Frazier v. Moore

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 07a0741n.06
Filed: October 17, 2007
No. 06-4532
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN WESLEY FRAZIER,
Petitioner-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
ERNIE MOORE, WARDEN, SOUTHERN DISTRICT OF OHIO
Respondent-Appellee.
/
BEFORE: CLAY and GIBBONS, Circuit Judges; and HOOD, Chief District Judge.*
CLAY, Circuit Judge. In this appeal, Petitioner John Wesley Frazier (“Frazier”) challenges
the district court’s denial of his petition for the writ of habeas corpus. The district court held that
the petition was not filed within the statute of limitations. On appeal, Frazier argues that the one year
statute of limitations, provided for in 28 U.S.C. § 2244(d)(1), does not apply to his petition because
he is not in custody pursuant to a state court judgment. For the reasons that follow, we AFFIRM
the district court’s judgment.
BACKGROUND
*
The Honorable Joseph M. Hood, Chief United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 06-4532
Frazier was indicted in 1993 in Fairfield County on two counts of aggravated murder, in
violation of Ohio Revised Code § 2903.01(A), with firearm and death penalty specifications, and one
count of aggravated robbery, in violation of Ohio Revised Code § 2911.01, in connection with the
attempted armed robbery of a Dairy Mart and the murder of Lancaster Police Officer Brett
Markwood. On October 12, 1993, Frazier waived his right to a jury trial and pled guilty before a
three-judge panel to one count of aggravated murder and aggravated robbery, with specifications.
In return for this plea, the state agreed not to seek the death penalty. The three-judge panel then held
a mitigation hearing in which it asked for clarification of the terms of the plea agreement. On
October 19, 1993, the three-judge panel held oral argument and concluded that the plea agreement
had to be rejected. The panel found that, because Frazier’s plea was contingent upon the panel
returning a sentence other than death, it was not knowingly, voluntarily, and intelligently entered into
and was against public policy because it would preclude the panel from independently considering
all possible sentences.
After the panel rejected the plea, Frazier filed a motion to dismiss the indictment, arguing
that further prosecution would constitute double jeopardy. A hearing was held on January 24, 1994
before a new three-judge panel, after which the Court of Common Pleas denied Frazier’s motion,
concluding that jeopardy had not attached, and that the original panel had acted legally when it
rejected Frazier’s plea. The new panel also rejected the original plea agreement, which had again
been presented to the panel.
Frazier brought an interlocutory appeal from the decision of the Court of Common Pleas. The
state moved to dismiss the appeal on the ground that the denial of double jeopardy did not constitute
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an appealable final order. On April 1, 1994, the Ohio Court of Appeals granted the state’s motion
to dismiss. On August 31, 1994, the Ohio Supreme Court denied leave to appeal, and dismissed
Frazier’s appeal. Frazier appealed to the United States Supreme Court, which denied certiorari.
Frazier v. Ohio, 513 U.S. 1167 (1995).
Frazier next sought relief by filing a federal habeas corpus petition in the United States
District Court for the Southern District of Ohio on July 24, 1995. On August 8, 1995, the district
court granted Frazier’s motion to stay trial proceedings in the Ohio Court of Common Pleas. Frazier
alleged two grounds for relief, namely, the denial of pre-trial appellate review, and the substantive
issue of double jeopardy. On February 9, 1996, the district court conditionally granted the petition
for writ of habeas corpus, requiring that Frazier be sentenced on his aggravated murder conviction
to one of the sentences enumerated in Ohio Revised Code 2929.03(D)(3)(a) or (b), neither of which
included death. The district court specified that Frazier could be sentenced by a single judge rather
than a three-judge panel, and further ordered that, if the sentencing hearing was not held within 90
days or within a later date extended by the court, the district court would order that Frazier be
sentenced on the aggravated murder charge to the minimum term of life imprisonment with parole
eligibility after serving twenty full years of imprisonment.
On May 16, 1996, a single judge on the Ohio Court of Common Pleas held a sentencing
hearing pursuant to the district court’s order.1 The Court of Common Pleas accepted the plea
1
Although the Court of Common Pleas obtained an extension from the federal district court,
it did not necessarily consider the federal court order controlling:
I would also like to say that this Court is of the opinion that the Federal Magistrate’s
order is so ludicrous that it would be laughable were this not such a serious matter.
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No. 06-4532
bargain and proceeded to have the state read the terms of the plea into the record. Frazier reaffirmed
that he understood that he was waiving his right to trial before a jury or three-judge panel pursuant
to the plea agreement. He also reaffirmed his plea of guilty, and stated that such plea was given
knowingly, voluntarily, and intelligently, after he had been advised of his constitutional rights. The
Court of Common Pleas further accepted Frazier’s written Reaffirmation of Plea Waiver and
Consent to Take Judicial Notice of Previous Mitigation Hearing and ordered that those documents
be made a part of the record. The Court of Common Pleas stated for the record that it was familiar
with the prior mitigation hearing, and offered Frazier the opportunity to present additional mitigation
evidence, which he declined.
After hearing argument from the state, Frazier, and victims, the Court of Common Pleas
sentenced Frazier to imprisonment for 30 years to life without the possibility of parole for 30 years
on the charge of aggravated murder, 3 years imprisonment on the firearm specification, to be served
consecutively, and an indefinite term of 10 to 25 years on the charge of aggravated robbery, with the
first 10 years of that sentence “to be served as a term of actual incarceration,” meaning that the
sentence would run consecutively to the other sentences. On May 24, 1996, the district court filed
an Entry of Sentence Nunc Pro Tunc to that effect.
. . . [T]he Court questions the jurisdiction of the Federal Court in this matter. This
Court is convinced that a Federal Magistrate has no authority to impose sentence on
a state court charge, and you certainly don’t need a law degree to understand that a
federal magistrate or any other judicial officer cannot impose a sentence on someone
who hasn’t been convicted. As far as this Court is concerned, the order of the
Federal Magistrate is a legal nullity and is in no way controlling on this case.
(J.A. at 229-30).
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No. 06-4532
On March 18, 2002, Frazier, proceeding pro se, filed a motion for leave to file a delayed
direct appeal. Frazier argued, inter alia, that the Court of Common Pleas lacked jurisdiction because
it consisted of a single judge as opposed to a three-judge panel, in violation of Ohio Revised Code
§ 2945.06. On April 8, 2002, the Ohio Court of Appeals denied Frazier’s motion. Frazier sought
review from the Ohio Supreme Court which summarily denied leave to appeal and dismissed
Frazier’s appeal as not involving any substantial constitutional question.
Frazier next sought relief through state habeas corpus proceedings pursuant to Ohio Revised
Code § 2725.01 et seq. He filed a petition for the writ of habeas corpus in the Ohio Court of Appeals
on January 10, 2003, again arguing that the single-judge trial court lacked jurisdiction. In a lengthy
and reasoned opinion, the Ohio Court of Appeals concluded that, though it was improper for a
single-judge court to accept Frazier’s plea of guilty, that error did not affect the Court of Common
Pleas’ subject matter jurisdiction, and thus did not entitle Frazier to relief on collateral review.
Frazier appealed to the Ohio Supreme Court. On May 12, 2004, the Ohio Supreme Court issued a
per curiam opinion denying Frazier’s appeal. State ex rel. Frazier v. Brigano, 807 N.E.2d 346, 347
(2004) (per curiam). The Ohio Supreme Court reasoned that Frazier’s case was controlled by its
holding in Pratts v. Hurley, 788 N.E.2d 644, 646 (2003), where the court held that “an alleged
violation of [Ohio Revised Code § 2945.06] is not a proper subject for habeas corpus relief and may
be remedied only in a direct appeal from a criminal conviction.” Frazier, 807 N.E.2d at 347 (citing
State ex rel. Collins v. Leonard, 687 N.E.2d 443 (1997)). Frazier sought certiorari from the United
States Supreme Court, which denied his petition on October 12, 2004. Frazier v. Brigano, 543 U.S.
934 (2004).
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No. 06-4532
Frazier subsequently filed a second state petition for writ of habeas corpus in the Ohio
Supreme Court. On October 26, 2005, the Ohio Supreme Court dismissed the petition sua sponte.
Frazier next sought relief by filing the instant petition for writ of habeas corpus in the United
States District Court for the Southern District of Ohio on December 7, 2005. On April 26, 2006,
Respondent moved to dismiss the petition as untimely. On August 17, 2006, the magistrate judge
issued a report and recommendation that Respondent’s motion to dismiss be granted. Frazier v.
Moore, No. 2:05-cv-1112, 2006 WL 3146436, at *2-*10 (S.D. Ohio Oct. 31, 2006) (unpublished).
The magistrate judge reasoned that Frazier’s petition violated the statute of limitations of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1), that the statute
of limitations applied to Frazier notwithstanding the fact that he raised a jurisdictional defect, and
that Frazier’s equitable tolling arguments lacked merit. Frazier, 2006 WL 3146436, at *5-*9. On
October 20, 2006, Frazier filed objections to the magistrate judge’s report and recommendation. On
October 31, 2006, the district judge issued an order that adopted and affirmed the magistrate judge’s
report and recommendation, overruled Frazier’s objections, and dismissed the case. Frazier, 2006
WL 3146436, at *2. On November 20, 2006, Frazier filed a timely notice of appeal.
DISCUSSION
A. Standard of Review
In reviewing the denial of a habeas petition, we review a district court’s legal conclusions de
novo and its factual findings for clear error. Broom v. Mitchell, 441 F.3d 392, 398 (6th Cir. 2006);
Miller v. Collins, 305 F.3d 491, 493-94 (6th Cir. 2002). Because the only issue on appeal is the
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No. 06-4532
district court’s interpretation of AEDPA’s statute of limitations, our review is de novo. DeCenzi v.
Rose, 452 F.3d 465, 467 (6th Cir. 2006).
B. Analysis
The district court concluded that Frazier’s habeas petition was untimely because it was barred
by the statute of limitation under 28 U.S.C. § 2244(d). Section 2244(d)(1) states in pertinent part:
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 date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.
Reviewing the facts of the case, the district court found that “[p]etitioner’s conviction became final
on June 15, 1996 – i.e., thirty days after he was resentenced by the state trial court on May 16, 1996
– when the time period expired to file a timely appeal.” Frazier, 2006 WL 3146436, at *7.
Applying the one year statute of limitations to this date, the district court concluded that Frazier’s
time period for bringing a federal habeas challenge had expired on June 15, 1997 and, thus, his
present petition was untimely. Id.
On appeal, Frazier argues that his habeas petition is not subject to the one year statute of
limitations in 28 U.S.C. §2244(d). Frazier bases his argument on a strict reading of the statutory text
of § 2244(d) which provides that the one year limitation period applies to “an application for a writ
of habeas corpus by a person in custody pursuant to the judgment of a State court.” (emphasis
added). Frazier contends that he is not in custody pursuant to any judgment of a state court because
he was never convicted of the charged offenses and because the procedure employed at his
sentencing hearing was invalid. We find neither of these arguments convincing.
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No. 06-4532
Frazier’s primary argument is that the Ohio Court of Common Pleas’ entry of sentence did
not constitute a judgment because he was never convicted of the charged offenses. He contends that
the Court of Common Pleas’ indication that it was sentencing Frazier under the federal district
court’s order from Frazier’s first habeas action meant that he was never found guilty of the instant
offense. This argument lacks merit. The Court of Common Pleas’ finding of guilt derives not from
the federal district court’s order, but instead from the fact that the Court of Common Pleas accepted
Frazier’s reaffirmed plea of guilty and waiver of his right to trial. The trial court’s entry of sentence
naturally followed from this finding of guilt.
Perhaps recognizing this problem, Frazier next argues that there was no judgment in his case
because of the Court of Common Pleas’ failure to comply with Ohio Revised Code § 2945.06.
Section 2945.06 requires that “[i]f the accused pleads guilty to aggravated murder, a court composed
of three judges shall examine the witnesses, determine whether the accused is guilty of aggravated
murder or any other offense, and pronounce sentence accordingly.” (emphasis added). See also State
v. Green, 689 N.E.2d 556, 559 (Ohio 1998); Ohio Criminal Rule 11. Under this law, an Ohio trial
court must determine whether the accused is guilty beyond a reasonable doubt when accepting his
guilty plea. Green, 689 N.E.2d at 559.
Yet, even if Frazier is correct that a failure by the trial court to engage in such an inquiry
means that his judgment was defective, that does not lead to the conclusion that there was no
judgment for the purpose of § 2244(d)’s one year statute of limitations. Many of the petitions
cognizable on federal habeas review challenge the validity of the underlying state court judgment.
The fact that the state court judgment may have been procured in violation of state or federal law
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No. 06-4532
does not, however, render the judgment null under § 2244(d). This is revealed by an examination
of § 2244(d) and the practice that has developed thereunder. First, the language of the statute
requires only custody “pursuant to the judgment of a state court.” Nothing in the text requires that
the judgment be valid under state or federal law.
Furthermore, the validity of a judgment as a matter of state law is for the state to determine.
Federal courts only adjudicate questions of federal law. See Bell v. Arn, 536 F.2d 123, 125 (6th Cir.
1976). To the extent that Frazier claims that the Ohio judgment is invalid under state law, that claim
is not cognizable on habeas review.
Finally, even assuming that Frazier is correct that the Court of Common Pleas’ failure to
make independent findings deprived him of his right to due process under the Fourteenth
Amendment because he was not found guilty beyond a reasonable doubt, it would not follow that
Frazier was not convicted pursuant to a state court judgment. Under § 2254, which likewise limits
its coverage to petitions brought by persons “in custody pursuant to the judgment of a State court,”
petitioners raise numerous challenges to their sentences and convictions on due process grounds, yet
the Court applies the strictures of § 2254 to these cases. See, e.g., Broom, 441 F.3d at 406-07, 412,
415 (analyzing claims under AEDPA and rejecting various due process challenges). In order to
constitute a “judgment” under §§ 2244(d) and 2254, a state court judgment need not be unassailable,
or even prima facie correct. If a judgment that was procured by a procedure that violated federal
constitutional rights were sufficient to render a petitioner not in custody “pursuant to the judgment
of a state court” for the purpose of §§ 2244(d) and 2254, then the habeas regime embodied in these
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No. 06-4532
provisions would be substantially undermined. Clearly this interpretation of these statutes cannot
be correct.
In the present case, we find that the Ohio court’s actions were sufficient to constitute a
judgment for purposes of the one year statute of limitations of § 2244(d). At the sentencing hearing
on May 16, 1996, Frazier reaffirmed his plea of guilty and again waived his right to a jury trial. The
Court of Common Pleas accepted that such a plea was made knowingly, voluntarily, and
intelligently. The court proceeded to pronounce a sentence which was then entered upon the court’s
docket sheet. On May 24, 1996, an Entry of Sentence Nunc Pro Tunc was made part of the record.
In our view, these acts were sufficient to constitute a judgment.
As Frazier is in custody pursuant to a judgment of the Ohio courts, even if that judgment may
not be valid under state law, he is subject to 28 U.S.C. § 2244(d)’s one year statute of limitations in
filing his federal habeas petition. The statute of limitations for filing his habeas petition began to
accrue on June 15, 1996 when the time for appealing his May 16, 1996 sentence elapsed. The statute
of limitations period expired on June 15, 1997. Frazier did not file his petition in the instant case
until December 7, 2005. Thus, the district court correctly concluded that Frazier’s petition was
untimely.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of Frazier’s petition for
writ of habeas corpus.
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