ORDER

[Resolving Docs. 1011, 1014]

JAMES S. GWIN, District Judge.

Defendant Ishmael Wahid has filed two motions that essentially amount to a request for this Court to reconsider its denial of his habeas petition for relief under 28 U.S.C. § 2255.1 Because those motions largely rehash the same arguments Wahid made in his petition, the Court DENIES both motions to reconsider for the same reasons given it its earlier order.2

Only one point requires further discussion. Upon further review of the Sixth Circuit's decision in United States v. Conzelmann,3 the Court believes that it may have erred in relying on the PSR's description of Wahid's 2003 drug conviction. Nonetheless, the Court also took judicial notice of the related state court Shepard4 documents, namely the indictments and journal entries from the 2003 conviction. Those documents are sufficient on their own to show that Wahid was convicted for manufacturing cocaine and thus support the Court's decision to dismiss Wahid's petition. The Court has attached copies of these documents to this Order for Petitioner's convenience and to facilitate review by the Sixth Circuit if Wahid elects to proceed with his appeal.

The Court continues to see no grounds to issue a certificate of appealability.

IT IS SO ORDERED.

In the Common Pleas Court of Summit County, Ohio, of the term of SEPTEMBER in the year of our Lord, Two Thousand and Three,

The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, being duly impaneled and sworn and charged to inquire of and present all offenses whatever committed within the limits of said County, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OHIO,

COUNT ONE

DO FIND AND PRESENT that A) DAMIEN R. STAFFORD and B) ISHMAEL A. WAHID on or about the 21st day of September, 2003, in the County of Summit and State of Ohio, aforesaid did commit the crime of ILLEGAL MANUFACTURE OF DRUGS in that they did knowingly manufacture or otherwise engage in any part of the production of a drug, Crack Cocaine, a Schedule II controlled substance, in violation of Section 2925,04(A) of the Ohio Revised Code, A FELONY OF THE SECOND DEGREE, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.

COUNT TWO

And the Grand Jurors of the State of Ohio, within and for the body of the County of Summit, aforesaid on their oaths in the name and by the authority of the State of Ohio, DO FURTHER FIND AND PRESENT, that A) DAMIEN R. STAFFORD and B) ISHMAEL A. WAHID on or about the 21st day of September, 2003, in the County of Summit, aforesaid did commit the crime of TAMPERING WITH EVIDENCE in that they did, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, alter, destroy, conceal, or remove any record, document, or thing, to wit: items used in making Crack Cocaine, with purpose to impair its value or availability as evidence in such proceeding or investigation, in violation of Section 2921.12(A)(1) of the Ohio Revised Code, A FELONY OF THE THIRD DEGREE, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.

COUNT THREE

And the Grand Jurors of the State of Ohio, within and for the body of the County of Summit, aforesaid on their oaths In the name and by the authority of the State of Ohio, DO FURTHER FIND AND PRESENT, that A) DAMIEN R. STAFFORD and B) ISHMAEL A. WAHID on or about the 21st day of September, 2003, in the County of Summit, aforesaid did commit the crime of POSSESSION OF COCAINE in that they did knowingly obtain, possess, or use a drug, Crack Cocaine, a Schedule 11 controlled substance, in an amount that equals or exceeds five (5) grams, but is less than ten (10) grams in weight, in violation of Section 2925.11(A) of the Ohio Revised Code, A FELONY OF THE THIRD DEGREE, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.

COUNT FOUR

And the Grand Jurors of the State of Ohio, within and for the body of the County of Summit, aforesaid on their oaths in the name and by the authority of the State of Ohio, DO FURTHER FIND AND PRESENT, that A) DAMIEN R. STAFFORD and B) ISHMAEL A. WAHID on or about the 21st day of September, 2003, in the County of Summit, aforesaid did commit the crime of POSSESSION OF COCAINE in that they did knowingly obtain, possess, or use a drug, Cocaine, a Schedule II controlled substance, in an amount that equals or exceeds twenty-five (25) grams, but is less than one hundred (100) grams in weight, in violation of Section 2925.11(A) of the Ohio Revised Code, A FELONY OF THE THRD DEGREE, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio,

