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Davis v. Grafton Correctional Institution Warden

United States District Court, N.D. Ohio, Eastern Division

March 1, 2017

WILEY DAVIS, JR., Petitioner,
v.
GRAFTON CORRECTIONAL INSTITUTION WARDEN, Respondent.

          OPINION AND ORDER

          CHRISTOPHER A. BOYKO UNITED STATES DISTRICT JUDGE.

         Pro se Petitioner Wiley Davis, Jr., filed this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. Davis is currently incarcerated in the Grafton Correctional Institution, having been convicted in 1992 of Aggravated Murder, Kidnaping and Aggravated Robbery with Felony Murder and Firearm Specifications. He was originally sentenced to death, but was resentenced to thirty years to life in 2011 after the Sixth Circuit Court of Appeals granted a conditional Writ of Habeas Corpus. In this Petition, Davis does not clearly specify the grounds he is asserting. Instead, he appears to simply ask this Court to consider mitigating factors and his remorse for the crime and commute his sentence to time served. For the reasons set forth below, the Petition is denied and this action is dismissed.

         I. BACKGROUND

         In May 1992, a jury convicted Davis of two counts of Aggravated Murder with three Felony-Murder specifications and a three-year Firearm Specification, as well as four counts of Kidnaping and Aggravated Robbery with three-year Firearm Specifications. State v. Davis, No. 96908, 2012 WL 1253183, at *1-3 (Ohio Ct. App. Apr. 12, 2012). The trial court on June 1, 1992, imposed the death penalty for the Aggravated Murder charges, 15 to 25 years consecutively for the Kidnaping and Aggravated Robbery charges, and three years for the Firearm Specifications.

         The United States Court of Appeals for the Sixth Circuit granted Davis habeas corpus relief by ruling that the trial court had given the jury unconstitutional unanimity instructions during the sentencing phase of the trial. Davis v. Mitchell, 318 F.3d 682 (6th Cir. 2003). The Sixth Circuit ordered a writ of habeas corpus to issue unless the State of Ohio conducted a new penalty phase proceeding within 180 days of remand. In early December 2004, the trial court issued a journal entry which provided in pertinent part as follows: “Re-sentencing hearing held 12/08/2004. Pursuant to the order of federal court, parties agree to 30 years actual to life plus 3 years actual on firearm specification on Count 1 to run consecutive to Counts 3 and 4. All other conditions of original sentence remain.” State v. Davis, No. 96908, 2012 WL 1253183, at *1-3 (Ohio Ct. App. Apr. 12, 2012). This entry did not reiterate the charges on which Davis was convicted, the means of conviction, or the sentences for the other offenses. Id. at *1. Davis appealed.

         The Ohio Eighth District Court of Appeals relied on State v. Baker, 119 Ohio St.3d 197 (2008) and found that the December 2004 sentencing entry did not comply with Ohio Criminal Rule 32. The entry did not state the means of conviction for any of the counts, and it specified the sentence only for Count 1. The court issued a Writ of Mandamus and ordered the State of Ohio and the trial judge to issue a final, appealable order in the underlying case which removed the various jurisdictional impediments under Crim.R. 32, and Baker. Id. at *2.

         Subsequently, on May 20, 2011, the trial court issued a nunc pro tunc entry for the December 10, 2004 entry, stating:

On a former day[, ] a jury found defendant guilty of aggravated murder[, ] in violation of R.C. 2903.01(A)[, ] with felony murder specifications (specifications one, two and three) and a firearm specification (specification four) in Count 1; of aggravated murder[, ] in violation of 2903.01(B)[, ] with felony murder specifications (specifications one, two and three) and a firearm specification (specification four) in Count 2; of kidnapping[, ] in violation of R.C. 2905.01[, ] with a firearm specification (specification one) in Count 3; and of aggravated robbery[, ] in violation of R.C. 2911.01[, ] with a firearm specification (specification one) in Count 4. On a former day[, ] Count 5 and Count 6 were dismissed without prejudice.
On a former day[, ] defendant elected to have the aggravated felony specifications in the indictment tried by this court. The court found defendant guilty of aggravated felony specifications (specifications five and six) in Count 1; of aggravated felony specifications (specifications five and six) in Count 2; of aggravated felony specifications (specifications two and three) in Count 3; and of aggravated felony specifications (specifications two and three) in Count 4.
Resentencing held 12/08/2004 pursuant to the order of the court in [State ex rel. Davis] (C.A. 6, 2003), 318 F.3d 682. Parties agree to 30 years actual to life on Count 1 (aggravated murder) plus three years actual on the firearm specification (specification four) in Count 1 to be served prior to and consecutive with the base charge in Count 1. Counts 1 and 2 were merged by order of the court in State v. Davis, 76 Ohio St.3d 107, 1996-Ohio-414.
The felony murder specifications based upon committing or attempting to commit rape (specifications three) in Counts 1 and 2 were reversed by order of the court in [Davis], 76 Ohio St.3d 107, 1996-Ohio-414.
Defendant also sentenced to fifteen (15) to twenty-five (25) years on each of Counts 3 and 4 to be served concurrently to each other but consecutively to the sentence in Count 1. Firearm specifications in Counts 2 through 4 to merge at sentencing with firearm specification in Count 1.
Defendant to receive credit for all time ...

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