Bragg v. Spatny

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOHN T. BRAGG, CASE NO. 1:24-cv-1388

Petitioner, DISTRICT JUDGE

PAMELA A. BARKER

vs.

MAGISTRATE JUDGE

WARDEN JERRY SPATNY, JAMES E. GRIMES JR.

Respondent.

REPORT AND

RECOMMENDATION

John T. Bragg filed a Petition under 28 U.S.C. § 2254 for a Writ of

Habeas Corpus. Doc. 1. Bragg is currently in custody at the Grafton

Correctional Institution serving a corrected sentence of imprisonment for life

plus three years with parole eligibility after 33 years imposed by the Cuyahoga

County Court of Common Pleas in State v. Bragg, Case No. CR-89-237718-A.

The Court referred this matter to a Magistrate Judge under Local Rule 72.2

for the preparation of a Report and Recommendation. For the following

reasons, I recommend that the Court dismiss Bragg’s petition.

Summary of underlying facts

In habeas corpus proceedings brought under 28 U.S.C. § 2254, factual

determinations made by state courts are presumed correct. 28 U.S.C. §

2254(e)(1). “This presumption also applies to the factual findings that [a] state

appellate court makes on its review of the state trial record.” Johnson v. Bell,

525 F.3d 466, 474 (6th Cir. 2008). The petitioner has the burden of rebutting

that presumption by clear and convincing evidence. Id.

The Ohio Court of Appeals for the Eighth Appellate District summarized

the facts and procedural background of Bragg’s underlying case as follows:

A. THE APPELLANT'S ARREST

On March 11, 1989, the body of Joseph Dziewicki

was discovered lying in the middle of Sidaway

Avenue near the Dan-Dee Potato Chip Company.

Upon transportation to St. Vincent Charity

Hospital, Joseph Dziewicki expired as a result of

gun-shot wounds to the head and the upper right

shoulder. The Cuyahoga County Coroner

determined that the cause of death was the gun-shot

wound to the head and that the death of Joseph

Dziewicki was a homicide. On March 14, 1989, the

appellant was arrested as a result of the

investigation of the death of Joseph Dziewicki.

B. THE APPELLANT'S INDICTMENT

On March 23, 1989, the appellant was indicted by

the grand jury of Cuyahoga County for one count of

aggravated murder (prior calculation and design)

with a felony murder specification and a firearm

specification in violation of R.C. 2903.01(A), one

count of aggravated murder (during the commission

of a felony) with a felony murder specification and a

firearm specification in violation of R.C. 2903.01(B),

one count of kidnapping with a firearm specification

in violation of R.C. 2905.01 and one count of

aggravated robbery with a firearm specification in

violation of R.C. 2911.01.

C. THE APPELLANT'S ARRAIGNMENT

On March 27, 1989, the appellant was arraigned

whereupon a plea of not guilty was entered to all

four counts of the indictment.

D. THE APPELLANT'S FIRST JURY TRIAL

WHICH ENDED IN A MISTRIAL

On May 24, 1989, a jury trial was commenced with

regard to the four counts of the indictment. On June

10, 1989, the trial court declared a mistrial on the

basis that the jury was unable to reach a verdict. A

second new trial was rescheduled with regard to the

four original counts of the indictment.

E. THE APPELLANT'S SECOND JURY TRIAL

On September 25, 1989, a second trial was

commenced before a jury. At the conclusion of the

trial, the jury found the appellant guilty of

aggravated murder (prior calculation and design)

with a felony murder specification and a firearm

specification, guilty of kidnapping with a firearm

specification and guilty of aggravated robbery with

a firearm specification.

F. THE TRIAL COURT'S SENTENCE

On October 18, 1989, the jury concluded the penalty

phase of the appellant's trial and returned a

recommendation of thirty years to life on each count

of aggravated murder. Pursuant to the mandate of

R.C. 2929.03(D)(2), the trial court imposed the

sentence recommended by the jury and sentenced

the appellant to incarceration within the

Correctional Reception Center, Orient, Ohio, for a

term of life imprisonment with parole eligibility

after thirty years as to each count of aggravated

murder. The trial court, however, merged the two

sentences of life imprisonment. In addition, the trial

court sentenced the appellant to incarceration for a

term of ten years to twenty-five years with regard to

each offense of kidnapping and aggravated robbery

and three years of actual incarceration as to the gun

specifications. All terms of incarceration were

ordered to be served consecutive to each other.

