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Littlepage v. Jenkins

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

December 20, 2017

CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.

          Michael R. Barrett District Judge



         This is a habeas corpus case, brought pro se by Petitioner Daniel Littlepage under 28 U.S.C. § 2254. The Petition was filed January 26, 2017 (ECF No. 9). The same day Magistrate Judge Stephanie Bowman ordered the State to file an answer (ECF No. 8). In response the Warden filed the State Court Record (“SCR”)(ECF No. 13) and a Return of Writ (ECF No. 14). On July 20, 2017, Petitioner filed his Reply (ECF No. 15).

         Petitioner also filed a Motion for a Complete Record to include all papers from his post-judgment mandamus action to compel discovery and to add Exhibits 16, 28, and 29 (ECF No. 16). The Magistrate Judge granted that Motion to the extent of ordering that state court decisions in the mandamus action be produced. Having examined those decisions and considered Petitioner's argument for including the entire file (ECF No. 23), the Magistrate Judge concludes no further filings from the mandamus action are needed to adjudicate this habeas corpus case.

         The appellate decisions filed by Respondent show that Mr. Littlepage never obtained any relief in his mandamus action. This is because, as the Ohio Supreme Court held, discovery is a pre-trial right only. State ex rel Littlepage v. Deters, 148 Ohio St.3d 507, ¶ 6 (2016). Brady v. Maryland, 373 U.S. 83 (1963) does not apply post-conviction. District Attorney for Third Judicial District v. Osborne, 557 U.S. 52, 68-69 (2009). There is no Brady violation by failure to disclose impeachment information before guilty plea. United States v. Ruiz, 536 U.S. 622, 633 (2002).

         Mr. Littlepage emphasizes that his attorney made a timely demand for discovery and motion for Brady material; copies with Littlepage's handwritten notes are attached to ECF No. 23. Ordinarily discovery in a criminal case would be made to defense counsel, not to the defendant himself, but Littlepage offers no proof from his attorney that he (Burke) did not received discovery. On the other hand, if Littlepage believed he needed discovery before pleading guilty, it was incumbent on him to say so. If there was a Brady violation prior to the plea, it, along with other pre-plea constitutional violations, was waived in the plea process.

         Littlepage also insists that Judge Nadel's handwritten entry denying a motion for delayed appeal (ECF No. 23-1, PageID 1204) is somehow a fraud on the Court does not state a claim for habeas relief. There is no fraud at all evident in that entry. The Court declines to expand the record further by ordering the addition of more material from the mandamus proceeding.

         Procedural History

         On July 26, 2013, the Hamilton County grand jury indicted Petitioner Littlepage on one count of murder and one count of aggravated murder, both with firearm specifications, arising out of the July 18, 2013, death of Petitioner's brother Larry Littlepage.

         After some pretrial litigation, Littlepage entered into a plea agreement whereby he would plead to the aggravated murder charge and one firearm specification with the remaining count and specification dismissed. The trial judge sentenced Petitioner to life imprisonment with parole eligibility at twenty years plus three consecutive years for the firearm specification.

         Littlepage was sentenced in mid-January 2014, and took no direct appeal within the thirty days allowed for that process. However, in October 2014 the First District Court of Appeals granted his motion for delayed direct appeal and appointed counsel. Counsel briefed one assignment of error claiming the guilty plea was not knowing, intelligent, and voluntary. The First District, however, affirmed the conviction. State v. Littlepage, No. C-140574 (1st Dist. Aug. 26, 2015)(unreported; copy at ECF No. 13, Page ID 550 et seq.), Littlepage appealed to the Ohio Supreme Court, but that court declined to exercise appellate jurisdiction. State v. Littlepage, 144 Ohio St.3d 1429 (2015), cert. denied sub. nom. Littlepage v. Ohio, Case No. 15-8649, 136 S.Ct. 22383, 195 L.Ed.2d 270 (2016)(copy at ECF No. 13, Page ID 609).

         In August 2014, Littlepage filed a petition for post-conviction relief under Ohio Revised Code § 2953.21, which the trial court denied (SCR, ECF No. 13, Page ID 457). That denial was affirmed on appeal. State v. Littlepage, No. C-140760 (1st Dist., Dec. 4, 2015)(unreported; copy at SCR, ECF No. 13-1, Page ID 879-81.) Petitioner did not timely appeal and the First District denied a motion to re-file the dismissal to allow an appeal (SCR, ECF No. 13-1, Page ID 882-96, Page ID 897).

