United States District Court, N.D. Ohio, Eastern Division
REPORT & RECOMMENDATION
M. Parker, United States Magistrate Judge.
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.
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
State Conviction, No. 2015-CR-00137
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.
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.
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.
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
ASSIGNMENT OF ERROR IV:
The convictions were against the manifest weight of the
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