State v. Bragg, No. 58859, 1991 WL 127135, at *1 (Ohio Ct. App. June 27,

1991).

In December 1989, the trial court issued a nunc pro tunc order in which

it: (1) sentenced Bragg to life imprisonment on counts one and two, with parole

eligibility after 30 years, consecutive to and after a three-year sentence on the

firearm specifications; (2) merged counts one and two and the firearm

specifications on all counts; and (3) sentenced Bragg to 10 to 25 years’

imprisonment on counts three and four, to run concurrent to each other but

consecutive to merged counts one and two. Doc. 6-1, at 499. As is noted below,

the trial court later corrected this judgment. See Doc. 6-1, at 411.

Procedural background

In his return, Respondent notes that due their age, many state court

records are not retrievable. Doc. 6, at 4 n.1, 5 & n.2, 8 n.4. Indeed the record

the Respondent filed does not contain Bragg’s initial notice of appeal, appellate

briefing for that appeal, of the court of appeals’ resulting decision. Nonetheless,

given the nature of the issue raised in Bragg’s petition, the Court is able to

adjudicate his petition.1

1 Ohio’s Eighth District Court of Appeals affirmed Bragg’s conviction in

1991. See State v. Bragg, No. 58859, 1991 WL 127135 (Ohio Ct. App. June 27,

1991). In his return, the Warden asserts that Bragg’s notice of appeal is record

exhibit 3 and that his appellate brief is exhibit 4. Doc. 6, at 6, 8. But these

documents relate to a separate appeal that Bragg filed in 1996. See Doc. 6-1,

at 8–29

1. Direct appeal

According to Ohio’s Eighth District Court of Appeals, Bragg filed a

timely notice of appeal. See State v. Bragg, No. 58859, 1991 WL 127135, at *2

(Ohio Ct. App. June 27, 1991). Bragg raised fourteen assignments of error. Id.

at *2–14. In June 1991, the court of appeals affirmed. Id. at *15. The Ohio

Supreme Court sua sponte dismissed Bragg’s later appeal in December 1991.

Doc. 6-1, at 505.

2. Bragg’s various other actions filed in his state criminal case

Since his conviction in 1989, Bragg has filed a host of other actions. They

are summarized below. Their substance is detailed only where relevant to the

issue raised in Bragg’s current habeas petition.

2.1 Bragg’s Rule 26(B) application

In April 2001, Bragg filed an under Ohio Appellate Rule 26(B) an

application to reopen his direct appeal.2 State v. Bragg, No. 58859, 2001 WL

1671424, at *1 (Ohio Ct. App. Nov. 26, 2001). The Ohio court of appeals rejected

2 Ohio Rule of Appellate Procedure 26(B)(1) provides:

A defendant in a criminal case may apply for

reopening of the appeal from the judgment of

conviction and sentence, based on a claim of

ineffective assistance of appellate counsel. An

application for reopening shall be filed in the court

of appeals where the appeal was decided within

ninety days from journalization of the appellate

judgment unless the applicant shows good cause for

filing at a later time.

Bragg’s application as untimely and meritless. Id. at *1–2. In March 2002, the

Ohio Supreme Court dismissed Bragg’s later appeal. Doc. 6-1, at 506.

2.2 Bragg’s other state-court filings

In 1989, the trial court denied Bragg’s motion for a new trial and to

modify his sentence. Doc. 6-1, at 34, 499–500.

In September 1995, Bragg filed a habeas petition in state court. See

State ex rel. Bragg v. Seidner, 748 N.E.2d 532, 533 (Ohio 2001); Doc. 6-1, at

412. In March 1996, the court of appeals granted summary judgment and

denied Bragg’s petition. Bragg, 748 N.E.2d at 533. Bragg filed a motion for

relief from judgment, which the court of appeals denied in December 2000. Id.;

Doc. 6-1, at 413. The Ohio Supreme Court affirmed in June 2001. Bragg, 748

N.E.2d at 534.

