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Curry v. Warden, Chillicothe Correctional Institution

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

July 8, 2019

PATRICK M. CURRY, Petitioner,
v.
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION Respondent.

          Judge Michael H. Watson

          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 Petition (ECF No. 1), Respondent's Answer (ECF No. 7), Petitioner's Reply (ECF No. 8), and the exhibits filed by the parties. For the following reasons, the Magistrate Judge recommends that the Petition be DENIED and that this action be DISMISSED.

         I. Facts and Procedural History

         A. The State Court Conviction

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

[Petitioner] followed an adult female victim shopping in a Wal-Mart in Muskingum County, Ohio, throughout the store. The victim briefly returned to her car to put packages inside and returned to the store.
. . . [Petitioner] was videotaped attempting to enter the victim's car while wearing a pair of black gloves.
. . . [Petitioner] then followed the victim back into the store, grabbed the victim, and sexually assaulted her. The victim called her husband and police. A witness provided police with a description of the man observed following the victim throughout the store. A second witness identified [Petitioner] as the assailant because the witness knew him.
. . . Police went to [Petitioner's] house and found him wearing the same clothing as the described Wal-Mart assailant. Black gloves were found in [Petitioner's] car. [Petitioner] first denied committing the assault and claimed he came straight home from work. During an interview and on subsequent jail phone calls, however, [Petitioner] admitted committing the assault, said police “should lock him up and throw away the key, ” and admitted faking “amnesia.”
. . . At the plea hearing, [the prosecution] also described [Petitioner's] violent sexual history including past convictions for aggravated assault, multiple counts of burglary, and kidnapping, all with sexual motivations.
. . . [Petitioner] was charged by indictment with one count of forcible rape pursuant to R.C. 2907.02(A)(2), a felony of the first degree [Count I]; one count of gross sexual imposition pursuant to R .C. 2907.05(A)(1), a felony of the fourth degree [Count II]; and one count of attempted kidnapping pursuant to R.C. 2905.01(A)(4) and 2923.02(A), a felony of the second degree [Count III]. Count I included a sexually-violent predator specification and a repeat violent offender specification. Count III included those specifications and also a sexual-motivation specification.

State v. Curry, No. CT2015-0005, 2016 WL 529239, at * 1 (Ohio Ct. App. Jan. 29, 2016).

         Petitioner pleaded not guilty to the charges and moved for a change of venue. (ECF No. 7-1, at PAGE ID ## 95-96, 97-101.) The prosecution orally opposed the motion for a change of venue and the state trial court determined that it would hold the motion in abeyance until after efforts were made to select a jury. (Id., at PAGE ID # 102.)

         The state appellate court described the procedural history that next occurred.

On October 27, 2014, [Petitioner] withdrew his previously-entered pleas of not guilty and entered a negotiated plea to Count I, forcible rape. In exchange for [Petitioner's] guilty plea, [the prosecution] dismissed the specifications to Count I along with Counts II and III in their entirety. The trial court imposed the jointly-recommended prison sentence of 10 years.

State v. Curry, 2016 WL 529239, at * 1. The state trial court sentenced Petitioner on November 3, 2014. (ECF No. 7-1, at PAGE ID # 280.) Petitioner did not appeal that judgment to the state appellate court before the 30-day deadline to do so expired.

         B. Motion to Withdraw Guilty Plea

         On December 17, 2014, Petitioner filed a pro se motion seeking to withdraw his guilty plea. (Id., at PAGE ID ## 131-36.) On February 13, 2015, the state trial court denied that motion. (Id., at PAGE ID # 141.) Petitioner did not appeal that judgment.

         C. Petition for Post-conviction Relief

         Petitioner subsequently filed a pro se petition for post-conviction relief under Ohio Revised Code § 2953.21, alleging that he received ineffective assistance of trial counsel. (ECF No. 10-1, at PAGE ID ## 350-57.) The state trial court denied the motion, but Petitioner did not appeal that determination. (ECF No. 7-1, at PAGE ID # 164.)

         D. Delayed Direct Appeal and Rule 26(B) Application

         On February 11, 2015, Petitioner successfully moved for leave to file a delayed direct appeal of his November 3, 2014, conviction and sentence. (Id., at PAGE ID ## 171-76, 195.) In that appeal, Petitioner's appointed appellate counsel alleged that “the state trial court erred in accepting [Petitioner's] plea of guilty as it was not made voluntarily.” State v. Curry, 2016 WL 529239, at * 1. On January 29, 2016, the state appellate court overruled that assignment of error and affirmed the decision of the state trial court. Id. at *3. Petitioner did not appeal that judgment to the Ohio Supreme Court before the 45-day deadline to do so expired.

         On April 15, 2016, Petitioner filed a pro se application to re-open his direct appeal pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure, alleging that he had received ineffective assistance of appellate counsel. (ECF No. 7-1, at PAGE ID ## 228-248.) On May 23, 2016, the state appellate court denied the Rule 26(B) application. (Id., at PAGE ID ## 253- 57.) Although Petitioner subsequently filed a Reply in support of his Rule 26(B) application, he never appealed the appellate court's May 23, 2016 ruling to the Ohio Supreme Court. (Id., at PAGE ID ## 258-62.)

         On October 14, 2016, Petitioner moved the Ohio Supreme Court for leave to file a delayed appeal of the state appellate court's January 29, 2016, decision denying his delayed direct appeal. (Id., at PAGE ID ## 263-76.) On December 14, 2016, the Ohio Supreme Court ...


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