Rolling v. Milligan et al
Filing
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Memorandum Opinion and Order: The Petition for a Writ of Habeas Corpus (ECF No. 1 ) is denied and this action is dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Further, the Court certifies, pursuant to 28 U.S.C. 167;1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253; Fed.R.App.P. 22(b). Judge Patricia A. Gaughan on 9/10/12. (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Michael Rolling,
Petitioner,
v.
Tim Mulligan, et al.
Respondents.
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CASE NO. 1:12 CV 1007
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
INTRODUCTION
Pro se Petitioner Michael Rolling filed the above-captioned Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254. Petitioner is incarcerated in the Marion Correctional
Institution, serving a fifteen year to life sentence for murder. For the reasons set forth below,
the Petition is denied and this action is dismissed.
BACKGROUND
Petitioner was indicted on charges of aggravated murder, with one year and three year
firearm specifications, and having a weapon under disability. See State of Ohio v. Rolling, No.
95473, 2011 WL 243981 (Ohio App. 8 Dist. Jan. 13, 2011). He entered into a plea agreement
on January 27, 2003 under which he pled guilty to the lesser charge of murder in exchange for
dismissal of the firearm specifications and the charge of having a weapon under disability. Id.
A hearing was held on January 27, 2003 on Petitioner’s change of plea and sentencing. In this
hearing, the following exchange took place:
THE COURT: Mr. Rolling, the crime to which it’s proposed that
you plead guilty is a felony of the first degree, and this particular
crime has a penalty of from 15 years to life in prison and that’s the
only penalty that you can get. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Upon the completion of your prison term, you will
be subject to post-release control under the supervision of the
Ohio Adult Parole Authority. Do you understand that under your
post-release control you will be subject to certain terms and
conditions of that control, and if you violate those conditions then
the Adult Parole Authority can modify your supervision and make
it more restrictive, they can incarcerate you for up to one half of
the original offense –I’m sorry–for up to one-half of the original
sentence imposed by this court. You can be charged with a new
offense, which is called escape, and that’s another felony where
you face additional prison time. And, of course, if you commit a
new crime while on post-release control, you would face the
maximum penalties under the law for that new crime. Do you
understand those things pertaining to post-release control?
THE DEFENDANT: Yes. sir.
THE COURT: And your post-release control period would be for
five years. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: Have any threats or promises been made to you
other than what we’ve talked about in the past few minutes in
open court and on the record?
THE DEFENDANT: No.
THE COURT: Do you understand that the sentence–that this
Court has no discretion in sentencing? You’re gonna get 15 years
to life?
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THE DEFENDANT: Yes.
***
THE COURT: Let the record reflect that I’m satisfied that Mr.
Rolling has been informed of his constitutional rights, that he
understands the nature of the charges, the effect of a plea and the
maximum penalties which may be imposed. I also find the
defendant’s plea would be made knowingly, intelligently and
voluntarily. Therefore, Mr. Rolling, how do you plead to
amended Count I of the indictment, murder, in violation of Ohio
Revised Code 2903.02, a felony of the first degree?
THE DEFENDANT: Guilty.
(Pet. Ex. 4, ECF No. 1-4 at 3-5.) The court then sentenced Petitioner to fifteen years to life
imprisonment and a term of five years of post-release control.
Ten days after his sentencing hearing, Petitioner filed a Motion to Withdraw his Guilty
Plea on February 6, 2003. In this Motion, he claimed his plea was based on his understanding
that he could be sentenced to probation. Id. While the Motion was pending, Petitioner filed a
direct appeal of his conviction. The trial court did not rule on this Motion until Petitioner was
denied relief on direct appeal.
I. Direct Appeal
Petitioner filed a Notice of Appeal to the Ohio Eighth District Court of Appeals on
February 25, 2003. He does not specify the grounds he raised on appeal, stating only that he
asserted a “Motion to Withdraw.” (Pet. ECF No. 1 at 2). The appeal was summarily dismissed
by the Eighth District Court of Appeals on April 17, 2003.
Petitioner filed a Motion for Leave to file a Delayed Appeal on June 19, 2003. Again,
he does not state the grounds he raised in this Motion. The Eighth District Court of Appeals
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indicated that Petitioner was attempting to appeal his guilty plea. See State of Ohio v. Rolling,
No. 83051, 2007 WL 1559469 (Ohio App. 8 Dist. May 25, 2007). The court of appeals denied
his Motion for Leave to File a Delayed Appeal on July 15, 2003. Id. Petitioner did not appeal
this decision to the Ohio Supreme Court.
Shortly after filing his Motion for Leave to file a Delayed Appeal, Petitioner filed a
Petition to Vacate or Set Aside Sentence in the trial court on June 20, 2003. He contends he
asserted counsel misinformed him, failed to investigate his claims, failed to file discovery, failed
to inform him of his right to appeal, and was not prepared for trial. With the Petition to Vacate
or Set Aside Sentence, Petitioner also filed a Motion for Appointment of Counsel on June 20,
2003. The court granted his Motion for Appointment of Counsel and appointed attorney
Elizabeth Kelley to represent him on July 7, 2003. He filed a Motion to Withdraw the Petition
on August 5, 2003. The court granted his Motion to Withdraw the Petition on August 11, 2003.
Over two years after his Motion for Leave to file a Delayed Appeal was denied,
Petitioner filed an Application to Re-Open his Appeal pursuant to Ohio Appellate Rule 26(b)
based on ineffective assistance of appellate counsel on March 19, 2006. Id. He claimed Ms.
Kelly was appointed on July 7, 2003 for the purpose of assisting him with his appeal. He
indicated she did not file an appellate brief and this was the reason his Motion for Delayed
Appeal was denied on July 15, 2003. See State of Ohio v. Rolling, No. 07-1228 (Ohio Supreme
Court filed July 9, 2007).1 The court of appeals denied the Application to Re-Open Appeal as
untimely filed. The court also indicated that an appeal could not be re-opened as Petitioner had
1
Docume nts filed in
http://www.supremecourt.ohio.gov.
the
Ohio
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Supreme Court can be viewed at:
never properly filed an appeal. The court noted that Petitioner’s Motion to Withdraw Guilty
Plea was still pending in the trial court and indicated Petitioner could avail himself of the right
to appeal that judgment should the trial court ever rule on the Motion. Id. at *2.