Meanwhile, in 1996, Bragg filed a motion for relief from judgment and

a petition to vacate judgment and sentence. Doc. 6-1, at 35–46, 48–61, 498. The

trial court denied the former motion in March 1996, id. at 47, and the court of

appeals affirmed in September 1996, State v. Bragg, No. 70461, 1996 WL

502142, at *1 (Ohio Ct. App. Sept. 5, 1996). The trial court denied the latter

petition in August 1996, Doc. 6-1, at 48–49.

In November 2000, Bragg filed a habeas petition with the Ohio Supreme

Court. See id. at 507. That court sua sponte dismissed the petition the following

month. Id. In March 2001, the United States Supreme Court denied Bragg’s

petition for a writ of certiorari. Id.

In 2001, Bragg filed an application for a nunc pro tunc order “to ‘arrest

the judgement.’” Doc. 6-1, at 63–76. The trial court denied this motion, id. at

82, and the court of appeals affirmed, id. at 122–24. The Ohio Supreme Court

declined to hear Bragg’s later appeal, finding that he failed to present “any

substantial constitutional question.” Id. at 128.

In December 2004, the trial court denied Bragg’s application for DNA

testing. Doc. 6-1, at 139. Two years later, Bragg filed with the trial court a

motion for relief from judgment related to that court’s 2004 order denying his

application for DNA testing. Doc. 6-1, at 129–37. The trial court denied the

motion for relief from judgment in December 2006. Id. at 152. The court of

appeals affirmed in February 2008,3 id. at 256–64, State v. Bragg, 2008-Ohio-

683, 2008 WL 451858 (Ohio Ct. App. 2008), and denied a motion to reconsider

in April 2008, Doc. 6-1, at 271.

Bragg quickly filed a notice of appeal with the Ohio Supreme Court. Id.

at 272–73. That court dismissed Bragg’s appeal. Id. at 305.

In 2019, Bragg filed a motion to correct facially illegal sentence. Id. at

306–14. The trial court denied the motion in May 2019. Id. at 315. On appeal,

see id. at 316, the court of appeals reversed, id. at 351–63. It “modif[ied] the

trial court’s sentence and vacate[d] the life imprisonment with eligibility for

parole after 30 years imposed on Count 1 in the nunc pro tunc entry.” Id. at

3 The court of appeals’ decision was released in February but was not

“journalized” until the following month. See Doc. 6-1, at 256.

361. The court remanded so that the trial court could impose a sentence

consistent with the court of appeals’ direction. Id. at 363. Following a motion

for reconsideration, id. at 364–71, the court of appeals reached the same

conclusion, see id. at 397–410.

The trial court issued a new judgment as to counts one and two in March

2020. Id. at 411. It merged counts one and two, sentenced Bragg to life

imprisonment on count two with parole eligibility after 30 years, and imposed

no sentence on count one. Id. It ordered that “[t]he 3[-]year firearm

specification shall be served prior to and consecutive to the sentence of life with

parole eligibility after 30 years on count 2.” Id.

3. Bragg’s civil actions

In May 1996, Bragg filed in this Court a civil rights action against state

officials. See Doc. 1-17, at 1. As a Canadian citizen, he sought “declaratory and

injunctive relief requiring his transfer [to Canada] under the Treaty Between

the United States and Canda on the Execution of Penal Sentences, July, 1978,

30 U.S.T. 6263-6272, T.I.A.S. No. 9552.”4 Id. In July 1996, this Court dismissed

Bragg’s complaint as “legally frivolous.” Id. at 1–2. In doing so, the Court

remarked that Bragg’s “sole federal remedy is … habeas corpus” and that his

“underlying legal theory” was “doubtful.” Id. at 2.

4 The Treaty provides a mechanism in certain circumstances for the

transfer of a prisoner imprisoned in a Canadian or American prison to a prison

in the other country if the prisoner is a citizen of that other country.

In June 2005, “Bragg filed a complaint” in the Franklin County Court of

Common Pleas “against the State, seeking declaratory and injunctive relief.”

Bragg v. Taft, 2007-Ohio-846, 2007 WL 611289, at *1 (Ohio Ct. App. 2007).

