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Butcher v. Harris

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

August 15, 2019

MARK ANTHONY BUTCHER, Petitioner,
v.
BRANDESHAWN HARRIS, WARDEN, TRUMBULL CORRECTIONAL INSTITUTION, Respondent.

          JAMES L. GRAHAM JUDGE.

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner who is proceeding without the assistance of counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, and the exhibits of the parties. For the reasons that follow, the Undersigned RECOMMENDS that this action be DISMISSED.

         I. BACKGROUND

         The Ohio Fourth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶ 1} This is a consolidated appeal from two Athens County Common Pleas Court judgments. In case number 15CA33, the jury found Mark Anthony Butcher, defendant below and appellant herein, guilty of (1) aggravated burglary, in violation of R.C. 2911.11(A)(1), and (2) trespass in a habitation, in violation of R.C. 2911.12(B). The trial court merged the two offenses and sentenced appellant to nine years in prison. The court additionally ordered appellant to serve a prison term consisting of the amount of time remaining on his postrelease control imposed in a prior criminal case and further ordered that the postrelease-control-prison-sanction sentence run consecutively to the sentence imposed for appellant's aggravated burglary conviction.
{¶ 2} In case number 15CA34, the trial court revoked appellant's previously-imposed community control for two intimidation of a witness convictions and imposed consecutive, three-year prison terms for the two convictions. The court ordered appellant to serve these two sentences consecutively to the sentences imposed for his aggravated burglary conviction and for his postrelease-control-prison-sanction.
{¶ 3} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT ADMITTED IRRELEVANT AND PREJUDICIAL EVIDENCE, DENYING MR. BUTCHER HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.”
SECOND ASSIGNMENT OF ERROR:
“MR. BUTCHER'S SENTENCE FOR AGGRAVATED BURGLARY IS NOT CLEARLY AND CONVINCINGLY SUPPORTED BY THE RECORD.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT IMPOSED A JUDICIAL SANCTION SENTENCE ON MR. BUTCHER IN No. 15CR0049, WHEN HE WAS NOT PROPERLY NOTIFIED IN HIS SENTENCING ENTRY FOR No. 09R0211 [SIC] THAT ANY FUTURE JUDICIAL-SANCTION SENTENCE FOR VIOLATION OF POSTRELEASE CONTROL WOULD HAVE TO BE SERVED CONSECUTIVELY TO ANY NEW FELONY SENTENCE.”
FOURTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN VIOLATION OF MR. BUTCHER'S RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, WHEN IT IMPOSED CONSECUTIVE SENTENCES FOR VIOLATIONS OF SUPERVISION, PUNISHING MR. BUTCHER DOUBLY FOR THE SAME CONDUCT.”
FIFTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT FAILED TO CALCULATE AND INCLUDE IN ITS SENTENCING ENTRY THE CORRECT NUMBER OF DAYS OF CREDIT MR. BUTCHER WAS ...

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