The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
:
TERRY BROWN, : CASE NO. 4:20-cv-01726
:
Petitioner, : OPINION & ORDER
: [Resolving Doc. 5, 14]
v. :
:
WARDEN DAVID GRAY, :
:
Respondent. :
:
JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:
petitioner Terry Brown petitions for habeas corpus relief under 28 U.S.C.
§ 2254.1 Brown is serving a 25-year to life sentence for aggravated murder with a firearm
specification, aggravated robbery, abuse of a corpse, and tampering with evidence.
Petitioner Brown alleges three grounds for relief: ineffective assistance of counsel,
prosecutorial misconduct, and illegal search and seizure.2
Magistrate Judge Carmen E. Henderson filed a Report and Recommendation in this
case. In her report, Judge Henderson recommends the petition be denied. Petitioner objects
to the Report & Recommendation.3 For the following reasons, the Court OVERRULES
Petitioner’s objections, ADOPTS the Report & Recommendation, DENIES Petitioner’s § 2254
petition, and GRANTS the motion to dismiss.
I. Background
1 Doc. 1. Warden Gray filed a motion to dismiss. Doc. 5. Petitioner filed a traverse. Doc. 11. Warden Gray
filed a reply. Doc. 12.
2 Doc. 1.
3 Doc. 15. The Court considered his objections timely because his motion for extension of time was timely
On April 20, 2017, a Columbiana County, Ohio grand jury indicted Petitioner
Brown.4 In pretrial proceedings, Brown moved to suppress statements Brown gave to a
detective on Fifth, Sixth, and Fourteenth Amendment grounds.5 The trial court held a
hearing, then denied the motion.6
Brown entered into a plea agreement with the State of Ohio on October 25, 2017.7
After the plea, Petitioner Brown moved on the day before his scheduled sentencing, to
withdraw his guilty plea.8 The trial court held a hearing, found that Brown was “ably
represented,” and found that he had “a full and complete understanding of the charges”
when he pled.9 The court denied Brown’s motion to withdraw his guilty plea, as well as a
subsequent motion to withdraw the plea.10
Petitioner Brown, represented by counsel, appealed the trial court’s denial of his
motion to withdraw his guilty plea.11 The Ohio Court of Appeals affirmed the judgment.12
The Ohio Supreme Court denied review of Petitioner’s delayed appeal.13
Petitioner Brown sought post-conviction relief through multiple motions for
additional discovery and for reconsideration in the trial court.14 The trial court denied all
these motions.15 The Ohio Court of Appeals denied Petitioner Brown’s motion for delayed
post-conviction relief to appeal one of the denials.16
4 Doc. 5-1 at 5.
5 at 25.
6 at 28.
7 at 29.
8 at 38.
9 at 54-55, 62.
10 at 62, 97.
11 at 99.
12 at 126.
13 at 140, 163.
14 at 174, 186, 188, 192.
15 at 173, 195.
On August 5, 2020, Petitioner Brown petitioned for habeas corpus relief under 28
U.S.C. § 2254.17
I. Legal Standard
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 18 governs
federal courts’ review of state court proceedings. AEDPA generally requires that a
petitioner exhaust all his available state court remedies before seeking habeas relief.19
Exhaustion occurs once a state supreme court provides a convicted defendant a full
and fair opportunity to review his or her claims on the merits.20 Fair presentation requires
that the state courts be given the opportunity to see both the factual and legal basis for each
habeas claim.21 Each claim must be presented to the state courts as a federal constitutional
issue, not merely as an issue arising under state law,22 and it must be presented to the state
courts under the same legal theory in which it is later presented in federal court.23
A district court will not consider a habeas petitioner’s “contentions of federal
law . . . not resolved on the merits in the state proceeding due to [a petitioner’s] failure to
raise them there as required by state procedure.”24
II. Discussion
a. Petitioner Brown’s Ground One Is Not Exhausted
17 Doc. 1.
18 28 U.S.C. § 2254.
