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O'Neal v. Kelly

United States District Court, Sixth Circuit

June 4, 2013

WILLIAM B. O'NEAL, Petitioner,
v.
BENNIE KELLY, Warden, Respondent.

MEMORANDUM OF OPINION

CHRISTOPHER A. BOYKO, District Judge.

This matter comes before the Court on Petitioner William B. O' Neal's Petition under 28 U.S.C. ยง 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF #1). For the following reasons, the Court accepts and adopts the Magistrate Judge's Report and Recommendation and denies Petitioner's Petition.

FACTS

The following is a factual synopsis of Petitioner's claims. The Magistrate Judge's Report and Recommendation, adopted and incorporated, provides a more complete and detailed discussion of the facts.

Petitioner was indicted by the Court of Common Pleas of Medina County on two counts of Attempted Murder, three counts of Kidnaping, one count of Felonious Assault, one count of Carrying a Concealed Weapon, one count of Illegal Possession of a Firearm in a Liquor Permit Premises, and eight Firearm Specifications. On May 17, 2005, Petitioner pleaded guilty to three counts of Kidnaping, each with a Firearm Specification; two counts of Felonious Assault, each with a Firearm Specification; one count of Carrying a Concealed Weapon; and one court of Illegal Possession of a Firearm in a Liquor Permit Premises, with a Firearm Specification.

Petitioner was sentenced on July 19, 2005. The court merged the two counts of Kidnaping and merged the two counts of Felonious Assault. The court then sentenced Petitioner to three years for Kidnaping, ten years for Felonious Assault, three years for the Firearm Specification attached to the count of Felonious Assault, one year for Carrying a Concealed Weapon, and one year for Illegal Possession of a Firearm in a Liquor Premises. The trial court ordered the sentences for Kidnaping, Felonious Assault, and the Firearm Specification to run consecutively to one another. The court also ordered the remaining sentences to run concurrently with one another and concurrently with the consecutive sentences for a total incarceration of thirteen years.

Petitioner timely appealed his sentence, challenging the trial court's imposition of consecutive prison terms totaling thirteen years. On April 19, 2006, the Court of Appeals sustained Petitioner's assignment of error and remanded the case to the trial court for re-sentencing in accordance with State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006). The trial court held a re-sentencing hearing, and sentenced Petitioner to the same sentence. Petitioner appealed his re-sentencing. The Court of Appeals found that because the trial court had failed to include a finding of Petitioner's guilt in the judgment entry, the trial court had failed to issue a final, appealable order. The Court of Appeals dismissed the appeal for lack of subject matter jurisdiction and urged the trial court to issue a proper judgment entry. The trial court entered a proper judgment entry nunc pro tunc, again imposing the sentence it had imposed in its previous judgment entry.

Petitioner timely appealed the nunc pro tunc judgment entry. On March 24, 2008, the Court of Appeals affirmed the judgment of the trial court. Petitioner filed two Memoranda in Support of Jurisdiction in the Ohio Supreme Court, one appealing the Court of Appeals' dismissal for lack of jurisdiction, and the other appealing the affirmation of the trial court's nunc pro tunc sentence. The Ohio Supreme Court declined jurisdiction on September 10, 2008.

On June 11, 2008, Petitioner filed an Application to Reopen his direct appeal pursuant to Ohio App. R. 26(B). On August 6, 2008, the Court of Appeals denied Petitioner's Application. Petitioner appealed the decision to the Ohio Supreme Court. On December 3, 2008, the Ohio Supreme Court dismissed Petitioner's Appeal as not involving any substantial constitutional question.

While Petitioner's appeals were pending, he filed several post-conviction motions in the trial court. After the motions were denied, Petitioner then appealed to the Court of Appeals and the Ohio Supreme Court. The courts denied all of his appeals, except for the appeal of his Motion to Invalidate his sentence. On May 13, 2010, The Court of Appeals found that the trial court's nunc pro tunc sentencing of Petitioner erred in the term of Post-Release Control imposed. The court, therefore, sustained Petitioner's assignment of error and remanded the case to the trial court for re-sentencing with respect to the term of Post-Release Control.

From April 13, 2010, until March 14, 2012, Petitioner filed additional Motions to Vacate and to Withdraw Guilty Plea in the trial court. At a re-sentencing hearing on November 29, 2010, the trial court re-sentenced Petitioner to the same sentence of thirteen years he had received previously, and imposed the correct term of Post-Release Control. Petitioner appealed the re-sentencing, and the Court of Appeals overruled the assignments of error, noting the case was remanded solely to impose Post-Release Control, and reinstated the previous sentence.

On March 14, 2012, Petitioner filed a Motion in the trial court to correct a clerical error in the judgment of sentence. Petitioner asserts that when the trial court mis-spoke, and stated at the re-sentencing that the prison terms would be served concurrently, the original sentence of consecutive terms, totaling thirteen years, was a clerical error that the court should have corrected. The trial court dismissed this Motion. Petitioner timely appealed the trial court's denial of the Motion. On December 5, 2012, Petitioner's final state court appeal was overruled, and the Court of Appeals affirmed the judgment of the trial court.

On July 28, 2009, while his state appeals of his various motions were still pending, Petitioner filed in this Court a Petition for a Federal Writ of Habeas Corpus raising nine Grounds for Relief. On October 19, 2009, Petitioner amended his Petition to add four additional Grounds for Relief. On October 27, 2009, Petitioner moved for a stay of his habeas proceedings to exhaust those claims that were still pending in state court. Petitioner's Motion was denied, and Petitioner moved to withdraw his Petition on February 11, 2010. The Motion was granted.

Petitioner filed the instant Petition on October 16, 2012, asserting the following grounds for relief:

GROUND ONE: Trial court erred and petitioner was prejudiced when the court:
(1) journalized a sentence, other than the sentence handed down in open court;
(2) modified and effectively increased, by judgment entry, the sentence handed down in open court ...

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