or otherwise shown that failure to consider it would result in a fundamental miscarriage of
justice. See Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129
(1982); Wainwright v. Sykes, 433 U.S. 72 (1977).

Moreover, courts have generally recognized that the remedy for an alleged Morrissey
violation is a new hearing, not immediate release from confinement. See, e.g., Dolfi v. Bogan,
No. 93-1159, 1993 WL 213683, at *2 (6th Cir. June 17, 1993) (absent showing of severe
prejudice, parolee’s remedy is limited to compelling the parole commission to conduct a hearing)
(citing cases).

Ground Five does not warrant habeas corpus relief.

Accordingly, in sum, the undersigned RECOMMENDS that the motion to dismiss (Doc.
7) should be GRANTED, although in part for different reasons than stated by respondent, and
the petition for a writ of habeas corpus (Doc. 5) should be DISMISSED with prejudice. In light
of the above recommendation, petitioner’s motions to comply (Doc. 10) and for judgment on the
pleadings (Doc. 11) are DENIED as moot.

IT IS THEREFORE RECOMMENDED THAT:

1. Respondent’s motion to dismiss (Doc. 7) be GRANTED and petitioner’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 5) be DISMISSED with prejudice.

2. A certificate of appealability should not issue with respect to the petition. To the extent
that petitioner has raised claims which this Court has concluded are procedurally defaulted, a
certificate of appealability should not issue because, under the first prong of the applicable two-

part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), “jurists of reason”


(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).

“A decision is ‘contrary to’ clearly established federal law when ‘the state court arrives at
a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v.
Taylor, 529 U.S. 362, 412-13 (2000)). “A state court’s adjudication only results in an
‘unreasonable application’ of clearly established federal law when ‘the state court identifies the
correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.’” Jd. at 599-600 (quoting Williams, 529 U.S. at
413).

The statutory standard, established when the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. /d. at 600.

As the Sixth Circuit explained in Otte:

Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA’s
standards. See, e.g., Cullen v. Pinholster, U.S. __, 131 S.Ct. 1388, 1398, 179
L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to the record
before the state court where a claim has been adjudicated on the merits by the state
court). It is not enough for us to determine that the state court’s determination is
incorrect; to grant the writ under this clause, we must hold that the state court’s
determination is unreasonable. ... This is a “substantially higher threshold.”. . .
To warrant AEDPA deference, a state court’s “decision on the merits” does not
have to give any explanation for its results, Harrington v. Richter, _ U.S. _, 131
S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor does it need to cite the relevant
Supreme Court cases, as long as “neither the reasoning nor the result of the state-
court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362,
154 L.Ed.2d 263 (2002) (per curiam).


B. Ground Two Should Be Dismissed.

Ground Two of the petition effectively reasserts the claims raised in Ground One. As
with Ground One, respondent asserts that Ground Two is barred by the statute of limitations or,
alternatively, noncognizable. (Doc. 7, at pp. 6, 8-9). For the reasons stated above, the Court will
resolve Ground Two on its merits. See Smith, 463 F.3d at 429 n.2. Ground Two lacks merit for
the same reasons that Ground One lacks merit.

Ground Two does not warrant habeas corpus relief.

C. Ground Three Should Be Dismissed.

In Ground Three, petitioner asserts that he has fully satisfied his sentence and is entitled
to release. Respondent asserts that Ground Three is based solely on an alleged violation of state
law and is noncognizable. (See Doc. 7, at pp. 89). The undersigned agrees.

“Incarcerating a prisoner after the expiration of his maximum sentence may result in a
constitutional violation.” Powers v. Warden, No. 2:13-cv-1179, 2015 WL 46136, at *4 (S.D.
Ohio Jan. 2, 2015) (Graham, J.) (quoting Kipen v. Renico, 65 F. App’x 958, 959 (6th Cir. 2003)).
“However, a state court’s interpretation, or misinterpretation, of its own sentencing laws and
guidelines constitutes a matter of state concern only.” Jd. Furthermore, the imposition of
consecutive terms of incarceration does not violate clearly established federal law or make the
state-court proceedings fundamentally unfair. Jd.

Petitioner’s contention that he has completed his sentence is based on his previous
assertion that the ODRC impermissibly determined that his 1977 and 1994 sentences ran
consecutively. The Ohio Supreme Court rejected this contention, finding that petitioner’s
sentences ran consecutively by operation of law. State ex rel. Smith, 103 N.E.3d at 817.

10


[W]e held last term in Cullen v, Pinholster, 563 U.S. _, 131 S.Ct. 1388, 179 L.Ed.2d

557 (2011), that review under § 2254(d)(1) is limited to the record that was before

the state court that adjudicated the prisoner’s claim on the merits. We said that the

provision’s “backward-looking language requires an examination of the state-court

decision at the time it was made.” Jd., at __, 131 S.Ct. at 1398. The reasoning of

Cullen determines the result here. As we explained, § 2254(d)(1) requires federal

courts to “focu[s] on what a state court knew and did,” and to measure state-court

decisions as of ‘the time the state court renders its decision.’” Id., at __, 131 S.Ct.

at 1399 (quoting Lockyer v. Andrade, 538 U.S. [at] 71-72 . . .; emphasis added).

Decisions by lower courts are relevant “to the extent [they] already reviewed and
interpreted the relevant Supreme Court case law to determine whether a legal principle or right
had been clearly established by the Supreme Court.” Otte, 654 F.3d at 600 (quoting Landrum v.
Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)). The writ may issue only if the application of
clearly-established federal law is objectively unreasonable “in light of the holdings, as opposed
to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision.”
McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529 U.S. at 412).

A. Ground One Should Be Dismissed.

In Ground One, petitioner asserts that the ODRC impermissibly aggregated the sentences
he received in 1977 and 1994. (Doc. 5, at p. 9). Respondent asserts that Ground One stems from
petitioner’s 1994 and 2012 parole revocations and is barred by AEDPA’s one-year statute of
limitations, see 28 U.S.C. § 2244(d), because petitioner should have known about and challenged

the calculation of his sentence long before now. (Doc. 7, at p. 6). Alternatively, respondent

asserts that Ground One raises a state-law issue and is not cognizable on federal habeas review.

(Doc. 7, at pp. 8-9).°

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).
7


Id. (emphasis in original). The Supreme Court extended its ruling in Harrington to hold that
when a state court rules against a defendant in an opinion that “addresses some issues but does
not expressly address the federal claim in question,” the federal habeas court must presume,
subject to rebuttal, that the federal claim was “adjudicated on the merits” and thus subject to the
“restrictive standard of review” set out in § 2254(d). See Johnson v. Williams, 568 U.S. 289, 292
(2013).

Although the standard is difficult to meet, § 2254(d) “stops short of imposing a complete
bar on federal court relitigation of claims already rejected in state proceedings” and “preserves
authority to issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington v.
Richter, 562 U.S. 86, 102 (2011). In other words, to obtain federal habeas relief under that
provision, the state prisoner must show that the state court ruling on the claim presented “was so
lacking in justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” /d. at 103.

The Supreme Court has made it clear that in assessing the merits of a constitutional claim
under § 2254(d), the federal habeas court must apply the Supreme Court precedents that
controlled at the time of the last state-court adjudication on the merits, as opposed to when the
conviction became “final.” Greene v. Fisher, 565 U.S. 34, 38-40 (2011); cf Otte, 654 F.3d at
600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a claim
addressed by the state courts, the federal habeas court must “look to Supreme Court cases
already decided at the time the state court made its decision”). In Greene, 565 U.S. at 38, the

Court explained:


ex rel. Smith, 103 N.E.3d at 816-17.” At the time of his 1994 robbery conviction, Ohio law
mandated that petitioner’s 1977 sentence for kidnapping and his 1994 sentence for robbery be
served consecutively. See id. at 817 (citing former Ohio Rev. Code § 2929.41(B)). Because
Ohio law mandated that the sentences be served consecutively, the trial court was not required to
state in the 1994 judgment of conviction that it was imposing a consecutive sentence. See
Hayden, 2017 WL 4216588, at *2. Accordingly, the ODRC did not administratively increase
petitioner’s sentence but merely calculated his release date based on the sentences imposed by
the trial courts in petitioner’s two cases. See id.

