United States District Court, N.D. Ohio, Eastern Division
G. CARR SR. U.S. DISTRICT JUDGE.
a timely habeas corpus case in which, after referral, the
Hon. William H. Baughman, Jr., United States Magistrate
Judge, has filed his Report & Recommendation. (Doc. 20).
Petitioner has filed objections (Doc. 21), the respondent has
filed a response thereto (Doc. 22), and the petitioner has
filed a reply. (Doc. 24). The petitioner has also filed a
motion to apply the “legal innocence”
(sic: actual innocence) standard. (Doc. 23).
on de novo review of the Report & Recommendation
and after due consideration, no merit to petitioner's
objection or his motion, I adopt the Report &
Recommendation as the order of this court, deny the motion as
moot, and dismiss the petition with prejudice.
addition, I decline to grant a Certificate of Appealability,
as jurists of reason could not reasonably disagree with
either the result or rationale of the decision to dismiss the
petition for habeas corpus relief.
early morning hours of July 20, 2013, a police officer
arrested the petitioner after the officer saw the petitioner
crossing the center line. In due course the petitioner plead
no contest to two of the four ensuing charges of operating a
vehicle while impaired (OVI). As a repeat offender with
multiple OVI convictions over twenty years, the petitioner
received two consecutive one-year sentences.
instant proceeding petitioner claims that the sentence he
received does not exist under state law and the sentencing
court lacked jurisdiction, so that his sentence was void
ab initio. As is pertinent here, his direct appeal
challenged his sentence as a violation of equal protection.
That appeal included none of the additional claims he brings
in this habeas corpus case. Nor did his subsequent appeal to
the Ohio Supreme Court, which the intermediate appellate
court facilitated by certifying a conflict as to its
rejection of petitioner's constitutional challenge to his
sentence. The Ohio Supreme Court affirmed the appellate
court's rejection of petitioner's challenge.
first raised his present habeas claims in a state habeas
corpus petition in the Ohio Supreme Court. That Court
summarily dismissed that petition.
asserts four grounds for relief:
1. My 5th and 14th Amendment constitutional rights were
violated. I was imprisoned on a void on its face judgment.
The sentence imposed upon me does not exist in the Ohio
Revised Code for 4th degree felony OVI. The court sentenced
me to two, one year mandatory prison terms to be served
consecutive [sic]. This sentence is illegal and void.
2. The court violated my 5th and 14th Amendment rights to due
process and equal protection [when] the court convicted
without jurisdiction. The state erroneously charged [sic] the
indictment, to charge and convict a repeat felony OVI
offender. This error removed jurisdiction from the court
because it was without the legal authority to act. If the
court would have followed the letter of the law at sentencing
my conviction would have been impossible.
3. My 5th and 14th Amendment constitutional rights were
violated when the court failed to make findings for [a]
prison term. Before the court can impose a prison term for a
non-violent 4th or 5th degree felony in the state of Ohio,
the court must make a mandatory finding contained in
2929.13(B)(1)(a) or (B)(1)(b). If the court cannot make a
finding, community controll [sic] sanctions are mandatory.
4. My 6th Amendment rights were violated when I was convicted
without the effective assistance of counsel. The Court, the
Prosecutor and my own attorney did not know the penalties
that I faced as a Defendant. I was threatened with a ten year
mandatory prison term if I went to trial. I was given an
illegal two year mandatory prison term. My attorney never
objected. He waived my pre-sentence ...