McIntyre v. Schweitzer

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LEWIS LEROY MCINTYRE JR., ) CASE NO. 5:20-cv-02577

)

Petitioner, ) JUDGE DAVID A. RUIZ

)

V. )

)

WARDEN TOM SCHWEITZER, )

) MEMORANDUM OPINION AND ORDER

Respondent. )

)

This matter is before the Court on the Report and Recommendation of Magistrate Judge

Darrell A. Clay. (R. 47). Petitioner Lewis Leroy McIntyre Jr., represented by counsel, filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 12, 2020, raising

six grounds for relief. (R. 1). On September 30, 2021, the Magistrate Judge stayed this case. (R.

21). The District Judge previously assigned to this matter overruled objections to the Magistrate

Judge’s decision to stay this matter. (R. 24).' Subsequently, Petitioner moved to dismiss all

grounds for relief previously raised, except for the one raised in ground two of his petition,

which the Magistrate Judge granted. (R. 34 & 36). At the Magistrate Judge’s direction, Petitioner

filed an amended habeas petition on August 9, 2022. (R. 37).

Petitioner’s sole ground for relief asserts as follows:

MclIntyre’s rights to due process and equal protection under the 14th Amendment

! This matter was reassigned to the undersigned District Judge on February 22, 2022.

were violated as his statutory right, under ORC 2953.02, to direct appellate

review of his February 3, 2016 judgment of conviction, was frustrated by the

Ninth District Court of Appeals, sua sponte and without advance notice or

warning, arbitrarily and capriciously refusing to address his assignments of errors

on the merits.

(R. 38, PageID# 636).

The Magistrate Judge’s subsequent Report and Recommendation (R&R) recommends

dismissing the petition as untimely. (R. 47). Alternatively, the R&R recommends dismissing

Petitioner’s sole ground for relief on the merits. Id. Petitioner filed objections to the R&R,

followed by a supplement to the objections. (R. 50 & 51). For the reasons set forth herein,

Petitioner’s objections are overruled and the R&R is adopted.

I.Standard of Review for a Magistrate Judge’s Report and Recommendation

The applicable standard of review of a magistrate judge’s report and recommendation

depends upon whether objections were made to that report. When objections are made to a report

and recommendation of a magistrate judge, the district court conducts a de novo review. Fed. R.

Civ. P. 72(b)(3) states:

Resolving Objections. The district judge must determine de novo any part of the

magistrate judge’s disposition that has been properly objected to. The district

judge may accept, reject, or modify the recommended disposition; receive further

evidence; or return the matter to the magistrate judge with instructions.

The text of Rule 72(b)(3) addresses only the review of reports to which objections have

been made, but does not specify any standard of review for those reports to which no objections

have lodged. The Advisory Committee on Civil Rules commented on a district court’s review of

unopposed reports by magistrate judges. In regard to Rule 72(b), the Advisory Committee stated:

“When no timely objection is filed, the court need only satisfy itself that there is no clear error on

the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 Advisory

C ommittee’s notes (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.

1974), cert. denied, 419 U.S. 879).

II.Procedural History

The Report and Recommendation contains a thorough and exhaustive recitation of this

matter’s long and, at times, convoluted procedural history. (R. 47, PageID# 4062-4079).

Petitioner’s objections acknowledge that the R&R’s recitation is an “overall accurate recitation.”

(R. 50, PageID# 4114). The Court declines to recount the case’s entire procedural background in

this opinion, but does include infra select portions of the procedural history as set forth by the

state appellate court for purposes of context.

{¶ 2} This matter arises from series of clerical mistakes, each compounding upon

the previous. Much of the history of this case has been set forth by this Court in

previous appeals. However, the procedural history as relevant to this appeal is as

follows.

{¶ 3} On February 7, 1991, the Summit County Grand Jury filed an open

indictment (“initial indictment”), charging McIntyre for felonious assault in

violation of former R.C. 2903.11(A)(2), with an attached firearm specification

and a prior aggravated felony specification, listing G.T. as the victim.

