Moon v. Miller
Memorandum Opinion and Order Adopting Report and Recommendation re 12 dismissing in part and denying in part 1 Petition for Writ of Habeas Corpus (2254). Judge Christopher A. Boyko on 2/10/2017. (R,D)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
MICHELLE MILLER, Warden,
CASE NO. 1:15CV1972
JUDGE CHRISTOPHER A. BOYKO
MEMORANDUM OF OPINION
CHRISTOPHER A. BOYKO, J:
This matter comes before the Court on Petitioner Ernest Moon’s Petition under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF #1).
For the following reasons, the Court accepts and adopts the Magistrate Judge’s Report
and Recommendation and dismisses in part and denies in part Petitioner’s Petition.
The following is a factual synopsis of Petitioner’s claims. The Magistrate Judge’s
Report and Recommendation, adopted and incorporated, provides a more complete and
detailed discussion of the facts.
On February 11, 2013, Petitioner pleaded guilty to three counts of Kidnapping,
three counts of Rape with a Sexually Violent Predator Specification and three counts of
Gross Sexual Imposition. On March 12, 2013, the trial court sentenced Petitioner to a
sentence of sixty years to life.
Petitioner appealed his sentence to the Eighth District Court of Appeals. On
February 6, 2014, the Court of Appeals affirmed the judgment of the trial court.
Petitioner did not appeal the Court of Appeals’ Judgment to the Ohio Supreme Court.
On November 18, 2013, Petitioner filed a Motion to Withdraw Guilty Plea. The trial
court denied Petitioner’s Motion to Withdraw Guilty Plea on December 4, 2013.
Petitioner filed a Response to the trial courts denial on January 2, 2014. The trial court
construed the Response as a Motion for Reconsideration and denied the Motion.
Petitioner filed a Notice of Appeal and a Motion to File a Delayed Appeal with the
Eighth District Court of Appeals on May 16, 2014. On June 2, 2014, the Court of
Appeals denied the Motion. On July 16, 2014, Petitioner filed a second Motion to
Withdraw Guilty Plea. The trial court denied Petitioner’s Motion on August 20, 2014.
Petitioner filed an Appeal of the August 20, 2014 Judgment. On April 30, 2015, the
Court of Appeals affirmed the Judgment of the trial court. Petitioner filed a Notice of
Appeal with the Ohio Supreme Court. On August 26, 2015, the Supreme Court of Ohio
declined to accept jurisdiction of the Appeal and dismissed the case.
Petitioner filed the instant Petition on September 24, 2015, asserting three
grounds for relief:
GROUND ONE: The trial court abused its discretion and violated due
process when it did not grant the petitioners Motion for Withdraw of Guilty
Plea pursuant to Crim.R.32 (same in Federal as in State) and violated his
right to be tried by a jury. Fifth, Sixth, and Fourteenth Amendments of the
United States Constitution; Section 5 and Section 16, Article 1, Ohio
GROUND TWO: The trial court abused its discretion when it denied
petitioners Motion to Withdraw Guilty Pleas pursuant to Crim.R.32 as
untimely and could have been brought up on direct appeal. Due process
GROUND THREE: The Court of Appeals abused its discretion and
violated due process when it allowed the Appellee to submit reasons for
denying the petitioner’s appeal that were different from those on the
record of appeal.
On October 2, 2015, this Court referred Petitioner’s Petition to the Magistrate
Judge for a Report and Recommendation. The Magistrate Judge issued his Report and
Recommendation on December 20, 2016. On January 11, 2017, Petitioner filed his
Objection and Reasoning to Magistrate Judge’s Report and Recommendation.
STANDARD OF REVIEW
When a federal habeas claim has been adjudicated by the state courts, 28
U.S.C. § 2254(d)(1) provides the writ shall not issue unless the state decision “was
contrary to, or involved an unreasonable application of, clearly established federal law
as determined by the Supreme Court of the United States.” Further, a federal court may
grant habeas relief if the state court arrives at a decision opposite to that reached by the
Supreme Court of the United States on a question of law, or if the state court decides a
case differently than did the Supreme Court on a set of materially indistinguishable
facts. Williams v. Taylor, 529 U.S. 362, 405-406 (2000). The appropriate measure of
whether or not a state court decision unreasonably applied clearly established federal
law is whether that state adjudication was “objectively unreasonable” and not merely
erroneous or incorrect. Williams, 529 U.S. at 409-411.
Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are
presumed correct, rebuttable only by clear and convincing evidence to the contrary.
McAdoo v. Elo, 365 F. 3d 487, 493-494 (6th Cir. 2004). Finally, Rule 8(b)(4) of the Rules
Governing §2254 states:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the
court may accept, reject, or modify in whole or in part any
findings or recommendations made by the magistrate.
Respondent asserts that Ground One is only cognizable for the limited purpose
of the reasonableness of the state court’s factual determination that Petitioner’s guilty
plea was voluntary. In a habeas proceeding, the State bears the burden of showing the
petitioner’s plea was valid and usually does so by producing a transcript of the plea
hearing. Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993). Petitioner claims that
he was promised a lesser sentence than was placed on the record if he pled guilty.
The Magistrate Judge thoroughly reviewed the record of the plea colloquy.
Petitioner explicitly denied that anyone had made any promises to him to induce his
plea, told the court that he was satisfied with his counsel’s representation and that he
fully understood the terms of the plea and the precise penalties that could be imposed
for each count. Because a valid plea is a solemn declaration of guilt by the defendant, it
carries a presumption of truthfulness. Blackledge v. Allison, 431 U.S. 63, 74 (1977).
In Petitioner’s Objection, he states that his plea could not have been knowing
and voluntary because he was under the impression his sentence would only be five
years. The Court does not find Petitioner’s statements credible. The record is clear that
Petitioner’s plea was voluntary and intelligently made with a full understanding of the
consequences to the sentence. The Court agrees with the Magistrate Judge that the
Court of Appeals decision was not contrary to clearly established federal law. Ground
One is without merit and denied.
In Grounds Two and Three, Petitioner appears to be challenging a procedural
deficiency in a state post-conviction proceeding. The Magistrate Judge points out that
the Supreme Court has recognized that § 2254(d)(2) demands that a federal habeas
court accord the state trial courts substantial deference. Brumfield v. Cain, 135 S.Ct.
2277. Therefore, the Magistrate Judge concluded that Petitioner’s arguments that his
due process was violated when the state court denied the Motion to Withdraw, found
the Motion to be untimely, and/or permitted the State to raise issues in its Appellate
Brief that were not before the trial court when it denied the original Motion, are noncognizable.
Under § 2254(e)(1), “a determination of a factual issue made by a [s]tate court
shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1) (2012). “The role of a federal
habeas court is to guard against extreme malfunctions in the state criminal justice
systems, not to apply de novo review of factual findings and to substitute its own
opinions for the determination made on the scene by the trial judges.” Davis v. Ayala,
135 S.Ct. 2187, 2202 (2015) (citation omitted). Here, the Magistrate Judge correctly
concluded that Petitioner’s claims are not subject to review in a federal habeas
As was observed by the federal habeas court in Gibson v. Hocking Correctional
Facility, a state defendant has no federal constitutional right, or absolute right under
state law, to withdraw a guilty plea. See e.g., Dickey v. Warden, Lebanon Corr. Inst.,
No.1:08cv819, 2010 WL 92510, at *1, *8 (S.D. Ohio Jan.6, 2010) (Beckwith, J.; Black,
M.J.) (and numerous cases cited therein); see also Cline v. Kelly, No.1:09cv859, 2010
WL 1006529, at *5 & n.7 (N.D.Ohio Mar.16, 2010)(citing United States v. Woods, 554
F.3d 611, 613 (6th Cir.2009); Xie v. Edwards, No.93-4385, 1994 WL 462143,
at *2 (6th Cir. Aug.25, 1994)). Gibson v. Hocking Correctional Facility, No.1:10CV8,
2011 WL 1429099 (S.D. Ohio Feb. 23, 2011). Therefore, the Court finds that Grounds
Two and Three are dismissed as non-cognizable.
For the foregoing reasons, the Court ADOPTS and ACCEPTS the Magistrate
Judge’s well-reasoned Report and Recommendation, and denies in part and dismisses
in part Petitioner’s Petition Under 28 U.S.C. §2254 for Writ of Habeas Corpus by a
Person in State Custody.
The Court finds an appeal from this decision could not be taken in good faith. 28
U.S.C. § 1915 (a)(3). Since Petitioner has not made a substantial showing of a denial
of a constitutional right directly related to his conviction or custody, the Court declines to
issue a certificate of appealability. 28 U.S.C. § 2253 (c)(2); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
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