Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Moore v. Wainwright

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

December 21, 2017

CORVAWN MOORE, Petitioner,
v.
LYNEAL WAINWRIGHT, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          DONALD C. NUGENT UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court upon the Report and Recommendation of Magistrate Judge George J. Limbert, which was issued on November 14, 2017 (ECF #13). For the following reasons, the Report and Recommendation, is hereby ADOPTED.

         On March 14, 2017, Petitioner Corvawn Moore filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, [1] challenging the constitutionality of the seven-year sentence imposed after Petitioner pleaded guilty to one count of aggravated robbery and one count of felonious assault, each with a firearm specification, in the Stark County Court of Common Pleas. (ECF #1). Petitioner raises the following as grounds for relief:

GROUND ONE: [Absent an 'articulated' adjudication of guilt, there is no judgment of conviction hence, no final appealable order with which petitioner* is deprived his liberty without due process of law. see: State v. Whitfield, 124 Ohio St.3d 319; State v. Poindexter (1988), 36 Ohio St.3d 1, 5, 520 N.E.2d 568');">520 N.E.2d 568; and, State v. Reese, 2007 Ohio 2267, at: *10.
"In cases decided after the adoption of this rule, we have continued to recognize that a judgment of conviction is composed of two essential elements: the guilt determination] and the sentence. E.g., State v. Poindexter (1988), 36 Ohio St.3d 1, 5, 520 N.E.2d 568');">520 N.E.2d 568 ("'conviction' includes both the guilt determination and the penalty imposition;" State v. [ ] Whitfield, 124 Ohio St.3d 319, 2010 Ohio 2, 922 N.E.2d at: 182, at: *24 ("a 'conviction' consists of a guilty verdict - and the imposition of a sentence or penalty." ... " see: State v. Lester, 130 Ohio St.3d 303, at: [*P26]. see also: State v. Reese, 2007 Ohio 2267, at: *10, to wit:
"This Court held in Miller that "in the context of a guilty or no con[test] plea, it is also not sufficient for the trial court to note only that it accepted the defendant's plea. The trial court must enter a finding of guilt to comply with Crim. R.32(C)." Mille, at: *14. See also, State v. Sandlin, 4th Dist. No. 05CA23, 2006 Ohio 5021, at: *3 (deciding that the imposition of a sentence do[es] not satisfy this element of Crim. R. 32(C), which "requires that the verdict [or finding] itself be recorded in the court's journal, " and that "[w]ithout the journalization of this information, there is no judgment of conviction pursuant to Crim. R. 32(C) and therefore, no final appealable order." id: (emphasis added), [a]nd we simply don't have that here, [sic]
GROUND TWO: [T]he failure to notify a criminal defendant [‘at the plea colloquy’] of the consequences of a violation of postrelease control sanction, i.e., ‘in nine month increments,’ O.R.C. § 2943.032(E); Crim. R. 11(C)(2)(a); and, O.R.C. § 2929.19(B)(3)(e) implicates the plea as far less than knowingly, intelligently and voluntarily made. see: State v. Boswell, 121 Ohio St. 3d 575; State v. Qualls, 131 Ohio St. 3d 499; State v. Bloomer, 122 Ohio St. 3d 200; King v. Dutton, 17 F. 3d 151, 153 (6th Cir. 1994). *compare: Myers v. Warren Correction al Institution, 2011 WL 7039933.
'While the federal courts have held that a failure to advise a defendant about postrelease control does not ordinarily render the plea constitutionally unsound, *such is not the case where 'the maximum penalty involved requirement' of: Crim. R. 11(C)(2)(a) notification at the plea colloquy was not met.'
'Such fact is all the more buttressed where, as here, it appears that there exists a prima facie and *admitted vio lation of the United States Supreme Court holding in: Santobello v. New York, 404 U.S. __, where defendant was kept completely ignorant of a *plea negotiation between defense counsels and the state, [sic]
GROUND THREE: [W]here a state appellate court denies a 'declared indigent defendant' [a] *transcript of proceedings on appeal, and then compounds that constitution[al] error by denying the indigent defendant *counsel, Crim. R. 44(A); and, U.S.C.A. Const. Amend. 6, due process, the right to counsel, equal protection of law and that of fundamental fairness are violated when the appellate court then asserts 'the lack of a transcript' and 'an inability to understand appellant's *pro se claims' as basis to deny and dismiss the appeal, see: Britt v. North Carolina, 404 U.S. 227; Greene v. Brigano, 123 F.3d 917 (6th Cir.); and Griffin v. Illinois, 351 U.S. 12.
"... a state may not condition a defendant's exercise of a right to appellate review upon his ability to pay for [that] right. A state must provide indigent prisoners with *basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners, id., at: Greene v. Brigano, 123 F.3d 917 (6th Cir.) 19971 at HN2: and Griffin v. Illinois, 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585 (1956) ("the state must provide an indigent defendant with a transcript of prior proceedings when transcript is needed for an adequate defense or appeal." id, at: Britt v. North Carolina, at 404 U.S. 226, 227. [sic]
GROUND FOUR: [T]he United States Supreme Court has held, in: Santobello v. New York, 404 U.S. 357, that:
"When a plea rests in any significant degrees on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. The staff lawyers in a prosecutor's office have [the] burden of letting the left hand know what the right is do[ing] or has done. That the breach of an agreement is inadvertence ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.