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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JEFFREY ANTONIO BROWN,

Petitioner, : Case No. 3:17-cv-080

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

CHAE1 HARRIS, Warden, 

Warren Correctional Institution,

:

Respondent.

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS; 

ORDER TO CLERK TO FURNISH PETITION

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner’s 

Objections (ECF No. 32) to the Magistrate Judge’s Supplemental Report and Recommendations 

recommending dismissal of the Petition with prejudice (“Supplemental Report,” ECF No. 31). 

Judge Rose has recommitted the case for reconsideration in light of the Objections (Recommittal 

Order, ECF No. 33).

The Statute of Limitations

The original Report and Recommendations (“Report,” ECF No. 26) recommended that 

Grounds One through Eighteen of the Petition be dismissed as barred by the statute of limitations 

 1 Spelling corrected from prior pleadings.
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(ECF No. 26, PageID 3617-26). This was based on a determination, urged by Respondent, that 

the statute of limitations on these claims expired in 2010 and the Petition was not filed until 2017 

(Return, ECF No. 14, PageID 2973). In contrast, Brown claimed in his first set of objections that

the time runs from his 2014 resentencing because “the entry of a new judgment normally resets 

the statute-of-limitations clock,” (Objections, ECF No. 29, relying on In re Stansell, 828 F.3d 412 

(6th Cir. 2016), and Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016).

The Supplemental Report relied on Bachman v. Bagley, 487 F.3d 979 (6th Cir., 2007), and 

Rashad v. Lafler, 675 F.3d 564 (6th Cir. 2012), for the proposition that the statute of limitations 

runs from conclusion of direct review, not collateral review as here. The Supplemental Report 

recognized that Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016), was to the contrary, but noted that 

a Sixth Circuit panel cannot overrule the published decision of a prior panel and that Crangle was, 

in any event, distinguishable (ECF No. 31, PageID 3659). Brown objects (ECF No. 32, PageID 

3669-76).

To resolve this statute of limitations question, we must recur to the procedural history. The 

incidents in suit occurred at the Dayton Motor Hotel on May 15-16, 2005. Out of those incidents, 

the Montgomery County grand jury indicted Brown (State Court Record, ECF No. 13, PageID 

541.) In February 2006 a jury convicted Brown on two counts of felonious assault, aggravated 

burglary with a firearm specification, having weapons while under disability, and tampering with 

evidence. Id. at PageID 556. Judge Richard Dodge then sentenced Brown to nineteen years’

imprisonment. Direct appeal, an untimely petition for post-conviction relief, and an untimely Ohio 

App. R. 26(B) application, as well as an initial federal habeas corpus application provided no relief. 

Brown then began a series of collateral attacks on the Common Pleas judgment entry (See Return 
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of Writ, ECF No. 14, PageID 2953-62). On May 3, 2012, he filed a Motion to Vacate Void 

Judgment Where Sentence is Contrary to Law (State Court Record, ECF No. 13-1, PageID 1423, 

et seq.) Judge Mary Wiseman denied the Motion and Brown appealed. 

On appeal Brown claimed that the March 9, 2006, sentencing entry 

is void because he did not receive oral notification of the duration of 

post-release control. According to him, even if the sentencing entry 

recites the length of post-release control, that aspect of his sentence 

remains illegal and unenforceable because the trial court did not 

mention the number of years [of post-release control] at sentencing. 

State v. Brown, 2014-Ohio-2551, 2014 Ohio App. LEXIS 2508 ¶ 12 (2nd Dist. June 13, 2014). 

The Second District found that argument well taken. Id. at ¶¶ 13-16. It held further that he was 

entitled to raise the issue in his May 2012 motion “because, under existing Ohio Supreme Court 

precedent, the failure to advise him [orally] of the duration of post-release control at sentencing 

rendered the post-release control portion of his sentence void.” Id. at ¶ 17, relying largely on State 

v. Qualls, 131 Ohio St. 3d 499 (2012). The Second District also held that only the post-release 

control portion of the sentence was void. Id. at ¶ 21, holding Brown was only entitled “to a limited 

re-sentencing to correct the imposition of post-release control.” The appellate court remanded 

with precisely that limitation in place. Id. at ¶ 27.

On July 11, 2014, Judge Wiseman gave Brown the required oral advice of post-release 

control (Memorialized at State Court Record ECF No. 13-3, PageID 2033-35). She also entered 

an Amended Termination Entry with the five-year PRC term in it. Id. at PageID 2029-32. 

Although Brown appealed, the Second District affirmed and the Ohio Supreme Court again denied 

review (State Court Record, ECF No. 13-3, PageID 2111-20, 2207). The Ohio Supreme Court 

Entry was filed March 23, 2016 (Entry, State Court Record, ECF No. 13-3, PageID 2207). Brown 

deposited his instant Petition in the prison mail system on February 24, 2017 (PageID 290).
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Under 28 U.S.C. § 2244(d)(1)(A), the statute of limitations begins to run on the date the 

judgment of conviction becomes final on direct review or expiration of the time for seeking direct 

review. The Warden calculated the date of finality as January 2, 2008, the date on which Brown’s 

right to petition the United States Supreme Court for a writ of certiorari expired. Allowing for 

statutory tolling while Brown’s 2007 Ohio R. App. P. 26(B) application and petition for postconviction relief under Ohio Revised Code § 2953.21 were pending, the statute would still have 

expired in 2010 because Brown had no post-conviction actions pending during that year (Return, 

ECF No. 14, PageID 2972-73).

