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Dennis v. Marquis

United States District Court, N.D. Ohio, Eastern Division

December 18, 2019

REECO DENNIS, Petitioner,
v.
DAVID MARQUIS, Warden, Respondent.

          JACK ZOUHARY JUDGE.

          REPORT & RECOMMENDATION

          Thomas M. Parker, United States Magistrate Judge.

         I. Introduction

         Petitioner, Reeco Dennis, an Ohio prisoner serving an aggregate prison sentence of 19 years for rape and kidnapping, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 4, 2019. ECF Doc. 1, ECF Doc. 9-1 at 18. On July 18, 2019, Warden David Marquis filed a motion to dismiss arguing that seven of Dennis's nine claims for relief - Grounds One through Seven - are unexhausted. ECF Doc. 9. Dennis filed a memorandum in opposition on September 27, 2019. ECF Doc. 13.

         This matter is before me by an automatic order of reference under Local Rule 72.2 for preparation of a report and recommendation on Dennis's petition and any potentially case-dispositive motions such as the warden's motion to dismiss. Because Dennis has not shown the necessary good cause and merits of the affected claims, I recommend that the court GRANT respondent's motion to dismiss. However, because Dennis's Ground Eight and Ground Nine claims are exhausted and would be barred by AEDPA's statute of limitations if they had to be re-filed, I also recommend that the Court grant Dennis leave to file an amended petition that omits his unexhausted claims (Ground One through Ground Seven) and proceed to judgment on his Ground Eight and Ground Nine claims.

         II. Procedural History

         A. State Conviction, No. 2015-CR-00137

         On March 2, 2016, a Cuyahoga County Grand Jury indicted Dennis on one count of rape in violation of Ohio Rev. Code § 2907.02(A)(2) and one count of kidnapping in violation of Ohio Rev. Code § 2905.01(A)(4), both with firearm specifications. ECF Doc. 9-1 at 4-5. He pleaded not guilty. ECF Doc. 9-1 at 6.

         On April 18, 2016, Dennis moved for forensic testing at the state's expense. ECF Doc. 9-1 at 7. On June 21, 2016, he moved under Ohio Evid. Rule 404(B) to preclude the state's use of other act evidence. ECF Doc. 9-1 at 11. On July 5, 2016, the trial court denied the motion to preclude. ECF Doc. 9-1 at 16.

         On July 6, 2016, a jury returned guilty verdicts on rape as charged in Count One and kidnapping as charged in Count Two of the indictment. The jury found Dennis not guilty of the associated firearm specifications. ECF Doc. 9-1 at 17. In a journal entry dated July 12, 2016, the trial court sentenced Dennis to serve a prison term of 11 years on Count One and a consecutive prison term of 8 years on Count Two, for an aggregate prison sentence of 19 years. The court also ordered this sentence to be served consecutive to a sentence on another case, No. CR 598782. ECF Doc. 9-1 at 18.

         B. Direct Appeal

         On July 18, 2016, Dennis filed a notice of appeal. ECF Doc. 9-1 at 20. Through counsel, he filed a brief with the following assignments of error:

ASSIGNMENT OF ERROR I:
The trial court erred by admitting state's exhibit 4 (medical records) over appellant's objection and in violation of Evidence Rules 401, 402, 403, and 801.
ASSIGNMENT OF ERROR II:
The trial court erred when the jury was not instructed on the lesser included offense of gross sexual imposition.
ASSIGNMENT OF ERROR III:
The trial court erred by denying appellant's Crim. R. 29 motions because the convictions were not supported by sufficient evidence.
ASSIGNMENT OF ERROR IV:
The convictions were against the manifest weight of the evidence.
ASSIGNMENT OF ERROR V:
The trial court erred by not ruling on appellant's motion for independent forensic testing thereby violating appellant's due process rights.
ASSIGNMENT OF ERROR VI:
Appellant was denied the effective assistance of counsel.
ASSIGNMENT OF ERROR VII:
The trial court erred by denying appellant's motion for merger of the offenses as allied offenses for the purpose of ...

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