{¶ 4} On February 27, 1991, the grand jury issued secret supplement one,

charging McIntyre with felonious assault in violation of former R.C.

2903.11(A)(2), with a firearm specification, listing R.T. as the victim (“secret

supplement one”). The firearm specification was identified as “specification one

to count one of supplement one”.

{¶ 5} On July 24, 1991, the grand jury filed a second supplemental indictment

(“supplement two”) to the initial indictment, adding a prior aggravated felony

specification to count one of supplement one and including the first significant

clerical mistake in this case. Although the charge of felonious assault in secret

supplement one already had a “specification one to count one of supplement one”

attached, supplement two also identified the prior aggravated felony specification

as “specification one to count one of supplement one”. Supplement two also

included a charge for aggravated burglary in violation of former R.C.

2911.11(A)(2) and (3), with a firearm specification attached and listing R.T. and

T.J. as victims. Additionally, “[b]efore trial, the trial court granted an oral motion

to amend one of the felonious-assault counts to add a second victim.” No entries

were ever filed journalizing the amendment.

{¶ 6} A jury trial commenced on the above charges on August 8, 1991. However,

McIntyre failed to appear for the second day of trial. Although defense counsel

moved for a continuance or a mistrial, those motions were overruled and the trial

continued in McIntyre’s absence.

{¶ 7} After deliberation, the jury returned a verdict finding McIntyre guilty of the

crime of felonious assault, as contained in count one of the initial indictment and

guilty of specification one (firearm). However, the jury found McIntyre not guilty

of specification two to count one (prior aggravated felony). The jury further found

McIntyre guilty of the crime of aggravated burglary, as contained in count one of

supplement two, with specification one to count one of supplement two (firearm).

Nonetheless, the jury was unable to reach a verdict as to the amended charge of

felonious assault against R.T. and a second victim as well as the related

specifications. Accordingly, the trial court “discharge[d] the jury without

prejudice in reference to the prosecution of those charges.”

{¶ 8} However, when the trial court memorialized the above verdict in its journal

entry dated August 18, 1991, and filed September 9, 1991, rather than stating that

the jury was unable to reach a decision as to the amended felonious assault in

amended count one of supplement one, the trial court instead stated that the jury

was “unable to reach a decision on a verdict as to the charge of FELONIOUS

ASSAULT, as contained in count one of supplement one[.]” Additionally, in

regard to the incorrectly labeled second “specification one to count one of

supplement one” the trial court incorrectly labeled that specification as

“specification one to count one of the supplement two to the indictment.”

(Emphasis added.) Thus leading to the second significant clerical error in this

case.

{¶ 9} Meanwhile, on August 14, 1991, McIntyre was arrested for assault. The

Summit County Grand Jury subsequently indicted McIntyre for failing to appear

at trial (“supplement three”), in violation of R.C. 2937.29. Additionally, on

August 28, 1991, the grand jury indicted McIntyre on charges of felonious

assault, in violation of R.C. 2903.11(A)(2), and having weapons under disability,

in violation of R.C. 2923.13(A)(2) (“supplement four”). Although McIntyre's new

felonious assault and having weapons while under disability charges were

unrelated to McIntyre's previous felonious assault or aggravated burglary charges,

the new indictments were filed under the same case number as the offenses for

which McIntyre was previously tried, but not yet sentenced.

{¶ 10} On September 9, 1991, the trial court filed a sentencing entry dated August

29, 1991, wherein the trial court sentenced McIntyre for the felonious assault and

aggravated robbery charges and related specifications for which the jury had

previously found him guilty. The August 29, 1991 sentencing entry did not

address the post-conviction indictments for failure to appear at trial, felonious

assault, or having weapons while under disability.

