Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kelley v. Warden, Chillicothe Correctional Institution

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

April 7, 2017

DEANDRE KELLY, Petitioner,
v.
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

          DLOTT, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz, United States Magistrate Judge

         Petitioner, an inmate in state custody at the Chillicothe Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on respondent's return of writ and petitioner's reply. (Doc. 6, 9).

         I. PROCEDURAL BACKGROUND

         State Trial Proceeding

         On January 16, 2014, the Hamilton County, Ohio, grand jury returned a four-count indictment charging petitioner with one count each of involuntary manslaughter, reckless homicide, endangering children, and having weapons while under disability. (Doc. 5, Ex. 1). After initially entering a not-guilty plea, petitioner entered a guilty plea to one count of reckless homicide with an accompanying firearm specification and an agreed upon prison sentence of six years in the Ohio Department of Corrections. (Doc. 5, Ex. 3). On April 8, 2014, the trial court accepted petitioner's guilty plea and imposed the agreed upon sentence. (Doc. 5, Ex. 4).

         Direct Appeal

         On July 9, 2014, petitioner, through new counsel, filed a motion for a delayed appeal to the Ohio Court of Appeals, which was granted. (Doc. 5, Ex. 5, 6). Petitioner raised the following single assignment of error in his merit brief:

ASSIGNMENT OF ERROR
The trial court erred when it violated the Defendant's Sixth Amendment right to counsel by denying his motion to remove his attorneys.
Issue Presented for Review and Argument Whether the trial court erred by denying the Defendant's motion to remove his attorneys.

(Doc. 5, Ex. 7). On April 24, 2015, the Ohio appeals court overruled the assignment of error and affirmed the judgment of the trial court. (Doc. 5, Ex. 9).

         Ohio Supreme Court

         On November 30, 2015, petitioner filed a pro se delayed notice of appeal and a motion for a delayed appeal to the Ohio Supreme Court. (Doc. 5, Ex. 10, 11). As cause for the late filing, petitioner claimed that he previously tried to file his case on July 7, 2015, but that his appeal was returned to him because he failed to attach a certified copy of the court of appeals decision. (See Doc. 6, Ex. 11 at PagelD 101). Petitioner claimed that he did not receive a certified copy of the decision until November 18, 2015. (Id.).

         On January 20, 2016, the Ohio Supreme Court denied petitioner's motion and dismissed the appeal. (Doc. 5, Ex. 12).

         Application to Reopen Appeal Pursuant to Ohio App. R. 26(B)

         Meanwhile, on July 20, 2015, petitioner filed an application to reopen his appeal pursuant to Ohio App. R. 26(B). (Doc. 5, Ex. 13). Petitioner claimed that his appellate counsel was ineffective for failure to raise the following assignment of error on direct appeal:

Appellant submits that he was denied effective assistance of appellate counsel in violation of his Sixth Amendment rights under the United States Constitution where counsel failed to raise the issue that appellant as a first time offender ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.