United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. LITKOVITZ UNITED STATES MAGISTRATE JUDGE.
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).
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.
Convictions and Sentence
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).
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
(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).
26(B) Application to Reopen Direct Appeal
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
2. The trial court erred in authorizing a reverse-buy
prosecution where the defendant holds but does not purchase
(Doc. 5, Ex. 11, PagelD 121-28). 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). On December 6, 2017, the Ohio Supreme
Court denied further review. (Doc. 5, Ex. 17, at PagelD 189).