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Whatley v. Warden, Ross Correctional Institution

United States District Court, S.D. Ohio, Eastern Division

March 31, 2017

JAMES L. WHATLEY, JR., Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

          EDMUND A. SARGUS, JR. CHIEF JUDGE

          REPORT AND RECOMMENDATION

          Terence P. Kemp United States Magistrate Judge

         Petitioner, James L. Whatley, Jr., a state prisoner, has filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. §2254. The case is before the Court by way of the petition (Doc. 6), Respondent's motion to dismiss (Doc. 8), the supplemental motion to dismiss (Doc. 11), and Petitioner's response and amended response (Docs. 12 and 13). For the following reasons, the Court recommends that the motion to dismiss be GRANTED as to grounds four through nine and DENIED as to grounds one through three, and, if this recommendation is adopted, that the Court direct Respondent to file a return of writ as to grounds one through three within 21 days and permit Petitioner to file a traverse within fourteen days thereafter.

         I. Procedural History

         Respondent argues in the motion to dismiss that almost all of Petitioner's grounds for relief are barred by the doctrine of procedural default. That means that the procedural history of this case must be recited in some detail. The key events in the procedural history of this case are these.

         On January 3, 2013, Petitioner was indicted by the Guernsey County, Ohio grand jury. The four-count indictment alleged that Petitioner committed aggravated murder, aggravated robbery, and aggravated burglary. Two murder victims, Christopher Morrison and Justin Nelson, were named in the indictment. The crimes were all allegedly committed on June 24, 2012 at 2 Coventry Drive, Apartment C, in Cambridge, Ohio. Each of the four counts of the indictment was accompanied by a firearm specification. Motion to Dismiss, Doc. 8, Ex. 1. As the state court of appeals opinion in this case states, all of the crimes allegedly took place in the course of a home invasion robbery in which Petitioner and several others were involved. See State v. Whatley, 2014 WL 1340050 (Guernsey Co. App. March 10, 2014).

         Petitioner pleaded not guilty. The case was tried to a jury from June 10 to June 14, 2013. The jury convicted Petitioner on all four counts and on all four specifications. On July 30, 2013, the trial court merged the aggravated robbery and aggravated burglary convictions into the two aggravated murder (or complicity to commit aggravated murder) convictions and sentenced Petitioner to life imprisonment without parole on one of those charges, and to twenty-five years to life in prison on the other. Those sentences were run concurrently but consecutively to a three-year sentence on the firearm specifications. Ex. 5.

         Petitioner appealed. His appellate brief raised only two issues: (1) that the trial court erred by not ordering production of the transcript of testimony given either to the grand jury or during a guilty plea colloquy by one of the other alleged perpetrators, and (2) the trial court erred by not removing a juror who coughed for a “significant” amount of time during the trial. Ex. 8. In the decision cited above, the court of appeals overruled these two assignments of error. Ex. 10.

         After that decision was filed, Petitioner both appealed to the Ohio Supreme Court and filed a motion to reopen his appeal pursuant to Ohio App. R. 26(B). His appeal was not timely and was dismissed for that reason. Ex. 12; State v. Whatley, 139 Ohio St.3d 1470 (July 9, 2014). His motion to reopen was granted, however, and new counsel was appointed for him.

         When new counsel filed a memorandum in connection with the reopened appeal, she raised four instances of ineffective assistance of appellate counsel. They were:

(1) Counsel was ineffective for not raising, on appeal, a sufficiency of the evidence claim on appeal as to the aggravated murder conviction involving Justin Nelson;
(2) Counsel was ineffective for not raising, on appeal, a sufficiency of the evidence claim on appeal as to the breaking and entering and theft charges;
(3) Counsel was ineffective for not raising, on appeal, the correctness of the jury instruction defining the term “knowingly”; and
(4) Counsel was ineffective for not raising, on appeal, a claim that the life without parole sentence violated the United ...

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