DWAYNE BROOKS v. LASHANN EPPINGER (2017)

ORDER

Dwayne Brooks, an Ohio prisoner represented by counsel, appeals a district court judgment denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This court construes Brooks's notice of appeal as a request for a certificate of appealability. See Fed. R. App. P. 22(b).

In 1988, a jury convicted Brooks of aggravated murder, Ohio Rev. Code § 2903.01, with a mass murder specification; two counts of attempted aggravated murder, Ohio Rev. Code §§ 2923.02 and 2903.02; and aggravated robbery, Ohio Rev. Code § 2911.01. He was sentenced to life imprisonment without the possibility of parole until he served twenty years in prison for the aggravated murder conviction, to be served consecutive to three concurrent terms of five to twenty-five years of imprisonment for the attempted aggravated murder and aggravated robbery convictions. The Ohio Court of Appeals affirmed, State v. Brooks, No. 57034, 1991 WL 1494 (Ohio Ct. App. Jan. 10, 1991), and the Ohio Supreme Court declined jurisdiction, State v. Brooks, 585 N.E.2d 428 (Ohio 1992).

After unsuccessfully pursuing post-conviction relief in the state courts, Brooks filed a petition under § 2254 in the district court, challenging the constitutionality of his conviction. The district court denied the petition as time-barred and, alternatively, as meritless. Brooks v. Money, No. 1:00-CV-2395 (N.D. Ohio Oct. 15, 2001). This court declined to issue a certificate of appealability, Brooks v. Money, No. 02-4112 (6th Cir. May 5, 2003), and the Supreme Court denied certiorari, Brooks v. Money, 540 U.S. 1054 (2003).

On September 19, 2005, the Ohio Parole Board held a hearing to determine Brooks's suitability for parole. The Parole Board denied parole due to the serious nature of the offense and the fact that the crimes involved multiple victims. In 2010, the Ohio Department of Rehabilitation and Correction (“ODRC”) determined that Brooks's 2005 parole hearing was held in error. In particular, the ODRC concluded that, because Brooks was not eligible for parole until serving twenty “full” years in prison, a hearing held in 2005—when Brooks, at that time, had served only seventeen years in prison—was premature. The Parole Board therefore, on June 8, 2011, recorded “special minutes” indicating that, in view of the ODRC's determination that the 2005 hearing was held in error, the 2005 hearing and decision were rescinded.

On October 11, 2011, the Parole Board held a hearing and determined that Brooks was unsuitable for release based on the nature of the crime and the risk that Brooks posed to the community. On August 17, 2015, the Parole Board held another hearing and again determined that Brooks was unsuitable for release “due to the serious nature of the offense” and because release “would place the safety and security of society in jeopardy.” Review was continued until 2020.

Meanwhile, in August 2011, Brooks filed a habeas petition in state court, claiming that the Parole Board improperly denied him good time credit and improperly enhanced his minimum sentence to twenty “full” years. The Ohio Court of Appeals denied the petition and, on October 3, 2011, denied Brooks's motion for reconsideration.

In January 2012, Brooks filed a motion in the trial court to correct clerical mistakes in its judgment order, arguing that his judgment is void because the trial court failed to include the language twenty “full” years in its judgment entry. The trial court denied the motion, and the Ohio Court of Appeals affirmed. State v. Brooks, No. 98380, 2012 WL 5555164 (Ohio Ct. App. Nov. 15, 2012).

In December 2013, Brooks filed a habeas petition in the Ohio Supreme Court, raising the same arguments that he raised in his habeas petition that was denied by the Ohio Court of Appeals. The Ohio Supreme Court dismissed the petition on March 12, 2014.

In March 2014, Brooks filed another habeas petition in the Ohio Court of Appeals, raising the same arguments that he raised in his first petition. The Ohio Court of Appeals dismissed the petition on res judicata grounds, and on July 14, 2015, the Ohio Supreme Court affirmed.

On April 28, 2016, Brooks filed the instant § 2254 petition in the district court. He raises the same claims that he raised in his state court petitions; namely, that the Parole Board (1) unconstitutionally enhanced his sentence by determining that he must serve twenty “full” years in prison before being eligible for parole and (2) unlawfully failed to give him credit for time served pursuant to Ohio Revised Code § 2967.13.

The district court denied the petition as time-barred and because the claims were not cognizable on federal habeas review. It also declined to issue a certificate of appealability. Brooks now moves this court for a certificate of appealability.

We may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “[W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim,” the petitioner can satisfy § 2253(c)(2) by establishing that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year statute of limitations for filing habeas corpus petitions. See 28 U.S.C. § 2244(d)(1). The one-year period generally runs from “the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). But in the parole context, the statute of limitations begins to run on the date that the petitioner “could have discovered the ‘factual predicate of the claim ․ through the exercise of due diligence.’ ” Ali v. Tenn. Bd. of Pardon & Paroles, 431 F.3d 896, 898 (6th Cir. 2005) (quoting 28 U.S.C. § 2244(d)(1)(D)).

Reasonable jurists could not debate the district court's ruling that Brooks's habeas corpus petition was time-barred. The “factual predicate” of Brooks's claims arose, at the latest, when the Ohio Supreme Court dismissed Brooks's second habeas petition, i.e., “the conclusion of state judicial review of the parole denial.” Id. The one-year statute of limitations thus began to run on March 13, 2014, the date after which the Ohio Supreme Court dismissed Brooks's second habeas petition. See 28 U.S.C. § 2244(d)(1)(D). Brooks did not file the instant petition in the district court until April 28, 2016, over one year after the statute of limitations expired. The filing of Brooks's third habeas petition—which was dismissed on res judicata grounds—does not toll the limitations period because, by the time it was filed, the Ohio Supreme Court had already been given a full and fair opportunity to decide the claims when it considered and dismissed Brooks's second habeas petition. See O'Sullivan v. Boerckel, 526 U.S. 838, 842, 845 (1999) (holding that the AEDPA's exhaustion requirement is satisfied when the state courts have “one full opportunity to resolve any constitutional issues”) (emphasis added). Consequently, reasonable jurists would not debate the district court's conclusion that Brooks's petition is time-barred.

Brooks argues that he is entitled to equitable tolling. Section 2244(d) is subject to equitable tolling when a petitioner shows that: (1) “ ‘he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

Brooks alleges only that he is entitled to tolling because he has made “diligent effort[s]” to challenge the actions of the Parole Board in the state courts. Brooks offers no explanation why he continued to pursue relief in the state courts but delayed the filing of the instant petition, which raises the same claims that were repeatedly raised in and rejected by the state courts. Reasonable jurists therefore could not debate the district court's ruling that Brooks's petition does not merit equitable tolling.

Nor could reasonable jurists dispute the district court's conclusion that Brooks's claims are not cognizable on federal habeas review because he does not have a constitutionally protected liberty interest in his state parole. See Inmates of Orient Corr. Inst. v. Ohio State Adult Parole Auth., 929 F.2d 233, 235 (6th Cir. 1991) (“The law of Ohio gives a convicted person no legitimate claim of ‘entitlement’ to parole before the expiration of a valid sentence of imprisonment.”). Further, Brooks's claims that he is not challenging the denial of parole but rather “the parole board's authority to extend his sentence” and the Parole Board's failure to give him credit under Ohio Revised Code § 2967.13 are matters of state law that are not cognizable on federal habeas review. See Pulley v. Harris, 465 U.S. 37, 41 (1984).

Accordingly, we DENY the application for a certificate of appealability.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk