United States District Court, N.D. Ohio, Western Division
Juan M. Martinez, Jr., Petitioner
Jason Bunting, Respondent
Jeffrey J. Helmick United States District Judge.
me are: (1) Magistrate Judge Nancy A. Vecchiarelli's
Report and Recommendation (Doc. No. 45); (2) Petitioner Juan
M. Martinez, Jr.'s pro se objections to the R
& R (Doc. No. 64); (3) Petitioner's motion for an
evidentiary hearing (Doc. No. 63); and (4) Petitioner's
motion for appointment of counsel. (Doc. No. 69).
2003, after a search of Petitioner Juan M. Martinez,
Jr.'s car and home, Martinez was charged with one count
of possession of cocaine and two counts of possession of
marijuana. (Doc. No. 10-1 at 5-7). A jury in the Seneca
County Court of Common Pleas found him guilty of all three
counts. Id. at 9-11. Judge Michael P. Kelbey
sentenced Martinez to seven years mandatory prison time for
possession of cocaine, two years for one count of possession
of marijuana, and eight years mandatory prison time for the
final count of possession of marijuana. Id. at
12-17. The sentences for marijuana were to be served
concurrently but consecutive to the sentence for possession
of cocaine for a total sentence of 15 years. Id. at
appeal, with the assistance of counsel Deborah Kovac Rump,
Martinez asserted the following assignments of error:
I. The trial court erred in not finding the search warrant to
be constitutionally defective because the reliability of the
informant and the probable cause to search were not
established within the four corners of the affidavit. It also
erred in not granting suppression of the warrantless searches
of Martinez's cell phone and car, and in [not]
suppressing statements he made after his arrest.
II. Defendant's sentence is violative of the Sixth
Amendment because the sentencing judge improperly made
findings of fact. Alternatively, the sentence is not
supported by clear and convincing evidence in the record and
is otherwise contrary to law.
III. The prosecutor engaged in misconduct during closing
arguments by advocating constructive possession as a theory
by which Martinez could be found guilty.
Id. at 35. On April 24, 2006, the Ohio Court of
Appeals overruled the first and third assignments of error,
but sustained the second and remanded the case to the trial
court for resentencing. Id. at 139-56. Martinez did
not appeal to the Supreme Court of Ohio.
five years passed before Martinez was resentenced on May 24,
2011, with the assistance of Rump as counsel. Id. at
157-60. Judge Kelbey, again, sentenced Martinez to a
mandatory 15 years. Id. During the resentencing,
Rump orally moved to dismiss all counts of conviction based
on lack of jurisdiction do to the five-year delay, but the
motion was denied. After resentencing, Rump filed a formal
motion to dismiss on the same jurisdictional issue.
Id. at 161-68. Judge Kelbey voluntarily recused
himself due to a “potential for conflict…in
presiding over [the] case, ” and Judge Richard Mendell
Markus was appointed by the Supreme Court of Ohio to conclude
the proceedings. Id. at 197-98. During the hearing
on the motion to dismiss, Rump orally moved for a second
resentencing by Judge Markus because of Judge Kelbey's
recusal; Judge Markus denied the motion. Id. at 203.
Judge Markus ultimately denied the motion to dismiss
“without determining whether the delay was
constitutionally unreasonable in these circumstances, ”
stating “that the delay caused no meaningful
prejudice.” Id. at 204.
with the assistance of Rump as counsel, appealed both Judge
Kelbey's sentence and Judge Markus's denial of the
motion to dismiss, which were consolidated into one appeal
before the Ohio Court of Appeals. Id. at 237. In
this appeal, Martinez raised the following assignments of
I. The trial court abused its discretion and imposed a cruel
and unusual punishment by sentencing Martinez to 15 years in
prison for 3 counts of possession. Martinez had no prior
arrests or convictions, had a history of employment, was not
violent, did not use a firearm, and had no addiction or
mental health issues.
II. In 2006, this Court reversed Martinez's sentence as
unconstitutional. It did not review his sentence on the
merits in light of this. Despite this mandate, Martinez was
not resentenced until more than 5 years later after he wrote
to the trial court inquiring as to why he had not been
resentenced. Martinez's rights pursuant to the Sixth
Amendment of the U.S. Constitution and [Ohio] Crim. R.
32(A)(1) were violated, and the lower court abused its
discretion when it denied his motion to dismiss and would not
vacate the remainder of his sentence.
III. The trial court (through a visiting judge) abused its
discretion when, after the resentencing judge abruptly
recused himself for an unspecified conflict of interest, [the
visiting judge] would not review the resentencing. This also
violated Martinez's right to due process of law as
guaranteed by the 14th Amendment of the U.S. Constitution. At
a minimum, the trial court should have made findings of fact
as to the basis for the recusal and whether the conflict of
interest impacted the May 24, 2011 resentencing.
Id. at 241. On August 20, 2012, the Ohio Court of
Appeals affirmed the sentence and denial of the motion to
dismiss, addressing Martinez's constitutional question
with respect to speedy trial in resentencing. Id. at
378- 93. Martinez appealed the decision to the Supreme Court
of Ohio, who declined jurisdiction on January 23, 2013.
Id. at 394, 441.
November 21, 2012, while the appeal to the Supreme Court of
Ohio was pending, Martinez filed a pro se Rule 26(B)
Application to reopen appeal, asserting ineffective
assistance of counsel of appellate counsel Deborah Kovac
Rump. Id. at 442. He supported his application with
the following allegations:
I. Appellant's counsel . . . failed to raise the
meritorious assignment of error that he was erroneously
convicted of “Allied Offenses” pursuant to [Ohio
Rev. Code §] 2941.25, because both counts two and three
charge possession of two separate amounts of marijuana.
II. Appellant's counsel . . . could not argue her own
ineffectiveness and conflict of interest in prior proceedings
for failing to raise this meritorious ...