Reese v. Warden, Noble Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DARREN M. REESE, :

:

Petitioner, :

: Case No. 2:20-cv-04124

v. :

: Chief Judge Algenon L. Marbley

WARDEN, NOBLE CORRECTIONAL : Magistrate Judge Michael R. Merz

INSTITUTION, :

:

Respondent. :

OPINION & ORDER

I. INTRODUCTION

This matter is before the Court on Darren M. Reese’s Petition for Writ of Habeas Corpus

(ECF No. 1), and the subsequent Magistrate Judge recommendations and Petitioner objections.

(See ECF Nos. 43, 46, 48, 51). The core of this case is about the nature of the federal courts’

power to grant habeas relief, as restricted by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Petitioner’s prayer for relief is, at bottom, rooted in his belief that Ohio state

courts have improperly interpreted state statutes; but as the Magistrate Judge pointed out,

Petitioner’s argument the rule of lenity and its proper application to Ohio drug laws

“misunderstands our role,” as “it is not the province of a federal habeas court to reexamine state

court determinations on state law questions.” (Report and Recommendations at 9, 10 (quoting

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)), ECF No. 43). For this reason and for the reasons

set forth more fully below, Petitioner’s Objections (ECF Nos. 46, 51) are OVERRULED and the

Magistrate Judge’s Report and Recommendation (ECF No. 43) and Supplemental Report and

Recommendation (ECF No. 46) are ADOPTED AND AFFIRMED. Reese’s Petition for Writ of

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Habeas Corpus (ECF No. 1) is DISMISSED WITH PREJUDICE. Because reasonable jurists

could not disagree, Petitioner is DENIED a certificate of appealability. No writ shall issue.

II. BACKGROUND

A. Factual Background

The Ohio Fifth District Court of Appeals recounted the proceedings of Petitioner’s

conviction as follows:

{¶ 2} The Zanesville–Muskingum County Drug Task Force conducted a series of

controlled drug buys of cocaine with appellant in April and May of 2015, and

executed a search warrant on June 1, 2015. The first transaction was for 51.4 grams

of cocaine, the second for 27.4 grams, the third for 104.97 grams after drying and

149.65 before drying, and the final for 14.62 grams after drying and 26.69 before

drying. The search warrant yielded 83.13 grams of cocaine.

{¶ 3} Appellant was charged with four counts of trafficking in drugs,1 one count of

illegal manufacture of drugs, and one count of possession of drugs. He filed a

motion to conduct a purity analysis of the cocaine, which the State opposed.

{¶ 4} On August 17, 2015, appellant entered a no contest plea to the indictment.

As part of the plea, he stipulated to the lab test results, which did not specify the

purity of the cocaine. He was sentenced to a total of sixteen years incarceration.

State v. Reese, 2016-Ohio-1591, 2016 WL 1570116, at *1 (Ohio Ct. App. Apr. 15, 2016)

(hereinafter “Reese I”). In the initial indictment, Counts 1, 2, 3, 5, and 6 (i.e., the four counts of

trafficking and the one count of possession) were considered first-degree felony offenses, and

Count 4 (illegal manufacture) was a second-degree felony.2 (Indictment at 1–4, State Ct. R. Ex.

1 Respondent writes that Petitioner was indicted on five counts of drug trafficking, but lists only four counts.

(Resp’t’s Return of Writ at 3, ECF No. 36). The indictment reflects only four counts of drug trafficking. (Indictment

1–3, State Court Record Ex. 1, ECF No. 11).

2 In Petitioner’s recounting of the facts of the case, he writes that the indictment “only effectively-charged

four (4) counts of fifth-degree drug trafficking, one (1) count of second-degree illegal manufacturing, and one (1)

count of fifth-degree drug possession.” (Petition for Writ of Habeas Corpus at 1, ECF No. 1). This Court understands

Petitioner’s statement as an assertion that the indictment was wrong — that is, the same argument that undergirds his

habeas claim — rather than as a dispute of the fact that the indictment charged him with four counts of first-degree

trafficking. As such, this Court need not consider whether Petitioner’s statement overcomes the presumption that the

facts set forth by the Fifth District are correct. See 28 U.S.C. § 2254(e)(1).

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1, ECF No. 11). Additionally, Counts 3 and 4 included major drug offender specifications. (See

id. at 2). In conjunction with Reese’s no-contest plea, Count 2 became a third-degree felony and

Count 5 a second-degree felony. (Resp’t’s Return of Writ at 3, ECF No. 36). Ultimately, Petitioner

was sentenced to five (5) years for Count One (first-degree trafficking felony), twenty-four (24)

months for Count Two (third-degree trafficking felony), eleven (11) years for Count Three (first-

degree trafficking felony with major drug offender specification), eight (8) years for Count Four

(a second-degree manufacturing felony), eight (8) years for Count Five (second-degree

trafficking), and five (5) years for Count Six (first-degree possession), with the sentences for Count

One and Six served concurrently and the sentences for Counts Two, Four, and Five served

concurrently. (Sentencing Entry (Sept. 24, 2015) at 2, State Ct. R. Ex. 8, ECF No. 11).