         Littlepage filed an appeal from denial of his petition for post-conviction relief in December 2014. The First District considered the appeal on the merits, but affirmed dismissal of the petition. State v. Littlepage, No. 140760 (1st Dist. Dec. 4, 2015)(unreported; copy at ECF No. 13, Page ID 879 et seq.) Littlepage has also filed post-judgment motions for new trial and to withdraw guilty plea, for DNA testing, to correct his sentence, and for release of grand jury testimony, none of which have been successful.

         In November 2015, Littlepage filed an application to reopen the direct appeal under Ohio R. App. P. 26(B) to raise claims of ineffective assistance of appellate counsel. The First District denied the application. State v. Littlepage, No. C-140574 (unreported; copy at ECF No. 13, Page ID 648, et seq.). The Ohio Supreme Court declined jurisdiction over a subsequent appeal. State v. Littlepage, 145 Ohio St.3d 1461 (2016).

         Mr. Littlepage then filed his Petition for Writ of Habeas Corpus in this Court, pleading three grounds for relief:

GROUND 1: The Ohio State lower courts erred and abused their discretion by affirming the Judgment of the Trial Court; without a De Novo review, when the Record supports that Petitioner's guilty plea was not made knowingly, intelligently or voluntarily and, in fact, was logically inconsistent with the facts and not supported by the evidence; as Petitioner is innocent.
GROUND 2: It is error and an abuse of discretion for the Ohio State Courts; especially the Court of Appeals, to ignore the clear evidence of ineffective assistance of Appellate Counsel on a Direct Appeal; after granting Petitioner's Motion to remove the same Appellate Counsel; who filed an Ander's [sic] Brief in support of Post-conviction Relief as well as error and abuse of discretion to Deny his Application to Reopen Direct Appeal under App. R. 26(B); when the Petitioner established a genuine issue as to whether he has a colorable claim of ineffective assistance of appellate counsel. See State v. Murnahan, 63 Ohio St.3d 60 (1992). Further, the evidence presented did support that Petitioner was denied effective assistance; in that appellate counsel performed deficiently, by failing to raise arguments and assignments of error that had a reasonable probability of success had counsel presented those claims on appeal. See State v. Bradley, 42 Ohio St.3d 136 (1989).
GROUND 3: In light of the procedural errors and omissions, the Petitioner was denied due process and fair proceedings; but due to the ineffective assistance of both trial and appellate counsel, his claims were not argued or presented; leaving his only option, A Petition for State Writ of Habeas Corpus pursuant to O.R.C. Section 2725.03, to assert that he is being unlawfully restrained of his liberty by the State of Ohio. See In Re Lockhart, 157 Ohio St.192 (1952); which held that a State Habeas Action was the appropriate vehicle to secure relief from an illegal and void sentence. Here, the constitutional violations, deprivations of substantial rights, and cumulative errors present in his state court proceedings rise to the level of Plain or Reversible Error. See Crim.R. 52(B). These errors must now be reviewed by this Federal District Court to prevent a fundamental miscarriage of justice. Engle v. Isaac, 456 U.S. 107 (1982)

         (Petition, ECF No. 9, PageID 192, 198, 203.)


         Ground One: Invalid Guilty Plea

         Mr. Littlepage asserts his guilty plea was not knowing, intelligent, and voluntary and that his conviction is supported by insufficient facts in that he is actually innocent.

         Warden Jenkins defends this Ground for Relief on the merits and does not raise any procedural defense (Return of Writ, ECF No. 14, PageID 1119-26).

         Mr. Littlepage's Reply is not organized around his three Grounds for Relief but intersperses arguments about his plea with accusations of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, fraud on the court by the trial judge, failure to produce evidence under Brady v. Maryland, 373 U.S. 83 (1963), etc. Most confusing is a lack of clear chronology which would enable this Court to discern what Mr. Littlepage claims happened and when. This Report will attempt to organize the material in the Petition and Traverse around the claims actually made.

         Mr. Littlepage's First Ground for Relief asserts that his plea of guilty was not knowing, intelligent, and voluntary. A plea of guilty or no contest is valid if, but only if, it is entered voluntarily and intelligently, as determined by the totality of the circumstances. Brady v. UnitedStates,397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); King v. Dutton, 17 F.3d 151 (6th Cir. 1994); Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991); Berry v. Mintzes, 726 F.2d 1142, 1146 (6th Cir. 1984). The determination of whether this plea was intelligently made depends upon the ...

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