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Christian v. Bracy

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

July 24, 2018

WAYNE CHRISTIAN, Petitioner,
v.
CHARMAINE BRACY, WARDEN Respondent.

          JAMES L. GRAHAM JUDGE

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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 Judges.

         Pursuant 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 DISMISSED.

         I. FACTS AND PROCEDURAL HISTORY

         Petitioner 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 as follows:

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).

         Petitioner 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 ...


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