Wulff v. Tibbals
Filing
10
Memorandum of Opinion and Order For the reasons set forth herein, the Court overrules Petitioner's objections, adopts the magistrate judge's report and recommendations, and denies in part, and dismisses in part, the petition for a w rit of habeas corpus. 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(c); Fed. R. App. P. 22(b). Judge Benita Y. Pearson on 10/31/2014. (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALEX WULFF,
Petitioner,
v.
TERRY TIBBALS, Warden
Respondent.
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CASE NO. 1:12CV3104
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 1]
Before the Court is pro se Petitioner Alex Wulff’s petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. ECF No. 1. United States Magistrate Judge Vernelis K. Armstrong
prepared a report and recommendations in accordance with 28 U.S.C. § 636(b)(1)(B), and
recommended that the habeas petition be denied. ECF No. 7. Petitioner timely filed objections to
the report and recommendations. ECF No. 9. The Court has reviewed the above filings, the relevant
portions of the record, and the governing law. For the reasons provided, the Court overrules
Petitioner’s objections, adopts the report and recommendations, and denies in part, and dismisses
in part, the habeas petition.
I. Factual and Procedural History
A.
State Trial
On the morning of July 16, 2008, Petitioner and his brother brutally beat a man with a
baseball bat in Petitioner’s front yard in Cleveland, Ohio. ECF No. 4-1 at 47. Petitioner transported
the victim in his pick-up truck and further beat him to the point of death. Id. After dumping the
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victim’s body in a Cleveland Park, Petitioner attempted to power wash the back of the pick-up truck
to destroy any evidence. Id. Petitioner later decided to burn the victim’s body in a fire pit over the
course of several hours on Petitioner’s family farm in Ashtabula, Ohio. Id. at 107-08. Petitioner and
his brother were arrested three days later. Id. at 108.
A grand jury indicted Petitioner on 10 counts. Id. at 3-12. Petitioner entered pleas of not
guilty to all counts. Id. at 13. After Petitioner underwent an evaluation, the Court determined that
Petitioner was competent to stand trial. Id. at 14. Petitioner later pled guilty to 3 of the 10
counts–murder, tampering with evidence, and gross abuse of a human corpse. Id. at 14. The
remaining counts were nolled, on the condition that Petitioner plead guilty to the aforementioned
charges. Id. Petitioner was sentenced to a term of 15 years to life on the murder charge, a term of
four years for the tampering with evidence charge, and a term of 12 months for the gross abuse of
a human corpse charge, with the terms to be served consecutively for a total of twenty years to life.
Id. at 16. The Court entered a nunc pro tunc order advising Petitioner of his five-year term of postrelease control and parole. Id. at 17.
B.
Direct Appeal
Petitioner failed to timely file a notice of appeal with the Ohio Court of Appeals. Id. at 19.
On October 15, 2009, however, Petitioner filed, pro se, a Motion for Delayed Appeal in the Eight
District Court of Appeals for Cuyahoga County. Id. at 19. On November 13, 2009, the Court
granted Petitioner’s Motion and he filed a delayed appeal. Id. at 23. His two assignments of error
were 1) the trial court’s imposition of consecutive sentences is contrary to law and an abuse of
discretion; and 2) the trial court erred by not merging convictions for tampering with evidence and
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gross abuse of a corpse which arose out of the same act with a single animus. Id. at 23. The state
filed a brief in opposition to Petitioner’s appeal. Id. at 24. On February 17, 2011, the Court of
Appeals affirmed the trial court’s ruling. State v. Wulff, 2011 Ohio 700 (Ohio Ct. App. 2011) (“Wulff
I”).
On March 30, 2011, Petitioner timely appealed the decision of the Ohio Court of Appeals
to the Ohio Supreme Court. ECF No. 4-1 at 67. In his memorandum in support of jurisdiction,
Petitioner presented two assignments of error:
1. The trial court erred when it imposed consecutive sentences without making the
findings of fact required by R.C. 2929.14(E)(4) as affirmed by the legislature
subsequent to Oregon v. Ice, and abused its discretion by not taking into consideration
the mitigating factors before imposing consecutive sentences.
2. The trial court erred when it sentenced the appellant to consecutive sentences when
the convictions for tampering with evidence and gross abuse of a corpse are allied
offenses of similar import, in violation of R.C. 2941.25 and State v. Johnson, 2010Ohio-6314.
