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Love v. Sloan

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

June 25, 2019

MENDO LOVE, Petitioner,
v.
WARDEN BRIGHAM SLOAN, Respondent.

          JUDGE BENITA Y. PEARSON

          REPORT & RECOMMENDATION

          Kathleen B. Burke United States Magistrate Judge

         Petitioner Mendo Love (“Petitioner” or “Love”) brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Doc. 1. Love is detained at the Lake Erie Correctional Institution, having pleaded guilty to three counts of aggravated possession of drugs in the Erie County, Ohio, Court of Common Pleas. State v. Love, No. 2011-CR-310 (Erie Cty. Common Pleas Ct., filed February 12, 2013). At sentencing, the trial court sentenced Love to thirty months on each count, two counts to be served concurrently and consecutively to the remaining count, for a total prison term of 5 years. Doc. 8-1, p. 25.

         On November 13, 2018, Love filed his Petition for Writ of Habeas Corpus setting forth six grounds for relief. Doc. 1, pp. 5-14. 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, Love's grounds for relief are not cognizable and/or fail 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 10, 2011, the Erie County grand jury indicted Love on six counts of drug offenses involving Oxymorphone and Oxycodone: count 1, preparation of drugs for sale, Oxymorphone (R.C. § 2925.03(A)(2)); count 2, aggravated possession of drugs, Oxymorphone (R.C. § 2925.11(A)); count 3, preparation of drugs for sale, Oxycodone (R.C. § 2925.03(A)(2)); count 4, aggravated possession of drugs, Oxycodone (R.C. § 2925.11(C)(1)(c)); count 5, preparation of drugs for sale, Oxycodone (R.C. § 2925.03(A)(2)); and count 6, aggravated possession of drugs, Oxycodone (R.C. § 2925.11(C)(1)(b)). Doc. 8-1, pp. 6-8. Love, through counsel, pleaded not guilty. Doc. 8-1, p. 9.

         On February 11, 2013, pursuant to a negotiated plea agreement, Love entered a plea of guilty to three counts of aggravated possession of drugs (counts 2, 4, 6). Doc. 8-1, p. 13. In exchange, the state dismissed the three remaining counts of preparation of drugs for sale. Doc. 8-1, p. 13. As part of the plea agreement, Love indicated that he understood that the maximum penalty was nine years in jail, and the parties' “Agreed ‘Recommended' Sentence” was three years in prison. Doc. 8-1, pp. 13, 15 (emphasis in original). The trial court accepted the guilty plea and scheduled a sentencing hearing for February 25, 2013. Doc. 8-1, p. 15.

         Love did not appear for sentencing. Doc. 8-1, p. 16. His counsel represented that Love would not appear and the trial court issued a warrant for his arrest. Doc. 8-3; Doc. 8-1, pp. 16, 17.

         Three years later, on February 9, 2016, Love was apprehended in Pennsylvania. State v. Love, 2017 WL 2841683, at *1 (Ohio Ct. App. June 30, 2017). He was brought back to the Erie County Court of Common Pleas and the trial court sentenced him on February 25, 2016, to thirty months on each count, two counts (involving Oxycodone) to be served concurrently and consecutively to the remaining count (involving Oxymorphone), for a total prison term of 5 years. Doc. 8-1, p. 25.

         B. Direct Appeal

         On April 13, 2016, Love, pro se, filed a notice of appeal and a motion for leave to file a delayed appeal to the Ohio Court of Appeals, Sixth District. Doc. 8-1, pp. 27, 36. On May 11, 2016, the Ohio Court of Appeals granted Love's motion for delayed appeal, (Doc. 8-1, pp. 57-59), and the trial court appointed him appellate counsel. Doc. 8-1, p. 60.

         Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that he could not find any meritorious issues for appeal and requesting permission to withdraw from the case. Doc. 8-1, p. 61. He offered the following potential assignments of error:

1. The trial court erred by violating the appellant's constitutional rights pursuant to Criminal Rule 11 during the plea hearing.
2. Appellant received ineffective assistance of counsel during the plea hearing and the sentencing hearing.

Doc. 8-1, p. 68. Counsel advised Love that he could file his own brief, and Love submitted a pro se brief raising the following assignments of error:

1. The trial court breached the parties' plea agreement by imposing a prison term greater than three years.
2. The trial court abused its discretion by imposing a sentence contrary to law under R.C. §2953.08(D)(1).
3. The trial court abused its discretion and committed plain error in violation of Crim.R. 52(A) and (B) for failing to inform appellant that he could withdraw plea before sentencing.
4. Appellant was deprived of effective assistance of counsel in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution, at Sentencing.
5. The trial court erred in ordering consecutive sentences in counts two, four, and six in this case as counts two, four, and six are allied offenses.

Doc. 8-1, p. 91.

         The Ohio Court of Appeals conducted an independent examination of the record pursuant to Anders and considered the potential errors set forth by counsel and Love. It concluded that the appeal was “wholly frivolous, ” permitted counsel to withdraw from representation, and affirmed the trial court's judgment on June 30, 2017. Doc. 8-1, pp. 155-165.

         On July 24, 2017, Love, pro se, filed a motion for reconsideration pursuant to Ohio R. App. P. 26(A), which the Ohio Court of Appeals denied on August 18, 2017. Doc. 8-1, pp. 211, 221-224.

         On August 14, 2017, Love, pro se, appealed to the Ohio Supreme Court, asserting the same claims he had raised in the Ohio Court of Appeals. Doc. 8-1, pp. 170-171. On December 6, 2017, the Ohio Supreme Court declined jurisdiction. Doc. 8-1, p. 210.

         C. Motion for Jail Time Credit

         On June 13, 2016, Love, pro se, moved for jail time credit for the 189 days he spent in Allegheny County Jail in Pennsylvania. Doc. 8-1, p. 225. On June 30, 2016, the trial court denied the motion, explaining that Love had been incarcerated in Pennsylvania in charges unrelated to his Ohio case. Doc. 8-1, p. 230. On July 21, 2016, Love filed a motion for reconsideration. Doc. 8-1, p. 240-241. The trial court did not rule on Love's motion.

         On August 25, 2017, Love again moved for 189 days of jail time credit stemming from his incarceration in Pennsylvania. Doc. 8-1, p. 243. On September 12, 2017, the trial court denied Love's motion because Love had been incarcerated in Pennsylvania on charges unrelated to his Ohio case. Doc. 8-1, p. 266.

         Love, pro se, filed a motion to file a delayed appeal with the Ohio Court of Appeals, which was granted. Doc. 8-1, pp. 270, 281-283. Love asserted the following assignment of error:

The trial court erred when it abused its discretion when it denied the appellant's motion for additional jail-time credit pursuant to the ruling in State v. Fugate and State v. Caccamo.

Doc. 8-1, pp. 284-285. On May 25, 2018, the Court of Appeals affirmed the trial court's ruling.

Doc. 8-1, pp. 330-333.

         On June 14, 2018, Love appealed to the Ohio Supreme Court. Doc. 8-1, p. 334. On August 29, 2018, the Ohio Supreme Court declined ...


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