19 28 U.S.C. § 2254(b)(1)(A).
20 , 526 U.S. 838, 846 (1999); , 17 F.3d 155, 160 (6th Cir. 1994);
, 912 F.2d 878, 881 (6th Cir. 1990).
21 , 581 F.3d 410, 414-15 (6th Cir. 2009).
22 , 731 F.2d 365, 369 (6th Cir. 1984).
23 , 142 F.3d 313, 322 (6th Cir. 1998).
24 ,433 U.S. 72, 87 (1977); , 440 F.3d 754, 763-64 (6th Cir.
Petitioner Brown’s ineffective assistance of counsel claim is not exhausted because
he has not presented it on appeal to the Ohio Court of Appeals and Ohio Supreme Court.
Petitioner Brown was sentenced in 2018 but has never appealed his conviction and sentence
to the Ohio Court of Appeals.25
Brown may be able to file a delayed appeal under Ohio Appellate Rule 5(A).26 But
absent some equitable ground or tolling ground, the federal habeas one-year statute of
limitations has likely expired.27 But separately, the state delayed appeal remains available to
him, and Petitioner’s claim is not exhausted.
b. Petitioner Brown’s Ground Two Is Not Exhausted
Petitioner Brown’s prosecutorial misconduct claim is also not exhausted because he
has not yet raised it in a delayed appeal to the Ohio Court of Appeals and Ohio Supreme
Court.
c. Petitioner Brown’s Ground Three Is Not Cognizable
Petitioner Brown’s Ground Three—illegal search and seizure—is both unexhausted
and not cognizable. “[W]here the State has provided an opportunity for full and fair litigation
of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus
relief on the ground that evidence obtained in an unconstitutional search or seizure was
introduced in his trial.”28
Here, the trial court considered Petitioner Brown’s motion to suppress, held a hearing,
then overruled the motion.29 Petitioner Brown’s suppression motion appeared to rest on
25 Doc. 5-1 at 196.
26 Ohio R. App. P. 5(A).
27 28 U.S.C. § 2244(d).
28 , 428 U.S. 465, 494 (1976).
Fifth and Sixth Amendment grounds, not the Fourth Amendment grounds he now raises.30
Even if he did not actually raise a Fourth Amendment claim in state court, however, this
Court’s inquiry only extends to whether he had a “full and fair opportunity” to raise the
claim.31 Here, Petitioner had the opportunity to raise a Fourth Amendment Claim under
Ohio Rule of Criminal Procedure 12, and to directly appeal the decision under Ohio Rule of
Appellate Procedure 3(A) and 5(A). That satisfies the “full and fair opportunity” standard,
making his Fourth Amendment claim not cognizable in a 28 U.S.C. § 2254 petition.
d. The New Grounds Raised in Petitioner Brown’s Objections Are Not Properly
Presented
In his objections to the Report and Recommendation, Petitioner Brown raises two
additional constitutional claims for the first time, along with a new actual innocence
argument. Brown did not properly present these claims. These claims were not included in
his petition. Even if they were properly before the Court, however, they would be
unexhausted because Petitioner still has a right to seek a delayed state court conviction and
sentence appeal in the Ohio Court of Appeals and Ohio Supreme Court.
Because the AEDPA statute of limitations has likely run, the time before the Ohio
Court of Appeals and Ohio Supreme Court will not reset the one-year statute of limitations.
III. Conclusion
For the foregoing reasons, the Court OVERRULES Petitioner’s objections. The Court
ADOPTS in full Magistrate Judge Henderson’s Report & Recommendation and incorporates
it fully herein by reference. The Court DENIES Petitioner’s § 2254 petition and GRANTS
30 at 25-26.
the motion to dismiss. The Court certifies that no basis exists upon which to issue a
certificate of appealability.32
IT IS SO ORDERED.
Dated: September 24, 2021
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE