Rose v. Warden, Chillicothe Correctional Institution

Filing 50

ORDER: The Report and Recommendation (Doc. 47 ) is ADOPTED; The Objections (Doc. 48 ) are OVERRULED; The Petition, as amended, for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED with prejudice; Petitioners motion for preliminary injunction (Doc. 46 ) is DENIED; A certificate of appealability is DENIED; Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that an appeal of this Order would not be taken in good faith, and Petitioner is DENIED leave to appeal in forma pauperis; and the Clerk shall issue judgment accordingly, whereupon this case is TERMINATED on the docket of this Court. Signed by Judge Timothy S. Black on 9/21/2018. (ss)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JERRY R. ROSE,
Petitioner,
vs.
WARDEN, CHILICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

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Case No. 1:15-cv-353
Judge Timothy S. Black
Magistrate Judge Stephanie K.
Bowman

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 47),
OVERRULING PETITIONER’S OBJECTIONS (Doc. 48), and
TERMINATING THIS CASE IN THIS COURT
This case is before the Court pursuant to the Order of General Reference to United
States Magistrate Judge Stephanie K. Bowman. Pursuant to such reference, the
Magistrate Judge reviewed the pleadings filed with this Court, and, on March 22, 2018,
submitted a Report and Recommendation. (Doc. 47). Petitioner timely filed objections
(“Objections”). (Doc. 48). 1

1

Petitioner’s Objections fail to demonstrate that the Magistrate Judge erred in denying relief on
all four grounds of the petition. As to Ground One, the Magistrate Judge properly held that
Petitioner does not have a constitutional right to withdraw a guilty plea. As to Ground Two, the
Magistrate Judge properly concluded that the trial court’s alleged failure to follow Ohio Criminal
Rule 11 is a non-cognizable state-law claim, and, in any event, Petitioner has not demonstrated
that his plea was entered unknowingly, involuntarily, or unintelligently. As to Count Three, the
Magistrate Judge properly concluded that the trial court’s authority to issue an Amended
Judgment of Conviction is a state law issue not cognizable on federal habeas corpus, and that
Petitioner has failed to show Ohio’s vexatious litigator statute violates due process. Finally, the
Court agrees that Ground Four, for ineffective assistance of counsel, fails for the reasons
explained on pages 20-24 of the Report and Recommendation.

As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter. Upon consideration of the foregoing, the Court does
determine that such Report and Recommendation should be and is hereby ADOPTED it
its entirety. Accordingly:
1.

The Report and Recommendation (Doc. 47) is ADOPTED;

2.

The Objections (Doc. 48) are OVERRULED;

3.

The Petition, as amended, for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (Docs. 1, 27, 33) is DENIED with prejudice;

4.

Petitioner’s motion for preliminary injunction (Doc. 46) is DENIED;

5.

A certificate of appealability is DENIED;

6.

Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that an appeal of this
Order would not be taken in good faith, and Petitioner is DENIED leave to
appeal in forma pauperis; and

7.

The Clerk shall issue judgment accordingly, whereupon this case is
TERMINATED on the docket of this Court.

IT IS SO ORDERED.
Date:

9/21/18

Timothy S. Black
United States District Judge