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Nelson v. Warden, Warren Correctional Institution

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

October 20, 2017

LEROY J. NELSON, Petitioner,
v.
WARDEN, WARREN CORRECTIONAL INSTITUTION, Respondent.

          EDMUND A. SARGUS, JR., CHIEF JUDGE

          ORDER AND REPORT AND RECOMMENDATION

          Elizabeth A. Preston Deavers, United States Magistrate Judge

         Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Preliminarily, Petitioner has filed an Affidavit of Indigence and requests to proceed in forma pauperis. Upon consideration, the Court finds that Petitioner's motion is meritorious, and it is therefore GRANTED.

         IT IS ORDERED THAT the Petitioner be allowed to prosecute this action without prepayment of fees or costs and that judicial officers who render services in this action shall do so as if the costs had been prepaid.

         This matter is also before the Court on its own motion to consider the sufficiency of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

         Facts and Procedural History

         Petitioner challenges his conviction pursuant to his no contest plea in the Muskingum County Court of Common Pleas on possession of cocaine. The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:

On June 3, 2015, the Muskingum County Grand Jury indicted appellant, Leroy Nelson, on two counts of possession of drugs (cocaine and heroin) in violation of R.C. 2925.11. The indictment also contained a major drug offender specification under R.C. 2941.1410 and a forfeiture specification under R.C. 2941.1417. The heroin count was subsequently dismissed. Said charges arose from a drug trafficking investigation involving a Wesley Newman. Law enforcement officers obtained a warrant and placed a GPS device on an orange pick-up truck that Mr. Newman was known to operate. They then set up a controlled drug buy, and monitored the movements of the vehicle via the GSP system. At some point, officers stopped the vehicle and found appellant operating the vehicle, carrying cocaine on his person and inside the vehicle.
On July 28, 2015, appellant filed a motion to suppress, claiming an illegal stop and improper Miranda warnings. A hearing was held on August 10, 2015. The trial court denied the motion.
On August 20, 2015, appellant pled no contest to the remaining charge and the specifications. By entry filed August 25, 2015, the trial court found appellant guilty and ordered a presentence investigation.
On October 5, 2015, appellant appeared for sentencing and moved to withdraw his plea. A hearing on the motion was held on October 14, 2015. By entry filed October 15, 2015, the trial court denied the motion and sentenced appellant to eleven years in prison.
Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
“APPELLANT'S RIGHTS TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES UNDER THE STATE AND FEDERAL CONSTITUTIONS WERE VIOLATED BY THE DENIAL OF THE MOTION TO SUPPRESS THE WARRANTLESS SEARCH OF ...

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