In his Amended Reply, Brown argued for statutory tolling under 28 U.S.C. § 2244(d)(2) 

and equitable tolling either on the basis of his diligence in pursuing his claims or because of the 

“actual innocence” gateway first recognized in Schlup v. Delo, 513 U.S. 298, 316 (1995). The 

Report rejected those claims (ECF No. 26, PageID 3619-26). 

Brown did not respond to that analysis in his first set of Objections, but instead shifted to 

the argument he now makes that the calculation of finality runs from Judge Wiseman’s Amended 

Termination Entry on remand (Objections, ECF No. 29, PageID 3640-50, relying principally on 

Magwood v. Patterson, 561 U.S. 320 (2010); King v. Morgan, 807 F.3d 154 (6th Cir. 2015); and 

In re Stansell, 828 F.3d 412 (6th Cir. 2016). He again relies on these cases and others in his present 

Objections. 

To make sense of the case law involved here, it is necessary to disentangle two issues: 

whether a petition is second-or-successive and whether it is barred by the statute of limitations. 

These potential bars to habeas corpus relief were both adopted as part of the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA). 

The second-or-successive bar is codified at 28 U.S.C. § 2244(b) and provides that a second 
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or successive habeas application may not be considered by a district court unless or until the circuit 

court has given permission. The statute of limitations is codified at 28 U.S.C. § 2244(d) and

provides that a habeas petition is barred if it is not filed within one year of the date on which the 

conviction becomes final on direct review. Both sections have acquired a considerable judicial 

gloss since 1996. 

The first hurdle Brown’s instant Petition had to surmount was the second-or-successive 

bar. When he filed his instant Petition, he had not obtained permission to proceed from the circuit 

court and the Petition was a second-in-time application because Brown had previously filed a 

habeas petition related to his 2006 conviction, Brown v. Brunsman, Case No. 3:08-cv-477. The 

Magistrate Judge had to resolve that issue sua sponte, at least initially, because district courts have 

no jurisdiction over second-or-successive habeas applications without the required circuit 

permission. Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 549 U.S. 147 

(2007).

In the Order for Answer, the Magistrate Judge concluded this was not a second-orsuccessive habeas petition because Brown’s situation “parallels that of the petitioner in In re 

Stansell, 828 F.3d 412 (6th Cir. 2016)” (ECF No. 5, PageID 513-14). In the Return of Writ, the 

Warden disagreed with that conclusion (Return, ECF No. 14, PageID 2967-70, also arguing 

Stansell was incorrectly decided). However, the Warden has made no effort to force this Court to 

transfer the case to the Sixth Circuit.

The statute of limitations is a separate provision of the AEDPA, codified at 28 U.S.C. § 

2244(d), but Brown insists the statute of limitations issue is settled by King v. Morgan, supra. The 

holding in King, however, is that “a habeas petitioner, after a full resentencing and the new 

judgment that goes with it, may challenge his undisturbed conviction without triggering the 
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‘second or successive’ requirements.” 807 F.3d at 156 (emphasis in original). King, like Brown, 

had moved to vacate his Ohio criminal judgment because it did not contain the mandatory postrelease control term. However, on re-sentencing the trial court increased the imprisonment portion 

of the sentence from twenty-one years to life to thirty-three years to life. Id. The King court was 

unsure what effect its decision would have on habeas practice in this circuit, but commented “[t]he 

entry of a new judgment normally resets the statute of limitations clock.” 807 F.3d at 159, citing 

28 U.S.C. § 2244(d)(1)(A) and Rashad, supra. 

In re Stansell, supra, also involved the second-or-successive issue. It was before the Sixth 

Circuit on a request for permission to proceed with a second-or-successive habeas application. 

While Stansell’s case was on appeal on a different issue, the Eighth District observed that the trial 

court had erred in failing to impose a term of post-release control and remanded the case "for the 

limited purpose of properly advising and imposing upon Stansell the requisite period of postrelease control." 828 F.3d at 414, quoting State v. Stansell, 10 N.E.3d at 799. The Sixth Circuit 

held that Stansell’s partial resentencing to impose, for the first time, a term of post-release control 

permitted him to raise challenges to his original undisturbed conviction and term of imprisonment. 

Judge Sutton expressly disclaimed deciding any statute of limitations issue: 

Because we must apply the term "second or successive" to the 

application as a whole, not to the individual claims within it, 

Magwood precludes us from adopting Bachman's approach in the 

second or successive context. None of this should be taken to call 

Bachman into doubt. All that this decision and all that King attempt 

to do is try to apply Magwood faithfully in the second-or-successive 

context. These decisions, and most importantly Magwood, do not 

answer the distinct statute-of-limitations question raised in 

Bachman.

828 F.3d at 418.

Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016), was an appeal from a dismissal of a habeas 
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petition as barred by the statute of limitations. Crangle had pleaded guilty to rape of a minor and 

was sentenced to life imprisonment. His conviction became final on direct review December 20, 

2008. Id. at 675. Over a year later, the Ohio Supreme Court decided State ex rel Carnail v. 

McCormick, 126 Ohio St. 3d 124 (2010), one of a series of Ohio Supreme Court cases dealing 

with the mandatory post-release term. Armed with Carnail, Crangle sought to withdraw his guilty 

plea, but obtained instead a nunc pro tunc amendment of his judgment which imposed the 

mandatory five-year term of post-release control. 838 F.3d at 676. Crangle filed his petition for 

habeas corpus on March 28, 2013. The District Court dismissed the petition as untimely, but the 

Sixth Circuit held the “2010 nunc pro tunc order was a new judgment that reset the statute of 

limitations clock.” 838 F.3d at 677. In the course of doing so, it held that the new sentence imposed 

on Crangle was “worse than before” because it substituted post-release control for parole.

