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Lewis v. Bracy

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

January 18, 2018

ERIC LEWIS, Petitioner,
v.
WARDEN CHARMAINE BRACY, Respondent.

          Judge Donald C. Nugent

          REPORT AND RECOMMENDATION

          James R. Knepp II United States Magistrate Judge

         Introduction

         Pro se Petitioner Eric Lewis (“Petitioner”), a prisoner currently in state custody, filed a petition seeking a writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”) (Doc. 1). Respondent Warden Charmaine Bracy[1] (“Respondent”) filed a Motion to Dismiss. (Doc. 7). After Petitioner failed to respond, the undersigned issued a show cause order. (Doc. 8). Petitioner then requested, and the undersigned granted, a motion for extension of time to file a response. (Docs. 9, 10).[2]Although no such response was filed, in a January 4, 2018 objection to the undersigned's order denying Petitioner's motion for appointment of counsel, Petitioner presents some argument in opposition to the Motion to Dismiss. (Doc. 13). 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 April 18, 2017). For the reasons discussed below, the undersigned recommends the Motion to Dismiss (Doc. 7) be granted.

         Procedural Background

         State Conviction

         In November 2006, a Mahoning County Court of Common Pleas Grand Jury indicted Petitioner (with two co-defendants) on one count of aggravated murder in violation of Ohio Revised Code § 2903.01(A)(F), with a firearm specification in violation of § 2941.145(A). (Ex. 1, Doc. 7-1, at 4-5). Petitioner pleaded not guilty. (Ex. 2, Doc. 7-1, at 6). On October 19, 2007, a jury found Petitioner not guilty of aggravated murder, but guilty of complicity to commit aggravated murder, along with the firearm specification. (Ex. 3, Doc. 7-1, at 7). Petitioner, through counsel, subsequently filed a motion for acquittal, and motion for new trial. (Exs. 4-5, Doc. 7-1, at 8-11). The court overruled both motions. (Ex. 6, Doc. 7-1, at 12). On October 26, 2007, the trial court imposed a sentence of life imprisonment with parole eligibility after 30 years, and a consecutive sentence of three years for the firearm specification. (Ex. 7, Doc. 7-1, at 13-14).

         Direct Appeal

         Petitioner's trial counsel filed a notice of appeal on Plaintiff's behalf on November 5, 2007. (Ex. 8, Doc. 7-1, at 15-17). The trial court then appointed Attorney Douglas King to represent Petitioner on appeal. See Ex. 30, Doc. 7-1, at 93 (trial court docket entry dated November 5, 2007: “JE> A[ttorney] Douglas King is hereby appointed for the appeal process”) (capitalization altered). The docket sheet for the appellate court contains an entry on November 28, 2007 noting, inter alia, “Request for substitute counsel on appeal is sustained. A[ttorney] Jennifer McLaughin is appointed as counsel to assist D[efendant]-Appellant in his appeal.” (Ex. 31, Doc. 7-1, at 97) (capitalization altered).

         On June 9, 2008, Attorney McLaughlin filed a motion to withdraw, noting she had recently obtained a position in the Mahoning County Prosecutor's office and continuing to represent Petitioner would represent a conflict of interest. (Ex. 9, Doc. 7-1, at 18-19). The appellate court granted the motion to withdraw, and appointed Gary L. Van Brocklin as substitute counsel. (Ex. 10, Doc. 7-1, at 20).

         On December 10, 2008, Attorney Van Brocklin filed a motion to withdraw, stating he had reviewed the record and found “no arguable error”. (Ex. 11, Doc. 7-1, at 21). In an attached memorandum, he noted a potential trial court error regarding the accomplice jury instruction. Id.at 23. He noted the “only possible issue for appeal” related to the jury charge and that it “does not rise to a prejudicial error”, and cited Anders v. California, 386 U.S. 738 (1967)[3]. Id. at 24.[4]

         On December 23, 2008, the appellate court construed Attorney Van Brocklin's motion “as a no merit brief in accordance with State v. Toney (1970), 23 Ohio App.2d 203”. (Ex. 12, Doc. 7-1, at 25).[5] The appellate court gave Petitioner 30 days to file a pro se brief “raising any claims of error he chooses.” Id. On January 22, 2009, Petitioner filed a pro se “Motion for Appointment of Counsel and Transcript at State's Expense” and motion for a 60 day extension of time to file his brief. (Exs. 13-14, Doc. 7-1, at 26-27). On February 11, 2009, the appellate court overruled Petitioner's motions for counsel and transcripts, but granted him an additional 30 days to file his pro se brief. (Ex. 15, Doc. 7-1, at 28). The record reflects Petitioner never filed such a brief. See Ex. 31, Doc. 7-1, at 103 (appellate docket sheet). On September 22, 2009, the appellate court granted Attorney Van Brocklin's motion to withdraw, and affirmed the judgment of the trial court. (Ex. 16, Doc. 7-1, at 29-44); see also State v. Lewis, 2009 WL 3068771 (Ohio Ct. App.). In so doing, the appellate court addressed the jury charge issue raised by Attorney Van Brocklin. See Lewis, 2009 WL 3068771, at *4-7. Petitioner did not seek further discretionary review to the Ohio Supreme Court.

