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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

JOSEPH P. CHURCHILL,

Petitioner, : Case No. 2:18-cv-296

- vs - District Judge Michael H. Watson

Magistrate Judge Michael R. Merz

Warden,

 Mansfield1 Correctional Institution,

 

:

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Joseph Churchill to obtain relief 

from his convictions in the Delaware County Court of Common Pleas. The Magistrate Judge 

reference in the case has recently been transferred to the undersigned to help balance the Magistrate 

Judge workload in the District.

Petitioner pleads one ground for relief

Ground one: Trial counsel was ineffective for failure to file a 

motion to dismiss indictment on speedy trial violation.

Supporting facts: Indicted August 7, 2014. "Warrant To Indictment 

ON INDICTMENT" issued at 1:53 p.m., August 7, 2014. The name 

and address on the warrant was, "Joseph P. Churchill, c/o Franklin 

County Jail." At that time the petitioner was incarcerated in the 

Franklin County Jail, arrested July 9, 2014; and remained there until 

June 1, 2015. However, the state was aware that defendant was 

incarcerated in the adjoining county, and failed to execute the 

1 Petitioner has reported to the Court his transfer to the Mansfield Correctional Institution. Accordingly, the Warden 

of that facility is the proper respondent in this cased and the caption is ordered amended as set forth above.
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warrant until June 22, 2015, 315 days later, petitioner was unaware 

of the pending charges/indictment.

(Amended Petition, ECF No. 10, PageID 32.)

Respondent defended on the grounds this claim was barred by Petitioner’s procedural 

default in presenting it to the Ohio courts and also that it was without substantive merit (ECF No. 

26). Chief Magistrate Judge Elizabeth Preston Deavers, to whom this case was previously referred, 

recommended dismissing it as procedurally defaulted because Petitioner had not timely appealed 

to the Supreme Court of Ohio from denial of his Ohio App. R. 26(B) application to reopen his 

direct appeal (Report and Recommendations, ECF No. 30). In doing so she rejected his claim that 

he had shown cause and prejudice to excuse the default because the computers at his place of 

incarceration were not operable during the relevant time period. Id.

Contemporaneously with his Objections (ECF No. 33), Petitioner moved (ECF No. 34) to 

expand the record to include the attached Affidavit of Wayne Perry in which he avers as follows:

I have been working for the Southeastern Correctional Institution 

School System for two and a half years and the institution Law 

Library is under our supervision.

In the latter part of May, 2017, several inmates complained about 

problems with the Law Library. One of these inmates was Joseph 

Churchill #716-040.

Mr. Churchill stated that on May 15, 2017, he went to the library to 

work on his notice of appeal, to the Ohio Supreme Court, but was 

told by Ms. Hapka, that the Law Library computers were down, but 

should be back online in a few days. Mr. Churchill then asked one

of the Legal Clerks about doing his appeal by hand. The clerk 

informed Mr. Churchill, that the library did not contain the books 

necessary to do so. Mr. Churchill stated that he then signed up to use 

the computer on May 5th and May 8th, but the system was still 

inoperable. At that time Mr. Churchill stated that he requested a 

hardcopy Notice of Appeal to the Ohio Supreme court; but was told 

that the library no longer contained hardcopy motions because all 

motions had been converted to electronic templates. Mr. Churchill 
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then asked to see the book of Ohio Supreme Court Rules of Practice, 

but was told that it was being used by inmates in segregation.

The other inmates' complaints were similar to Mr. Churchill's, and 

all were investigated.

After meeting with Ms. Hapka, it was determined that although the 

administration was aware of the motions being converted to 

computer templates, it was not sanctioned to discontinue motions in 

hardcopy. Also, Ms. Hapka did admit to telling Mr. Churchill, and 

other inmates that the computers would be back on line in a few 

days, even though she had been informed by staff that it was not 

known how long the computer would be inaccessible. Ms. Hapka's 

reasoning was that she did not want to start a panic.

The information, concerning doing a handwritten appeal, given to 

Mr. Churchill by the clerk was false. It was determined that the clerk 

was attempting to charge Mr. Churchill and other inmates for legal 

assistance. He received a conduct report and was fired.

It was also determined that not only was the book that Mr. Churchill 

requested, Ohio Supreme Court Rules of Practice, being used by 

inmates in segregation, it was the only copy that the library 

possessed. There should, at the least, been a copy for the library and

segregation. Ms. Hapka was reprimanded and later resigned.

(Exhibit F attached to ECF No. 34.) The Warden opposed expanding the record with the Perry 

Affidavit because it contained hearsay and an inadmissible legal conclusion by Perry about 

Petitioner’s ability to file (ECF No. 35). 