Petitioner filed an appeal of that decision to the Ohio Supreme Court. He asserted that
he had been denied the effective assistance of appellate counsel. He claimed counsel had been
appointed to represent him on appeal but did not contact him or file a brief. He contended that
this caused his Motion for Leave to File a Delayed Appeal to be dismissed in July 2003. He
claimed he had good grounds for appeal as he was led by his trial counsel to believe he was
pleading guilty to involuntary manslaughter and would receive only six years incarceration.
The Ohio Supreme Court declined to accept jurisdiction on October 19, 2007.
II. Post Judgment Motions
Shortly thereafter, on November 30, 2007, Petitioner filed in the trial court a Request for
Adjudication of his Pending Motion to Withdraw Guilty Plea. After several extensions by the
State to file a response to the Motion, Petitioner filed a new Motion to Withdraw Guilty Plea on
March 27, 2008. In this Motion, he asserted that the trial court failed to comply with Ohio
Criminal Procedure Rule 11, and his guilty plea was based on a misunderstanding that he could
be released after serving two years of his sentence of fifteen years to life. See State of Ohio v.
Rolling, No. 11-0265 (Ohio Supreme Court filed Feb14, 2011). Counsel was appointed to
represent Petitioner for adjudication of the Motion. The trial court conducted a hearing on the
Motion and issued an Order on May 20, 2008 indicating that a hearing had been held,and based
on the arguments of counsel, the Motions, and the transcript of the plea colloquy, the court
found the Petitioner’s plea was knowingly, voluntarily, and intelligently made. Specifically, the
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court stated:
The defendant was informed of his rights pursuant to Criminal
Rule 11. The court specifically informed the defendant of his
constitutional rights and the maximum penalty involved. He was
asked if any promises were made to him and he answered “no.”
He was asked if he understood the penalty he stated “yes.” The
court does not find the defendant meets the standard of manifest
injustice that would allow withdrawal of his guilty plea. Motion
denied.
(Pet. Ex. 1, ECF No. 1-1 at 3). Petitioner did not immediately appeal this decision.
Two years later, on June 1, 2010, Petitioner filed a Motion for Resentencing in the trial
court. In this Motion, he claimed his sentence was void because it included a term of postrelease control. Pursuant to Ohio Revised Code § 2967.13, post-release control is not applicable
to murder convictions. He also asked for a de novo re-sentencing hearing pursuant to Ohio
Revised Code §2929.191, and State v. Singleton, 124 Ohio St. 3d 173 (2009). The trial court
issued a nunc pro tunc entry on June 28, 2010, deleting the five-year post-release control
sentence and replacing it with parole. The Motion for Re-sentencing de novo was denied.
Petitioner filed an appeal on July 28, 2010 of the denial of his Motion for Re-sentencing
and his Motion to Withdraw Guilty Plea to the Ohio Eighth District Court of Appeals.2 He
2
It is not clear whether this appeal was taken of only the Motion for Re-sentencing or of both
the Motion for Re-sentencing and the Motion to Withdraw Guilty Plea. The appeal was taken two
years after the Motion to Withdraw Guilty Plea had been denied, and asserted grounds relevant to
the inclusion of post-release control in Petitioner’s sentence which were raised in Petitioner’s
Motion for Re-sentencing. The Court of Appeals, however, states, “In this pro se appeal,
defendant-appellant, Michael Rolling, appeals from the order of the trial court that denied his
motion to withdraw his guilty plea and deleted an erroneously included term of post-release control
in a nunc pro tunc order.” The Court of Appeals also cites language from the trial court’s Order
denying Petitioner’s Motion to Withdraw Guilty Plea in its discussion of the case’s procedural
history. This Court will, therefore, assume that the appeal encompassed both of Petitioner’s
Motions.
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asserted two assignments of error:
1. The trial court erred by failing to grant defendant a de novo
hearing on re-sentencing pursuant to Ohio Revised Code
§2929.191, and State v. Singleton, 124 Ohio St. 3d 173 (2009);
2. The trial court’s plea colloquy did not substantially comply
with the applicable criminal procedure rule and remand is
required to permit determination of whether the defendant was
prejudiced by the trial court’s failure to substantially comply with
Crim. R. 11(C)(2)(c).
See State of Ohio v. Rolling, No. 95473, 2011 WL 243981 (Ohio App. 8 Dist. Jan. 13, 2011).
The court of appeals affirmed the decisions of the trial court on January 13, 2011. The
court found that the Singleton case applied only to offenders who did not receive notice at
sentencing that they would be subject to post-release control, those who did not receive notice
that a prison term could be imposed for violation of post-release control sanctions, and those
who did not have these provisions incorporated into their sentencing entries. Id. at *2.
Petitioner did not fall into any of these categories. The court denied his second assignment of
error stating that Petitioner was subject to a life sentence. The erroneous reference to postrelease control in no way added to the maximum penalty Petitioner faced. The court added that
Petitioner did not argue that he would have pled not guilty if he had known he was not subject
to post-release control. Finally the court noted that this matter could have been asserted seven
years earlier in a direct appeal and was barred by the doctrine of res judicata. Id. at *5.
Petitioner appealed this decision to the Ohio Supreme Court on February 14, 2011. He
asserted two Propositions of Law in support of his appeal:
1. Did the trial court err by failing to grant Defendant a de novo
hearing upon resentencing, pursuant to Ohio Revised Code
§2929.191 and State v. Singleton, 124 Ohio St. 3d. 173 (2009);
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2. Did the trial court’s plea colloquy fail and violate Defendant’s
constitutional right when the colloquy did not substantially
comply with the applicable criminal procedure rule and remand is
required to permit determination of whether the defendant was
prejudiced by the trial court’s failure to substantially comply with
Crim. R. 11(C)(2)(c)?
(Pet. ECF No. 1 at 4). In his Memorandum in Support of Jurisdiction, he claimed that the trial
court’s inclusion of post-release control in his sentence required the court to conduct a new
sentencing hearing. The error could not be corrected with a nunc pro tunc order. He also
claimed the erroneous inclusion of a term of post-release control rendered his plea involuntary
and not knowingly and intelligently made. He claimed he believed he would receive a two year
sentence and probation if he pled guilty. He equated probation with post-release control and
argued that it demonstrated prejudice at his plea hearing. The Ohio Supreme Court denied leave
to appeal, and dismissed the appeal as not involving any substantial constitutional question on
May 26, 2011.
