United States District Court, N.D. Ohio, Eastern Division
REPORT & RECOMMENDATION
Kathleen B. Burke United States Magistrate Judge.
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.
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.
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).
State Court Action
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.
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,
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
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.
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
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
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.
Motion to Withdraw Guilty Plea
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.