Kremer v. Erdos

S.D. Ohio

Kremer v. Erdos

DecidedFebruary 26, 2021

Docket1:20-cv-00194

StatusUnknown

This text of Kremer v. Erdos (Kremer v. Erdos) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kremer v. Erdos, (S.D. Ohio 2021).

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Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

VINCENT KREMER,

Petitioner, : Case No. 1:20-cv-194

- vs - District Judge Michael R. Barrett Magistrate Judge Michael R. Merz

RON ERDOS, Warden, Southern Ohio Correctional Facility,

: Respondent. SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 26) to the Magistrate Judge’s Supplemental Report and Recommendations (ECF No. 20). District Judge Barrett has recommitted the case for reconsideration in light of the Objections (ECF No. 27). Kremer raises four objections which will be considered here in the order in which they are presented.

Objection One: Standard of Review of Magistrate Judge Decision

Shortly after this case was filed, Petitioner moved to certify the following questions to the Supreme Court of Ohio: 1. Does a substance absent from the Ohio or federal controlled substances schedules, but present on the federal temporary schedule, satisfy the definition of controlled substance under R.C. 3719.01(C) to constitute an Ohio offense in R.C. Chapter 2925.?

2. Does a substance absent from all controlled substances schedules, but satisfying the complex chemical formula from O.A.C. § 4729-11-02(B), fulfil the definition of controlled substance under R.C. 3719.01(A) to constitute an Ohio offense in R.C. Chapter 2925.?

(Motion to Certify, ECF No. 3, PageID 19). The Magistrate Judge treated the Motion to Certify as a non-dispositive pretrial motion on which he had authority to rule in the first instance under Fed.R.Civ.P. 72(a), subject to appeal to District Judge Barrett (R&R/D&O, ECF No. 13). Petitioner objects that a motion to certify to the Ohio Supreme Court is not a non- dispositive motion under 28 U.S.C. § 636(b)(1)(A) on which a Magistrate Judge can rule in the first instance, but rather a dispositive motion under § 636(b)(1)(B) on which a Magistrate Judge must make a recommended disposition (Objections, ECF No. 26, PageID 462). His reasoning is that if this Court certified the questions he proposes, that would “dispose” of them: The magistrate-court1 conceded that Kremer’s detention was unconstitutional if imposed for non-offenses, and it was the Ohio Supreme Court’s province to say if 25C-NBOMe and Fluoro-AMB were criminalized despite their absence from the controlled- substances statute. So, by definition, the certification motion would dispose of Kremer’s non-offense claim.

Id. This argument misstates the effect of certifying a question to the Supreme Court of Ohio. Granting a motion to certify does not transfer the case to the Ohio court. Instead, it merely asks that court to answer a question that is material to a case in federal court. Thus granting a motion

1 Petitioner uses this expression “magistrate-court” throughout his Objections. There is no such entity. Magistrate Judges sit as subordinate judges in District Courts with some jurisdiction conferred by statute (petty offenses, search warrants, etc.) and some only by referral from District Judges. It is common to refer whole cases and even whole categories of cases, as this Court has done at each seat of court. But final decisions in all civil cases remains with a District Judge unless there is unanimous consent to plenary Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). to certify does not “dispose” of any claim in the federal case. And the Ohio court’s answer to the question is not a “judgment” that automatically decides the federal case. Thus a motion to certify is distinct, for example, from a motion to remand a removed case to a state trial court. Because a remand removes the entire case from federal court, it is treated as a dispositive matter. Vogel v. U.S. Office Products Company, 258 F.3d 509, 514 (6th Cir. 2001).

Petitioner also asserts it was an abuse of discretion for the Magistrate Judge to deny certification because the Magistrate Judge applied the wrong legal standard. He claims “[t]he correct certification standard asks if the state-law question is novel or unsettled and would determine the federal case.” It is true that a certified question must meet that standard – it must be unsettled and potentially determinative. But that is only part of the governing law. There is no rule of federal practice that gives a federal litigant the right to certification if his proposed questions meet that standard. Indeed, many cases in federal court raise questions of state law, particularly in diversity of citizenship cases. Many of those questions may be thought to be unsettled in the sense that there is no binding Ohio Supreme Court precedent directly in point, but no court has ever held that a litigant has a right to have such questions certified. To turn the availability of certification into a right would destroy the ability of District Courts to manage their dockets by giving litigants, particularly defendants, the ability to halt civil cases in their tracks. And of course the Supreme Court of Ohio has complete discretion about whether to accept a certified question or not. The Magistrate Judge decided against certification because the Supreme Court of Ohio had an opportunity to decide whether the drugs Kremer was convicted of trafficking were among controlled

substances under Ohio law in the ordinary course of appeal and decided not to accept appellate jurisdiction. If the District Judge agrees that the Court has discretion whether or not to certify these questions, he can of course decide for himself whether it was an abuse of discretion not to grant the certification motion. Objection Two: Kremer Did Not Waive His Non-Offense Claim by Pleading Guilty

In his First Ground for Relief, Kremer claims his conviction for trafficking 25C-NBOMe is unconstitutional because that drug is not a controlled substance. The original Report found this claim was waived because in the course of pleading guilty, Kremer admitted it was a controlled substance (ECF No. 13, PageID 422-23). Kremer objects that the First District decided this claim on the merits and did not enforce the waiver by guilty plea (Objections, ECF No. 26, PageID 463). Not so. The Court of Appeals held:

Finally, we note the well-established law that "by pleading guilty, a defendant admits to committing the offense as charged." State v. Jordan, 12th Dist. Warren No. CA2014-04-051, 2015-Ohio-575 . Simply stated, a guilty plea is a complete admission of the defendant's guilt, and also waives "any deficiency in the indictment." State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, ¶ 73.

State v. Kremer, 2018-Ohio-3339, ¶ 12 (Ohio App. 12th Dist. Aug. 20, 2018).

Alternatively Kremer argues that “Ohio law forbids waiver of a non-offense claim” (Objections, ECF No. 26, PageID 463, citing State v. Cimpritz, 158 Ohio St. 490 (1953). The Cimpritz court held a judgment of conviction based on an indictment which does not charge an offense is, under Ohio law, void for lack of jurisdiction of the subject matter. However, in Midling v. Perrini, 14 Ohio St. 2d 106 (1968), also cited by Kremer, the Ohio Supreme Court held that failure to object that an indictment does not state an offense must be raised in the trial court and cannot be raised for the first time on appeal because it does not deprive the trial court of subject matter jurisdiction. See also State v. Cochran, 1995 Ohio App. LEXIS 5809 (Ohio App. 2nd Dist. Dec. 29, 1995); State v. Burkitt, 84 Ohio App. 3d 214 (Ohio App. 2nd Dist. 1993).

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