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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ANTHONY C. PRYOR, 

 

 Petitioner, 

 

 v. CASE NO. 2:13-CV-48; 13-cv-54 

 JUDGE GEORGE C. SMITH 

 ` Magistrate Judge Deavers 

MICK OPPY, WARDEN, 

ROSS CORRECTIONAL 

INSTITUTION, 

 Respondent. 

OPINION AND ORDER 

 On October 14, 2014, the Magistrate Judge issued a Report and Recommendation

recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 

be dismissed. ECF 6. Petitioner has filed an Objection to the Magistrate Judge’s Report and 

Recommendation, and Request for a Certificate of Appealability. ECF 10, 11. 

 Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the 

reasons that follow, Petitioner’s Objection, ECF 10, 11, is OVERRULED. The Report and 

Recommendation, ECF 6, is ADOPTED and AFFIRMED. This action is hereby DISMISSED. 

 Petitioner’s Request for Certificate of Appealability, ECF 11, is GRANTED, in part, and 

DENIED, in part. 

 In October 2002, the Fairfield County Court of Common Pleas sentenced Petitioner to an 

aggregate term of three life sentences on charges of kidnapping, rape, and abduction. In 

February 2004, the Ohio Fifth District Court of Appeals remanded the case to the trial court for 

re-sentencing solely on the issue of post-release control. See State v. Pryor, No. 11-CA-12, 2011 

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WL 3847015, at *1 (Ohio App. 5th Dist. Aug. 25, 2011). Pursuant to the remand of the Ohio 

Court of Appeals, in February 2011, the trial court conducted a re-sentencing hearing for 

imposition of a mandatory five year term of post-release control. See id. Petitioner challenges 

the constitutionality of that re-sentencing hearing. 

Petitioner asserts that he was denied due process and re-sentenced in violation of the Ex 

Post Facto Clause, the right to a speedy trial, and in violation of Ohio law; and that he was 

denied a due process because of the delay in re-sentencing. The Magistrate Judge recommended 

dismissal of all of these claim, with the exception of his claim regarding the denial of due 

process and the Ex Post Facto Clause, as procedurally defaulted, and recommended dismissal of 

the latter claim as without merit. Petitioner objects to that recommendation. 

Petitioner objects to the Magistrate Judge’s recommendation of dismissal of his claims as 

procedurally defaulted. Petitioner contends that he preserved all of his claims for review by 

presenting them to the Ohio Supreme Court. Objection, ECF 10, PageID#334-36. Alternatively, 

Petitioner argues that Respondent waived the issue of procedural default or has effectively 

admitted to the merits of certain of Petitioner’s claims by failing to address them in the Return of 

Writ. Petitioner asserts, as cause for his procedural default, that he was denied effective 

assistance of appellate counsel. PageID# 335-37. Additionally, Petitioner again raises all of the 

same arguments he previously presented as to the merits of his claims. 

Petitioner objects to the Magistrate Judge’s dismissal of his claim that he was denied due 

process and sentenced in violation of the Ex Post Facto Clause and requests reconsideration of 

this claim under Peugh v. United States, 569 U.S. – , 133 S.Ct. 2072 (2013), issued on June 10, 

2013, after his re-sentencing hearing. Objection, ECF 11. In this respect, Petitioner again argues 

that the trial court’s failure to conduct a de novo hearing for imposition of post-release control at 

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the time of his re-sentencing violated the Ex Post Facto Clause. He maintains this is so because 

Ohio law had provided for a de novo re-sentencing hearing at the time of his conviction and 

sentence. Petitioner claims prejudice from the re-sentencing because he was denied the right to 

allocution and was unable to present mitigating evidence. He also asserts that he was prejudiced 

because under the Ohio Supreme Court’s decision in State v. Foster, 109 Ohio St.3d 1 (Ohio 

2006), the trial court no longer had to justify imposition of maximum or consecutive terms of 

incarceration. 

He requests a certificate of appealability on all of these issues. Id. 

 Petitioner’s Objection, ECF 10, 11, is OVERRULED. The record fails to support 

Petitioner’s claim that he preserved his claims by presenting them to the Ohio Supreme Court. 

