Opinion
Case No. 1:14-cv-652
02-17-2015
DAVID S. HOPPER, Petitioner, v. OHIO DEPARTMENT OF CORECTIONS, et al., Respondents.
Dlott, J.
ORDER AND REPORT AND RECOMMENDATION
Petitioner, an inmate in the Little Sandy Correctional Complex in Sandy Hook, Kentucky, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on petitioner's motion for leave to proceed in forma pauperis (Doc. 2), petitioner's motion to amend/correct petition (Doc. 9), and respondent's motions to dismiss (Doc. 7, 8).
For the reasons stated below, petitioner's motion for leave to proceed in forma pauperis is denied as moot, his motion to amend is granted, and it is recommended that respondent's motions to dismiss be denied.
I. BACKGROUND
Petitioner brings this habeas corpus action challenging his June 16, 2008 conviction and sentence in the Warren County, Ohio Court of Common Pleas. In his single ground for relief, petitioner contends that his guilty plea entered in that case was unconstitutional because "the State of Ohio has not honored its promise[s] made in order to secure Petitioner's guilty plea, when the State made unfulfillable promises of concurrent state and Federal sentences." (Doc. 1, p. 6). Petitioner indicates that prior to entering his guilty plea in Warren County, he was sentenced in the United States District Court for the Eastern District of Kentucky to a 384-month sentence under 18 U.S.C. § 924(c), which—unbeknownst to petitioner—precludes his sentence from running concurrently with any other term of imprisonment imposed. (Doc. 1, Memorandum at PageID 23-24). Nevertheless, he claims that the State of Ohio offered to have his Warren County sentence run concurrent to petitioner's other state and federal sentences in exchange for his guilty plea. (Id. at PageID 23). Petitioner further indicates that he subsequently entered into similar plea bargains in several other jurisdictions before being remanded to the custody of the Kentucky Department of Corrections to begin serving what he understood to be concurrent Kentucky, Ohio, Indiana, and federal sentences. (Id. at PageID 19, 22).
Petitioner indicates that he has been indicted, convicted, and/or sentenced in Campbell County and Grant County, Kentucky; Hamilton County, Montgomery County, and Franklin County, Ohio; Dearborn County, Indiana; and the Eastern District of Kentucky. (See Doc. 1 at PageID 22).
However, on January 7, 2013, petitioner was informed by the United States Bureau of Prisons that petitioner's federal sentence was precluded from running concurrent to the state imposed sentences pursuant to § 924(c). (Id. at PageID 23; Attachment C at PageID 97). Petitioner indicates that he has since exhausted his available remedies in the Ohio courts by filing a motion to withdraw his guilty plea in the trial court and appealing the denial of the motion to the Ohio Court of Appeals and Ohio Supreme Court. (Id. at PageID 24-27; Attachments D, E, H, K).
Petitioner filed the instant habeas corpus action on August 14, 2014, naming the Ohio Department of Corrections, Gary Mohr (Director of the Ohio Department of Rehabilitation and Correction), and the Ohio Attorney General as respondents. (Doc. 1).
Respondent has since filed two motions to dismiss. First, respondent moves to dismiss the Ohio Attorney General as a party in this matter. (Doc. 7). According to respondent, the Ohio Attorney General is not a proper party in this action because he is not petitioner's immediate custodian, as petitioner is currently incarcerated in Kentucky. Second, respondent moves to dismiss the petition because, according to respondent, the Court is without jurisdiction over the matter. (Doc. 8). Respondent contends that petitioner's failure to name the proper respondent deprives the Court of personal jurisdiction, the action is properly venued in Kentucky where petitioner is incarcerated, the petition is not yet ripe, and petitioner lacks standing.
Petitioner has also filed a motion to amend his habeas petition to add the Warden of the Little Sandy Correctional Complex as a respondent in this matter. (Doc. 9).
II. ANALYSIS
A. Petitioner's Motion to Proceed In Forma Pauperis is Denied
As an initial matter, the Court DENIES AS MOOT petitioner's motion to proceed in forma pauperis because petitioner has already paid the filing fee in this matter. (Doc. 2).
B. Petitioner's Motion for Leave to Amend is Granted and Respondent's Motion to Dismiss the Ohio Attorney General as a Party Should Be Denied
For the reasons stated below, the Court grants petitioner's motion for leave to amend his habeas petition to name Joseph Meko, the Warden of Little Sandy Correctional Complex as a respondent. (Doc. 9). Because the Ohio Attorney General was properly named as a respondent in this matter, the undersigned also recommends that respondent's motion to dismiss the Ohio Attorney General (Doc. 7) be denied.
Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts sets forth the proper respondent(s) to be named in a habeas corpus action. Where the petitioner is currently in custody under the state-court judgment he is challenging, the petitioner is required to name the state officer who has custody as respondent. See Rule 2(a); Advisory Committee Notes, Subdivision (b)(1). If the petitioner is subject to future custody under the state-court judgment being contested, the Rules indicate that the petition must name both the officer who has current custody and the attorney general of the state where the judgment was entered. See Rule 2(b); Advisory Committee Notes, Subdivision (b)(4).
