The opinion of the court was delivered by: Judge Frost
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on the instant petition, respondent's motion to dismiss, petitioner's response, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be dismissed as barred by the one year statute of limitations under 28 U.S.C. §2244(d).
On March 6, 2000, petitioner was indicted by the Knox County grand jury on rape with a specification for the use of force, and two counts of corruption of a minor. Exhibit 1 to Motion to Dismiss. On October 23, 2000, while represented by counsel, petitioner pleaded guilty to rape and one count of corruption of a minor. Exhibits 2 and 3 to Motion to Dismiss. On December 15, 2000, the trial court sentenced petitioner to consecutive terms of ten years and eighteen months incarceration. Exhibit 4 to Motion to Dismiss. Petitioner was adjudicated a sexual predator. Exhibit 5 to Motion to Dismiss. Petitioner never filed a timely appeal; however, more than four years later, on April 26, 2005, he filed a motion for delayed appeal with the state appellate court. Exhibit 6 to Motion to Dismiss. On June 10, 2005, the appellate court denied petitioner's motion for delayed appeal. Exhibit 7 to Motion to Dismiss. On November 9, 2005, the Ohio Supreme Court dismissed petitioner's subsequent appeal as not involving any substantial constitutional question. Exhibit 8 to Motion to Dismiss.
On February 3, 2006, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254.*fn1
Petitioner alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:
1. Ineffective assistance of counsel resulting in denial of right to appeal.
2. In count one the court imposed the maximum sentence based upon finding of facts not charged in the indictment or admitted to by the petitioner in the guilty plea.
3. In count two the court imposed a prison term based upon facts not charged in the indictment or admitted in the petitioner's guilty plea.
4. In count 2, the court imposed the maximum prison term based on facts not charged in the indictment or admitted by the petitioner in the guilty plea.
5. Consecutive sentences were imposed based upon findings of fact not charged in the indictment, admitted by the petitioner in his guilty plea, or found by a jury.
It is the position of the respondent that this action is time barred. For the reasons that follow, the Magistrate Judge agrees.
As a preliminary matter, petitioner contends that respondent's motion to dismiss on statute of limitations grounds is improper under Rule 5(A) of the Rules Governing Section 2254 Cases in ...