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Moten v. Cook

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

August 30, 2019

AARON MOTEN, Petitioner,
v.
BRIAN COOK, Warden, Southeastern Correctional Institution, Respondent.

          Thomas M. Rose District Judge

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This is a habeas corpus action, brought pro se by Petitioner Aaron Moten under 28 U.S.C. § 2254. Motes seeks relief from his 144-month sentence imposed in the Clark County, Ohio, Court of Common Pleas upon his conviction on four drug-related felonies. As with all post-conviction remedies cases filed at this seat of Court, the case has been referred to the undersigned under General Order Day 13-01.

         All new habeas corpus filings are subject to review under Rule 4 of the Rules Governing § 2254 Cases, which provides that:

The clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

         After pleading guilty pursuant to a plea agreement and being sentenced, Moten appealed to the Second District Court of Appeals which affirmed the convictions and sentence. State v. Moten, 2nd Dist. Clark Nos. 2018-CA-19, 2018-CA-20, 2019-Ohio-1473 (Apr. 19, 2019). The Supreme Court of Ohio then declined to exercise jurisdiction. State v. Moten, 156 Ohio St.3d 1447, 2019-Ohio-2498. Moten thereafter filed the instant habeas Petition within the time allowed by 28 U.S.C. § 2244(d) (ECF No. 1).

         Moten pleads two grounds for relief:

Ground One: Merger of Single Animus (Allied Offenses)
Supporting Facts: Petitioner contends that the trial court erred by sentencing him in Case 17CR-447 for both trafficking in drugs and illegal conveyance of drugs, offenses that should merged his sentence in violation of RC [Ohio Revised Code §] 2941.25.
Ground Two: Ineffective Assistance of Counsel for Acquiescing to a prison sentence.
Supporting Facts: Trial counsel made the following statement during the sentence hears that “Obviously (Moten) is going to be sent to prison today.” Counsel purpsterdly [sic] bolstered the presumption of a prison sentence by indicating Petitioner looked [sic] remorse, and that he was more likely to recidivate.

(Petition, ECF No. 1, PageID 5, 7.)

         Ground One: Allied Offenses of Similar Import

         Moten raised his First Ground for Relief as his First Assignment of Error on direct appeal and the Second District decided that claim against him. Moten pleads the same claim again here, but it is not a claim upon which federal habeas corpus relief can be granted. Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran,562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Barclay v. Florida,463 U.S. 939 (1983); Smith v. Phillips, 455 U.S. 209 (1982). “[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United ...


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