Relevant to this complaint, Bragg had twice previously requested a transfer

under the Treaty to a Canadian prison. Id. Ohio denied both requests under

Ohio Revised Code § 5120.53, which limits transfer authority with respect to

defendants convicted of murder. Bragg argued that Section 5120.53 was

“overbroad and violate[d] the [Constitution’s] Supremacy Clause … because it

conflicts with the express terms of the Treaty.” Id. The trial court eventually

granted the State’s motion to dismiss. Id.

On appeal to Ohio’s Tenth District Court of Appeals, that court noted

that Section 5120.23 “precludes offenders convicted of aggravated murder from

being transferred to a prison in their native country pursuant to a treaty

entered into between the United States and a foreign country.”5 Id. at *2. The

5 The court of appeals quoted the then-current version of Section 5120.23:

(A) If a treaty between the United States and a

foreign country provides for the transfer or

exchange, from one of the signatory countries to the

other signatory country, of convicted offenders who

are citizens or nationals of the other signatory

country, the governor, subject to and in accordance

with the terms of the treaty, may authorize the

director of rehabilitation and correction to allow the

transfer or exchange of convicted offenders and to

take any action necessary to initiate participation in

the treaty. If the governor grants the director the

authority described in this division, the director may

take the necessary action to initiate participation in

the treaty and, subject to and in accordance with

court then held that, contrary to Bragg’s argument, the Treaty does not provide

a legal right to transfer. Id. at *3. The court held that:

Bragg’s argument … rests upon a fundamental

misconstruction of the plain meaning of section 7 [of

the Treaty]. That section merely identifies the types

of offenders that are eligible for transfer; it does not

mandate that an offender be transferred. Moreover,

in making this argument, Bragg has selectively

omitted the critical section of the Treaty, which

deals a fatal blow to his argument. That section

provides:

If the offender was sentenced by the courts

pursuant to the laws of a state or province of

one of the Parties, the approval of the

authorities of that state or province, as well as

division (B) of this section and the terms of the

treaty, may allow the transfer or exchange to a

foreign country that has signed the treaty of any

convicted offender who is a citizen or national of that

signatory country.

(B)(1) No convicted offender who is serving a term of

imprisonment in this state for aggravated murder,

murder, or a felony of the first or second degree, who

is serving a mandatory prison term imposed under

section 2925.03 or 2925.11 of the Revised Code in

circumstances in which the court was required to

impose as the mandatory prison term the maximum

prison term authorized for the degree of offense

committed, who is serving a term of imprisonment

in this state imposed for an offense committed prior

to the effective date of this amendment that was an

aggravated felony of the first or second degree or

that was aggravated trafficking in violation of

division (A)(9) or (10) of section 2925.03 of the

Revised Code, or who has been sentenced to death in

this state shall be transferred or exchanged to

another country pursuant to a treaty of the type

described in division (A) of this section.

that of the federal authority, shall be required.

The federal authority of the Receiving State

shall be responsible for the custody of the

transferred Offender.

Section 5, Article III. By its terms and as construed

by the courts, section 5 confers unfettered discretion

upon the sentencing state to grant or deny an

offender’s request for transfer. Walton v. Dept. of

Corr. (Mich.Ct.App. 1995), 212 Mich.App. 455. See,

also, In re Arenas (N.J. 2006), 385 N.J.Super. 440;

Brancaccio v. Reno (D.D.C. 1997), 964 F.Supp. 1, 7

(“The language of the Treaty regarding the transfer

of prisoners is discretionary.”); Marshall v. Reno[,]

(D.D.C. 1996), 915 F.Supp. 426, 432 (“no language in

the treaty’s implementing legislation affords [an

offender] with a right to a transfer.”). Given that the

Treaty does not provide an offender with a right to a

transfer, we agree with the trial court that Bragg’s

complaint fails to state a claim upon which relief can

be granted. As a result, no justiciable controversy

exists.

Id.

Federal habeas corpus petition

On August 13, 2024, Bragg filed a federal habeas corpus petition under

28 U.S.C. § 2254.6 Doc. 1. The Warden filed a return, Doc. 6, and Bragg filed a

traverse, Doc. 9. The Warden did not file a reply to the traverse.

