Mobarak v. Warden Noble Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

SOLEIMAN MOBARAK,

Petitioner, : Case No. 2:24-cv-143

- vs - District Judge Michael H. Watson

Magistrate Judge Michael R. Merz

JAY FORSHEY, WARDEN,

Noble Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus action pursuant to 28 U.S.C. § 2254 in which Petitioner seeks relief

from his conviction in the Franklin County Court of Common Pleas (Case No. 12CR-5582) for

engaging in a pattern of corrupt activity, aggravated trafficking in drugs, and aggravated

possession of drugs and from his consequent sentence of thirty-five years imprisonment.

Status of Representation

Petition filed this action pro se on January 5, 20241. After the State had filed its Return of

Writ (ECF No. 5) and the Court had notified Petitioner of his reply/traverse deadline (ECF No. 6),

1 This is the date on which Petitioner claims he deposited the Petition in the prison mailing system (Petition, ECF No.

1, PageID 15). Although the Petition was not received and docketed until January 12, 2024, Mobarak is entitled to

the earlier filing date under the prison mailbox rule. Houston v. Lack, 487 U.S. 266 (1988); Cook v. Stegall, 295 F.3d

517, 521 (6th Cir. 2002). Respondent concedes the earlier date (Return, ECF No. 5, PageID 2309). The difference is

not material to the statute of limitations analysis offered below.

Petitioner filed a pro se request for extension of that date (ECF No. 7) which was granted in full

to April 22, 2024 (ECF No. 8). Eight days later Attorney Philip Pitzer entered his appearance as

counsel for Petitioner and included in his Notice of Appearance a request for a further extension

of time to file the traverse until May 8, 2024 (ECF No. 9). The undersigned denied the extension

without prejudice because Attorney Pitzer had not complied with S. D. Ohio Civ. R. 7.3(a) which

provides:

Motions for Extension of Time. Prior to filing any motion for an

extension of time, counsel shall consult with all parties (except

prisoners appearing pro se) whose interests might be affected by the

granting of such relief and solicit their consent to the extension. The

motion shall affirmatively state that such consultation has occurred

or was attempted in good faith and shall state whether the motion is

unopposed. If the extension is not opposed, the movant should

submit a proposed order to the Court in the form prescribed by S.D.

Ohio Civ. R. 7.4.

The denial was without prejudice to renewal after compliance. Attorney Pitzer never renewed the

motion.

The purpose of S. D. Ohio Civ. R. 7.3 is to promote civility in the practice of law and to

advise the Court whether it must wait to decide the motion until the time for opposition – twenty-

one days under S. D. Ohio Civ. R. 7.2 – has passed. Since motions for extension are often filed

shortly or very shortly before a deadline passes, non-compliance with Rule 7.3 presents the Court

with a dilemma. Opponents of motions are entitled to be heard before they are decided, but waiting

twenty-one days will usually mean the deadline has passed. Having court staff call opposing

counsel raises ex parte communication concerns. Typically when the Court denies an extension

on Rule 7.3 grounds, the non-complying attorney says “oops,” calls opposing counsel, obtains

agreement, and re-files the request as an unopposed motion. That did not happen here. Instead,

Petitioner filed his Traverse pro se, claiming the Magistrate Judge would not allow the sought

extension2 (Traverse, ECF No. 11, PageID 2333). The truth of the matter is the Magistrate Judge

would have readily granted the extension after compliance with S. D. Ohio Civ. R. 7.3 whether or

not opposing counsel agreed. But neither Petitioner nor Attorney Pitzer ever asked.

Going forward the Court will treat the Traverse as properly filed but pro se and expect that

Petitioner will be proceeding pro se through the rest of the case. He is not required to do so;

Attorney Pitzer or any other member of the bar of this Court may assume the representation.

However, the representation may not be hybrid with both attorney-filed and pro se papers.

Litigation History

On August 3, 2012, a Franklin County grand jury indicted Petitioner on one count of

aggravated trafficking in drugs in violation of Ohio Revised Code § 2925.03 (Count 1) and one

count of trafficking in “spice” in violation of Ohio Revised Code § 2925.03 (State Court Record,

ECF No. 4, Ex. 1). On October 31, 2012, a Franklin County grand jury indicted him again on one

count of engaging in a pattern of corrupt activity in violation of Ohio Revised Code § 2923.31

(Count 1), five counts of aggravated trafficking in drugs in violation of Ohio Revised Code §

2925.03 (Counts 2, 4, 6-7, 9), and four counts of aggravated possession of drugs in violation of

Ohio Revised Code § 2925.11 (Counts 3, 5, 8, 10). (Id., Exhibit 3).

