Traverse, ECF No. 10, PageID 358
How later courts described this case
- Traverse, ECF No. 10, PageID 358
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
DUSTIN J. CARROLL,
Petitioner, : Case No. 2:22-cv-2155
- vs - District Judge Michael H. Watson
Magistrate Judge Michael R. Merz
CYNTHIA MUSSER,
Chief, Ohio Adult Parole Authority,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Dustin Carroll under 28 U.S.C. §
2254, is before the Court for decision on the merits. Relevant pleadings are the Petition (ECF No.
1), the State Court Record (ECF No. 7), the Return of Writ (ECF No. 8), and the Traverse (ECF
No. 10). The Magistrate Judge reference in the case was recently transferred to the undersigned
to help balance the Magistrate Judge workload in the District (ECF No. 11).
Respondent advisees that since the filing of the Petition in this case, Petitioner has been
shifted to the custody of the Ohio Adult Parole Authority. Petitioner does not object to a change
of respondents. Accordingly, Chief Musser is substituted for the Warden of Noble Correctional
as Respondent and the caption is amended as set forth above.
Litigation History
On June 22, 2020, the Coshocton County Grand Jury indicted Petitioner on one count of
conspiracy in violation of Ohio Revised Code § 2923.01(A)(1), 2923.01(J)(2), specifying that Carroll
had planned or aided Tiffany Kay Arden and Amber Lee Allnut in committing the offense of illegal
conveyance of drugs into a detention facility on or about November 10, 2019. (Indictment, Case No.
20-cr-072, State Court Record, ECF No. 7, Ex. 1).
Although he was appointed counsel, Carroll filed a pro se motion to dismiss the indictment
as well as a motion to disqualify counsel. Id. at Exs. 3 and 4. On February 1, 2021, the court
granted the motion and dismissed the indictment, without prejudice, finding that:
In so ruling, the Court finds that the crime charged within the body
of the indictment is not a listed offense under the conspiracy statute,
and subsection (M) of R.C. 2923.01 does not include a violation of
R.C. 2921.36, within the definition of “Felony drug trafficking,
manufacturing, processing, or possession offense”.
Therefore, a person cannot be charged with conspiracy to commit a
violation of R.C. 2921.36, as such an offense does not exist in the
State of Ohio.
(Judgment Entry, State Court Record, ECF No. 7, Ex. 10).
On the same day, the grand jury re-indicted Carroll, charging that, on or about November 10,
2019, he was guilty of illegal conveyance of drugs of abuse onto grounds of a specified governmental
facility in violation of Ohio Revised Code § 2921.36(A)(2), 2921.36(G)(2)(Indictment, Case No. 21-
cr-014, State Court Record, ECF No. 7 at Ex. 11). Carroll then filed a motion to dismiss the new
indictment on double jeopardy grounds which the trial court denied. Id. at Exs. 12, 13.
At the time set for final pretrial conference, the court denied a renewed motion to dismiss and
a motion to stay pending appeal. Carroll then pleaded guilty pursuant to an agreement that both parties
would recommend a twelve-month sentence, which the trial judge then imposed.
Carroll appealed pro se to the Fifth District Court of Appeals, raising two assignments of error:
1.The trial court committed violence to the Double Jeopardy Clause
of the Fifth Amendment when it refused to impose the bar to further
prosecution attached to the grant of a Crim.R. 12(C)(2) motion to
dismiss.
2.The trial court erred to the prejudice of thee [sic] Appellant when
it tolled the statute of limitations prescribed by a specific statute with
the provisions of a general one, thereby usurping the jurisdiction to
accept a plea.
(Appellant’s Merit Brief, State Court Record, ECF No. 7, Ex. 25).
The Fifth District overruled both assignments of error. State v. Carroll, 2021-Ohio-3937
(Ohio App. 5th Dist. Nov. 3, 2021). Carroll then moved to certify a conflict with decisions of the
Second, Fourth, and Seventh Districts Courts of Appeal (Motion, State Court Record, ECF No. 7
Exhibit 30). The Fifth District denied both this and a motion for reconsideration. Id. at Exs. 32 and 33.
Carroll then appealed to the Supreme Court of Ohio which declined to exercise jurisdiction. State v.
Carroll, 166 Ohio St. 3d 1415 (2022). Carroll’s petition for a state writ of habeas corpus was also
unsuccessful. (Journal Entry, State Court Record, ECF No. 7, Ex. 40). Carroll apparently did not
appeal, but filed his Habeas Corpus Petition in this Court (ECF No. 1); pleading two grounds for
relief:
Ground One: Legal jeopardy, as defined by Supreme Court,
attached when Petition[er] received an acquittal on first prosecution
with thee [sic] prosecutor’s consent.
