Opinion

Wampler v. Warden, London Correctional Institution

Court
District Court, S.D. Ohio
Filed
Jun 27, 2023
Cited by
0 cases
Authority
More cited than 28.4%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

CHARLES KEITH WAMPLER,

Petitioner, : Case No. 3:22-cv-174

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

WARDEN, London Correctional

Institution

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus action was brought pro se by Petitioner Charles Keith Wampler under

28 U.S.C. § 2254 to obtain relief from his conviction in the Montgomery County Court of Common

Pleas on charges of aggravated murder, rape, abduction, and abuse of a corpse and consequent

sentence.

On March 6, 2023, the undersigned recommended the Petition be dismissed without

prejudice because it was directed to a judgment whose finality had been disrupted by a grant of

resentencing by Montgomery County Common Pleas Judge Mary Wiseman (Report, ECF No. 11).

Petitioner filed lengthy Objections (ECF No. 13), but District Judge Rose overruled the Objections

and adopted the recommendation to dismiss without prejudice (ECF No. 14). Petitioner has

appealed (6th Cir. Case No. 23-3382).

The Report did not include a recommendation on issuance of a certificate of appealability

and no ruling on that question is made in the judgment. This omission has been called to the

Court’s attention by the Sixth Circuit. Rule 11 of the Rules Governing § 2254 Cases requires a

district court to “issue or deny a certificate of appealability when it enters a final order adverse to

the applicant.” Although this Court did not reach the merits of Petitioner’s claims and could not

because of the exhaustion doctrine, Petitioner obviously regards the decision as adverse. Therefore

the Court should file an amended judgment dealing with the certificate of appealability issue.

A petitioner seeking to appeal an adverse ruling in the district court on a petition for writ of

habeas corpus or on a § 2255 motion to vacate must obtain a certificate of appealability before

proceeding. 28 U.S.C. § 2253 as amended by the Antiterrorism and Effective Death Penalty Act

of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), provides in pertinent part:

(c)

(1) Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals

from—

(A) the final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a

State court; or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only

if the applicant has made a substantial showing of the denial of a

constitutional right.

(2) The certificate of appealability under paragraph (1) shall

indicate which specific issue or issues satisfy the showing

required by paragraph (2).

To obtain a certificate of appealability, a petitioner must show at least that jurists of reason

would find it debatable whether the petition states a valid claim of denial of a constitutional right.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). That is, it must find that reasonable jurists would

find the district court’s assessment of the petitioner’s constitutional claims debatable or wrong or

that they warrant encouragement to proceed further. Banks v. Dretke, 540 U.S. 668, 705 (2004);

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Dufresne v. Palmer, 876 F.3d 248 (6th Cir. 2017).

In short, a court should not grant a certificate without some

substantial reason to think that the denial of relief might be incorrect.

Crucially, in applying this standard, a court must consider not only

the merits of the underlying constitutional claim but also any

procedural barriers to relief. Buck v. Davis, 137 S. Ct. 759, 777, 197

L. Ed. 2d 1 (2017); Slack [v. McDaniel], 529 U.S. at 484-85; see

also Dufresne v. Palmer, 876 F.3d 248, 254 (6th Cir. 2017). To put

it simply, a claim does not merit a certificate unless every

independent reason to deny the claim is reasonably debatable.

Moody v. United States, 958 F.3d 485 (6th Cir. 2020).

[T]he standards for a certificate are no mere technicality. Quite the

contrary. By authorizing extra appeals, improper certificates add to

the "profound societal costs" of habeas litigation while sapping

limited public resources. Calderon v. Thompson, 523 U.S. 538, 554,

118 S. Ct. 1489, 140 L. Ed. 2d 728 (1998) (quoting Smith v. Murray,

477 U.S. 527, 539, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986)). For

one, they divert our time and attention from the cases Congress

actually meant us to hear, often leading us to appoint counsel and

schedule argument in cases that we later find to be insubstantial. For

another, they require state and federal government attorneys to

devote their time and attention to defending appeals that should

never have existed. Plus, they may even harm those habeas

petitioners whose claims really do merit an appeal because it could

"prejudice the occasional meritorious [claim] to be buried in a flood

of worthless ones." Brown v. Allen, 344 U.S. 443, 537, 73 S. Ct. 397,

97 L. Ed. 469 (1953) (Jackson, J., concurring). In short, it's critical

that courts follow the rules Congress set.

Moody v. United States, 958 F.3d 485 (6th Cir. 2020).

Neither party briefed the question of appealability, so the Court must decide the question

on the basis of filings already made. As noted in the original Report, Judge Wiseman had granted

a motion for resentencing in the underlying case and set a hearing for March 31, 2023. Judge

Wiseman’s chambers advises today that the hearing has been re-set for July 1, 2023, so there is

not as yet an amended judgment in that case. As the undersigned wrote in the original Report:

Unless [Judge Wiseman] decides after hearing not to amend the

sentence, that hearing will result in a new judgment under which

Petitioner will be confined1.

Respondent concedes both that this new judgment will re-set the

statute of limitations and means the petitioner can challenge both his

new sentence and his underlying conviction (Return, ECF No. 7,

PageID 570, citing King v. Morgan, 807 F.3d 154, 156, 158 (6th Cir.

2015), and Freeman v. Wainwright, 959 F.3d 226, 229 (6th Cir.

2020)). What neither Respondent nor Petitioner in his Reply

discusses is the impact of having a new judgment will have on the

finality of his state court proceeding. The undersigned believes

Ohio law will make the new or amended judgment a new final

appealable order, but whether Petitioner or the State will choose to

appeal or what assignments of error will be raised are purely

speculative. To allow the state courts to decide these matters first is

one of the reasons for the exhaustion doctrine.

(Report, ECF No. 11, PageID 1792).

Faced with the probability of a new final appealable judgment in the Common Pleas Court,

this Court was faced with two possible choices. It could enter a stay pending exhaustion under

Rhines v. Weber, 544 U.S. 269 (2005), or it could dismiss without prejudice. A stay would have

had the disadvantage of allowing a case to remain open on our docket for an indefinite period of

time with mootness possible if Judge Wiseman decides not to amend.2 Dismissal without prejudice

has the advantage of clearing our docket and allowing the Ohio courts to address first Petitioner’s

constitutional claims directed at a new judgment. We did not have discretion to ignore the

exhaustion doctrine. The exhaustion requirement is not jurisdictional. Wyatt v. Leonard, 193 F.3d

876 (6th Cir. 1999). However, it is mandatory and must be addressed by the district court in all

prisoner cases before the merits are addressed. Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.

1998).

1 If Petitioner is sentenced to time served, the Court will face a mootness question which need not be addressed at this

time.

2 Without a new judgment, Wampler’s habeas corpus case would be barred by the statute of limitations.

Given that state of the law and the status of Petitioner’s case in the Common Pleas Court,

this Court’s choice of dismissal without prejudice is not one with which reasonable jurists would

disagree. It is therefore recommended that Petitioner be denied a certificate of appealability.

June 27, 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 recetved. 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

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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