Ground One does not warrant habeas corpus relief.

*Petitioner contends that there is no evidence in the record establishing that he was on parole at the time of
his 1994 robbery conviction. (See Doc. 8, at p. 5). However, as indicated in n.2 supra, this federal court presumes
the factual finding of the Ohio Supreme Court that petitioner was on parole when he reoffended is correct. Petitioner
has failed to present clear and convincing evidence to the contrary. The state-court record contains evidence
supporting the determination that petitioner was on parole at the time of his 1994 robbery conviction. (See, e.g., June
16, 2017 sentence computation (Doc. 6, Ex. 6, at p. 32); March 6, 1996 inter-office communication calculating “lost-
time” attributable to petitioner (Doc. 6, Ex. 6, at p. 40); August 29, 2012 Adult Parole Authority Special Minutes
determining petitioner’s new maximum sentence expiration date to be March 4, 2023 (Doc. 6, Ex. 6, at p. 41); see
also computerized criminal history record setting forth petitioner’s parole history (Doc. 6, Ex. 10, at p. 92)). To the
extent that petitioner argues that he would have received a parole revocation hearing under Morrissey had he in fact
been on parole in 1994 (see Doc. 5, at p. 11), whether petitioner received a parole revocation hearing is not dispositive
of whether or not he was on parole. See Byrd v. Brigano, 633 N.E.2d 604, 606 (Ohio App. 1993) (“Ohio law
specifically states that a parolee remains in the legal custody of the [ODRC] until a final release is granted.”).
Additionally, as noted by the Court in addressing Ground Five of the petition, petitioner did not raise a substantive
Morrissey claim in the Ohio Supreme Court. Because petitioner has not demonstrated cause for failing to do so or
otherwise shown that failure to consider such a claim would result in a fundamental miscarriage of justice, the claim
is procedurally defaulted. To the extent petitioner asserts that the ODRC waived any parole violations he committed
prior to 1994 and thus impermissibly counted these violations as “lost time” in violation of his right to due process
(see Doc. 5, pp. 11, 14-15), his assertion is likewise unpersuasive. “[W]here a paroled convict violates his parole,
there is no affirmative duty upon the state to place detainers on him or pursue him so as to return him to custody, and
the state by its inaction creates neither an estoppel nor a waiver of its right to exact the penalty imposed under the
conviction when it once again takes him into custody.” Palmer v. Ghee, 690 N.E.2d 73, 76 (Ohio App. 1997) (quoting
Cline v. Haskins, 196 N.E.2d 440, 441 (Ohio 1964)). While a state’s delay in taking a parole violator into custody
may violate due process, id., “a violator who has succeeded in evading the authorities is in no position to complain of
a delay.” Jd. (quoting Hamilton v. Keiter, 241 N.E.2d 396, 299 (Ohio Com. PI. 1968)). During the time in which
petitioner asserts that he should have been taken into custody by the ODRC, he was by his own admission serving
prison time in the state of Texas. (See Doc. 5, at p. 14). Petitioner has not demonstrated a violation of his right to due
process.

9


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
HERBERT A. SMITH, Case No. 1:18-cv-514
Petitioner,
Black, J.
vs. Litkovitz, M.J.
WARDEN, LEBANON ORDER AND REPORT
CORRECTIONAL INSTITUTION, AND RECOMMENDATION
Respondent.

Petitioner, an inmate in state custody at the Lebanon Correctional Institution, has filed a
pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241,! asserting that he is
being held beyond the maximum expiration date of his sentence. (Doc. 5). This matter is before
the Court on the petition (Doc. 5) and respondent’s motion to dismiss (Doc. 7), to which
petitioner has replied (Doc. 8). Also before the Court are petitioner’s “Motion to Comply under
Fed. Civil Rule 7(B)” (Doc. 10) and petitioner’s “Motion for Judgment on the Pleadings” (Doc.
11).