HABEAS PETITION
Petitioner then filed the within Petition for a Writ of Habeas Corpus pursuant to 28
U.S.C. §2254 on April 23, 2012. He asserts three grounds for relief:
1. Denied access to the courts in violation of Sixth Amendment
of the United States Constitution, Due Process and Equal
Protection along with denial of Petitioner’s constitutional right to
a fair trial under the 14th Amendment;
2. Conviction obtained by guilty plea which was unlawfully
induced or not made voluntarily, knowingly, intelligently with the
understanding of the nature and of the consequences of the plea;
and
3. Denied the effective assistance of counsel.
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(Pet. ECF No. 1 at 5-6).
With respect to his first ground for relief, Petitioner contends he was present at a hearing
on April 18, 2008 on his Motion to Withdraw Guilty Plea. He states the court’s Order denying
his Motion on May 20, 2008 reflects that a “hearing [was] held on Defendant’s Motion... .” He
interprets this statement to indicate a second hearing was held by the court on May 20, 2008
before it issued its decision. He asserts he was not present at this hearing and no transcript of
the hearing exists. He claims the court violated Ohio Criminal Procedure Rule 43(A) and
denied him access to the courts, due process, and equal protection.
In support of his second ground for relief, Petitioner asserts three claims. First, he
alleges he was promised a shorter sentence by his trial counsel. He contends his trial counsel
told him he would be sentenced only to six years incarceration on a charge of involuntary
manslaughter. Second, he asserts that the trial court erred by telling him he would be subject to
post-release control upon completion of his sentence of incarceration. He claims that because
post-release control cannot be part of an indefinite life sentence for murder, his plea could not
have been knowingly and intelligently made. Finally, Petitioner contends that because postrelease control was erroneously made part of his original sentence, his entire sentence was void.
He contends he is entitled to an evidentiary hearing to determine if his plea was made in
accordance with Ohio Criminal Procedure Rule 11.
In support of his third ground for relief, Petitioner asserts five claims of ineffective
assistance of trial counsel. First, he contends his trial counsel failed to inform the court that his
plea agreement did not include a period of post-release control, and his plea of guilty was,
therefore, not knowing and voluntarily made. Second, he contends counsel failed to object to
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the post-release control portion of his sentence and did not advise him of his right to appeal.
Third, he claims counsel failed to inform him of the term of post-release control prior to his plea
hearing. He asserts he would not have pled guilty if he had known he was going to be subject to
post-release control. Fourth, he claims counsel led him to believe he would be sentenced to six
years for involuntary manslaughter. He contends he would not have pled guilty if he had known
he would be sentenced to more than six years incarceration. Finally, he claims counsel failed to
raise any obvious defense to the murder charge.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which
amended 28 U.S.C. § 2254, was signed into law on April 24, 1996 and applies to habeas corpus
petitions filed after that effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see
Woodford v. Garceau, 538 U.S. 202, 210 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.
1999). The AEDPA was enacted “to reduce delays in the execution of state and federal criminal
sentences, and ‘to further the principles of comity, finality, and federalism.’” Woodford, 538
U.S. at 206 (citing Williams v. Taylor, 529 U.S. 362, 436 (2000)). Consistent with this goal,
when reviewing an application for a writ of habeas corpus by a person in custody pursuant to
the judgment of a state court, a determination of a factual issue made by a state court shall be
presumed to be correct. Wilkins v. Timmerman-Cooper, 512 F.3d 768, 774-76 (6th Cir. 2008).
The Petitioner has the burden of rebutting the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). A federal court, therefore, may not grant habeas
relief on any claim that was adjudicated on the merits in any state court unless the adjudication
of the claim either: “(1) resulted in a decision that was contrary to, or involved an unreasonable
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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);
Wilkins, 512 F.3d 768, 774 -76 (6th Cir. 2008).
A decision is contrary to clearly established federal law under §2254(d)(1) when it is
“diametrically different, opposite in character or nature, or mutually opposed” to federal law as
determined by the Supreme Court of the United States. Williams v. Taylor, 529 U.S. 362, 405
(2000). In order to have an “unreasonable application of ... clearly established Federal law,” the
state court decision must be “objectively unreasonable,” not merely erroneous or incorrect. Id.
at 409. The provision applies even in cases where the state courts summarily reject a claim or
issue a ruling “unaccompanied by an opinion explaining the reasons relief has been denied.”
Harrington v. Richter, 131 S.Ct. 770, 784–85 (2011). Furthermore, it must be contrary to
holdings of the Supreme Court, as opposed to dicta. Williams, 529 U.S. at 415.
A state court’s determination of fact will be unreasonable under §2254(d)(2) only if it
represents a “clear factual error.” Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). In other
words, a state court’s determination of facts is unreasonable if its finding conflicts with clear
and convincing evidence to the contrary. Id. “This standard requires the federal courts to give
considerable deference to state court decisions.” Ferensic v. Birkett, 501 F.3d 469, 472 (6th
Cir.2007). AEDPA essentially requires federal courts to leave a state court judgment alone
unless the judgment in place is “based on an error grave enough to be called ‘unreasonable.’”
Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998).
In addition, a federal court may not grant a Petition for a Writ of Habeas Corpus filed by
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a person in state custody unless “it appears that ... the applicant has exhausted the remedies
available in the courts of the state....” 28 U.S.C. § 2254(b)(1)(A); Hannah v. Conley, 49 F.3d
1193, 1196 (6th Cir. 1995) (per curiam); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir.
1994). Exhaustion is fulfilled once a state supreme court provides a convicted defendant a full
and fair opportunity to review his or her claims on the merits. O'Sullivan v. Boerckel, 526 U.S.
838 (1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Manning v. Alexander, 912 F.2d
878, 881 (6th Cir. 1990).
To be properly exhausted, each claim must have been “fairly presented” to the state
courts. See e.g. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Frazier v. Huffman, 343
F.3d 780, 797 (6th Cir. 2003). Fair presentation requires that the state courts be given the
opportunity to see both the factual and legal basis for each claim. Wagner, 581 F.3d at 414.
Specifically, in determining whether a petitioner “fairly presented” a federal constitutional
claim to the state courts, the claim must be presented to the state courts as a federal
constitutional issue, not merely as an issue arising under state law. Koontz v. Glossa, 731 F.2d
365, 369 (6th Cir. 1984). Moreover, the claim must be presented to the state courts under the
same legal theory in which it is later presented in federal court. Wong v. Money, 142 F.3d 313,
322 (6th Cir. 1998). It cannot rest on a legal theory which is separate and distinct from the one
previously considered and rejected in state court. Id. This does not mean that the applicant
must recite “chapter and verse” of constitutional law, but the applicant is required to make a
specific showing of the alleged claim. Wagner, 581 F.3d at 414.
