
    Teven A. GOLSON, Petitioner, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.
    Case No. 3:10-cv-369.
    United States District Court, S.D. Ohio, Western Division at Dayton.
    July 2, 2012.
    
      Steven A. Golson, Bryan, OH, pro se.
    Jerri Lynne Fosnaught, Office of the Ohio Attorney General Criminal Justice Section, Diane Duemmel Mallory, Columbus, OH, for Respondent.
   ENTRY AND ORDER ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION (DOC. 10) IN ITS ENTIRETY; AND TERMINATING THE CASE

THOMAS M. ROSE, District Judge.

The Court has reviewed the June 1, 2012 Report and Recommendation of United States Magistrate Judge Michael J. Newman (doc. 10), to whom this case was referred pursuant to 28 U.S.C. § 636(b), and noting that no objections have been filed thereto and that the time for filing such objections under Fed.R.Civ.P. 72(b)(2) has expired, and following a de novo review, hereby ADOPTS said Report and Recommendation.

It is therefore ORDERED that Petitioner’s petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 is DISMISSED WITH PREJUDICE, and this case is TERMINATED on the Court’s docket. Petitioner is DENIED leave to appeal informa pauperis and any requested certificate of appealability.

REPORT AND RECOMMENDATION

MICHAEL J. NEWMAN, United States Magistrate Judge.

Pursuant to 28 U.S.C. § 2254, Petitioner (“Petitioner” or “Golson”) brings this petition for a writ of habeas corpus. Petitioner was convicted of aggravated robbery and kidnapping, with firearm specifications, in December 1998. Doc. 5-2 at PagelD 113-18. He was incarcerated in the Lebanon Correctional Institution until April 20, 2012. Currently, he is serving a period of post-release control under the Ohio Adult Parole Authority’s supervision. The “in custody” requirement of § 2254 is satisfied when a petitioner is on parole. See DePompei v. Ohio Adult Parole Auth., 999 F.2d 138, 140 (6th Cir. 1993). Therefore, the Court has jurisdiction to rule on Petitioner’s § 2254 habeas petition even though he is no longer in prison. See id.

Proceeding pro se, Petitioner pleads the following grounds for relief:

GROUND ONE: Ineffective assistance of trial counsel in violation of rights under Sixth and Fourteenth Amendment.
Supporting Facts: At re-sentencing hearing held in State trial court, defense counsel failed to object to fact that at original sentencing trial court was authorized to impose only minimum sentences in this case.
GROUND TWO: Ineffective assistance of trial counsel in violation of Sixth and Fourteenth Amendment to the U.S. Constitution.
Supporting Facts: At Petitioner’s re-sentencing hearing on June 2[5], 2008, trial counsel failed to object and bring to the state trial court’s attention that Petitioner’s legal maximum sentence of six years had expired before his re-sentencing occurred.
GROUND THREE: Ineffective assistance of trial counsel in violation of Sixth and Fourteenth Amendment, U.S. Constitution.
Supporting Facts: At the re-sentencing hearing of June 2[5], 2008, trial counsel failed to object and bring to state court’s attention that aggravated robbery and kidnapping counts in indictment failed to charge offense because of lack of mens rea element rendering conviction and sentence for such offenses void.
GROUND FOUR: Ineffective assistance of counsel in violation of Sixth and Fourteenth Amendment, U.S. Constitution.
Supporting Facts: At re-sentencing hearing of June 2[5], 2008, trial counsel failed to object that Petitioner’s re-sentencing was violative of Due Process Clause prohibiting judicial enlargement of sentencing statutes and Double Jeopardy Clause of Ohio and United States Constitution.

Doc. 1 at PagelD 5-9 (capitalization altered; periods added).

I. PROCEDURAL BACKGROUND

In December 2006, a jury found Petitioner guilty on two counts of aggravated robbery and one count of kidnapping, each carrying a firearm specification. Doc. 5-2 at PagelD 113-18. Petitioner was sentenced to a total of twenty nine years imprisonment: nine years on each aggravated robbery count; five years on the kidnapping count; and six years for the firearm specifications (the firearm specifications in Counts Two and Three were merged). Id. at PagelD 119-20.

