United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
an inmate in state custody at the Ross Correctional
Institution in Chillicothe, Ohio, has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (Doc. 1). In the petition, petitioner challenges
his conviction and sentence in Scioto County, Ohio, Court of
Common Pleas Case No. 08-CR-467. (Id.). This matter
is before the Court on respondent's motion to dismiss
(Doc. 9), which petitioner opposes. (See Doc.
State Court Proceedings
Trial Proceedings: May-June 3, 2008
5, 2008, the Scioto County grand jury returned a five-count
indictment in Case No. 08-CR-467, charging petitioner with
aggravated murder in violation of Ohio Rev. Code §
2903.01(A) (Count 1); aggravated burglary in violation of
Ohio Rev. Code § 2911.11(A)(1) (Count 2); aggravated
robbery in violation of Ohio Rev. Code § 2911.01(A)(1)
(Count 3); tampering with evidence in violation of Ohio Rev.
Code § 2921.12(A)(1) (Count 4); and theft of a motor
vehicle in violation of Ohio Rev. Code § 2913.02(A)(1)
(Count 5). (Doc. 8, Ex. 1). A firearm specification was
attached to the charges set forth in Counts 1 through 3.
30, 2008, petitioner entered a guilty plea to a reduced
charge in Count 1 of murder in violation of Ohio Rev Code
§ 2903.02(A) with firearm specification. (See
id., Ex. 2). On the same date, the trial court sentenced
petitioner to an agreed-to aggregate prison term of 18 years
to life, which consisted of consecutive terms of imprisonment
of 15 years to life for the murder offense and 3 years for
the firearm specification. (Id., Exs. 4, 52 &
Trial Tr. 1, at PAGEID#: 721). In addition, the trial court
ordered that the sentence run consecutively to a five-year
prison term imposed in another prior case-Scioto County
Common Pleas Court Case No. 04-CR-853. (See Id.
& Trial Tr. 9, at PAGEID#: 729). It appears from the docket
record for Case No. 08-CR-467 that petitioner's guilty
plea and sentence were entered on the record on June 3, 2008.
(See id., Ex. 52). Respondent states that petitioner
did not pursue a timely appeal to the Ohio Court of Appeals
from the final judgment entry. (Doc. 9, p. 3, at PAGEID#:
February 1, 2010 Motion To Withdraw Guilty Plea
February 1, 2010, well over a year and half after the final
judgment entry was issued in Case No. 08-CR-467, petitioner
filed a pro se motion to withdraw his guilty plea
with the trial court. (Doc. 8, Ex. 5). Petitioner claimed in
that motion that his trial counsel was ineffective and
“misled” petitioner to enter a guilty plea to a
charge that was “more severe” than it
“should have been” because the offense “was
a crime of passion . . . committed in the heat of an
emotionally charged moment, with no opportunity to reflect on
what [was] happening, and was done in the heat of
passion.” (Id., at PAGEID#: 54). On April 16,
2010, the trial court denied the motion without opinion.
(Id., Ex. 6). Petitioner next filed a motion
requesting that the trial court issue findings of fact and
conclusions of law in support of its ruling denying his
motion to withdraw guilty plea. (Id., Ex. 7). On
July 22, 2010, the trial court denied the motion on the
ground that “findings of fact and conclusions of law
are not required in the defendant's motion to withdraw a
plea.” (Id., Ex. 8). Respondent states that
petitioner did not pursue an appeal in that matter. (Doc. 9,
p. 3, at PAGEID#: 734).
Motions for Transcripts/Records
months later, on October 21, 2010, petitioner filed a pro
se motion requesting “all Court Transcripts”
in Case No. 08-CR-467. (Doc. 8, Ex. 9). On February 18, 2011,
the trial court denied the motion and informed petitioner
that he could “request transcripts of his proceedings
at his own expense and should notify the court reporter
should he still desire to receive a transcript.”
(Id., Ex. 10).
eighteen months later, petitioner submitted another request
for transcripts as an “indigent defendant”
together with a financial affidavit dated July 10, 2013.
(Id., Ex. 11). In addition, petitioner filed motions
on August 21, 2013 and May 13, 2014 requesting that records
be provided to him free of charge. (See id., Exs.
12-13). On June 23, 2014, the trial court denied those
motions as “not well taken.” (Id., Ex.
