United States District Court, N.D. Ohio
R. Knepp, II Magistrate Judge
MEMORANDUM OPINION & ORDER
A. BARKER U.S. DISTRICT JUDGE
matter is before the Court upon the Report &
Recommendation (“R&R”) of Magistrate Judge
James R. Knepp, II (Doc. No. 9), which recommends granting
the Respondent's Motion to Dismiss Petitioner Thomas
Aquila, II's Petition for Writ of Habeas Corpus (Doc. No.
7) and dismissing the Petition as time-barred. Petitioner has
filed Objections to the R&R. (Doc. No. 11.)
following reasons, Petitioner's Objections are overruled.
The R&R is ADOPTED, Respondent's Motion to Dismiss
(Doc. No. 7) is GRANTED and the Petition is DISMISSED.
Relevant Procedural History
State Court Proceedings
November 1997, Aquila pled guilty to murder in violation of
Ohio Rev. Code § 2903.02 and was sentenced to life in
prison without the possibility of parole for fifteen years.
(Doc. No. 7-1, Exh. 2.) The Journal Entry of sentence was
journalized on November 13, 1997. (Id.) Aquila did
ten years later, on February 29, 2008, the state trial court
issued a Journal Entry that provided as follows: “The
Court advised the Defendant of a mandatory 5 years of post
release control at sentencing of 11/7/97. The Court however
neglected to journalize this advisement of post release
control. This Entry advises that post release control for 5
years may be imposed by Adult Parole Authority. The
sentencing imposed on 11/7/97 remains unchanged.” (Doc.
No. 7-1, Exh. 3.)
April 6, 2012, the state trial court issued a journal entry
noting that Aquila was scheduled for a hearing before the
parole board. (Doc. No. 7-1, Exh. 4.) The trial court stated
that it “had imposed sentence after due consideration
of all relevant factors and opposes any reduction or
modification of sentence by the Ohio Parole Board from that
which was imposed.” (Id.)
three years later, on September 10, 2015, Aquila filed a
pro se Motion to Withdraw Guilty Plea. (Doc. No.
7-1, Exh. 5.) Therein, Aquila argued that “the
advisement of the penalties involved was incorrect, and that
the underlying understanding of the penalties, both explicit
and implied, has been actively breached by the
government.” (Id. at PageID# 40.)
Specifically, Aquila argued that the trial court incorrectly
imposed a term of post-release control that was inapplicable
to his conviction. (Id. at PageID# 41.) Aquila also
argued that the trial court's April 2012 Journal Entry
“actively nullif[ied] the only conceivable benefit to
Defendant within the Agreement” and effectively
modified his sentence to life without parole. (Id.
at PageID# 41-42.) Several months later, on November 4, 2015,
Aquila, through counsel, filed a Motion to Correct Illegal
Sentence in which he again argued that post-release control
was erroneously imposed and requested a hearing. (Doc. No.
7-1, Exh. 7.)
November 16, 2015, the state trial court held a hearing and
granted Aquila's Motion to Correct Illegal Sentence.
(Doc. No. 7-1, Exh. 8.) The court filed a nunc pro
tunc entry “to reflect the removal of the
advisement of post-release control.” (Id.) On
that same date, the trial court issued a Journal Entry
denying Aquila's Motion to Withdraw Plea. (Doc. No. 7-1,
December 14, 2015, Aquila, through counsel, filed a notice of
appeal to the Ohio Court of Appeals for the Eighth Appellate
District (hereinafter “state appellate court”).
(Doc. No. 7-1, Exh. 11.) In his brief, he asserted the
following sole assignment of error: “The trial court
erred in denying Appellant's Motion to Withdraw Guilty
Plea because Appellant has suffered a manifest
injustice.” (Doc. No. 7-1, Exh. 12.) On July 28, 2016,
the state appellate court affirmed the judgment of the state
trial court. (Doc. No. 7-1, Exh. 14.) Aquila filed a pro
se Motion for Reconsideration, which was denied on
August 16, 2016. (Doc. No. 7-1, Exhs. 15, 17.)
September 30, 2016, Aquila, through counsel, filed a notice
of appeal to the Supreme Court of Ohio. (Doc. No. 7-1, Exh.
18.) In his Memorandum in Support of Jurisdiction, Aquila
raised the following proposition of law:
A defendant's plea is invalid when he has been induced to
enter a plea based on the potential for parole and the trial
court issues a blanket opposition to parole, thus denying a
meaningful opportunity for parole and effectively modifying
the sentence originally imposed.
No. 7-1, Exh. 19.) On April 19, 2017, the Ohio Supreme Court
declined to accept jurisdiction pursuant to S.Ct. Prac. R.
7.08(B)(4). (Doc. No. 7-1, Exh. 21.)