Bishop v. Warden

• Decision Date: 30 June 2020
• Docket Number: Case No. 2:19-cv-4780
• Parties: JAMES K. BISHOP, Petitioner, v. WARDEN, Richland Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JAMES K. BISHOP, Petitioner, v. WARDEN, Richland Correctional Institution, Respondent.

Case No. 2:19-cv-4780

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

June 30, 2020

District Judge Michael H. Watson

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254, brought pro se by Petitioner James Bishop, is before the Court for decision on the merits. Relevant pleadings are the Petition (ECF No. 1), the State Court Record (ECF No. 11), the Return of Writ (ECF No. 12), and Petitioner's Reply (ECF No. 13).

The Magistrate Judge reference in the case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the Southern District (ECF No. 14).

Litigation History

Bishop was indicted by a Jefferson County grand jury on November 8, 2017, and charged with one count of theft, one count of receiving stolen property, one count of burglary, and one count of safe cracking (Indictment, State Court Record, ECF No. 11, Exhibit 1PageID 88-91). A jury convicted Bishop on all counts and on a specification that the value of the property taken was more than $1,000 but less than $7,500. Bishop was sentenced to an aggregate sentence of nine and one-half years imprisonment (Judgment Entry, State Court Record, ECF No. 11, Exhibit 4PageID 101).

Bishop was granted a delayed direct appeal by the Ohio Seventh District Court of Appeals which affirmed the conviction and sentence. State v. Bishop, 2019-Ohio-2720 (Ohio App. 7^th Dist Jun. 28, 2019) ("Bishop I"). On October 28, 2019, Bishop moved the Supreme Court of Ohio to grant a delayed appeal, but his motion was denied (Entry, State Court Record, ECF No. 11, Exhibit 14, PageID 186).

On September 30, 2019, Bishop filed an application to reopen his direct appeal under Ohio R. App. P. 26(B) (State Court Record, ECF No. 11, Ex. 15, PageID ). That application was denied. State v. Bishop, 2019-Ohio-4963 (Ohio App. 7^th Dist., Nov. 21, 2019) ("Bishop II"), appellate review declined, 158 Ohio St. 3d 1435, 2020-Ohio-866.

On February 24, 2020, Bishop filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 (State Court Record, ECF No. 11, Exhibit 20PageID 288-95). The trial court denied an evidentiary hearing, but apparently had not decided the petition itself as of the date the Return was filed.¹

Bishop filed his Petition for Writ of Habeas Corpus October 21, 2019, the date he deposited it in the prison mail system (ECF No. 1, PageID 16). He pleads the following grounds for relief:

GROUND ONE: Sixth Amendment U.S. Constitution Section 10 Article I Ohio Constitution (Right to Speedy & Public Trial

Supporting Facts: I was arrested in WV. at Tigor County on Sept 24, 2017. Transferred to Jefferson County Jail on Sept 29, 2017, my trial was Jan 9th 2018 & given 110 day Jail Time Credit which puts my trial at 101 day from Sept 29th 2017 clearly 11 days over speedy trial right, I never gave up my right, nor did any motion interfere with court date.

GROUND TWO: Sixth Amend US Cons. Sec 10 Article I Ohio Constitution Right to Effective Assistance of Counsel

Supporting Facts: My trial lawyer never came & went over any discovery with me or got any info I wanted to be presented or ask for any evidence I could offer that he needed to get for me. I even mention this at my trial to the court. The courts answer was "oh well" Take it up at appeal court", direct quote from Judge"

GROUND THREE: Eighth Amend. U.S. Constitution Sec 9 Article I Ohio Const. Cruel & unusual punishment

Supporting Facts: They did not grant a Rule 29 for acquittal when the policemen admitted on stand he has no evidence for burglary theft or safecracking, yet I was still convicted of them & gave max sentence and consecutive sent. 8 yr. & 1 ½ yr. 9 ½ total for a crime they did not produce any evidence for

GROUND FOUR: 2921.13 falsification

Supporting Facts: They said a picture of me was from East Liverpool Cashland & submitted it as Exhibit #6 it was proved it was not from East Liverpool Cashland but from Toledo where nothing was victims but still left as evidence exh. #6 when it should have been withdrawn the picture has a date on it putting me somewhere else confirmed at trial.

Ground Five: Trial court erred when it fialed [sic] to address clearly shown falsified evidence.

Ground Six: Trial court erred when it failed to recognize victim tampered with evidence.

