United States District Court, S.D. Ohio, Eastern Division
L. GRAHAM JUDGE
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
a state prisoner, filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254. (Doc. 1).
Petitioner seeks release from confinement pursuant to a state
court judgment in a criminal action. This case has been
referred to the Undersigned pursuant to 28 U.S.C §
636(b) and Columbus' General Order 14-1 regarding
assignments and references to United States Magistrate
to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Court (“Rule 4”), the
Court must conduct a preliminary review to determine whether
“it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court . . . .” Rule 4. If it does so appear, a
petition must be dismissed. Id. Rule 4 allows for
the dismissal of petitions which raise legally frivolous
claims, as well as petitions that contain factual allegations
that are palpably incredible or false. Carson v.
Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). For the
reasons that follow, it appears from the Petition that
Petitioner is not entitled to relief because his claims are
time-barred. Accordingly, the Undersigned
RECOMMENDS that the Petition be
DENIED and that this action be
FACTS AND PROCEDURAL HISTORY
was tried and convicted in the Court of Common Pleas for
Jefferson County, Ohio. (Doc. 1). Ohio's Seventh District
Court of Appeals summarized the relevant facts and procedures
On June 7, 2006, Appellant was indicted on ten counts of
felonious assault, a felony of the second degree in violation
of R.C. 2903.11(B)(3). The statute criminalizes sexual
conduct between a person who has knowledge of their HIV
status and a minor, defined as a person under the age of
eighteen. Appellant was charged with engaging in sexual
conduct with a sixteen-year-old girl on at least ten
occasions without informing her that he is HIV positive and
without using protection . . . .
Appellant was convicted on nine of the ten counts by a jury.
On May 17, 2007, Appellant was sentenced to eight years of
incarceration per count. Counts one, three, four, five, and
six were ordered to run consecutively while the remaining
counts were ordered to run concurrently. In the aggregate,
Appellant was sentenced to forty years of incarceration. The
trial court terminated Appellant's postrelease control
from a prior case and imposed a mandatory five-year
postrelease control period. The court gave him 199 days of
jail time credit. Appellant was also declared a sexual
predator in accordance with R.C. 2950.01.
State v. Christian, No. 16 JE 0030, 2017 WL 6939100,
at *1 (Ohio Ct. App. Dec. 27, 2017).
directly appealed that determination and raised the following
three assignments of error:
THE VERDICT FINDING THE APPELLANT GUILTY OF NINE OUT OF THE
TEN COUNTS OF FELONIOUS ASSAULT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE . . . .
THE TRIAL COURT ERRED BY IMPOSING FIVE CONSECUTIVE SENTENCES
ON THE FIRST FIVE COUNTS . . . .
THE TRIAL COURT ERRED IN FINDING THAT APPELLANT SHOULD BE
CLASSIFIED AS A SEXUAL PREDATOR . . . .
State v. Christian, No. 07 JE 9, 2007 WL 4696853, at
*2, 5, 7 (Ct. App. Dec. 28, 2007). The appellate court
overruled those assignments of error and affirmed the trial
court on December 28, 2007. Id. Petitioner did not
file a timely appeal of that determination with the Ohio
Supreme Court. The online docket for the Ohio Supreme Court
indicates, however, that Petitioner filed a motion for a
delayed appeal with the Ohio Supreme Court almost two years
later, on December 14, 2009. The Ohio Supreme ...