United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION
CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
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.
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
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?
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 ...