In response, Petitioner moved to expand the record further to include a clarifying affidavit 

of Mr. Perry in which he avers as follows:

In the latter part of May, 2017, several inmates, including Joseph 

Churchill # 716-040, complained about problems with the law 

library. I was assigned to interview all parties involved, in order to 

ascertain the validity of the complaints. I interviewed Mr. Churchill, 

as well as the other inmates, Ms. Hapka, and both of the inmate 

clerks. The interviews were done on an individual basis; I also did 

an inspection of the Law Library. As a result of both the interviews 

and the inspection of the library, I made the following 

determinations:
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1. The book of "The Supreme Court of Ohio Rules of Practice," 

was not available to inmates, in general population.

2. That the use of hardcopy motions and other legal forms had been 

discontinued, in violation of Administration Rule 59-LEG-0l.

3. The procedure of converting the hardcopies to computer 

templates was initiated at the request of Ms. Hapka's predecessor 

because the library did not, and still does not, provide 

typewriters.

(Exhibit G attached to ECF No. 38.)

In response to Judge Deavers’ Order (ECF No. 40), the Respondent filed a Supplemental 

Return of Writ2 with an attached Affidavit from Warden Cook regarding computer and library 

access (ECF No. 42); the filing includes a request that if the Court allows expansion of the record 

to include the two Perry affidavits, it also allow expansion to include Warden Cook’s affidavit. Id.

at PageID 489. Thereafter Judge Deavers granted Petitioner’s motions to expand and the 

undersigned hereby grants the Warden’s motion to add Warden Cook’s affidavit.

Analysis

Procedural Default by Failure to Appeal to the Supreme Court of Ohio from Denial of the 

Application to Reopen

Petitioner’s trial attorney did not make a claim that Petitioner’s right to a speedy trial had 

been violated. Petitioner’s new appellate attorney did not raise as an assignment of error on direct 

appeal that it was ineffective assistance of trial counsel to fail to raise that issue. In his Application 

to Reopen the Appeal, Petitioner alleged that that failure was ineffective assistance of appellate 

2 Docketed with this title although the document itself contains no title in the caption.
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counsel. The Fifth District Court of Appeals rejected that claim and Petitioner did not timely 

appeal from that determination to the Supreme Court of Ohio. Such an appeal is a required step 

in the exhaustion of state court remedies and failure to take that step ordinarily results in a 

procedural bar to habeas corpus. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). The fortyfive day time limit on appeal to Ohio Supreme Court prescribed by S. Ct. Prac. R. 7.01(A)(1) is an 

adequate and independent state ground of decision. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 

2004)(citations omitted). 

A procedural default can be excused by a showing of cause and prejudice. Wainwright v. 

Sykes, 433 U.S. 72 (1977). Lack of counsel at the stage of appeal to the Ohio Supreme Court, lack 

of a trial transcript, unfamiliarity with the English language, and short time for legal research in 

prison have been held not to establish cause to excuse this default. Bonilla, citing Murray v. 

Carrier, 477 U.S. 478, 494-95 (1986). 

Judge Deavers recommended dismissing this case on the basis of Churchill’s failure to 

timely appeal to the Supreme Court of Ohio from denial of his 26(B) Application (ECF No. 30). 

Most of the filings in the case since she filed that Report have revolved around that 

recommendation.

Whether or not a habeas petitioner has shown excusing cause and prejudice is a question 

of federal law on which the habeas court is authorized to take evidence despite the ruling in Cullen 

v. Pinholster, 563 U.S. 170 (2011). It is therefore not inappropriate to consider the materials that 

have been added to the record in regard to Petitioner’s failure to timely appeal. Although 

Respondent asserts the Perry Affidavits contain hearsay, they appear to be admissible under Fed. 

R. Evid. 801(d)(2)(d) as “made by [a] party’s agent or employee on a matter within the scope of 

that relationship and while it existed... .” Ms. Hapta’s Affidavit is admissible on the same basis. 
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On the other hand Warden Cook’s Affidavit is not admissible on that basis. Furthermore, his 

averments are largely conclusory and do not report observations from personal experience. He 

does not disclaim Perry’s averment that he was assigned to investigate inmate complaints in May 

2017.

To resolve the conflicts in the evidence, the Court would be required to hold a hearing to 

assess the credibility of the affiants after cross-examination. To do so would require travel of 

witnesses, including transport of Petitioner, and appointment of counsel for purposes of the 

hearing, consuming scarce judicial resources on a fact-intensive question which is of no 

importance beyond this case. In this time of national health crisis over the COVID-19 pandemic, 

judicial resources to conduct such a hearing are much scarcer than they would be in normal times. 

