Bari v. Kelly
Filing
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Memorandum Opinion and Order Adopting 15 Report and Recommendation, Order of Case Dismissal. Judge Christopher A. Boyko on 8/18/2011. (R,D)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ABDUL BARI,
Petitioner,
Vs.
JESSIE WILLIAMS, Warden,
Respondent.
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CASE NO.1:09CV2880
JUDGE CHRISTOPHER A. BOYKO
MEMORANDUM OF OPINION
CHRISTOPHER A. BOYKO, J:
This matter comes before the Court on Petitioner Abdul Bari’s Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF #1). For
the following reasons, the Court accepts and adopts the Magistrate Judge’s Report and
Recommendation, and denies Petitioner’s Petition.
FACTS
The following is a factual synopsis of Petitioner’s claims. The Magistrate Judge’s
Report and Recommendation, adopted and incorporated, provides a more complete and
detailed discussion of the facts.
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On January 22, 2007, Petitioner was charged with two counts of Aggravated
Robbery, one count of Tampering with Evidence, and one count of Possessing Criminal
Tools. On March 28, 2007, Petitioner was re-indicted on identical charges. The first
indictment was later dismissed. On May 22, 2007, represented by counsel, Petitioner
entered a guilty plea to both counts of Aggravated Robbery, and the remaining counts were
nolled. Petitioner was referred to the Probation Department for a Presentence Investigation
Report and to the Court Psychiatric Clinic for a psychological report. On June 27, 2007,
Petitioner was sentenced to consecutive terms of seven years on each count of Aggravated
Robbery together with five years of Post-Release Control.
On July 24, 2007, Petitioner filed a Motion to Reconsider the Sentence. On October
4, 2007, the Eighth District Court of Appeals allowed a delayed Appeal. On February 8,
2008, Petitioner filed his brief. On July 24, 2008, the Court of Appeals affirmed Petitioner’s
conviction. On August 24, 2008, Petitioner filed a timely Notice of Appeal with the Ohio
Supreme Court. On December 31, 2008, the Appeal was dismissed as not involving any
substantial constitutional question.
In the interim, on January 8, 2008, while Petitioner’s direct appeal was pending, he
filed a Motion for Judicial Release in the trial court. This Motion was unopposed by the
State. On May 1, 2008, the Court granted the Motion in part, suspending the consecutive
seven-year sentence on Count Two, but ordering Petitioner to serve the remainder of the
sentence on Count One. On June 16, 2008, the state filed a Motion to Vacate the Order
of Judicial Release. The Court held another hearing on November 3, 2008, at which the
parties agreed to a sentence of five years on Count One, consecutive to five years on
Count Two.
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On December 11, 2009, Petitioner filed a Petition for Writ of Habeas Corpus and
asserted the following grounds for relief:
GROUND ONE: Conviction was obtained by plea unlawfully induced – trial
court was inappropriately involved in plea process when it took plea through
specific representations, including leniency and concurrent time, and then failed
to honor the same, and further refused to allow petitioner opportunity to withdraw
plea in light of said failure to so honor.
GROUND TWO: Conviction was obtained by plea unlawfully induced – State
violated terms of plea when it failed to stand mute at sentencing.
GROUND THREE: Sentence imposed was inconsistent with sentences imposed
upon similarly situated persons for similar offenses.
GROUND FOUR: Due process was violated when Petitioner’s pre-sentence
report (“PSI”) and psych evaluation report were only provided to trial counsel the
morning of the sentencing hearing, particularly in light of said PSI containing
materially false statements, to the effect that “subject may be involved in or have
knowledge of acts of terrorism due to his name appearing on a terrorist watchlist.”
GROUND FIVE: Trial court improperly considered factors relating to
petitioner’s religion in imposition of sentence, and relied on matters not in
material fact when running terms consecutively.
GROUND SIX: Petitioner’s conviction occurred in violation of his right to a fast
and speedy trial.
GROUND SEVEN: Petitioner’s conviction was obtained unlawfully due to
state’s refusal of discovery to Petitioner, favorable or otherwise.
GROUND EIGHT: Petitioner was subjected to double jeopardy when sentenced
separately for two crimes of similar import committed with a single animus.
GROUND NINE: Guilty plea was not free and knowingly tendered when trial
court failed to fully inform Petitioner of all potential consequences of so pleading.
GROUND TEN: Conviction was the product of ineffective assistance of counsel.
On May 11, 2010, this Court referred Petitioner’s Petition to the Magistrate Judge
for a Report and Recommendation.
The Magistrate Judge issued his Report and
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Recommendation on April 11, 2011. On August 11, 2011, Petitioner filed his Objections
to the Magistrate’s Report and Recommendation.
STANDARD OF REVIEW
When a federal habeas claim has been adjudicated by the state courts, 28 U.S.C.