B. Procedural Background

1. State Court Proceedings

After Petitioner’s sentence by the Court of Common Pleas of Muskingum County, Ohio,

Petitioner sought appellate relief through two substantive “routes.” (Petition for Writ of Habeas

Corpus at 1–2, ECF No. 1). First, Petitioner filed an appeal with the Ohio Fifth District Court of

Appeals, “arguing he was improperly convicted based on the total weight of the narcotics rather

than the weight of the pure amount of cocaine.” State v. Reese, 2019-Ohio-3453, ¶ 4, 2019 WL

4024730, at *1 (Ohio Ct. App. Aug. 26, 2019) (hereinafter “Reese II”). The Fifth District denied

Petitioner’s appeal, on the basis that “to sustain a conviction for trafficking in cocaine . . . with a

major drug offender specification based on weight of the drug compound, the State is required to

prove the identity and a detectable amount of a controlled substance.” Reese I, 2016 WL 1570116,

at *1 (citing State v. Chandler, 2004-Ohio-3436, 813 N.E.2d 65 (Ohio Ct. App. 2004), aff’d, 846

N.E.2d 1234 (Ohio 2006)). In other words, under then-controlling precedent, the State did not

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need to show that Reese possessed 100 grams of pure cocaine to add a major drug offender

specification and thus enhance his sentence with respect to Count 3; instead, it needed only to

show that Reese possessed over 100 grams of a mixture that included cocaine. Chandler, 813

N.E.2d at 74. Petitioner appealed that decision to the Supreme Court of Ohio, arguing that “[t]he

state, in prosecuting cocaine offenses involving mixed substances under R.C. 2925.11(C)(4)(a)

through (f), must prove that the weight of the cocaine meets the statutory threshold, excluding the

weight of any filler materials used in the mixture.” (Memo. in Supp. of Jurisdiction at 1 (quoting

Reese I, 2016 WL 1570116, at *1), State Ct. R. Ex. 17, ECF No. 11). The Supreme Court of Ohio

accepted jurisdiction, staying proceedings pending its decision in State v. Gonzales, 150 Ohio St.3d

261, 2016-Ohio-8319, 81 N.E.3d 405 (Ohio 2016) (hereinafter “Gonzales I”), which posed the

same question as Petitioner’s appeal. See State v. Reese, 146 Ohio St.3d 1427, 2016-Ohio-4606,

52 N.E.3d 1203 (Ohio 2016).

In Gonzales I, the Supreme Court of Ohio determined that the offense level for possession

of cocaine under Ohio Rev. Code § 2925.11(C)(4) was determined by the weight of the actual,

pure cocaine possessed, and not by the total weight of cocaine and filler. See Gonzales I, 81 N.E.3d

at 412. On the basis of that authority, the Supreme Court of Ohio reversed the Fifth District’s

decision in Reese I and remanded Petitioner’s case to the trial court for resentencing. See State v.

Reese, 150 Ohio St.3d 564, 2016-Ohio-8471, 84 N.E.3d 1002 (Ohio 2016). But the Supreme Court

of Ohio soon reversed its decision in Gonzales I after the State requested reconsideration, instead

finding “that the entire ‘compound, mixture, preparation, or substance,’ including any fillers that

are part of the usable drug, must be considered for the purpose of determining the appropriate

penalty for cocaine possession under R.C. 2925.11(C)(4).” State v. Gonzales, 150 Ohio St.3d 276,

¶ 3, 2017-Ohio-777, 81 N.E.3d 419, 420 (Ohio 2017) (hereinafter “Gonzales II”). The Supreme

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Court of Ohio then reconsidered and reversed its previous reversal in Petitioner’s case: it upheld

the Fifth District’s decision in Reese I in May 2017, thereby affirming Petitioner’s original

sentence based on the new holding of Gonzales II. State v. Reese, 150 Ohio St.3d 565, ¶ 3, 2017-

Ohio-2789, 84 N.E.3d 1002, 1002 (Ohio 2017).

The second “route” for post-conviction relief pursued by Petitioner consisted of a Motion

to Correct Void Judgment, filed on November 27, 2018, in which Petitioner “challeng[ed] the

subject matter jurisdiction of the trial court because the indictment failed to include specific

numerical designations . . . [and] further argued two of his counts were allied offenses and should

have been merged for sentencing.” Reese II, 2019 WL 4024730, at *1. The trial court denied

Petitioner’s motion, and the Fifth District Court of Appeals affirmed. See generally id. In denying

both of Petitioner’s assignments of error, the Fifth District panel noted that Petitioner’s arguments

were barred by the doctrine of res judicata because he “could have raised the defects in the

indictment in his direct appeal, but failed to do so . . . . Same for his argument on allied offenses

and merger of sentence.” Id. at *3. Petitioner appealed the decision, but the Supreme Court of

Ohio did not accept jurisdiction. State v. Reese, 157 Ohio St.3d 1538, 2020-Ohio-122, 137 N.E.3d

1196 (Ohio 2020).

While his appeal of the denial of motion to vacate was pending, Petitioner revisited his first

“route” for relief by applying to reopen his direct appeal of the trial court judgment in June 2019.

(Appl. to Reopen Appeal, Ex. 41, ECF No. 11). He argued that his appellate counsel had provided

ineffective assistance for failing to argue that the trial court could not sentence him for charges

different than those detailed in the grand jury indictment and that his sentence was void due to

stare decisis. (Id. at 3–4). The Fifth District denied Petitioner’s application to reopen as untimely,

because it was filed two years after the direct appeal was final without a showing of good cause.

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(Entry, State Ct. R. Ex. 42, ECF No. 11). The Supreme Court of Ohio declined to hear Petitioner’s

appeal of that decision on October 29, 2019. See State v. Reese, 157 Ohio St.3d 1468, 2019-Ohio-

4419, 133 N.E.3d 546 (Ohio 2019).

2. Federal Habeas Petition

Subsequently, Reese filed the instant petition pursuant to 28 U.S.C. § 2254 in this Court

on August 12, 2020. (See generally Pet. for Writ of Habeas Corpus, ECF No. 1). In his petition,

Reese raises the following grounds for relief:

CLAIM ONE: The appellate court used non-federal grounds to deny review of his

federal claims.

[Supporting Facts:] This issue was brought up in my memorandum in support of

jurisdiction in O.S.Ct. No. 2019-1211, via the explanation presented. I met the 90-

day barometer, but to evade federal review, the appellate court expanded the terms

of the rule. Any other appellant who has demonstrated cause for filing outside the

90-day limit has received review of the merits of application.

CLAIM TWO: Received ineffective assistance of appellate counsel.

[Supporting Facts:] Appellate counsel failed to raise “dead-bang” winning

arguments.

CLAIM THREE: Convictions and sentences for drug offenses are void based

upon being greater than that found by grand jury.

