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«BEFORE: BOGGS and DONALD, Circuit Judges; and HOOD, District Judge.* BOGGS, Circuit Judge. In 2004, an Ohio grand jury indicted appellant Sero Duvall ...»

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 16a0068n.06

Case No. 13-4171

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Feb 02, 2016

SERO DUVALL ASKEW, ) DEBORAH S. HUNT, Clerk

)

Petitioner-Appellant, )

) ON APPEAL FROM THE UNITED

v. ) STATES DISTRICT COURT FOR

) THE NORTHERN DISTRICT OF

MARGARET BRADSHAW, Warden, ) OHIO ) Respondent-Appellee. ) ) ) BEFORE: BOGGS and DONALD, Circuit Judges; and HOOD, District Judge.* BOGGS, Circuit Judge. In 2004, an Ohio grand jury indicted appellant Sero Duvall Askew on counts of possession of cocaine and trafficking in cocaine. After the trial court denied Askew’s pretrial motions to suppress evidence, Askew entered a plea of no contest. The trial court sentenced Askew to a term of imprisonment of fifteen years. After Askew was denied a writ of habeas corpus in federal court, an Ohio court vacated Askew’s sentence on state-law grounds, conducted a de novo resentencing hearing, and again sentenced Askew to fifteen years of imprisonment. Askew then filed the instant second federal habeas application in 2012, which the district court dismissed on the ground that the petition was “second or successive” within the * The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.

Case No. 13-4171 Askew v. Bradshaw meaning of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). For the reasons given below, we disagree and remand this case to the district court for further consideration of Askew’s petition.

I On April 26, 2004, a Stark County, Ohio, grand jury indicted Askew on three counts of trafficking in cocaine and three counts of possession of cocaine, in violation of Ohio law. Askew moved to suppress physical evidence obtained during a consent search of his girlfriend’s house, as well as an inculpatory statement that he had made to officers, contending that his girlfriend’s consent and his own statement were both given involuntarily. After the Ohio Court ofCommon Pleas denied Askew’s motions, Askew entered a plea of no contest to the indictment. The court accepted Askew’s plea and sentenced him to an aggregate term of fifteen years of imprisonment, suspended his driver’s license for five years, and ordered him to pay a fine of $10,000. The Ohio Court of Appeals affirmed and the Supreme Court of Ohio declined to hear Askew’s appeal. In 2005, the Court of Common Pleas rejected Askew’s untimely petition for state postconviction relief.

In 2006, Askew turned to the federal courts for relief and filed a pro se petition for a writ of habeas corpus in the Northern District of Ohio. Askew brought two claims for relief. First, he argued that the Ohio courts should have suppressed evidence seized as a result of an illegal search of his mobile phone. Second, Askew argued that the Ohio courts had imposed a sentence in violation of Blakely v. Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court dismissed Askew’s petition, reasoning that Stone v.

Powell, 428 U.S. 465 (1976), prevented Askew from raising the first claim, and that Askew had procedurally defaulted the second. Askew did not appeal.

Case No. 13-4171 Askew v. Bradshaw In 2008, Askew returned to state court, where he moved to modify his sentence and withdraw his plea of no contest. The court denied both motions. Askew appealed the court’s denial of his motion to withdraw his plea. The Ohio Court of Appeals affirmed on the ground that the Court of Common Pleas lacks jurisdiction to rule on a motion to withdraw a guilty plea after an appellate court has affirmed the related conviction on direct appeal.

Askew then filed a motion to revise his sentencing journal entry on the ground that the trial court’s 2004 journal entry never made a finding of guilt as to Askew’s no-contest plea.

Because the Ohio Supreme Court had held in State v. Baker, 893 N.E.2d 163 (Ohio 2008), that a judgment of conviction is an appealable order only when the trial court “sign[s] and journalize[s]” a document that sets forth the manner of conviction, id. at 166, the Court of Common Pleas agreed that Askew’s sentence had not been properly imposed and granted his motion. Askew subsequently argued, and the State of Ohio conceded, that Askew’s sentence was entirely void because his sentencing entry did not mention the applicable conditions of postrelease control, in violation of Ohio Rev. Code § 2929.19(B). The concession was based on the Ohio Supreme Court’s decisions in State v. Singleton, 920 N.E.2d 958 (Ohio 2009), overruled by State v. Fischer, 942 N.E.2d 332 (Ohio 2010), and State v. Bezak, 868 N.E.2d 961 (Ohio 2007), overruled by Fischer, 942 N.E.2d 332.

