United States District Court, N.D. Ohio, Western Division
Jeffrey J. Helmick United States District Judge.
matter is before me on the June 30, 2016 Report and
Recommendation of the Magistrate Judge. (Doc. No. 14).
Petitioner Raymond Graves filed for a writ of habeas corpus
under 28 U.S.C. § 2254. The Magistrate Judge recommends
the petition be dismissed.
submits objections to the Report and Recommendation. (Doc.
No. 15). No. response was filed by the Respondent. For the
reasons stated below, the Report and Recommendation is
adopted as the Order of this Court.
Background and The Petition
Petitioner does not dispute he was convicted of four counts
of rape in 1985 for which he served a sentence until his
release from prison in August 2003. State v. Graves,
No. 13-COA-033, 2014 WL 1917450 (Ohio App.). He was notified
of his duty to register as a sex offender. (Id.)
April 2001, Petitioner began living in a trailer owned by his
employer and he registered this address with the Ashland
County Sheriff's Department. Upon his move out of the
trailer, in December 2011, he failed to notify the
Sheriff's Department of this change. By March of 2012,
law enforcement learned of Petitioner's new address and
he was arrested the following month for violating conditions
of his post-release control.
his indictment for failing to register a change of address,
his attorney successfully had the indictment dismissed
pursuant to the authority of State v. Howard, 134
Ohio St.3d 467 (2012). In February 2013, the Petitioner was
indicted again on one count of a failure to register notice
of his change of address pursuant to Ohio Rev. Code §
2950.05(E)(1). A subsequent amended indictment expanded the
time period for the charged offense. Following a jury trial,
Petitioner was found guilty of the charge and sentenced to
three years, with credit for time previously served, and up
to three years of post-release control. (Doc. No. 14 at p.
Report and Recommendation, the Magistrate Judge set forth
Petitioner's three grounds for relief as follows:
1. [T]he trial court erred when it imposed the maximum
2. The trial court erred in sentencing [Graves] to the
maximum sentence in prison[, ] imposing an unnecessary burden
on state and local resources.
3. [Graves] was denied effective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to the
United States Constitution and Article I, Section 10 of the
(Id. at p. 5).
Report then addressed the procedural issue of jurisdiction.
In June 2016, the Magistrate Judge requested supplemental
briefing on the “sole issue of whether, for purposes of
§ 2254(a), Graves was ‘in custody' under the
conviction and sentence under attack herein, at the time he
filed the Petition.” (Id. at p. 6). Based upon
those briefs and her legal analysis, the Magistrate
Judge determined there was jurisdiction over the petition as