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Gilmore v. Clipper

United States District Court, N.D. Ohio, Eastern Division

January 18, 2018

EMMANUEL L. GILMORE, Petitioner,
v.
KIMBERLY CLIPPER, Respondent.

          Patricia A. Gaughan Chief Judge

          REPORT AND RECOMMENDATION

          JAMES R. KNEPP, II UNITED STATES MAGISTRATE JUDGE.

         Introduction

         Pro se Petitioner Emmanuel L. Gilmore (“Petitioner”), a prisoner in state custody, filed a petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”) on July 14, 2017. (Doc. 1). Contemporaneously, Petitioner filed a motion for summary judgment, and memorandum in support. (Docs. 2, 2-1). Respondent Warden Kimberly Clipper (“Respondent”) subsequently filed an Answer / Return of Writ (Doc. 8) and an opposition to the motion for summary judgment (Doc. 9); and Petitioner filed a Reply (Doc. 10). The district court has jurisdiction over the Petition under § 2254(a). This matter has been referred to the undersigned for a Report and Recommendation pursuant to Local Rule 72.2(b)(2). (Non-document entry dated July 21, 2017). For the reasons discussed below, the undersigned recommends the Court DENY both the Petition (Doc. 1), and the motion for summary judgment (Doc. 2).

         Procedural History

         State Court Conviction

         In August 2010, a Cuyahoga County, Ohio grand jury issued a sixteen-count indictment charging Petitioner with multiple counts of aggravated murder, kidnapping, and aggravated robbery. (Ex. 1, Doc. 8-1, at 3-19).

         Prior to trial, pursuant to a negotiated plea agreement, Petitioner, his counsel, the prosecutor, and the trial court judge all signed a “Recommended Sentence” document. (Ex. 2, Doc. 8-1, at 20). The form recommended Petitioner receive: (1) ten years' imprisonment for an amended involuntary manslaughter conviction, plus three years mandatory and consecutive for an attached firearm specification; and (2) seven years' imprisonment for one kidnapping conviction and seven years' imprisonment for one aggravated robbery conviction, to run concurrent to each other, but consecutive to the involuntary manslaughter and firearm specification sentences. Id. The resulting recommended sentence was an aggregate 20-year prison sentence. Id.

         Petitioner pled guilty in accordance with the negotiated plea agreement and the trial court convicted him of the amended involuntary manslaughter charge, kidnapping charge, and aggravated robbery charge. (Ex. 3, Doc. 8-1, at 21); see also Doc. 8-2 (transcript of plea and sentencing). The trial court nolled the remaining charges, and sentenced Petitioner in accordance with the sentencing recommendation. Id. Petitioner was sentenced September 12, 2011, and the sentencing entry was journalized on September 14, 2011. Id.

         Direct Appeal

         On August 19, 2016, Petitioner filed a pro se notice of appeal (Ex. 4, Doc. 8-1, at 23-29), and motion for leave to file a delayed appeal (Ex. 5, Doc. 8-1, at 30-36).[1] Petitioner listed three reasons for his failure to perfect a timely appeal:

1. The trial court failed to advise me that I had a right to appeal and a right to appointed appellate counsel.
2. My Trial counsel also failed to inform me that I had a constitutional right to appeal and a constitutional right to be appointed appellate counsel.
3. I was just brought aware of these rights on March 14, 2016 when informed by an inmate law clerk.

(Ex. 5, Doc. 8-1, at 33). Petitioner also filed a motion for appointment of counsel. (Ex. 6, Doc. 8-1, at 37-38). On September 7, 2016, the appellate court denied Petitioner leave to file a delayed appeal (Ex. 7, Doc. 8-1, at 44), and sua sponte dismissed his appeal (Ex. 8, Doc. 8-1, at 45).

         Petitioner filed a timely notice of appeal of this decision to the Ohio Supreme Court. (Ex. 9, Doc. 8-1, at 46-48). He raised a single proposition of ...


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