Littlepage v. Warden, Chillicothe Correctional Institution
ORDER DENYING MOTION FOR STAY AND ABEYANCE; SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the case in light of the Objections, the Magistrate Judge again respectfully recommends that the Petition be dismissed with prejudice, that P etitioner be denied a certificate of appealability, and that this Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 2/23/2018. Signed by Magistrate Judge Michael R. Merz on 2/9/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
- vs -
Case No. 1:16-cv-1005
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
ORDER DENYING MOTION FOR STAY AND ABEYANCE;
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This is habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 27) to
the Magistrate Judge’s Report and Recommendations recommending that the Petition be dismissed
with prejudice (ECF No. 24). Judge Barrett has recommitted the case for reconsideration in light
of the Objections (Order, ECF No. 28).
The Petition herein pleads three Grounds for Relief, but neither Petitioner’s Reply (ECF
No. 18) nor his Objections (ECF No. 27) are organized around those grounds. Instead of trying to
re-arrange the Objections, the Magistrate Judge will take them as they are written and respond
Motion for Stay and Abeyance
Littlepage filed a Motion for Stay and Abeyance as an attachment to his Petition (ECF No.
1-3). He objects that it has not been ruled on (Objections, ECF No. 27, PageID 1241). The Clerk
never separately docketed that Motion and neither Magistrate Judge Bowman nor the undersigned
every ruled on it. In the Motion he asserts that he has filed a state habeas corpus action, a petition
for post-conviction relief, and application for delayed reopening of his direct appeal under Ohio
R. App. P. 26(B), a mandamus action to obtain discovery documents, a motion “to reissue untimely
denials due to lack of service,” and an application for DNA testing (Id. at PageID 45.) Other
actions he was then contemplating were a motion for new trial, a motion to withdraw his guilty
plea, and a motion to correct sentence. Id. However, his request for stay and abeyance is
conditional on this Court’s finding “any claim as truly unexhausted (and in further need of State
review first); . . .” Respondent has not raised an exhaustion objection and the Magistrate Judge
has not found that any claim cannot be decided for lack of exhaustion. Therefore the Motion for
Stay and Abeyance is moot and is hereby DENIED.
Motion for Complete State Court Record
On July 20, 2017, Littlepage filed a Motion for an order requiring the filing of the
“complete state record.” (ECF No. 16). He claims that Magistrate Judge Bowman granted that
motion (Objections, ECF No. 27), but she did not. That Motion was still pending when the case
was transferred to the undersigned who granted it in part and denied it in part on December 6, 2017
(ECF No. 20). As Littlepage was informed in that decision, Magistrate Judge Bowman’s Order
for Answer did not require the “complete state record,” but only those portions required by Rule 5
of the Rules Governing § 2254 Cases. Id. at PageID 1187. The Decision and Order found that
Respondent had filed considerably more than the rule requires, but went on to treat Littlepage’s
motion as one for expansion of the record and ordered the filing of any decision from his state
mandamus action. Id. at PageID 1188. Littlepage was invited to file a memorandum explaining
why the mandamus papers were relevant and he argued they showed he never received discovery
and Brady material (ECF No. 23).
Certificate of Appealability and Appeal in forma pauperis
Littlepage objects to the denial of a certificate of appealability. He uses the purported
disagreement between Magistrate Judge Bowman and Magistrate Judge Merz over completing the
state record as an example of how reasonable jurists could disagree and opines that because there
are “major Federal Constitutional Questions in this case,” a certificate of appealability should be
issued regardless of the disposition of the case (Objections, ECF No. 27, PageID 1243).
The issue on the certificate of appealaiblity question is not whether there are major
constitutional questions in the case.
Virtually every habeas petitioner claims his or her
constitutional issues are major. The issue is whether reasonable jurists would disagree with the
disposition of the case.
Issuance of blanket grants or denials of certificates of appealability is error, particularly if
done before the petitioner requests a certificate. Porterfield v. Bell, 258 F.3d 484(6th Cir. 2001);
Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001).
To obtain a certificate of appealability, a petitioner must show at least that Ajurists of reason
would find it debatable whether the petition states a valid claim of denial of a constitutional right.@
Slack v. McDaniel, 529 U.S. 473, 484 (2000). That is, it must find that reasonable jurists would
find the district court=s assessment of the petitioner=s constitutional claims debatable or wrong or
that they warrant encouragement to proceed further. Banks v. Dretke, 540 U.S. 668, 705 (2004);
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Dufresne v. Palmer, 876 F.3d 248 (6th Cir. 2017).
As to appeal in forma pauperis, Littlepage notes that Magistrate Judge Bowman
determined the Petition was not too frivolous to order an answer. That is correct and the
undersigned does not in any way question that decision. But the question whether a petition is
sufficient to warrant an answer and the question whether, after the case has been decided, an appeal
should be permitted to proceed in forma pauperis are different questions because one is made on
consideration of only one side of the case and the other is made after the case is complete.
Petitioner’s Drug Overdose
Next Littlepage accuses the undersigned of trying to downplay his drug overdose which he
claims made his confession involuntary and void (Objections, ECF No. 27, PageID 1245). Not
so. The Magistrate Judge is aware from the state court record of the serious medical situation in
which Littlepage was arrested in the hospital chapel with a confession recorded on the digital
recorder found next to him. If the State had relied on that confession at a trial, there would have
been serious questions presented about Littlepage’s ingestion of Therazepam before he made it.