Brown’s present sentence is not “worse than before.” All that changed was (1) Judge 

Wiseman’s oral advisement of the five-year term of post-release control and (2) her 

memorialization of that advice in an amended entry. Thus the Magistrate Judge distinguished 

Crangle in the Supplemental Report on this basis (ECF No. 31, PageID 3659). The Supplemental 

Report also accepted the Respondent’s argument that Crangle could not overrule Bachman v. 

Bagley, 487 F.3d 979 (6th Cir. 2007), and Rashad v. Lafler, 675 F.3d 564 (6th Cir. 2012), which are 

prior published decisions of the Sixth Circuit.

Having reconsidered the matter in light of the Objections, the Magistrate Judge WITHDRAWS 

the recommendation to dismiss Grounds One through Eighteen as untimely. Judge Sutton wrote both 

King and Stansell and he was a member of the panel that issued the per curiam decision in Crangle. 

While he had said in King that the court did not question the continued validity of Bachman on the 

limitations question, in Crangle he joined an opinion that found Bachman had been abrogated by 

Magwood and King. Crangle also concluded that King abrogated Mackey v. Warden, 525 F. App’x 
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357 (6th Cir. 2013), a case arising from this Court on the same limitations question. It is unlikely that 

the three panels which all included Judge Sutton failed to consider the interaction of those decisions.

The Magistrate Judge now believes this Court should not second-guess the Sixth Circuit’s 

decision in Crangle by limiting it to post-release control corrections that impose a “worse-than-before” 

sentence. The language of Crangle’s holding does not make that distinction. Therefore we should 

apply the Crangle holding as stated and overrule the Warden’s statute of limitations defense.

Moreover, the statute of limitations is not a jurisdictional bar. McClendon v. Sherman, 329 

F.3d 490 (6th Cir. 2003); Dunlap v. United States, 250 F.3d 1001 (6th Cir. 2001). Therefore 

deciding the merits of the first eighteen grounds for relief will not be a vain act, as it would be to 

decide any of the merits questions in a second-or-successive application. Should the Sixth Circuit 

decide on appeal that an amended judgment such as Brown’s does not restart the limitations period, 

it will be able to consider our holding on the merits without a remand.

The Warden has raised procedural default defenses to a number of Brown’s claims. 

Because it is simpler to deal directly with the merits and doing so does not prejudice the Warden, 

the Magistrate Judge has chosen that course.

The Merits

Ground One: Speedy Trial

In his First Ground for Relief, Brown asserts he was denied his Sixth and Fourteenth 

Amendment rights to a speedy trial and speedy sentencing (Petition, ECF No. 4, PageID 266.) The 

Warden notes Brown raised this claim in his prior habeas petition in this Court and it was decided 

adversely to him (Report and Recommendations in Brown v. Brunsman, Case No. 3:08-cv-477, 
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ECF No. 13-1, PageID 1180-82; adopted at PageID 1200-01).

Brown presented a speedy trial claim on direct appeal to the Second District, but it was 

limited to a claim under Ohio Revised Code § 2945.71 and rejected on that basis. State v. Brown, 

2007-Ohio-2098, 2007 Ohio App. LEXIS 1954 (2nd Dist. Apr. 27, 2007). In his Reply Brown 

argues there should be no deference to the Second District’s conclusion because that court acted 

without jurisdiction, based on Brown’s claim that the original judgment of conviction (March 9, 

2006) was not a final appealable order (ECF No. 21, PageID 3074). He makes the same objection 

to deferring to this Court’s own prior decision on the merits. Id. 

Brown raised this claim in the Second District Court of Appeals which rejected it. State v. 

Brown, Case No. 21540 (2nd Dist. Jan. 8, 2013)(copy at ECF No. 13-2, PageID 1677 et seq.). The 

question of what constitutes a final appealable order in Ohio is obviously a question of state law 

on which this Court is bound by state court decisions in point. "[I]t is not the province of a federal 

habeas court to reexamine state court determinations on state law questions. In conducting habeas 

review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, 

or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

The doctrine of res judicata does not strictly apply in habeas corpus, so that doctrine does 

not bar consideration of Ground One on the merits. However, Judge Black’s adoption of 

Magistrate Judge Ovington’s Report on this Ground for Relief does establish the law of the case 

on the speedy trial question, reinforced by the Sixth Circuit’s refusal to grant a certificate of 

appealability on any of the issues in the case. Denial of a certificate of appealability becomes the 

law of the case, binding in subsequent stages of the litigation. Dillimgham v. Jenkins, Case No. 

17-3813 (6th Cir. Nov. 8,2017)(unreported; copy at ECF No. 65 in 3:13-cv-468), citing Moore v. 

Mitchell, 848 F.3d 774, 776 (6th Cir. 2017).
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Under the doctrine of law of the case, findings made at one point in the litigation become the 

law of the case for subsequent stages of that same litigation. United States v. Moored, 38 F 3d 

1419, 1421 (6th Cir. 1994), citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). "As 

most commonly defined, the doctrine [of law of the case] posits that when a court decides upon a 

rule of law, that decision should continue to govern the same issues in subsequent stages in the 

same case." Arizona v. California, 460 U.S. 605, 618 (1983), citing 1B Moore's Federal Practice 

¶0.404 (1982); Patterson v. Haskins, 470 F.3d 645, 660-61 (6th Cir. 2006); United States v. City of 

Detroit, 401 F.3d 448, 452 (6th Cir. 2005). “If it is important for courts to treat like matters alike

in different cases, it is indispensable that they ‘treat the same litigants in the same case the same 

way throughout the same dispute.’” United States v. Charles, 843 F.3d 1142 at *6 (6th Cir. 

