Opinion
Civil Action 2:08-cv-00848.
February 17, 2010
ORDER
Petitioner Juan D. Mullins, a State prisoner, brings this action under 28 U.S.C. § 2254 alleging that he is in custody in violation of the Constitution of the United States. This matter is before the Court on Magistrate Judge Abel's January 13, 2010 Report and Recommendation (doc. 8) that the petition for writ of habeas corpus under 28 U.S.C. § 2254 be denied.
On February 2, 2010, petitioner Mullins filed objections to the Report and Recommendation. The petition pleads two grounds for relief:
1. Post- Foster, a trial court errs when it fails to either articulate sufficient reasons for its sentence or carefully consider RC 2929.11 and RC 2929.12 at an offender's sentencing hearing.
Failure to give reasons for the sentence imposed essentially leaves an appellate court in the dark reviewing whether the court abused its discretion or whether the sentence is contrary to law.
2. Petitioner's indictment is defective per the Ohio Supreme Court decision of State v. Colon, 2008 WL 1077553.
Petitioner's indictment fails to state the required essential element specifically the "mens rea" of "recklessly" in his indictment and therefore petitioner was not notified of all elements for his defense.
Petitioner concedes that his second claim is procedurally barred but argues that his first claim is not procedurally barred because he made a similar argument in one paragraph of his brief in the Ohio Court of Appeals. He does not cite that paragraph.
Petitioner's first assignment of error in the Ohio Court of Appeals was that "Applying the Remedy Created in State v. Foster at Defendant's Re-sentencing Hearing Violated Defendant's Constitutional Guarantee to Due Process and the Constitutional Prohibition on Ex Post Facto Laws." December 9, 2008, Return of Writ, Ex. 11, Doc. 7-2, at p. 2. The entire argument is focused on a denial of due process and a violation of the Ex Post Facto Clause. It does not fairly present the argument that the trial court failed to articulate sufficient reasons for its sentence or that the judge failed to carefully consider Ohio Revised Code §§ 2929.11 and 2929.12. The Magistrate Judge correctly found that ground one is procedurally barred.
Upon de novo review as required by 28 U.S.C. § 636(b)(1)(B), the Court ADOPTS the Report and Recommendation.
The petition for writ of habeas corpus is DENIED. This action is hereby DISMISSED. The Clerk of Court is DIRECTED to enter JUDGMENT for respondent.