DISCUSSION
I. First Ground for Relief
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Petitioner’s first ground for relief contends he was denied access to the courts, due
process, and equal protection at a hearing for his Motion to Withdraw Guilty Plea. A hearing on
the Motion was held on April 18, 2008. The court issued its Order on May 20, 2008 denying
the Motion, and indicating that a “hearing [was] held on Defendant’s Motion... .” Petitioner
interprets this statement to indicate that a second hearing was held by the court on May 20, 2008
before it issued its decision. He asserts he was not present at this hearing and no transcript of
the hearing exists. He claims the court violated Ohio Criminal Procedure Rule 43(A) and
denied him access to the courts, due process, and equal protection.
This claim is unexhausted. It is raised for the first time in this Petition and was never
presented in a state court proceeding. A claim raised in a habeas petition must be “properly
presented” to the state courts in a procedural context where a merits review is possible. See
O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). Because Petitioner did not give the state
courts the opportunity to determine if a second hearing on the Motion was actually held without
Petitioner being present and if this was in fact a denial of access to the courts or due process, he
has not fulfilled the exhaustion requirement needed to obtain federal court review of the claim
in his habeas petition.
Generally, if a claim is unexhausted, the Court will dismiss the Petition without
prejudice to allow the Petitioner to return to state court to pursue his available remedies. 28
U.S.C. § 2254(c); Rose v. Lundy, 455 U.S. 509 (1982). Where there are no remedies still
available in state court to assert the claim, and return to state court, therefore, would be futile,
the Court may deem the claim procedurally defaulted. O’Sullivan v. Boerckel, 526 U.S. 838,
848 (1999); Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001); Rust v. Zent, 17 F.3d 155, 160
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(6th Cir. 1994).
A federal habeas petitioner can procedurally default a claim by “failing to obtain
consideration of a claim by a state court, either due to the petitioner's failure to raise that claim
before the state courts while state-court remedies are still available or due to a state procedural
rule that prevents the state courts from reaching the merits of the petitioner's claim.” Lundgren
v. Mitchell, 440 F.3d 754, 763 (6th Cir.2006) (quoting Seymour v. Walker, 224 F.3d 542,
549–50 (6th Cir.2000)). When a claim is procedurally defaulted, federal habeas review is barred
unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or can demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Here, Petitioner did not assert this ground for relief in any state court proceeding while
those remedies were available to him. This claim pertains to his alleged exclusion from a
hearing Petitioner contends was held in May 2008 on his Motion to Withdraw Guilty Plea. He
did not raise this claim in the trial court, nor did he raise it in an appeal of the Order denying his
Motion to Withdraw Guilty Plea. Furthermore, there is no procedural avenue in state court in
which Petitioner can now raise this claim four years after the hearing. This claim is
procedurally defaulted.
Petitioner can overcome a procedural default by showing (1) there was cause for him not
to follow the procedural rule and that he was actually prejudiced by the alleged constitutional
error or (2) a fundamental miscarriage of justice would result from a bar on federal habeas
review. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also Hutchison v. Bell, 303
F.3d 720, 735 (6th Cir. 2002); Combs v. Coyle, 205 F.3d 269, 274-75 (6th Cir. 2000). “[T]he
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existence of cause for a procedural default must ordinarily turn on whether the prisoner can
show that some objective factor external to the defense impeded counsel’s efforts to comply
with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 484 (1986). “Such factors
may include ‘interference by officials,’ attorney error rising to the level of ineffective assistance
of counsel, and ‘a showing that the factual or legal basis for a claim was not reasonably
available.’ ” Hargrave–Thomas v. Yukins, 374 F.3d 383, 388 (6th Cir.2004) (quoting McCleskey
v. Zant, 499 U.S. 467, 493–94 (1991)). To establish prejudice, a petitioner must demonstrate
that the constitutional error “worked to his actual and substantial disadvantage.” Perkins v.
LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170
(1982)).
The Petition does not suggest any factor external to the defense that precluded him from
raising this claim to the trial court or on appeal of the denial of his Motion to Withdraw Guilty
Plea. The hearing which forms the basis of this claim was referenced in the court’s Judgment
Entry of the Order denying the Motion. The Judgment Entry and the reference to the hearing
appeared on the court’s docket on May 22, 2008. The information was available to Petitioner
through the Judgment Entry and the court’s docket. Moreover, he was represented by counsel
for the adjudication of this Motion. He was not precluded from raising the claim by factors
beyond his control. He, therefore, has not demonstrated cause and prejudice.
Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the United States Supreme Court has recognized a narrow exception to
the cause requirement where a constitutional violation has “probably resulted” in the conviction
of one who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386,
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392 (2004) (citing Murray, 477 U.S. at 495-96). Petitioner does not claim he is innocent of the
underlying conviction. He contends here that a hearing on his Motion to Withdraw Guilty Plea
was conducted without him being present. This is not sufficient to demonstrate a fundamental
miscarriage of justice occurred as a result of this procedural default.
II. Second Ground for Relief
In his second ground for relief, Petitioner asserts that his conviction was obtained by a
guilty plea which was unlawfully induced or not made voluntarily, knowingly, or intelligently
with the understanding of the nature and of the consequences of the plea. In support of this
claim, he asserts three arguments. First, he alleges he was promised a shorter sentence by his
trial counsel. He contends his trial counsel told him he would be sentenced only to six years
incarceration on a charge of involuntary manslaughter. Second, he asserts that the trial court
erred by telling him he would be subject to post-release control upon completion of his sentence
of incarceration. He claims that because post-release control, by Ohio law, cannot be part of an
indefinite life sentence for murder, his plea could not have been knowingly and intelligently
made. Finally, Petitioner contends that because post-release control was erroneously made part
of his original sentence, his entire sentence was void. He contends he is entitled to an
evidentiary hearing to determine if his plea was made in accordance with Ohio Criminal
Procedure Rule 11.
A. Trial Counsel Promised Shorter Sentence
Petitioner first alleges that he pled guilty because his attorney promised him a shorter
sentence of six years incarceration for manslaughter and his plea was, therefore, not voluntarily,
knowingly, and intelligently made. This claim also is unexhausted.
