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Neil v. Warden, Noble Correctional Institution

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

July 24, 2019

MIGUEL NEIL, Petitioner,
v.
WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.

          JAMES L. GRAHAM JUDGE.

          OPINION AND ORDER

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner, brings this pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. This matter is before the Court for consideration of Petitioner's Motion for Stay-And-Abeyance and Protective Petition. (ECF No. 2.) For the reasons that follow, the Motion for Stay-And-Abeyance and Protective Petition (ECF No. 2) is DENIED.

         I.

         Petitioner challenges his October 31, 2014, convictions after a jury trial in the Franklin County Court of Common Pleas on 30 counts of robbery and 6 counts of kidnapping. On June 30, 2016, the appellate court affirmed the judgment of the trial court. State v. Neil, 10th Dist. Nos. 14AP-981, 15AP-594, 2016 WL 3574549, at *1-10 (Ohio Ct. App. June 30, 2016). On January 25, 2017, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Neil, 147 Ohio St.3d 1506 (Ohio 2017). On October 2, 2017, the United States Supreme Court denied the petition for a writ of certiorari. Neil v. Ohio, 138 S.Ct. 124 (2017). On February 3, 2016, Petitioner filed a petition for post conviction relief in the state trial court. On October 31, 2016, the trial court denied that action as untimely. On June 25, 2019, the appellate court affirmed the judgment of the trial court. State v. Neil, 10th Dist. Nos. 18AP-609, 18AP-610, 2019 WL 2602564 (Ohio Ct. App. June 25, 2019). Petitioner apparently did not file an appeal. Additionally, Petitioner indicates that, on September 27, 2016, he filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). (Petition, ECF No. 6.) On February 2, 2017, the appellate court denied Petitioner's Rule 26(B) application. Petitioner states that the Clerk of the Franklin County Court failed to notify him of the appellate court's decision. Therefore, on August 31, 2017, he filed a “Rule 60(B) Motion to Vacate and Reissue the Court's January 2, 2017 Judgment Entry” so that he pursue an appeal to the Ohio Supreme Court. (Motion for Stay-And-Abeyance and Protective Petition, ECF No. 2, PAGEID # 9.) However, on September 6, 2017, the appellate court issued an order sua sponte striking Petitioner's motion as improper. (ECF No. 2, PAGEID # 11.) On September 25, 2017, Petitioner attempted to file an appeal with the Ohio Supreme Court. On December 20, 2017, the Ohio Supreme Court denied that request. On February 28, 2018, the Ohio Supreme Court denied Petitioner's application for reconsideration. (ECF No. 2, PAGEID # 12.) Thereafter, on August 1, 2018, Petitioner filed a second post conviction petition in the state trial court, asserting that his convictions violate the Fourth Amendment, that he was denied a fair trial based on the prosecution's knowing submission of false testimony, that he was denied the effective assistance of counsel, and that he was denied a fair trial based on cumulative error. (See Petition, ECF No. 6, PAGEID # 33.) According to the Petitioner, on December 7, 2018, the trial court denied that action. (Id.) Petitioner states that he filed a timely appeal, which action remains pending in the state trial court. Petitioner seeks a stay of proceedings pending resolution of those proceedings. He states that, on February 15, 2019, he filed a timely appeal with the Ohio Tenth District Court of Appeals, which action remains pending. (Id.)

         On March 7, 2019, Petitioner filed this pro se habeas corpus Petition. He asserts the following claims for relief:

1. The trial court erred when it joined the two indictments for trial when the joinder was extremely prejudicial to the defendant and the State was unable to establish that the evidence of the one offense would have been admissible to show a modus operandi indicative of a behavioral fingerprint or unique, signature-like manner of committing the other offenses.
2. The defendant was deprived of his right to a fair trial and due process of law when police officers were allowed to indicate their beliefs that the images of the suspect or suspects in the other robberies were that of the defendant and that they were certain that all the offenses were committed by the same defendant and by the introduction of inadmissible community and victim impact evidence.
3. The defendant did not receive effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I, of the Ohio Constitution when counsel failed to object to improper police officer opinions of the defendant's guilt, prejudicial and irrelevant victim impact evidence, and failed to have a record made of the joinder hearing.
4. The trial court erred when it instructed the jury, over the defendant's objection, that they could consider the acts of the defendant in one instance to prove identity in the other incidents.
5. The trial court erred when it entered judgment against the defendant when the evidence was insufficient to sustain the convictions.
6. The trial court erred when it entered judgment against the defendant against the manifest weight of the evidence.
7. Ineffective assistance of appellate counsel in his failure to raise ineffective assistance of trial counsel in denial of his right to present exculpatory identification evidence in his favor after cross-examination of a witness, nor during closing arguments.
8. Ineffective assistance of appellate counsel for failure to raise ineffective assistance of trial counsel in denial of his right to present exculpatory evidence from the 2013 robberies, the unique clothing and glove differences, and the trial court's abuse of discretion for not examining and admitting evidence in his favor at ...

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