{¶ 11} On October 15, 1991, the Summit County Grand Jury filed a fifth

supplemental indictment (“supplement five”) adding a prior aggravated felony

specification to the charge for felonious assault as contained in supplement four,

and a specification for a prior offense of violence to the charge for having

weapons while under disability as contained in supplement four. Then, on May

19, 1992, the Summit County Grand Jury indicted McIntyre on another count of

felonious assault, in violation of R.C. 2903.11(A)(1)/(A)(2), with a prior

aggravated felony specification (“supplement six”).

{¶ 12} Finally, on May 22, 1992, the trial court filed a sentencing entry dated

May 21, 1992, memorializing a plea deal resolving all of McIntyre’s post-trial

indictments.2 McIntyre appealed his convictions, raising five assignments of

error. This Court, as well as the Supreme Court of Ohio, affirmed.

***

{¶ 14} Relevant to the current appeal, McIntyre filed a “motion to correct clerical

mistake in verdict journal entry arising from oversight or omission pursuant to

criminal rule 36(A)” on August 4, 2011. In his motion, McIntyre pointed out the

clerical error as to the specification(s) to count one of supplement one in the trial

court’s August 13, 1991 journal entry explaining the jury’s verdict. McIntyre did

not reference the amendment adding a second victim to the charge of felonious

assault in count one of supplement one. Thereafter, the trial court filed a nunc pro

tunc journal entry on October 11, 2001, attempting to correct the journal entry

dated August 13, 1991, and filed September 9, 1991. However, rather than

correcting the journal entry to reflect that the jury was unable to reach a verdict as

to the second “specification one to amended count one of supplement one” as

opposed to the referenced specification one to count one of supplement two, the

trial court instead deleted any reference to the specification.

***

{¶ 16} In the interim, on June 14, 2012, McIntyre filed [a motion,] [but] [t]he trial

court determined that it lacked jurisdiction to consider McIntyre’s motion because

his appeal of the October 11, 2001 nunc pro tunc entry was still before this Court

and denied the motions. Nonetheless, the State filed a memorandum in response,

stating that the motions were moot because although McIntyre “wants to go to

trial on a supplemental count upon which the jury could not reach a verdict” the

state would not retry the count and that “count of felonious assault with

2 Petitioner pleaded guilty to an assault charge and received a sentence of eighteen months to run

concurrently with his other convictions. (R. 38-2, PageID# 942-944).

specification one, count one of supplement one should be dismissed without

prejudice.” Accordingly, on June 28, 2012, the trial court dismissed the charge of

felonious assault, “as contained in Count One of Supplement One to the

Indictment, as well as the Specification One to Count One of Supplement One to

the Indictment.” Thus, dismissing the supplemental charge of felonious assault

rather than the amended charge of felonious assault. Additionally, although we

noted above that there were two “specification one to count one of supplement

one” the State’s motion and the trial court’s entry dismissing the felonious assault

did not reference the multiple specifications.

***

{¶ 18} Thereafter, 23 years after he was convicted, McIntyre filed a petition with

the Supreme Court of Ohio seeking a writ of mandamus compelling the issuance

of a final, appealable order in the underlying case and a writ of prohibition for the

purported purpose of curing a number alleged errors in the criminal proceedings.

Although the State argued that McIntyre’s claims were barred by res judicata, a

plurality [of] the Supreme Court of Ohio concluded that res judicata did not apply

to McIntyre’s petition for a writ of mandamus because the trial court had never

issued a final appealable order because “[i]n order to fashion a final appealable

order * * * one would have to consult at least three separate documents in

violation of the Baker one-document rule” and because the amended felonious

assault charge in count one of supplement one was not “addressed in any court

order.” Accordingly, the Supreme Court issued a peremptory writ directing the

Summit County Court of Common Pleas to issue a final, appealable order

disposing of all the charges against McIntyre, but dismissed the request for a writ

of prohibition as premature.