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Petitioner did not pursue this claim to completion through a direct appeal of his
conviction. Although there is no indication in the Petition of the grounds Petitioner asserted in
his first direct appeal, that appeal was summarily dismissed on April 17, 2003. Similarly, he
does not indicate the grounds he raised in his Motion for Leave to file a Delayed Appeal;
however, the court of appeals denied the Motion and he did not appeal that decision to the Ohio
Supreme Court. His Application to Re-Open his Appeal pursuant to Ohio App. R. 26(b)
asserted a claim for ineffective assistance of appellate counsel, which was also denied on
procedural grounds as untimely. The Ohio Supreme Court declined jurisdiction to hear the
appeal.
Furthermore, the claim was not exhausted in post-conviction motions. His first Motion
to Withdraw Guilty Plea asserted that his plea was involuntary because counsel led him to
believe he would be sentenced to probation. His second Motion to Withdraw Guilty Plea
asserted that his plea was based on counsel’s representations that he would be released after
serving two years of his sentence of fifteen years to life incarceration. The trial court considered
these Motions, reviewed the plea colloquy and determined that Petitioner was informed of the
maximum penalty and indicated he understood it, and his plea was, therefore, knowingly and
intelligently made. He did not raise this ground on appeal of the denial of that Motion.
Consequently, this claim is unexhausted.
Furthermore, Petitioner has no apparent remedy still available to him to pursue this
claim in state court. His direct appeals have been foreclosed and he has no other post
conviction remedies left to pursue. He already filed a post-conviction petition in June 2003,
which he voluntarily withdrew in August 2003, two Motions to Withdraw Guilty Plea, and a
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Motion for Re-sentencing. If Petitioner attempted to file a second petition for post-conviction
relief under Ohio Revised Code § 2953.23, it would be successive and untimely. Under Ohio
Revised Code § 2953.21(A), Ohio courts cannot entertain a successive or untimely postconviction petition unless: (1) the Petitioner shows that he was unavoidably prevented from
discovery of the facts upon which he must rely to present the claim for relief, or after the time
limitation expired, the United States Supreme Court recognized a new federal or state right that
applies retroactively to persons in the Petitioner’s situation, and the post-conviction petition
asserts a claim based on that right; and (2) Petitioner shows by clear and convincing evidence
that, but for constitutional error at trial, no reasonable fact-finder would have found the
Petitioner guilty of the offense of which the Petitioner was convicted. Ohio Revised Code §
2953.23(A)(1). Here, Petitioner claims his plea was not voluntarily, knowingly, and
intelligently made because his trial counsel promised he would receive a shorter sentence. He
was well aware of this fact at the time of his conviction and could have asserted this claim in his
Motions to Withdraw Guilty Plea and the appeals of the denial of these Motions. It would be
futile for Petitioner to return to state court to pursue this claim through direct appeal or post
conviction remedies. It is therefore procedurally defaulted.
The Court may excuse the default and consider the claim on the merits if Petitioner
demonstrates that (1) there was cause for him not to follow the procedural rule and that he was
actually prejudiced by the alleged constitutional error or (2) a fundamental miscarriage of
justice would result from a bar on federal habeas review. See Maupin, 785 F.2d. at 138;
Hutchison, 303 F.3d at 735; Combs, 205 F.3d at 274-75. To establish “cause”, Petitioner must
show that some objective factor beyond the defense’s control impeded his efforts to comply
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with the State’s procedural rule. Murray, 477 U.S. at 484. To establish “prejudice”, Petitioner
must demonstrate that the constitutional error “worked to his actual and substantial
disadvantage.” Perkins, 58 F.3d at 219.
Petitioner’s only assertion of “cause” for the default is that attorney Kelley failed “to file
any brief to protect Petitioner’s rights on appeal.” (Pet. ECF No. 1 at 6). As an initial matter, it
is not clear whether Ms. Kelley was appointed to represent Petitioner on appeal or in connection
with his post-conviction petition which he filed in conjunction with his Motion for Appointment
of Counsel. Assuming Petitioner is correct that her appointment was as his appellate counsel, it
would not form the basis for “cause” for his failure to timely assert this claim. Petitioner filed
his Motion for Leave to File a Delayed Appeal on June 13, 2003. Ms. Kelley was appointed on
July 7, 2003. The court of appeals denied the Motion for Leave to File a Delayed Appeal on
July 15, 2003. She represented him for only eight days. She did not represent him at the time
he filed his post conviction Motions to Withdraw Guilty Plea, in which he asserted varying
sentence lengths he was promised by trial counsel in exchange for his guilty plea. There is no
indication of cause or prejudice to excuse the default and on that basis this claim must be
dismissed.
Furthermore, even if review of this claim were not barred by procedural default, it would
be without merit. Because a guilty plea operates as a waiver of constitutional rights, the
Fourteenth Amendment’s Due Process Clause requires that a guilty plea not only be made
voluntarily, but also knowingly and intelligently “with sufficient awareness of the relevant
circumstances and likely consequences.” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)
(quoting Brady v. United States, 397 U.S. 742, 748 (1970)). See Boykin v. Alabama, 395 U.S.
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238, 242 (1969); King v. Dutton, 17 F.3d 151, 153 (6th Cir.1994). Voluntariness is determined
by analyzing whether the plea was obtained “by any sort of threats or violence, ... any direct or
implied promises, ... [or] the exertion of any improper influence.” Brady, 397 U.S. at 753
(internal quotation and citation omitted). The question of whether a plea was entered knowingly
and intelligently turns on whether the defendant understood the nature of the charges against
him and was “aware of the direct consequences of the plea.” King v. Dutton, 17 F.3d 151, 153
(6th Cir.1994).
The Supreme Court has held that a guilty plea satisfies due process if it appears on
consideration of “all the relevant circumstances surrounding” the plea, that it was entered “by
one fully aware of the direct consequences, including the actual value of any commitments
made to him by the court, prosecutor, or his own counsel,” and was not induced by threats,
misrepresentation, or promises that are by their nature improper.3 Brady, 397 U.S. at 749, 755 .
In Brady, the Court emphasized:
The rule that a plea must be intelligently made to be valid does
not require that a plea be vulnerable to later attack if the defendant
did not correctly assess every relevant factor entering into his
decision. A defendant is not entitled to withdraw his plea merely
because he discovers ... after the plea has been accepted that his
calculus misapprehended the quality of the State’s case or the
likely penalties attached to alternative courses of action.
3
A collateral consequence of a plea, in contrast to a direct consequence, is “one that remains
beyond the control and responsibility of the...court in which that conviction was entered.”