2016)(Sutton, J.), quoting Bryan A. Garner, et al., The Law of Judicial Precedent 441 (2016).

"Law of the case directs a court's discretion, it does not limit the tribunal's power." Id., citing

Southern R. Co. v. Clift, 260 U.S. 316, 319 (1922); Messenger v. Anderson, 225 U.S. 436 (1912); 

see also Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589-90 (6th Cir. 1995). "While 

the 'law of the case' doctrine is not an inexorable command, a decision of a legal issue establishes 

the 'law of the case' and must be followed in all subsequent proceedings in the same case in the 

trial court or on a later appeal in the appellate court, unless the evidence on a subsequent trial was 

substantially different, controlling authority has since made a contrary decision of the law 

applicable to such issues, or the decision was clearly erroneous and would work a manifest 

injustice." White v. Murtha, 377 F.2d 428 (5th Cir. 1967), quoted approvingly in Ass’n of 

Frigidaire Model Makers v. General Motors Corp., 51 F.3d 271 (6th Cir. 1995). The doctrine 

applies with equal force to the decisions of coordinate courts in the same case and to a court's own 

decisions. Christianson v. Colt Industries, 486 U.S. 800, 816 (1988). 
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The purpose of the doctrine is twofold: (1) to prevent the continued litigation of settled 

issues; and (2) to assure compliance by inferior courts with the decisions of superior courts. United 

States v. Todd, 920 F.2d 399 (6th Cir. 1990), citing Moore's Federal Practice. A generally liberal 

view is expressed in Gillig v. Advanced Cardiovascular Systems, Inc. 67 F.3d 586 (6th Cir. 1995). 

We generally will not disturb these [prior holdings] unless there is 

'(1) an intervening change of controlling law; (2) new evidence 

available; or (3) a need to correct a clear error or prevent manifest 

injustice.'" Entm't Prods., Inc. v. Shelby Cnty., 721 F.3d 729, 742 (6th 

Cir. 2013), cert. denied, 134 S. Ct. 906, 187 L. Ed. 2d 778 (2014) 

(quoting Louisville/Jefferson Cnty. Metro Gov't v. Hotels.com, L.P., 

590 F.3d 381, 389 (6th Cir. 2009))

Howe v. City of Akron, 801 F.3d 718, 741 (6th Cir. 2015).

Brown has shown no reason to abandon the law of the case as established here. Therefore 

Ground One should be dismissed on the merits with prejudice on the same basis as Judges 

Ovington and Black previously dismissed Brown’s speedy trial claim.

Ground Two: Denial of Access to Court

In his Second Ground for Relief, Brown asserts he was denied access to the courts in violation 

of the First and Fourteenth Amendments when his notice of appeal did not get to the court of 

appeals in time although he had deposited it in the institutional mail system in a timely manner.

Brown asserts he raised this issue in a motion for reconsideration filed in the Second District 

Court of Appeals and denied by that court July 11, 2011(Petition, ECF No. 4, PageID 267). 

Examination of that decision shows that the Second District did indeed dismiss an appeal by Brown 

on that date because it had been filed untimely.2

 Brown moved to reconsider on the grounds the 

 2 State v. Brown, Case No. CA 24658, available online at http://www.clerk.co.montgomery.oh.us, visited February 

26, 2018.
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Notice of Appeal had been filed May 24, 2011. Upon reconsideration, the Second District again 

found the notice of appeal was untimely, having been filed thirty-six days after the order appealed 

from.3

 Brown’s motion for reconsideration had not claimed he deposited the notice of appeal in 

the prison mailing system before the time expired, so he certainly did not present to the Second 

District the claim he makes here that he was deprived of his constitutional right of access to the 

courts by not having the notice counted as timely. 

In the federal courts, filing by an incarcerated person is complete upon deposit in the prsion 

mailing system. Houston v. Lack, 487 U.S. 266 (1988); Cook v. Stegall, 295 F.3d 517, 521 (6th

Cir. 2002). However, the mailbox rule is not binding on the States. Maples v. Stegall, 340 F.3d 

433 (6th Cir. 2003); Adams v. LeMaster, 223 F.3d 1177, 1183 (10th Cir. 2000). Ohio has refused 

to adopt the mailbox rule. State, ex rel Tyler, v. Alexander, 52 Ohio St. 3d 84 (1990)(noting that 

Houston is not a constitutional decision and finding its logic unpersuasive.) Assuming the truth 

of Brown’s claim that he deposited the notice of appeal in the prison mail system before the due 

date, it did not arrive in time and the Second District did not violate Brown’s constitutional rights 

in refusing to accept it.

Ground Three: Improper Treatment of Motion to Dismiss

 In his Third Ground for Relief, Brown claims he was denied due process and equal 

protection of the laws when the Common Pleas Court treated his Motion to Dismiss as a motion 

for post-conviction relief under Ohio Revised Code § 2953.21. The Warden asserts this Ground 

does not plead any constitutional basis.

 3 State v. Brown, Case No. CA 24658, available online at http://www.clerk.co.montgomery.oh.us, visited February 

26, 2018.
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Federal habeas corpus is available only to correct federal constitutional violations. 28 

U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 

(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is 

not the province of a federal habeas court to reexamine state court determinations on state law 

questions. In conducting habeas review, a federal court is limited to deciding whether a conviction 

violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 

67-68 (1991).