For the reasons stated below, respondent’s motion to dismiss (Doc. 7) should be
GRANTED but, in part, for reasons other than provided by respondent. In light of this
recommendation, petitioner’s motions to comply (Doc. 10) and for judgment on the pleadings
(Doc. 11) are DENIED as moot.

I. PROCEDURAL HISTORY

The procedural history of this case was set forth by the Ohio Supreme Court in State ex

‘Although petitioner filed his petition under § 2241, the proper vehicle for a state prisoner to collaterally
attack the lawfulness and/or execution of his sentence is under 28 U.S.C. § 2254. See Allen v. White, 185 F. App’x
487, 490 (6th Cir. 2006) (“[Section] 2254 allows state prisoners to collaterally attack either the imposition or the
execution of their sentences. And indeed, there exists some question whether state prisoners may ever proceed under
§ 2241.”). Here, the proper course is to allow petitioner “to proceed under § 2241, but subject [the petition] to the
restrictions imposed by § 2254.” Id.


defaulted because petitioner did not raise it as a substantive claim in the Ohio Supreme
Court.

First, to the extent that petitioner asserts in Ground Five that he is being held beyond
the maximum expiration date of his sentence, such a claim has previously been addressed
in Ground Three and lacks merit for the same reasons that Ground Three lacks merit.

Next, to the extent that petitioner attempts to assert a constitutional violation by alleging
that he was denied a Morrissey hearing upon the revocation of his parole in 1994, petitioner did
not raise this issue as a substantive claim before the Ohio Supreme Court. (See Doc. 6, Ex. 10).

In recognition of the equal obligation of the state courts to protect the constitutional rights
of criminal defendants, and in order to prevent needless friction between the state and federal
courts, a state defendant with federal constitutional claims must fairly present those claims to the
state courts for consideration before raising them in a federal habeas corpus action. See 28
U.S.C. § 2254(b)(1), (c); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard
v. Connor, 404 U.S. 270, 275-76 (1971). A constitutional claim for relief must be presented to
the state’s highest court in order to satisfy the fair presentation requirement. See O'Sullivan v.
Boerckel, 526 U.S. 838, 845, 848 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990);
Leroy v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir. 1985). If the petitioner fails to fairly
present his constitutional claims through the requisite levels of state appellate review to the
state’s highest court, or commits some other procedural default that prevents a merit-based
review of the federal claims by the state’s highest court, he may have waived the claims for
purposes of federal habeas review. See O'Sullivan, 526 U.S. at 847-48; Harris v. Reed, 489 U.S.
255, 260-62 (1989); McBee v. Grant, 763 F.2d 811, 813 (6th Cir. 1985); see also Weaver v.

12


Considering the time that petitioner spent as a parole violator at large, the Ohio Court of Appeals
determined that his maximum sentence now expires on March 4, 2023. State ex rel. Smith v.
Schweitzer, No. CA2017-05-074, at p. 2 (Ohio App. Aug. 29, 2017) (Doc. 6, Ex. 8, at p. 58).
The record thus fails to reflect that petitioner is being held beyond the maximum expiration date
of his sentence.

Ground Three does not warrant habeas corpus relief.

D. Ground Four Should Be Dismissed.

Although Ground Four is missing from the petition filed in this Court (see supra n. 5), the
undersigned understands it to raise the same claims as presented in “Proposition of Law No.
Four” in petitioner’s brief to the Ohio Supreme Court, namely whether the ODRC impermissibly
increased petitioner’s sentence. (See Doc. 6, Ex. 10, at p. 78). This issue has already been
addressed in Grounds One and Two and lacks merit for the same reasons that Grounds One and
Two lack merit.

Ground Four does not warrant habeas corpus relief.

