United States District Court, N.D. Ohio, Eastern Division
Donald C. Nugent
REPORT AND RECOMMENDATION
R. Knepp II United States Magistrate Judge
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 (“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).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
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,
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).
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).
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). Id. at 24.
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). 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.
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
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).
pro se, executed the pending Petition on March 24,
2017, and it was filed on March 27, 2017. (Doc.
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
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
(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