Shalash v. Warden, Noble Correctional Institution

Filing 20

DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 18 ). Signed by Judge Timothy S. Black on 1/13/2017. (mr)(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
HAITHAM SHALASH,
Petitioner,
vs.
WARDEN, NOBLE
CORRECTIONAL INSTITUTION,
Respondent.

:
:
:
:
:
:
:
:
:
:

Case No. 1:16-cv-451
Judge Timothy S. Black
Magistrate Judge Karen L. Litkovitz

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 18)
This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Karen L. Litkovitz. Pursuant to such reference, the Magistrate
Judge reviewed the pleadings filed with this Court and, on January 4, 2016, submitted a
Report and Recommendation. (Doc. 18). Petitioner filed objections on Jan. 11, 2017.
(Doc. 19). 1

1

After reviewing the Report and Recommendation, Petitioner’s objections, and the case
record, the Court finds that Petitioner’s objections are not well taken. Petitioner’s initial
argument in his habeas corpus motion was that his sentence was an unconstitutional ex post facto
sentence, as the Ohio state legislature did not criminalize the sale of “controlled substance
analogs” until Plaintiff had already been convicted of doing so. The Magistrate Judge stayed the
case until the Supreme Court of Ohio weighed in this issue, which had been raised by a
codefendant in the state courts. (Doc. 16). The Supreme Court of Ohio held that the sale of
controlled substance analogs was in fact already illegal when Plaintiff was arrested and charged
because a previous statute had incorporated “controlled substance analogs” into every provision
of the Ohio Revised Code, treating them under any provision the same as would be treated a
controlled substance in schedule I. (See Doc. 17-1). [footnote continued on next page]
1

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 Recommendations should be and is hereby adopted in
its entirety. Accordingly, IT IS ORDERED that:
1)

Respondent’s motion to dismiss (Doc. 10) is GRANTED;

2)

Petitioner’s petition for a writ of habeas corpus (Doc. 1) is
DISMISSED WITH PREJUDICE;

3)

A certificate of appealability shall not issue with respect to any of the
grounds for relief alleged in the petition because petitioner has not stated a
"viable claim of the denial of a constitutional right," nor are the issues
presented "adequate to deserve encouragement to proceed further." See
Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle,
463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b);

4)

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

IT IS SO ORDERED.
Date: 1/13/17
Timothy S. Black
United States District Judge
Petitioner’s objections to the Report and Recommendation acknowledge the Supreme
Court of Ohio’s ruling but argue that he was still sentenced under an unconstitutional ex post
facto law because “no penalty for control substance analogs existed until December 20, 2012.”
(Doc. 19, at 6 (emphasis added)). Petitioner’s assertion is incorrect. As interpreted by the
Supreme Court of Ohio, the penalty for the sale of controlled substance analogs was the same as
the penalty for the sale of controlled substances under schedule I at the time of Petitioner’s
conviction, because controlled substance analogs were viewed by all sections of the Ohio
Revised Code equivalently to controlled substances under Schedule I at the time of Petitioner’s
conviction. Accordingly, neither Petitioner’s ex post facto claim nor his ineffective assistance of
counsel claim (based around the same misinterpretation of Ohio law) has merit.
2