{¶ 19} On remand, the trial court issued a journal entry on February 3, 2016,

pursuant to the Supreme Court’s directive that consolidated the relevant journal

entries into one document.

State v. McIntyre, 2018-Ohio-2001, ¶¶ 2-19, 2018 WL 2341004 (Ohio Ct. App. May 23, 2018)

(internal citations omitted).

The state appellate court found Petitioner’s claims were barred by res judicata, as they

could have been raised on his direct appeal, explaining that “the Supreme Court of Ohio ‘has

consistently regarded Crim.R. 32(C) errors as clerical mistakes subject to nunc pro tunc

corrections.’” 2018-Ohio-2001 at ¶23 (citations omitted). The state appellate court further

explained that “[a]ccordingly, ‘where a trial court issues a corrected journal entry to comply with

R ule 32, a defendant who has already had the benefit of a direct appeal cannot raise any and all

claims of error in successive appeals. * * * In such circumstances, res judicata remains

applicable and the defendant is not entitled to a second bite at the apple.’” Id. (citations omitted).

Petitioner’s motions for reconsideration, en banc consideration, and to certify a conflict were

denied. (R. 38-2 , PageID# 2478-87).

Subsequently, Petitioner appealed the state appellate court’s res judicata decision arguing

that the “law of the case” doctrine applied and that the state appellate court’s decision

contradicted the Supreme Court’s earlier decision (R. 38-2, PageID# 2503-2505), but the Ohio

Supreme Court declined to accept jurisdiction on November 12, 2019. State v. McIntyre, 2019-

Ohio-4600, 134 N.E.3d 203 (2019) (table)).

In the interim, Petitioner filed a state habeas corpus petition with the Ohio Supreme

Court, arguing that he should have been resentenced pursuant to statutes that were in effect in

2016, rather than those in effect at the time of his conviction. On July 2, 2020, the Ohio Supreme

Court denied his petition, explaining that habeas remedies are not available when there is an

adequate remedy in the ordinary course of law, and that the alleged sentencing errors he

complained of “are not jurisdictional and are not cognizable in habeas corpus.” McIntyre v

Hooks, 165 N.E.3d 229, 232 (Ohio 2020). Five days later, on July 7, 202, the Ohio Supreme

Court also denied Petitioner’s motion for reconsideration of its November 12, 2019 decision

declining to accept jurisdiction. (R. 38-3, PageID# 3629).

III.Analysis

A. Petitioner’s Alleged Errors of State Law

As noted above, Petitioner’s sole remaining ground for relief alleges that he was deprived

of due process and equal protection under the 14th Amendment when the state appellate court

fo und his assignments of error were barred by res judicata, thereby frustrating his appeal. (R.

37). However, a closer examination of Petitioner’s amended petition and objections reveals that

his arguments, in actuality, are firmly rooted in alleged violations of state law. (R. 37 & 50).

Petitioner contends the state appellate court failed to defer to the ruling of a higher state court;

that it improperly construed the trial court’s 2016 sentencing as a nunc pro tunc entry; and

apparently disagrees with the state appellate court’s application of Ohio Criminal Rule 32(C) and

Ohio case law. Id. Although Petitioner attempts to couch his sole ground for relief as a federal

claim for habeas relief, Petitioner’s objections reveal he is in actuality challenging the state

appellate court’s application of state law where he argues that “there was only one reasonable

interpretation of State ex rel. McIntyre[,] [that] [t]he Ohio Supreme Court said that res judicata

did not apply to McIntyre’s case.” (R. 50, PageID# 4121). Petitioner further argued that “[w]hen

the Ohio Supreme Court interpretation of state law is properly adopted by this Court, then it

becomes very clear that McIntyre’s appeal of the February 3, 2016 final appealable order was the

first direct appeal….” Id. at PageID# 4123. Thus, it is apparent that Petitioner is asking this

Court to override the state appellate court’s interpretation of state law.