Brown fails to explain how this treatment deprived him of any constitutional right. On 

appeal from the trial court’s order, the Second District agreed with treating the Motion to Dismiss 

as a petition for post-conviction relief. State v. Brown, supra, at n. 2. This decision by the Second 

District on a question of Ohio law – how to characterize a motion such as the one Brown filed – is 

binding on this Court. Brown points to no decision of the United States Supreme Court or the 

Sixth Circuit to the contrary. Merely putting a constitutional label on a state law claim does not 

elevate it to the status of a claim cognizable in habeas corpus. 

Ground Three should therefore be dismissed for failure to state a claim upon which habeas 

corpus relief can be granted. 

Ground Four: Incompleteness of the State Court’s Judgment

In his Fourth Ground for Relief, Brown asserts the trial court “failed to dispose of all 

charges pending against Petitioner in the single case before the trial court’s judgment with respect 

to any charged was final.” 

This claim also does not state a constitutional violation and should be dismissed on the 
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same basis as Ground Three.

Ground Five: Second District’s Failure to Comply with Ohio R. App. P. 12(A)(1)(c)

 

On its face, this Ground for Relief raises only a state law claim and should be dismissed on 

the same basis as Ground Three.

Ground Six: Second District Failure to Vacate Illegal Sentence

In his Sixth Ground for Relief, Brown claims the Second District violated his constitutional 

rights to Due Process when it failed to vacate the sentence it regarded as illegal. 

In the many cases dealing with Ohio inmates re-sentenced to impose or announce orally the 

imposition of post-release control, some of which are cited above, the Sixth Circuit has never 

suggested that Ohio has a constitutional obligation to vacate either the entire sentence or the entire 

conviction. Since at least State v. Fischer, 128 Ohio St. 3d 92 (2010), Ohio has followed the 

practice of vacating as void only that portion of the criminal judgment dealing (or not dealing) 

with post-release control and the Sixth Circuit has not questioned the constitutionality of that 

process. Thus Brown has failed to show the failure to completely vacate the judgment violated a 

constitutional right as clearly established by the Supreme Court.

Ground Six should be dismissed as without merit.
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Ground Seven: Denial of Equal Protection in Second District’s Denial of Reconsideration

In his Seventh Ground for Relief, Brown claims the Second District denied him equal 

protection of the laws when it denied reconsideration of its January 8, 2013, decision. The denial 

of reconsideration appears at State Court Record, ECF No. 13-2, PageID 1689-90. Brown has 

failed to plead, much less demonstrate, that in denying reconsideration here the Second District 

treated him differently from any other similarly situated litigant. Such adverse differential 

treatment is necessary to state a claim for relief under the Equal Protection Clause. Ground Seven 

should be dismissed for failure to state a claim upon which habeas corpus relief can be granted.

Ground Eight: Lack of Appellate Jurisdiction

In his Eighth Ground for Relief, Brown claims the Second District acted without subject 

matter jurisdiction and thereby deprive him of his Fourteenth Amendment right to due process 

when “it heard an appeal and decided the trial court imposed a sentence on each count in 

accordance to [sic] law.”

As the Magistrate Judge reads this claim, it is that the Second District erred when it found 

that the trial court had imposed a sentence on each count of conviction. A state appellate court 

charged with reviewing a trial court judgment does not lose its jurisdiction when it makes a 

mistake, e.g., by incorrectly interpreting the judgment that it is reviewing. 

Ground Eight should be dismissed for failure to state a claim upon which habeas corpus relief 

can be granted.
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Ground Nine: Lack of Appellate Jurisdiction

In his Ninth Ground for Relief, Brown asserts the Second District did not have jurisdiction 

over his first direct appeal because his sentence was not “final” at the time. 

As stated above under Ground One, the question of what constitutes a final appealable order 

is a question of state law, not federal law. The Ohio courts decided this issue adversely to Brown 

and his claim that they were wrong in doing so does not state a claim upon which habeas corpus 

relief can be granted. To put it another way, the United States Supreme Court has never 

“constitutionalized” Ohio’s final appealable order rule.,

Ground Nine should be dismissed for failure to state a claim upon which habeas corpus relief 

can be granted.

Ground Ten: Lack of Appellate Jurisdiction

In his Tenth Ground for Relief, Brown incorporates by reference the arguments made and 

facts asserted in Grounds Five through Nine. Thus Ground Ten is surplusage and should be 

dismissed as such.

Ground Eleven: Equal Protection Violation by Second District

In his Eleventh Ground for Relief, Brown asserts he was denied equal protection of the laws 

when he was treated differently than criminal defendants in State v. Johnston, 2013-Ohio-4401, 

2013 Ohio App. LEXIS 4636 (2nd Dist. Sept. 30, 2013), and State v. Sanchez, 2009-Ohio-813 (2nd
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Dist. Feb. 23, 2009).

Having considered both cited cases, the Magistrate Judge is unable to perceive any way in 

which those two appellants were treated more favorably than Brown. In particular, the Magistrate 

Judge notes that relief in Sanchez was granted on joint motion of Sanchez and the State.

Ground Elven should therefore be dismissed for failure to state a claim upon which habeas 

corpus relief can be granted.

Ground Twelve: Denial of Fundamental Fairness and Abuse of Discretion in Second 

District’s Failure to Certify the Record to the Supreme Court

In his Twelfth Ground for Relief, Brown asserts the Second District denied him fundamental 

fairness and abused its discretion when it refused to certify the record in his case to the Ohio 

Supreme Court under Article IV, § 3(B)(4). Brown does not state any supporting facts, but 

purports to incorporate by reference the statement of facts in his Memorandum in Support of 

Jurisdiction in Ohio Supreme Court Case No. 2014-0254 (Petition, ECF No. 4, PageID 277).

