United States District Court, S.D. Ohio, Western Division
Michael R. Barrett District Judge
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.
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).
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
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).
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.
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
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
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
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).
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).
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
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).
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)
ECF No. 9, PageID 192, 198, 203.)
One: Invalid Guilty Plea
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
Jenkins defends this Ground for Relief on the merits and does
not raise any procedural defense (Return of Writ, ECF No. 14,
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.
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