A. Initial Appeals

Petitioner unsuccessfully appealed his conviction and sentence to the Ohio Second District Court of Appeals and the Ohio Supreme Court. See id. at PagelD 121-239. He also filed an application to reopen his direct appeal pursuant to Ohio App. R. 26(B), as well as a motion for a new trial, both of which were denied. See id. at PagelD 240-77.

Petitioner then filed a habeas petition in this Court on December 8, 2003. Id. at PagelD 278-349. Judge Rose adopted Magistrate Judge Merz’s Report and Recommendation that Petitioner’s habeas claims be dismissed. Golson v. Brigano, No. 3:03-cv-475 (S.D.Ohio Mar. 23, 2004) (doc. 5-2 at PagelD 350-64). Petitioner did not appeal this Court’s decision to the Sixth Circuit Court of Appeals.

Following the denial of his federal habeas petition, Petitioner unsuccessfully sought post-conviction relief in the State courts under Ohio Rev.Code § 2953.28, challenging the constitutionality of his sentence following the U.S. Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See doc. 5-2 at PageID 365-410; doc. 5-3 at PageID 411-57. He also unsuccessfully filed an original action for state habeas corpus relief in the Warren County Court of Appeals, the county in which he was imprisoned. Doc. 5-3 at PagelD 458-60. Further, he filed a motion for relief from judgment, claiming his indictment was defective, which the Montgomery County Common Pleas Court denied. Id. at PagelD 499-529.

On January 16, 2008, Petitioner filed a second habeas petition in this Court, claiming his sentence was unconstitutional. Id. at PagelD 461-75. Judge Rice adopted Magistrate Judge Merz’s Report and Recommendation that his habeas petition be denied as untimely. Golson v. Brunsman, 3:08-cv-12, 2008 WL 281585 (S.D.Ohio Jan. 31, 2008) (Doc. 5-3 at PageID 489-98).

B. Re-Sentencing

On June 25, 2008, the Montgomery County Common Pleas Court re-sentenced Petitioner because, at his initial sentencing, he was not notified that he would be subject to a mandatory period of post-release control following his release from prison. Doc. 5-3 at PagelD 530-31; see Ohio Rev.Code § 2929.191. The trial court issued a nunc pro tunc March 4, 1999 termination entry, pursuant to Ohio Revised Code § 2929.191, imposing the same twenty-nine-year prison sentence that was previously imposed, but including language regarding the mandatory period of post-release control. See doc. 5-3 at PagelD 530-31.

In October 2008, the Ohio Court of Appeals granted Petitioner leave to file a delayed appeal of his June 2008 re-sentencing. See id. at PagelD 532-48. In his appeal, Petitioner asserted ineffective assistance of counsel with respect to his re-sentencing hearing. See id. at PagelD 549-64. Specifically, he argued that his attorney was deficient for not raising the following arguments: (1) the Ohio Supreme Court’s decision in State v. Foster is unconstitutional; (2) his sentence expired after six years (the shortest prison term authorized by statute); (3) the indictments were deficient because they were missing a mens rea element; and (4) his sentence was unconstitutional because the State did not prove the required “sentencing enhancers” to impose a more-than-the-minimum sentence. See id. On February 19, 2010, the Montgomery County Court of Appeals overruled all of his assignments of error, and affirmed the trial court’s 2008 re-sentencing. State v. Golson, No. 22927, 2010 WL 580996 (Ohio Ct.App. Feb. 19, 2010) (doc. 5-3 at PagelD 639-44).

Petitioner then filed a motion for reconsideration. Doc. 5-3 at PagelD 645-46. On July 20, 2010, the Montgomery County Court of Appeals denied that motion. State v. Golson, No. 22927 (Ohio Ct.App. July 20, 2010) (doc. 5-3 at PagelD 649-56).

Petitioner timely appealed the Montgomery County Court of Appeals’ February 19, 2010 decision to the Ohio Supreme Court. Doc. 5-3 at PagelD 657-76. On June 9, 2010, the Ohio Supreme Court denied him leave to appeal and dismissed his appeal as not involving any substantial constitutional question. State v. Golson, No. 2010-0558, 125 Ohio St.3d 1450, 927 N.E.2d 1129 (June 9, 2010) (doc. 5-3 at PageID 657-77).