In this case, on the limited record before the Court, it appears that petitioner is subject to future custody pursuant to his Warren County, Ohio convictions. The Kentucky Online Offender Lookup and the documents attached to petitioner's habeas petition indicate that petitioner is serving concurrent twenty and twenty-two year sentences stemming from his February 29, 2008 Grant County and January 11, 2008 Campbell County, Kentucky convictions. (See Doc. 1, Attachment J at PageID 119-20). On June 17, 2008, in the Warren County, Ohio case, petitioner was sentenced to a forty year prison sentence that the trial court ordered would be "served concurrently with the sentences that you have already received in the Federal system and in the various State courts to date." (Doc. 1, Transcript at PageID 92). Therefore, upon completion of his Kentucky sentences, it appears that petitioner is subject to custody in Ohio to complete his Warren County sentence.
Viewed at http://www.co.warren.oh.us/clerkofcourt/search under Case No. 08CR25107.
In these circumstances the Rules Governing Section 2254 Cases in the United States District Courts specify that the proper respondents in this action are the Little Sandy Correctional Complex Warden—petitioner's immediate custodian—and the Ohio Attorney General. See Rule 2(b); Advisory Committee Notes, Subdivision (b)(4). Petitioner has already named the Ohio Attorney General as a respondent in this matter. (Doc. 1). Therefore, respondent's motion to dismiss the Ohio Attorney General (Doc. 7) should be denied. The Rules further specify that the Court "may require or allow the petitioner to join an additional or different party as a respondent if to do so would serve the ends of justice." Advisory Committee Notes, Subdivision (b)(5). In this case, the undersigned finds that granting petitioner's motion to amend his petition to name the Little Sandy Warden as a respondent would serve the ends of justice and the motion (Doc. 9) is hereby GRANTED.
C. Respondent's Motion to Dismiss Should Be Denied
As noted above, respondent has also filed a motion to dismiss the petition on the ground that the Court is without jurisdiction over the matter, venue in this Court is improper, the petition is not ripe, and petitioner does not have standing to bring this action. (Doc. 8).
Respondent first moves to dismiss the petition for lack of jurisdiction. Respondent argues that petitioner's failure to name the proper respondent deprives this Court of jurisdiction. Respondent contends that the named Ohio respondents are not petitioner's custodian. Citing Rumsfeld v. Padilla, 542 U.S. 426 (2004), respondent further contends that to the extent that petitioner challenges his present physical custody petitioner and his immediate custodian must reside in the same district for the Court to have jurisdiction. (Doc. 8, p. 2).
The undersigned is not persuaded by respondent's argument. First, as noted above, the Court has granted petitioner's motion to amend and, consequently, petitioner has now named the proper respondents in this matter—the Ohio Attorney General and the Little Sandy Warden. See Rule 2(b); Advisory Committee Notes, Subdivision (b)(4).
To the extent that respondent maintains that the Court is without jurisdiction despite granting the motion to amend, respondent's reliance on Padilla is unavailing. In Padilla, the Supreme Court considered who the proper respondent was in a § 2241 petition filed by a United States citizen designated as an enemy combatant. Although Padilla was confined in South Carolina, he filed his petition in the United States District Court for the Southern District of New York. Padilla, 542 U.S. at 432. The Government moved to dismiss the case, arguing that Padilla's immediate custodian in South Carolina was the only proper respondent and the New York district court lacked jurisdiction because the custodian was located outside the Southern District of New York. Id. The Supreme Court agreed. In determining that petitioner's immediate custodian was the only proper respondent, the Court found that "in habeas challenges to present physical confinement—'core challenges'—the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official." Padilla, 542 U.S. at 435. Observing that district courts are limited under 28 U.S.C. § 2241(a) to granting habeas relief "within their respective jurisdictions," the Padilla Court further found that the New York district court did not have jurisdiction over the South Carolina custodian. The Court reasoned that in habeas challenges to present physical confinement, "the district of confinement is synonymous with the district court that has territorial jurisdiction over the proper respondent. . . . By definition, the immediate custodian and the prisoner reside in the same district." Padilla, 542 U.S. at 442, 445.
However, in so ruling, the Padilla Court acknowledged "the simple proposition that the immediate physical custodian rule, by its terms, does not apply when a habeas petitioner challenges something other than his present physical confinement." Id. at 438. By way of example, the Court discussed its prior ruling in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973):
In Braden, for example, an Alabama prisoner filed a habeas petition in the Western District of Kentucky. He did not contest the validity of the Alabama conviction for which he was confined, but instead challenged a detainer lodged against him in Kentucky state court. Noting that petitioner sought to challenge a "confinement that would be imposed in the future," we held that petitioner was "in custody" in Kentucky by virtue of the detainer. 410 U.S., at 488-489, 93 S.Ct. 1123. In these circumstances, the Court held that the proper respondent was not the prisoner's immediate physical custodian (the Alabama warden), but was instead the Kentucky court in which the detainer was lodged. This made sense because the Alabama warden was not "the person who [held] him in what [was] alleged to be unlawful custody." Id., at 494-495, 93 S.Ct. 1123 (citing Wales, 114 U.S., at 574); Hensley, supra, at 351, n. 9, 93 S.Ct. 1571 (observing that the petitioner in Braden "was in the custody of Kentucky officials for purposes of his habeas corpus action"). Under Braden, then, a habeas petitioner who challenges a form of "custody" other than present physical confinement may name as respondent the entity or person who exercises legal control with respect to the challenged "custody."Id. With regard to jurisdiction, the Supreme Court noted that the Braden Court concluded that the Kentucky district court had jurisdiction over the petition "since the respondent was properly served in that district." Id. at 445 (quoting Braden, 410 U.S. at 500).
In this case, petitioner is not challenging his Kentucky or federal convictions or his confinement related to these convictions. Rather, petitioner attacks his Warren County, Ohio guilty plea and his future confinement in Ohio. The Ohio Attorney General exercises legal control with respect to petitioner's Ohio convictions and sentence. Therefore, as in Braden, the immediate custody rule is inapplicable in these circumstances and this Court has jurisdiction over petitioner's habeas petition. See Holder v. Curley, 749 F.Supp.2d 644, 645-46 (E.D. Mich. 2010) (finding that, "[r]elying on Braden, lower courts have held that where a petitioner is housed in a state other than the state where he was convicted and sentenced the 'true custodian' is the official in the state whose indictment or conviction is being challenged" and, after Padilla, have continued to transfer cases to the jurisdiction of conviction). Accordingly, the undersigned finds that the petition should not be dismissed for lack of jurisdiction.
Although it remains unclear whether Ohio has filed a detainer against petitioner, or whether petitioner's Ohio and Kentucky sentences are being treated as concurrent or consecutive sentences, the undersigned finds that he is "in custody" within the meaning of the federal habeas corpus statute. See Braden 410 U.S. at 488-89 (noting that a federal habeas corpus action may be based on future custody and not just current confinement). Cf. Peyton v. Rowe, 391 U.S. 54, 67 (1968) ("a prisoner serving consecutive sentences is 'in custody' under any one of them for purposes [of the federal habeas statutes]"). --------
Respondent's remaining bases for dismissal are also without merit, as respondent misconstrues the basis for petitioner's habeas petition. It appears from the motion to dismiss that respondent understands the habeas petition to challenge whether or not petitioner's state and federal sentences should run concurrently, not whether petitioner's Warren County guilty plea was unconstitutional, as petitioner contends. According to respondent, "[t]he reason Hopper is in this Court presently is because of a document he received from the federal bureau of prisons that advises him in blanket terms that his federal sentence will not begin until Hopper has satisfied his 'state obligations.'" (Doc. 8, p. 3). Respondent considers the entire basis for the petition to be "an interpretation of law from a mere letter from the federal bureau of prisons—an interpretation that has never been tested in Hopper's case and can't be tested in a habeas petition pertaining to a state conviction and sentence in either Ohio or Kentucky." (Id. at 6). On this basis, respondent challenges petitioner's standing and the ripeness of the petition. As respondent sees it, petitioner's alleged injury is conjectural and will only be ripe if petitioner completes his forty year Ohio sentence. (See id. at 5).
Respondent's arguments do not provide a basis for dismissal. Contrary to respondent's position, petitioner in this case challenges the constitutionality of his guilty plea entered in the Warren County, Ohio court. Petitioner has in fact presented his claims in the Ohio courts by filing a motion to withdraw his guilty plea in the trial court and appeals to the Ohio Court of Appeals and the Ohio Supreme Court. He claims the Ohio courts' adjudication of his constitutional claims was contrary to, or involved an unreasonable application of, clearly established federal law. This issue is properly before this Court. See 28 U.S.C. § 2254(d); S.D. Ohio Civ. R. 82.1(f). See also Padilla, 542 U.S. at 444 (noting that where a petitioner challenges his future confinement in another state, "it would serve no useful purpose" to require the petitioner to file his petition in the state of confinement).
Finally, the undersigned finds no merit to respondent's standing and ripeness arguments. In Braden, the Court made clear that the Court discarded the "prematurity doctrine" in Peyton v. Rowe, 391 U.S. 54 (1968), which permitted a habeas petitioner to attack only his current confinement. Braden, 410 U.S. at 488-89. Respondent's suggestion that petitioner should be required to wait forty years to challenge the constitutionality of his guilty plea is untenable, considering that petitioner is required to file his habeas corpus petition in this Court within one year of the date on which the judgment became final. See 28 U.S.C. § 2244(d)(1). Accordingly, the petition should not be dismissed on ripeness or standing grounds.
IT IS THEREFORE ORDERED THAT:
1. Petitioner's motion to proceed in forma pauperis is DENIED AS MOOT.
2. Petitioner's motion to amend is GRANTED.
IT IS THEREFORE RECOMMENDED THAT:
1. Respondent's motions to dismiss be DENIED. Date: 2/17/15
/s/_________
Karen L. Litkovitz
United States Magistrate Judge
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. This period may be extended further by the Court on timely motion for an extension. 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. If the Report and Recommendation is based in whole or in part upon matters occurring on the record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).