United States District Court, N.D. Ohio, Eastern Division
REPORT & RECOMMENDATION
M. Parker, United States Magistrate Judge.
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.
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.
State Conviction, No. 2015-CR-00137
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.
Direct Appeal, No. 2017-Ohio-1507
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). 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.
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 ...