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Deeb v. James

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

August 2, 2018

DAVID DEEB, Petitioner
v.
KEVIN JAMES, Warden, Respondent

          ORDER

          SOLOMON OLIVER, JR UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Currently pending before the court in the above-captioned case is the Report and Recommendation (“R & R”) (ECF No. 12) of Magistrate Judge Kathleen B. Burke (“Magistrate Judge” or “Judge Burke'), filed pursuant to Local Rule 72.2, recommending that the court grant Respondent Kevin James's (“Respondent”) Motion to Dismiss (ECF No. 9) Petitioner David Deeb's (“Petitioner” or “Deeb”) Petition for Writ of Habeas Corpus (“Petition”). (ECF No. 1.) Also pending is Deeb's Motion for Leave to Amend and Supplement Petition for Habeas Corpus Relief and to Expand the Record to Include Relevant Documents (ECF No. 14), filed subsequent to the R & R. For the following reasons, Deeb's Motion for Leave to Amend and Supplement the Petition and to Expand the Record is denied. The court hereby adopts Magistrate Judge Burke's R & R in its entirety, and grants Respondent's Motion to Dismiss the Petition. Accordingly, Deeb's Petition is hereby dismissed.

         II. BACKGROUND[1]

         On October 28, 2016, Deeb filed the Petition, pursuant to 28 U.S.C. § 2254, challenging the sentence imposed by the state trial court following Deeb's guilty plea on one count of rape and two counts of importuning pursuant to a plea agreement in State of Ohio v. Deeb, No. 2011-CR-228. (Pet., ECF No. 1). Deeb was sentenced to six (6) years for the count of rape, and two (2) years each for the two (2) counts of importuning, all to be served consecutively, for a total prison term of ten (10) years. (See ECF No. 9-2, pp. 41-46, 154-55, 159.)

         In his Petition, Deeb argues that he is entitled to relief based on the following three grounds and supporting facts:

GROUND ONE: Fourteenth Amendment - Due Process of Law
Supporting Facts: Petition[er] was denied due process of law when the trial court and the court of appeals failed to follow its own pronouncement from the first appeal concerning the imposition of consecutive sentences.
GROUND TWO: Sixth And Fourteenth Amendment
Supporting Facts: Petitioner was denied his rights under the Sixth Amendment when the trial court based its re-sentencing on judicial factfinding none of which were alleged in the indictment nor admitted as part of any plea in the case.
GROUND THREE: Fourteenth Amendment
Supporting Facts: Petitioner was denied due process of law when a court, in imposing a consecutive sentence in a re-sentencing order by an appellate court, failed and refused to consider the current condition of petitioner.

(Pet. 6, 8, 9.)

         On February 9, 2018, Respondent Warden Kevin Jones (“Respondent”) filed a Motion to Dismiss, arguing that Deeb's Petition is not cognizable for federal habeas review because it challenges ...


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