The opinion of the court was delivered by: Judge Sargus
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on the instant petition, respondent's return of writ, petitioner's opposition, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that claim one be DISMISSED but that an evidentiary hearing be held on claims three and four. It is also RECOMMENDED that consideration of the merits of claim two be deferred and that petitioner's January 9, 2006, petition for a writ of mandamus, in which he requests a ruling on the habeas corpus petition, Doc. No. 9, be DENIED, as moot.
Petitioner was indicted by the January 10, 2003, term of the Franklin County grand jury on five counts of felonious assault, in violation of O.R.C. 2903.11, with specifications. Exhibit A to Return of Writ. While represented by counsel, petitioner proceeded to jury trial. On April 1, 2004, petitioner was found guilty of four counts of felonious assault, with specifications. On May 20, 2004, he was sentenced to an aggregate term of eleven years incarceration. Exhibit B to Return of Writ. Petitioner never filed a timely appeal. On May 20, 2004, still represented by counsel, petitioner filed a motion for a mistrial in which he alleged that one of the jurors had offered to return a verdict of "not guilty" in exchange for money. Exhibit C to Return of Writ. On August 24, 2004, the trial court denied petitioner's motion. Exhibit F to Return of Writ. Petitioner never filed an appeal from that decision. On November 3, 2004, petitioner filed a pro se petition for post conviction relief with the state trial court. He asserted the following claims:
1. Trial court is in violation of the Constitution which demands fair trial.
2. Petitioner suffers from prosecutor misconduct and ineffective assistance of [counsel] and miscarriage of justice.
Exhibit G to Return of Writ. Petitioner's post conviction petition apparently remains pending in the state trial court.*fn1 On March 1, 2006, petitioner filed a motion "to appeal consecutive and non-minimum sentences" with the state trial court, in which he also claimed that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004). Exhibit N to Return of Writ. That action also is apparently still pending in the state trial court. On October 5, 2005, petitioner filed a motion for delayed appeal pursuant to Ohio Appellate Rule 5(A). Exhibit I to Return of Writ. On December 6, 2005, the state appellate court denied petitioner's motion for delayed appeal as follows:
In his affidavit, appellant states: "My trial attorney failed to file my appeal after my 'jury trial' so I filed a habeas corpus and the magistrate in [an] entry told me to file a delayed appeal so [as] to exhaust my remed[ies]." In response, appellee presented a copy of appellant's post-conviction petition, which he filed in the trial court in November 2004. In that petition, appellant states that he did not appeal the April 1, 2004 conviction. Thus, appellant has known for at least a full year that no appeal was filed. As the Supreme Court of Ohio has noted, "[l]ack of effort or imagination, and ignorance of the law * * * do not automatically establish good cause for failure to seek timely relief." State v. Reddick (1995), 72 Ohio St.3d 88, 91, 647 N.E.2d 784 (affirming denial of application to re-open appeal). Appellant filed the instant motion 17 months after the trial court's entry and at least 11 months after becoming aware that no appeal had been filed. However, during that same time period, he apparently had sufficient legal knowledge to file a pro se post-conviction petition in the trial court and a pro se habeas corpus action in federal court. Appellant offers no explanation to justify his delay in attempting to file an appeal in this court. The substantial lag in filing his motion for leave to file a delayed appeal, without justifiable explanation, is unreasonable.
State v. Morris, 2005 WL 3304952 (Ohio App. 10 Dist. December 6, 2005), Exhibit K to Return of Writ. Petitioner filed a timely appeal with the Ohio Supreme Court. He raised the following proposition of law:
I have been constitutionally deprived a fair jury trial, an appeal of right, a ruling on a post conviction [petition] which was timely filed, and multiply sentenced [sic].
Exhibit L to Return of Writ. On April 12, 2006, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. Exhibit M to Return of Writ. On March 1, 2006, petitioner again filed a motion for delayed appeal in the state appellate court. On May 11, 2006, the appellate court denied his motion as barred under the doctrine of res judicata. Exhibit P to Return of Writ.
On May 2, 2006, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254.*fn2 He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:
1. State has/is Depriving my Right to Access the Courts and Redress my Injury
A timely post conviction [petition] was filed on November 3, 2004, and pursuant to rule, the response/decision must be within 180 days. However, it [has] been almost 2 years and the courts refuse to respond even after numerous motions for State's [sic] and a writ of mandamus to compel a decision, which deprives my constitution rights and provision protection [sic].
2. State had Deprived me my Right to an Impartial Jury and Fair Trial
Prosecution and trial court failed and ignored to submit [sic] the evidence that one of the jurors offered a bribe for a hung jury, and after the evidence was obtained to prove such, trial court ignored a motion for mistrial which enclosed the ...