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Aquila v. Eppinger

United States District Court, N.D. Ohio

August 21, 2019

Thomas Aquila, II, Petitioner,
v.
Warden LaShann Eppinger, Respondent

          James R. Knepp, II Magistrate Judge

          MEMORANDUM OPINION & ORDER

          PAMELA A. BARKER U.S. DISTRICT JUDGE

         This 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.)

         For the 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.

         I. Relevant Procedural History

         A. State Court Proceedings

         In 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 not appeal.

         Over 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.)

         On 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.)

         Over 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.)

         On 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, Exh. 10.)

         On 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.)

         On 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.

         (Doc. 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.)

         B. Federal ...


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