But that recorded confession was never offered in evidence because there was no trial. The murder
and overdose occurred in July 2013 and Littlepage did not plead guilty until December when he
swore on the record in response to Judge Nadel’s question that he was not under the influence of
In support of this objection, Littlepage attaches multiple documents which this Court
cannot consider because they were not before the state courts when they adjudicated this case. A
habeas petitioner may not just add documents to the record without court permission and no
permission would be given for these because of Supreme Court authority prohibiting their
consideration. Cullen v. Pinholster, 563 U.S. 170 (2011).
Judge Nadel’s Denial of a Motion for Delayed Appeal
At many points in his pleadings, Littlepage accuses Judge Norbert Nadel, the trial judge in
this case, of bias, corruption, “fraud on the court,” etc. because he handwrote and signed an entry
on June 10, 2014, purporting to deny Littlepage’s motion for delayed appeal (See, for one example
of the document, PageID 1270.) It is well known in Ohio practice that the decision whether to
grant or deny a delayed appeal is committed to the appellate court. The record does not disclose
how the motion came to Juge Nadel’s attention, although the Clerk of his court is also the Clerk
of the First District Court of Appeals and the case number on the Motion is the trial court case
number (See State Court Record, ECF No. 13, PageID 244). However the record also shows that
when a motion for delayed appeal was filed with the appellate case number in the caption (PageID
459), the motion was granted by Judge Hildebrandt of the First District (PageID 484).
The Report rejects this issue as having no relevance. Littlepage objects “It certainly was
done beyond his authority and greatly prejudiced Mr. Littlepage. Such constitutional deprivations
must trigger some level of error. But Magistrate Merz ignores all the harm this Order caused.”
(Objections, ECF No. 27, PageID 1245). There is no federal constitutional violation in a busy
Common Pleas judge’s signing an order on a motion apparently filed in his court. It was error, but
not constitutional error. And Littlepage never explains the “great prejudice”: he was granted his
delayed appeal by an appropriate judge.
Insufficient Evidence to Convict
Mr. Littlepage objects that the State lacked sufficient evidence to convict under the
standard of Jackson v. Virginia, 443 U.S. 307 (1979)(Objections, ECF No. 27, PageID 1249).
Littlepage did not plead insufficiency of the evidence as a ground for relief. Moreover, the State
was not put to its proof: by pleading guilty, Littlepage waived a trial.
Lack of a Three-Judge Panel
In his Objections, Littlepage claims for the first time in these proceedings that his guilty
plea is invalid because it was not made “before a three-judge panel as required for charges of
Aggravated Murder – see State v. Parker [95 Ohio St. 3d 524 (2002)]” (Objections, ECF No. 27,
In Parker the Ohio Supreme Court held that a single Common Pleas Judge could not validly
accept a guilty plea in an aggravated murder case with death specifications in the indictment, even
though the State had agreed not to pursue the death penalty. But Parker does not apply here
because the Indictment contains no capital specification, but merely two firearm specifications
(Indictment, State Court Record, ECF No. 13, PageID 232-33.)
Littlepage further objects that the murder weapon has never been recovered (ECF No. 27,
PageID 1259). But there is no doubt that the victim was killed by gunshot and that Littlepage
admitted under oath in open court that he was the person who fired those shots.
Mr. Littlepage again proclaims his innocence and asks the Court to consider purported
letter from a Linda Freeman dated July 22, 2013, and attached to the Objections as Exhibit L. The
letter is unsworn and is not part of the State Court Record, so this Court is precluded from
considering it by Pinholster, supra. More importantly, this letter was already in existence very
shortly after the murder, but months before Littlepage waived his right to present evidence and
The Guilty Plea Process
Littlepage asserts his guilty plea was coerced by his attorneys telling him Judge Nadel
would sentence him to death if he did not plead guilty. Obviously this alleged threat does not
appear on the record. Since it is outside the record, the proper place to raise the claim would be in
a petition for post-conviction relief under Ohio Revised Code § 2953.21. Littlepage filed such a
Petition of August 1, 2014 (State Court Record, ECF No. 13, PageID 270, et seq.). In his Claim
Two he asserts his guilty plea was invalid because he had diminished capacity (PageID 272). His
Claim Three asserts prosecutorial misconduct by coercing him to plead guilty knowing he was of
diminished capacity and failure to investigate his claims of innocence. Attached is Petitioner’s
Affidavit giving his account of the dispute between himself and the victim and other family
members. In particular at ¶ 67, he alleges that he was coerced into pleading guilty because his
public defender did not get some photographs he wanted to use as evidence and “he stated Judge
Nadel said he would give me life if I tried to take it to trial.” (PageID 290). There is no allegation
of a threat of the death penalty. A claim of such a threat is incredible since Littlepage had not been
indicted with capital specifications.
Having reconsidered the case in light of the Objections, the Magistrate Judge again
respectfully recommends that the Petition be dismissed with prejudice, that Petitioner be denied a
certificate of appealability, and that this Court certify to the Sixth Circuit that any appeal would be
objectively frivolous and should not be permitted to proceed in forma pauperis.
February 9, 2018.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by mail. .Such objections shall specify the portions of the
Report objected to and shall be accompanied by a memorandum of law in support of the objections.
If the Report and Recommendations are based in whole or in part upon matters occurring of record
at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or
such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless
the assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
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