§ 2254(d)(1) provides the writ shall not issue unless the state decision “was contrary to, or
involved an unreasonable application of, clearly established federal law as determined by
the Supreme Court of the United States.” Further, a federal court may grant habeas relief
if the state court arrives at a decision opposite to that reached by the Supreme Court of the
United States on a question of law, or if the state court decides a case differently than did
the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-406 (2000). The appropriate measure of whether or not a state court
decision unreasonably applied clearly established federal law is whether that state
adjudication was “objectively unreasonable” and not merely erroneous or incorrect.
Williams, 529 U.S. at 409-411.
Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are
presumed correct, rebuttable only by clear and convincing evidence to the contrary.
McAdoo v. Elo, 365 F. 3d 487, 493-494 (6th Cir. 2004). Finally, Rule 8(b)(4) of the Rules
Governing §2254 states:
A judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject, or modify in
whole or in part any findings or recommendations made by the magistrate.
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ANALYSIS
In Grounds One and Two, Petitioner contends that his guilty plea was not
voluntary as it was based on a broken plea agreement. Respondent asserts that the
record does not support Petitioner’s claims of any kind of promises made by the trial
court or by the State, but it does support that Petitioner’s plea was voluntarily made.
The Magistrate Judge correctly points out that the Court of Appeals reviewed the denial
of Petitioner’s Motion to Withdraw Guilty Plea based on a broken plea agreement, and
concluded that he failed to establish the existence of manifest injustice.
Although Petitioner contends that there was an agreement made during inchamber pretrial negotiations with the judge and the prosecution, the Sixth Circuit
recently held that even where both parties acknowledge that an off-the-record
agreement exists, the relevant factors advocate in favor of limiting a petitioner's plea
agreement to that which was revealed to the state court. Smith v. Anderson, –F.3d –,
2011 WL 475195, *5 (6th Cir. Feb. 11, 2011.) “. . . [W]here Rule 11 procedures were
fully adequate, absent extraordinary circumstances, or some explanation of why
defendant did not reveal other terms, at least when specifically asked to do so by the
court, a defendant’s plea agreement consists of the terms revealed in open court.”
Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986), (quoting Moore v. Estelle, 526
F.2d 690, 696-697 (5th Cir. 1976)).
The Court agrees with the Magistrate Judge that the trial court was conscientious
in informing Petitioner of his rights and inquiring as to any promises or agreements that
may have been in existence. Therefore, Petitioner is foreclosed from claiming a secret
promise by the trial court or the state regarding his sentence. The Court further finds
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that the Court of Appeals reasonably applied federal constitutional law in concluding that
Petitioner failed to establish manifest injustice regarding the denial of his motion to
withdraw his guilty plea. Grounds One and Two are without merit.
In Ground Three, Petitioner contends that his sentence is not commensurate with
the sentences of similarly-situated defendants, specifically, his co-defendant.
Respondent asserts that Petitioner previously raised this claim by invoking O.R.C. §
2929.11(B), and therefore, it was not fairly presented to the state courts as a federal
constitutional claim, and is defaulted. State prisoners must exhaust their state remedies
prior to raising claims in federal habeas corpus proceedings. See 28 U.S.C. §
2254(b),(c). This requirement is satisfied “when the highest court in the state in which
the petitioner was convicted has been given a full and fair opportunity to rule on the
petitioner’s claims.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).
Federal courts will not consider the merits of procedurally defaulted claims,
unless the petitioner demonstrates cause for the default and prejudice resulting
therefrom, or where failure to review the claim would result in a fundamental
miscarriage of justice. See Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir.2006) (citing
Wainwright v. Sykes, 433 U.S. 72, 87 (1977)). A claim may become procedurally
defaulted in two ways. Id. First, a petitioner may procedurally default a claim by failing
to comply with state procedural rules in presenting his claim to the appropriate state
court. Id.; see also Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). If, due to
petitioner’s failure to comply with the procedural rule, the state court declines to
reach the merits of the issue, and the state procedural rule is an independent and
adequate grounds for precluding relief, the claim is procedurally defaulted. Id.
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The Magistrate Judge correctly determined upon review of the record, that
Petitioner presented this claim as his fifth assignment of error on direct appeal invoking
only state law. The Court of Appeals addressed the issue applying state law and
concluded that Petitioner failed to establish that he and his co-defendant were similarly
situated. Therefore, the Court finds Ground Three to be procedurally defaulted.