Ground Two: Petitioner suffers a fortiori to his protection against
answering an overly stale indictment.
(Petition, ECF No. 1, PageID 3-6).
Analysis
Ground One: Double Jeopardy
In his First Ground for Relief, Carroll claims his conviction violates the Double Jeopardy
Clause of the Constitution.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
affords a defendant three basic protections:
It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same
offense after conviction. And it protects against multiple
punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969). The Double Jeopardy Clause was held to be applicable to the States through the Fourteenth
Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969).
Carroll’s Petition recites that he was indicted
“[o]n June 22, 2020, . . .in Cochocton Case No. 20CR72, for
conspiracy to convey. The case ended with dismissal for failure to
charge an offense and with thee [sic] prosecutor’s consent, prior to
a jury empaneling. On February 1, 2021, I was reindicted, in
Coshocton Case No. 21CR14, for same facts and evidence as 20 CR
72.”
(Petition, ECF No. 1, PageID 1). Thus Carroll’s claim is that he was prosecuted a second time for
the same offense after being acquitted, the first prong of the protection listed in Brown, supra.
Respondent defends against Ground One on the merits, asserting that jeopardy did not
attach in the first case (20-cr-072)(Return, ECF No. 8, PageID 344-47). Respondent raised no
affirmative defenses to Ground One in the Return, thereby effectively conceding Carroll has
exhausted available state court remedies and has not procedurally defaulted that ground for relief.
Recognizing the applicability of the Antiterrorism and Effective Death Penalty Act of 1996
(Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), Carroll argues the appeals court’s decision
in this case is contrary to clearly established federal law as enunciated in United States v.
Oppenheimer, 242 U. S. 85 (1916), and Gavieres v. United States, 220 U. S. 338 (1911), as
opposed to the pretrial circumstances adjudicated in Serfass v. United States, 420 U. S. 377
(1975)(Traverse, ECF No. 10, PageID 358).
Under the AEDPA, when a state court decides on the merits a federal constitutional claim
later presented to a federal habeas court, the federal court must defer to the state court decision
unless that decision is contrary to or an objectively unreasonable application of clearly established
precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter,
562 U.S. 86, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone,
535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Although
several Ohio courts ruled on Carroll’s double jeopardy claim, it is the last reasoned decision which
is reviewed in habeas, as Carroll recognizes. Ylst v. Nunnemaker, 501 U.S. 797 (1991).
The Fifth District decided the double jeopardy claims as follows:
[*P6] A defendant's rights under the Double Jeopardy Clause of
the Fifth Amendment are not waived by a plea of guilty. Village of
Montpelier v. Greeno, 25 Ohio St.3d 170, 172, 25 Ohio B. 212, 495
N.E.2d 581, 582 (1986), citing Menna v. New York, 423 U.S. 61, 96
S.Ct. 241, 46 L.Ed.2d 195 (1975). However, termination of a
proceeding before jeopardy has attached, even if harmful to the
defendant in some way, does not entitle him to relief under the
double jeopardy clause State v. Larabee, 69 Ohio St.3d 357, 358,
1994- Ohio 318, 632 N.E.2d 511, 513 (1994). Without risk of
determination of guilt, jeopardy does not attach, and neither an
appeal nor further prosecution constitutes double jeopardy. Id.,
citing Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43
L.Ed.2d 265 (1975). The Serfass court held jeopardy did not attach
when a trial court granted a pretrial motion to dismiss an indictment
after receiving evidence, stipulations, and arguments relative to the
motion. Id.
[*P7] In the instant case, Appellant attached the trial court's entry
filed February 1, 2021, dismissing the indictment in case number
2020CR0072 to his motion to dismiss. This entry states:
This matter came before the Court on January 22, 2021, for
oral argument upon the Defendant's "Motion to Dismiss."
The Defendant was present through remote video
conferencing from the Ohio Department of Rehabilitation
and Conviction. The Defendant's Counsel, Jeffrey Kellogg
was present in Court, with Prosecuting Attorney Jason
Given.
Whereupon, after hearing the arguments of Counsel, the
Court finds the motion to be well taken, and the indictment
in this case is hereby DISMISSED, without prejudice. In
so ruling, the Court finds that the crime charged within the
body of the indictment is not a listed offense under the
conspiracy statute, and subsection (M) of R.C. 2923.01
does not include a violation of R.C. 2921.36, within the
definition of "Felony drug trafficking, manufacturing,
processing, or possession offense."
