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Carlier v. Warden, Chillicothe Correctional Institution

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

December 10, 2019

JEFFREY D. CARLIER, Petitioner,
v.
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

          Bertelsman, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz United States Magistrate Judge.

         Petitioner, an inmate in state custody at the Chillicothe Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on respondent's motion to dismiss (Doc. 9), to which petitioner has not replied. For the reasons stated below, the undersigned recommends that the motion to dismiss be granted and the petition be denied on the ground that it is time-barred pursuant to 28 U.S.C. § 2241(d)(1).

         I. PROCEDURAL HISTORY

         State Trial Proceedings

         On October 29, 2015, the Scioto County, Ohio, grand jury returned a twenty-nine-count indictment charging petitioner with twenty-two counts of burglary, four counts of grand theft, two counts of safecracking, and one count of possessing criminal tools. (Doc. 8, Ex. 1). After initially entering a plea of not guilty, petitioner withdrew his former plea and entered a written guilty plea to the twenty-two counts of burglary, two counts of safecracking, and one count each of grand theft and possessing criminal tools. (Doc. 8, Ex. 2, 3). The prosecution agreed to dismiss the remaining three charges in exchange for the plea. On July 1, 2016, the trial court accepted petitioner's guilty plea, found him guilty, and sentenced petitioner to serve a total aggregate prison sentence of forty-seven years in the Ohio Department of Corrections. (Doc. 8, Ex. 4).

         Delayed Appeal

         On November 14, 2016, petitioner filed a pro se notice of appeal and a motion for leave to file a delayed appeal. (Doc. 8, Ex. 5, 6). As cause for his failure to timely appeal his conviction and sentence, petitioner claimed that his trial attorney failed to inform him of his appellate rights. (See Doc. 8, Ex. 6 at PageID 74). Petitioner's motion was denied by the Ohio Court of Appeals on January 12, 2017. (Doc. 8, Ex. 7).

         Petitioner did not timely appeal the decision to the Ohio Supreme Court.

         Delayed Appeal to the Ohio Supreme Court

         On June 16, 2017, petitioner filed a pro se notice of appeal and motion for leave to file a delayed appeal to the Ohio Supreme Court. (Doc. 8, Ex. 8, 9). On September 13, 2017, the Ohio Supreme Court denied petitioner's motion and dismissed the case. (Doc. 8, Ex. 10).

         Federal Habeas Corpus

         On November 28, 2018, petitioner commenced the instant federal habeas corpus action.[1] Petitioner raises the following two grounds for relief in the petition:

GROUND ONE: Petitioners In Ohio Have A Right to Appeal Their Sentence Imposed As A Part Of An "Open Plea" Agreement, Notice Should Be ...

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