Marshall v. Warden, Pickaway Correctional Institution

Filing 29

ORDER - Denying Petitioner's 27 MOTION for Relief from Judgment and Petitioner's 28 Rule 54 Judgment on the Pleadings. REPORT AND RECOMMENDATION that Respondent's 8 MOTION to Dismiss be Granted. Objections to R&R due by 6/26/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/9/2015. (sln)(This document 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-00812
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.

This matter is before the Court on the instant Petition,

Memorandum in Support, and Amended and Supplemental Pleadings, (ECF Nos. 1, 3, 4);
Respondent’s Motion to Dismiss and Supplemental Memorandum in Support, (ECF Nos. 8, 12);
Petitioner’s Traverse and Response to Motion to Dismiss, (ECF Nos. 11, 15); Petitioner’s Motion
for Relief from Judgment, (ECF No. 27); “Rule 54 Judgment on the Pleadings,” (ECF No. 28),
and the exhibits of the parties.
For the reasons that follow the Magistrate Judge RECOMMENDS that Respondent’s
Motion to Dismiss be GRANTED.
Petitioner’s Motion for Relief from Judgment and “Rule 54 Judgment on the Pleadings,”
are DENIED.
Motion for Relief from Judgment
Petitioner has filed a Motion for Relief from Judgment in regard to the denial of his
Motion for Summary Judgment. (See Order, ECF No. 25.) In it, Petitioner indicates that he
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suffers from mental health issues. He complains that his pro se incarcerated status puts him at a
disadvantage. PageID# 281-82.
The Court liberally construes the pleadings of a pro se incarcerated prisoner, and does so
in its consideration of this case. Haines v. Kerner, 404 U.S. 519, 595-96 (1972). However,
Petitioner has provided no basis for reconsideration of the denial of his Motion for Summary
Judgment. Petitioner’s Motion for Relief from Judgment, (ECF No. 27) is DENIED.
Judgment on Pleadings
Petitioner also has filed a “Rule 54 Judgment on the Pleadings.”

In it, Petitioner

indicates that he is confused by the filing of the transcripts in this case. The remainder of the
motion is unintelligible. Petitioner’s “Rule 54 Judgment on the Pleadings” (ECF No. 28) is
DENIED.
Procedural History
This case involves Petitioner’s August 20, 2013 conviction for identity fraud in the
Franklin County Court of Common Pleas made pursuant to the terms of his guilty plea. (ECF
No. 8-1, PageID# 73--74.) On October 21, 2013, the trial court imposed a three-year term of
imprisonment and indicated that it may consider judicial release. (PageID# 76-77.) Petitioner
did not timely appeal. On January 14, 2014, he filed a motion for leave to file a delayed appeal.1
(PageID# 78-89.) As grounds for his untimely filing, Petitioner indicated that he had been
denied access to the prison law library. (PageID# 79.)2 On February 18, 2014, the appellate

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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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 Petitioner attached to his motion for delayed appeal a letter dated December 24, 2013, from the
Clerk of the Ohio Supreme Court indicating that a “document titled delayed appeal” was being
returned for failure to comply with the Rules of Practice of the Supreme Court of Ohio. (ECF
No. 8-1, PageID# 84.) He also attached a copy of a January 2, 2014, letter he wrote to the Court
of Appeals indicating that he had not been advised of his appellate rights at sentencing, had been

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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) because he failed to file a notice of appeal concurrently with
the motion for a delayed appeal. (PageID# 92.) Petitioner filed a motion for reconsideration.
(PageID# 93-98.)

On March 14, 2014, the appellate court denied Petitioner’s motion for

reconsideration as untimely. (PageID# 99.) Petitioner did not pursue an appeal with the Ohio
Supreme Court. In May 2014, Petitioner filed a motion for judicial release. The trial court
denied the motion. (PageID# 111.) In August 2014, Petitioner filed a motion for judicial
release. (PageID# 112-114.) On September 30, 2014, the trial court denied his request for
judicial release. (Motion for Relief from Judgment, ECF 27, PageID# 282, 284.)
On June 30, 2014, Petitioner filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 and memorandum in support. Petitioner has filed Amended and
Supplemental Pleading, in which he has attached exhibits in support. Petitioner asserts that he
was denied the effective assistance of counsel, denied full and fair appellate review, that his
guilty plea was not knowing, 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.
Petitioner claims that his guilty plea was not knowing, intelligent or voluntary because
his attorney assured him that if he pleaded guilty, he would be released. He maintains that,
despite these assurances, at sentencing the trial court revoked his bond and imposed the
maximum sentence. Petitioner asserts that he was denied the assistance of counsel for appeal
and the right to an appeal. According to Petitioner, he exercised diligence in attempting to

