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Moss v. Sloan

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

April 2, 2019

DAVID MOSS, Petitioner,
v.
BRIGHAM SLOAN, Warden, Respondent.

          BOYKO JUDGE.

          REPORT & RECOMMENDATION

          Thomas M. Parker, United States Magistrate Judge.

         I. Introduction

         Petitioner, David Moss, an Ohio prisoner serving an aggregate prison term of 10 years for child endangerment and attempted felonious assault, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 on December 26, 2018. ECF Doc. 1. On the same day, Moss filed a motion for stay and abeyance. ECF Doc. 3.

         This matter is before me by an automatic order of reference under Local Rule 72.2 for preparation of a report and recommendation on Moss's petition and any potentially case-dispositive motions such as his motion for a stay and abeyance. Because Moss has not shown the necessary good cause and merits of the affected claim, I recommend the court DENY Moss's motion for a stay and abeyance and that it DISMISS Ground Two of his petition. I further recommend that the court GRANT Moss's request to strike Ground Two from his petition so that he may proceed on Ground One in this case.

         II. Procedural History

         A. State Conviction, No. 2015-CR-00137

         On May 9, 2016, Moss, represented by counsel, pleaded guilty to four counts of endangering children and one count of attempted felonious assault. ECF Doc. 1 at 1. On May 12, 2016, the court sentenced Moss to a ten year aggregate prison sentence. ECF Doc. 1 at 1.

         B. Direct Appeal, No. 2017-Ohio-1507

         On August 10, 2016, Moss filed a notice of appeal to the Ohio Court of Appeals. See Docket for State v. Moss, 2015-CR-00137, Ohio Ct. Comm'n Pleas Ashtabula Cnty. (Aug. 10, 2016).[1] Moss, represented by counsel, asserted one assignment of error:

Assignment of Error I: The trial court erred by sentencing the defendant-appellant to a term of imprisonment contrary to statute and where its findings were not supported by the record.

See State v. Moss, 2017-Ohio-1507, Ohio 11th Dist. Ct. App. (Apr. 24, 2017). On April 24, 2017, the Ohio Court of Appeals ruled on Moss's direct appeal, affirming the trial court's sentence. Id. Moss, represented by counsel, appealed the decision to the Ohio Supreme Court on June 6, 2017. SeeDocket for State v. David A. Moss, 2017-Ohio-0762, (Jun. 6, 2017). Moss's memorandum in support of jurisdiction raised the following issue:

Proposition of Law I: The trial court erred by sentencing defendant-appellant to a term of imprisonment contrary to statute and where its findings were not supported by the record.

         Appellant's Memorandum in Support of Jurisdiction at 4, State v. Moss, 2017-Ohio-7843 (Jun. 6, 2017). On September 27, 2017 the Ohio Supreme Court declined ...


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