                 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.
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       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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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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       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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       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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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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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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