Law and Analysis

1. Bragg’s petition is governed by 28 U.S.C. § 2254

Bragg asserts in his petition that he filed it under the All Writs Act,

found at 28 U.S.C. §1651(a), and 28 U.S.C. § 2241. Doc. 1, at 1, 5. In his return,

6 As is discussed below, Bragg’s petition is necessarily filed under 28

U.S.C. § 2254.

the Warden cites 28 U.S.C. § 2244(d)(1) and argues that Bragg’s petition is

untimely. See Doc. 6, at 20. Bragg responds that the statute of limitations in

Section 2244(d)(1) doesn’t apply because he filed his petition under the All

Writs Act and Section 2241. Doc. 9, at 2. As is discussed, Bragg is mistaken.

Start with the All Writs Act. It provides that “[t]he Supreme Court and

all courts established by Act of Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions and agreeable to the usages

and principles of law.” 28 U.S.C. § 1651(a). The Act notably “do[es] not create

an independent basis for federal subject matter jurisdiction.” Jacobs v. Ohio,

No. 19-cv-0557, 2019 WL 3500939, at *1 (N.D. Ohio July 31, 2019) (citing

Heydon v. MediaOne of Southeast Michigan, Inc., 327 F.3d 466, 470 (6th Cir.

2003) and Michigan v. City of Allen Park, 954 F.2d 1201, 1216 (6th Cir. 1992)).

Rather, as the All Writs Act provides, it “only authorizes the issuance of writs

‘in aid of ... jurisdiction.’” Id. (quoting 28 U.S.C. § 1651(a)). A “Court must

[therefore] have an independent basis for subject matter jurisdiction … to issue

a writ in aid of such jurisdiction.” Id.

Further, if “a statute specifically addresses the particular issue at hand,

it is that authority, and not the All Writs Act, that is controlling.” Pennsylvania

Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985). And while

the “Act empowers federal courts to fashion extraordinary remedies when the

need arises, it does not authorize them to issue ad hoc writs whenever

compliance with statutory procedures appears inconvenient or less

appropriate.” Id.

The short of the above is that a state prisoner can’t simply point to the

All Writs Act and ask a federal court to order his release. Instead, the prisoner

must comply with 28 U.S.C. § 2254, which controls the Court’s authority with

respect to state prisoners. See Felker v. Turpin, 518 U.S. 651, 662 (1996);

Pennsylvania Bureau of Correction, 474 U.S. at 43; cf. Haggard v. State of

Tenn., 421 F.2d 1384, 1386 (6th Cir. 1970) (“It is settled that a federal court

has no general jurisdiction to issue writs of mandamus where that is the only

relief sought. In the absence of special statutory authority it can issue writs of

mandamus only as ancillary to and in aid of jurisdiction otherwise vested in

it.”).

Next up is Section 2241. Section 2241 and 2254 do “not provide …

separate source[s] of habeas jurisdiction.” Rittenberry v. Morgan, 468 F.3d 331,

337 (6th Cir. 2006). Instead, “section 2254(a) is a limitation on the general

grant of jurisdiction conferred in section 2241 that applies to cases involving

prisoners subject to state court judgments.” Id. As a result, “all petitions

seeking relief from state court convictions are … specifically filed ‘under

section 2254’ … and are subject to its restrictions.” Id. at 337; see Felker, 518

U.S. at 662. And, as is relevant to Bragg, petitions filed under section 2254,

are subject to the statute of limitations found in 28 U.S.C. § 2244(d)(1). See

Brown v. Haviland, 23 F. App’x 244, 245 (6th Cir. 2001) (“a one-year statute of

limitations is applicable to § 2254 petitions”) (citing 28 U.S.C. § 2244(d)(1)).

2. Bragg’s petition is untimely

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”

or “the 1996 Act”), Pub. L. No. 104–132, 110 Stat. 1214, provides a one-year

limitations period in a habeas action brought by a person in custody from a

state court judgment. Under 28 U.S.C. § 2244(d)(1), the limitation period runs

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.

