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Wilson v. Warden, Allen Correctional Institution

United States District Court, S.D. Ohio, Western Division

June 5, 2019

GEORGE WILSON, Petitioner,
v.
WARDEN, ALLEN CORRECTIONAL INSTITUTION, Respondent.

          Black, J.

          REPORT AND RECOMMENDATION

          STEPHANIE K. BOWMAN, UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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. § 2241(d)(1).

         I. PROCEDURAL HISTORY

         State Trial Proceedings and Direct Appeal

         On 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.[1] (Doc. 8, Ex. 9). The motion was denied by the trial court. (Doc. 8, Ex. 10).

         Following 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).

         On July 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.[2] (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).

         Petitioner did not appeal to the Ohio Supreme Court from the Ohio Court of Appeals' decision.

         Application 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).

         Petitioner did not seek further review in the Ohio Supreme Court.

         Petition 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).

         Motion to Vacate and Correct a Void Sentence

          Next, 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).

         Petitioner 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. 40, 41).

         Petitioner 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).

         Re ...


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