Id. at 80-92. On April 1, 2011, the State filed a waiver of response. Id. at 93. On May 25, 2011,
the Ohio Supreme Court declined jurisdiction to hear the case and dismissed Petitioner’s appeal
because it did not involve any substantial constitutional question. Id. at 94.
C.
Rule 26(B) Application to Reopen Appeal
While awaiting a response from the Ohio Supreme Court to his direct appeal, Petitioner,
proceeding pro se, filed a “delayed” application to reopen his direct appeal pursuant to Ohio
Appellate Rule 26(B). ECF No. 4-1 at 95-132. Petitioner asserted that his appellate counsel’s
ineffective assistance compromised his appeal for failing to raise the following alleged errors:
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1. The trial court erred to the prejudice of Petitioner when it abused its discretion and
failed to inquire into Petitioner’s competency to plead guilty and to understand the
consequences of his appeal.
2. The trial court erred to the prejudice of Petitioner when, during the plea hearing,
it did not inform Petitioner of his constitutional right to compulsory process, thereby
failing to strictly comply with Ohio Crim. R. 11(C)(2)(c), in violation of the Sixth
and Fourteenth Amendments of the United States Constitution and Article I, Section
10 of the Ohio Constitution.
3. The trial court erred because it did not have the authority to impose a term of five
years of post-release control or parole for life.
Id. at 95-104. The State filed a response in opposition to Petitioner’s first two alleged assignments
of error, but conceded error on Petitioner’s third claim. Therefore, on October 4, 2011, the Court
of Appeals denied in part and granted in part Petitioner’s Motion, vacating Petitioners sentence of
5-year post-release control and remanding the case to the trial court for imposition of proper postrelease control. State v. Wulff, 2011 Ohio 5146 (Ohio Ct. App. 2011) (“Wulff II").
On November 4, 2011, Petitioner, proceeding pro se, timely filed a Notice of Appeal to the
Ohio Supreme Court. ECF No. 4-1 at 149-69. In his Memorandum in Support of Jurisdiction,
Petitioner raised the following assignments of error:
1. An appellant is denied his constitutional right to effective assistance of counsel
on direct appeal when counsel omits raising errors that could have affected the result
of the appeal in favor of the appellant or at least not caused the issues and claims to
be procedurally defaulted.
2. The trial court erred to the prejudice of Petitioner when it abused its discretion by
failing to inquire further into Petitioner’s capacity to plead guilty and understand the
consequences of his plea.
3. The trial court erred to the prejudice of Petitioner during the plea hearing when
it did not inform him of his constitutional right to compulsory process, thereby failing
to strictly comply with Ohio Crim. R. 11(C)(2)(c), in violation of the Sixth and
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Fourteenth Amendments of the United States Constitution and Article I, Section 10
of the Ohio Constitution.
ECF No. 4-1 at 151-60. On January 18, 2012, the Ohio Supreme Court declined jurisdiction and
dismissed Petitioner’s appeal as not involving any substantial constitutional question. Id. at 170.
D.
Federal Habeas Review
In a timely-filed petition for a writ of habeas corpus under 28 U.S.C. § 2254, Petitioner,
proceeding pro se, presents to this Court the following four grounds for habeas relief:
1. The trial court erred when it imposed consecutive sentences without making the
findings of fact required by R.C. § 2924.14(E)(4) as affirmed by the Ohio legislature
subsequent to Oregon v. Ice, and abused its discretion by not considering the
mitigating factors before imposing consecutive sentences on Petitioner.
2. The trial court erred when it sentenced Petitioner to consecutive sentences when
the convictions for tampering with evidence and gross abuse of a corpse are allied
offense of similar import, in violation of the Double Jeopardy clause of the United
States Constitution.
3. The trial court erred to the prejudice of Petitioner when it abused its discretion by
failing to further inquire into Petitioner’s capacity to plead guilty and understand the
consequences of his plea.
4. The trial court erred to the prejudice of Petitioner when, during the plea hearing,
it did not inform him of his constitutional right to compulsory process, thereby failing
to strictly comply with Ohio Crim. R. 11(C)(2)(c), in violation of the Sixth and
Fourteenth Amendments of the United States Constitution and Article I, Section 10
of the Ohio Constitution.
ECF No. 1 at 1-10.