However, it is well settled that “federal habeas corpus relief does not lie for errors of state

law.” Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991) (quoting

Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 111 L. Ed. 2d 606 (1990)); see also Howard

v. White, 76 F. App'x 52, 53 (6th Cir. 2003). As observed by another district court in this Circuit:

applying Ohio

Ohio law provides that an issue that was raised or could have been raised on

direct appeal is barred from consideration in a post-conviction proceeding by the

doctrine of res judicata. See State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104,

105-06 (Ohio 1967) (syllabus); State v. Combs, 100 Ohio App. 3d 90, 652 N.E.2d

205, 209 (Ohio App. 1 Dist. 1994) (holding that res judicata stops post-conviction

relief for claims that could have been raised on direct appeal).

***

Petitioner argued on appeal of the denial of his post-conviction petition and in

Ground Four that the trial court misapplied res judicata to his claims. However, as

noted in the October 4, 2021 Report and Recommendation, errors in post-

conviction petitions are not cognizable in federal habeas corpus. (Doc. 47 at

PageID 564-65). Furthermore, “[g]enerally, a federal habeas court sitting in

review of a state-court judgment should not second guess a state court’s decision

concerning matters of state law.” Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir.

2001) (noting that Ohio’s res judicata rule is a matter of state law).

Brown v. Warden, Chillicothe Corr. Inst., No. 1:17-cv-583, 2022 U.S. Dist. LEXIS 146948, at

*9, 2022 WL 3369531 (S.D. Ohio Aug. 16, 2022). “Because our court treats state court

interpretations of state law with deference, we will not disturb the Ohio state court’s application

of its own res judicata law.” Avery v. Wainwright, No. 20-3530, 2022 U.S. App. LEXIS 12867,

at *23, 2022 WL 1498431 (6th Cir. May 12, 2022) (citing Hutchison v. Marshall, 744 F.2d 44,

46 (6th Cir. 1984)).

The Magistrate Judge correctly determined that “[i]nterpreting state law, the Ninth

District concluded the trial court’s entry consolidating Mr. McIntyre’s convictions and sentences,

fixing clerical errors by nunc pro tunc entry to comply with Criminal Rule 32(C), and dismissing

an unresolved specification that did not affect any new substantive right did not preclude the

application of res judicata to his 2016 claims.” (R. 47, PageID# 4093-94). It was appropriate for

the R&R to defer to the state court’s interpretation of state law.

After concluding that Petitioner “received the benefit of direct review of the claims he

raised in 1991,” the R&R found that “[a]t the core of [Petitioner’s] argument is the unfounded

assertion that defendants must be allowed to receive direct review of additional claims when the

state trial court issues a final appealable order disposing of all charges, but otherwise does not

su bstantively change the convictions or the sentence. No such federal precedent establishes a

constitutional right to direct review of new issues in such circumstances.” Id. at PageID# 4094-

95. The Court agrees. Petitioner’s objections tellingly fail to address this shortcoming, and does

not point to any clearly established law suggesting such a rights exists. His alleged errors of state

law are simply not cognizable upon federal habeas review.

Instead, Petitioner makes the unconvincing argument that the Magistrate Judge should

have ignored the state appellate court’s res judicata finding and found it to be inconsistent with

the Ohio Supreme Court’s 2015 decision that led to the 2016 trial court sentencing entry and/or

inconsistent with the Ohio Supreme Court’s 2020 decision denying Petitioner’s state habeas

corpus petition. (R. 50, PageID# 4114,4117-4123).

There are two major flaws with Petitioner’s argument, one flows from the other. First,

Petitioner, in appealing the state appellate court’s 2018 decision, made the same state law

arguments before the Ohio Supreme Court that he makes here. The Ohio Supreme Court, had it

perceived a glaring error in the lower court’s decision for failure to follow its previous order,

could have ruled so. Instead, it declined jurisdiction to hear the appeal.

