Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nelson v. Cook

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

June 19, 2019

JEFFERY R. NELSON, Petitioner,
v.
BRIAN COOK, WARDEN, SOUTHEASTERN CORRECTIONAL INST., Respondent.

          GEORGE C. SMITH JUDGE.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner seeks release from confinement imposed pursuant to a state-court judgment in a criminal action. This case has been referred to the Undersigned pursuant to 28 U.S.C. 636(b) and Columbus' General Order 14-1 regarding assignments and references to United States Magistrate Judges.

         This matter is before the Court on its own motion under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (“Rule 4”). Pursuant to Rule 4, the Court conducts a preliminary review to determine whether “it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief . . .” If it does so appear, the petition must be dismissed. Id. With this standard in mind, and for the reasons that follow, these are the circumstances here.

         I. FACTS AND PROCEDURAL HISTORY

         Petitioner challenges his February 26, 1991, convictions pursuant to his guilty plea in the Franklin County Court of Common Pleas on one count of aggravated murder with specifications and two counts of aggravated robbery. He was sentenced to a term of life imprisonment with no parole eligibility for 23 years on the aggravated murder charge and firearm specification, in addition to concurrent sentences of 6 to 25 years on each of the aggravated robbery charges, to be served consecutively to the sentence for aggravated murder. See State v. Nelson, 10th Dist. No. 11AP-720, 2012 WL 1530950, at *1 (Ohio Ct. App. May 1, 2012). The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:

On November 21, 1989, appellant was indicted on two counts of aggravated murder, three counts of aggravated robbery, four counts of kidnapping, one count of receiving stolen property, and one count of possession of a dangerous ordnance. Nine of the counts also carried firearm specifications. The charges arose out of the “robbery of a Bob Evans restaurant and the murder of Ralph C. Webster.” Id. at ¶ 2. Appellant was under 18 years of age at the time of the crimes, and the juvenile court “bound him over for prosecution as an adult.” Id.
{¶ 3} In February 1991, appellant entered a guilty plea to one count of aggravated murder with specifications, and two counts of aggravated robbery. In accordance with the guilty plea, the trial court sentenced appellant to “life imprisonment with no parole eligibility for 23 years on the aggravated murder charge and firearm specification, as well as concurrent sentences of 6 to 25 years of incarceration on each of the aggravated robbery charges, to be served consecutively to the sentence for aggravated murder.” Id. at ¶ 3.
{¶ 4} On May 15, 2006, appellant filed a petition for post-conviction relief. By entry filed on June 14, 2006, the trial court denied appellant's petition.
{¶ 5} On May 19, 2011, appellant filed a motion to withdraw his guilty plea pursuant to Crim.R. 32.1. By decision and entry filed August 16, 2011, the trial court denied appellant's motion, finding he “failed to establish that the trial court lacked subject-matter jurisdiction to accept his guilty plea and that his claim for ineffective assistance of counsel was moot.” Id. at ¶ 4. Appellant appealed that decision, and in Nelson this court affirmed the judgment of the trial court.
{¶ 6} On November 17, 2016, appellant filed a “motion for return bindover.” By entry filed December 7, 2016, the trial court denied the motion, holding the motion constituted an untimely petition for post-conviction relief and that it was barred by the doctrine of res judicata.
{¶ 7} On March 20, 2017, appellant filed a “motion for de novo resentencing.” By decision and entry filed August 7, 2017, the trial court denied appellant's motion. Appellant filed a motion for leave to file a delayed appeal and this court, by journal entry filed September 26, 2017, denied the motion for leave and dismissed the appeal. In reaching that determination, this court noted that, while appellant's “motion for ‘de novo resentencing' arose out of appellant's criminal conviction, the motion gave rise to postconviction proceedings that were civil, rather than criminal, in nature.” (Jan. 26, 2018 Jgmt. Entry.)
{¶ 8} On July 30, 2018, appellant filed a “motion to correct void judgment.” In the accompanying memorandum in support, appellant argued the juvenile court failed to hold an amenability hearing prior to sending the case to the general division in accordance with R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b). On August 8, 2018, the state filed a memorandum contra appellant's motion. By decision and entry filed August 9, 2018, the trial court denied appellant's motion.
{ΒΆ 9} On appeal, appellant, pro se, sets forth the following three assignments of error for this ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.