The State filed a return of writ. ECF No. 4. Petitioner filed a traverse. ECF No. 6. United
States Magistrate Judge Vernelis K. Armstrong issued a report and recommendations in accordance
with 28 U.S.C. § 636(b)(1)(B), in which he recommended that the habeas petition should be denied
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in part and dismissed in part. ECF No. 7. Petitioner timely filed objections. ECF No. 9.
Petitioner’s objections, in substance, are directed only to the magistrate judge’s rejection of his
double jeopardy claim and capacity to plead guilty claim.
II. AEDPA Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court
may not grant a petition for a writ of habeas corpus with respect to any claim that was decided 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). As interpreted by the United States Supreme Court:
[u]nder the ‘contrary to’ clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by this Court on a question of
law or if the state court decides a case differently than this Court has on a set of
materially indistinguishable facts. Under the “unreasonable application” clause, a
federal habeas court may grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). The Williams
Court emphasized that a court making the “unreasonable application” inquiry may not issue the writ
simply because it “concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, a federal
habeas court should ask whether the state court’s application of clearly established federal law was
“objectively unreasonable.” Id. at 409.
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“A state court’s determination that a claim lacks merit precludes federal habeas relief so long
as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington
v. Richter, __ U.S. __, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011). Stated differently, in order
to obtain federal habeas relief, a state prisoner “must show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded disagreement.”
Id. at 786-87. “This [is a] difficult to meet . . . and highly deferential standard for evaluating statecourt rulings, which demands that state-court decisions be given the benefit of the doubt . . . .”
Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 (2011) (citation omitted;
internal quotations omitted). Furthermore, pursuant to Pinholster, “review under § 2254(d)(1) is
limited to the record that was before the state court that adjudicated the claim on the merits.” Id.
III. Discussion
The Court adopts, without further review, the magistrate judge’s recommendations to
which Petitioner did not specifically object. “A general objection to the entirety of the
magistrate’s report has the same effects as would a failure to object.” Howard v. Secretary of
Health & Human Services, 932 F.2d 505, 509 (6th Cir. 1991). 28 U.S.C. § 636 does not require a
district judge to review a magistrate judge’s report to which no objections are filed. Thomas v.
Arn, 474 U.S. 140, 145, 106 S. Ct. 466, 88 L. Ed. 2d (1986). When proper objections are filed,
the habeas court “shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636 (b)(1)(C).
The court “may accept, reject, or modify, in whole or in part, the findings or recommendations
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made by the magistrate judge.” 28 U.S.C. § 636 (b)(1)(C). Accordingly, the Court will confine
its de novo review to the magistrate judge’s recommendation that Petitioner’s double jeopardy
claim and inability to understand the plea deal claim do not merit the grant of habeas relief.
A.
Double Jeopardy (Assignment of Error Two)
Petitioner argues that the magistrate judge–who deferred to the opinion of the state court
because it was not contrary to law–erred in finding that there was no double jeopardy violation.
The Ohio Court of Appeals had concluded that Petitioner’s guilty plea for gross abuse of a corpse
and guilty plea for tampering with evidence were not allied offense and denied Petitioner’s claim
for relief. The Court of Appeals determined that because Petitioner voluntarily pled guilty to
tampering with evidence and gross abuse of a corpse as two separate offenses, Petitioner waived
any argument that these charges constituted allied offenses of similar import. See Wulff I at 27
(citing State v. Antenori, Cuyahoga App. No. 90580, 2008-Ohio-5987, *1 (Nov. 20, 2008) (“a
plea of guilty waives all non-jursidictional defects” ; “defendant who enters guilty plea to two
distinct offenses waives argument that offenses are, in reality, allied offense of similar import.”).
Notwithstanding its determination that Petitioner waived such a claim, the Court of
Appeals examined the underlying offenses to determine if they were allied offenses.1 In State v.
Johnson, 128 Ohio St.3d 153, 162-63 (2010), the Ohio Supreme Court held that the conduct of
the accused must be considered when assessing whether two offenses are allied offenses of
1
Ohio v. Blankenship, 38 Ohio St.3d 116, 119 (1988) offers the two-part test for
determining whether two acts constituted allied offenses: first, a court determines “whether the
nature of the elements of the offenses is such that in some instances they may overlap, that is,
that in certain instances, both crimes may be committed by the same conduct,”; the second part is
“ based upon the conduct involved in a particular case, and the issue is whether in fact both
offenses where committed by the same conduct.”
