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Bosley v. Nobel

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

June 24, 2019

REX A BOSLEY, Petitioner,
v.
WARDEN JEFF NOBEL, Respondent.

          SARA LIOI JUDGE.

          REPORT & RECOMMENDATION

          Kathleen B. Burke United States Magistrate Judge.

         Petitioner Rex Bosley (“Petitioner” or “Bosley”) brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Doc. 1. Bosley is detained at the Madison Correctional Institution, having pleaded guilty to fifteen counts of pandering obscenity involving a minor and pandering sexually oriented matter involving a minor in the Mahoning County, Ohio, Court of Common Pleas. State v. Bosley, No. 15CR964 (Mahoning Cty. Common Pleas Ct., filed April 11, 2016). At sentencing, the trial court sentenced Bosley to six months on each count, to be served consecutively, for a total prison term of 7.5 years. Doc. 10-1, p. 125.

         On September 5, 2018, Bosley filed his Petition for Writ of Habeas Corpus setting forth one ground for relief. Doc. 1, p. 5. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2. As set forth more fully below, Bosley's sole ground for relief is not cognizable, is procedurally defaulted, and fails on the merits. Thus, the undersigned recommends that his Petition for Writ of Habeas Corpus (Doc. 1) be DENIED.

         I. Background

         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, the state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008).

         A. State Court Action

         On November 5, 2015, a Mahoning County Grand Jury issued an indictment charging Bosley with ten counts of pandering obscenity involving a minor (counts 1 through 10), R.C. 2907.321(A)(5)(C), and forty counts of pandering sexually oriented matter involving a minor (counts 11 through 50), R.C. 2907.322(A)(5)(C). Doc. 10-1, pp. 3-14; see also State v. Bosley, 2017 WL 4082803, at *1 (Oh. Ct. App. Sept. 7, 2017). The counts related to Bosley having downloaded files that contained 51 videos and 97 photographs of child pornography onto his computer. Id. Bosley, through counsel, pleaded not guilty.

         On April 6, 2016, Bosley executed a plea agreement and entered a plea of guilty to counts I through 15. Doc. 10-1, p. 15. As part of the agreement, the state agreed to dismiss counts 16 through 50 and recommend a term of ten years incarceration and registration as a Tier II sex offender. Doc. 10-1, pp. 15, 17. The trial court accepted Bosley's plea and found him guilty. Doc. 10-1, p. 22. At sentencing, the trial court sentenced Bosley to six months on each count, to be served consecutively, for a total prison term of 7.5 years, and ordered him to register as a Tier II sex offender. Doc. 10-1, p. 125.

         B. Direct Appeal

         Bosley, through new counsel, filed a notice of appeal in the Seventh District Court of Appeals, Mahoning County. Doc. 10-1, p. 131. In his brief, he raised the following assignments of error:

1. The trial court erred in imposing consecutive sentences, totaling 7 and ½ years, because the record does not contain any evidence of a pattern of conduct under R.C. 2929.14(C)(4)(b).
2. The trial court erred in imposing consecutive sentences, totaling 7 and ½ years, as to offenses that merged as allied offense of similar import.

Doc. 10-1, p. 135. On September 7, 2017, the Ohio Court of Appeals affirmed the judgment of the trial court. Doc. 10-1, pp. 204-213. Bosley, through counsel, filed a notice of appeal to the Ohio Supreme Court. Doc. 10-1, pp. 215-216. In his memorandum in support of jurisdiction, he asserted the following propositions of law:

I. To satisfy R.C. 2929.14(C)(4)(b) in a downloaded child pornography case, the record must establish that a defendant, inter alia, engaged in a “course of conduct” of downloading.
II. Unless the state demonstrates a separate animus as to each download, a court cannot sentence a defendant consecutively as to multiple files in a computer pornography case.

Doc. 10-1, p. 218. On March 14, 2018, the Ohio Supreme Court declined to accept jurisdiction pursuant to S.Ct.Prac.R. 7.08(B)(4). Doc. 10-1, p. 242.

         C. Motion to Withdraw Guilty Plea

         On July 11, 2018, Bosley, pro se, filed a motion to withdraw guilty plea pursuant to Ohio Crim. R. 32.1 in the Ohio Court of Appeals. Doc. 10-1, p. 243. No. further action has occurred with respect to this motion.

         D. Federal ...


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