Smith v. Warden, Southeastern Correctional Institution

Filing 8

REPORT AND RECOMMENDATIONS re 2 MOTION for Bond. The Magistrate Judge RECOMMENDS that Petitioner's Motion for Bond be DENIED. Objections to R&R due by 7/11/2014. Signed by Magistrate Judge Norah McCann King on 6/24/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GENERAL SMITH, III,
CASE NO. 2:14-CV-00554
JUDGE SMITH
MAGISTRATE JUDGE KING

Petitioner,
v.
WARDEN SHERRY DUFFY,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on Petitioner’s Motion for Bond, Doc. No. 2.
Respondent opposes Petitioner’s motion, Response in Opposition, Doc. No. 6. For the reasons
that follow, the Magistrate Judge RECOMMENDS that Petitioner’s Motion for Bond, Doc. No.
2, be DENIED.
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
this case as follows:
In case No. 03CR-05-3195, appellant was found guilty on
February 20, 2004, of aggravated robbery and a one-year firearm
specification. On October 18, 2007, appellant filed a motion to
vacate his guilty plea or, in the alternative, motion for new trial.
On November 29, 2007, the parties disposed of the motion by
entering into an agreement, in which it was agreed, among other
things, that appellant would plead guilty to aggravated robbery
without firearm specification and attempted having a weapon while
under a disability, and the parties would enter a joint
recommendation as to a total sentence of nine years and six
months. The trial court issued a judgment entry on December 6,
2007, with regard to such. On December 1, 2008, appellant was
granted judicial release with community control for a period of two
years.

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On April 30, 2009, appellant was charged with four counts of
robbery in case No. 09CR-04-2547. On May 27, 2009, the
probation department requested revocation of appellant's
community control in case No. 03CR-05-3195 due to the offenses
in case No. 09CR-04-2547. On January 27, 2010, with regard to
case No. 09CR-04-2547, a judgment was entered in which
appellant pleaded guilty to attempted felonious assault, which was
characterized as a lesser-included offense of robbery. The trial
court sentenced appellant to a prison term of four years.
Also on January 27, 2010, the trial court issued a judgment
revoking appellant's community control in case No. 03CR-053195. The court imposed a prison term of nine years on the
aggravated robbery charge to be served consecutively to a sixmonth term on the attempted having a weapon while under
disability charge. The trial court also ordered the sentence in case
No. 03CR-05-3195 to be served consecutively to the term imposed
in case No. 09CR-04-2547.
State v. Smith, Nos. 10AP-143; 10AP-144, 2010 WL3835772 (Ohio 10th App. Dist. Sept. 30,
2010). On September 30, 2010, the appellate court affirmed the judgment of the trial court. Id.
On February 2, 2011, the Ohio Supreme Court dismissed the appeal. State v. Smith, 127 Ohio
St.3d 1536 (Ohio Feb. 2, 2011). On June 11, 2014, Petitioner filed this action. He complains
that the state courts failed to vacate a void sentence and that the trial court lacked jurisdiction to
grant Petitioner’s motion to withdraw his guilty plea. Petition, PageID# 2-3, Doc. No. 1.
In order to be released on bail pending a decision on the merits of a habeas petition, a
petitioner must demonstrate (1) a substantial claim of law based on the facts surrounding the
petition and (2) circumstances making the motion for bail “exceptional and deserving of special
treatment in the interests of justice.” Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990) (citing
Aronson v. May, 85 S.Ct. 3, 5, 13, 13 L.Ed.2d 6 (1964)). “There will be few occasions where a
prisoner will meet this standard.” Dotson, 900 F.2d at 79. Because a habeas petitioner “is
appealing a presumptively valid state conviction ... it will indeed be the very unusual case where

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a habeas petitioner is admitted to bail prior to a decision on the merits in the habeas case.” Lee
v. Jabe, 989 F.2d 869, 871 (6th Cir. 1993). The record fails to reflect that this is such a case.
The Ohio Court of Appeals and the Ohio Supreme Court have affirmed Petitioner’s
convictions and sentences and this Court is unable to determine, at this juncture, whether the
Petition may be time-barred. Petitioner has demonstrated neither a claim or facts that would
warrant the extraordinary relief of release on bail.
The Magistrate Judge therefore RECOMMENDS that Petitioner’s Motion for Bond,
Doc. No. 2, be DENIED.
Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A judge of this Court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §
636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

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the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge

June 24, 2014

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