COUNT FIVE

And the Grand Jurors of the State of Ohio, within and for the body of the County of Summit, aforesaid on their oaths in the name and by the authority of the State of Ohio, DO FURTHER FIND AND PRESENT, that A) DAMIEN R. STAFFORD and B) ISHMAEL A. WAHID on or about the 21st day of September, 2003, in the County of Summit, aforesaid did commit the crime of ILLEGAL USE OR POSSESSION OF DRUG PARAPHERNALIA in that they did knowingly use, or possess with purpose to use, drug paraphernalia, to wit: baking soda, ceramic plate, glass jar and/or razor blade, in violation of Section 2925.14(0)(1) of the Ohio Revised Code, A MISDEMEANOR OF THE FOURTH DEGREE, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.

In the Common Pleas Court of Summit County, Ohio, of the term of SEPTEMBER in the year of our Lord, Two Thousand and Three.

The Jurors of the Grand Jury of the State of Ohio, within and for the body of the County aforesaid, being duly impaneled and sworn and charged to inquire of and present all offenses whatever committed within the limits of said County, on their oaths, IN THE NAME AND BY THE AUTHORITY OF THE STATE OF OHIO,

COUNT SEVEN

DO FIND AND PRESENT That B) ISHMAEL A. WAHID, C) MARSHERRE H. SMITH on or about the 13th day of October, 2003, in the County of Summit and State of Ohio, aforesaid, did commit the crime of POSSESSION OF HEROIN in that they did knowingly obtain, possess, or use a drug, heroin, a schedule I controlled substance, in an amount that equals or exceeds 5 grams, but is less than 250 grams in weight, in violation of Section 2925.11(A) of the Ohio Revised Code, A FELONY OF THE FIRST DEGREE, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.

SPECIFICATION ONE TO COUNT SEVEN OHIO REVISED CODE SECTION 2941.1410

The Grand Jurors further find and specify that B) ISHMAEL A, WAHID, C) MARSHERRE H. SMITH are major drug offenders as set forth in Section 2929.01(X) of the Revised Code in that they were convicted of or plead guilty to POSSESSION OF HEROIN a schedule II controlled substance, in violation of Section 2941.1410 of the Ohio Revised Code, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.

COUNT EIGHT

And the Grand Jurors of the State of Ohio, within and for the body of the County of Summit aforesaid, on their oaths in the name and by the authority of the State of Ohio, DO FURTHER FIND AND PRESENT, that B) ISHMAEL A. WAHID, C) MARSHERRE H. SMITH on or about the 13th day of October, 2003, in the County of Summit aforesaid, did commit the crime of POSSESSION OF COCAINE in that they did knowingly obtain, possess, or use a drug, crack cocaine, a schedule II controlled substance, in an amount that equals or exceeds 15 grams, but is less than 100 grams in weight, in violation of Section 2925.11(A) of the Ohio Revised Code, A FELONY OF THE FIRST DEGREE, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.

COUNT NINE

And the Grand Jurors of the State of Ohio, within and for the body of the County of Summit aforesaid, on their oaths in the name and by the authority of the State of Ohio, DC FURTHER FIND AND PRESENT, that B) ISHMAEL A. WAHID, C) MARSHERRE H. SMITH on or about the 13th day of October, 2003, in the County of Summit aforesaid, did commit the crime of POSSESSION OF COCAINE in that they did knowingly obtain, possess, or use a drug, cocaine, a schedule II controlled substance, in an amount that equals or exceeds 100 grams, but is less than 500 grams in weight, in violation of Section 2925.11(A) of the Ohio Revised Code, A FELONY OF THE SECOND DEGREE, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.

COUNT TEN

And the Grand Jurors of the State of Ohio, within and for the body of the County of Summit aforesaid, on their oaths in the name and by the authority of the State of Ohio, DO FURTHER FIND AND PRESENT, that B) ISHMAEL L. WAHID on or about the 13th day of October, 2003, in the County of Summit aforesaid, `did commit the crime of HAVING WEAPONS WHILE UNDER DISABILITY in that she did, without being relieved from disability as provided in Section 2923.14 of the Ohio Revised Code, knowingly acquire, have, carry, or use any firearm or dangerous ordnance, to wit: Taurus revolver, Winchester shotgun, Irma .22 caliber handgun and/or Universal Enforcer .30 carbin and was convicted of an offense involving, the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse, in violation of Section 2923.13(A)(3) of the Ohio Revised Code, A FELONY OF THE FIFTH DEGREE, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Ohio.