[Supporting Facts:] Because the trial court had no authority to correct a defective

indictment, and the State could not constructively amend such on no contest pleas,

any conviction and sentence in excess of that found by the grand jury is void ab

initio. I attacked the convictions and sentences at issue, as void and voidable.

CLAIM FOUR: Sentences for allied offenses of similar import constitute double-

jeopardy

[Supporting Facts:] The issue of similar import for illegal manufacturing of drugs

and trafficking in the same drugs was well-settled by the very appellate court I

presented grievance. Therefore, the doctrine of stare decisis employed to render a

failure to correct plain error of constitutional magnitude. This violated the Double

Jeopardy Clause and Ohio’s codification of such in O.R.C. 2941.25. This voided

the sentences pursuant to constitutional and statutory grounds. Notwithstanding the

fact that Ohio law provides the State with a corrective measure, the Supreme Court

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demands an absolute sweep. Based upon opportunity to correct, passing invokes

federal jurisdiction.

This matter invoked this Court’s duty to protect and maintain the supremacy of the

Constitution, Ward v. Bd. of Comm’rs of Love City (1920), 253 U.S. 17, 23, and

warrants a conditional writ to correct federal violations.

(Id. at 1–4). In lieu of a Return of Writ, the Warden filed a Motion to Dismiss (ECF No. 12). The

Magistrate Judge recommended granting the motion to dismiss, but withdrew that

recommendation upon objection by Petitioner and ordered Respondent to complete the return of

writ. (See R. & R., ECF No. 22; Obj., ECF No. 25; Notation Order, ECF No. 26; Order, ECF No.

27). The Warden did so on November 8, 2021. (Answer / Return of Writ, ECF No. 36).

After careful consideration of the Petition, the Warden’s Return of Writ, and Petitioner’s

Traverse, the Magistrate Judge issued a Report and Recommendation on January 19, 2022, in

which he recommended that the petition for writ of habeas corpus be dismissed with prejudice.

(R. & R., ECF No. 43). Upon Petitioner’s submission of objections (ECF No. 46), this Court

recommitted the case to the Magistrate Judge to further analysis. (Recommittal Order, ECF No.

47). In the Supplemental Report and Recommendation (ECF No. 48), the Magistrate Judge

maintained his previous recommendation that this Court deny all grounds for relief and dismiss

the petition. In response, Petitioner submitted further objections. (ECF No. 51). Both R&Rs and

corresponding objections are now ripe for this Court’s consideration.

III. STANDARD OF REVIEW

A. Objections to Report and Recommendation

If a party objects within 14 days to a magistrate judge’s proposed findings and

recommendations, the district court “shall make a de novo determination of those portions of the

report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.

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§ 636(b)(1); see also Fed. R. Civ. P. 72(b). The district court may “accept, reject or modify the

recommended disposition; receive further evidence; or return the matter to the magistrate with

instructions.” Fed. R. Civ. P. 72(b). On the other hand, if a party fails to object timely to the

magistrate’s recommendation, that party waives the right to de novo review by the district court

of the report and recommendation. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not

appear that Congress intended to require district court review of a magistrate’s factual or legal

conclusions, under a de novo or any other standard, when neither party objects to those

findings.”). Waiver does not, however, “preclude further review by the district judge, sua sponte

or at the request of a party, under a de novo or any other standard.” Id. at 154.

A party’s objection should be specific, identify the issues of contention, and “be clear

enough to enable the district court to discern those issues that are dispositive and contentious.”

Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). The onus is on the objecting party “to pinpoint

those portions of the magistrate’s report that the district court must specially consider.” Mira v.

Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (quotation marks and citation omitted). When a

pleader fails to raise specific issues, the district court will consider this to be “a general objection

to the entirety of the magistrate report[, which] has the same effects as would a failure to object.”

Howard v. Sec’y of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Finally, allegations in a pro se complaint are subject to “‘less stringent standards than

formal pleadings drafted by lawyers,’ and therefore should be liberally construed,” Williams v.

Curtin, 631 F.3d 380, 383 (6th Cir. 2011) (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir.

2004)), but even “the lenient treatment generally accorded to pro se litigants has limits.” Pilgrim

v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (internal citations omitted).

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B. Habeas Corpus

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act, which

restricted federal courts’ power to grant habeas corpus relief. See Irons v. Casey, 505 F.3d 846,

856 (9th Cir. 2007) (Noonan, J., concurring) (referring to AEDPA as “direct legislative

interference in the independence of the judiciary”). Pursuant to AEDPA, federal district courts

are empowered to grant a petition for a writ of habeas corpus on claims that were adjudicated on

the merits in state court only if the state court’s adjudication “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or was “an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” Id. § 2254(d)(2). The first provision “circumscribes a federal court’s review of

claimed legal errors,” while the latter “places restrictions on a federal court’s review of claimed

factual errors.” Loza v. Mitchell, 705 F. Supp. 2d 773, 786 (S.D. Ohio 2010).

Habeas relief under § 2254 “does not lie for errors of state law,” Lewis v. Jeffers, 497 U.S.

764, 780 (1990), and is fundamentally a remedy for violations “of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a). Thus, a “federal habeas court does not act as

an additional state appellate court to review a state court’s interpretation of its own law or

procedure,” Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987) (citing Combs v. Tennessee, 530

F.2d 695 (6th Cir.), cert denied, 425 U.S. 954 (1976)), and instead is bound by the highest state

court’s interpretations of state laws. Wainwright v. Goode, 464 U.S. 78, 84 (1983) (citing Brown

v. Ohio, 432 U.S. 161, 167 (1977); Garner v. Louisiana, 368 U.S. 157, 169 (1961)).