28 U.S.C. § 2244(d)(1).

Under subparagraph (A), a judgment becomes final at the “conclusion of

direct review or [on] the expiration of the time for seeking such review.” The

trial court issued a new judgment on March 3, 2020.7 Id. at 411. From there,

Bragg would ordinarily have had 30 days, to file an appeal with the court of

appeals. See Ohio App. R. 4(A)(1). But due to the COVID-19 pandemic, his

filing deadline was tolled from March 9, 2020, until July 30, 2020. See Roach

v. Vapor Station Columbus, Inc., 2022-Ohio-2106, 2022 WL 2211529, at *2–3

(Ohio Ct. App. 2022). Because six days had elapsed from March 3 to March 9,

2020, Bragg had 24 days from July 30, 2020 when tolling ended—until August

23, 2020—to file his appeal. See id. at *2 (explaining how Ohio’s tolling order

operated). But Bragg did not file an appeal by that date. So the trial court’s

judgment became final the next day, August 24, 2020. See Gonzalez v. Thaler,

565 U.S. 134, 150 (2012).

Under Section 2244(d)(1)(A), Bragg had one year from August 24, 2020,

to file his habeas petition. But Bragg did not file his petition until August 2024,

nearly three years too late. This means that unless Section 2244(d)(1)(B), (C),

or (D) apply, the Court must dismiss Bragg’s petition as untimely.

For his part, Bragg doesn’t point to anything that might arguably

implicate subparagraphs (B) or (C). That leaves subparagraph (D), which

would only apply if the “factual predicate” for Bragg’s “claim” was only

7 The Warden argues that Bragg’s conviction became final in 1992, when

his time to seek review on direct appeal in the United States Supreme Court

expired. Doc. 6, at 21. The Warden thus argues that Bragg had until one year

after the effective date of the 1996 Act to file his habeas petition. Id. Because

it makes no difference to its analysis, the Court assumes that the trial court’s

corrected judgment issued in 2020 started the clock anew.

discovered “through the exercise of due diligence” after the expiration of the

limitations period. But Bragg has known about the basis for his argument

under the Treaty since the 1990s. Subparagraph (D), therefore, does not save

Bragg’s petition.

Bragg, however, argues that the statute of limitations does not apply

because he is being subject to a continuing violation of the Treaty which

“renew[s] any applicable limitations period daily.” Doc. 9, at 2. But Bragg

points to no court that has recognized a continuing violation theory as a way

to avoid the statute of limitations. See McAleese v. Brennan, 483 F.3d 206, 218

(3d Cir. 2007) (discussing the theory and noting that the petitioner did “not

point to any case in which we have applied the continuing violations theory in

the context of tolling the limitations period in habeas corpus cases in a way

that would extend the habeas corpus petition timeliness requirements in

contravention of Congress’s emphasis on the finality of convictions in enacting

the AEDPA.”). And with good reason. This purported exception would swallow

the statute whole. Further, even if this theory had some possible validity,

Bragg hasn’t pointed to any action since the 1990s by any state official denying

his transfer request. See McAleese, 483 F.3d at 218 (“[t]o establish … a …

continuing violations theory, a plaintiff must … demonstrate that at least one

act occurred within the filing period”) (citation omitted); cf. McBroom v.

Richard, No. 17-3599, 2017 WL 6016384, at *2 (6th Cir. Nov. 8, 2017) (order)

(“The record is clear, however, that the parole board did not issue a new

revocation decision each time but rather that it continued McBroom’s prison

term based on the original decision to revoke his parole.”).

In his return, the Warden argues that Bragg is not entitled to equitable

tolling. Doc. 6, at 26. The Warden is correct; habeas petitioners bear the burden

of “persuading the court” that they are entitled to equitable tolling, Griffin v.

Rogers, 308 F.3d 647, 653 (6th Cir. 2002), and Bragg hasn’t argued that

equitable tolling could save his petition. So he’s forfeited that argument.

Bragg’s petition is untimely and should therefore be dismissed

3. Alternatively, Bragg has procedurally defaulted his Treaty argument

A federal court may not grant a writ of habeas corpus unless the

petitioner has exhausted all available remedies in state court. 28 U.S.C. §

2254(b)(1)(A); Robinson v. Horton, 950 F.3d 337, 343 (6th Cir. 2020). To

exhaust his remedies, a state defendant must “fairly presen[t]” those claims to

the state courts before raising them in a federal habeas corpus action.

