Schwieterman v. Smith

Filing 15

Memorandum Opinion that petitioner's objections (Doc. No. 14 ) to the Report and Recommendation are overruled and the Report and Recommendation (Doc. No. 11 ) is accepted. The petition for writ of habeas corpus is denied and the case is dismissed. Further, the Court certifies 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. Judge Sara Lioi on 10/3/2013. (S,He)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

NICHOLAS R. SCHWIETERMAN,

PETITIONER,
vs.
KEVIN SMITH, Warden,

RESPONDENT.

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CASE NO. 3:11CV1203

JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court is the Report and Recommendation (“R&R”) of Magistrate
Judge Kathleen B. Burke, recommending denial of this petition for writ of habeas corpus filed
under 28 U.S.C. § 2254. (Doc. No. 11.) Represented by counsel, petitioner Nicholas R.
Schwieterman (“petitioner” or “Schwieterman”) filed objections. (Doc. No. 14.) Respondent
filed neither his own objections nor any response to petitioner’s objections. Pursuant to Fed. R.
Civ. P. 72(b)(3), the Court has conducted its de novo review of the matters raised in the
objections. For the reasons discussed below, the objections are overruled, the R&R is accepted,
and the petition for writ of habeas corpus is denied and dismissed.
I. BACKGROUND
The facts, which “shall be presumed to be correct” absent clear and convincing
evidence brought forward by petitioner, 28 U.S.C. § 2254(e)(1), were set forth as follows by the
Third District Court of Appeals of Ohio, and included some facts that were stipulated by the
parties:
{¶1} The defendant-appellant, Nicholas Schwieterman, appeals the judgment of
the Mercer County Common Pleas Court sentencing him to an aggregate prison

term of 24 years. On appeal, Schwieterman contends that his sentence violates the
Eighth Amendment protection against cruel and unusual punishment, and that the
trial court erred by imposing consecutive and non-minimum sentences. For the
reasons set forth herein, the judgment of the trial court is affirmed.
{¶2} The parties have stipulated to the following facts:
On or about March 15, 2008, at approximately 2:15 a.m. Deputies
from the Mercer County Sheriff’s Office were dispatched to an injury
collision at the intersection of County Road 716A and Brockman
Road in Mercer County, Ohio. When they arrived on scene, they
observed a grey Pontiac Bonneville off the road in the northwest
corner of the intersection. It was severely damaged and the rear end
of the vehicle had collided with the utility pole located in the field at
the northwest corner of the intersection. They further observed a red
Pontiac Grand Prix in a field further northwest of the grey
Bonneville. The red Pontiac Grand Prix was also severely damaged.
The investigation revealed that the 1996 Pontiac Bonneville was
traveling westbound on Brockman Road when it failed to yield the
right-of-way and/or stop for the stop sign that controls the
intersection of 716A and Brockman Roads. The Bonneville collided
with the red 1995 Pontiac Grand Prix which had been traveling
northbound on County Road 716A at the time of the collision. The
Pontiac Grand Prix was being operated by Jordan Moeller and
passengers in the vehicle were Jordan Diller, Bradley Roeckner and
Jordan Goettemoeller. All four occupants in the Pontiac Grand Prix
died as a proximate result of the collision.
Deputies approached two male individuals identified as Nicholas
Schwieterman and Kyle Schmitmeyer. They both had blood shot eyes
and strong odors of alcohol on or about their persons, also Nicholas
Schwieterman[’s] speech was slurred and he was hard to understand.
They both initially denied they were driving the Bonneville, they were
both read Miranda rights and were both transported to Coldwater
Community Hospital/Mercer Health. Upon questioning Schwieterman
at the hospital he admitted he was the driver of the motor vehicle and
Schmitmeyer also identified Schwieterman as the driver.
Schwieterman consented to a blood draw and urine sample after
being read the BMV 2255 form. The blood sample was submitted to
the Ohio State University Medical Center Clinical Laboratories for
forensic testing on March 15, 2008. Mr. Schwieterman was arrested
for Aggravated Vehicular Homicide and transported to the Mercer
County Jail.