The matter proceeded to trial at which time a jury found Petitioner not guilty on Counts 2,

3, and 4 of the renumbered indictment, but guilty on all other counts and he was sentenced to an

aggregate thirty-five years in prison. Petitioner appealed to the Ohio Tenth District Court of

2 “Although the Petitioner obtained Counsel to aid him in presenting and arguing his case, the District Court refused

to grant the Petitioner's Counsel an extension of time in order to learn the case and prepare. Therefore, the Petition is

forced to file his own Traverse . . . . Id.

Appeals which sustained Petitioner’s First Assignment of Error. State v. Mobarak, 2015 WL

4554370 (10th Dist. July 28, 2015)(copy at State Court Record, ECF No. 4, Ex. 19). The Ohio

Supreme Court accepted jurisdiction on the State’s appeal and reversed. State v. Mobarak, 150

Ohio St. 3d 26, 2016-Ohio-8372 (2016)(copy at State Court Record, ECF No. 4, Ex. 25). On

remand the Tenth District reinstated Petitioner’s remaining assignments of error and overruled

them, affirming the conviction. State v. Mobarak, 98 N.E.3d 1023, 2017-Ohio-7999 (10th Dist.

Sept. 29, 2017)(copy at State Court Record, ECF No. 4, Ex. 27). Mobarak did not seek review in

the Ohio Supreme Court.

On December 19, 2014, Mobarak filed a petition for post-conviction relief under Ohio

Revised Code § 2953.21 (State Court Record, ECF No. 4, Ex. 28). The Common Pleas Court

denied both the original and an amended petition. Id. at Ex. 35. The Tenth District affirmed and

Petitioner failed to appeal further. Id. at Ex. 42.

However, Mobarak did file a petition for writ of mandamus in the Tenth District seeking

an order that his conviction be vacated for lack of subject matter jurisdiction in the trial court.

State ex rel Mobarak v. Brown, 2024-Ohio-221 (Jan. 24, 2024). On appeal the Ohio Supreme

Court concluded Mobarak had not shown the Franklin County Common Pleas Court patently

lacked jurisdiction of the offenses charged against Mobarak, but also he could not invoke

mandamus because the had an available remedy at law.3

Mobarak filed his Petition in this case on January 5, 2024, pleading the following grounds

for relief:

Ground One: The Petitioner is actually innocent of any offense

defined in Ohio Revised Code Sections 2925.03, Aggravated

Trafficking in Drugs, and 2925.11, Aggravated Possession of Drugs,

3 This mandamus action is not discussed in the Return of Writ, but it is discussed here because Mobarak relies on

Justice Donnelly’s dissent. No other justice joined that dissent and the mandamus action is not relevant to the statute

of limitations question discussed infra.

name either Spice” or “ Bath Salts”, and he is in State custody in

violation of the Constitution or laws or treaties of the United States,

whereas his conviction, sentence, and imprisonment, are

unconstitutional and violate substantive and procedural Due Process

of Law, Equal Protection of Law, and other Rights under the United

States Constitution, and/or Federal Law, as determined by the

United States Supreme Court, where neither these statutes, nor any

other Ohio statute, identified either “Spice” or “Bath Salts” as a

“controlled substance analog” by either name or definition, until

after the date of the “offenses” listed in his indictment; and where

the statutes under which the Petitioner was charged failed to provide

the Petitioner, or any other average citizen affected by the statutes,

of the particular form of notice that “is in itself reasonably certain to

inform those affected.”

Ground Two: Ohio Revised Code Sections 2925.03, Aggravated

Trafficking in Drugs, and 2925.11, Aggravated Possession of Drugs,

are unconstitutional as applied to the Petitioner, resulting in the

Petitioner being in State custody in violation of the Constitution or

laws or treaties of the United States, whereas his conviction,

sentence, and imprisonment, are unconstitutional and in violation of

the Petitioner's substantive and procedural Due Process of Law,

Equal Protection of Law, and other Rights under the United States

Constitution, and/or Federal Law, as determined by the United

States Supreme Court, where no Ohio statute identified either

“Spice” or “Bath Salts” as a “controlled substance analog” by either

name or definition, until after the date of the “offenses” listed in his

indictment; and where the statutes under which the Petitioner was

charged failed to provide the Petitioner, or any other average citizen

affected by the statutes, of the particular form of notice that “is in

itself reasonably certain to inform those affected.”

