Bowling v. Warden, London Corr. Inst.
Decision Date | 05 November 2013 |
Docket Number | Case No. 1:12-cv-183 |
Parties | DUAYNE BOWLING, Petitioner, v. WARDEN, LONDON CORRECTIONAL INSTITUTION, Respondent. |
Court | U.S. District Court — Southern District of Ohio |
Litkovitz, M.J.
Petitioner, an inmate in state custody at the London Correctional Institution in London, Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the original petition filed on February 21, 2012,1 petitioner presents six grounds for relief. (See Doc. 1). On June 27, 2013, the Court allowed petitioner to amend the petition to add a seventh ground for relief and ordered respondent to file a supplemental return of writ responding to the additional claim. (Doc. 17; see also Doc. 15). At this juncture, it appears that the parties have filed all pleadings necessary for final disposition of the case. Therefore, this matter is now before the Court on the petition as amended and "merits brief; respondent's return of writ and supplemental return of writ responding to petitioner's allegations; and petitioner's "traverse" briefs in reply to the return of writ and supplemental return of writ. (Docs. 1, 6, 7, 10, 18, 21).
The Ohio Court of Appeals, First Appellate District, has provided the following summary of the facts giving rise to petitioner's criminal prosecution based on evidence presented at hisjury trial:2
(Doc. 7, Ex. 12, pp. 2-3) (footnote omitted).
In October 2009, the Hamilton County, Ohio, grand jury returned an indictment charging petitioner with one count of illegal assembly or possession of chemicals for the manufacture of drugs in violation of Ohio Rev. Code § 2925.041; one count of aggravated possession of drugs in violation of Ohio Rev. Code § 2925.11(A) with a firearm specification; and one count of having weapons while under disability in violation of Ohio Rev. Code § 2923.13(A)(3). (Doc. 7, Ex. 1).
A jury trial was initially scheduled to commence on January 26, 2010. (See id., Ex. 12, p. 1 & Trial Tr. 1). On that day, petitioner's counsel requested that an independent expert on the manufacture of methamphetamine be appointed and that the trial be continued "both to allow that and to be able to address further discovery from the State." (Id., Trial Tr. 5-6). The trial court denied the request for appointment of an independent expert, but granted a two-week continuance of the trial. (Id., Ex. 12, p. 1 & Trial Tr. 9-10, 12). The second trial proceeding commenced on February 10, 2010. (Id., Trial Tr. 17). However, on February 11, 2010, after the jury was empaneled, both petitioner and his counsel requested that counsel be allowed to withdraw from the case due to "a complete breakdown in communication" between them and that a new attorney be appointed to represent petitioner. (See id., Trial Tr. 138-42, 148). The court granted the request and declared a mistrial. (Id., Ex. 2 & Trial Tr. 148). The court appointed another attorney to represent petitioner and rescheduled the trial date to April 13, 2010. (Id., Ex. 12, p. 1). On April 9, 2010, petitioner's new counsel filed motions requesting an independent drug analysis and the appointment of an independent expert on the manufacture of methamphetamine. (Id., Exs. 3-4 & Ex. 12, pp. 1-2). Petitioner's counsel also requested a continuance of the trial date. (See id., Trial Tr. 160). The trial court denied all three motions. (Id., Exs. 5-6 &Trial Tr. 161-62).
The matter then proceeded to trial before a jury, which found petitioner guilty as charged. (See id., Ex. 7). On April 23, 2010, following a sentencing hearing held on April 19, 2010, the trial court issued a Judgment Entry sentencing petitioner to an aggregate prison term of twelve (12) years, which consisted of the following consecutive terms of imprisonment: five (5) years for the illegal assembly offense; one (1) year for the aggravated drug possession offense; one (1) year on the firearm specification attached to the aggravated drug possession charge; and five (5) years for the weapons offense. (Id., Ex. 8).
With the assistance of new counsel for appeal purposes, petitioner timely appealed to the Ohio Court of Appeals, First Appellate District. (Doc. 7, Ex. 9). In the appellate brief filed by counsel on petitioner's behalf, petitioner raised six assignments of error:
On December 22, 2010, the Ohio Court of Appeals issued a Judgment Entry overrulingpetitioner's assignments of error and affirming the trial court's judgment. (Id., Ex. 12).
Petitioner next pursued a timely pro se appeal to the Ohio Supreme Court. (See id., Ex. 13). In his memorandum in support of jurisdiction, petitioner asserted the following propositions of law:
On April 6, 2011, the Ohio Supreme Court denied petitioner leave to appeal and summarily dismissed the appeal "as not involving any substantial constitutional question." (Id., Ex. 16).
On November 13, 2012, over a year and a half after the Ohio Supreme Court issued the final entry in the appeal proceedings and over eight months after petitioner commenced the instant federal habeas action, petitioner filed a pro se application with the Ohio Court of Appeals, First Appellate District, requesting that the direct appeal be reopened. (Doc. 18, Ex.18). In the application filed pursuant to Ohio R. App. P. 26(B), petitioner claimed in part that his appellate counsel was...
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