United States District Court, N.D. Ohio, Eastern Division
EMMANUEL L. GILMORE, Petitioner,
KIMBERLY CLIPPER, Respondent.
Patricia A. Gaughan Chief Judge
REPORT AND RECOMMENDATION
R. KNEPP, II UNITED STATES MAGISTRATE JUDGE.
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).
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).
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
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.
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). 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
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 ...