The three courthouses in the District are closed and, although conducting some hearings by 

videoconference has been authorized, priority for use of the software and bandwidth must be given 

to original criminal proceedings, as compared with collateral post-judgment cases such as habeas 

corpus.

Given these exigent circumstances, the undersigned has determined to recommend that this 

particular asserted procedural default (failure to appeal to the Ohio Supreme Court from denial of 

the 26(B) Application) be put to one side and the case be decided on the other issues presented. 

To that end, Judge Deavers’ Report (ECF No. 30) is found to be moot and the Clerk is directed to 

remove it as a pending motion on the docket.
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Other Procedural Bar: Forfeiture3 by Guilty Plea

On August 27, 2015, Petitioner pleaded guilty to three counts of the Indictment 

(Withdrawal of Former Pleas, State Court Record, ECF No. 11, Ex. 10). These three pleas were 

pursuant to a plea agreement under which the remaining counts of the Indictment were dismissed. 

Respondent argues Petitioner’s guilty pleas waived any speedy trial claim he may have had

(Supplemental Return, ECF No. 42, PageID 490.) Petitioner responds that the State raised this 

defense on direct appeal, but the Fifth District decided the case on the issues he raised (Traverse, 

ECF No. 48, PageID 513.)

The Magistrate Judge disagrees with this assertion. On direct appeal Churchill did not raise 

a speedy trial claim at all, nor did the State assert he had waived a speedy trial claim by pleading 

guilty. Instead, he claimed that the trial court had applied the wrong period of post-release control 

(three years instead of up to three years). The State argued that he had also waived his right to 

appeal the morning of the plea taking. Churchill asserts in his Second Assignment of Error that 

any waiver of right to appeal was invalid for lack of consideration. The Fifth District decided that 

indeed the term of post-release control was in error and because a judgment with a void postrelease control term was void, the right to appeal it could not be waived. State v. Churchill, 2017-

Ohio-581 (Ohio App. 5th Dist. Feb. 2, 2017). Thus the Fifth District decided nothing about the 

speedy trial claim on direct appeal. Nor did it decide whether Churchill had validly waived his 

right to appeal other issues.

A valid, unconditional guilty or no contest plea waives all “constitutional violations

3 This Report uses the term “forfeit” as opposed to “waiver.” Wood v. Milyard, 566 U.S. 463 (2012): N. 4: “We note 

here the distinction between defenses that are ‘waived’ and those that are ‘forfeited.’ A waived claim or defense is 

one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to 

preserve. Kontrick v. Ryan, 540 U.S. 443, 458, n. 13 (2004); United States v. Olano, 507 U.S. 725, 733 (1993). 
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occurring prior to a plea of guilty once the defendant enters his plea,” including a challenge to the

evidence supporting a conviction and any pre-plea constitutional violations, unless expressly

preserved in a plea agreement or at a plea hearing. United States v. Lalonde, 509 F.3d 750, 757 

(6th Cir. 2007); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973). A guilty or no contest 

plea renders irrelevant those constitutional violations not logically inconsistent with the valid 

establishment of factual guilt. Menna v. New York, 423 U.S. 61 (1975). “[A] voluntary and 

unconditional guilty plea ‘bars any subsequent non-jurisdictional attack on the conviction.’” 

United States v. Corp, 668 F.3d 379, 384 (6th Cir. 2012), citing United States v. Martin, 526 F.3d 

926, 932 (2008), citing United States v. Pickett, 941 F.2d 411, 416 (6th Cir. 1991). 

A guilty plea constitutes a break in the chain of events leading up to it. Tollett v. 

Henderson, 411 U.S. 258 (1973). Federal habeas corpus review of claims raised by a petitioner 

who has entered a guilty plea is limited to “the nature of the advice and the voluntariness of the 

plea, not the existence as such of an antecedent constitutional infirmity.” Tollett, 411 U.S. at 266. 

A guilty plea bars a defendant from raising in federal habeas corpus such claims as the defendant’s 

right to trial and the right to test the state’s case against him. McMann v. Richardson, 397 U.S. 

759 (1970); McCarthy v. United States, 394 U.S. 459, 466 (1969). 

The Ohio Supreme Court has reached the same conclusion as to speedy trial claims. 

