United States District Court, N.D. Ohio, Eastern Division
SOLOMON OLIVER, JR UNITED STATES DISTRICT JUDGE
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
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.)
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.)
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 ...