Marshall v. Warden, Pickaway Correctional Institution

Filing 19

ORDER AND REPORT AND RECOMMENDATIONS re 9 MOTION for Summary Judgment. The Magistrate Judge RECOMMENDS that Petitioner's Motion for Summary Judgment and request for an evidentiary hearing, be DENIED. Petitioner' s Motion to Appeal 16 , is DENIED.Petitioner' s Motion for Free Copies, 18 is GRANTED to the extent of this Order. Objections to R&R due by 5/14/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/27/2015. (mas)(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
EASTERN DIVISION

KENNETH MARSHALL,
CASE NO. 2:14-CV-812
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent.

ORDER and
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

Petitioner has filed a Motion for Summary Judgment and

Memorandum in Support, ECF 9, 10; a Motion to Appeal, ECF 16; and a Motion for Free
Copies, ECF 18. Respondent opposes Petitioner’s Motion for Summary Judgment. Response in
Opposition, ECF 13. For the reasons that follow, the Magistrate Judge RECOMMENDS that
Petitioner’s Motion for Summary Judgment and request for an evidentiary hearing, ECF 9, be
DENIED.
Petitioner’s Motion to Appeal, ECF 16, is DENIED.
Petitioner’s Motion for Free Copies, ECF 18, is GRANTED to the extent of this Order.
Respondent is DIRECTED to submit a copy of the transcript of Petitioner’s guilty plea
and sentencing hearing, and to serve a copy on Petitioner, within thirty (30) days of the date of
this Order.

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Procedural History
This case involves Petitioner’s August 20, 2013, conviction on identity fraud in the
Franklin County Court of Common Pleas made pursuant to the terms of his guilty plea. Exhibit 4
to Motion to Dismiss, ECF 8-1, PageID# 74-75. The trial court imposed a sentence of three
years incarceration, and indicated that it may consider judicial release. Judgment Entry, Exhibit
6 to Motion to Dismiss, PageID# 76-77. Petitioner did not timely appeal. On January 14, 2014,
he filed a motion for leave to file a delayed appeal.1 Exhibit 7 to Motion to Dismiss, PageID#
78-89. On February 18, 2014, the appellate court denied Petitioner’s motion for leave to file a
delayed appeal based on his failure to comply with Ohio Appellate Rule 5(A)(2), as he had failed
to file a notice of appeal concurrently with the motion for a delayed appeal. Exhibit 9 to Motion
to Dismiss, PageID# 92. Petitioner filed a motion for reconsideration. Exhibit 10 to Motion to
Dismiss, PageID# 93-98. On March 14, 2014, the appellate court denied Petitioner’s motion for
reconsideration as untimely. Exhibit 11 to Motion to Dismiss, PageID# 99. Petitioner did not
pursue an appeal with the Ohio Supreme Court. In April 2014, Petitioner filed a motion for
judicial release. Exhibit 12 to Motion to Dismiss, PageID# 100-104. On May 16, 2014, the trial
court denied the motion. Exhibit 15 to Motion to Dismiss, PageID# 111. In August 2014,
Petitioner again filed a motion for judicial release. Exhibit 16 to Motion to Dismiss, PageID#
112-114. The record does not indicate that the trial court ruled on the motion.
On June 30, 2014, Petitioner filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On July 31, 2014, Petitioner filed Amended and Supplemental
Pleadings. ECF 4. Petitioner asserts that he was denied the effective assistance of counsel,
denied full and fair appellate review in the state courts, that his guilty plea was not knowing,

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 Petitioner indicates that he deposited his motion for a delayed appeal with prison authorities on December 10,
2013. PageID# 83.

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intelligent or voluntary, and that he was denied appellate counsel. It is the position of the
Respondent that Petitioner’s claims are noncognizable, without merit, unexhausted, or
procedurally defaulted. Motion to Dismiss, ECF 8.
Motion for Summary Judgment
Petitioner requests the Court to grant summary judgment in his favor or in the alternative,
grant him an evidentiary hearing. In support, he asserts that the record is without dispute that he
could not obtain meaningful review in the state courts despite his attempts to obtain assistance
from the Department of Rehabilitation and Correction, prison officials, and the Ohio Public
Defender. He claims that he was denied the effective assistance of trial counsel. He asserts that
the case constitutes a manifest miscarriage of justice. He complains that he was denied a full and
fair hearing in the state courts based on his indigent pro se incarcerated status. ECF 9, PageID#
133-36. In response, Respondent maintains that Petitioner has waived his claims for relief and
the record indicates that Petitioner entered a knowing, intelligent, and voluntary guilty plea.
ECF 13.
As a general principle, a petitioner in habeas corpus may seek summary judgment by
satisfying the requirements of Federal Rule of Civil Procedure 56. See Franklin v. Mansfield
Corr. Inst., No. 3:04–cv–187, 2006 WL 2128939 at *2 (S.D. Ohio July 27, 2006) (citing
Blackledge v. Allison, 431 U.S. 63, 80–81 (1977) and Browder v. Director, 434 U.S. 257, 266,
n.10 (1978)). Rule 56(a) provides that “[a] party may move for summary judgment, identifying
each claim or defense-- or the part of each claim or defense-- on which summary judgment is
sought. The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Petitioner has failed to meet this standard. The Respondent disputes the claims Petitioner raises