El-Nobani v. United States, 287 F.3d 417, 421 (6th Cir. 2002). See Kratt v. Garvey, 342 F.3d 475
(6th Cir.2003)(holding that revocation of a defendant's pilot's license was a collateral consequence
of the defendant's guilty plea to drug charges where the revocation was effected by the Federal
Aviation Administration more than a year and a half after the defendant pleaded guilty before the
court).
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Relying on Brady, the Court reiterated in a subsequent decision that “the Constitution, in
respect to a defendant’s awareness of relevant circumstances, does not require complete
knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its
accompanying waiver of various constitutional rights, despite various forms of misapprehension
under which a defendant might labor.” United States v. Ruiz, 536 U.S. 622, 630 (2002). The
Court pointed out that, “the law ordinarily considers a waiver knowing, intelligent, and
sufficiently aware if the defendant fully understands the nature of the right and how it would
likely apply in general in the circumstances—even though the defendant may not know the
specific detailed consequences by invoking it.” Id. at 629; see Iowa v. Tovar, 541 U.S. 77, 92,
(2004).
On federal habeas review, a “state court’s determination that a guilty plea was valid is a
factual finding entitled to a presumption of correctness” under 28 U.S.C. § 2254(e)(1), which is
“rebuttable only by clear and convincing evidence.” Wright v. Lafler, No. 05-2571, 2007 WL
2566042, at *3 (6th Cir. Sept. 5, 2007)(citing Garcia v. Johnson, 991 F.2d 324, 326 (6th
Cir.1993)). Petitioner filed two Motions to Withdraw Guilty Plea and received a hearing with
counsel representing him. He produced a copy of the transcript of his plea colloquy. In
pertinent part, it shows the following exchange:
THE COURT: Mr. Rolling, the crime to which it’s proposed that
you plead guilty is a felony of the first degree, and this particular
crime has a penalty of from 15 years to life in prison and that’s the
only penalty that you can get. Do you understand that?
THE DEFENDANT: Yes.
Later in the proceeding, the trial court once again asks:
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THE COURT: Have any threats or promises been made to you
other than what we’ve talked about in the past few minutes in
open court and on the record?
THE DEFENDANT: No.
THE COURT: Do you understand that the sentence–that this
Court has no discretion in sentencing? You’re gonna get 15 years
to life?
THE DEFENDANT: Yes.
Although he argued in his Motions to Withdraw Guilty Plea that his plea was not knowingly
and intelligently made because his attorney promised he would be sentenced to either probation
or to only two years incarceration, the trial court rejected the argument stating:
The defendant was informed of his rights pursuant to Criminal
Rule 11. The court specifically informed the defendant of his
constitutional rights and the maximum penalty involved. He was
asked if any promises were made to him and he answered “no.”
He was asked if he understood the penalty he stated “yes.” The
court does not find the defendant meets the standard of manifest
injustice that would allow withdrawal of his guilty plea. Motion
denied.
(Pet. Ex. 1, ECF No. 1-1 at 3). His assertion in this habeas petition that he pled guilty because
he was led to believe he would receive a shorter sentence of six years incarceration for
manslaughter is insufficient to rebut the presumption of correctness given to the state court’s
factual determination that his guilty plea was valid.
B. Post-release Control as Part of Sentence
Petitioner also asserts that his plea was not voluntarily and knowingly made because he
was incorrectly told by the trial court that he would be subject to post-release control upon his
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release from prison. He claims that because post-release control cannot be part of an indefinite
life sentence for murder under Ohio Law, his plea could not have been knowingly and
intelligently made. He also asserts he would not have pled guilty if he had known post-release
control was part of the sentence.
This claim was not “fairly presented” to the state courts and is, therefore, unexhausted.
Petitioner asserted a claim in the state courts pertaining to the trial court’s erroneous inclusion
of post-release control as part of his sentence, but raised this claim solely as a violation of state
law. In his appeal of his Motion for Re-sentencing to the Ohio Eighth District Court of Appeals
and then to the Ohio Supreme Court, Petitioner asserted that “the trial court’s plea colloquy did
not substantially comply with the applicable criminal procedure rule and remand is required to
permit determination of whether the defendant was prejudiced by the trial court’s failure to
substantially comply with [Ohio] Crim. R. 11(C)(2)(c).” In this federal habeas petition, he now
asserts that the error at sentencing caused his plea to be not voluntarily, knowingly, and
intelligently made in violation of the Fourteenth Amendment of the United States Constitution.
To be considered “fairly presented,” the claim must be submitted to the state courts as a
federal constitutional claim, not merely as an issue arising under state law. Koontz, 731 F.2d at
369. The claim must also be presented to the state courts under the same legal theory in which
it is later presented in federal court. Wong, 142 F.3d at 322. Whether the trial judge adequately
satisfied the mandates of Ohio Criminal Procedure Rule 11 is a matter of state law. Petitioner
now asserts this claim as a violation of federal constitutional law, which is a different question
than the one presented to the state courts. The claim of a Fourteenth Amendment violation is
therefore unexhausted.
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Again, it would be futile to send Petitioner back to state court to pursue this claim. The
Ohio Court of Appeals noted that because the support for this claim could be found on the
record of his conviction and sentencing, the claim could have and should have been raised in a
direct appeal. Petitioner was, therefore, barred by the doctrine of res judicata from asserting the
claim in a collateral proceeding. See State of Ohio v. Rolling, No. 95473, 2011 WL 243981 at
*5. Petitioner’s attempts to file a delayed direct appeal and to re-open his direct appeal were
both denied. He has no available remedy left in state court. This claim is, therefore,
procedurally defaulted.
Moreover, Petitioner did assert this claim as a matter of state law through postconviction motions. The doctrine of res judicata would also foreclose any further attempt to file
another post conviction motion to assert this same claim under a new legal theory. See Grava v.
Parkman Twp., 73 Ohio St. 3d 379, 382 (1995).
Petitioner does not demonstrate cause and prejudice to excuse the default. His only
assertion of cause for failing to raise claims in the state court was that Attorney Elizabeth Kelly
failed to file an appellate brief in his direct appeal in 2003. Even if that is true, Petitioner waited
until March 2006 to file a Motion to Re-Open Appeal Pursuant to Appellate Rule 26(b) based
on ineffective assistance of appellate counsel, and waited until June 2010 to claim that the trial
court erroneously sentenced him to post-release control instead of parole. He fails to show that
Ms. Kelly was the cause for his failure to file this claim in a timely manner or that he was
prejudiced in pursuing this claim due to her actions. On that basis alone, review of the claim is
foreclosed by the default.