denied effective assistance of counsel and access to the courts, that he was under the influence of
drugs at the time of his guilty plea, and that his guilty plea was not knowing, intelligent or
voluntary. (PageID# 85-89.)
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timely appeal by pursuing assistance in the filing of an appeal. Petitioner has attached what
purport to be letters he wrote to prison officials dated November 6, 2013 and December 29, 2013
requesting access to the prison’s law library for the filing of an appeal. (ECF No. 4-1, PageID#
20; ECF No. 4-5, PageID#31-32.) He also has attached a letter he wrote to the Ohio Public
Defender requesting assistance on January 2, 2013.3 (ECF 4-3, PageID# 26-29.) Petitioner also
has including in his filings a letter from the public defender dated March 6, 2014 advising
Petitioner that the appellate court had denied leave to appeal but “hopefully” would consider a
second motion. The assistant public also defender suggested that Petitioner consider seeking
judicial release. (ECF No. 4-4, PageID# 30.) Petitioner has attached documents submitted to
prison officials complaining of lack of access to the prison law library. (ECF Nos. 4-5, 4-6,
PageID# 31-33.)
Exhaustion
Before a federal habeas court may grant relief, a state prisoner must exhaust his available
remedies in the state courts. Castille v. Peoples, 489 U.S. 346, 349 (1989); Silverburg v. Evitts,
993 F.2d 124, 126 (6th Cir. 1993). If a habeas petitioner has the right under state law to raise a
claim by any available procedure, he has not exhausted that claim. 28 U.S.C. § 2254(b), (c).
Moreover, a constitutional claim for relief must be presented to the state’s highest court in order
to satisfy the exhaustion requirement. O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Manning v.
Alexander, 912 F.2d 878, 881 (6th Cir. 1990).
Petitioner failed to raise his on-the-record claims in a timely appeal to the state appellate
court. The appellate court dismissed his motion for a delayed appeal for failure to comply with
Ohio procedural requirements.

However, Petitioner never pursued an appeal to the Ohio

3

Presumably, Petitioner mistakenly indicated 2013 when he meant to date the letter 2014. 
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Supreme Court. Although the time period has expired to do so, Petitioner may still pursue a
motion for delayed appeal.

Thus, his claims are barred under the doctrine of exhaustion.

Because Petitioner still may file a motion for a delayed appeal in the Ohio Supreme Court, his
claims remain unexhausted.
Further, the record fails to reflect that a stay of proceedings is appropriate. Where the
statute of limitations established by 28 U.S.C. § 2244(d) may bar a petitioner from re-filing his
habeas corpus petition upon exhaustion of state remedies, a stay of proceedings may be
warranted where the petitioner establishes “good cause” for failing to exhaust state remedies and
where the petitioner’s unexhausted claims are potentially meritorious. Rhines v. Weber, 544 U.S.
269, 277 (2006).
[A] stay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner’s failure to
exhaust his claims first in state court. Moreover, even if a
petitioner had good cause for that failure, the district court would
abuse its discretion if it were to grant him a stay when his
unexhausted claims are plainly meritless. Cf. 28 U.S.C. §
2254(b)(2) (“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State”).
Id. Here, Petitioner does not articulate any grounds for his failure, to date, to pursue a delayed
appeal in the Ohio Supreme Court. The Ohio Supreme Court likely will deny his motion for a
delayed appeal under these circumstances.
In Neville v. Dretke, 423 F.3d 474, 480 (5th Cir. 2005), the United States Court of
Appeals for the Fifth Circuit held that claims are “plainly meritless” for purposes of deciding
whether to grant a stay of habeas corpus proceedings where the petitioner is procedurally barred
from raising his unexhausted claims in the state courts. The record in this case likewise provides

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no basis for concluding that Petitioner’s untimely claims of ineffective assistance of trial counsel
are potentially meritorious.
Therefore, the Magistrate Judge RECOMMENDS that Respondent’s Motion to Dismiss,
(ECF No. 8) be GRANTED and that this action be DISMISSED.
Petitioner’s Motion for Relief from Judgment and “Rule 54 Judgment on the Pleadings”
(ECF Nos. 27, 28) are DENIED.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those 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.

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IT IS SO ORDERED.

_s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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