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similar import subject to the merger statute under R.C. §2941.25.2 In acknowledging the
lingering difficulty in the allied offenses analysis, the Court in Johnson went on to state
“different results are permissible, given that the statute instructs courts to examine a defendant’s
conduct–an inherently subjective determination.” Johnson, 128 Ohio St.3d at 163. As a result,
some recent cases on their specific set of facts have found conduct that involved the gross abuse
of a corpse and tampering with evidence to be allied offenses. See, e.g., State v. Shears, 2013
Ohio 1196 at *9 (Ohio Ct. App. 2013) (after a bench trial in which defendant was found guilty,
appeals court determined that trial court erred when it failed to merge the abuse of a corpse
conviction with the tampering with evidence conviction); State v. Crisp, 2012 Ohio 1730 (Ohio
Ct. App. 2012) (after a jury trial, the appeals court mandated the merger of a gross abuse of
corpse count and a tampering with evidence count because both arose from the disposal of one
body); State v. Evans, 2012 Ohio 850 (Ohio Ct. App. 2012) (parties themselves stipulated that
tampering with evidence and gross abuse of a corpse convictions merged for the purposes of
sentencing).
By comparison, Petitioner did not have a trial, nor did the parties stipulate that tampering
with evidence and gross abuse of a corpse were allied offenses. The Court of Appeals held that
2
The statute states:
A) Where the same conduct by defendant can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or
where his conduct results in two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment or information may contain counts
for all such offenses, and the defendant may be convicted of all of them.
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Defendant had pled guilty to two offenses of independent conduct. Petitioner tampered with
evidence by attempting to scrub his truck bed of evidence of his crime. At a later time, Petitioner
abused victim’s corpse by burning it over the course of several hours. While Petitioner is correct
in stating that his gross abuse of a corpse could be considered tampering with evidence, it need
not be the basis for the tampering with evidence charge. Tampering with evidence can be
committed without committing gross abuse of a corpse. The State “set forth separate acts of
conduct that show . . . two offenses do not merge under these circumstances.” Wulff I, 2011 Ohio
700 at *27. Absent any evidence to the contrary, this Court must defer to the findings of the
state appeals court on the state law issue. Williams, 529 U.S. at 413. See also Antenori, 2009
Ohio 5987 at *2 (foreclosing defendant’s allied offenses claim in holding “[a] review of the
record indicates that the maximum, consecutive sentence imposed upon the defendant is neither
clearly and convincingly contrary to law nor was it an abuse of discretion.”)
This analysis informs the Court’s inquiry into Petitioner’s double jeopardy claim.3
Petitioner contends that the court’s failure to construe his gross abuse of a corpse conviction and
his tampering with evidence conviction as allied offenses violates his fifth amendment right
against double jeopardy. In analyzing such claims, the Sixth Circuit has stated, in relevant part,
that:
3
Although Petitioner did not specifically present his allegation of double jeopardy to the
state court during his appeal, he relied on cases that addressed the double jeopardy issues present
in allied offenses claims. See, e.g., State v. Cabrales,118 Ohio St.3d 54 (Ohio 2008); State v.
Rance, 85 Ohio St.3d 632 (Ohio 1999). Both cases have been subsequently overruled by
Johnson, which transformed the inquiry of whether two offenses are allied offenses under the
same statutory elements from an abstract test into one that takes into consideration the conduct of
the accused. Johnson, 128 Ohio St.3d at 162.
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When two different statutory provisions authorize punishment for the same act, the
first step is to determine whether [the legislature] intended to punish cumulatively
the same conduct which violates two statutes . . . the Blockburger test does not
necessarily control the inquiry into the intent of a state legislature. Even if the
crimes are the same under Blockburger, if it is evident that a state legislature
intended to authorize cumulative punishments, a court’s inquiry is at an end . . . for
purposes of double jeopardy analysis, once a state court has determined that the
state legislature intended cumulative punishments, a federal habeas court must
defer to that determination.
Volpe v. Trim, 708 F.3d 688, 695-697 (6th Cir. 2013) (citing Bradshew 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.”)).