E. Ground Five Should Be Dismissed.

In Ground Five, petitioner states that he “is being held as a parole violator for a 5
to 15 year sentence that is 42 years old and he has not been afforded [a hearing under
Morrissey v. Brewer, 408 U.S. 471 (1972).]” Respondent argues that Ground Five is barred
by the statute of limitations. (See Doc. 7, at p. 6). Although this Court does not reach the
timeliness issue, see Smith, 463 F.3d at 429 n.2, the undersigned finds that Ground Five is

in part duplicative of Ground Three and fails for the same reasons, and in part procedurally


Petitioner’s submissions to the state courts indicate that he took some action regarding his
sentence prior to the underlying state habeas corpus action. (See Doc. 6, Ex. 5, at p. 12; Doc. 6,
Ex. 10, at p. 72; Doc. 6, Ex. 12, at p. 121). Because it is not clear from the record before the
Court whether and to what extent petitioner might be entitled to any tolling of the limitations
period, the Court proceeds to the merits of Ground One without deciding the timeliness issue.
See Smith v. State of Ohio Dept. of Rehabilitation, 463 F.3d 426, 429 n.2 (6th Cir. 2006) (finding
that because the statute of limitations is not a jurisdictional bar to review a court may proceed to
the merits of a petition in the interests of justice) (citing Trussell v. Bowersox, 447 F.3d 588, 590
(8th Cir. 2006)).

Although respondent is correct that the Sixth Circuit has held that “it is a matter of
substantive state law” whether sentences “should run concurrently or consecutively,” Harrison v.
Parke, No. 89-6495, 1990 WL 170428, at *2 (6th Cir. Nov. 6, 1990), the Court understands
petitioner to be asserting in Ground One that the ODRC administratively altered his sentence. In
Hill v, United States ex rel. Wampler, 298 U.S. 460, 465 (1936), the United States Supreme
Court held that the Due Process Clause prohibits a state from administratively increasing a
prisoner’s sentence. See Hayden v. Mohr, No. 16-4051, 2017 WL 4216588, at *2 (6th Cir. May
4, 2017) (explaining that “[c]ourts have construed Wampler as holding that increasing a
prisoner’s sentence administratively, rather than through a judicial proceeding, is a due process
violation.”).

There is no due process violation here. Petitioner pleaded guilty to a new felony

(robbery) in 1994 while he was under parole supervision on his kidnapping conviction. See State


blatant disregard of the Ohio [C]onstitution, and the 5th and 14th amendments to
the U.S. Constitution, and the Ohio [R]evised [C]ode. Only the courts have the
right or authority to correct an original sentence and even then it must be done
through the appellate process.

GROUND THREE: The sentence that was given to the appellant [by the courts],
has been satisfied and complete[d] and should now be considered void.

GROUND FOUR: The ODRC did not follow the guidelines set forth under the
Ohio [C]onstitution and the Ohio Revised Code.°

GROUND FIVE: The appellee [sic] is being held as a parole violator for a 5 to
15 year sentence that is 42 years old and he has not been afforded to have a[n] On
Site Hearing or a Revocation Hearing in accordance with Morrissey v. Brewer 408
US. 471.

(Doc. 5, at pp. 8-14).

Respondent has filed a motion to dismiss, asserting that petitioner’s claims are either
barred by the statute of limitations or noncognizable on federal habeas review. (Doc. 7).
Petitioner opposes the motion. (Doc. 8). For the reasons below, the motion to dismiss should be
GRANTED but in part for reasons other than those stated by respondent.

II. THE PETITION SHOULD BE DISMISSED.

The applicable standard of review governing the adjudication of constitutional issues
raised by petitioner to the state courts is set forth in 28 U.S.C. § 2254(d). Under that provision, a
writ of habeas corpus may not issue with respect to any claim adjudicated on the merits by the
state courts unless the adjudication either:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the United States
Supreme Court; or

SNotably, page 13 of the petition, which contains Ground Four, is missing from the petition submitted to the
Court. Petitioner, however, clarified his fourth ground for relief in his response to respondent’s motion to dismiss.