Ground Three: The Petitioner is in State custody in violation of the

Constitution or laws or treaties of the United States as determined

by the United States Supreme Court, whereas the State Trial Court

lacked Subject Matter Jurisdiction over the “charges” set out in the

Petitioner's Indictment alleging that he possessed and trafficked

“Bath Salts”, “Spice”, and/or “APVP”, during a period of time when

no Ohio statute identified either “Bath Salts”, “Spice”, or “A-PVP”,

as a “controlled substance analog” by either name or definition, or

otherwise named or identified either substance as being included

within the statutory list of substances whose possession and/or sale

were prohibited by law, until after the date of the “offenses” listed

in his indictment, causing the Indictment, Judgment of Conviction,

and Sentence, to be void ab initio.

Ground Four: The Petitioner is actually innocent of Engaging in A

Pattern of Corrupt Activity, and he is in State custody in violation

of the Constitution or laws or treaties of the United States as

determined by the United States Supreme Court, whereas Engaging

in A Pattern of Corrupt Activity requires a valid conviction of at

least two or more underlying predicate offenses, and his conviction,

sentence, and imprisonment, are unconstitutional and violate

substantive and procedural Due Process of Law, Equal Protection of

Law, and other Rights under the United States Constitution, and/or

Federal Law, as determined by the United States Supreme Court,

where he is charged, convicted, and imprisoned for possessing and

trafficking in “Spice” or “Bath Salts”, and/ or “A-PVP”, during a

period of time when no Ohio statute identified either “Spice” or

“Bath Salts”, or “A-PVP”, as a “controlled substance analog” by

either name or definition, until after the date of the “offenses” listed

in his indictment; where the lack of any such definition and name of

substances preclude possession and sale of these substances from

being charged as criminal offenses as a result of the statutes under

which the Petitioner was charged having failed to provide the

Petitioner, or any other average citizen affected by the statutes, of

the particular form of notice that “is in itself reasonably certain to

inform those affected.”

Ground Five: The Petitioner is actually innocent of Engaging in

Pattern of Corrupt Activity (or RICO), and he is in State custody in

violation of the Constitution or laws or treaties of the United States

as determined by the United States Supreme Court, whereas his

conviction, sentence, and imprisonment, are unconstitutional and

violate substantive and procedural Due Process of Law, Equal

Protection of Law, and other Rights under the United States

Constitution, and/or Federal Law, where the lack of two or more

valid charges, and convictions, or underlying predicate offenses

deprived the State Trial Court of statutory jurisdiction over

Engaging in pattern of corrupt activity as a secondary offense,

causing the Petitioner's Indictment, conviction, and sentence, for

Engaging in pattern of corrupt activity to be void ab initio.

Ground Six: The adjudication of the Petitioner's claims in the

State's highest Court resulted in a decision that was contrary to, and

involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States; and

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

Ground Seven: The adjudication of the Petitioner's claims in the

State's highest Court resulted in a decision that was contrary to and

involved an unreasonable application of clearly established Federal

law, as determined by the Supreme Court of the United States; and

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding. With respect to the claims that were

adjudicated on the merits in State's highest court proceedings, which

resulted in the State Court of Appeals' decision being overturned,

and the Petitioner's conviction and sentence being reinstated, the

adjudication of the claim resulted in a decision that was contrary to,

and involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States; and resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding. As a result of the State having appealed to

the highest Court in Ohio, which overturned the State Court of

Appeals' decision that overturned the Petitioner's conviction, the

petitioner has no right under the law of the State to raise the

questions presented by any procedure available in the ordinary

course of Ohio law.

(Petition, ECF No. 1, PageID 20-28).

Analysis

Statute of Limitations

Respondent asserts Mobarak’s claims are barred by the one-year statute of limitations

enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,

110 Stat. 1214)(the "AEDPA"). As codified at 28 U.S.C. § 2244(d), the AEDPA provides:

(1) A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the

judgment of a State court. The limitation period shall run from

the latest of —

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or

laws of the United States is removed, if the applicant was

prevented from filing by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

(2) The time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period

of limitation under this subsection.

Respondent asserts Mobarak’s conviction became final forty-five days after the state

appellate court affirmed the trial court’s judgment on remand, or on November 13, 2017 (State

Court Record, ECF No. 4, Exhibit 27). The State concedes the statute of limitations was tolled by

the pendency of Mobarak’s post-conviction petition. As noted above, the trial court dismissed that

petition and the Tenth District affirmed that dismissal on January 28, 2020 (State Court Record,

ECF No. 4, Ex. 42). Mobarak’s time to appeal to the Supreme Court of Ohio expired forty-five

days later on March 13, 2020. Mobarak did not file his Petition in this Court until January 5, 2024.

Thus Respondent argues the Petition is untimely and should be dismissed.