Robinson, 950 F.3d at 343 (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995));

see also Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006). A claim for relief

must be presented to the state’s highest court to satisfy the fair presentation

requirement. See O’Sullivan v. Boerckel, 526 U.S. 838, 845–48 (1999); Caver v.

Straub, 349 F.3d 340, 345 (6th Cir. 2003).

Bragg has never raised his Treaty argument before Ohio’s Supreme

Court. And Bragg offers no basis to conclude that there is a mechanism for him

to raise his Treaty argument now in Ohio's courts, years after those courts

ruled on his direct appeal and his various other filings. Indeed, he is well past

the time during which he could file a petition for postconviction relief. See Ohio

Rev. Code § 2953.21(A)(2)(a). And given Ohio's res judicata rule, because Bragg

could have raised the issue on direct review, he cannot raise it now before

Ohio’s courts. See Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000) (“Ohio

has a rule that claims must be raised on direct appeal if possible; otherwise,

res judicata bars their litigation in subsequent state proceedings.”); see State

v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233, 235 (Ohio 1996) (reaffirming the

rule from State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967)). Bragg has

therefore procedurally defaulted his Treaty argument. See Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006).

4. Bragg’s argument is meritless

Even putting aside all of the above, Bragg’s argument is meritless.

Bragg asserts that the limitation in Ohio Revised Code § 5120.53 violates the

Treaty. Doc. 1, at 4; Doc. 9, at 4–5. As general matter, however, a treaty

“establish[es] rights and obligations between” the countries who are parties to

the treaty and “not between states and individuals, notwithstanding the fact

that individuals may benefit because of a treaty's existence.” United States v.

Barinas, 865 F.3d 99, 104-05 (2d Cir. 2010). As a result, courts presume that

treaties “do not create rights that are privately enforceable in the federal courts

… [a]bsent express language in a treaty providing for particular judicial

remedies.” United States v. Emuegbunam, 268 F.3d 377, 389–90 (6th Cir.

2001); see also Lan Xuan Dang v. Ask-Carlson, No. 13-cv-32, 2013 WL 3424175,

at *3 (W.D. La. July 8, 2013) (“[W]ith respect to treaties, there is a presumption

that treaties do not create privately enforceable rights in the absence of express

language to the contrary, even when the treaty may benefit specific

individuals”) (citation omitted).

Here, Bragg points to nothing in the Treaty that might give rise to a

right that he could enforce. And review of the Treaty reveals nothing to support

such an argument.

Further, Bragg does not grapple with the language of the Treaty.

Instead, he argues that Section 5120.53 violates the Treaty because it “removes

all discretion from … Ohio and completely blocks the implementation of the

terms of the Treaty.” Doc. 9, at 4.

Bragg, however, doesn’t point to anything in the Treaty that would bar

Ohio from withdrawing discretion from state actors to transfer prisoners who

have been convicted of murder. Indeed, he doesn’t dispute that the Treaty gives

“unfettered discretion to grant or deny an offender’s request to transfer,” Doc.

9, at 4, and doesn’t explain why Ohio’s legislature, as an arm of the state, could

not exercise that “unfettered discretion” in the manner that it did. See Toor v.

Holder, 717 F. Supp. 2d 100, 107 (D.D.C. 2010) (“the Convention never requires

a state to transfer a prisoner, and in fact, the agreement only allows transfer

when all three parties (the prisoner and both states) agree to it.”). Indeed,

“[e]very court” to consider a similar Treaty argument “has come to the same

conclusion: there is no individual right to a transfer under the Convention.”

U.S. ex rel. Rickard v. Sternes, 149 F. Supp. 2d 437, 452 (N.D. Ill. 2001) (citing

cases), aff’d sub nom. Rickard v. Sternes, 44 F. App’x 738 (7th Cir. 2002).

So Bragg’s argument fails on the merits.

Conclusion

Given the above, the Court should dismiss Bragg’s Petition.

Dated: August 19, 2025

/s/James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th

Cir. 2019).