Furthermore, even if review of the claim were not foreclosed, it would dismissed on the
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merits. Petitioner asserts that the erroneous reference to post-release control instead of parole
rendered his guilty plea not knowingly and intelligently made because, by Ohio law, he could
not receive post-release control. A plea is entered knowingly and intelligently if the defendant
understands the nature of the charges against him and is “aware of the direct consequences of
the plea.” King, 17 F.3d at 153. A guilty plea satisfies due process if it was entered “by one
fully aware of the direct consequences, including the actual value of any commitments made to
him by the court, prosecutor, or his own counsel.” Brady, 397 U.S. at 749, 755 .
For a guilty plea to be deemed voluntarily entered with a “sufficient awareness of the
relevant circumstances and likely consequences,” the defendant must be correctly informed of
the maximum sentence that could be imposed. Ruelas v. Wolfenbarger, 580 F.3d 403, 408 (6th
Cir.2009) (“While a defendant need not know all the possible consequences of his plea, like the
loss of his right to vote or own a gun, or the effect of a future sentence, he must be aware of the
maximum sentence to which he is exposed.”). See King, 17 F.3d at 154; Hart v. Marion Corr.
Inst., 927 F.2d 256, 259 (6th Cir.1991). On the other hand, the trial court is not obligated to
provide information to the defendant about his parole eligibility. See, e.g., Hill v. Lockhart, 474
U.S. 52, 56 (1985) (“We have never held that the United States Constitution requires the State
to furnish a defendant with information about parole eligibility in order for the defendant's plea
of guilty to be voluntary.”); see also King, 17 F.3d at 154 (finding that on entering a guilty plea,
“a defendant need not be informed of the details of his parole eligibility, including the
possibility of being ineligible for parole”).
Here, Petitioner contends that the trial court erroneously advised him that he would be
subject to post-release control sanctions rather than parole. In Ohio, defendants convicted of
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certain classified felonies are subject under Ohio Rev. Code § 2967.28 to a mandatory term of
post-release control, which the Ohio Supreme Court has defined as “a period of supervision that
occurs after a prisoner has served his or her prison sentence and is released from incarceration,
during which the individual is subject to specific sanctions with which he or she must comply.”
See State v. Clark, 119 Ohio St.3d 239, 246 (2008). Violations of post-release control conditions
“may result in additional punishment, such as a longer period of control, more restrictions
during the control period, or a prison term of up to nine months per violation, subject to a
cumulative maximum of one-half of the original stated prison term.” Id. Post-release control
begins only when the incarceration portion of the sentence has been completed and violation of
the terms of supervision may operate to add a second term of incarceration. Id.
Parole, like post-release control, is a form of supervised release. Id. That, however, is
where the similarity ends. When a person is paroled pursuant to Ohio Rev. Code §2967.13, “he
or she is released from confinement before the end of his or her sentence and remains in the
custody of the state until the sentence expires or the Adult Parole Authority grants final
release.” Id. If a paroled person violates a condition imposed with release on parole, he or she
may be required to serve the remainder of the original sentence.” Id. Moreover, parole is not
guaranteed once a prisoner has met the minimum eligibility requirements, but rather is a matter
within the state parole authority’s “wide-ranging discretion” to refuse or grant. Id. Because
parole is not mandatory and cannot serve to lengthen the defendant’s custody status beyond the
original sentence that was imposed, it is not considered “part of the maximum possible penalty,”
which must be disclosed in a plea colloquy. See id.; Hill, 474 U.S. at 56; King, 17 F.3d at 154.
Here, Petitioner was sentenced to an indefinite prison term of fifteen years to life.
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Because post-release control supervision cannot begin until Petitioner’s stated prison term has
been served, Petitioner could not be subject to post-release control until he served his life
sentence. The trial court recognized its error and corrected its judgment entry nunc pro tunc to
reflect that Petitioner was eligible for supervised release on parole after serving the minimum of
his indefinite sentence. The effect for Petitioner, however, was the same. The maximum term
of incarceration which he can be made to serve under post-release control or parole is life in
prison.
Moreover, Petitioner does not suggest that the trial court’s erroneous use of the term
post-release control instead of parole misled him to believe the maximum term of imprisonment
he faced was less than a life term. A habeas petitioner is not entitled to collateral relief unless
he or she demonstrates the existence of an error of constitutional magnitude which “had
substantial and injurious effect or influence” on the guilty plea. Brecht v. Abrahamson, 507
U.S. 619, 637 (1993). Petitioner does not claim he relied on the inclusion of post-release
control in making his decision to plead guilty. In fact, he asserts he would not have pled guilty
if he had known he was going to be sentenced to post-release control. He does not allege he
was misled by post-release control as an indication he would receive a lighter sentence.
Petitioner cites United States v. Reader, No. 06-2385, 2007 WL 3390931, at *2 (6th Cir.
Nov. 13, 2007), as support for his assertion that the inclusion of an erroneous term of postrelease control renders his plea not knowingly and intelligently made. The Reader case differs
from the case at hand in several important and material ways. Mr. Reader was in trial in federal
court on charges of possession of child pornography. At Reader's plea hearing, the magistrate
judge twice repeated that “[i]f you're convicted of this offense, you face up to ten years in
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prison; [and] up to three years thereafter of supervised release.” After Reader pled guilty, the
Probation Office prepared Reader’s Presentence Investigation Report (“PSR”), which correctly
stated that “[i]f a term of imprisonment is imposed, the Court may impose a term of supervised
release of life.” The Sixth Circuit determined that a term of supervised release of three years
after completion of ten years of incarceration was significantly different from a term of
supervised release for life after completion of ten years of incarceration and significantly altered
the maximum sentence Reader could receive. The court determined this error therefore called
the validity of his plea into question. Unlike Reader, Petitioner’s maximum sentence was not
affected by the erroneous inclusion of post-release control. He merely asserts that the court
made an error and this error should have resulted in a new sentencing hearing, not just a
correction of his judgment to reflect he was subject to parole. This would not call into question
the voluntariness of his plea.
C. Entire Sentence is Void
In the third part of his second ground for relief, Petitioner asserts that because postrelease control was erroneously made part of his original sentence rather than parole, his entire
sentence is void. He contends he is entitled to an evidentiary hearing to determine if his plea
was made in accordance with Ohio Criminal Procedure Rule 11.
