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Rodriquez v. Haviland

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

July 8, 2019

SCOTTY RODRIQUEZ, Petitioner,
v.
WARDEN JAMES HAVILAND, Respondent.

          Judge Pamela A. Barker

          REPORT AND RECOMMENDATION

          JAMES R. KNEPP II UNITED STATES MAGISTRATE JUDGE.

         Introduction

         Pro se Petitioner Scotty Rodriquez (“Petitioner”), a prisoner in state custody, filed a Petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”). (Doc. 1). Respondent James Haviland, Warden of Allen Correctional Institution (“Respondent”), filed a Motion to Dismiss (Doc. 9)[1] and Petitioner filed a Reply (Doc. 11). The district court has jurisdiction over the Petition under § 2254(a). This matter has been referred to the undersigned for a Report and Recommendation pursuant to Local Rule 72.2(b)(2). (Non-document entry dated August 1, 2018). For the reasons discussed below, the undersigned recommends the Petition (Doc. 1) be dismissed.

         Procedural History

         State Court Conviction

         In August 13, 2015, a Defiance County Grand Jury indicted Petitioner on three felony counts of trafficking in cocaine. (Ex. 1, Doc. 9-1, at 4-5). Petitioner pleaded not guilty to each count. (Ex. 2, Doc. 9-1, at 7). On May 19, 2016, Petitioner, through counsel, subsequently withdrew his not guilty plea and entered a plea of no contest to each count. (Ex. 3, Doc. 9-1, at 9-12). The trial court accepted Petitioner's no contest pleas and found him guilty as charged. Id.

         On July 12, 2016, the trial court sentenced Petitioner to an aggregate term of ten years imprisonment. (Ex. 4, Doc. 9-1, at 14).

         Direct Appeal

         On August 12, 2016, Petitioner, through counsel, filed a notice of appeal to the Ohio Third District Court of Appeals. (Ex. 5, Doc. 9-1, at 17). Petitioner raised four assignments of error:

1. The trial court erred in finding the Appellant guilty as the Appellant never entered a plea in the instant matter.
2. The trial court erred by proceeding to sentence after the State did not adhere to their portion of the plea agreement.
3. The Appellant received ineffective assistance of counsel.
4. The trial court erred by sentencing Appellant to consecutive sentences by failing to engage in the three step analysis required by ORC 2929.14(C) and the supporting case law.

(Ex. 6, Doc. 9-1, at 24-42) (capitalization altered). On November 23, 2016, the State responded in opposition. (Ex. 7, Doc. 9-1, at 73-95). On January 9, 2017, Petitioner filed a motion for leave to file a supplemental brief to add additional assignments of error. (Ex. 8, Doc. 9-1, at 209-10). The appellate court granted the motion (Ex. 9, Doc. 9-1, at 212), and on January 25, 2017, Petitioner, through counsel, added two assignments of error:

1. The trial court erred in finding the Appellant guilty as the Appellant's alleged plea was not made knowingly[, ] intelligently and voluntarily pursuant to Crim.R.11 in the instant matter.
2. The Appellant received ineffective assistance of counsel.

(Ex. 10, Doc. 9-1, at 213-22) (capitalization altered). The State filed a supplemental brief in response. (Ex. 11, Doc. 9-1, at 280-87). On April 10, 2017, the Third District Court of Appeals affirmed the judgment of the trial court. (Ex. 14, Doc. 9-1, at 352-66); State v. Rodriquez, 2017 WL 1316210 (Ohio Ct. App.).

         On August 14, 2017, Petitioner, pro se, filed a notice of appeal (Ex. 15, Doc. 9-1, at 368-69), and a motion to file a delayed appeal to the Ohio Supreme Court (Ex. 16, Doc. 9-1, at 370-77). On October 11, 2017, the Ohio Supreme Court ...


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