Petitioner offers no objection to Respondent’s calculation of when his conviction became

final on direct review and the statute began to run. Instead he argues because the state trial court

lacked subject matter jurisdiction,

the judgment is void ab initio. . . . The law of the land that a void

judgment is void "even prior to reversal" shows that there is no need

for "equitable tolling", as a void judgment is always open to attack.”

. . . Further, the lack of subject jurisdiction of any court is an issue

and claim that cannot be waived by anything the Petitioner, courts,

or other parties may do or not do, and cannot be barred by any claim

of procedural bar, lack of diligence, etc.

(Traverse, ECF No. 11, PageID 2338-39).

As authority for this proposition, he relies on several Supreme Court decisions: Peirsoll v.

Elliott, 31 U.S. 95 (1832)(cited by Petitioner as Elliott v. Peirsol, 1 Pet. 328, 344); Old Wayne

Mutual Life Association v. McDonough, 204 U.S. 8 (1907); Vallely v. Northern Fire & Marine

Ins. Co., 254 U.S. 348, 353-354 (1920); and United States v. Cotton, 535 U.S. 625, 630 (2002).

Peirsoll does not address a void judgment, but a void deed.

In Old Wayne, judgment was obtained in Pennsylvania on a life insurance policy where

service of process had been made on the Pennsylvania insurance commissioner. Plaintiff then

sued in Indiana to collect on that judgment. The Supreme Court held the Pennsylvania court lacked

personal jurisdiction over the insurance company and the judgment sued on was therefore void.

The case did not involve habeas corpus, subject matter jurisdiction, or any statute of limitations.

In Vallely, the Supreme Court held that the then-extant bankruptcy act did not authorize

bankruptcy proceedings against an insurance company and the judgment declaring Northern Fire

bankrupt was void. The case did not involve habeas corpus or any statute of limitations. The

Court did hold that the bankruptcy court lacked subject matter jurisdiction, but did so in a

proceeding on a certified question from the Eighth Circuit Court of Appeals.

None of these three cases offers much instruction on the question central to the Warden’s

statute of limitations defense, to wit, can the authority of federal district court to inquire in habeas

into the validity of the judgment of conviction be limited by a statute of limitations?

Cotton is more instructive because it discusses the history of the writ of habeas corpus,

noting that the Supreme Court had stretched the concept of jurisdiction to hold that a defective

indictment did not confer jurisdiction in Ex Parte Bain,121 U.S. 1 (1887). The Court found that

conception of jurisdiction was

a product of an era in which this [Supreme] Court's authority to

review criminal convictions was greatly circumscribed. At the time

it was decided, a defendant could not obtain direct review of his

criminal conviction in the Supreme Court. See generally United

States v. Sanges, 144 U.S. 310, 319–322, 12 S.Ct. 609, 36 L.Ed. 445

(1892); L. Orfield, Criminal Appeals in America 244–246 (1939).

The Court's authority to issue a writ of habeas corpus was limited to

cases in which the convicting court had no jurisdiction to render the

judgment which it gave.” Bain, supra, at 3, 7 S.Ct. 781; see also

Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S.Ct. 1827, 36 L.Ed.2d

439 (1973). In 1887, therefore, this Court could examine

constitutional errors in a criminal trial only on a writ of habeas

corpus, and only then if it deemed the error “jurisdictional.” The

Court's desire to correct obvious constitutional violations led to a

“somewhat expansive notion of ‘jurisdiction,’ ” Custis v. United

States, 511 U.S. 485, 494, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994),

which was “more a fiction than anything else,” Wainwright v. Sykes,

433 U.S. 72, 79, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

545 U.S. at 630. Cotton expressly overruled Bain and held that errors in an indictment do not

deprive a court of jurisdiction. Although Bain would have supported Mobarak’s claim, Cotton

does not.

The federal courts gained habeas corpus jurisdiction over state convictions only with

Reconstruction; early examples of the Supreme Court’s granting relief when it found the state

court lacked jurisdiction are Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873), and Ex parte Siebold,

100 U.S. 371 (1879). But Congress placed no statute of limitations on habeas corpus cases until

it enacted the AEDPA in 1996 and in enacting that statute, it made no exception for cases claiming

the state court lacked jurisdiction. Petitioner has cited no case in which the Supreme Court, or

indeed any lower federal court, has read into § 2244(d) an exception for cases claiming lack of

Jurisdiction in the state court of conviction. Lack of jurisdiction in the convicting court is a

cognizable claim in habeas under the Due Process Clause of the Fourteenth Amendment. But a

federal habeas court can only decide that claim in a case that is timely brought. This case was not

and should therefore be dismissed with prejudice as barred by the statute of limitations.

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.

April 22, 2024.

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

1]