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Moore v. Wainwright
United States District Court, N.D. Ohio, Eastern Division
December 21, 2017
CORVAWN MOORE, Petitioner,
LYNEAL WAINWRIGHT, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
C. NUGENT UNITED STATES DISTRICT JUDGE.
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.
March 14, 2017, Petitioner Corvawn Moore filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254,  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 [âat the plea colloquyâ] of the
consequences of a violation of postrelease control sanction,
i.e., âin nine month increments,â O.R.C. Â§ 2943.032(E); Crim.
R. 11(C)(2)(a); and, O.R.C. Â§ 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.
"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 ...
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