Avery v. Warden, Marion Correctional Institution, No. 2:2019cv01126 - Document 7 (S.D. Ohio 2019)

Court Description: OPINION and ORDER adopting and affirming 5 the Report and Recommendation. Signed by Judge Michael H. Watson on 5/20/19. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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Avery v. Warden, Marion Correctional Institution Doc. 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OHIO EASTERN DIVISION EDWARD B. AVERY, SR., CASE NO. 2:19-cv-1126 Petitioner, Judge Michael H. Watson Magistrate Judge Kimberly A. Jolson V. WARDEN, MARION CORRECTIONAL INSTITUTION, Respondent. OPINION AND ORDER On May 1,2019, the Magistrate Judge issued a Report and Recommendation pursuant to Rule 4 of the Rules Goveming Section 2254 Cases in the United States District Courts recommending that this action be dismissed. ECF 5. Petitioner has filed an Objection to the Magistrate Judge's Report and Recommendation. ECF 6. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that foilow, Petitioner's Objection, ECF 6, is OVERRULED. The Report and Recommendation, ECF 5, is ADOPTED and AFFIRMED. This action is hereby DISMISSED. The Court DECLINES to issue a certificate of appealability. In March 1997, Petitioner pleaded guilty in Union County to the charge of escape. The trial court imposed a term of three years' community controi and a one year suspended sentence of imprisonment. However, Petitioner violated the terms of his community control, and on December 16,1998, the trial court sentenced him to tweive months in prison with 313 days credit for prior jail and penitentiary time served. On May 17,1999, the appellate court affirmed the judgment of the triai court. Petitioner Dockets.Justia.com now asserts that the trial court lacked jurisdiction and unconstitutionaliy re-sentenced him after his sentence had aiready completely expired. The Magistrate Judge recommended dismissai of this action because Petitioner's sentence has long since expired, he no longer remains "in custody" on the conviction he seeks to chalienge, and this Court therefore lacks jurisdiction to consider his ciaims. Petitioner objects. Petitioner insists that he remains "in custody" on his 1997 escape conviction, in view of a May 4, 2018, Joumal Entry from the Union County Court of Common Pieas, ECF 6-1, PAGEID # 32-33, indicating that his sentence was to run concurrently with his sentence in Case No. 1997-CR-0020, a thirty year term, and because he will be required to serve a mandatory term of post release control. Objection, ECF 6. However, the trial court's Journal Entry also indicates that his sentence had long since completely expired. Moreover, and even assuming, arguendo, that it had not, this action plainly is barred by the one-year statute of limitations imposed under the provision of 28 U.S.C. § 2244(d). Therefore, Petitioner's Objection, ECF 6, is OVERRULED. The Report and Recomrriendation, ECF 5, is ADOPTED and AFFIRMED. This action is hereby DISMISSED. Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court now considers whether to issue a certificate of appealability. See 28 U.S.C. § 2255(d). When a claim has been denied on the merits, a certificate of appealability may issue only ifthe petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a constitutional right, a petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDanlei, 529 U.S. 473,484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). When a claim has been denied on procedural grounds, a certificate of appealability may issue if the petitioner establishes that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatabie whether the district court was correct in its procedural ruling. Id. This Court is not persuaded that reasonable jurists would debate this Court's dismissal of this action. Therefore, the Court DECLINES to issue a certificate of appealability. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal would not be in good faith and that an application to proceed in forma pauperis on appeal should be DENIED. IT IS SO ORDERED. ^ MICHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT

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