With respect to questions of federal law, a state court decision is determined to be “contrary

to” federal law either where a “state court confronts facts that are materially indistinguishable from

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a decision of the Supreme Court and nevertheless arrives at a result different from its precedent,”

Williams v. Coyle, 260 F.3d 684, 699 (6th Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362,

390 (2000)), or if a “state court ‘applies a rule that contradicts the governing law set forth in’

Supreme Court cases.” Id. (quoting Taylor, 529 U.S. at 406). A decision is deemed

“unreasonable” if a state court has set out the correct legal standard but applied that standard in an

objectively unreasonable manner. See Lockyer v. Andrade, 538 U.S. 63, 76 (2003); Harrington v.

Richter, 562 U.S. 86, 103 (2011) (“[A] state prisoner must show that the state court’s ruling on the

claim being presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.”). The legal standards that constitute “clearly established Federal law,” for the

purposes of AEDPA, comprise only “the holdings, as opposed to the dicta, of [the Supreme]

Court’s decisions as of the time of the relevant state-court decision.” Carter v. Bogan, 900 F.3d

754, 767 (6th Cir. 2018) (quoting Andrade, 538 U.S. at 71) (alteration in original). Similarly, the

habeas court’s review of claims of factual error by a state court under § 2254(d)(2) is highly

deferential, see Burt v. Titlow, 571 U.S. 12, 18 (2013), especially as findings of fact made by a

state court are presumed to be correct and the petitioner bears the burden of overhauling that

presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Finally, a prisoner must ordinarily exhaust her available state court remedies before seeking

habeas relief. The exhaustion requirement is met by fairly presenting her claims to state courts,

including the highest court in the state. Id. § 2254(b), (c); O’Sullivan v. Boerckel, 526 U.S. 838,

844–45 (1999). This requirement allows “state courts [to] have the first opportunity to review” a

prisoner’s federal claims “and provide any necessary relief.” Boerckel, 526 U.S. at 844 (citing

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Rose v. Lundy, 455 U.S. 509, 515–16 (1982); Darr v. Burford, 339 U.S. 200, 204 (1950)). The

Sixth Circuit has set out four ways a petitioner can “fairly present” her federal claim to state courts:

(1) reliance upon federal cases employing constitutional analysis; (2) reliance upon

state cases employing federal constitutional analysis; (3) phrasing the claim in

terms of constitutional law or in terms sufficiently particular to allege a denial of a

specific constitutional right; or (4) alleging facts well within the mainstream of

constitutional law.

Whiting v. Burt, 395 F.3d 602, 613 (6th Cir. 2005) (quoting McMeans v. Brigano, 228 F.3d 674,

681 (6th Cir. 2000)). Additionally, a prisoner must have presented the same legal and factual

substance in her claims to state courts that she later raises on habeas in federal courts.

IV. LAW & ANALYSIS

A. Statute of Limitations Defense

As a threshold matter, Respondent suggests in both his Motion to Dismiss (ECF No. 12)

and Return of Writ (ECF No. 36) that Reese’s habeas petition should be dismissed as time-barred

by the one-year statute of limitations contained in AEDPA. Specifically, 28 U.S.C. § 2244(d)

states that a state prisoner has one year from “the date on which the [state court] judgment became

final by the conclusion of direct review or the expiration of the time for seeking such review” to

file a federal habeas case. (Answer / Return of Writ at 12, ECF No. 36). Respondent notes, and

Reese does not dispute, that the one-year statute of limitations began to run on May 16, 2017, when

the Supreme Court of Ohio affirmed Reese’s sentence pursuant to Gonzales II. See Reese, 84

N.E.3d at 1002. The parties agree, too, that the instant Petition (ECF No. 1) was received by the

Court on August 12, 2020 — more than two years after the statute of limitations expired. (See

Answer / Return of Writ at 17, ECF No. 36; Am. Traverse at 8, ECF No. 42).

To establish timeliness, Reese invokes the prison mailbox rule: he claims that he deposited

the petition in the prison mailbox on July 20, 2017, but did not discover that this Court did not

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receive the petition until the summer of 2020, at which time he re-filed the instant petition. (See

Am. Traverse at 8, ECF No. 42). The prison mailbox rule dictates that “a habeas petition is

considered filed when the prisoner provides the petition to prison officials for filing,” not when a

court receives the petition. Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 456 (6th Cir.

2012); see also FED. R. APP. P. 4(c). Thus, if Reese’s claims are true, he effectively filed his

petition on June 20, 2017, well within the one-year statute of limitations.

In support of this timeline, Reese has provided a notarized declaration stating that he

deposited the federal habeas petition in the prison mailbox at Noble Correctional Institution, where

he is incarcerated, on July 20, 2017. (See Traverse at 27, ECF No. 21). The declaration was

notarized by Diane Mozena, the prison unit secretary. (Id.). He later provided a second declaration

from Mozena herself, containing similar substance as the first declaration from Reese. (Obj. at 4,

ECF No. 25). Both declarations reference “records” that indicate that Reese handed prison

officials the initial habeas petition in 2017 to mail and that Reese later learned in 2020 that the

Court never received that petition, but do not include those records as attachments. (See id.).

Finally, Reese provides a withdrawal slip, purporting to show that he paid $2.00 from his prison

account to cover postage for mailing the petition in July 2017. (Id. at 5). Respondent, however,

notes that the prison’s records do not show any such withdrawal from Reese’s account during that

timeframe. (Inmate Demand Statement, ECF No. 36-1 at 2).

In the Magistrate Judge’s Report and Recommendations (ECF No. 43), he recommended

that this Court deny Respondent’s statute of limitations defense and find that the Petition (ECF

No. 1) was timely filed. As Respondent has not objected (see generally ECF, 2:20-cv-04124), he

has waived de novo review of the Magistrate Judge’s recommendation. Importantly, though

Respondent argues that Mozena’s declaration cannot be considered an affidavit under Ohio Rev.

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Code § 147.141 and casts doubts on its authenticity, he does not provide any affirmative evidence

demonstrating either that the declaration is false or that it did not reflect Mozena’s truly-held

beliefs. (See Return of Writ at 18, ECF No. 36; see also R. & R. at 7, ECF No. 43 (“Nonetheless,

the Warden does not deny Ms. Mozena holds the position she claims and her Declaration is at least

some external corroboration of Reese’s claims.”)). Moreover, as the Magistrate Judge noted, the

statute of limitations is not jurisdictional. See McClendon v. Sherman, 329 F.3d 490, 492 (6th Cir.

