United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN, UNITED STATES MAGISTRATE JUDGE
an inmate in state custody at the Allen Correctional
Institution, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This
matter is before the Court on respondent's return of writ
(Doc. 9), to which petitioner has not responded. For the
reasons stated below, the undersigned recommends that the
petition be denied on the ground that petitioner's habeas
corpus petition is time-barred pursuant to 28 U.S.C. §
Trial Proceedings and Direct Appeal
October 3, 2002, the Hamilton County, Ohio, grand jury
returned a seven-count indictment charging petitioner with
two counts of felonious assault and one count each of
aggravated robbery, robbery, tempering with evidence, having
weapons while under disability, and attempted murder. (Doc.
8, Ex. 1). Petitioner, through counsel, filed a motion to
suppress a lineup identification prior to
trial. (Doc. 8, Ex. 9). The motion was denied by
the trial court. (Doc. 8, Ex. 10).
a jury trial, petitioner was found guilty of all counts with
the exception of the charges of robbery and attempted murder.
(Doc. 8, Ex. 15, 16). On June 19, 2003, petitioner was
sentenced to a total aggregate prison sentence of
twenty-seven years in the Ohio Department of Corrections.
(Doc. 8, Ex. 18).
17, 2003, petitioner, through counsel, filed a timely notice
of appeal to the Ohio Supreme Court. (Doc. 8, Ex. 20). In his
single assignment of error, petitioner argued that
insufficient evidence was presented at trial to support his
aggravated robbery conviction. (Doc. 8, Ex. 23). On August 25,
2004, the Ohio Court of Appeals overruled petitioner's
assignment of error and affirmed the judgment of the trial
court. (Doc. 8, Ex. 29).
did not appeal to the Ohio Supreme Court from the Ohio Court
of Appeals' decision.
to Reopen Appeal
Petitioner filed an application to reopen his appeal pursuant
to Ohio App. R. 26(B) on November 29, 2004. (Doc. 8, Ex. 30).
By entry issued March 11, 2005, the Ohio Court of Appeals
denied petitioner's application, finding the application
to be untimely. (Doc. 8, Ex. 32).
did not seek further review in the Ohio Supreme Court.
to Vacate or Set Aside Sentence
Meanwhile, on January 2, 2004, petitioner field a motion to
vacate or set aside sentence. (Doc. 8, Ex. 33). The petition
was denied as untimely by the trial court on January 13,
2004. (Doc. 8, Ex. 37).
to Vacate and Correct a Void Sentence
on January 31, 2012, petitioner field a motion to vacate and
correct a void sentence, alleging that the trial court failed
to properly impose post-release control and that his
convictions for felonious assault and aggravated robbery
constituted allied offenses of similar import. (Doc. 8, Ex.
38). The trial court denied petitioner's motion on
February 2, 2012. (Doc. 8, Ex. 39).
appealed the trial court's decision, but the Ohio Court
of Appeals dismissed the appeal for petitioner's failure
to comply with Ohio App. R. 4(A) or to file a motion for
delayed appeal pursuant to Ohio App. R. 5(A). (Doc. 8, Ex.
subsequently filed a motion for a delayed appeal, which was
granted by the Ohio appeals court. (Doc. 8, Ex. 42, 43, 44).
On May 3, 2013, the Ohio Court of Appeals affirmed the
judgment of the trial court, but remanded the case for
resentencing so that post-release control could be properly
imposed. (Doc. 8, Ex. 47).