Second, the “look-through” presumption in habeas cases requires this Court to treat the

Ohio Supreme Court’s decision declining to accept jurisdiction as resting on the same grounds as

the state appellate court’s decision. Another district court recently rejected objections to an R&R

that challenged the Magistrate Judge’s finding that the Ohio Supreme Court adjudicated his

claims on the merits when it declined to accept jurisdiction of his appeal. See Speicher v. Hill,

No. 3:21-CV-01341, 2024 WL 4188300, at *5 (N.D. Ohio Sept. 12, 2024) (Gwin, J.). Petitioner

herein suggests the R&R should have essentially looked past the direct appeal of the state

appellate court’s 2018 decision and the Ohio Supreme Court’s decision not to accept jurisdiction,

as well as its denial of Petitioner’s motion for reconsideration, and instead infer from other

decisions of the same court that the Ohio Supreme Court would have overturned the state

appellate court’s res judicata finding had it accepted the appeal that it declined to accept.

As astutely recognized in Speicher, “[such an] objection misconstrues widely recognized

federal habeas law.” Speicher, 2024 WL 4188300 at *5.

The United States Supreme Court has adopted a “look-through” presumption for §

2254 petitions. “Where there has been one reasoned state judgment rejecting a

federal claim, later unexplained orders upholding that judgment or rejecting the

same claim rest upon the same ground.” So, in deciding whether federal habeas

relief is warranted, district courts must look to the “last explained state-court

judgment” on the petitioner's federal claim.

When the Ohio Supreme Court declined to accept jurisdiction of [Petitioner’s]

appeal without further comment, it left the Ohio Court of Appeals’ opinion as the

last reasoned decision on [Petitioner’s] claims. The Ohio Supreme Court’s decline

of jurisdiction therefore “rest[ed] upon the same ground” as the Court of Appeals’

opinion. The R&R appropriately based its analysis of [Petitioner’s] claims on the

Ohio Court of Appeals’ opinion.

Speicher v. Hill, No. 3:21-CV-01341, 2024 WL 4188300, at *5 (N.D. Ohio Sept. 12, 2024)

(footnotes omitted); see also Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594, 115

L. Ed. 2d 706 (1991).

Here too, the R&R appropriately based its analysis of Petitioner’s claims on the state

appellate court’s opinion. The Supreme Court’s admonition required the Magistrate Judge to

presume that the Ohio Supreme Court’s decision declining to accept jurisdiction essentially

rested upon the same basis. Petitioner’s objections, which insists the Magistrate Judge should

have tried to glean from other decisions what the Supreme Court of Ohio would have done had it

accepted the appeal, are overruled.

B. Lack of Fair Presentation

Even if the Court were to assume for the sake of argument that Petitioner’s sole ground

fo r relief centered on clearly established federal law rather than alleged errors of state law, the

Court would have to deny the petition as such claims were not fairly presented to the state courts.

Although Respondent identifies this issue, the supporting argument is limited. (R. 38, PageID#

686-688, 703-704). Nevertheless, a court may raise the issue sua sponte.

The district court can and must raise the exhaustion issue sua sponte when it

clearly appears that habeas claims have not been presented to the state courts. See

Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen v. Perini, 424 F.2d

134 138-39 (6th Cir. 1970).

Thompson v. Douglas, No. 1:25-cv-68, 2025 U.S. Dist. LEXIS 14595, at *4-5 (W.D. Mich. Jan.

28, 2025); Brown v. Ohio, No. 1:10cv1030, 2010 U.S. Dist. LEXIS 73441, at *2 (N.D. Ohio July

20, 2010) (“The exhaustion issue must be raised by the district court when it clearly appears that

habeas claims have not been presented to the state courts.”) (Lioi, J.)

In order for a federal habeas claim to have been considered “fairly presented” to a state’s

courts, the claim must have been raised before the state’s highest court, as only in this manner

will the state courts have been provided with a fair opportunity to pass upon and correct alleged

violations of federal rights. See Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 74 L. Ed. 2d

3 (1982); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Coleman

v. Thompson, 501 U.S. 722, 735, 111 S. Ct. 2546, 115 L. Ed. 2d 640(1991).