         Motion for Transcripts

         Over five years later, on July 9, 2015, Petitioner filed a pro se motion for transcripts. See Ex. 30, Doc. 7-1, at 95 (trial court docket sheet). The trial court denied that motion. (Ex. 17, Doc. 7-1, at 45). Petitioner filed a notice of appeal to contest the denial. (Ex. 18, Doc. 7-1, at 46-47). The State filed a motion to dismiss the appeal for lack of a final, appealable order. (Ex. 19, Doc. 7-1, at 48-51). The appellate court dismissed the appeal sua sponte because it did not appeal a “final order” as defined by Ohio law. (Ex. 20, Doc. 7-1, at 52).

         Application for Reopening

         On February 25, 2016, Petitioner filed a motion to reopen his direct appeal under Ohio Appellate Rule 26(B). (Ex. 21, Doc. 7-1, at 53-61). The State opposed (Ex. 22, Doc. 7-1, at 62-69), and Petitioner replied (Ex. 23, Doc. 7-1, at 70-71). On March 10, 2016, the state appellate court denied Plaintiff's motion to reopen as untimely filed, and, alternatively, on the merits. (Ex. 24, Doc. 7-1, at 72). Petitioner then filed a “Motion for Delayed Reconsideration Pursuant to App.R. 26(A)” (Ex. 25, Doc. 7-1, at 73-77), which the appellate court overruled on May 26, 2016 (Ex. 26, Doc. 7-1, at 78). Petitioner filed a Notice of Appeal to the Ohio Supreme Court (Ex. 27, Doc. 7-1, at 79), and a motion for leave to file a delayed appeal (Ex. 28, Doc. 7-1, at 81-84). In his motion for leave, Petitioner asserted his delay was due to an inadvertent failure to include the judgment entry from the appellate court decision. Id. at 82; see also Id. at 84 (“I neglected to include the Judgment Entry form the Seventh District Court.”). On September 14, 2016, the Ohio Supreme Court denied Petitioner's motion for delayed appeal and dismissed his case. (Ex. 29, Doc. 7-1, at 86).

         Federal Habeas Corpus

         Petitioner, pro se, executed the pending Petition on March 24, 2017, and it was filed on March 27, 2017. (Doc. 1).[6] In the Petition, he raises a single ground for relief:

GROUND ONE: Petitioner was denied his rights to Due Process under the Sixth and Fourteenth Amendments to the U.S. Constitution when the Ohio Seventh District Court of Appeals dismissed his App.R. 26(B) Application for reopening, which effectively denied his opportunity to receive a full and fair appeal of his conviction, as provided for by the Ohio Constitution.
Supporting facts: After being convicted of complicity to aggravated murder, Petitioner filed a timely Notice of Appeal through his trial counsel. Petitioner was appointed Attorney Douglas King as his appellate counsel on November 5, 2007. However, no appellate brief was ever filed by King. Instead, nearly two years later, King filed a motion to withdraw as Petitioner's counsel. The motion was granted on September 22, 2009 and on that same day the Seventh District Court of Appeals rendered a decision to affirm the trial court's judgment. Petitioner was never informed that King was filing a motion to withdraw as appellate counsel, nor that the motion was granted - nor of the appellate court's decision to affirm the trial court's judgment. Because he was not informed in a timely manner of the foregoing, he was not provided the opportunity at that time to file a pro se appellate brief. In late 2015 Petitioner requested from the clerk of courts copies of the appellate court's decisions above and for the first time finally received them. Petitioner subsequently filed an App.R. 26(B) Application for Reopening in February of 2016, asking the appellate court to reopen his appeal and to provide him the opportunity to file a pro se appellate brief. The application was denied by the appellate court.

(Doc. 1, at 4). Respondent moved to dismiss the Petition as untimely filed. (Doc. 7). Petitioner requested (Doc. 9), and was granted (Doc. 10) an extension of time to file a ...


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