Petitioner’s gross abuse of a corpse charge arose under R.C. § 2927.01(B). His tampering
with evidence charge arose under R.C. § 2921.12(A)(1). Given that the appeals court in this
matter determined that the two acts were not allied offenses and Petitioner could be given
sentences under the two statutes, the Court must defer to the appeals court judgment absent any
law or Ohio Supreme Court decision to the contrary. The Court’s double jeopardy inquiry,
therefore, is at its end. See Jackson v. Smith, 745 F.3d 206 (6th Cir. 2014) (stating that the
Blockburger test, a test of statutory construction and not constitutional interpretation, does not
necessarily control the inquiry into the intent of the state legislature, but rather R.C. §2941.25
and its interpretation by the Ohio courts control).
B.
Petitioner’s Capacity to Plead Guilty (Assignment of Error Three)
Petitioner argues that the magistrate judge erred in finding that Petitioner’s third
assignment of error in his habeas petition was procedurally defaulted. In that claim, Petitioner
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argued that his counsel was ineffective for failing to raise the following error: “the trial court
erred to the prejudice of Petitioner when it abused its discretion by failing to further inquire into
Petitioner’s capacity to plead guilty and understand the consequences of his plea.” ECF No. 1 at
7. The Appeals Court of Ohio denied Petitioner’s claim and the Supreme Court of Ohio declined
jurisdiction. In his habeas petition, Petitioner presented only the underlying claim of his
ineffective assistance of counsel argument, without having raised the underlying claim on direct
appeal.
“[T]he doctrine of exhaustion requires that a claim be presented to the state courts under
the same theory in which it is later presented in federal court.” Wong v. Money, 142 F.3d 313,
322 (6th Cir. 1998); see Jalowiec v. Bradshaw, No. 1:03CV0645, 2008 WL 312655 at *24 (N.D.
Ohio January 31, 2008). “If a habeas petitioner fails to raise an issue in state court, the claim is
procedurally defaulted and may not be considered by the federal court on habeas review.”
Lorraine v. Coyle, 291 F.3d 416, 422 (6th Cir. 2002) (citing Wainwright v. Sykes, 433 U.S. 72,
80, 84-87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)).
To satisfy the exhaustion requirement, a habeas petitioner "must give the state courts one
full opportunity to resolve any constitutional issues by invoking one complete round of the State's
established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The
exhaustion requirement is satisfied when the highest court in the state has been given a full and
fair opportunity to rule on the claims of the petitioner. Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
1994) (citing Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990)). A petitioner “fairly
presents a federal habeas claim to the state courts only if he ‘asserted both the factual and legal
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basis for his claim.’” Hicks v. Straub, 377 F.3d 538, 552 (6th Cir. 2013) (quoting McMeans v.
Brigano, 228 F.3d 674, 681(6th Cir. 2002).
Petitioner did not fairly present his underlying claim questioning his capacity to plead
guilty to the state courts. Instead, he argued to the state courts that his counsel was ineffective
for raising this claim. In his traverse, Petitioner cites to the case Haliym v. Mitchell, 492 F.3d
680 (6th Cir. 2007) for the proposition that when a state court declines jurisdiction on a matter
for lack of any substantial constitutional issue, the state court necessarily rendered an opinion on
the merits, “such that review by a federal court is appropriate.” Id. at 691. Haliym, however,
also stands for another important proposition. The Sixth Circuit determined that the Ohio
Supreme Court’s brief statement that there was no “genuine issue” with respect to Petitioner’s
ineffective assistance of counsel claim still reached the merits of the claim and therefore did not
serve as a procedural bar to a federal court reviewing the Ohio Supreme Court’s decision. Id.
The Sixth Court, however, determined that Petitioner’s underlying claim was barred. The Court
stated, in relevant part:
Petitioner’s second alleged error is the substantive error underlying his
ineffective assistance of appellate counsel claim, namely, that the trial court was
without jurisdiction to try him . . . Unlike Petitioner’s ineffective assistance of
appellate counsel claim, this claim is procedurally barred and cannot serve as the
basis for granting relief to Petitioner. Id.
Similarly, in this case, Petitioner’s failure to allege the substance underlying his ineffective
assistance of counsel claim on direct appeal is what now serves as a procedural bar to this
Court’s review of the substance of that claim. See Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir.
2008) (“[B]ringing an ineffective assistance claim in state court based on counsel’s failure to
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raise an underlying claim does not preserve the underlying claim for federal habeas review
because ‘the two claims are analytically distinct.’”) (citing White v. Mitchell, 431 F.3d 517, 526,
6th Cir. 2003)).