To fairly present a claim to a state court a petitioner must assert both the legal and factual

basis for his claim. See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Accordingly, a

“petitioner must present his claim to the state courts as a federal constitutional issue--not merely

as an issue arising under state law.” Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). A

petitioner can take four actions in his brief which are significant to the determination as to

whether a claim has been fairly presented as a federal constitutional claim: “(1) reliance upon

fe deral 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.” Newton v. Million, 349 F.3d 873, 877 (6th Cir.

2003), abrogated on other grounds as recognized in English v. Berghuis, 529 Fed. App'x 734,

744-45 (6th Cir. Jul. 10, 2013).

Petitioner’s first opportunity to argue that he was denied direct appellate review resulting

in a violation of his due process rights and equal protection under the 14th Amendment was on

his direct appeal from the state appellate court’s May 2018 opinion. Petitioner did file an appeal,

but his memorandum in support of jurisdiction makes no mention at all of an equal protection

violation or a denial of a right to an appeal. Rather, Petitioner makes two isolated and

undeveloped assertions that his due process rights were violated in his introductory explanation

as to why he believes the case to be of great public interest or raising a substantial constitutional

question. (R. 38-2, PageID# 2492, 2494). He does not touch on any due process argument in the

“Law and Argument” portion of his memorandum in support of jurisdiction, which is focused

exclusively on an alleged violation of the law-of-the-case doctrine and his belief that, under Ohio

law, his 2016 sentencing entry did not constitute a final appealable order. Id. at PageID# 2492-

2494, 2503-2506.

Significantly, Petitioner did not rely upon any federal or state cases employing

constitutional analysis, did not phrase his argument in terms of federal constitutional law or

denial of a specific constitutional right, nor did he allege facts well within the mainstream of

constitutional law.

The Sixth Circuit has explained that “[o]ur cases view [petitioner’s] isolated allusion to

‘c onstitutional rights to due process and a fair trial’ as failing to afford the [state] courts adequate

notice that [he] intended to invoke the Due Process Clause.” Katt v. Lafler, 271 Fed. App'x 479,

482 (6th Cir. 2008) (citing Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006)); Blackmon v.

Booker, 394 F.3d 399, 400 (6th Cir. 2004) (“[G]eneral allegations of the denial of rights to a ‘fair

trial’ and ‘due process’ do not ‘fairly present claims’ that specific constitutional rights were

violated.”); Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995) (“A lawyer need not develop a

constitutional argument at length, but he must make one; the words ‘due process’ are not an

argument.”)).

In the case at bar, Petitioner merely mentioning the words “due process” without any

accompanying argument of a federal constitutional dimension does not satisfy the fair

presentation requirement. “Merely using talismanic constitutional phrases like ‘fair trial’ or ‘due

process of law’ does not constitute raising a federal constitutional issue.” Almedom v. Hill, No.

2:22-cv-2229, 2023 U.S. Dist. LEXIS 93123, at *4-5 (S.D. Ohio May 26, 2023) (citations

omitted).

“[T]he crux of Petitioner’s claim lies in Ohio state sentencing laws and appellate

procedure, not with federal constitutional rights. Without more, ‘a mere error of state law is not a

denial of due process.’” Dority v. Bunting, 2013 U.S. Dist. LEXIS 154228 at *15 (N.D. Ohio,

Sep. 18, 2013) (quoting Engle v. Isaac, 456 U.S. 107, 121 n.21, 102 S. Ct. 1558, 71 L. Ed. 2d

783 (1982)). Therefore, the Court alternatively finds that Petitioner’s sole ground for relief is

subject to dismissal for lack of fair presentation.