In Ground Four, Petitioner contends a due process violation when the trial court
denied his counsel adequate time to review the Presentence Investigation Report and a
psychological evaluation prior to sentencing. Respondent asserts that Petitioner raised
this claim on direct appeal, and, therefore, it is defaulted. The Magistrate Judge
correctly determined upon review of the record, that Petitioner presented the issue in
Ground Four on direct appeal to the Court of Appeals and the Ohio Supreme Court
based only on state law. The Court of Appeals, examining the issue for plain error,
concluded that Petitioner’s counsel accepted the reports and acknowledged they were
substantially correct. The Court agrees with the Magistrate Judge and finds Ground
Four is procedurally defaulted.
In Ground Five, Petitioner contends that the severity of his sentence was based
on his religious beliefs. Respondent asserts that Ground Five is speculative and lacks
support. A petitioner who alleges an equal protection violation under the Fourteenth
Amendment has the burden of proving “the existence of purposeful discrimination.”
McClesky v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) (citing
Whitus v. Georgia, 385 U.S. 545, 550, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967)). The
Magistrate Judge correctly points out that at the sentencing hearing, the trial court
stated it could not ignore Petitioner’s history involving crimes with guns, and that the
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consecutive sentences were warranted because of the separate harm to the victims.
The Court agrees that Petitioner’s conclusory allegations do not meet the purposeful
discrimination required under the Equal Protection Clause of the Fourteenth
Amendment. The Court finds that Ground Five is without merit.
In Ground Six, Petitioner contends that his speedy trial rights were violated.
When the Court of Appeals addressed the issue, it pointed out that no speedy trial
objection was raised at the trial court level, and therefore, Petitioner waives all but plain
error. The Court of Appeals concluded that Petitioner’s right to a speedy trial under
state law was not violated.
Petitioner’s speedy trial claim also fails under federal constitutional analysis. The
Sixth Amendment guarantees that, “[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy ... trial ....” U.S. Const. Amend VI. “On its face, the Speedy
Trial Clause is written with such breadth that, taken literally, the government would be
forbidden to delay the trial of an ‘accused’ for any reason at all.” Doggett v.United
States, 505 U.S. at 651. However, the Supreme Court has recognized the constitutional
right to a speedy trial permits some delays, which, depending on the circumstances of
each case, cannot “be quantified into a specified number of days or months.” Barker v.
Wingo, 407 U.S. 514, 521-23, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Matthews v.
Sheets, 2010 WL 537002, *30 (S.D. Ohio Feb. 11, 2010).
In his Report and Recommendation, the Magistrate Judge points out that
Petitioner was arrested on December 20, 2006. He requested continuances from the
first pretrial scheduled for February 7, 2007, and every subsequent pretrial. Petitioner
then requested a trial date of May 22, 2007. Five months elapsed between the arrest
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and the plea. This Court agrees with the Ohio Court of Appeals and the Magistrate
Judge that there was no unconstitutional speedy trial delay. The Court finds that
Ground Six is without merit.
In Ground Seven, Petitioner contends that the prosecution violated state
discovery rules. Respondent asserts that clearly-established law holds that a guilty plea
prevents a subsequent assertion of a denial of constitutional rights. Petitioner raised
this claim on direct appeal as a violation of Brady v. Maryland, 373 U.S. 83 (1963) for
failure of the State to turn over any exculpatory material. The Court of Appeals
overruled the claim.
The Magistrate Judge correctly asserts that the United States Supreme Court
emphasizes that a criminal defendant, who has pled guilty on the advice of counsel,
waives any non-jurisdictional, constitutional challenge he might have and may attack
only the nature of his plea:
[A] guilty plea represents a break in the chain of events which has preceded it in
the criminal process. When a criminal defendant has solemnly admitted in open
court that he is in fact guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea. He may only attack the
voluntary and intelligent character of the guilty plea by showing that the advice he
received from counsel was not within the standards set forth in McMann.
Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602 (1973).
The Court agrees that based on the standard set forth in Tollett and subsequent
cases, the Court of Appeals reasonably applied federal constitutional law. Therefore,
Ground Seven is without merit.
In Ground Eight, Petitioner contends that he was subjected to double jeopardy
when he was sentenced separately for two crimes of similar import that were committed
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with a single animus. Respondent asserts that as state law determines how one is
charged, Petitioner’s argument is not cognizable in federal habeas. The Double
Jeopardy Clause of the Fifth Amendment, made applicable to the states through
the Fourteenth Amendment, provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V; Monge v.
California, 524 U.S. 721, 727-28, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998). It protects
against successive prosecutions for the same offense after acquittal or conviction and
against multiple criminal punishments for the same offense. Monge, 524 U.S. at 727-28.
In his Objections to the Magistrate’s Report and Recommendation, Petitioner restates his belief that both convictions were part of the same act and that the state
appellate court’s determination is wrong. The Magistrate Judge correctly concluded that
the Court of Appeals was correct in their finding that the trial court did not err in
sentencing Petitioner for each offense, citing the finding of the Ohio Supreme Court
“that when a defendant commits aggravated robbery against different victims during the
same course of conduct, a separate animus exists for each offense.” State v. Byrd, 32
Ohio St.3d 79, 85, 512 N.E.2d 611 (1987); see also State v. Battle, Franklin App. No.