22, 2014, petitioner filed another pro se motion
“for court records without costs, ” arguing that
the information was needed for purposes of pursuing a delayed
appeal to the Ohio Court of Appeals and state post-conviction
relief. (Id., Ex. 15). The trial court denied that
motion on August 20, 2014. (Id., Ex. 16).
August 28, 2014, petitioner filed yet another pro se
motion requesting “court records without costs.”
(Id., Ex. 17). In that motion, petitioner reiterated
that the information was needed to prepare a delayed appeal
to the Ohio Court of Appeals and further contended in a reply
memorandum that the requested documents were “all
public record” and were required to be provided
pursuant to the Freedom of Information Act (FOIA) and Ohio
Rev. Code § 149.43. (See Id. & Ex. 18). On
October 6, 2014, the trial court summarily denied the motion.
(Id., Ex. 19). Petitioner appealed that ruling to
the Ohio Court of Appeals, Fourth Appellate District, arguing
that the trial court abused its discretion and violated
petitioner's constitutional rights to due process and
equal protection by refusing to grant him access to the court
records. (See id., Exs. 20-21). On April 15, 2015,
the Ohio Court of Appeals issued a decision rejecting
petitioner's claim of error and affirming the trial
court's judgment. See State v. Heid, Nos.
14CA3668, 14CA3669, 2015 WL 1774336 (Ohio Ct. App. Apr. 15,
2015). Respondent states that petitioner did not pursue a
further appeal to the Ohio Supreme Court in that matter.
(Doc. 9, p. 5, at PAGEID#: 736).
November 17, 2014 Motion for Delayed Appeal (Case No.
November 17, 2014, petitioner filed a pro se notice
of appeal and motion for leave to file a delayed appeal to
the Ohio Court of Appeals, Fourth Appellate District, from
the judgment of conviction and sentence entered over six
years earlier, on June 3, 2008. (Doc. 8, Exs. 24-25).
Petitioner provided the following reasons for his delay in
[T]he reasons for the delay are not because of
[petitioner's] own carelessness, inattention, or willful
disregard of the Court's process, but that the hindrance
is due in part to the care and vigilance of counsel. . . .
While being sentenced, Appellant specifically asked counsel
if I could appeal so another Court would give me a chance to
be heard . . . to which counsel replied that I had no right
to appeal. . . .
Upon arrival at ODRC on June 8, 2008 AD, the reception prison
to which I was placed operated on a procedure that keeps
inmates locked down for twenty-three hours of the day.
Therefore, while there for about six months, I had no access
to the legal library known to me. Furthermore, the legal
clerks there would only speak with inmates who had taken
their cases to trial. . . . Upon arrival at my parent
institution, Ross Correctional Institution
(“RCI”), I asked inmate legal clerks about a
right to appeal, and was re-informed that a guilty plea
waives a right to appeal. While trying to learn the steps to
take in order to obtain an appealable order, I was in and
out of the ‘hole.' Being in the ‘hole'
was an impairment to learning the legal steps to take, which
also created a longer delay to what procedures to take. While
not in the ‘hole, ' the library schedule produces
its own burdens, as the line can be difficult to get on and
those ahead of you can use up all their pass time without
having to return to the block until the library is closed.
Some days the library would just be cancelled. As we only
have library eight times a month this is an impediment.
(Id., Ex. 25, at PAGEID#: 159-60). Petitioner also
contended that the delay was due in part to (1) his lack of
training in the law “with very little legal assistance
to guide [him] through the process”; and (2) his focus
on obtaining relief in Case No. 04-CR-853, which caused him
“to push this litigation back as [he did] not have the
financial abilities to attempt to adjudicate both cases at
the same time.” (Id., at PAGEID#: 164).
Petitioner further asserted that he had a colorable claim to
raise on appeal because his trial counsel was ineffective and
coerced him to plead guilty to murder although he “did
not intentionally or purposely cause the death of [his]
uncle.” (See id., at PAGEID#: 167-68).
December 16, 2014, the Ohio Court of Appeals denied
petitioner's motion for leave to file a delayed appeal on
the ground that petitioner had “not presented an
adequate explanation to justify granting him leave to file a
delayed appeal over six years after his conviction and
sentencing.” (Id., Ex. 26).
timely appealed that decision to the Ohio Supreme Court.