Therefore, a person cannot be charged with conspiracy to
commit a violation of R.C. 2921.36, as such an offense
does not exist in the State of Ohio.
[*P8] We find it is apparent from the face of this entry the prior
indictment was dismissed without prejudice before jeopardy had
attached. The trial court therefore did not err in overruling
Appellant's motion to dismiss the instant indictment on double
jeopardy grounds.
State v. Carroll, supra.
Carroll asserts the decision is contrary to Oppenheimer, supra, because it “conveniently
overlooked the operative fact that the state trial court found that the prosecutor did not object to
the granting of the motion. This is the equivalent of consent . . . .”
Petitioner has asserted throughout these proceedings that the prosecutor consented to
dismissal, yet he has provided no record reference to prove that point. Judge Batchelor’s Entry
does not recite any such consent to the Motion to Dismiss and he did not grant the relief Carroll
requested: dismissal with prejudice. Instead the Entry very clearly dismisses the indictment in
20CR072 without prejudice for failure to charge an offense under Ohio law.
Whether or not the prosecutor consented to dismissal in some un-cited place in the record
is not material in any event. Consent to a dismissal without prejudice is not equivalent to an
acquittal for Double Jeopardy purposes and so the Fifth District’s decision is not contrary to
Oppenheimer.
The unanimous opinion in Oppenheimer was written by Oliver Wendell Holmes, Jr., the
greatest Supreme Court Justice of the twentieth century. But applying Holmes’s words to this case
is difficult because legal procedure and the words in which it is described have changed so much
since 1916. Thus Holmes speaks of the possible preclusive effects of a prior judgment:
This defense [of previous adjudication] was presented in four forms
entitled respectively, demurrer, motion to quash, plea in abatement,
and plea in bar. After motion by the government that the defendant
be required to elect which of the four he would stand upon, he
withdrew the last-mentioned two, and subsequently the court
granted what was styled the motion to quash, ordered the indictment
quashed, and discharged the defendant without day. The
government brings this writ of error, treating the so-called motion to
quash as a plea in bar, which in substance it was. United States v.
Barber, 219 U. S. 72, 78, 55 L. ed. 99, 101, 31 Sup. Ct. Rep. 209.
Oppenheimer, 242 U.S. at 86. None of these modes of proceeding is available at law today; law
students are not taught the meaning of “demurrer” or “plea in abatement.” However, the same
preclusive effect under the Double Jeopardy Clause could be obtained today with a motion to
dismiss on the ground that the charge was barred by the statute of limitations if that defense was
either actually litigated or agreed to by the prosecutor. That is the meaning of a “plea in bar.”
The bar of the statute of limitations had been adjudicated in the prior case and that adjudication
was binding.
That is not what happened here. Carroll moved to dismiss the indictment in 20-cr-072
because it did not charge an offense because conveyance of drugs into a correctional facility was
not listed as an overt act in the relevant statute. Carroll claimed this deprived the Common Pleas
Court of subject matter jurisdiction and asked for dismissal with prejudice (Motion, State Court
Record, ECF No. 7, Ex. 4, PageID 28-29). But that is not what happened. The indictment was
dismissed without prejudice.
There was no ruling on the lack of subject matter jurisdiction defense. Carroll relied at
various points in the Common Pleas Court on State v. Cimpritz, 185 Ohio St. 490, 491 (1953), ¶6
of the syllabus. In that case the Supreme Court of Ohio held that a judgment of conviction based
on an indictment which does not charge an offense is, under Ohio law, void for lack of jurisdiction
of the subject matter and may be successfully attacked either on direct appeal to a reviewing court
or by a collateral proceedings. However, in Midling v. Perrini, 14 Ohio St. 2d 106 (1968), the
Ohio Supreme Court held that failure to object that an indictment does not state an offense must
be raised in the trial court and cannot be raised for the first time on appeal because it does not
deprive the trial court of subject matter jurisdiction. See also State v. Cochran, 1995 Ohio App.
LEXIS 5809 (Ohio App. 2nd Dist. Dec. 29, 1995); State v. Burkitt, 84 Ohio App. 3d 214 (Ohio
App. 2nd Dist. 1993). Under Cimpritz the Common Pleas Court did not have subject matter
jurisdiction to enter judgment in 20CR072 because the indictment did not charge an offense under
Ohio law. The trial court did not make that finding explicitly, but even if it had, that finding would
not have had preclusive effect in the second case: a finding that one indictment relating to a
transaction does not charge an offense does not determine that a second indictment relating to the
same transaction does not charge an offense. The Fifth District’s decision in this case is not
contrary to nor is it an objectively unreasonable application of Oppenheimer.