On August 13, 2010, Petitioner filed a pro se petition to vacate or set aside judgment pursuant to Ohio Rev.Code § 2953.21 in the Montgomery County Common Pleas Court. Id. at PageID 678-90. On September 27, 2011, the Common Pleas Court denied his petition to vacate as untimely. State v. Golson, No.1998 CR 04083 (Montgomery Cnty. Ct.Com. PL Sept. 27, 2011).

On October 1, 2010, Petitioner filed the instant habeas petition in this Court. Doc. 1.

On November 23, 2009, while the above proceedings were pending, Ohio Governor Ted Strickland commuted Petitioner’s sentence to fifteen to twenty nine years in prison. Doc. 5-3 at PagelD 691-92.

II. ANALYSIS

A. AEDPA Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), when the state court decides a federal constitutional claim on the merits, the federal habeas court must defer to the state court decision unless: (1) the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court”; or (2) the state court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d).

A state court decision is considered “contrary to ... clearly established Federal law” when it is “diametrically different, opposite in character or nature, or mutually opposed.” Nields v. Bradshaw, 482 F.3d 442, 449 (6th Cir.2007) (citation omitted). To be deemed “an unreasonable application of ... clearly established Federal law,” 28 U.S.C. § 2254(d), a state court’s decision must be “‘objectively unreasonable,’ not simply erroneous or incorrect.” Cornwell v. Bradshaw, 559 F.3d 398, 405 (6th Cir.2009) (citation omitted). Further, under 28 U.S.C. § 2254(e)(1), a state court’s factual findings are presumed correct unless the petitioner rebuts them by clear and convincing evidence. Id. This statutory presumption of correctness also extends to factual findings made by a state appellate court’s review of trial court records. Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir.2003).

Under principles of comity, the state courts should have the first opportunity to hear habeas claims. O’Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Accordingly, a federal habeas petitioner must exhaust his or her state court remedies — by fairly presenting his or her constitutional claims to the state’s highest court — before raising them in federal court. 28 U.S.C. § 2254(b); O’Sullivan, 526 U.S. at 844-45, 119 S.Ct. 1728. If (1) the state court rejected the petitioner’s claim based on his or her failure to comply with the state procedural rules, or (2) the petitioner failed to exhaust his or her state court remedies and no avenue of relief remains open, or it would otherwise be futile to pursue the state remedies, the petitioner has waived that claim for habeas review under the procedural default doctrine. See Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.2006).

B. Grounds One Through Four

As a preliminary matter, the Court notes that, although this is Petitioner’s third habeas petition filed in this Court, it does not qualify as a “second or successive” habeas petition subject to the statutory requirements under 28 U.S.C. § 2244(b). Petitioner raises issues arising from his re-sentencing in June 2008— claims he could not have raised in his first and second habeas petitions filed in December 2003 and January 2008. See Magwood v. Patterson, — U.S. -, 130 S.Ct. 2788, 2795-2803, 177 L.Ed.2d 592 (2010); Lang v. United States, 474 F.3d 348, 353 (6th Cir.2007). In other words, there was a new judgment in June 2008 when Petitioner was re-sentenced pursuant to Ohio Rev. Code § 2929.191, and Petitioner is permitted to file a habeas petition to challenge this new judgment. Cf. Shackleford v. Brunsman, No. 3:10-cv-357, 2011 WL 4914967, at *2 n. 2, 2011 U.S. Dist. LEXIS 119125, at *5 n. 2 (S.D.Ohio Sept. 16, 2011).

In all four grounds for relief, Petitioner claims the attorney representing him at his 2008 re-sentencing was ineffective in violation of the Sixth Amendment. See doc. 1 at PagelD 5-9. To prevail on these claims, Petitioner must meet the two-part Strickland v. Washington test by demonstrating that his counsel’s performance was deficient, and that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is “a strong presumption that counsel’s conduct falls within a wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Thus, to meet the deficiency prong, the defendant must demonstrate that counsel’s performance “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. To satisfy the prejudice prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

The Montgomery County Court of Appeals rejected Petitioner’s ineffective assistance of counsel arguments as follows:

