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 Ross 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 motion to
dismiss (Doc. 9) and petitioner's response in opposition.
(Doc. 10). For the reasons stated below, the undersigned
recommends that the motion to dismiss be granted and the
petition be dismissed on the ground that it is time-barred
pursuant to 28 U.S.C. § 2241(d)(1).
February 5, 2007, the Hamilton County, Ohio, grand jury
returned a six-count indictment charging petitioner with four
counts of aggravated burglary, one count of receiving stolen
property, and one count of failure to comply with an order or
signal of police officer. (Doc. 7, Ex. 1). After initially
entering a not guilty plea, petitioner withdrew his plea and
entered a plea of guilty to three counts of aggravated
robbery and one count of failure to comply with an order or
signal of police. (Doc. 7, Ex. 2). In exchange for the guilty
plea, the prosecution dismissed the remaining counts.
(See Doc. 7, Ex. 3).
16, 2007, petitioner was sentenced to a total aggregate
prison sentence of twenty-two years in the Ohio Department of
Corrections. (Doc. 7, Ex. 4).
to Withdraw Guilty Plea
25, 2007, petitioner filed a pro se motion to withdraw his
guilty plea. (Doc. 7, Ex. 7). Petitioner argued that
his trial counsel failed to advise him of the terms of the
plea agreement and that he should have been given a
competency hearing due to his history of mental illness. On
June 12, 2007, the trial court overruled petitioner's
motion. (Doc. 7, Ex. 8).
20, 2007, petitioner filed a pro se notice of appeal to the
Ohio Court of Appeals. (Doc. 7, Ex. 9). Petitioner's
motion was sua sponte denied as untimely filed by
entry issued June 29, 2007. (Doc. 7, Ex. 10).
Delayed Direct Appeal
through different counsel than at trial, filed a second
notice of appeal and motion for leave to file a delayed
appeal on November 15, 2007. (Doc. 7, Ex. 11, 12). The Ohio
appeals court granted petitioner leave to file a delayed
direct appeal. (Doc. 7, Ex. 15). Petitioner raised the
following three assignments of error in his merit brief:
1. The trial court erred as a matter of law by improperly
sentencing appellant under trial case number B0700957-A.
2. The trial court erred as a matter of law by failing to
comply with Crim.R. 32.3 prior to imposing a prison sentence
for a violation of a community control sanction violation.
3. The trial court erred as a matter of law by overruling
appellant's motion to withdraw his guilty plea under
trial case number B0700957-A.
(Doc. 7, Ex. 18). Petitioner withdrew his second assignment
of error. (Doc. 7, Ex. 19). On September 24, 2008, the Ohio
Court of Appeals overruled petitioner's assignments of
error and affirmed the judgment of the trial court. (Doc. 7,
did not seek further review in the Ohio Supreme Court.