Opinion

Brown v. State of Ohio

Court
District Court, N.D. Ohio
Filed
Sep 24, 2021
Cited by
0 cases
Authority
More cited than 28.0%

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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