Golson asserts in the above errors that defense counsel was ineffective at Golson’s resentencing hearing in failing to object on several grounds. According to Golson, defense counsel was deficient in failing to object: (1) that the Ohio Supreme Court’s decision in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856 is unconstitutional; (2) that Golson’s original sentence, imposed prior to Foster, expired after six years (the shortest prison term authorized by statute) and therefore he should not have been resentenced; (3) that his convictions for aggravated robbery and kidnapping resulted from deficient indictments that failed to include the requisite mens rea for the charged offenses; and (4) that Golson’s sentence is unconstitutional because the State did not prove “sentencing enhancers,” and that a sentence in excess of six years was accordingly prohibited. Golson also asserts that his sentence violates the Double Jeopardy Clause. In a supplemental filing, Golson asserts that his convictions should have been merged as they are allied offenses of similar import.
“We review the alleged instances of ineffective assistance of trial counsel under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, * * *. Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal citation omitted). State v. Mitchell, Montgomery App. No. 21957, 2008-Ohio-493, ¶ 31, 2008 WL 344149.
We initially note, Golson has failed to provide us with a sentencing transcript. “Therefore, the record does not portray the errors he alleges. Under such circumstances, we must presume the regularity of the proceedings below” and affirm. (Citation omitted). State v. Jones, Montgomery App. No. 20862, 2006-0hio-2640, ¶ 50, 2006 WL 1461031; Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 400 N.E.2d 384; State v. Jones, Montgomery App. No. 20862, 2006-Ohio-2640.
Further, as the State points out, Golson was resentenced, not pursuant to the mandates of Foster, but pursuant to R.C. 2929.191 because the court neglected to inform Golson that he would be subject to a mandatory period of post-release control following his release from prison. R.C. 2967.28 provides that every prison sentence for a felony of the first degree shall include a mandatory five-year period of post release control. A trial court is required to notify a defendant at the time of the sentencing hearing of the potential of post release control, and must incorporate that notice into its journal entry. State v. Jordan, 104 Ohio St.3d 21, 817 N.E.2d 864, 2004-Ohio-6085. Where a sentence fails to contain a statutorily mandated term, such as post release control, the sentence is void. Id. The remedy is to resentence Golson and notify him at the hearing of his post-release control requirements. State v. Simpkins, 117 Ohio St.3d 420, 884 N.E.2d 568, 2008-Ohio-1197; State v. Davis, Montgomery App. No. 22403, 2008-Ohio-6722, 2008 WL 5273261; R.C. 2929.191.
Regarding Golson’s Foster arguments, “we have held that Foster does not operate as an ex post facto law. (Citation omitted). We have also repeatedly held that we are without jurisdiction to declare that Foster’s mandate operates as an unconstitutional ex post facto law. (Citation omitted). Accordingly, [Golson’s] argument that the mandate of the supreme court in Foster violates the United States Constitution is not cognizable in this court. In addition, we have consistently held that Foster does not apply retroactively to those cases that were neither on direct appeal nor still pending in the trial court when Foster was decided. (Citation omitted). Because [Golson’s] case was neither on direct appeal nor pending in the trial court when Foster was decided. Foster’s holding is inapplicable to his case,” State v. Kemp, Clark App. No. 2206 CA 116, 2007-Ohio-5985, ¶ 6, 2007 WL 3817418. Further, sentencing courts may impose greater than minimum and consecutive sentences without judicial factfinding after Foster, contrary to Golson’s arguments. Foster, paragraph 7 of the syllabus.

Doc. 5-3 at PagelD 641-44.

Petitioner moved the Court of Appeals to reconsider its February 19, 2010 decision. Id. at PageID 645-46. The Court denied that motion on July 20, 2010. Id. at PageID 649-56.

The Court finds that Petitioner’s counsel was not deficient for not objecting to Petitioner’s sentence on the grounds he now asserts. Nor was his counsel deficient for not challenging the validity of Petitioner’s indictment at the re-sentencing hearing. Petitioner was re-sentenced for the limited purpose of notifying him of his mandatory post-release control following his release from prison. See doc. 6-2. Indeed, the judge opened the re-sentencing hearing by stating, “Mr. Golson, you were brought back for the purposes of re-sentencing you so that I can inform you of your mandatory post-release control. It’s my intention to sentence you as I did previously.” Id. at PagelD 1675. The judge then imposed the same sentence on each count for a total of twenty-nine years imprisonment. Compare doc. 5-2 at Pa-gelD 119-20 with doc. 5-3 at PagelD 530-31. The only difference in Petitioner’s new sentence was that he was officially notified of the mandatory period of post-release control upon his release from prison. See id.

