Marshall v. Warden, Pickaway Correctional Institution

Filing 25

ORDER denying 9 Motion for Summary Judgment; adopting 19 Report and Recommendations. Signed by Judge Gregory L. Frost on 5/22/15. (kn)(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.

OPINION AND ORDER
On April 27, 2015, the Magistrate Judge issued an Order and Report and
Recommendation recommending that Petitioner’s Motion for Summary Judgment and evidentiary
hearing (ECF No. 9) be denied. The Magistrate Judge denied Petitioner’s Motion to Appeal,
ECF 16, and granted Petitioner’s Motion for Free Copies, (ECF No. 18), directing Respondent to
submit a copy of the transcript of Petitioner’s guilty plea and sentencing hearing within thirty
days. Order and Report and Recommendation, (ECF No. 19). Petitioner has filed Objections,
(ECF No. 22), to the Magistrate Judge’s Order and Report and Recommendation.
Petitioner maintains that he timely appealed his judgment of conviction based on his
request for appointed counsel to represent him on appeal and the subsequent denial of this
request. Petitioner asserts that he was denied his right to appellate review and the effective
assistance of counsel. He raises a claim of the denial of counsel, and refers to his efforts to
obtain the assistance of counsel for the filing of an appeal, as cause for any procedural default.
He complains that the trial court has yet to rule on, or grant, his August 2014, motion for judicial
release. He contends that he filed a timely appeal with the Ohio Supreme Court. He requests
immediate release.
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All of the issues to which Petitioner refers involve material disputed facts and application
of law that will be resolved upon consideration of the merits of this case. The Court will not
address these issues now in the context of Petitioner’s Motion for Summary Judgment, because
to do so would be inappropriate at this juncture, but instead will resolve them when it addresses
the merits of Petitioner’s claims. Further, it does not now appear that an evidentiary hearing will
be required for such determination. Therefore, Petitioner’s Motion for Summary Judgment (ECF
No. 9) is DENIED.
Petitioner’s does not appear to object to the denial of his Motion to Appeal, ECF 16. To
the extent that he may have intended to do so, he has provided no basis for the filing of an
interlocutory appeal.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the
foregoing reasons, and for the reasons detailed by the Magistrate Judge, Petitioner’s Objection,
(ECF No. 22) is OVERRULED. The Order and Report and Recommendation (ECF No. 19) is
ADOPTED and AFFIRMED. Petitioner’s Motion for Summary Judgment and request for an
evidentiary hearing (ECF No. 9) is DENIED. The Motion to Appeal (ECF No. 16) also is
DENIED.
Respondent is reminded of the Magistrate Judge’s Order directing him to file a copy of
the transcript of Petitioner’s guilty plea and sentencing hearings with the Court, and to serve a
copy on Petitioner by May 27, 2015.
IT IS SO ORDERED.
/s/ GREGORY L, FROST
GREGORY L. FROST
United States District Judge

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