In Serfass, supra, the Supreme Court clarified the meaning of “acquittal” in Double
Jeopardy jurisprudence:
b) The concept of ‘attachment of jeopardy’ defines a point in
criminal proceedings at which the purposes and policies of the
Double Jeopardy Clause are implicated. Jeopardy does not attach
until a defendant is put to trial, which in a jury trial occurs when the
jury is empaneled and sworn and in a nonjury trial when the court
begins to hear evidence. Pp. 1062—1063.
(c) Jeopardy had not attached in this case when the District Court
dismissed the indictment, because petitioner had not then been put
to trial. There had been no waiver of a jury trial; the court had no
power to determine petitioner's guilt or innocence; and petitioner's
motion was premised on the belief that its consideration before trial
would serve the ‘expeditious administration of justice.’ P. 1063.
(Syllabus, 420 U.S. at 478). That describes the situation in this case: the indictment was
dismissed before the case was tried. No evidence was ever presented and therefore jeopardy did
not attach.
Gavieres is not to the contrary. In that case the plaintiff in error sought protection from a
second punishment for the same offense under a statute that effectively extended the Double
Jeopardy Clause to the Phillipines. Although the same transaction was involved, the Supreme
Court held the second trial involved a second different offense. The Supreme Court’s opinion
effectively applied to the statute in 1911 the test later adopted for whether two offenses
constitute the same offense for Double Jeopardy purposes: “whether each offense contains an
element not contained in the other.” United States v. Dixon, 509 U.S. 688, 696 (1993);
Blockburger v. United States, 284 U.S. 299, 304 (1932).
Petitioner has not shown that the Fifth District’s decision is contrary to or an objectively
unreasonable application of Supreme Court precedent. His first Ground for Relief should
therefore be dismissed.
Ground Two: Denial of Speedy Trial
In his Second Ground for Relief, Carroll appears1 to be claiming he was denied his right to
a speedy trial. The Fifth District denied this claim, holding Carroll had waived it by pleading
guilty. Carroll, supra, at ¶ 13. Respondent relies on that waiver, and Carroll admits he has never
challenged the binding nature of his guilty plea (Traverse, ECF No. 10, PageID 358). However,
he argues, a guilty plea only waives non-jurisdictional issues and Ohio Revised Code § 2941.401
is jurisdictional under Ohio law (Traverse, ECF No. 10, PageID citing State v. Bellman, 86
Ohio St. 3d 208, 210 (1999)).
Justice Cook’s opinion in Bellman that Ohio Revised Code § 2941.401 is jurisdictional is
dictum. That is to say, the case did not present the question whether the statute is jurisdictional,
whether it created a liberty interest under the Fourteenth Amendment, and whether it could be
waived by a plea of guilty. Indeed, Carroll never cited Bellman in his direct appeal brief.
The Magistrate Judge concludes that Carroll’s claim that Ohio Revised Code § 2941.401
creates a constitutionally-protected liberty interest is procedurally defaulted. That is to say, as
Respondent argues, Carroll’s speedy trial claim was presented to the Ohio courts solely as a claim
under Ohio law and not as a federal constitutional claim. Of course when it is considered solely
as an Ohio law claim, the interpretation of the Fifth District is binding on us. Bradshaw v. Richey,
546 U.S. 74 (2005).
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
1 The Magistrate Judge does not understand the use of the term “a fortiori” in this claim.
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). “[A] federal court may not review federal claims
that were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020),
citing Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017)).
To preserve a federal constitutional claim for presentation in habeas corpus, the claim must
be "fairly presented" to the state courts in a way which provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by
Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.
1991). The claim must be fairly presented at every stage of the state appellate process. Wagner v.
Smith, 581 F.3d 410, 418 (6th Cir. 2009).
As Respondent points out, Carroll’s speedy trial claim was presented to the Ohio courts
purely as a question of statutory construction of Ohio statutes and therefore as a question of state
law. Carroll has presented no argument that this default is somehow excused by cause and
prejudice. Therefore his Second Ground for Relief should be dismissed with prejudice.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
February 17, 2023.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make
objections in accordance with this procedure may forfeit rights on appeal.
s/ Michael R. Merz
United States Magistrate Judge