2003); see also Russell v. City of Farmington Hills, 34 F. App’x 196, 198 (6th Cir. 2002) (noting

the general preference for deciding cases on the merits) (internal citations omitted). Accordingly,

this Court ADOPTS the Magistrate Judge’s recommendation and DENIES Respondent’s Motion

to Dismiss (ECF No. 12) and the statute of limitations defense therein.

B. Petition for Writ of Habeas Corpus

Petitioner raises four grounds for relief in his Petition for Writ of Habeas Corpus (ECF No.

1). But it appears from his briefing that a different issue is at the heart of his quest for post-

conviction relief: Reese believes that the Supreme Court of Ohio misinterpreted the state’s drug

laws in Gonzales II and that the correct interpretation would have substantially reduced Reese’s

sentence pursuant to those laws. Consider, for example, Petitioner’s Supplemental Objections

(ECF No. 51), over two-thirds of which is spent detailing the litigation history of Gonzales I and

Gonzales II and arguing that the former was correct and the latter wrong. (See id. at 4–18). Reese

provides a detailed and compelling analysis of how courts interpret statutes, of the legislative

history and intent underlying Ohio’s drug laws, and of various canons of statutory interpretation.

Elsewhere, Reese offers a lengthy and compelling discussion of lenity and the role that, in his

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opinion, it ought to have played in the Supreme Court of Ohio’s analysis in Gonzales II. (See Am.

Traverse at 15–20, ECF No. 42).3

Although Reese attempts to cloak his argument in the guise of fair warning and vagueness

claims, which this Court addresses below, see infra Part IV.B.1, his dispute is, at its core, with

how state courts have interpreted state law. (See Suppl. Obj. at 4, ECF No. 51 (referencing fair

notice); see also Obj. at 3, ECF No. 46 (“The [Ohio Supreme Court] was willing to countenance

clearly contradictory interpretations of a criminal statute without applying meaningful discussion

of the rule [of lenity].”)). The rule of lenity, as currently analyzed and applied in the federal courts,

is a canon of statutory construction, an “aid for resolving an ambiguity . . . [that] comes into

operation at the end of the process of interpreting what Congress has expressed, not at the

beginning as an overriding consideration of being lenient to wrongdoers.” Callanan v. United

States, 364 U.S. 587, 596 (1961); see also David S. Romantz, Reconstructing the Rule of Lenity,

40 CARDOZO L. REV. 523, 524 (2018). It is not a constitutional principle on its own, except insofar

as it is rooted in constitutional considerations of liberty, legislative supremacy, and the due process

right of fair notice. See Intisar A. Rabb, The Appellate Rule of Lenity, 131 HARV. L. REV. F. 179,

193–94 (2018).

But correcting mistakes such as the Supreme Court of Ohio’s failure to apply the rule of

lenity to Ohio Rev. Code § 2925.11(C)(4) is outside the limited remit of federal habeas courts.

After all, “it is not the province of a federal habeas court to reexamine state court determinations

on state law questions.” McGuire, 502 U.S. at 67–68; see also Hon. Stephen R. Reinhardt, The

Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing

3 Although Reese does not provide a citation, much of this discussion appears to be drawn verbatim from

Recent Case, State v. Gonzales (Gonzales II), 2017-Ohio-777, 2017 WL 938679 (Ohio Mar. 6, 2017), 130 HARV. L.

REV. 2259 (2017).

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Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly

Unfortunate Consequences, 113 MICH. L. REV. 1219, 1225 (2015) (“[T]he [Supreme] Court has

in many instances forbidden federal courts to exercise meaningful review over legitimate

constitutional claims, and has instead allowed erroneous constitutional decisions by state courts to

stand in the name of comity.”). This prohibition applies with equal force to questions of statutory

interpretation: “a federal court is bound by a state court’s construction of that state’s own statutes.”

Volpe v. Trim, 708 F.3d 688, 697 (6th Cir. 2013) (quoting Baner v. Davis, 886 F.2d 777, 780 (6th

Cir. 1989) (internal citations omitted)). In fact, the Sixth Circuit has repeatedly found that habeas

petitioners’ arguments about the Supreme Court of Ohio’s decision in Gonzales II are not

cognizable for that exact reason. See Hudson v. Sloan, 2019 WL 4729829 (6th Cir. Jan. 10, 2019)

(denying a certificate of appealability because “[t]he state courts’ interpretation of the Ohio drug

possession statute is binding on a federal habeas court” (citing Bradshaw v. Richey, 546 U.S. 74,

76 (2005) (per curiam))); see also Jackson v. Fender, 2020 WL 3053635 (6th Cir. Apr. 8, 2020)

(same). So, too, has this Court. See James v. Buchanan, 2019 WL 2462371 (S.D. Ohio June 13,

2019).

Thus, the animating thesis of Reese’s petition is simply not a question that this Court can

consider on habeas. Of course, the Court will address Reese’s arguments about Ohio drug

possession and trafficking laws to the extent that he suggests they are so vague as to preclude fair

warning; but any such consideration will not entail a second-guessing of Ohio’s highest court’s

construction of its state’s statutes. With that background in mind, this Court now addresses

Petitioner’s four proposed grounds for relief.

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1. Ground One: Denial of Review of Federal Claims on Non-Federal Grounds

Petitioner initially frames his first claim for relief as a complaint about the Fifth District

Court of Appeal’s denial of his Application to Reopen Appeal in June 2019, in which he raised

claims of ineffective assistance for the first time. (See Pet. for Writ of Habeas Corpus at 1–2, ECF

No. 1). At the time, Petitioner acknowledged that, under Ohio R. App. P. 26(B)(2)(b), any

application to reopen an appeal must be made within ninety (90) days after the journalization of

the appellate decision or be accompanied by a showing of good cause. (Appl. to Reopen Direct

Appeal, State Ct. R. Ex. 41, ECF No. 18 at 207).