C. AEDPA’s Statute of Limitations

Finally, in the alternative, the Court agrees that the present habeas petition is untimely

filed. As noted in the R&R, the statute of limitations expired in July of 1993, and Petitioner has

no t argued that equitable tolling applies. (R. 47, PageID# 4088-89).

The R&R did note that the habeas petition might be timely if the 2016 nunc pro tunc

sentencing order constituted a new judgment, as that could restart the statute of limitations

altogether. Id. at PageID# 4089. Petitioner’s objections focus on his above rejected argument that

the state appellate court’s finding—that his appeal from a 2016 sentencing entry was barred by

res judicata—was incorrect based on Petitioner’s own interpretations of two Ohio Supreme Court

rulings in his case (but not the Supreme Court’s decision to decline jurisdiction of the actual

appeal from the state appellate court decision he challenges). As noted above, the Court defers to

state court rulings on matters of state law, such as state appellate rules or sentencing rules.

Petitioner argues that the 2016 nun pro tunc sentencing restarted the statute of limitations

based on the authority of Crangle v. Kelly, 838 F.3d 673, 678 (6th Cir. 2016), which found that

“a new sentence not only permits a challenge to either the new sentence or the undisturbed

conviction, but also restarts AEDPA’s one-year window to challenge that judgment.” The R&R

tackled this argument head on, noting that the Crangle decision “distinguished a limited

resentencing that benefits a defendant, such as a sentence reduction, from a ‘new, worse-than-

before-sentence’ that ‘amounts to a new judgment.’” (R. 47, PageID# 4090, citing Crangle, 838

F.3d at 679-680)).

The R&R concluded that “Crangle does not apply here. The nunc pro tunc order did not

alter [Petitioner’s] sentence or impose a new sentence on him. Instead, the order combined

documents, corrected clerical errors to reflect the trial court’s actions more accurately, and

dismissed previously unresolved charges.” (R. 47, PageID# 4090). This Court agrees. In

Crangle, the Sixth Circuit explicitly stated that “[i]f the … nunc pro tunc order merely corrected

a record to accurately reflect the court’s actions, it would not be a new sentence that resets the

st atute of limitations under § 2244(d)(1)(A).” 838 F.3d at 680.

In his objections, Petitioner attempts to argue the 2016 entry was a new, worse-than-

before-sentence, because it added in an 18-month sentence, albeit concurrent, from the 1992

entry on another charge. (R. 50, PageID# 4120). The Court disagrees. The Court fails to see how

two separate sentencing entries, even if technically in the same case number, that were entered

decades ago, became a “new” sentence simply because they were combined at the instruction the

Ohio Supreme Court. Moreover, even assuming arguendo that the consolidated nunc pro tunc

sentencing order is “new,” it does not follow Petitioner’s sentence is worse than before, as the

18-month concurrent sentence had not been added to his sentence the way post-release control

was added in Crangle. The R&R accurately stated that the 2016 order merely “combined

documents, corrected clerical errors to reflect the trial court’s actions more accurately.” (R. 47,

PageID# 4090). No worse-than-before sentence was created. Therefore, Petitioner was not

entitled to restart the statute of AEDPA limitations under Crangle.

IV.Conclusion

The Court has carefully reviewed the the Report and Recommendation and Petitioner’s

objections in accordance with the aforementioned standard, finds no error, and agrees with the

findings set forth in the Report and Recommendation. The Court agrees that Petitioner’s sole

ground for relief fails to state a cognizable claim, it was not fairly presented to the state’s courts,

and it was filed beyond the statute of limitations.

The Magistrate Judge’s Report and Recommendation (R. 47) is hereby ADOPTED and

Petitioner’s objections are overruled. The matter is hereby DISMISSED.

Further, the Court certifies that an appeal from this decision could not be taken in good

faith and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. §§

19 15(a)(3), 2253(c); Fed. R. App. P. 22(b).

IT IS SO ORDERED.

Date: March 14, 2025 s/ David A. Ruiz

David A. Ruiz

United States District Judge