This claim also was not fully exhausted in the state courts. Petitioner filed a Motion for
Re-sentencing pursuant to Ohio Revised Code §2929.191 in which he maintained that his
sentence was void because it included a term of post-release control in violation of Ohio law. In
response, the trial court issued a nunc pro tunc order that denied the Motion for Re-sentencing
and stated: “Delete five years post-release control and replace with parole.” See State v.
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Rolling, No. 95473, 2011 WL 243981 at *1-2. He appealed the denial of his Motion but instead
of raising his argument that his entire sentence was void, he focused on the nunc pro tunc order
and asserted that the trial court erred by failing to grant him a de novo hearing on re-sentencing
pursuant to Ohio Revised Code §2929.191, and State v. Singleton, 124 Ohio St. 3d 173 (2009).
In Singleton, the Ohio Supreme Court instructed courts to follow the procedures set forth in
Ohio Revised Code §2929.191 to correct the failure to properly impose post-release control by
conducting a hearing on the imposition of post-release control prior to correcting the judgment
nunc pro tunc. Petitioner did not assert that his sentence was void. Similarly, his appeal to the
Ohio Supreme Court also focused on the nunc pro tunc order and asserted he should have been
granted a de novo hearing on re-sentencing pursuant to Ohio Revised Code §2929.191, and
State v. Singleton, 124 Ohio St. 3d 173 (2009). Again, he did not argue that his sentence was
void due to the inclusion of post-release control in any other filing in state court. His claim that
his sentence was void was not exhausted in the state courts.
Further, Petitioner has no other avenue available to him in state court to assert this claim.
He asserted this claim in the trial court, but asserted other claims on appeal. There is no
procedural vehicle available to him to return to state court and appeal the denial of this claim. It
is procedurally defaulted. Again, Petitioner’s only explanation of cause for failing to exhaust
state court remedies pertained to attorney Kelley’s representation of him on appeal in 2003.
The argument that his sentence was void due to the erroneous inclusion of post-release control
was raised for the first time seven years later in Petitioner’s Motion for Re-sentencing filed in
June 2010. This claim has been procedurally defaulted.
Even if this claim were properly exhausted and not procedurally defaulted, it could not
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be asserted in this habeas petition. Petitioner contends that the inclusion of the post-release
control rendered his sentence void as a matter of Ohio law. Although he attempts to include this
claim under the umbrella of his claim that his guilty plea was not voluntarily, knowingly, and
intelligently made, he continues to assert that it is contrary to Ohio law for a person serving a
fifteen year to life sentence to receive post-release control as part of his sentence. A federal
habeas court sitting in review of a state court judgment cannot second guess a state court’s
decision concerning matters of state law. Gall v. Parker, 231 F.3d 265, 303 (6th Cir.2000)
(“Principles of comity and finality equally command that a habeas court can not revisit a state
court's interpretation of state law, and in particular, instruct that a habeas court accept the
interpretation of state law by the highest state court on a petitioner's direct appeal.”). A claim
based solely on an error of state law cannot be redressed through the federal habeas process.
Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001).
III. Third Ground for Relief
Finally, in his third ground for relief, Petitioner asserts he was denied the effective
assistance of trial counsel. He contends his trial counsel: (1) failed to inform the court that his
plea agreement did not include a period of post-release control; (2) failed to object to the postrelease control portion of his sentence and did not advise him of his right to appeal; (3) failed to
inform him of the term of post-release control prior to his plea hearing; (4) led him to believe he
would be sentenced to six years for involuntary manslaughter; and (5) failed to raise any
obvious defense to the murder charge. Each of these claims is unexhausted in the state courts
and also procedurally defaulted.
Petitioner’s claims of ineffective assistance of trial counsel which are based on counsel’s
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alleged failure to assert arguments, objections or defenses during trial should have been raised
on direct appeal. Petitioner’s direct appeal filed on February 25, 2003 was dismissed on
procedural grounds and his Motion to file a Delayed Appeal was denied. His Motion to Reopen Appeal pursuant to Ohio Appellate Rule 26(b) was based on claims of ineffective
assistance of appellate counsel, not ineffective assistance of trial counsel. This Motion was also
denied on procedural grounds. He did not exhaust these claims on direct appeal of his
conviction.
Petitioner’s claims of ineffective assistance of trial counsel which are based on advice
counsel allegedly gave to Petitioner would not appear on the record and should have been raised
in a post-conviction petition or motion. Although he asserted six claims of ineffective
assistance of trial counsel in his Motion to Withdraw Guilty Plea, he did not raise these claims
on appeal of the denial of that Motion. See State of Ohio v. Rolling, No. 95473, 2011 WL
243981 (Ohio App. 8 Dist. Jan. 13, 2011). He did not assert these claims in his Motion for Resentencing, and did not he raise them on his appeal of the denial of that Motion.
Furthermore, there is no procedural vehicle by which Petitioner can return to state court
to assert them. As stated above, his direct appeals have been foreclosed and he has already filed
his post-conviction motions and petitions. Return to state court would be futile.
Furthermore, Petitioner has not demonstrated that there was cause for him not to follow
the procedural rule and that he was actually prejudiced by the alleged constitutional error. See
Maupin, 785 F.2d at 138; Hutchison, 303 F.3d at 735; Combs, 205 F.3d at 274-75. Although
ineffective assistance of counsel can, in some instances, be cause to excuse procedural default,
there is no reasonable suggestion that the failure of attorney Kelly to file an appellate brief in
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connection with Petitioner’s Motion for Leave to File Delayed Appeal caused Petitioner to fail
to exhaust his claims of ineffective assistance of trial counsel in his original appeal, or through
post conviction proceedings initiated in 2008. Hargrave–Thomas, 374 F.3d at 388. There is no
suggestion in the Petition that Ms. Kelly’s representation of Petitioner in 2003 provides cause to
excuse his default of these claims.
For the foregoing reasons, Petitioner’s claims are unexhausted, and return to state court
would be futile.
CONCLUSION
For all the foregoing reasons, the Petition for a Writ of Habeas Corpus (ECF No. 1) is
denied and this action is dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
Further, the Court certifies, pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this decision
could not be taken in good faith, and that there is no basis upon which to issue a certificate of
appealability. 28 U.S.C. § 2253; Fed.R.App.P. 22(b).
IT IS SO ORDERED.
Dated: 9/10/12
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
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