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Drummond v. Jenkins

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

April 23, 2018

JOHN DRUMMOND, Petitioner,
v.
CHARLOTTE JENKINS, Warden, Respondent.

          MEMORANDUM OF OPINION

          CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner John Drummond's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF #1). For the following reasons, the Court accepts and adopts the Magistrate Judge's Report and Recommendation and dismisses Petitioner's Petition.

         FACTS

         The following is a factual synopsis of Petitioner's claims. The Magistrate Judge's Report and Recommendation, adopted and incorporated, provides a more complete and detailed discussion of the facts.

         In its January 2013 session, the Ashtabula County Grand Jury issued an Indictment charging Petitioner with two counts of Aggravated Murder, one count of Kidnapping and one count of Felonious Assault. Each charge carried two Firearm Specifications. Petitioner entered a plea of not guilty. On April 4, 2013, Petitioner filed a Motion to Dismiss the Felonious Assault charge as barred by the statute of limitations. On May 1, 2013, the trial court granted the Motion as unopposed.

         On August 28, 2013, after a four day jury trial, Petitioner was found not guilty of Count One, Aggravated Murder, guilty of Count Two, Aggravated Murder and the attached Firearm Specifications and guilty of Count Three, Kidnapping and the attached Firearm Specifications. The trial court merged Counts Two and Three and the attached Specifications for sentencing. The court imposed a sentence of life with parole eligibility after twenty years and three years of incarceration for the Firearm Specification to be served consecutively with the sentence in Count Two.

         On September 23, 2013, Petitioner filed a Notice of Appeal to the Eleventh District Court of Appeals of Ohio. The state appellate court affirmed Petitioner's conviction and sentence on March 16, 2015. On May 4, 2015, Petitioner filed an untimely Notice of Appeal and Motion for Leave to File Delayed Appeal to the Supreme Court of Ohio. On June 5, 2015, the Court of Appeals issued a Judgment entry sua sponte striking the 21st page of its March 16, 2015, Opinion and substituting an attached 21st page. The record reflects no substantive change was made to the Opinion, only that the substituted 21st page merely removed a case citation.

         On June 23, 2015, Petitioner filed a Notice of Appeal from the June 5, 2015, Judgment Entry to the Ohio Supreme Court. On June 24, 2015, the Supreme Court of Ohio denied Petitioner's Motion for Leave to File a Delayed Appeal from the Court of Appeals original March 16, 2015, Opinion and dismissed the case. On December 16, 2015, pursuant to S.Ct. Prac. R. 7.08(B)(4), the Supreme Court of Ohio declined to accept jurisdiction of Petitioner's Appeal from the Judgment entry substituting the 21st page of the March 2015 Opinion.

         Petitioner placed the instant Petition in the prison mailing system on March 14, 2016, asserting four grounds for relief:

GROUND ONE: Did a sixteen year delay between the commission of the offense and the indictment being filed constitute a violation of appellant‘s right to due process protections when the delay resulted in the loss of substantial evidence and the justification for the delay by the state was merely that the defendant was not prejudiced?
GROUND TWO: If a defendant is convicted of the commission of a homicide during his participation in a kidnapping, if the evidence fails to establish beyond a reasonable doubt that the defendant was guilty of the underlying kidnapping, must the conviction of murder be dismissed?
GROUND THREE: Where the defendant has established substantial prejudice from the unexplained loss of essential evidence, must the trial court instruct the jury that it may make a negative inference from the fact that the evidence in question was mishandled?
GROUND FOUR: If a criminal case is brought sixteen years after the offense, considerable evidence is lost, witnesses have died, the testimony of the prosecution witnesses are inconsistent with each other and they all were provided with plea deals, was the conviction against the manifest weight of the evidence?

         On March 31, 2016, this case was referred to the Magistrate Judge for a Report and Recommendation. Petitioner filed a Motion to Stay and Motion to Hold Case in Abeyance, which was denied. The Court has reviewed Petitioner's Objections and found them to be unavailing. Petitioner filed an Amended Petition/Traverse. The Magistrate Judge denied Petitioner leave to amend. The Court has reviewed Petitioner's Opposition and found his arguments to be ...


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