(Doc. 8, at p. 3).
4


would not find it debatable whether the Court is correct in its procedural ruling.’ In addition, to
the extent that petitioner has raised claims that have been considered on the merits herein, a
certificate of appealability should not issue because petitioner has not stated a “viable claim of the
denial of a constitutional right,” nor are the issues presented “adequate to deserve encouragement
to proceed further.” Slack, 529 U.S. at 475 (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
(1983); see also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in “good faith,” and therefore DENY
petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R.
App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

IT IS THEREFORE ORDERED THAT:
In light of the above recommendation, petitioner’s motions to comply (Doc. 10) and for

judgment on the pleadings (Doc. 11) are DENIED as moot.

ome zal 4 Zhen x Mtoe

Karen L. Litkovitz
United States Magistrate Judge

Because the first prong of the Slack test has not been met, the Court need not address the second prong of
Slack as to whether “jurists of reason” would find it debatable whether petitioner has stated a viable constitutional
claim in his time-barred grounds for relief. See Slack, 529 U.S. at 484.
15


2. The ODRC denied the appellant the right to Due Process by aggregating the
appellant[’s] sentence to 11 to 30 years in blatant disregard of the Ohio
[C]onstitution, and the Sth and 14th amendments to the U.S. Constitution, and the
Ohio revised code. Only the courts have the right or the authority to correct an
original sentence and even then it must be done through the appellate process.

3. The sentence that was given to the appellant [by the courts], has been satisfied and
completed and should be considered void.

4. The ODRC [d]id not follow the guidelines set forth under the Ohio [C]onstitution
and the Ohio [R]evised [C]ode.

(Doc. 6, Ex. 10, at pp. 74-78). On June 28, 2018, the Ohio Supreme Court affirmed the state
appellate court’s dismissal of petitioner’s state petition for a writ of habeas corpus. See State ex
rel. Smith, 103 N.E.3d at 817. Petitioner did not seek a writ of certiorari in the United States
Supreme Court.
Federal Habeas Corpus
On July 25, 2018, petitioner commenced the instant federal habeas corpus action.*
Petitioner raises the following five grounds for relief:

GROUND ONE: The ODRC does not have the authority to change or alter in any
way a clear and unambiguous statement contained in a court judgment. The duty
of the ODRC is to carry out the judgment of the court and nothing more.

GROUND TWO: The ODRC denied the appellant the right to due process by
aggregating the appellant’s sentence and changing his sentence to 11 to 30 years in

“A criminal defendant has only ninety days following the entry of judgment by the ‘state court of last resort”
in which to file a petition for a writ of certiorari.” Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (citing Sup.
Ct. R. 13). A review of the docket in State ex rel. Smith, No. 2017-1331 (Ohio Sup. Ct), shows that more than ninety
days have passed since the Ohio Supreme Court’s decision and petitioner has not filed a petition for a writ of certiorari
in the United States Supreme Court. Ohio Supreme Court dockets can be viewed at:
http://www.supremecourt.ohio.gov.

‘Under Houston v. Lack, 487 U.S. 266 (1988), and the “mailbox-rule,” the filing date of a federal habeas-
corpus petition submitted by a pro se prisoner is the date on which the prisoner provides his papers to the prison
authorities for mailing. Here, the petition does not indicate the date it was placed in the mail. However, the petition
indicates that it was scanned and emailed to the Court on July 25, 2018. (Doc. 5, at p. 1). Respondent, without
objection from petitioner, has used this date as the commencement date for the action. The undersigned does as well.

3


rel. Smith v. Schweitzer, 103 N.E.3d 816 (Ohio 2018):

{§ 2} In 1977, Smith was convicted of kidnapping and was sentenced to 5 to 15
years in prison. On August 3, 1981, he was released on parole. While under
supervision, he committed a new felony. Between December 2, 1981, and May 7,
1991, he was a parole violator at large. On October 17, 1994, Smith pleaded guilty
to one count of robbery. The common pleas court judge sentenced him to 6 to 15
years’ imprisonment. The sentencing entry did not indicate whether this term was
to be served concurrently with or consecutively to the time remaining on his
kidnapping sentence.

