Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Churchill v. Warden, Southeastern Correctional Institution

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

June 24, 2019

JOSEPH P. CHURCHILL, Petitioner,
v.
WARDEN, SOUTHEASTERN CORRECTIONAL INSTITUTION Respondent.

          Michael H. Watson, Judge.

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner, seeks a writ of habeas corpus under 28 U.S.C. § 2254. This matter is before the Court on the Amended Petition (ECF No. 10), Respondent's Amended Return of Writ (ECF No. 26), Petitioner's Traverse (ECF Nos. 17, 29)[1], and the exhibits filed by the parties. For the following reasons, the Magistrate Judge recommends that the Amended Petition be DENIED and that this action be DISMISSED.

         Facts and Procedural History

         The state appellate court summarized a number of the relevant facts as follows:

On August 7, 2014, the Delaware County Grand Jury returned an indictment against the Appellant for two counts of Breaking and Entering pursuant to R.C. 2911.13(A), two counts of possessing criminal tools pursuant to R.C. 2923.24(A), two counts of theft pursuant to R.C. 2913.02(A)(1), and one count of failure to comply pursuant to R.C. 2921.331(B). A warrant was issued for appellant's arrest on the same date. Appellant was incarcerated in the Franklin County Jail on another matter on the date the indictment was filed. He was transferred to Orient Correction Center on June 10, 2015. The record does not contain any evidence reflecting that the appellant was arrested pursuant to the indictment.
On June 11, 2015, appellant was notified by corrections center personnel that a warrant had been issued for his arrest for the Delaware County charges and, on June 22, 2015, appellant entered a not guilty plea to all counts. On August 27, 2015, the appellant amended his plea to guilty to two counts of Breaking and Entering pursuant to R.C. 2911.13(A), felonies of the fifth degree, and one count of Failure to Comply pursuant to R.C. 2921.331(B), a felony of the fourth degree. The remaining charges were dismissed as part of a plea agreement.
Appellant appeared for sentencing on September 26, 2015 and was sentenced to a total of 3 years prison imprisonment, one year for each count. The court ordered the sentences to run consecutive to each other and consecutive to the sentence appellant was serving in an unrelated matter.
Appellant filed a notice of appeal and a request for appointment of counsel. Counsel was appointed and appellant argued error in sentencing regarding the description of post release control.

State v. Churchill, No. 17 CAA 10 0068, 2018 WL 1391622, at *1 (Ohio Ct. App. March 19, 2018).

         While that direct appeal was pending, Petitioner moved pro se for leave to file a supplemental appellate brief and to dismiss his appointed appellate counsel for failing to raise a speedy trial claim in his direct appeal. (ECF No. 11, at PAGEID ## 92-94.) The state appellate court denied both of those motions because Petitioner was represented by counsel, and thus, he was prohibited from filing his own briefs. (Id., at PAGEID ## 98-99.) The state appellate court noted, however, that Petitioner could file a motion to reopen his direct appeal pursuant to Ohio Rule of Appellate Procedure 26(B). (Id.)

         The state appellate court ultimately sustained the post-release related errors raised by Petitioner's appointed appellate counsel. (ECF No. 11, at PAGEID ## 100-105.) The state appellate court described the procedural history that next occurred:

This court remanded the case to the trial court for re-sentencing consistent with proper imposition of post-release control but affirmed the balance of the trial court's ruling. State v. Churchill, 5th Dist., Delaware App. No. 15CAA10084, 2017-Ohio-581. A re-sentencing hearing was conducted on March 28, 2017, the sentence was re-imposed with the corrected post-release control language and all other terms remained the same. No. appeal was taken from the re-sentencing.
In State vs. Churchill, Delaware App No. 15CAA100084 appellant filed an application for reopening his appeal pursuant to App.R. 26 (B). Within that filing appellant argued his appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel and that his trial counsel was ineffective for failing to request dismissal of the indictment on speedy trial grounds. Appellant contended his arrest on the charges in the indictment occurred 315 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.