Walker v. Warden, Lebanon Corr. Inst., Case No. 1:13-cv-159

• Decision Date: 07 April 2014
• Docket Number: Case No. 1:13-cv-159
• Parties: GARY D. WALKER, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

GARY D. WALKER, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.

Case No. 1:13-cv-159

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

April 7, 2014

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Gary D. Walker seeking relief from his conviction in the Richland County Common Pleas Court and the resulting sentence of imprisonment in Respondent's custody. Although the conviction occurred in a county which is in the Northern District of Ohio, Petitioner is confined in the Southern District. Venue is therefore appropriate in this District under 28 U.S.C. § 2241(d).

Walker pleads the following grounds for relief:

Ground One: Petitioner, an indigent, rights to Due Process and Equal Protection under the Fourteenth Amendment to the United States Constitution was violated when, Ohio Fifth District Court of Appeals completely denied/deprived petitioner of appellate counsel on petitioner's first direct appeal of right from his criminal conviction in violation of Douglas y, California, 372 U.S. 353, 9 L.Ed. 2d 811, 83 S.Ct. 814, in Ohio Fifth District Court of Appeals Case No. 2009-CA-0088.

Supporting Facts: Petitioner, an indigent, filed a timely pro se notice of appeal from his criminal conviction and sentence. The Ohio Fifth District Court of Appeals never appointed appellate counsel to prosecute petitioner's appeal, and petitioner acting pro se, improvidently dismissed his only direct appeal as of rightbecause petitioner could not file a timely pro se brief and petitioner was under the false impression claims could be raised in the trial court without an appeal. It must be noted, petitioner did not waive counsel on direct appeal. Petitioner, is being held in violation of his rights, privileges and immunities guaranteed to him by the Constitution and laws of the United States, as more fully described in the memorandum in support filed herewith and incorporated herein by reference.

GROUND TWO: Petitioner, an indigent, was denied his right to the Si[x]th Amendment to the United States Constitution when Ohio's Fifth District Court of Appeals completely deprived petitioner of appellate counsel on petitioner's first direct appeal of right from his criminal conviction in violation of Evitts v. Lucey, 469 U.S. 387, 83 L.Ed. 2d 821, 105 S.Ct. 830 (1985), in Ohio Fifth District Court of Appeals Case No. 2009-CA-0088.

Supporting facts: Petitioner, an indigent, filed a timely pro se notice of appeal from his criminal conviction and sentence. The Ohio Fifth District Court of Appeals never appointed appellate counsel to prosecute petitioner's appeal, and petitioner acting pro se, improvidently dismissed his only direct appeal as of right because petitioner could not file a timely pro se brief and petitioner was under the false impression claims could be raised in the trial court without an appeal. It must be noted, petitioner did not waive counsel on direct appeal. Petitioner, is being held in violation of his rights, privileges and immunities guaranteed to him by the Constitution and laws of the United States, as more fully described in the memorandum in support filed herewith and incorporated herein by reference.

GROUND THREE: Petitioner was denied due process and equal protection of the law, when the Ohio Fifth District Court of Appeals did not inform him of his appellate rights and failed to appoint appellate counsel and his subsequent application for leave to file a delayed appeal was denied, in violation of the Fourteenth Amendment to the United States, Constitution in Ohio Fifth District Court of Appeals Case No. 2009-CA-0088.

Supporting facts: Petitioner, an indigent, filed a timely pro se notice of appeal from his criminal conviction and sentence. The Ohio Fifth District Court of Appeals never appointed appellate counsel to prosecute petitioner's appeal, and petitioner acting pro se, improvidently dismissed his only direct appeal. Thereafter, the Ohio Fifth District Court of appeals did not inform petitioner of his right to appeal to the Ohio Supreme Court. Petitioner was withoutappellate counsel and therefore was deprived of appellate counsel's advice and instructions on pursuing an appeal with the Ohio Supreme Court. Petitioner sought a delayed appeal with the Ohio Supreme Court which detailed this issue and the Ohio Supreme Court subsequently dismissed the motion for delayed appeal. Petitioner is being held in violation of his rights, privileges and immunities guaranteed to him by the Constitution and laws of the United States, as more fully described in the memorandum in support filed herewith and incorporated herein by reference.

GROUND FOUR: Petitioner, an indigent, was denied his right to the Due Process and Equal Protection under the Fourteenth Amendment and his rights to the Si[x]th Amendment to the United States Constitution when Ohio's Fifth District Court of Appeals completely deprived petitioner of appellate counsel on petitioner's first direct appeal of right from his criminal conviction in violation of Evitts v. Lucey, 469 U.S. 387,83 L.Ed. 2d 821, 105 S.Ct. 830 (1985) and Douglas v. California, 372 U.S. 353, 9 L.Ed. 2D 811, 83 S.Ct. 814, in Ohio Fifth District Court of Appeals, Case No. 2010-CA-116.

