United States District Court, S.D. Ohio, Eastern Division
JOSEPH P. CHURCHILL, Petitioner,
WARDEN, SOUTHEASTERN CORRECTIONAL INSTITUTION Respondent.
Michael H. Watson, Judge.
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS, UNITED STATES MAGISTRATE JUDGE
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,
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
and Procedural History
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
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
State v. Churchill, No. 17 CAA 10 0068, 2018 WL
1391622, at *1 (Ohio Ct. App. March 19, 2018).
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.)
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
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 ...