United States District Court, S.D. Ohio, Eastern Division
PATRICK M. CURRY, Petitioner,
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION Respondent.
Michael H. Watson
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
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.
Facts and Procedural History
The State Court Conviction
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
. . . 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).
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.)
state appellate court described the procedural history that
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.
Motion to Withdraw Guilty Plea
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.
Petition for Post-conviction Relief
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.)
Delayed Direct Appeal and Rule 26(B) Application
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.
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.)
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 ...