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Rhodes v. Warden Ross Correctional Institution

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

April 7, 2017

RUBEN RHODES, Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

          MICHAEL H. WATSON JUDGE.

          REPORT AND RECOMMENDATION

          NORAH MCCANN KING UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent's Return of Writ (ECF No. 9), Petitioner's Traverse (ECF No. 12), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

         Facts and Procedural History

         The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:

Rhodes was accused of making several trips to Florida to acquire controlled substances to be sold in central Ohio. This led to two separate indictments. The first indictment was issued on August 9, 2012 and included one count of engaging in a pattern of corrupt activity, five counts of aggravated trafficking in drugs as a felony of the second degree, two counts of aggravated trafficking in drugs as a felony of the fourth degree, and three counts of aggravated possession of drugs as felonies of the fifth degree.
On July 19, 2013, Rhodes was indicted a second time. This time he was charged with six counts of aggravated funding of drug trafficking as felonies of the first degree. He also was charged with another count of aggravated trafficking in drugs as a felony of the second degree.
The two indictments were tried in a single trial. The jury returned verdicts of guilty as to all counts.

State v. Rhodes, No. 13AP-821, 13AP-845, 2014 WL 2465312, at *1 (Ohio App. 10th Dist. May 29, 2014). The trial court sentenced Petitioner on all counts, for a total aggregate sentence of 37 years' imprisonment. Judgment Entry (ECF No. 9-1, PageID# 84). Petitioner filed a timely appeal, presenting the following claims:

I. THE TRIAL COURT ERRED WHEN IT ALLOWED THE TESTIMONY OF AN EXPERT WITNESS WHO WAS NOT PREVIOUSLY DISCLOSED TO DEFENDANT'S COUNSEL.
II. APPLICANT WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
III. THE TRIAL COURT ERRONEOUSLY APPLIED THE DOCTRINE OF MERGER IN THE SENTENCE OF APPELLANT.

Id. On May 29, 2014, the state court of appeals overruled the first and second assignments of error, and overruled in part and sustained in part the third assignment of error:

[The trial court's sentencing on all charges for which the jury returned guilty verdicts] does not constitute strict compliance with R.C. 2941.25, since the statute bars a conviction on certain charges and does not mandate concurrent sentences.
The State of Ohio has acknowledged that the trial court erred by sentencing Rhodes on two of the possession charges at the same time it sentenced him on related trafficking charges involving the same controlled substances. This mistake by the trial court necessitates a new sentencing proceeding.

Id. The appellate court therefore remanded the case to the trial court for a new sentencing hearing. Id. Petitioner did not file a timely appeal to the Ohio Supreme Court from that decision but, on December 17, 2014, Petitioner filed a motion for delayed appeal to the Ohio Supreme Court. (ECF No. 9-1, PageID# 179). On January 28, 2015, the Ohio ...


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