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Blair v. Cook

United States District Court, S.D. Ohio, Western Division, Cincinnati

December 11, 2017

WILLIAM BLAIR, Petitioner,
v.
BRIAN COOK, Warden, Southeastern Correctional Institution, Respondent.

          Susan J. Dlott District Judge.

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.

         This is a habeas corpus case under 28 U.S.C. § 2254 brought pro se by Petitioner William Blair to obtain relief from his convictions in the Butler County Common Pleas Court (Petition, ECF No. 3). On Order of Magistrate Judge Karen Litkovitz (ECF No. 2), the Respondent has filed the State Court Record (ECF No. 7) and a Return of Writ (ECF No. 8). Petitioner then filed a Reply (ECF No. 9), rendering the case ripe for decision.

         The Magistrate Judge reference of the case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the Western Division.

         Procedural History

         On July 24, 2013, the Butler County grand jury indicted Mr. Blair on one count of having weapons while under disability in violation of Ohio Revised Code § 2923.13(A)(2); two counts of assault in violation of Ohio Revised Code § 2903.13(A), one a fourth-degree felony pursuant to Ohio Revised Code § 2903.13(C)(5), the other a fifth degree felony pursuant to Ohio Revised Code § 2903.13(C)(4)(a); one count of obstructing official business in violation of Ohio Revised Code § 2921.31(A); one count of aggravated menacing in violation of Ohio Revised Code § 2903.21(A); and one count of resisting arrest in violation of Ohio Revised Code § 2921.33(A). The charges arose from events occurring on January 29, 2013, at the Middletown, Ohio, apartment of Sara Rossi, Blair's girlfriend and the mother of his infant son, and thereafter at the Middletown jail.

         Blair having waived a jury, his case was tried to the bench for two days. He was found guilty on all charges and sentenced to thirty-six months for having a weapon under disability, eighteen months for assault on Detective Hoover, and twelve months for assault on Officer Gibson, all to be served consecutively.

         Blair promptly appealed with new counsel to the Twelfth District Court of Appeals, asserting that the trial court committed error in sentencing him separately for allied offenses, that his conviction for having a weapon while under disability was both unsupported by sufficient evidence and against the manifest weight of the evidence, and that the trial court violated his statutory and constitutional rights by imposing consecutive sentences without making the findings required by Ohio Revised Code § 2929.14(C)(4). The Twelfth District affirmed the convictions and sentence. State v. Blair, No. CA2014-01-023, 2015-Ohio-818, 2015 Ohio App. LEXIS 792 (12th Dist. Mar. 9, 2015), further appellate review declined, 143 Ohio St.3d 1479 (2015).

         Mr. Blair filed his Petition in this Court September 20, 2016, pleading the following grounds for relief:

Ground One: The court committed error in separately sentencing allied offenses of similar import instead of merging them.
Ground Two: Appellant's conviction for having weapons under disability was not supported by sufficient evidence as required by due process in violation of U.S. Constitution Amendment XIV and Crim. R. 30. Specifically, the trial court allowed the state to introduced [sic] a judgment adjudicating the petitioner as juvenile delinquent in violation of Ohio Crim. R. 11 and Ohio Evid. R. 410 wherein both specifically prohibits [sic] the use of a no contest plea in any subsequent criminal or civil proceedings.
Ground Three: Appellant's conviction for having weapon under disability was against the manifest weight of the evidence. Without the use of said no contest plea, there would be no sufficient weight of evidence to support said conviction of weapons while under a disability.
Ground Four: The trial court imposed consecutive sentences without making the required findings under R.C. 2929.14(C)(4) and this violated Mr. Blair's statutory and constitutional rights to a sentence consistent with applicable law.

(Petition, ECF No. 3, PageID ...


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