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Cleary v. Clipper

United States District Court, N.D. Ohio

March 2, 2018

ZACHARY JOHN CLEARY, Petitioner,
v.
WARDEN KIMBERLY CLIPPER, Respondent.

          JACK ZOUHARY, JUDGE.

          REPORT AND RECOMMENDATION

          KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE.

         Petitioner Zachary John Cleary (“Petitioner” or “Cleary”), acting pro se, filed this habeas corpus action pursuant to 28 U.S.C. § 2254. Doc. 1. Cleary challenges the constitutionality of his conviction and sentence in State of Ohio v. Zachary Cleary, Case No. 2013CR1438 (Stark County).

         This matter has been referred to the undersigned Magistrate Judge pursuant to Local Rule 72.2. On December 7, 2017, Respondent filed a Return of Writ. Doc. 9. Although provided an opportunity to do so (Doc. 7), Cleary has not filed a Traverse. For the reasons set forth below, the undersigned recommends that the Court DISMISS and/or DENY Cleary's Petition.

         I. Procedural Background

         A. State Conviction

         In October 2013, the Stark County Grand Jury indicted Cleary on one count of burglary in violation of R.C. §2911.12(A)(2). Doc. 9-1, pp. 3-4, 74. On November 27, 2013, Cleary withdrew his not guilty plea and entered a plea of guilty to burglary as charged in the indictment. Doc. 9-1, pp. 5-12, 75. Cleary signed a written plea, which included the following acknowledgement:

I understand my right to appeal a maximum prison term or if the sentence is contrary to law, and that any appeal must be filed within 30 days of my sentence.

Doc. 9-1, p. 12

         On December 23, 2013, [1] the trial court sentenced Cleary to 3 years community control subject to the supervision of the Court under certain terms and conditions, with a warning that if Cleary violated any of the conditions, he may be subject to a more restrictive sanction, a longer sanction, or a prison term of 8 years. Doc. 9-1, pp. 13, 14-18. Cleary did not appeal his conviction or sentence.

         On July 28, 2014, upon the request of Cleary's probation officer, who reported that Cleary's whereabouts were unknown, the trial court issued a warrant and tolled probation. Doc. 9-1, p. 21. Also, on July 28, 2014, Cleary's probation officer filed a motion to revoke probation or modify former order, setting forth Cleary's violations of the terms and conditions of his probation. Doc. 9-1, pp. 22-23. Over two years later on October 26, 2016, Cleary appeared with counsel and waived a probable cause and evidentiary hearing and stipulated to revocation of his community control. Doc. 9-1, p. 24, 25-28. The trial court found that Cleary had violated terms and conditions of his community control sanction; revoked Cleary's community control sanction; and imposed a prison term of 6 years. Doc. 9-1, pp. 25-28. The judgment entry was docketed on October 31, 2016. Doc. 9-1, p. 26. Cleary did not file a timely appeal.

         B. Delayed direct appeal

         On January 25, 2017, Cleary, acting pro se, filed a notice of appeal (Doc. 9-1, pp. 36-40, 76, 78) and a motion for leave to file delayed appeal with the Fifth District Court of Appeals (Doc. 9-1, pp. 29-35).[2] Cleary argued that leave to file a delayed appeal was warranted because he was not informed by the trial court or his trial counsel of his right to appeal or right to appellate counsel and was not made aware of those rights until December 14, 2016, when informed by an inmate law clerk. Doc. 9-1, p. 32, 34-35. The State of Ohio did not file a response to Cleary's motion for leave to file a delayed appeal. Doc. 9-1, p. 41. On March 8, 2017, the state court of appeals denied Cleary's motion for leave to file delayed appeal. Doc. 9-1, pp. 41-42.

         On March 27, 2017, Cleary, acting pro se, filed a notice of appeal and a memorandum in support of jurisdiction with the Supreme Court of Ohio from the court of appeals' March 8, 2017, denial of his motion for leave to file delayed appeal. Doc. 9-1, pp. 43-61. The State of Ohio filed a memorandum in response. Doc. 9-1, pp. 62-72. On July 5, 2017, ...


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