United States District Court, S.D. Ohio, Eastern Division
LEROY J. NELSON, Petitioner,
WARDEN, WARREN CORRECTIONAL INSTITUTION, Respondent.
A. SARGUS, JR., CHIEF JUDGE
ORDER AND REPORT AND RECOMMENDATION
Elizabeth A. Preston Deavers, United States Magistrate Judge
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.
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.
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
and Procedural History
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
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:
“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 ...