Ground Seven: The verdict was against the manifest weight of the evidence.

Ground Eight: The sentence was imposed based on prejudice.

Ground Nine: Credibility issues with witnesses was intentionally overlooked.

(Petition, ECF No. 1² (alterations and emphases in original)).

The Return of Writ does not discuss Grounds Five through Nine, but asserts the first four grounds are barred by Bishops' procedural defaults in presenting them to the Ohio courts and also that they are without merit. In his Reply, Bishop argues only his speedy trial claim and makes no reference to the Warden's procedural default defense.

Evidence Outside the State Court Record

Both in his Reply and in two separate filings (ECF Nos. 10 and 14), Bishop asks this Court to consider material outside the state court record to decide his case.

The first of these Motions Bishop captions "Motion to File Proof-D-Hor³ "to show that Bishop's speedy trial rights were violated. He asks the Court to consider the following documents, copies of which are attached:

Attachment 1: Decision of the Seventh District Court of Appeals on Bishop's Application for Reopening (ECF No. 10-1, PageID 56-69).

Attachment 2: A four-page official court document relating to Bishop's arrest in West Virginia as a fugitive from Ohio on these charges. Id. at PageID 70-73

Attachment Three: A three-page official court document from Jefferson County, Ohio, District Court No. 2 consisting of a warrant and complaint against Bishop for the charges in this case, and dated November 23, 2016. Id. at PageID 74-76.

Attachment Four: An order from the Magistrate's Court in Preston County, West Virginia, transferring Bishop's case to the circuit court for Preston County. Id. at PageID 77.

Attachment Five: Official court documents from the Preston County Circuit Court concerning Bishop's waiver of extradition to Ohio. Id. at PageID 78-80.

Attachment Six: Transmission of extradition papers to Ohio. Id. at PageID 81-82.

Attachment Seven: A report from the Regional Jail Facility in West Virginia showing Bishop was committed there upon his arrest on September 25, 2017, and released on September 29, 2017. Id. at PageID 83.⁴

Bishop makes no argument about why this Court should consider these documents except to say they show his right to a speedy trial under Ohio Revised Code § 2945.71 were violated.

Later, Bishop filed a sixty-page document he labeled "State Court Record" (ECF No. 14). This document consists of handwritten arguments of Bishop, interwoven with purported copies of trial courts exhibits and annotated pages from the trial transcript with Bishop's refutations interlineated.

Bishop's first motion was filed April 29, 2020, and has not been opposed by Respondent. The opinion of the Seventh District that is Attachment One is already part of the record filed by the Warden. The remaining documents were clearly all part of the record made in the West Virginia or Ohio courts in this case. Thus, they may properly be considered by this Court in deciding the case without breaching the rule in Cullen v. Pinholster, 563 U.S. 170 (2011). Public records and government documents, including those available from reliable sources on the Internet, are subject to judicial notice. United States ex rel Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003), aff'd, 388 F.3d 209 (6^th Cir. 2004).

However, the document filed by Bishop and labeled "State Court Record" cannot, as a whole. be added to the record in this case. Those portions of its that consist of admitted exhibits or portions of the trial transcript are proper to be considered, but Bishop's interlinear comments and arguments are not. This Court will consider the trial transcript as certified by the court reporter without the comments which have been added.

Analysis

Ground One: Denial of Right to Speedy Trial

In his First Ground for Relief, Bishop claims he was deprived of his right to a speedy trial under the Sixth Amendment to the United states Constitution and under the Ohio Constitution.

Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248, 253 (6^th Cir. 2018) (Thapar, J., concurring). Therefore this Court cannot consider whether the Ohio courts violated any of Bishop's rights under the Ohio Constitution.

Further, failure to abide by state law is not itself a federal constitutional violation. Roberts v. City of Troy, 773 F.2d 720 (6^th Cir. 1985). Violation by a State of its own procedural rules does not necessarily constitute a violation of due process. Bates v. Sponberg, 547 F.2d 325 (6^th Cir. 1976); Ryan v. Aurora City Bd. of Educ., 540 F.2d 222, 228 (6^th Cir. 1976). "A state cannot be said to have a federal due process obligation to follow all of its procedures; such a system would result in the constitutionalizing of every state rule, and would not be administrable." Levine v. Torvik, 986 F.2d 1506, 1515 (6^th Cir. 1993), cert. denied, 509 U.S....