Montpelier v. Greeno 25 Ohio St. 3d 170 (1986). So has the Sixth Circuit. Howard v. White, 76 

Fed. App’x. 52, 53 (6th Cir. 2003), (citing Tollett, 411 U.S. at 267, Tiemens v. United States, 724 

F.2d 928, 929 (11th Cir. 1984), Kowalak v. United States, 645 F.2d 534, 537 (6th Cir. 1981), North 

Carolina v. Alford, 400 U.S. 25, 35-36 (1970), United States v. Freed, 688 F.2d 24, 25 (6th Cir. 

1982), and United States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984)).

Petitioner attempts to avoid the impact of this law by claiming that his guilty plea was the 
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result of erroneous advice from counsel (Traverse, ECF No. 48, PageID 513.) He attempted to 

have the guilty plea set aside by filing a motion to withdraw it in the trial court (Motion to 

Withdraw, State Court Record, ECF No. 11, Ex. 27). He argued he had received ineffective 

assistance of trial counsel in that his attorney, in advising him to accept the offered plea bargain, 

had given him erroneous advice about the speedy trial issue and about the maximum sentence he 

faced if he lost at trial. Id. at PageID 152. As it turns out, the attorney’s advice about the speedy 

trial issue was correct (See Merits discussion infra). Churchill asserts the attorney told him he 

faced a six-year sentence if he lost at trial and Churchill’s later research showed he only faced four 

years if convicted, as opposed to the three years he received as a result of the plea agreement.

Churchill he did not disclose that research in the Motion to Withdraw and has not disclosed here.

On July 24, 2017, the trial court denied the Motion to Withdraw (Judgment Entry, State 

Court Record, ECF No. 11, Ex. 29). Instead of appealing, Churchill moved, after the time to appeal 

had expired, to vacate the Motion to Withdraw. Id. at Ex. 30. Then he filed a new Motion to 

Withdraw on September 5, 2017. Id. at Ex. 32. Judge Krueger denied the Motion to Withdraw, 

incorporating the reasons he had previously given. Id. at Ex. 36. Importantly, he added that “the 

law of the case” applies. Id. at PageID 181.

This time Churchill did appeal, but the Fifth District affirmed. State v. Churchill, 2018-

Ohio-1031 (Ohio App. 5th Dist. Mar. 19, 2018). It held Judge Krueger was correct to dismiss the 

second motion to withdraw on the basis of law of the case or res judicata:

[*P15] This court has addressed application of res judicata to 

multiple filings of motions to withdraw a guilty plea:

Res judicata bars the assertion of claims against a valid, 

final judgment of conviction that have been raised or could 

have been raised on appeal. State v. Perry (1967), 10 Ohio 

St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine 

of the syllabus.
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Numerous courts have applied the doctrine of res judicata 

to successive motions to withdraw a guilty plea. (Citations 

omitted).

***

As succinctly stated in State v. Kent, Jackson App. No. 

02CA21, 2003-Ohio-6156: 'Res judicata applies to bar 

raising piecemeal claims in successive post-conviction 

relief petitions or motions to withdraw a guilty plea that 

could have been raised, but were not, in the first post 

conviction relief petition or motion to withdraw a guilty 

plea.'" Sneed at ¶ 17.

[*P16] State v. Green, 5th Dist. Stark No. 2011 CA 00127, 2011-

Ohio-5611, ¶¶ 24-25.

[*P17] The Sixth District Court of Appeals came to the same 

conclusion in State v. Kelm, 6th Dist. Wood No. WD-11-024, 2013-

Ohio-202, ¶ 10 where it held "Ohio courts have recognized that res 

judicata bars successive Crim.R. 32.1 motions to withdraw guilty 

pleas, where the grounds to withdraw the plea were raised or could 

have been raised in the initial motion to withdraw."(Citations 

omitted).

Churchill, 2018-Ohio-1031. As noted in the Merits analysis infra, the Sixth Circuit has repeatedly 

held that decision on the basis of the Perry res judicata doctrine is an adequate and independent 

procedural basis for a state court decision. Because Churchill did not appeal from the denial of his 

first Motion to Vacate, he is barred by res judicata from claiming here that his guilty plea was not 

knowing, intelligent, and voluntary. 

By entering an unconditional guilty plea without raising a speedy trial claim, Petitioner 

forfeited that claim. Because the claim was forfeited by the guilty pleas, it was not ineffective 

assistance of trial counsel to fail to raise it in the trial court. Petitioner’s Ground for Relief is 

therefore without merit and should be dismissed on that basis.
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The Merits of Petitioner’s Speedy Trial Claim

Whether or not it constituted ineffective assistance of trial counsel to fail to raise a speedy 

trial issue was a claim that could have been adjudicated on the record before the Fifth District on 

direct appeal. That is to say, the record contained all the facts necessary to prove the claim: when 

the indictment was filed, when the trial was to have been held, and whether trial counsel raised the 

issue or not. 