{4 3} Smith received parole a second time in 2005 and escaped detention. He
remained at large for the next six years, until he was returned to confinement in
September 2012.

{J 4} On May 22, 2017, Smith filed a petition for a writ of habeas corpus against
[Warden] Schweitzer, alleging that Smith had now served more than 15 years on
his robbery sentence and was therefore entitled to immediate release. Smith
asserted that he had also completed his sentence on the original kidnapping charge
because, he said, the two sentences had run concurrently, and the Department of
Rehabilitation and Correction has no authority to alter a prison sentence.

{4 5} On August 29, 2017, the Twelfth District Court of Appeals granted
Schweitzer’s motion to dismiss, concluding that Smith was not entitled to
immediate release because his sentences ran consecutively by operation of law.
Smith appealed.

Id. at 816-1727
Petitioner raised the following four issues in the Ohio Supreme Court:

1. The ODRC [Ohio Department of Rehabilitation and Correction] [d]oes not have
the authority to change or alter in any way a clear and unambiguous statement
contained in a court judgment. The duty of the ODRC is to carry out the judgment
of the court—and nothing more.

Under 28 U.S.C. § 2254(e)(1), the state courts’ factual findings are presumed correct unless the petitioner
rebuts the presumption by “clear and convincing evidence.” See McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir. 2004).
Petitioner has not presented clear and convincing evidence rebutting the Ohio Supreme Court’s factual findings and
thus those findings are presumed correct. Moreover, petitioner’s attempts through argument to undermine the Ohio
Supreme Court’s factual findings are unavailing. (See infra n.7).

2


Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989). See, e.g., Norris v. Schotten, 146 F.3d 314, 332 (6th
Cir. 1998) (finding that the doctrine of res judicata applies to constitutional claims that could
have been raised on direct appeal) (citing State v. Combs, 652 N.E.2d 205, 209 (Ohio App.
1994)).§

Such a default may occur if the state prisoner files an untimely appeal, Coleman, 501
U.S. at 750, if he fails to present an issue to a state appellate court at his only opportunity to do
so, Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994), or if he fails to comply with a state procedural
tule that required him to have done something to preserve the issue for appellate review. United
States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir.
1996).

Petitioner did not raise the Morrissey issue as a substantive claim to the Ohio Supreme
Court. Petitioner’s opening brief merely mentioned his alleged failure to receive a Morrissey
hearing to bolster his argument that the ODRC impermissibly concluded that his 1977 sentence
for kidnapping and his 1994 sentence for robbery were to be served consecutively. (See Doc. 6,
Ex. 10, at pp. 76, 79). As such, Ground Five, to the extent that it seeks to raise a substantive
Morrissey claim, is procedurally defaulted. See, e.g., Norris v. Schotten, 146 F.3d 314, 332 (6th
Cir. 1998) (finding that the doctrine of res judicata applies to constitutional claims that could
have been raised in a direct appeal) (citing State v. Combs, 652 N.E.2d 205, 209 (Ohio App.

1994)). Further, petitioner has failed to assert any cause for the procedural default of this claim

‘This Court may in its discretion raise the issue of procedural default sua sponte as long as the petitioner is
afforded an opportunity to present arguments on the issue. Davis v. Warden, No. 1:13cv198, 2014 WL 116666 (S.D.
Ohio Jan. 10, 2014) (Litkovitz, M.J.) (Report & Recommendation) (and numerous cases cited therein), adopted, 2014
WL 1302615 (S.D. Ohio. Mar. 31, 2014) (Barrett, J.). Here, petitioner has the opportunity to be heard on the matter
by way of objection to the instant Order and Report and Recommendation.

13


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

HERBERT A. SMITH, Case No. 1:18-cv-514
Petitioner,
Black, J.
vs. Litkovitz, M.J.

WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. 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 Recommendation is based in whole or in part upon matters occurring on the 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 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas vy. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).