Before his 2008 re-sentencing, Petitioner had challenged his sentence on all of the grounds he now raises, and each time his sentence was upheld. The Montgomery County Court of Appeals and this Court determined that his sentence was within the statutory guidelines and constitutional. See State v. Golson, No. 17707, 2001 WL 227372 (Ohio Ct.App. Mar. 9, 2001) (doc. 5-2 at PageID 204-08); Golson v. Brigano, No. 3:03-cv-475 (S.D.Ohio Jan. 5, 2004) (doc. 5-2 at PagelD 357-58). Likewise, the Warren County Court of Appeals held that his sentence did not violate the Double Jeopardy Clause in light of the U.S. Supreme Court’s holdings in Apprendi and Blakely; nor did it violate the Ohio Supreme Court’s decision in Foster. State ex rel. Golson v. Moore, No. CA2007-04-054 (Ohio Ct.App. June 20, 2007) (doc. 5-3 at PagelD 458-60).

Additionally, the Montgomery County Common Pleas Court denied his claim that his indictment was defective thus rendering his sentence void. State v. Golson, No.1998 CR 4083 (Montgomery Cnty. Ct. Com.Pl. Mar. 31, 2010) (doc. 5-3 at Pa-gelD 528-29).

Accordingly, in light of the numerous decisions rejecting Petitioner’s arguments, the Court finds that Petitioner has failed to demonstrate that his attorney was deficient for not raising them at his re-sentencing, which was held for the limited purpose of notifying him of his mandatory period of post-release control. Moreover, even assuming, arguendo, that Petitioner had satisfied the deficiency prong, his claim nonetheless fails because he has not satisfied the prejudice prong either. The Court finds there is no reasonable likelihood the outcome would have been different had his attorney attempted to make these arguments at Petitioner’s re-sentencing hearing. Thus, having failed to satisfy the Strickland v. Washington test, Grounds One through Four — all asserting ineffective assistance of counsel claims— should be dismissed.

III. RECOMMENDATION

Based on the foregoing analysis, it is RECOMMENDED that Petitioner’s § 2254 petition for a writ of habeas corpus be DISMISSED with prejudice and this case be TERMINATED on the Court’s docket.

Reasonable jurists would not disagree with the recommended dispositions on all grounds for relief. Therefore, if Petitioner seeks to appeal, the Court RECOMMENDS that Petitioner be DENIED a certificate of appealability. 
      
      . Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.
     
      
      . The Court notes that, now that Petitioner is no longer in the custody of the Lebanon Correctional Institution, the proper Respondent in this case is the Director of the Ohio Department of Rehabilitation and Correction, who oversees the Ohio Adult Parole Authority.
     
      
      . Petitioner never filed a Reply memorandum. The Court is therefore constrained to these bare assertions in his habeas petition.
     
      
      . Ohio Revised Code § 2967.28 requires that defendants convicted of a first-degree felony be subject to a mandatory period of post-release control following his or her release from prison.
     
      
      . This decision was issued after Respondent filed its Return of Writ. The Court found the decision on the Montgomery County Clerk of Courts website. It appears that, since the Return of Writ was filed, Petitioner has made several other pro se filings in state court, including a motion for re-sentencing. However, those additional filings do not affect the habeas proceedings currently before this Court.
     
      
      . The Court also notes that Petitioner’s habeas petition was timely filed on October 1, 2010. See doc. 1. Pursuant to 28 U.S.C. § 2244(d)(1), he was required to file his habeas petition within one year from June 9, 2010 (the date his June 25, 2008 re-sentencing judgment became final when the Ohio Supreme Court denied him leave to appeal). See doc. 5-3 at PagelD 677.
     
      
      . Respondent argues that Ground Three is procedurally barred. See doc. 5 at PagelD 38-45. However, in the interest of judicial economy, the Court is not required to decide a procedural default issue when it can dispose of the claim on the merits. See Hudson v. Jones, 351 F.3d 212, 215-16 (6th Cir.2003).
     