03AP-39, 2003-Ohio-4687. The Court agrees with the Magistrate Judge and finds that
Ground Eight is without merit.
In Ground Nine, Petitioner contends that his guilty plea was not free and
knowingly tendered because the trial court did not inform him of Ohio’s Post-Release
Control statute. Respondent asserts that this ground is non-cognizable as it involves
the application of state law. Petitioner presented this claim on direct appeal as a state
law violation. The Court of Appeals found that the trial court substantially complied with
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the requirements of Crim.R. 11(C) and R.C. 2943.032 when informing Petitioner of the
Post-Release Control requirements. To be entitled to relief in federal habeas corpus a
petitioner must establish that there has been an infringement of a right guaranteed
under the United States Constitution. Clemmons v. Sowders, 34 F.3d 352, 357 (6th Cir.
1994).
The Magistrate Judge correctly determined that the trial court advised Petitioner
of his Post-Release Control requirements, and the Court of Appeals determined the
notice requirements were adequate. The Court finds Petitioner has failed to show a
denial of fundamental rights, and therefore, Ground Nine is without merit.
In Ground Ten, Petitioner contends he was provided ineffective assistance of
counsel, relating to preliminary procedural matters, his plea, and sentencing. To prevail
on a claim that a plea was unknowing or unintelligent because of ineffective assistance
of counsel, the petitioner must establish ineffective assistance according to the rubric
set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). Hill v. Lockhart, 474 U.S. at 57-58.
To establish ineffective assistance of counsel, a petitioner must demonstrate that
counsel’s conduct was so below acceptable standards of representation that he or she
was not functioning as “counsel” guaranteed by the Sixth Amendment to the United
States Constitution. See Strickland, 466 U.S. at 668; United States v. Bavers, 787 F.2d
1022 (6th Cir. 1985). Second, a petitioner must demonstrate that trial counsel’s
performance prejudiced the petitioner’s defense to such an extent that it rendered the
proceeding unfair. Id. To establish prejudice, the “defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.” Id. at 694; United States v. Morrow, 977 F.2d
222, 229 (6th Cir. 1992) (counsel’s deficient performance must have “caused the
defendant to lose what he otherwise would probably have won” and it must have been
“so manifestly ineffective that defeat was snatched from the hands of probable victory.”)
This case is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337
(1997). The relevant provisions of AEDPA state:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
On direct appeal, the Court of Appeals concluded that Petitioner’s counsel was
not deficient in his performance and Petitioner was not prejudiced in any way. In his
Report and Recommendation, the Magistrate Judge thoroughly addressed Petitioner’s
multiple claims of ineffective assistance. The Magistrate Judge points out that the
negotiated plea was placed on the record and Petitioner, after being given the
opportunity, never indicated to the court that additional incentives for his plea existed.
In his Objections to Magistrate’s Report and Recommendation, Petitioner now claims
the trial court used misleading language when questioned, and he was not able to
distinguish between “open court and on the record.” The Court of Appeals found that
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the terms of the plea agreement were made clear to Petitioner, including the possible
term of incarceration, and that no other promises were made. The plea was placed on
the record and Petitioner agreed to the terms.
The Court agrees with the Magistrate Judge’s conclusion that given the level of
deference that the AEDPA ascribes to state court rulings, the state appellate court's
decision is neither contrary to, nor an unreasonable application of, Strickland v.
Washington and Hill v. Lockhart. The Court agrees that Petitioner has failed to show
that there is a reasonable probability the result of his case would have been different
had his counsel done all that Petitioner now complains about. In the absence of facts
beyond mere conclusory allegations, this Court finds Petitioner has failed to meet his
burden under Strickland, showing his attorney’s performance was unreasonable.
Therefore, the Court finds that Ground Ten is without merit.
For the foregoing reasons, the Court finds the Magistrate Judge’s Report and
Recommendation accurately and thoroughly addresses Petitioner’s arguments. The
Court ADOPTS and ACCEPTS the Magistrate Judge’s well reasoned Report and
Recommendation and denies Petitioner’s Petition Under 28 U.S.C. §2254 for Writ of
Habeas Corpus by a Person in State Custody.
The Court finds an appeal from this decision could not be taken in good faith. 28
U.S.C. § 1915 (a)(3). Since Petitioner has not made a substantial showing of a denial
of a constitutional right directly related to his conviction or custody, the Court declines to
issue a certificate of appealability. 28 U.S.C. § 2253 (c)(2); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
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Date:8/18/2011
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
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