A petitioner may avoid procedural default, however, if he demonstrates cause and
prejudice for the default, or that a miscarriage of justice will result from enforcing the procedural
default in his case. Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986). In order to demonstrate
“cause” Petitioner must show that some objective factor caused him not to follow the procedural
rule. Petitioner alleged that his counsel’s failure to raise the underlying substantive issues served
as the cause. Petitioner properly litigated the ineffective assistance of counsel issue in his Rule
26(B) motion. ECF No. 4-1 at 95. In reviewing Petitioner’s claim, the Court of Appeals
necessarily evaluated the substance of Petitioner’s ineffective assistance of counsel claim. Id. at
141. The Court found that Petitioner’s claim was without merit:
[Petitioner] argues that his appellate counsel was ineffective for failing to assign
as error the trial court’s failure to inquire into his competency to enter a plea of
guilty . . . Initially, we find that the plea colloquy, that occurred during the hearing
conducted on June 8, 2009, demonstrates that [Petitioner] was lucid when entering
his plea of guilty to the offenses of murder, tampering with evidence, and abuse of
a corpse. In addition, the competency evaluation of [Petitioner] established that
he was able to understand the nature and objectives of the court proceedings and
that he was able to assist in his defense. State v. Taylor, Lake App. No. 2002-L005, 2003-Ohio-6670. It must also be noted that [Petitioner] is not rendered
incompetent to stand trial or enter a plea of guilty because he is being treated with
medicinal drugs. State v. Borchers, 101 Ohio App.3d 157, 655 N.E.2d 225
(1995). [Petitioner’s] first proposed assignment of error is not well taken and
consideration of the issue of competency on appeal would not have resulted in a
different outcome. Wulff II.
In applying the Strickland standard, the Court reviewed the work of Petitioner’s attorney,
finding no error. Wulff II. Now, Petitioner can only obtain relief on his petition if he is able to
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show that the Appeals Court of Ohio improperly applied the Strickland standard. Petitioner must
show “that the [state court] applied the Strickland test to the facts of his case in an objectively
unreasonable manner.” Bell v. Cone, 535 U.S. 685, 698-99 (2002). Petitioner argues that the
court should have inquired further when he stated “I do not believe so your Honor” in response to
the trial court’s question “are you currently under the influence of any alcohol, drugs, or
medication that would make it so that you do not understand what is happening here today?”
ECF No. 9 at 3. Petitioner further argues that the trial court failed to do its duty to ensure that
Petitioner was making a knowing, voluntary, and intelligent plea, given Petitioner’s history of
substance abuse and mental illness. ECF No. 1 at 7, ECF No. 9 at 2.
The record lacks any evidence that Petitioner was unaware of the charges against him and
the potential penalties if found guilty of those charges. In fact, the parties stipulated to the report
of a psychiatrist who determined that Petitioner was competent to stand trial and that he
understood the charges against him. ECF No. 4-1 at 107. While acknowledging that Petitioner
suffered from mental illness, the psychiatrist determined that “the symptoms of these disorders
did not impact his ability to assist in his defense.” Id. at 115. Petitioner made the decision to
plead guilty. ECF No. 5-1 at 8-28. Contrary to Petitioner’s statement, the trial court did inquire
further into Petitioner’s state of mind during the plea colloquy. When the trial court again asked
Petitioner if he was “currently under the influence of any alcohol, drugs or medication that would
make it so you do not know what’s happening here today?”, Petitioner responded “No, Ma’am.”
ECF No. 5-1 at 9. Given the Court’s review of Petitioner’s plea colloquy, the trial record, and
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the Appellate Court’s decision on Petitioner’s Rule 26(B) motion, there is no evidence that the
state court applied the facts of Petitioner’s case in an objectively unreasonable manner.
To show a fundamental miscarriage of justice, Petitioner must prove that he is in fact
innocent of the crime for which he was convicted. McQuiggin v. Perkins, 133 S.Ct. 1924, 1920
(2013). Petitioner makes no claim of actual innocence, nor does he present evidence that “it is
more likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 299-300 (1995).
Because Petitioner failed to fully and fairly present his capacity to plead guilty claim to
the state courts, and because this Court is unable to find either just cause and actual prejudice or
a fundamental miscarriage of justice, Petitioner’s third assignment of error is procedurally
defaulted.
V. Conclusion
Based on the above, the Court overrules Petitioner’s objections, adopts the magistrate judge’s
report and recommendations, and denies in part, and dismisses in part, the petition for a writ of
habeas corpus. 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(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
October 31, 2014
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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