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in support of his Motion for Summary Judgment. Further, the issues Petitioner raises therein are
properly addressed in the resolution of the merits of this case.

It is therefore

RECOMMENDED that Petitioner’s Motion for Summary Judgment, ECF 9, be DENIED. The
record does not reflect that an evidentiary hearing is required for resolution of Petitioner’s
Motion for Summary Judgment. It is accordingly also RECOMMENDED that this request be
DENIED.
Motion to Appeal
Petitioner has filed a Motion to Appeal. ECF 16. In it, he argues that he has established
cause for any procedural default based on the denial of counsel on appeal and asserts that he has
been denied access to the courts and the effective assistance of counsel. He requests to file an
appeal or, in the alternative, an interlocutory appeal.
The Court has yet to issue a final judgment in this case. Petitioner’s request for an
appeal, therefore, is not appropriately addressed at this time. “Litigants are generally not entitled
to appellate review of court orders prior to a final judgment on the merits.” Trimble v. Bobby,
No. 5:10-CV-00149, 2011 WL 1982919, at *1 (N.D. Ohio May 20, 2011)(citing Coopers &
Lybrand v. Livesay, 437 U.S. 463, 475 (1978)). 28 U.S.C. § 1292(b) provides that where an
order involves a “controlling question of law as to which there is substantial ground for
difference of opinion” and “an immediate appeal from the order may material advance the
ultimate termination of the litigation” the Court of Appeals may permit an interlocutory appeal.
However, “[r]eview under § 1292(b) is granted sparingly and only in exceptional cases.” In re
Memphis, 298 F.3d 345, 350 (6th Cir. 2002)(citation omitted).

“The burden of showing

exception circumstances justifying an interlocutory appeal rests with the party seeking review.”
Trimble v. Bobby, 2011 WL 1982919, at *1 (citing In re Memphis, 298 F.3d at 350)).

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Petitioner has failed to meet this burden here. He does not indicate the nature of his
request for an interlocutory appeal. Moreover, the record does not indicate that the Court has
issued an order justifying such a request.

Petitioner’s Motion to Appeal, ECF 16, is DENIED.

Motion for Free Copies   

Petitioner has written a letter to the Court, docketed as a Motion for Free Copies, ECF

18, in which he requests to be provided free copies of documents related to his case. Petitioner
appears to indicate that he is requesting a copy of the transcript of the hearing at which he
pleaded guilty. Petitioner complains that he has been unable to obtain such documents in view
of his indigent-incarcerated status. Respondent has not opposed Petitioner’s request.
Petitioner asserts that he did not knowingly, intelligently or voluntarily enter his guilty
plea. He asserts that the state courts deprived him of his right to appeal and to the assistance of
counsel on his first appeal of right. Respondent argues to the contrary. The record does not
reflect whether Petitioner previously has been provided with a copy of his guilty plea and
sentencing hearing, or that counsel represented him on appeal.
Because a copy of the transcript of Petitioner’s guilty plea and sentencing hearing would
be helpful to consideration of the issues raised herein, Respondent is DIRECTED to file a copy
of the transcript of Petitioner’s guilty plea and sentencing hearing with the Court, and to serve a
copy on Petitioner, within thirty (30) days of the date of this order.
Petitioner’s Motion for Free Copies is GRANTED to the extent of this Order.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this report, file and serve on all parties written objections to those

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specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A judge of this Court shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or
modify, in whole or in part, the findings or recommendations made herein, may receive further
evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §
636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.
IT IS SO ORDERED.

   _s/ Elizabeth A. Preston Deavers      
  Elizabeth A. Preston Deavers

United States Magistrate Judge

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