Though the Ohio trial court could have corrected the Baker violation with a nunc pro tunc order amending Askew’s journal entry of conviction, see State v. Lester, 958 N.E.2d 142, 144 (Ohio 2011); see also State v. Clay, 933 N.E.2d 296, 301 (Ohio Ct. App. 2010), the Singleton court had held that any judgment that lacked post-release conditions of control, where relevant, was a legal “nullity” if entered before July 11, 2006, Singleton, 920 N.E.2d at 964. To correct such a legal nullity, the Singleton court required “trial courts [to] conduct a de novo sentencing Case No. 13-4171 Askew v. Bradshaw hearing” and enter post-release conditions of control. Id. at 959. Relying on Singleton, the Court of Common Pleas conducted a de novo resentencing hearing to correct the deficiency in Askew’s judgment. The court observed that “it is undisputed that Mr. Askew’s sentence is void.... [A]s a result, we place him in the same position that he would have been in had he never been sentenced....” Accordingly, the court vacated Askew’s sentence, reviewed a new sentencing memorandum, and heard arguments from both parties, after which the court imposed the same sentence, driver’s-license suspension, and fine as it had in 2004. The court also denied an oral motion in which Askew asked to withdraw his plea of no contest.





Askew appealed, arguing that the Court of Common Pleas should have allowed him to withdraw his plea during the resentencing proceeding. Askew also directly challenged his undisturbed conviction in three ways, arguing that the Court of Common Pleas erred in 2004 when it denied his motion to suppress evidence, accepted his plea of no contest without advising him of the correct term of post-release control, and failed to merge his convictions for trafficking in cocaine and possession of cocaine. The Ohio Court of Appeals affirmed. State v. Askew, No.

2010CA00069, 2011 WL 578762, at *2 (Ohio Ct. App. Feb. 14, 2011). For the second time, the court explained that in Ohio, “the trial court is without jurisdiction to vacate Appellant’s plea after this Court has affirmed his conviction.” Id. at *1. Relying in part on the then-recent decision of the Ohio Supreme Court in State v. Fischer, 942 N.E.2d 332 (Ohio 2010), the court observed that Ohio law does not permit defendants resentenced pursuant to Singleton to have another opportunity to challenge their undisturbed convictions. Askew, 2011 WL 578762, at *1–

2. The court explained that because Askew’s remaining “assignments of error were or could have been raised in his initial appeal to this Court,” he could not raise them again in his appeal from resentencing. Id. at *1. The Supreme Court of Ohio denied leave to appeal. State v.

Case No. 13-4171 Askew v. Bradshaw Askew, 953 N.E.2d 843 (Ohio 2011) (table); State v. Askew, 951 N.E.2d 1047 (Ohio 2011) (table).

Askew then filed his second federal habeas petition in the Northern District of Ohio, asserting three grounds for relief. First, Askew argued that the Ohio courts denied him due process of law in his resentencing hearing and appeal by refusing to allow him to withdraw his plea of no contest and by refusing to consider any of his arguments that “were or could have been raised in his initial appeal to” the Ohio Court of Appeals. Second, Askew argued that appellate counsel was ineffective in his direct appeal from resentencing because appellate counsel did not argue that Askew’s trial counsel was ineffective in the initial proceedings in 2004, allegedly because of trial counsel’s failure to argue that a warrantless search of Askew’s mobile device violated the Fourth Amendment. Third, Askew argued that appellate counsel in his direct appeal from resentencing was ineffective for having failed to raise the trial court’s failure in 2004 to inform him of the maximum sentence that he faced before he pleaded no contest.

In his Report and Recommendation, the magistrate judge interpreted Askew’s petition as presenting a question explicitly left open by the Supreme Court in Magwood v. Patterson, 561 U.S. 320 (2010). In Magwood, the Supreme Court held that a petitioner’s second-in-time habeas petition that was the first to challenge a new sentence was not “second or successive” within the meaning of AEDPA. Id. at 323–24. The magistrate judge observed that unlike Billy Joe Magwood, whose petition challenged only his new sentence, see id. at 339, Askew effectively sought to use his second-in-time petition to attack his undisturbed conviction. With Sixth Circuit precedent on the issue lacking, the magistrate judge followed the analysis of the Seventh Circuit in Suggs v. United States, 705 F.3d 279 (7th Cir. 2013), in which that court held Case No. 13-4171 Askew v. Bradshaw that allowing a petitioner two full opportunities to attack the same undisturbed conviction without showing cause or a fundamental miscarriage of justice would run afoul of pre-AEDPA abuse-of-the-writ doctrine, as well as the principles of “comity, finality, and federalism” that AEDPA sought to further. Id. at 285 (quoting Duncan v. Walker, 533 U.S. 167, 178 (2001)).