See Exhibit 21 to Return of Writ, ECF 4-1. Further, regardless of whether Petitioner attempted to 

raise his claims in the Ohio Supreme Court, he has committed a procedural default by failing to 

raise this claims in the state appellate court. See Ruark v. Warden, Ross Corr. Inst., No. 2:12-cv934, 2014 WL 2217258, at *6 (S.D. Ohio May 29, 2014)(noting that if the Supreme Court grants 

a motion for delayed direct appeal, it considers only those issues raised in appellate court 

below)(citing Fornash v. Marshall, 686 F.2d 1179, 1185 n.7 (6th Cir. 1982)(further citations 

omitted)). As discussed by the Magistrate Judge, this Court may sua sponte raise the issue of 

procedural default. A respondent’s failure to address a petitioner’s claims does not entitle the 

petitioner to relief. Field v. Turner, No. 1:13-cv-1415, 2014 WL 3508519, at *2 (N.D. Ohio July 

15, 2014)(judgment by default based upon a respondent's alleged failure to timely respond is not 

appropriate in habeas corpus proceedings)(citing Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 

1970)(superseded on other grounds by statute as stated in Cobb v. Perini, 832 F.2d 342 (6th Cir. 

1987)(further citations omitted)). A claim of ineffective assistance of counsel cannot constitute 

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cause for Petitioner’s procedural default in this case, since Petitioner never presented such claim 

to the Ohio courts. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). 

 Petitioner claims that he is entitled to relief under United States Supreme Court’s 

decision in Peugh. Objection, ECF 11. In Peugh, the Supreme Court held that the Ex Post Facto 

Clause is violated when a criminal defendant is sentenced under a provision of the United States 

Sentencing Guidelines promulgated after commission of the criminal act charged, and the new 

version provides a higher applicable Guidelines sentencing range than the version in place at the 

time of the offense. United States v. Wurzelbacher, -- F. App’x. --, --, 2014 WL 6600423, at *3 

(6th Cir. Nov. 20, 2014)(citing Peugh, 133 S.Ct. at 2072). The argument that Peugh requires 

Ohio to follow procedural rules no longer applicable at the time of re-sentencing has been 

rejected by other Ohio courts to consider this same issue. See Braddy v. Bunting, No. 1:13-cv1464, 2014 WL 4285632, at *2 (N.D. Ohio Aug. 29, 2014); Rarden v. Warden, Warren

Correctional Inst., Nos. 1:12-cv-660; 12-cv-756, 2014 WL 497266, at *2 (S.D. Ohio Feb. 7, 

2014). This Court agrees with the reasoning of those courts. A trial court does not violate ex 

post facto considerations by failing to conduct a de novo re-sentencing hearing for imposition of 

post-release control, regardless of whether it was required at the time of sentencing. Ohio’s 

application of the procedural rule at issue does not impose punishment for conduct not 

previously criminal or expose Petitioner to the possibility of a greater sentence than that 

originally imposed. Braddy v. Bunting, No. 1:13-cv-1464, 2014 WL 4285605, at *13 (N.D. Ohio 

Aug. 5, 2014)(Report and Recommendation affirmed by Braddy, 2014 WL 4285632). For all of 

these reasons, and for the reasons discussed in the Magistrate Judge’s Report and 

Recommendation, Petitioner’s Objection, ECF 10, 11, is OVERRULED. This action is hereby 

DISMISSED. 

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 Petitioner moves the Court to issue a certificate of appealability. 

 Where a claim has been denied on the merits, a certificate of appealability may issue 

where the petitioner establishes that “reasonable jurists could debate whether. . . . the petition 

should have been resolved in a different manner or that the issues presented were ‘adequate to 

deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 483-84 

(2000)(citing 28 U.S.C. § 2253(c); Barefoot v. Estelle, 463 U.S. 880, 894 (1983)). 

Where a claim has been dismissed on procedural grounds, a certificate of appealability 

shall issue where jurists of reason would find it debatable whether the Court was correct in its 

procedural ruling that petitioner waived his claims of error, and whether petitioner has stated a 

viable constitutional claim. Slack v. McDaniel, 529 U.S. at 484–85. Both of these showings 

must be made before a court of appeals will entertain the appeal. Id. 

This Court is not persuaded that Petitioner has met this standard in regard to the Court’s 

dismissal of his claims as procedurally defaulted. 

The Court is persuaded, however, that Petitioner has met this standard in regard to the 

Court’s dismissal of his claim regarding an alleged violation of due process or the the Ex Post 

Facto Clause. The Court therefore certifies the following issue for appeal: 

Did the Ohio courts violate Petitioner’s right to due process or the 

Ex Post Facto Clause by refusing to conduct a de novo resentencing hearing for imposition of post-release control? 

IT IS SO ORDERED. 

 _/s/ George C. Smith _ 

 GEORGE C. SMITH, JUDGE 

 UNITED STATES DISTRICT COURT 

 

 

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