In the referenced Memorandum in Support of Jurisdiction, Brown argued to the Ohio 

Supreme Court that the Second District’s decision of December 6, 2013, was in conflict with a 

decision of the Fourth District Court of Appeals which he does not cite (State Court Record, ECF 

No. 13-2, PageID 1810). The Ohio Supreme Court declined to accept jurisdiction without any 

explanation (ECF No. 13-2, PageID 1822).

Article IV, § 3(B) of the Ohio Constitution permits a court of appeals to certify the record in 

a case to the Ohio Supreme Court when their judgment in a case “is in conflict with a judgment 

pronounced upon the same question by any other court of appeals of the state. . . .” In his Motion 

to Certify, Brown cited a number of decisions of the Fourth District Court of Appeals which he 
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claimed were in conflict (State Court Record, ECF No. 13-2, PageID 1773). In denying the Motion 

to Certify, the Second District found that in none of the cited cases had there actually been a 

judgment of the Fourth District, a conflicting judgment being a required predicate for certification. 

State v. Brown, Case No. 21540 (2nd Dist. Dec. 6, 2013)(unreported; copy at State Court Record, 

ECF No. 13-2, PageID 1786-88). 

There is no Ohio constitutional right to have a conflict between decisions of two appellate 

courts. Rather Article IV, §3(B) provides a mechanism whereby the Ohio Supreme Court can, if 

it chooses, resolve a conflict between two appellate courts. There is, more importantly, no clearly 

established federal constitutional right to have a state supreme court resolve conflicts between two 

intermediate appellate courts. 

There is no federal constitutional right to appeal criminal verdicts for error review. McKane 

v. Durston, 153 U.S. 684 (1894), cited as still good law in Lopez v. Wilson, 426 F.3d 339, 355 (6th 

Cir. 2005); Halbert v. Michigan, 545 U.S. 605 (2005). “Due process does not require a State to 

provide appellate process at all.” Goeke v. Branch, 514 U.S. 115, 120 (1995). 

An allegation that a state court judge has abused his or her discretion in making a decision 

does not state a claim for relief in habeas. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).

Therefore Ground Twelve should be dismissed for failure to state a claim upon which habeas 

corpus relief can be granted.

Ground Thirteen: Failure to Pronounce Sentence in the Presence of the Defendant

In his Thirteenth Ground for Relief, Brown claims that the sentence pronounced in open court 

was not the same as the sentence imposed in the termination entry. The Magistrate Judge presumes 
19

the gravamen of this claim is that the five-year term of post-release control was included in the 

original termination entry but not pronounced in open court. Assuming that this states a claim for 

habeas corpus relief, Brown has already received an adequate remedy when the Second District 

remanded for oral pronouncement of the post-release term and then Judge Wiseman complied with 

that mandate. To the extent Brown’s claim is that he was entitled to be present in person at the 

resentencing, rather than by video, that claim is dealt with in Ground Nineteen, infra. Ground 

Thirteen should be dismissed as moot.

Ground Fourteen: Lack of Finality When Speedy Trial Motion Denied

As best the Magistrate Judge can tell, Brown’s Fourteenth Ground is that denial by the trial 

court of his motion to dismiss on speedy trial grounds was not final and appealable during his first 

direct appeal because the termination entry did not yet contain the post-release control term. As 

noted above, the question of what is a final appealable order under Ohio law is itself a question of 

Ohio law. Failure to comply with the final appealable order rule does not constitute a federal 

constitutional violation. Ground Fourteen should be dismissed for failure to state a claim upon 

which habeas corpus relief can be granted.

Ground Fifteen: Due Process Violation in Overruling Motion to Dismiss

In his Fifteenth Ground for Relief, Brown claims he was denied due process when the Second 

District overruled his Motion to Dismiss which claimed he was entitled to be present when 

sentence was pronounced. Brown does not explain this claim in the Petition, but refers this Court 
20

to his April 1, 2016, Memorandum in Support of Jurisdiction in the Ohio Supreme Court (State 

Court Record, Ex. 124, ECF No. 13-3, at PageID 1913, et seq. Those pages consist of a chronology 

of events in the case beginning with the indictment; they include many “incorporations by 

reference” to other documents in the file.

As best the Magistrate Judge can tell, Brown is complaining in this Ground Fifteen that the 

Second District, when it reversed and remanded for the oral advice of post-release control without 

vacating the entire judgment, violated his due process rights.

No clearly established federal law mandates that a state appellate court vacate an entire 

criminal judgment when it vacates a portion of the judgment to allow a correction to comply with 

mandatory state sentencing law. Ground Fifteen should be dismissed for failure to state a claim 

upon which habeas corpus relief can be granted.

Ground Sixteen: Equal Protection Violation in Overruling Motion to Dismiss

Brown relies on the same supporting facts for Ground Sixteen as he did for Ground Fifteen. 

The Magistrate Judge recommends it be dismissed on the same basis.

Ground Seventeen: Due Process Violation in Failure of Second District to Make Threshold 

Appealability Decision

In his Seventeenth Ground for Relief, Brown asserts he was deprived of due process of law 

when the Second District did not sua sponte determine whether it did or did not have jurisdiction 

of the initial direct appeal before proceeding to decide the merits. As part of his claim, Brown 

asserts the Second District was required to determine whether the March 2006 termination entry 
21

was a final appealable order “as the law exist[ed] at the time the entry is appealed whether either 

party raise[es] a jurisdictional issue or not.”