Supporting facts: Petitioner, an indigent, request [sic] counsel on appeal. The Ohio Fifth District Court of Appeals denied petitioner's request stating the appeal had been fully briefed and it appeared petitioner only wanted counsel to argue oral argument. Petitioner, is being held in violation of his rights, privileges and immunities guaranteed to him by the Constitution and laws of the United States, as more fully described in the memorandum in support filed herewith and incorporated herein by reference.

(Petition, Doc. No. 3.)

Procedural History

Petitioner Gary D. Walker was indicted on multiple criminal counts arising from a scheme to generate fraudulent payroll checks at Wal-Mart. Walker was appointed counsel and a jury trial commenced, but was terminated by a negotiated guilty plea. Walker was then sentenced to an aggregate term of twelve years imprisonment. Walker filed a pro se notice ofappeal to the Fifth District Court of Appeals on July 1, 2009 (Return of Writ, Doc. No. 7-1, PageID 175). It contains no request for appointment of counsel for the appeal. The appeal was assigned case No. 09-CA-88. On September 4, 2009, Walker filed a Motion to Dismiss Appeal which reads in its entirety:

Gary Walker, Appellant, moves this Court for an order dismissing the appeal currently pending before this Court. Mr. Walker was unable to meet the filing deadline as mandated and furthermore has not exhausted his vital claims in the common pleas court to date. Therefore it would be premature to file the instant appeal. [R]elief is accordingly sought.

Id. at PageID 176. The court of appeals granted that Motion on September 24, 2009. Id. at PageID 178. Four days later Walker moved for sentencing in the trial court, arguing that the prior sentence was void for improper imposition of post-release control. Id. at PageID 180. The State agreed the sentence was voidable and that Walker should be re-sentenced. Id. at PageID 186-93.

Judge DeWeese conducted a re-sentencing hearing on December 30, 2009. The next day Walker filed a motion to withdraw his guilty plea. Id. at PageID 203, et seq. Judge DeWeese overruled that motion on March 24, 2010 (Judgment Entry, Return of Writ, Doc. No. 7-1, PageID 239). On July 28, 2010, Judge DeWeese filed Findings and a Journal Entry on the December 20, 2009, hearing, overruling the request for re-sentencing (Return of Writ, Doc. No. 7-1, PageID 250-53). Not satisfied with this result, Walker filed a new Motion for Re-Sentencing to Correct Void Sentence on August 27, 2010. Id. at PageID 256. On September 7, 2010, Judge DeWeese entered an Amended Sentencing Entry. Id. at PageID 278.

On September 28, 2010, Walker took an appeal from that entry and it was assigned Case No. 10-CA-116 in the Fifth District Court of Appeals. Id. at 281. The Notice recites that Walkeris proceeding pro se and does not request appointment of counsel. On January 21, 2011, Walker filed an Appellant's Revised/Supplemented Brief in which he styles himself counsel in propria persona. Id. at PageID 283 et seq. He styled the proceeding as his direct appeal as of right from the September 7, 2010, judgment. Id. at PageID 294. The Fifth District decided the appeal as follows:

[*P21] In his present Assignments of Error, appellant essentially raises three claims regarding (1) acceptance of his guilty pleas, (2) ineffective assistance of trial counsel, and (3) aspects of his sentence. However, in light of the procedural history of this case and the spate of appellant's motions filed after his 2009 conviction and sentences, we find none of these claims are properly before this Court.

[*P22] We first note that appellant, having voluntarily dismissed his direct appeal in 2009, chose to challenge his guilty pleas by filing a motion under Crim.R. 32.1 and State v. Sarkozy, 117 Ohio St.3d 86, 881 N.E.2d 1224, 2008 Ohio 509. Said motion was separately denied by judgment entry on March 24, 2010. At that point, the denial of said post-sentence Crim.R. 32.1 motion to withdraw plea constituted a final appealable order. See, e.g., State v. Damron, Scioto App.No. 10CA3375, 2011 Ohio 165, ¶ 7 (additional citations omitted). As noted in our recitation of facts, appellant did not appeal therefrom. Likewise, the trial court had dealt with appellant's post-release control claims via a hearing (December 30, 2009) and judgment entry (July 28, 2010), from which appellant again did not appeal. Furthermore, the amended sentencing entry of September 7, 2010, from which appellant has appealed herein, does not open the door to a new round of direct appeal challenges to his 2009 convictions and sentences.

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