United States District Court, N.D. Ohio
REPORT AND RECOMMENDATION
KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE.
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).
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.
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
December 23, 2013,  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.
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.
Delayed direct appeal
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). 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.
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,