Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Peyton v. Warden, Franklin Medical Center

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

August 16, 2019

JAMES VERNON PEYTON, Petitioner,
v.
WARDEN, FRANKLIN MEDICAL CENTER, Respondent.

          Bertelsman, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.

         Petitioner, an inmate in state custody at the Franklin Medical Center, in Columbus, Ohio, has filed, through counsel, a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Petitioner seeks relief from his 2015 Butler County conviction for possession of marijuana. (Doc. 1, at PagelD 5, 7-8, 10). This matter is now before the Court on the petition (Doc. 1) and respondent's motion to dismiss the petition on the grounds that it contains unexhausted claims and, alternatively, is time-barred (Doc. 6). Petitioner has filed a response in opposition to respondent's motion to dismiss (Doc. 7), to which respondent has replied (Doc. 8) and petitioner has filed a sur-reply (Doc. II).[1]

         For the reasons that follow, it is recommended that the motion to dismiss (Doc. 6) be GRANTED and that the petition (Doc. 1) be DISMISSED with prejudice as time-barred. In light of the undersigned's finding that the petition is time-barred, the undersigned does not reach respondent's alternative assertion that the petition contains unexhausted claims.

         I. PROCEDURAL HISTORY

         State Convictions and Sentence

         On July 17, 2013, the Butler County, Ohio, grand jury returned an eight-count indictment charging petitioner with one count of aggravated trafficking in drugs, in violation of Ohio Rev. Code § 2925.03(A)(1); six counts of trafficking in drugs, in violation of Ohio Rev. Code § 2925.03(A)(1); and one count of possession of marijuana, in violation of Ohio Rev. Code § 2925.11, with ten forfeiture specifications. (Doc. 5, Ex. 1, at PagelD 36-39). A jury found petitioner guilty as charged (Doc. 5, Ex. 4, at PagelD 42-44; see also Doc. 5, Ex. 10, at PagelD 111), and petitioner was sentenced to a total aggregate prison sentence of eight years in the Ohio Department of Corrections (Doc. 5, Ex. 5, at PagelD 47).

         Direct Criminal Appeal

         Petitioner, through counsel (different than original trial counsel), filed an appeal to the Ohio Court of Appeals on June 15, 2015 (Doc. 5, Ex. 6, at PagelD 49), raising the following two assignments of error:

1. The trial court erred to the prejudice of defendant-appellant when it refused to instruct the jury regarding the defense of entrapment.
2. Appellant's conviction for possession of marijuana was against the manifest weight of the evidence and there was insufficient evidence to prove that he had possession of the marijuana.

(Doc. 5, Ex. 7, at PagelD 56-57). On January 23, 2017, the Ohio Court of Appeals overruled petitioner's assignments of error and affirmed the trial court's judgment. (Doc. 5, Ex. 10, at PagelD 105-120). Petitioner did not seek further review in the Ohio Supreme Court. (See Doc. 1, at PagelD 2).

         Rule 26(B) Application to Reopen Direct Appeal

         On April 26, 2017, petitioner, through new counsel, filed a delayed application to reopen his direct appeal pursuant to Ohio Appellate Rule 26(B), arguing that appellate counsel was ineffective for failing to raise the following two assignments of error on direct appeal:

1. The trial court erred in failing to provide the reverse-buy entrapment instruction from [Ohio Rev. Code §] 3719.141(A)(1)(f).
2. The trial court erred in authorizing a reverse-buy prosecution where the defendant holds but does not purchase the drugs.

(Doc. 5, Ex. 11, PagelD 121-28).[2] On July 18, 2017, the Ohio Court of Appeals denied the Rule 26(B) application as untimely, and alternatively, on the merits. (Doc. 5, Ex. 14, at PagelD 174- 78).[3] On December 6, 2017, the Ohio Supreme Court denied further review. (Doc. 5, Ex. 17, at PagelD 189).

         II. FEDERAL ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.