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Suber v. Warden

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

May 3, 2018

ERIC E. SUBER, Petitioner,
v.
WARDEN, MANSFIELD CORRECTIONAL INSTITUTION, Respondent.

          Algenon L. Marbley Judge

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

         Facts and Procedural History

         The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶ 3} On or about September 15, 2015, Appellant Eric E. Suber sold methamphetamine to a confidential informant, hereinafter “CI”, working with the Central Ohio Drug Enforcement Task Force. The CI contacted Appellant via phone and arranged to meet him at 290 W. National, Newark, Licking County, Ohio. When the CI arrived at this residence, Appellant contacted someone named Shawn Moyer and asked him to bring the drugs to be sold. Moyer arrived at the residence, entered, and per the CI, handed the drugs to Appellant. Appellant then provided the CI with the drugs, in exchange for $800 in recorded buy money. The drugs were collected and tested by BCI and were found to be 11.87 grams of methamphetamine, a Schedule II controlled substance. Bulk amount for methamphetamine is 3 grams, so this amount exceeded the bulk amount, but was less than five (5) times bulk amount.
{¶ 4} Appellant was arrested in December, 2015. He was Mirandized and interviewed. He denied selling methamphetamine, but did admit to using methamphetamine.
{¶ 5} Appellant was indicted on one count of Aggravated Trafficking in Drugs, in violation of R.C. § 2925.03(A)(1)(C)(1)(c), a felony of the 3rd degree, punishable by a mandatory prison term of up to three (3) years in prison.
{¶ 6} Appellant had at least two (2) prior convictions for felony drug offenses. As charged in the single count of the indictment, the charge carried with it a maximum fine of $10, 000, and a mandatory minimum fine of $5, 000. Additionally, Appellant was subject to a driver's license suspension of between six (6) months and five (5) years.
{¶ 7} Appellant was tried before a jury on the 1st and 2nd days of March, 2016.
{¶ 8} At trial, the State put on evidence which consisted of audio recordings of the drug buy by the confidential informant “CI”, and testimony by the police officers directing the buy. The CI did not appear at trial and could not be cross examined by Appellant.
{¶ 9} Following deliberations, the jury found Appellant guilty of Aggravated Trafficking in Drugs (Methamphetamine), in violation of R.C. § 2925.03(A)(I)(C)(1)(c), a felony of the third degree; and that the amount of Methamphetamine involved at the time of the offense was equal to or in excess of the bulk amount but less than five times the bulk amount.
{¶ 10} The trial court sentence Appellant to a mandatory prison term of thirty (30) months, running consecutively with the sentence in an unrelated case. No fine was imposed, and Appellant's driver's license was suspended for two years. Appellant was also sentenced to three years of post-release control.
{¶ 11} Appellant now appeals, assigning the following error for review:
ASSIGNMENT OF ERROR
{¶ 12} “I. APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS VIOLATED.”

State v. Suber, No. 16 CA 14, 2016 WL 6392716, at *1-2 (Ohio App. 5th Dist. Oct. 26, 2016). On October 26, 2016, the appellate court affirmed the judgment of the trial court. Id. On July 5, 2017, the Ohio Supreme Court declined to accept jurisdiction of the ...


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