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Heid v. Warden, Ross Correctional Institution

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

May 22, 2017

RAY SCOTT HEID, Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

          Black, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge.

         Petitioner, 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. 13).[1]

         I. PROCEDURAL HISTORY

         A. State Court Proceedings

         1. Trial Proceedings: May-June 3, 2008

         On May 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. (Id.).

         On May 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).[2] 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#: 734).

         2. February 1, 2010 Motion To Withdraw Guilty Plea

         On 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).

         3. Motions for Transcripts/Records

         Three 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).

         Approximately 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. 14).

         On July 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).

         On 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).

         4. November 17, 2014 Motion for Delayed Appeal (Case No. 14CA3670)

         On 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 filing:

[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 appeal[]able 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).

         On 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).[3]

         Petitioner 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).

         5. November 17, 2014 Motion To Withdraw Guilty Plea

         On 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) (Dlott, J.).[4]

         6. March 13, 2015 Petition for Post-Conviction Relief

         On 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).

         On 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 ...

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