THIS DAY, to-wit: The 25th day of November, 2003, now comes the Prosecuting Attorney on behalf of the State of Ohio, the Defendant, ISHMAEL A. WAHID, being in Court with counsel, DONALD MALARCIK, and said Defendant was fully advised of his Constitutional rights and his rights as required under Rule 11 of the Ohio Rules of Criminal Procedure.

Upon Motion of the Prosecuting Attorney on behalf of the State of Ohio, the Court hereby amends Count Seven (7) of the Supplement Two to Indictment to read as follows:

". . . fifty (50) grams . . ."

Thereupon, said Defendant retracts his plea of Not Guilty heretofore entered, and for negotiated plea, and agreed upon sentence, to said Indictment, says he is GUILTY of ILLEGAL MANUFACTURING OF DRUGS, as contained in Count One (1) of the Indictment, Ohio Revised Code Section 2925.04(A), a felony of the second (2nd) degree, which offense occurred on or about September 21, 2003; says he is GUILTY of POSSESSION OF HEROIN, as contained in the amended Count Seven (7) of the Supplement Two to Indictment, Ohio Revised Code Section 2925.1 1(A), a felony of the first (1.9 degree, which offense occurred on or about October 13, 2003; says he is GUILTY of POSSESSION OF COCAINE, as contained in Count Eight (8) of the Supplement Two to Indictment, Ohio Revised Code Section 2925.11(A), a felony of the first (1st) degree, which offense occurred on or about October 13, 2003, arid says he is GUILTY of HAVING WEAPONS WHILE UNDER DISABILITY, as contained in Count Ten (10) of the Supplement Two to Indictment, Ohio Revised Code Section 2923.13(A)(3), a felony of the fifth (5th,) degree, which offense occurred on or about October 13, 2003, which pleas, voluntarily made and with a full understanding of the consequences, are accepted by the Court. IT IS FURTHER ORDERED that the charge of TAMPERING WITH EVIDENCE, as contained in Count Two (2) of the Indictment; the charge of POSSESS/ON OF COCAINE, as contained in Counts Three (3) and Four (4) of the Indictment, and Count Nine (9) of the Supplement Two to Indictment; the charge of ILLEGAL. USE OR POSSESSION OF DRUG PARAPHERNALIA, as contained in Count Five (5) of the Indictment; the MAJOR DRUG OFFENDER SPECIFICATION ONE TO COUNT SEVEN; and the MAJOR DRUG OFFENDER SPECIFICATION ONE TO COUNT TEN, herein be DISMISSED, upon recommendation of the Prosecutor.

Said Defendant was afforded all rights pursuant to Crim. R. 11. The Court has considered the record, statements of counsel, as well as the principles and purposes of sentencing under O.R.C. 2929.11, and the seriousness and recidivism factors under O.R.C. 2929.12.

The Court further finds the Defendant is not amenable to community control and that prison is consistent with the purposes of O.R.C. 2929.12

Thereupon, the Court inquired of the said Defendant if he had anything to say why judgment should not be pronounced against him; and having nothing but what he had already said arid showing no good and sufficient cause why judgment should not be pronounced:

IT IS THEREFORE ORDERED AND ADJUDGED BY THIS COURT that the Defendant, ISHMAEL A. WAHID, be committed to the OHIO DEPARTMENT OF REHABILITATION AND CORRECTION for a definite term of Six (6) Years, which IS a mandatory term pursuant to O.R.C. 2929.13(F), 2929.14(D)(3), or 2925.01, for punishment of the crime of ILLEGAL MANUFACTURING OF DRUGS, Ohio Revised Code Section 2925.04(A), a felony of the second (2nd) degree; for a definite term of Six (6) Years, which IS a mandatory term pursuant to O.R.C. 2929.13(F), 2929.14(D)(3), or 2925.01, for punishment of the crime of POSSESSION OF HEROIN, Ohio Revised Code Section 2925.11(A), a felony of the first (1st) degree; for a definite term of Six (6) Years, which IS a mandatory term pursuant to O.R.C. 2929.13(F), 2929.14(D)(3), or 2925.01, for punishment of the crime of POSSESSION OF COCA/NE, Ohio Revised Code Section 2925.11(A), a felony of the first (1st) degree; and for a definite term of One (1) Year, which is not a mandatory term pursuant to O.R.C. 2929.13(F), 2929.14(D)(3), or 2925.01, for punishment of the crime of HAVING WEAPONS WHILE UNDER DISABILITY, Ohio Revised Code Section 2923.13(A)(3), a felony of the fifth (5th) degree, and that the said Defendant pay the costs of this prosecution for which execution is hereby awarded; said monies to be paid to the Summit County Clerk of Courts, County Safety Building, 53 University Avenue, Akron, Ohio 44308.