Because AEDPA prohibits district courts from considering “second or successive” petitions without prior authorization from the courts of appeals, see 28 U.S.C. § 2244(b)(3)(A), the magistrate judge proposed dismissing Askew’s petition. The district court agreed, adopted the magistrate judge’s Report and Recommendation, and dismissed Askew’s petition.1 This court then granted Askew a certificate of appealability to determine whether Askew’s petition is “second or successive” within the meaning of AEDPA. Askew v. Bradshaw, No. 13-4171, slip op. at 2–3 (6th Cir. Apr. 28, 2014) (order). We now hold that it is not.

In In re Sims, 111 F.3d 45 (6th Cir. 1997) (per curiam), this court held that “when a prisoner has sought § 2244(b)(3) permission from the district court, or when a second or successive petition for habeas corpus relief or § 2255 motion is filed in the district court without § 2244(b)(3) authorization from this court, the district court shall transfer the document to this court pursuant to 28 U.S.C. § 1631.” Id. at 47. Although the district court’s decision to dismiss Askew’s application instead of transferring it to this court does not affect our reasoning or holding in this case, we note that we have not retreated from our holding in Sims. See Albo v.

United States, 498 F. App’x 490, 495 (6th Cir. 2012); In re Smith, 690 F.3d 809, 810 (6th Cir.

2012) (order). The district court dismissed Askew’s petition on the ground that the Magwood Court implicitly overruled Sims when it held that “if Magwood’s application was ‘second or successive,’ the District Court should have dismissed it in its entirety because he failed to obtain the requisite authorization from the Court of Appeals.” Magwood, 561 U.S. at 331. Although the district court’s conclusion that our holding in Sims is inconsistent with Magwood is understandable, we recently reaffirmed the validity of the Sims rule in King v. Morgan, 807 F.3d 154 (6th Cir. 2015). See id. at 158. Magwood originated in the Eleventh Circuit, which has not adopted our rule of requiring district courts to transfer “second or successive” petitions to the Court of Appeals. See Guenther v. Holt, 173 F.3d 1328, 1330–31 (11th Cir. 1999). Because the Magwood Court did not have occasion to consider Sims, we see no reason that our rule should not continue to apply.

Case No. 13-4171 Askew v. Bradshaw

–  –  –

After reviewing de novo the question of whether Askew’s petition is “second or successive” within the meaning of AEDPA, see Lang v. United States, 474 F.3d 348, 351 (6th Cir. 2007), we conclude that in light of Magwood and a recent decision of this court, King v.

Morgan, 807 F.3d 154 (6th Cir. 2015), the district court should not have dismissed Askew’s petition on the ground that it was “second or successive.” Because the errors he alleges relate to a new judgment, the district court should have considered the petition as if it was Askew’s first.

We proceed by reviewing Magwood and King before explaining why both decisions apply to Askew’s petition.

–  –  –

28 U.S.C. § 2244 sets two limits on when and how a habeas petitioner may bring a “second or successive” habeas corpus application. First, a petitioner seeking to bring a “second or successive” application must obtain authorization from the appropriate court of appeals for an order authorizing the petitioner to proceed with his application in the district court. Id.

§ 2244(b)(3)(A). When a petitioner ignores this provision and files a “second or successive” application in the district court without authorization, the district court lacks jurisdiction to hear the petitioner’s claims. Burton v. Stewart, 549 U.S. 147, 149 (2007) (per curiam). Second, AEDPA limits substantive review of claims raised in “second or successive” petitions: The law directs courts to dismiss any claim presented in a “second or successive” habeas corpus application that the petitioner already presented in a prior application. 28 U.S.C. § 2244(b)(1).

AEDPA also requires courts to dismiss new claims in “second or successive” applications unless one or both of two exceptions not operative here applies. See id. § 2244(b)(2).



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