Graham v. Warden, Pickaway Corr. Inst.

• Decision Date: 23 April 2021
• Docket Number: CASE NO. 2:20-CV-4847
• Parties: WILLIAM E. GRAHAM, Petitioner, v. WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

WILLIAM E. GRAHAM, Petitioner, v. WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:20-CV-4847

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

April 23, 2021

CHIEF JUDGE ALGENON L. MARBLEY

Magistrate Judge Elizabeth P. Deavers

ORDER and REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition and Memorandum in Support, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that this action be DISMISSED.

Petitioner's Motion to Compel the Respondent to submit the exhibits attached to the Petitioner's motion (ECF No. 5) is DENIED.

I. BACKGROUND

Petitioner challenges his convictions pursuant to his no contest plea in the Franklin County Court of Common Pleas to 18 counts of breaking and entering, one count of attempted breaking and entering, and two counts of tampering with evidence. The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶ 2} Mr. Graham was arrested on January 19, 2017 in connection with events alleged to have occurred at two commercial establishments on that very date.

In an indictment filed on January 27, 2017, the state charged Mr. Graham in Franklin C.P. case No. 17CR-528 with two counts of breaking and entering and one count of possessing criminal tools. He remained incarcerated pending resolution of the charges.

{¶ 3} On November 14, 2017, the state issued a second indictment. Franklin C.P. case No. 17CR-6193 realleged the three crimes charged in the earlier case and added one additional criminal tools count from those events, but added another 40 counts relating to other episodes said to have occurred at various different places at earlier dates ranging from September 29, 2016 to January 14, 2017. Mr. Graham, already incarcerated on the first case, was subject to a warrant served in that second case on December 18, 2017. (Dec. 19, 2017 Entry of Warrant Served.) Having been overtaken by the second indictment, the initial case, 17CR-528, was nolled on January 23, 2018.

{¶ 4} On July 23, 2018, Mr. Graham pleaded no contest to and was found guilty of 21 of the counts in the newer case. Those counts included the two breaking and entering charges duplicated from the earlier case (now designated as counts 41 and 43). A "criminal tools" charge from that earlier case (now count 42) and an additional such count (now count 44), along with 21 of the other counts, were dismissed for non-prosecution as part of the plea deal. (July 23, 2018 Entry of No Contest Plea; July 25, 2018 Jgmt. Entry.)

{¶ 5} The Common Pleas Court adopted the sentence recommended by the prosecution and the defendant.

It sentenced Mr. Graham to a total of five years in prison: 12 months on each of the 18 breaking and entering counts, run concurrently to each other but consecutively to concurrent 24-month sentences on the two tampering counts. The court credited Mr. Graham with the 550 days that he already had spent in jail in connection with the two cases. (July 25, 2018 Jgmt. Entry.)

Procedural history—time awaiting resolution

17CR-528

{¶ 6} The record reflects that after his January 19, 2017 arrest, Mr. Graham through counsel filed a demand for discovery on February 15, 2017. The state fulfilled that discovery request 22 days later, on March 6, 2017.

{¶ 7} Various continuance entries followed. The parties requested a continuance, as signed by both lawyers and the defendant, through an entry filed on March 22 referencing a need for further negotiation and discovery and extending to a new trial date (reset from March 20) of May 17, 2017. On May 18, 2017, the court filed another continuance entry, this one on the motion of the "Parties" and signed by both counsel but "refused" by defendant Mr. Graham; this entry continued the case for trial on July 6, 2017, and noted "additional negotiation," that the state wasawaiting "additional information" from detectives, and that negotiations also were ongoing with officials in Delaware County regarding a "course of conduct."

{¶ 8} A July 6, 2017 entry, again on motion of the "Parties" and signed by both counsel, but with defendant Graham "unavailable," continued the matter for trial on August 30, 2017 while noting as cause that the defendant had not been transported to the court for the scheduled trial. On September 11, 2017, the court filed an entry on motion of the "Parties" resetting the trial date from August 30 to November 1, 2017 and noting as cause that the "State recently received information on several additional incidents involving defendant," and that time was needed to review that information and to "make charging decision"; both counsel signed this entry, which defendant "refused."

{¶ 9} On November 1, 2017, the court continued the matter for trial on February 5, 2018, noting on a "criminal case processing sheet" that the judge had discussed defendant's request for new counsel, and also referencing a prison sentence from Licking County and reciting that a status conference had been set for January 17, 2018 in advance of the February trial date. Lagging that entry was an entry filed November 6, 2017, signed by both counsel but "refused" by defendant, reflecting that the "Parties" had moved to continue the trial date from November 1, 2017 to February 5, 2018 due to "additional discovery, [and] indictment forthcoming."