An issue which can be adjudicated on the direct appeal record must be raised there or be 

barred from later adjudication by the Ohio criminal res judicata doctrine. Ohio’s doctrine of res 

judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St. 2d 175 (1967), is an adequate 

and independent state ground of decision. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); 

Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); 

Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 

1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001).

In his 26(B) Application, Churchill asserted that failure to include an ineffective assistance 

of trial counsel/speedy trial assignment of error constituted ineffective assistance of appellate 

counsel. Although it could properly have done so, the Fifth District did not decide the 26(B) 

Application on the basis of res judicata. Instead it went to the merits of the speedy trial claim and 

held there was no speedy trial violation. State v. Churchill, Delaware App. No. 15CAA10084, 

Judgment Entry, Apr. 3, 2017)(unreported; copy at State Court Record, ECF No. 11, Ex. 26). In 

doing so it rejected Churchill’s statutory speedy trial claim on the basis of State v. Hairston, 101 

Ohio St. 3d 308 (2004), and its own prior decision in State v. Milner, 2005-Ohio-3467 (Ohio App. 

5th Dist. 2005).
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The Fifth District’s decision was based on its interpretation of the relationship between Ohio 

Revised Code § 2945.71 and Ohio Revised Code § 2941.401. That is obviously a question of Ohio 

law and this Court is bound by the Fifth District’s decision on that point. Whereas a federal court 

on habeas review decides federal law questions de novo..., the federal reviewing court is generally 

bound by state court interpretations of state law. Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), 

quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005)(“We have repeatedly held that a state court’s 

interpretation of state law, including one announced on direct appeal of the challenged conviction, 

binds a federal court sitting in habeas corpus.”), Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 

2005); Vroman v. Brigano, 346 F.3d 598 (6th Cir. 2003); Caldwell v. Russell, 181 F.3d 731, 735-

36 (6th Cir. 1999); Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986).

In addition to his claim under Ohio law, Churchill also quoted the Speedy Trial Clause of the 

Sixth Amendment (26(B) Application, State Court Record, ECF No. 11, Ex. 23, PageID 114). He 

also cited leading United States Supreme Court precedent interpreting the Speedy Trial Clause, 

Barker v. Wingo, 407 U.S. 514, 530-32 (1972), and Doggett v. United States, 505 U.S. 647 (1992).

The Fifth District’s decision did not expressly address the constitutional speedy trial claim, 

but because Churchill raised that claim, the Fifth District’s decision must be regarded as having 

decided it. However, controlling Supreme Court precedent requires deference to the state court 

decision under 28 U.S.C. § 2254(d)(1) where a federal issue has been raised but the state court has

denied the claim with a discussion solely of state law. Moreland v. Bradshaw, 699 F.3d 908, 931 

(6th Cir. 2012), citing Childers v. Floyd, 642 F.3d 953, 968-69 (11th Cir. 2011). 

When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision is 

contrary to or an objectively unreasonable application of clearly established precedent of the 
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United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S. 

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). 

Churchill has not shown anyway in which the Fifth District’s decision of his constitutional 

speedy trial claim was an unreasonable application of Barker or Doggett. He was imprisoned 

during the delay on other convictions, so he did not suffer unnecessary pre-trial incarceration. He 

has not claimed that witnesses who could have offered exculpatory testimony became unavailable. 

Indeed, his DNA was found in blood and a pry bar at the location of the second break-in and he 

was pursued from the scene by police, strong evidence of guilt.

In sum, the Fifth District’s decision of Churchill’s state law speedy trial claim is binding 

on this Court and its decision of his constitutional speedy trial claim is not an unreasonable 

application of Barker and Doggett and is therefore entitled to deference. Because Churchill had 

no viable speedy trial claim under either Ohio or federal constitutional law, it was not ineffective 

assistance of trial counsel for his trial attorney to fail to make such a claim. Petitioner’s Ground 

for Relief should therefore be dismissed on the merits.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be 

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it 

is also recommended that Petitioner be denied a certificate of appealability and that the Court 

certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be 
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permitted to proceed in forma pauperis. 

April 7, 2020.

s/ Michael R. Merz

 United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Because this document is being served by mail, three days are added under 

Fed.R.Civ.P. 6. Such objections shall specify the portions of the Report objected to and shall be 

accompanied by a memorandum of law in support of the objections. A party may respond to 

another party’s objections within fourteen days after being served with a copy thereof. Failure to 

make objections in accordance with this procedure may forfeit rights on appeal.