IT IS FURTHER ORDERED that the sentence imposed in each Count One (1), Seven (7), Eight (8), and Ten (10) be served CONCURRENTLY and not consecutively with each other.

IT IS FURTHER ORDERED that the sentence imposed in this case be served CONSECUTIVELY and not concurrently with the sentence imposed in case number 02 10 2883B.

IT IS FURTHER ORDERED, pursuant to the above sentence that the Defendant be conveyed to the Lorain Correctional Institution at Grafton, Ohio, to commence the prison intake procedure.

After release from prison, the Defendant is ordered subject to post-release control to the extent the parole board may determine as provided by law. Defendant is ORDERED to pay all prosecution costs, including any fees permitted pursuant to O.R.C. 2929. 18(A)(4).

IT IS FURTHER ORDERED that credit for time served is to be calculated by the Summit County Adult Probation Department and will be forthcoming in a subsequent journal entry.

IT IS FURTHER ORDERED that the Sony Digital Camera confiscated from the Defendant at the time of his arrest by the Akron Police Department, shall he forfeited to the Akron Police Department, forthwith.

IT IS FURTHER ORDERED that money seized by the Akron Police Department from the Defendant, exclusive of police buy money, and/or money returned, in the amount of Thirty Two Thousand Four Hundred Eleven Dollars ($32,411.00) is FORFEITED pursuant to Ohio Revised Code

Section 2933.42/2933.43. This seized money shalt be deposited with the Summit County Clerk of Courts, and subsequently dispersed as follows:

Twenty Two Thousand Six Hundred Eighty Seven Dollars and Seventy Cents ($22,687.70) made payable to the Akron Police Department, Law Enforcement Trust Fund, #152.

Nine Thousand Seven Hundred Twenty Three Dollars and Thirty Cents ($9,723.30) made payable to the Summit County Prosecutor's Office, Law Enforcement Trust Fund.

IT IS FURTHER ORDERED that the Defendant's driver's license shall be suspended for five (5) years.

THIS DAY, to wit: The 13th day of April 2010, according to the journal entry of the court, entered on November 25, 2003, defendant pled guilty to one count of illegal manufacture of drugs, a felony of the second (2nd) degree, one count of possession of heroin, a felony of the first (1st) degree, one count of psooession of cocaine, a felony of the first (1st) degree and one count of having weapons while under disability, a felony of the fifth (5th) degree. The Court sentenced defendant to serve six years and committed him to the Ohio Department of Rehabilitation and Corrections for that purpose, In addition, the court stated that defendant, after release from prison, would be "subject to post-release control to the extent the parole board may determine as provided by law." This was not an accurate statement of the terms of post release control. In fact, defendant was subject to a mandatory period of five years post release control under RC §2967.28. Where the sentence contains improper notification of post release control, the Supreme Court of Ohio has declared that the sentence must be considered void. State v. Simpkins 117 Ohio St.3d 420, 2008-Ohio-1197,

In the instant case, defendant is not subject to re-sentencing because he has completed serving the incarceration portion of his sentence. As a result, the determination that his sentence is void means that defendant cannot now be sentenced to a period of post release control. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-94. Pursuant to Bezak, this court hereby declares that defendant has fully completed his sentence and is not subject to post release control. To the extent the Adult Parole Authority has placed defendant on post release control, that placement is invalid and must be terminated forthwith,

IT IS SO ORDERED.