{¶ 10} During this period between Mr. Graham's January 19, 2017 arrest and the termination of case 17CR-528 in the aftermath of his re-indictment under case 17CR-6193, Mr. Graham, although represented by counsel, submitted certain materials on his own accord. His June 23, 2017 pro se "Motion to Dismiss Indictment" complained of unlawful arrest and questioning, and noted that he and his lawyer did not "see eye to eye" on those issues. (June 23, 2017 Mot. to Dismiss at 2.) Then in a letter to the court filed October 11, 2017, Mr. Graham expressed a number of concerns relating to his address and bail, the circumstances surrounding his arrest and evidence against him, perceived deficient performance by his lawyer, and claimed violation of speedy trial rights in combination with what he viewed as undue delay in prosecuting the "unfiled charges" in what would become the new case. (Oct. 11, 2017 Letter at 2.)

17CR-6193

{¶ 11} After the new indictment with its 41 additional charges was filed on November 14, 2017, Mr. Graham through his then-lawyer filed his demand for discovery in case 17CR-6193 on January 4, 2018. The state responded to that demand the next week, on January 11, 2018.

{¶ 12} On February 5, 2018, the date that had been set for trial in the first case that then was nolled in January 2018, the Common Pleas Court approved substitution of private counsel for Mr. Graham's previously appointed counsel. (Feb. 5, 2018 Substitution of Counsel Entry.) A related entry filed February 6, 2018 continuedthe matter on the motion of "Defendant" until a trial date of February 13, 2018 to allow for appointment of the new counsel and provide "time to prepare for trial [and] review all discovery."

{¶ 13} Other continuances followed at the mutual request of the "Parties" and signed by Mr. Graham as well as by both counsel. One such continuance filed February 16, 2018 rescheduled trial for March 28, 2018 to permit more discovery (with the defense making a further discovery request on February 26th, to which the state responded on March 5th and 6th). By entry filed March 30, 2018, the trial date then was moved to April 26 to allow for further "defense investigation." And by entry of May 7, the matter then was reset on the same basis to July 23, 2018, the date on which Mr. Graham wound up making his no contest plea.

{¶ 14} Again during this period, Mr. Graham made certain filings himself even while represented by counsel. He submitted a "Motion to Dismiss Indictment" on speedy trial grounds, dated May 22 and filed May 30, 2018. He supplemented that with a hearing request dated June 27 and filed July 2, 2018. The trial court referenced those filings at a July 11, 2018 status conference, saying that Mr. Graham's motions on his own behalf would not be given effect because he was represented by counsel, and that "even if we disregard the hybrid representation issue," the court was denying the motion to dismiss. (July 11, 2018 Tr. at 6-7.)

{¶ 15} Mr. Graham's lawyer adopted and orally renewed the speedy trial motion on the day Mr. Graham entered his no contest plea, July 23, 2018. (July 23, 2018 Tr. at 5.) The trial judge said that he would deny the motion because the state had "add[ed] a supplemental superseding indictment in a timely fashion consistent with Mr. Graham's speedy trial rights." Id. at 6. The court then proceeded to accept the plea, find Mr. Graham guilty as specified, and impose the prison sentence. (July 23, 2018 Entry of No Contest Plea; July 25, 2018 Jgmt. Entry.)

Speedy trial issues

{¶ 16} Making both statutory and constitutional speedy trial arguments, Mr. Graham's one assignment of error maintains:

THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-APPELLANT'S MOTION TO DISMISS THE INDICTMENT.

State v. Graham, 10th Dist. No. 18AP-636, 2019 WL 2237030, at *1-3 (Ohio Ct. App. May 23, 2019). On May 23, 2019, the appellate court affirmed Petitioner's convictions on counts One, Three, Five, Six, Eight, Ten, Twelve, Fifteen, Eighteen, Twenty, Twenty-Two, Twenty-Four, Twenty-Six, Twenty-Eight, Twenty-Nine, Thirty-One, Thirty-Three, Thirty-Six, and Thirty-Nine;but reversed his convictions on counts Forty-One and Forty-Three because prosecution on counts 41 through 44 was barred by operation of Ohio's speedy trial statutes, and remanded the case to the trial court for re-sentencing. Id. at 12. On October 16, 2019, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Graham, 157...