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Martinez v. Bunting

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

November 20, 2017

Juan M. Martinez, Jr., Petitioner
v.
Jason Bunting, Respondent

          MEMORANDUM OPINION

          Jeffrey J. Helmick United States District Judge.

         I. Introduction

         Before 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).

         II. Background

         In May 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 15.

         On 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.

         Over 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.

         Martinez, 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 error:

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.

         On 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 ...

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