Reese suggests that he met the 90-day filing deadline, but that the Fifth District “expanded

the terms of the [90-day] rule” to deny his application to reopen. (Petition for Writ of Habeas

Corpus at 3, ECF No. 1). There is no indication, however, that he met the deadline. In fact, it is

undisputed that he filed his application to reopen on June 22, 2019, more than two years after the

journalization of the appellate decision. (Entry, State Ct. R. Ex. 42, ECF No. 11 at 216–17). In

the alternative, Reese argues that “[a]ny other appellant who has demonstrated cause for filing

outside the 90-day limit has received review of the merits of application,” implying that he had

made a sufficient showing of good cause for his untimely filing. (Id.). But this, too, is not

supported by the record: the Fifth District’s decision denying the application found that “he ha[d]

not shown good cause for the two year delay from that date.” (Entry, State Ct. R. Ex. 42, ECF No.

18 at 217). In the application, Reese asserted that “he could not have timely discovered the

operative facts supporting claim of ineffective assistance of appellate counsel” but fails to identify

what facts were undiscoverable, or why they took two years to uncover. (Appl. to Reopen Direct

Appeal at 2, State Ct. R. Ex. 41, ECF No. 11 at 207). Nor does a close read of the application to

reopen uncover any arguments whose factual bases were undiscoverable for two years. (See

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generally id.). Moreover, there is “no federal constitutional right to have the state courts recognize

good cause”; thus, the state appellate court’s conclusion that Reese had not made an adequate

showing of good cause does not constitute a cognizable basis for habeas relief. (See Am. Return

of Writ at 30, ECF No. 36).

But as mentioned above, the true reason for Reese’s first ground for relief is his belief that

the Supreme Court of Ohio failed to apply properly the rule of lenity in Gonzales II. Thus, Reese

spends little time arguing that he made a sufficient showing of good cause under Ohio R. App. P.

26(B)(2)(b). Instead, the bulk of his argument focuses on his lenity claim about the correct

interpretation of Ohio Rev. Code § 2925.11(C)(4). (See Am. Traverse at 15–20, ECF No. 42). In

effect, Reese suggests that the language of the statute, which did not include the word “mixture,”

failed to provide him fair warning because he believed that the severity of punishment for drug

possession or trafficking was based on the amount of pure cocaine possessed or trafficked, but he

was ultimately punished based on total weight. (Id.). Further, Reese believes he was deprived of

fair warning that the major drug offender specification, which carries an enhanced sentence,

applied to possession of one hundred grams or more of cocaine, including fillers, rather than one

hundred grams or more of pure cocaine. See OHIO REV. CODE § 2925.11(C)(4)(f).4

The requirement of fair warning is, at its core, about “whether the statute, either standing

alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct

was criminal.” United States v. Lanier, 520 U.S. 259, 267 (1997). Thus, the fair warning

requirement may take the form of: (1) “the vagueness doctrine [which] bars enforcement of ‘a

statute which either forbids or requires the doing of an act in terms so vague that men of common

4 The statute reads, in full: “If the amount of the drug involved equals or exceeds one hundred grams of

cocaine, possession of cocaine is a felony of the first degree, the offender is a major drug offender, and the court shall

impose as a mandatory prison term a maximum first degree felony mandatory prison term.” Id.

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intelligence must necessarily guess at its meaning and differ as to its application,’” id. at 266

(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 291 (1926)); (2) the rule of lenity, by

interpreting an ambiguous criminal statute to apply only where its prohibitions are clear from the

face of the statute, id.; or (3) a prohibition against “courts [] applying a novel construction of a

criminal statute to conduct that neither the statute nor any prior judicial decision has fairly

disclosed to be within its scope.” Id. (internal citations omitted). But see Rogers v. Tennessee,

532 U.S. 451 (2001). These considerations apply in equal force to statutes delineating sentences

for criminal conduct, as due process requires fair notice of the severity of the punishment, in

addition to fair notice of the conduct punished. See Johnson v. United States, 576 U.S. 591, 595–

96 (2015) (“These principles [underlying the prohibition of vagueness in criminal statutes] apply

not only to statutes defining elements of crime, but also to statutes fixing sentences.” (citing United

States v. Batchelder, 442 U.S. 114, 123 (1979))).

To determine whether a statute has provided fair notice, the Court “begin[s] with the

relevant statutory language and the manner in which it had been construed by the Ohio courts prior

to the events in question.” James, 2019 WL 2462371, at *2 (quoting O’Neal v. Bagley, 743 F.3d

1010, 1015 (6th Cir. 2013)) (alteration in original). Here, this Court concludes that the drug

possession and trafficking statutes, as understood by Ohio courts, provided Reese with sufficient

warning of both the conduct that they prohibited and the severity of punishment. First, as the

Magistrate Judge pointed out, “[t]he prohibition in the statute is unmistakably clear: do not possess

or distribute cocaine, with the level of punishment calibrated to the weight involved, however that

weight is determined.” (Supplemental Report and Recommendation at 4, ECF No. 48). Second,

Ohio courts had consistently “rejected Petitioner’s purity argument over several decades and

several amendments to the drug statutes, consistently holding that in cocaine possession and

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trafficking cases penalties are based on total weight.”5 James, 2019 WL 2462371, at *4 (citing

State v. Smith, 2011-Ohio-2568, ¶ 12, 2011 WL 2112609, at *3 (Ohio Ct. App. May 27, 2011)

(Second District); State v. Remy, 2004-Ohio-3630, ¶ 50, 2004 WL 1531940, at *11 (Ohio Ct. App.

June 20, 2004) (Fourth District); State v. Fuller, 1997 WL 598404, at *2 (Ohio Ct. App. Sept. 26,

1997) (First District)). In other words, the manner in which state courts had construed Ohio Rev.

