United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
an inmate in state custody at the London Correctional
Institution, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Doc. 2). This
matter is before the Court on respondent's return of writ
(Doc. 9) and petitioner's reply. (Doc. 12). For the
reasons stated below, the undersigned recommends that the
petition be denied on the ground that it is time-barred
pursuant to 28 U.S.C. § 2241(d)(1).
February 25, 2005, the Warren County, Ohio, grand jury
returned a nine-count indictment charging petitioner with
seven counts of trafficking in cocaine and two counts of
possession of cocaine. (Doc. 8, Ex. 1). Petitioner entered a
not guilty plea. (Doc. 8, Ex. 2).
a jury trial, petitioner was found guilty on all counts
charged in the indictment. (Doc. 8, Ex. 4). However, after
the case was submitted to the jury for deliberation, but
prior to the verdict petitioner absconded. (See Doc.
8, Ex. 11 at PageID 163). Petitioner was apprehended seven
years later and returned to Warren County for sentencing.
(Id.). On June 5, 2012, petitioner was sentenced to
a total aggregate prison sentence of 18 years in the Ohio
Department of Corrections. (Doc. 8, Ex. 5).
13, 2012, petitioner, through new counsel, filed a notice of
appeal to the Ohio Court of Appeals. (Doc. 8, Ex. 6).
Petitioner raised the following three assignments of error in
his merit brief:
1. Appellant's trial counsel was ineffective and
appellant was prejudiced thereby.
2. The trial court erred in overruling appellant's motion
for criminal rule 29 acquittal when venue was not established
as to counts one (1) through five (5) of the indictment.
3. The trial court erred in imposing a sentence on count one
(1) that exceeded the applicable sentencing range for the
(Doc. 8, Ex. 7). On July 1, 2013, the Ohio Court of Appeals
overruled petitioner's assignments of error and affirmed
the judgment of the trial court. (Doc. 8, Ex. 11).
did not seek review of the decision in the Ohio Supreme
for Post-Conviction Relief
August 2, 2017, more than four years later, petitioner filed
a "Motion to Correct Void Sentence and/or
Judgment." (Doc. 8, Ex. 12). On September 5, 2017, the
trial court determined the motion was barred by the doctrine
of res judicata. (Doc. 8, Ex. 14).
October 27, 2017, petitioner filed a notice of appeal and
motion for leave to file a delayed appeal. (Doc. 8, Ex.
15-17). On December 7, 2017, the Ohio Court of Appeals denied
petitioner's motion for leave to file a delayed appeal as
unnecessary because the trial court decision was not properly
served and accepted the appeal as being timely filed. ...