It is not clearly established by any United States Supreme Court precedent that a state 

appellate court must sua sponte raise and decide the issue of its own jurisdiction, much less 

embody that finding in a written decision, before it proceeds to decide a case presented to it. 

Ground Seventeen should be dismissed for failure to state a claim upon which habeas corpus relief 

can be granted.

Ground Eighteen: Lack of a Final Appealable Order until July 11, 2014

In support of his Eighteenth Ground for Relief, Brown incorporates by reference page 13 of 

his Memorandum in Support of Jurisdiction in the Ohio Supreme Court (ECF No. 13-3, PageID

1929) and the supporting facts for Ground Fifteen.

As already stated many times in this Report, the question of whether a trial court entry in an 

Ohio Common Pleas Court is a final appealable order under Ohio law is a question purely of Ohio 

law. Ground Eighteen should be dismissed for failure to state a claim upon which habeas corpus 

relief can be granted.

Ground Nineteen: Unconstitutional Failure to Provide Physical Presence at Resentencing

In his Nineteenth Ground for Relief, Brown asserts he was deprived of liberty, due process,

and equal protection when he was not transported to be personally present for the resentencing 

hearing at which Judge Wiseman orally advised him of the five-year term of post-release control.
22

Brown had raised this claim in the Second District on appeal from the resentencing and that 

court had decided it adversely to him. In the original Report, the Magistrate Judge concluded the 

Second District’s decision was not an unreasonable application of Snyder v. United States, 291 

U.S. 97 (1934), and was therefore entitled to deference under 28 U.S.C. § 2254(d)(1)(Report, ECF 

No. 26, PageID 3628-29). On the initial recommittal, the Magistrate Judge adhered to that 

conclusion (Supp. Report, ECF No. 31, PageID 3660).

Brown objects that a trial court is required by Ohio R. Crim. P. 43 to obtain a signed waiver 

of physical presence and this omission is not cured by Ohio Revised Code § 2929.191 where the 

defendant objects prior to the hearing (Objections, ECF No. 32, PageID 3676). The cited statute 

is the Ohio General Assembly’s effort to provide a mechanism for these remands to impose postrelease control and specifically authorizes video conferencing appearance on the trial court’s own 

initiative whether or not a defendant consents. In any event, resolving any apparent conflict 

between Ohio R. Crim. P. 43 and Ohio Revised Code § 2929.191 is a question of Ohio law, not 

federal constitutional law.

Brown also objects to the Magistrate Judge’s reliance on Snyder, supra, and argues the 

relevant Supreme Court precedent is Kentucky v. Stincer, 482 U.S. 730 (1987), and Hicks v.

Oklahoma, 447 U.S. 343 (1980). 

In Stincer, the Supreme Court held that a defendant in a sex offense case had no right under 

either the Confrontation Clause or the Due Process Clause to be personally present during the 

competency hearing for two young girls who were victim witnesses. The Second District’s 

decision on Brown’s claim is an objectively reasonable application of Stincer in that Brown’s 

interest in being personally present at the resentencing hearing is substantially less than the 

interests of Stincer in being present at the competency hearing.
23

In Hicks, the Supreme Court held that a defendant’s liberty interest in having a jury fix his 

sentence was not merely a matter of state procedural law but protected by the Due Process Clause 

of the Fourteenth Amendment where the provision of Oklahoma’s habitual offender statute under 

which the jury had been instructed to impose a particular sentence had later been declared 

unconstitutional. Hicks has no application to the question of whether a defendant is entitled to be 

present in person for a resentencing.

Accordingly, the Magistrate Judge again respectfully recommends that Ground Nineteen be 

denied on the merits.

Ground Twenty: Unconstitutional Application of Res Judicata

In his Twentieth Ground for Relief, Brown complains of the denial of his First Supplemental 

Assignment of Error on appeal from re-sentencing on the basis of res judicata. The original Report 

found that as pleaded the Twentieth Ground for Relief did not state a cognizable claim because it 

relied on Ohio and Federal Rules of Criminal Procedure 43. The latter rule has never applied to 

state criminal proceedings and violation of the former rule was not presented to the state court as 

a constitutional question (Report, ECF No. 26, PageID 3629-30).

Brown objected that he had intended to include Ohio Rule 43 in his Petition, but had omitted 

it as a result of typographical error which this Court was bound to excuse. The Supplemental 

Report concluded that inserting the Ohio Rule would not make a difference because failure to 

abide by state law is not a federal constitutional violation (Supp. Report, ECF No. 31, PageID

3661). 

Brown objects on the basis of Hicks v. Oklahoma, supra, which is certainly a case in which 
24

the United States Supreme Court held that a particular state criminal procedural rule created a 

liberty interest protected by the Due Process Clause. Brown also relies on Hoffner v. Bradshaw, 

622 F.3d 487, 495 (6th Cir. 2010)(quoting Barclay v. Florida, 463 U.S. 939, 957-58 (1983)), and 

Carter v. Mitchell, 693 F.3d 555 (6th Cir. 2012). 

In Carter, the Sixth Circuit held that the trial court’s use, in a capital case, of nonstatutory

aggravating factors in deciding the sentence implicated the Eighth Amendment “because the 

statutory aggravating factors play the ‘constitutionally necessary function’ of circumscribing the 

class of persons eligible for the death penalty. . .” and the Due Process Clause because “’a 

defendant has a legitimate interest in the character of the procedure which leads to the imposition 

of sentence even if he may have no right to object to a particular result of the sentencing process.’”