Code § 2925.11(C)(4)(f) prior to Reese’s conduct provided him with plenty of warning that the

severity of punishment corresponded with total weight, and did not consider purity or

concentration of cocaine. The Fifth District, which decided Reese’s appeal of his sentence, also

adhered to this construction; it had previously interpreted the cocaine possession laws to allow for

a major drug offender specification based on the presence of cocaine, not the concentration of

cocaine. James, 2019 WL 2462371, at *3–*4 (citing State v. Chandler, 157 Ohio App.3d 672,

2004-Ohio-3436, 813 N.E.2d 65 (Ohio Ct. App. 2004); State v. Lenoir, 2010-Ohio-4910, 2010

WL 3921188 (Ohio Ct. App. Oct. 5, 2010); State v. Cooper, 2012-Ohio-3058, 973 N.E.2d 828

(Ohio Ct. App. 2012)).

In short, the decision reached by the Fifth District in affirming Petitioner’s sentence in

Reese I (and the subsequent decisions upholding that sentence) was not “unexpected and

indefensible by reference to the law which had been expressed prior to the conduct in issue.” Bouie

v. City of Columbia, 378 U.S. 347, 354 (1964). Instead, the decision to penalize Reese based on

total weight rather than pure weight was based on the construction of Ohio Rev. Code §

5 Of course, the Sixth District had decided State v. Gonzales, 2015-Ohio-461, 2015 WL 502263 (Ohio Ct.

App. 2015), the underlying case in Gonzales I and Gonzales II in favor of the defendant. But, as this Court noted in

James, “[o]ne conflicting court of appeals decision, which was not controlling precedent in Ohio’s Fifth Judicial

District, does not negate the ‘reasonable warning’ that Petitioner’s conduct could be penalized under §

2925.11(C)(4)(f) based on the plain wording of the statute and the scores of cases that said otherwise.” James, 2019

WL 2462371, at *4 (citing United States v. Blaszak, 349 F.3d 881, 886–87 (6th Cir. 2003)).

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2925.11(C)(4)(a)–(f) that was already well-established in Fifth District and across the state more

broadly. Given that background, Reese was not deprived of fair warning of the punishment that

he received. And ultimately, whether Reese has a colorable claim that the rule of lenity should be

applied to Ohio’s drug possession laws does not decide the issue; for Reese to succeed on his

habeas claim, he must also demonstrate that the Supreme Court of Ohio’s failure to apply the rule

of lenity resulted in an “unexpected and indefensible” development in the law so as to have

deprived him of fair notice. Id. He has not met that burden. Accordingly, Petitioner’s First Ground

for Relief is DENIED.

2. Grounds Two Through Four

The Magistrate Judge recommended that this Court deny Petitioner’s Second, Third, and

Fourth Grounds for Relief because “all three of these claims were procedurally defaulted.” (Suppl.

R. & R. at 5 (citing R. & R. at 10–17, ECF No. 43), ECF No. 48). As Petitioner did not object to

this recommendation and the time for filing such objections under Fed. R. Civ. P. 72(b) has

expired, this Court ADOPTS the Magistrate Judge’s Report and Recommendation (ECF No. 43)

and Supplemental Report and Recommendation (ECF No. 48) with respect to Petitioner’s Second,

Third, and Fourth Grounds for Relief.

For the sake of completeness, this Court briefly summarizes the shortcomings of

Petitioner’s arguments. In short, the Second, Third, and Fourth Grounds for Relief all fall within

the prohibition that prevents federal habeas courts from reviewing a prisoner’s federal claims if

they have been defaulted in state court “pursuant to an adequate and independent state procedural

rule . . . unless the prisoner can demonstrate cause of the default and actual prejudice as a result of

the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Sixth

Circuit requires “a complicated analysis” to determine if a prisoner’s default of a federal claim has

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resulted through the failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138

(6th Cir. 1986). This analysis looks at whether: “[(1)] there is a state procedural that is applicable

to the petitioner’s claim and . . . [(2)] the petitioner failed to comply with the rule[,] . . . [(3)] the

state courts actually enforced the state procedural sanction[,] . . . [and (4)] the state procedural

forfeiture is an ‘adequate and independent’ state ground on which the state can rely to foreclose

review of a federal constitutional claim.” McNeill v. Bagley, 10 F.4th 588, 595 (6th Cir. 2021)

(quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)).

The four prongs of the Maupin test have been met for the claims raised by Reese in Grounds

Two, Three, and Four. First, state courts denied Petitioner’s arguments on the basis of state

procedural rules. With respect to the Second Ground for Relief, Reese presented his ineffective

assistance of appellate counsel claim6 in his Application to Reopen Appeal, which was denied as

untimely pursuant to Ohio R. App. P. 26(B). See Hoffner v. Bradshaw, 622 F.3d 487, 504 (6th

Cir. 2010) (“Under Ohio law, a claim of ineffective assistance of appellate counsel must be raised

as part of an Ohio Appellate Rule 26(B) motion to reopen an appeal before the Ohio Court of

Appeals.” (citing State v. Murnahan, 584 N.E.2d 1204, 1209 (1992); OHIO R. APP. P. 26(B)).

Reese suggests that “Respondent’s analysis of this claim, as time barred, is flawed, however, by

his/her use of hindsight to evaluate the relative importance of various components of the State’s

6 In the Petition for Writ of Habeas Corpus, Reese suggests only that “[a]ppellate counsel failed to raise

‘dead-bang’ winning arguments” without providing any detail as to what those arguments might be. (Petition for Writ

of Habeas Corpus at 3, ECF No. 1). Reese later implies in his Traverse that the “dead-bang” winning arguments are

the same arguments that he raised in his Motion to Correct Void Judgment, which was denied by the Fifth District in

Reese II. (Amended Traverse at 25, ECF No. 42). In that decision, the Fifth District wrote that “[a]ppellant [counsel]

could have raised the defects in the indictment in his direct appeal, but did not do so.” Reese II, 2019 WL 4024730,

at *2. Reese appear to place great weight on this statement, assuming that the Fifth District holding indicated that

there were, in fact, serious defects with the indictment that would have rendered his sentence void if not for the

procedural default. But in reality, the Fifth District did not arrive at that conclusion. By contrast, the Fifth District’s

brief analysis of the merits of Reese’s defective indictment claim concluded: “we find they do not affect the trial

court’s subject matter jurisdiction.” Id.

