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Bell v. Warden, London Correctional Institution

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

January 13, 2020

WILLIE BELL, Petitioner,
v.
WARDEN, LONDON CORRECTIONAL INSTITUTION, Respondent.

          Black, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz United States Magistrate Judge.

         Petitioner, an inmate in state custody at the Ross Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 2). This matter is before the Court on respondent's motion to dismiss (Doc. 9) and petitioner's response in opposition. (Doc. 10). For the reasons stated below, the undersigned recommends that the motion to dismiss be granted and the petition be dismissed on the ground that it is time-barred pursuant to 28 U.S.C. § 2241(d)(1).

         I. PROCEDURAL HISTORY

         State Trial Proceedings

         On February 5, 2007, the Hamilton County, Ohio, grand jury returned a six-count indictment charging petitioner with four counts of aggravated burglary, one count of receiving stolen property, and one count of failure to comply with an order or signal of police officer. (Doc. 7, Ex. 1). After initially entering a not guilty plea, petitioner withdrew his plea and entered a plea of guilty to three counts of aggravated robbery and one count of failure to comply with an order or signal of police. (Doc. 7, Ex. 2). In exchange for the guilty plea, the prosecution dismissed the remaining counts. (See Doc. 7, Ex. 3).

         On May 16, 2007, petitioner was sentenced to a total aggregate prison sentence of twenty-two years in the Ohio Department of Corrections. (Doc. 7, Ex. 4).[1]

         Motion to Withdraw Guilty Plea

         On May 25, 2007, petitioner filed a pro se motion to withdraw his guilty plea. (Doc. 7, Ex. 7). Petitioner argued that his trial counsel failed to advise him of the terms of the plea agreement and that he should have been given a competency hearing due to his history of mental illness. On June 12, 2007, the trial court overruled petitioner's motion. (Doc. 7, Ex. 8).

         Delayed Direct Appeal

         On June 20, 2007, petitioner filed a pro se notice of appeal to the Ohio Court of Appeals. (Doc. 7, Ex. 9). Petitioner's motion was sua sponte denied as untimely filed by entry issued June 29, 2007. (Doc. 7, Ex. 10).

         Second Delayed Direct Appeal

         Petitioner, through different counsel than at trial, filed a second notice of appeal and motion for leave to file a delayed appeal on November 15, 2007. (Doc. 7, Ex. 11, 12). The Ohio appeals court granted petitioner leave to file a delayed direct appeal. (Doc. 7, Ex. 15).[2] Petitioner raised the following three assignments of error in his merit brief:

1. The trial court erred as a matter of law by improperly sentencing appellant under trial case number B0700957-A.
2. The trial court erred as a matter of law by failing to comply with Crim.R. 32.3 prior to imposing a prison sentence for a violation of a community control sanction violation.
3. The trial court erred as a matter of law by overruling appellant's motion to withdraw his guilty plea under trial case number B0700957-A.

(Doc. 7, Ex. 18). Petitioner withdrew his second assignment of error. (Doc. 7, Ex. 19). On September 24, 2008, the Ohio Court of Appeals overruled petitioner's assignments of error and affirmed the judgment of the trial court. (Doc. 7, Ex. 21).

         Petitioner did not seek further review in the Ohio Supreme Court.

         Motion to ...


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