United States District Court, N.D. Ohio, Eastern Division
BENITA Y. PEARSON
REPORT & RECOMMENDATION
Kathleen B. Burke United States Magistrate Judge
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.
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
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 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.
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.
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,
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.
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.
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
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
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
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.
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.
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,
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.
Motion for Jail Time Credit
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.
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,
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.
14, 2018, Love appealed to the Ohio Supreme Court. Doc. 8-1,
p. 334. On August 29, 2018, the Ohio Supreme Court declined