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case.” (Objections at 23 (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)), ECF No.

46). While this argument does touch upon the principles courts must follow in evaluating the

merits of ineffective assistance of counsel claims, it has no bearing on the analysis of whether such

claims have been procedurally defaulted.

With respect to the Third and Fourth Grounds for Relief, which allege that Reese’s

convictions are void because the indictment was defective and that he was exposed to double

jeopardy because his sentences were not merged as allied offenses, respectively, state appellate

courts rejected both arguments as barred by the Ohio doctrine of res judicata. Reese II, 2019 WL

4024730, at *2–*3.7 The doctrine of res judicata is a state procedural rule that bars a “convicted

defendant from raising and litigating . . . any defense or any claimed lack of due process that was

raised or could have been raised by the defendant at the trial which resulted in . . . conviction”

except in a direct appeal of the judgment. State v. Perry, 226 N.E.2d 104, 180 (1967). In disputing

this conclusion, Petitioner suggests that his “Third and Fourth Ground’s [sic] for Relief are not

subject to dismissal for procedural basis . . . [because] the claim could have been raised on direct

appeal. . . . Thus, it is not barred by res judicata.” (Obj. at 26, ECF No. 46). But Reese has

misunderstood, and in fact flipped, the law. The doctrine of res judicata does not preserve claims

that a prisoner could have but did not raise on direct appeal; rather, it prohibits prisoners from

subsequently bringing such claims, regardless of their merits.

The remaining prongs of the Maupin test have also been met. Petitioner did not timely

file his Application to Reopen Appeal or show good cause, nor did he raise his defective indictment

or double jeopardy claims in his direct appeal. (Merit Br. of Appellant at iii, State Ct. R. Ex. 12,

7 With respect to the merits of Petitioner’s Third Ground for Relief, the Fifth District also noted that any

alleged deficiencies in the indictment did not deprive the trial court of subject matter jurisdiction. See supra Part

IV.B.2 n.6.

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ECF No. 11 at 65). Third, state courts enforced the above-mentioned procedural rules: the Fifth

District rejected Petitioner’s application to reopen as untimely, pursuant to Ohio R. App. P. 26,

and his claims about defective indictment and double jeopardy as barred by res judicata. (J. Entry,

State Ct. R. Ex. 42, ECF No. 11 at 216–17; Op., State Ct. R. Ex. 33, ECF No. 11 at 164–69).

Finally, the requirement that claims of ineffective assistance of appellate counsel must be raised

in a motion for reconsideration before the Ohio Court of Appeals has long been “well established”

as an adequate and independent state ground. See Monzo v. Edwards, 281 F.3d 568, 577 (6th Cir.

2002) (citing Murnahan, 584 N.E.2d at 1204. The same is true for the doctrine of res judicata.

See Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007) (“This Court has held that Ohio’s use of

the doctrine of res judicata to preclude a merits determination of a claim raised in post-conviction

proceedings that had been, or should have been, raised on direct appeal is an adequate and

independent state ground barring federal habeas review.” (citing Coleman v. Mitchell, 268 F.3d

417, 429 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000))).

Nor has Reese demonstrated cause and prejudice so as to overcome the procedural defaults.

See Hargrave-Thomas v. Yukins, 374 F.3d 383, 387 (6th Cir. 2004) (“A procedurally defaulted

claim may be considered in federal habeas corpus proceedings only if the petitioner shows ‘cause’

for his failure to comply with the state’s procedural rules and ‘prejudice’ resulting from the alleged

violation of federal law.” (citing Thompson, 501 U.S. at 750)). He notes only that “[s]everal courts

have recognized that . . . the unavailability of adequate legal resources can constitute cause” but

provides nothing further. (Obj. at 15 (citing Phillips v. Mills, 1999 WL 685925, at *4 (6th Cir.

Aug. 25, 1999), ECF No. 46). He does not claim, for example, that he has been denied legal

23

resources or allege any details or facts suggesting that that was the case.8 And without any such

allegations, there is no basis for this Court to conclude that there existed some “objective factor

external to the defense” that impeded Reese’s efforts to raise his claims in state court. Murray,

477 U.S. at 488.

Accordingly, the Court DENIES Petitioner’s Second, Third, and Fourth Grounds for

Relief.

V. CONCLUSION

For the reasons discussed above and upon independent review, Petitioner’s Objections

(ECF Nos. 46, 51) are OVERRULED and the Magistrate Judge’s Report and Recommendation

(ECF No. 43) and Supplemental Report and Recommendation (ECF No. 48) are ADOPTED AND

AFFIRMED.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States

District Courts, the Court now considers whether to issue a certificate of appealability. When a

habeas claim is denied on the merits, a certificate of appealability may issue only if the petitioner

“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

To do so, a petitioner must show “that reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the issues presented

were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).

The Court is not persuaded that reasonable jurists would debate the dismissal of Petitioner’s

claims. The Court therefore DENIES Petitioner’s request for a certificate of appealability and

8 Petitioner’s arguments on cause and prejudice appear to be copied verbatim from Tyler v. McCaughtry, 293

F.Supp.2d 920 (E.D. Wisc. 2003), which may explain why the arguments are not linked to any analysis of the facts of

his situation.

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further CERTIFIES that any appeal would not be in good faith and that an application to proceed

in forma pauperis on appeal should be DENIED.

IT IS SO ORDERED.

Me MARBL [fe

CHIEF UNITED STATES DISTRICT JUDGE

DATED: January 20, 2023

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