(quoting Gardner v. Florida, 430 U.S. 349, 358 (1977). The Carter court relied on Hoffner for 

the general proposition that “[s]tate law errors may warrant habeas relief if the errors “rise for 

some other reason to the level of a denial of rights protected by the United States Constitution.’”

693 F.3d at 562.

There are probably thousands of Ohio criminal procedural rules when one considers the 

statutes, the Rules of Criminal Procedure prescribed by the Ohio Supreme Court under the Modern

Courts Amendment, and the rules announced in various cases. Certainly some of those rules 

protect rights arising from the United States Constitution. For example, Ohio rules providing for 

the appointment of counsel protect the Sixth Amendment right to be represented by counsel in any 

case where there is a possibility of jail time. See Argersinger v. Hamlin, 407 U.S. 25 

(1972)(misdemeanor cases where imprisonment is a possibility); Alabama v. Shelton, 535 U.S. 

654 (2002)(even if sentence is suspended).
25

But the Sixth Circuit and Supreme Court have held that not all those procedural rights are 

elevated to a constitutional level. “A state cannot be said to have a federal due process obligation 

to follow all of its procedures; such a system would result in the constitutionalizing of every state 

rule, and would not be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993), cert. 

denied, 509 U.S. 907 (1993). Federal habeas corpus has long been available only to correct federal 

constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. 

Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 

U.S. 939 (1983). Since adoption of the Antiterrorism and Effective Death Penalty Act of 1996, 

the authority of habeas courts has been further limited to granting relief only if a state court 

judgment violates a right as clearly established by precedent of the United States Supreme Court. 

In other words, habeas courts may not consider constitutional questions de novo.

While Brown has pointed to Supreme Court precedent which decides as a general matter 

that a violation of state criminal procedural law may rise to a constitutional level, he has pointed 

to no such precedent which holds that the Ohio law on personal presence at sentencing creates a 

constitutional right which is violated when a state court applies its res judicata doctrine to decide 

a question or that forbids a state from using video conferencing to procure a defendant’s 

participation in a hearing just because that method was not authorized when the defendant was 

first sentenced.

The Twentieth Ground for Relief should be dismissed on the merits for failure to state a 

claim upon which habeas corpus relief can be granted.
26

Ground Twenty-One: Failure to Conduct a De Novo Sentencing Hearing

In his Twenty-First Ground for Relief, Brown claims he was deprive of liberty, due process, 

and equal protection when the trial court imposed post-release control without conducting a de 

novo sentencing hearing. In denying this claim, the Second District relied on State v. Fischer, 128 

Ohio St. 3d 392 (2010), and Brown argued this violated the constitutional prohibition on ex post 

facto laws, relying on Miller v. Florida, 482 U.S. 423 (1987). The Report distinguished Miller as 

having dealt with a change made by the legislature and Brown objected, relying on Rogers v. 

Tennessee, 532 U.S. 451 (2001); Bouie v. South Carolina, 378 U.S. 347 (1964); and Weaver v. 

Graham, 450 U.S. 24 (1981). The Supplemental Report concluded: 

None of this case law supports Brown’s claim. Fischer did not 

expand basic criminal liability at all. Instead it clarified what 

disposition the Ohio courts must make of cases where post-release 

control was not properly imposed. This clarification cannot be said 

to violate anyone’s right to fair notice of what conduct the State will 

punish criminally. To put it another way, a person in Brown’s 

position has no reliance interest in a particular interpretation of what 

must be done on remand in a post-release control case; no primary 

(“on the street”) conduct of the criminal defendant can possibly be 

affected by this change.

(ECF No. 31, PageID 3664.)

Brown objects, relying on Lancaster v. Metrish, 683 F.3d 740 (6th Cir. 2012). Brown 

neglects to advise the Court that Lancaster was unanimously reversed on the point for which it is 

cited by Metrish v. Lancaster, 569 U.S. 351 (2013). Lancaster had complained in habeas that the 

Michigan Supreme Court’s abolition of the diminished capacity defense had been applied to him 

retroactively when he was retried for homicide; the defense had been available at his first trial. 

Justice Ginsburg concluded that the retroactive application of this decision was not an 

unreasonable application of Rogers or Bouie.
27

Brown claims he had a reliance interest in the law on resentencing as it existed before 

Fischer, but fails to explain how that can be possible, i.e., what he did or could have done in 

reliance on the pre-Fischer state of the law (Objections, ECF No. 32, PageID 3683). Fischer

certainly did not expand criminal liability in the way the state supreme court decision at issue in 

Bouie had. That is, it did not make any primary conduct by a person to be subject to criminal 

punishment that had not been thus subject before. 

Order to the Clerk

At the request of the Petitioner (ECF No. 32, PageID 3684), the Clerk is ordered to furnish 

Petitioner with a copy of the Petition herein at no cost to him and to docket the fact of mailing.

Conclusion

Having reconsidered the matter as directed, the Magistrate Judge again respectfully 

recommends that the Petition be dismissed with prejudice, that the Court deny a certificate of 

appealability, and that the Court certify to the Sixth Circuit that any appeal would be objectively 

frivolous and should not be permitted to proceed in forma pauperis.

February 27, 2018.

 s/ Michael R. Merz

 United States Magistrate Judge
28

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. .Such objections shall specify the portions of the 

Report objected to and shall be accompanied by a memorandum of law in support of the objections. 

If the Report and Recommendations are based in whole or in part upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or 

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless 

the assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 

947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).