(See id., Ex. 31). In his memorandum in support of
jurisdiction, petitioner asserted as propositions of law that
(1) he was denied a speedy trial and the effective assistance
of counsel when his attorney “misadvised [him] of the
affirmative defense of Voluntary Manslaughter” and
coerced him to enter the guilty plea; and (2) he was deprived
of his rights under the First, Fifth and Fourteenth
Amendments because he was not treated fairly or equally when
the “trial court deviated from the legal rule of
Sup.R.20” and provided him with counsel who was
ineffective. (See id., Ex. 32). On May 20, 2015, the
Ohio Supreme Court declined to accept jurisdiction of the
appeal. (Id., Ex. 33).
November 17, 2014 Motion To Withdraw Guilty Plea
November 17, 2014, the same date petitioner filed his motion
for delayed appeal to the Ohio Court of Appeals, petitioner
filed a second pro se motion to withdraw his guilty
plea with the trial court. (Doc. 8, Ex. 34). Petitioner later
filed an amendment to the motion and supporting memoranda.
(See id., Exs. 35, 37, 38). It appears from
petitioner's pleadings that he was essentially asserting
the same ineffective-assistance-of-counsel claim that he had
raised in his prior motion to withdraw his plea and motion
for delayed appeal to the Ohio Court of Appeals. (See
id.). Respondent states that the “trial court did
not rule on [this] motion.” (Doc. 9, p. 7, at PAGEID#:
738). Both parties have averred that the trial court lacked
jurisdiction to rule on the motion due to petitioner'
pending appeals in the Ohio Court of Appeals. (Id.;
see also Doc. 13, at PAGEID#: 767-68).
“[U]nder Ohio law, when the trial court fails to rule
on a motion, it must be presumed that the motion was
denied.” Edwards v. Warden, Ross Corr. Inst.,
No. 1:08cv850, 2009 WL 6600255, at *5 (S.D. Ohio Dec. 17,
2009) (Hogan, M.J.) (Report & Recommendation) (citing
State v. Olah, 767 N.E.2d 755, 760 n.2 (Ohio Ct.
App. 2001)), adopted, 2010 WL 2519659 (S.D. Ohio
June 17, 2010) (Spiegel, J.); see also Peterson v.
Warden, Pickaway Corr. Inst., No. 1:14cv604, 2015 WL
3970171, at *2 (S.D. Ohio June 30, 2015) (Bowman, M.J.)
(Report & Recommendation) (and cases cited therein),
adopted, 2015 WL 3970266 (S.D. Ohio June 30, 2015)
March 13, 2015 Petition for Post-Conviction Relief
March 13, 2015, petitioner filed a pro se petition
for post-conviction relief pursuant to Ohio Rev. Code §
2953.21 with the trial court based on the same allegations of
ineffective assistance by trial counsel in inducing his
guilty plea. (Doc. 8, Ex. 40). In subsequent pleadings,
petitioner also contended, as he had in the delayed appeal
proceedings, that he was deprived of “adequate
representation” at trial because of the court's
failure to abide by “Sup.R.20, ” which was
enacted by the Ohio General Assembly “to govern
Ohio's Courts in capital cases.” (Id., Ex.
41, at PAGEID#: 582). As supporting evidence, petitioner
submitted his own affidavit and a letter dated September 12,
2014 from “Thomas Starr” regarding conversations
that Starr had with petitioner's trial counsel and the
prosecutor during the plea negotiations. (See id.,
Ex. 40, at PAGEID#: 567 72). Petitioner also submitted
additional exhibits, including Detective Denver Triggs'
“Investigator Notes” dated December 23, 2007,
detailing what was said during petitioner's videotaped
interview at the police station a few days after the incident
giving rise to the criminal charges took place, as well as
the evidence uncovered during the course of the investigation
that matched petitioner's account of the events that had
occurred. (See id., Ex. 42, at PAGEID#: 641).
August 27, 2015, the trial court denied petitioner's
petition for post-conviction relief, reasoning in relevant
part as follows:
The Court finds the Defendant has not presented sufficient
justification for filing his motion outside the time
permitted by law. The information in his statement to law
enforcement was available to Defendant so that he could file
his petition timely after his conviction.
Defendant's claim also lacks merit. Defendant mistakenly
called manslaughter an affirmative defense. Manslaughter does
not appear to be “an available course of action”
based upon Defendant's statements to the officer. The
actions of his counsel ...