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Halstead v. Gray

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

October 31, 2017

SHANNON W. HALSTEAD, Petitioner,
v.
DAVID W. GRAY, [1] Warden, Respondent.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO. 12]

          Benita Y. Pearson, United States District Judge.

         Pro Se Petitioner Shannon W. Halstead, currently an inmate at the Belmont Correctional Institution, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1), alleging two (2) grounds for relief which challenge the constitutional sufficiency of his conviction in Cuyahoga County, Ohio Court of Common Pleas Case No. CR-14-588993-A. The case was referred to Magistrate Judge Kathleen B. Burke for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(2). The magistrate judge subsequently issued a Report & Recommendation (ECF No. 11). In her Report, the magistrate judge recommends that the Court deny the Petition because Ground One is not cognizable in this federal habeas corpus proceeding and/or is procedurally defaulted, and Ground Two fails on the merits. ECF No. 11 at PageID #: 675. Petitioner filed timely Objections to the Magistrate Judge's Report (ECF No. 12). The Court, after reviewing the Objections, hereby adopts the Report and denies the Petition.

         I. Facts

         Petitioner was convicted in a jury trial of two counts of felonious assault, one count of kidnapping, and one count of theft. ECF No. 9-1 at PageID #: 84. The trial court sentenced him to five years imprisonment on the two felonious assault convictions, five years imprisonment on the kidnapping conviction, and six months imprisonment on the theft conviction. All three sentences were to be run concurrently giving Petitioner a total of five years imprisonment. ECF No. 9-1 at PageID #: 85-86.

         Petitioner appealed to the Eighth District Court of Appeals of Ohio. ECF No. 9-1 at PageID #: 87. He raised three assignments of error. ECF No. 9-1 at PageID #: 95. The Ohio Court of Appeals affirmed the trial court as to the first two assignments of error, but agreed with Petitioner that kidnapping and felonious assault were allied offenses that should have been merged as the same offense. The case was remanded in part for a new sentencing hearing. State v. Halstead, No. 102723, 2016 WL 515758, at *5, ¶¶ 19-20 (Ohio App. 8th Dist. Jan. 28, 2016); ECF No. 9-1 at PageID #: 146. In May 2016, the Supreme Court of Ohio declined to accept jurisdiction of the appeal, State v. Halstead, 145 Ohio St.3d 1473 (2016); ECF No. 9-1 at PageID #: 192, and Petitioner did not further appeal to the United States Supreme Court.

         In July 2016, pursuant to the Ohio Court of Appeals' remand order, the trial court merged Petitioner's kidnapping and felonious assault counts; the state elected for Halstead to be sentenced on the felonious assault count; and, the trial court sentenced him to five years for felonious assault and six months for theft, to be served concurrently, for an aggregate sentence of five years in prison. ECF No. 9-1 at PageID #: 193-94.

         In November 2016, Petitioner filed an Application for Reopening Pursuant to Ohio App. R. 26(B). ECF No. 9-1 at PageID #: 195-203. It was denied by the Eighth District Court of Appeals of Ohio in February 2017. State v. Halstead, No. 102723, 2017 WL 526263 (Ohio App. 8th Dist. Feb. 6, 2017); ECF No. 9-1 at PageID #: 204-208. Petitioner did not appeal this decision to the Ohio Supreme Court.

         On August 9, 2016, Petitioner filed the instant timely Petition for a Writ of Habeas Corpus (ECF No. 1).

         II. Standard of Review for a Magistrate Judge's Report and Recommendation

         When objections have been made to the Magistrate Judge's Report and Recommendation, the District Court standard of review is de novo. Fed. R. Civ. 72(b)(3). A district judge:

must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Id.

         Accordingly, this Court has conducted a de novo review of the portions of the Magistrate Judge's Report to which Petitioner has properly objected.

         III. Law ...


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