United States District Court, S.D. Ohio, Eastern Division
MICHAEL H. WATSON JUDGE.
REPORT AND RECOMMENDATION
MCCANN KING UNITED STATES MAGISTRATE JUDGE.
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.
and Procedural History
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
II. APPLICANT WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF
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
[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
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 ...