewould be challenging the State's refusal to release him from prison, at the time of sentencing, when the trial court imposed terms of incarceration in the 1991 and 2005 cases.

Other courts have held that the statute of limitations under similar scenarios begins to run at the time a criminal defendant learns that he is not going to be released, or at the time he could have learned of his date of release through the exercise of due diligence. See. e.g., Bostic v. Beightler, No. 1:11-cv-013454, 2012 WL 2064532, at *3-4 (N.D. Ohio March 29, 2012)(statute of limitations does not begin to run until, at the latest, the date that the prison refuses to release the petitioner); Bassett v. Johnson, No. 7:10-cv-00358, 2011 WL 4007840, at *3 (W.D. Va. Sept. 8, 2011)(statute of limitations does not begin to run until, at the latest, the date that the prison refused to release the petitioner beyond what he contends was his maximum release date); but see Davis v. Warden, Chillicothe Correctional Inst., 2014 WL 116666, at *6 (S.D. Ohio Jan. 10, 2014)(barring claims under 28 U.S.C. § 2244(d)(1)(D) where the petitioner failed to establish due diligence in pursuing his claim).

Merits

Petitioner argues that his 1991 sentence of 8-15 years, imposed on new charges committed while he had been released on parole, was to run concurrently with his prior sentence. He further contends that, including his subsequent seven year sentence in 2005, again imposed on new charges committed while he had been released on parole, his maximum sentence expired in February 2012, and Respondent refuses to release him. Petitioner asserts that the state court erroneously is permitting the prison to resentence him "without notice of opportunity to be heard, to consecutive sentences that the trial court did not impose." Petition, ECF 2, PageID# 5. As a result, and liberally construing the Petition, as this Court is required to do, Petitioner asserts that his sentence violates due process, the doctrine of separation of powers, and the Equal ProtectionClause. See Memorandum in Support of Jurisdiction, Exhibit 24 to Motion to Dismiss, ECF 6-1, PageID# 271.

Setting aside the question of whether Petitioner has waived the claims he now presents for relief, the Court concludes that Petitioner has failed to establish that he is entitled to relief.

Petitioner's claim, to some extent, necessarily involves the interpretation of state statutes and the provisions of O.R.C. § 2929.41, regarding whether the sentences at issue were required to run consecutively or concurrently to one another. A state law claim fails to provide a basis for relief. It is not this Court's function, in the context of a habeas corpus proceeding, to interpret state law. That job is left to the state courts, and "the views of the state's highest court with respect to state law are binding on the federal court." Wainwright v. Goode, 464 U.S. 78, 84 (1983). Federal courts may issue a writ of habeas corpus only to remedy violations of federal law; "federal habeas corpus relief does not lie for errors of state law...." Lewis v. Jeffers, 497 U.S. 764, 780 (1990).

Petitioner's claim that he is being held in violation of the doctrine of separation of powers also fails to present an appropriate issue for habeas corpus relief. See Graham v. Warden, No. 1:10-cv-616, 2011 WL 3941615, at *31 (S.D. Ohio July 22, 2011)(citation omitted).

Such arguments about the structure of a state's governance are matters for the individual states, not for the federal government. The only structural requirement imposed on the states by the Constitution is that each state shall have a republican form of government. Art. IV, § 4. All else, consistent with the federal rights guaranteed a state's citizens, is a matter for the individual states.

McKitrick v. Smith, No. 3:08-CV-597, 2009 WL 1067321 *9 n. 4 (N.D.Ohio April 21, 2009); see also Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000) (claim under doctrine of separation of powers presents an issue of state law not cognizable for federal habeas review); Harris v.Wilson, No. 1:06-cv-2342, 2006 WL 3803410, at *5 (N.D.Ohio Dec.26, 2006) (claim that Ohio parole board violated doctrine of separation of powers by determining earliest release date constitutes an issue of state law not appropriate for federal habeas corpus review); Shahan v. Smith, No. 2:08-cv-252, 2009 WL 2169194, at *7 (S.D.Ohio July 16, 2009) (same).

In Whalen v. United States, 445 U.S. 684, 689 n. 4, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the Supreme Court noted that "the doctrine of separation of powers embodied in the Federal Constitution is not mandatory on the States." The Sixth Circuit also has held that the separation of powers between a state trial judge and other branches of the state government "is a matter of state law," which is not subject to federal habeas review. Austin v. Jackson, 213 F.3d 298, 302 (6th Cir.2000) (citing

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