2

The Ohio State University Medical Center Clinical Laboratories
completed [its] analysis of the blood sample and conclude[d] that Mr.
Schwieterman had a concentration of one hundred thirty-four
thousands (0.134) of one percent by weight per unit volume of alcohol
in Schwieterman’s whole blood.
The Ohio State University Medical Center Clinical Laboratories
completed [its] analysis of the urine sample collected from Mr.
Schwieterman after the crash. The test concluded the Defendant
possessed 7990 ng/ml of Cocaine in his urine. The test also concluded
that the Defendant possessed 48 ng/ml of THC in his urine.
Stipulation of Facts on No Contest Plea, Oct. 9, 2008.
{¶3} On April 7, 2008, the Mercer County Grand Jury indicted Schwieterman on
the following charges: four counts of involuntary manslaughter, violations of R.C.
2903.04(A), first-degree felonies; one count of possession of drugs, a violation of
R.C. 2925.11(A), (C)(4)(a), a fifth-degree felony; four counts of aggravated
vehicular homicide, violations of R.C. 2903.06(A)(1)(a), (B)(1)(2)(a), seconddegree felonies; one count of operating a motor vehicle while under the influence
of alcohol or drugs of abuse, a violation of R.C. 4511.19(A)(1)(a), (G)(1)(a)(i), a
first-degree misdemeanor; one count of operating a motor vehicle while under the
influence of alcohol or drugs of abuse, a violation of R.C. 4511.19(A)(1)(b),
(G)(1)(a)(i), a first-degree misdemeanor; four counts of aggravated vehicular
homicide, violations of R.C. 2903.06(A)(2)(a), (B)(1)(3), third-degree felonies;
and one count of trafficking in drugs, a violation of R.C. 2925.03(A)(1), (C)(4)(a),
a fifth-degree felony.1 At arraignment on April 10, 2008, Schwieterman pled not
guilty to each charge.
1

Schwieterman had previously been indicted by the Mercer County Grand
Jury on ten counts in Mercer County Common Pleas Court case number
08-CRM-016. The indictment in that case was dismissed following the
state’s receipt of toxicology results, which indicated the presence of
cocaine and marijuana in Schwieterman’s blood and urine on the morning
of March 15, 2008. A special session of the grand jury was conducted, and
the above referenced indictment was filed in Mercer County Common
Pleas Court case number 2008-CRM-022, which is before us on appeal.
{¶4} On May 5, 2008, Schwieterman filed a motion to suppress evidence. The
state filed a response, and both parties filed post-hearing memoranda. On July 16,
2008, the court denied the motion. The state filed a motion for change of venue on
July 31, 2008, which Schwieterman moved to strike on August 8, 2008. The court
granted Schwieterman’s motion to strike on August 11, 2008.

3

{¶5} On October 9, 2008, a waiver of constitutional rights prior to entering pleas
of no contest, which Schwieterman had signed, was filed. The parties filed the
stipulation of facts on no contest plea, which was quoted above, and a written
negotiated plea agreement was filed. Schwieterman pled no contest to four counts
of involuntary manslaughter, one count of possession of drugs, and one count of
operating a motor vehicle while under the influence of alcohol or drugs of abuse
(“OMVI”). The state agreed to, and did, dismiss the remaining counts of the
indictment. On October 20, 2008, the court filed its judgment entry finding
Schwieterman guilty on the charges to which he had pled no contest.
{¶6} Schwieterman filed a sentencing memorandum on November 10, 2008, and
on November 12, 2008, the trial court held a sentencing hearing. Based solely on
the pre-sentence investigation report, the court made preliminary determinations
under R.C. 2929.12 that the victims and their families had suffered serious
physical and psychological harm; that Schwieterman had been adjudicated
delinquent as a juvenile; and that Schwieterman showed genuine remorse.
Schwieterman presented testimony from Roberta Donovan, a mental health
counselor at Foundations Behavioral Health Services, his life-long friend, Sarah
Hein, and his father, Robert Schwieterman.
{¶7} Donovan testified that Schwieterman was on suicide watch at the Mercer
County Jail when she had her first correspondence with him. At that time, “some
of the first comments out of his mouth were ‘Oh, my God’ which he repeatedly
said. He also made comments of ‘just shoot me.’ ‘Someone get rid of me.’ ‘I am
going to have a heart attack.’ ‘I am fucking dead’ and ‘I'm going to be all by
myself for a long time.’ ‘Get rid of me. I will pay you.’” Sentencing Tr., Jan. 2,
2009, at 9:19-24. Donovan stated that Schwieterman was crying and scared, and
she observed that his emotions were “heart-felt.” Id. at 10. Donovan stated that
she continued to provide counseling services to Schwieterman after he was
released on bond, and he had never missed a session with her. Id. at 12.
Schwieterman told Donovan that he wanted to apologize to the victims’ families,
and he wanted to schedule speaking engagements to tell others his story and about
the victims. Id. at 14. Donovan stated that she found Schwieterman to be different
from her typical clients because he openly shared his feelings with her. Id. at 15.
She also believed that Schwieterman’s expressed feelings were genuine; that his
feelings were for the victims and not self-pity; and that he could benefit the
community because he was willing to accept the consequences of his actions and
was willing to try to make a difference. Id. at 14-15.
{¶8} On cross-examination, Donovan testified about Schwieterman’s alcohol and
drug abuse. Schwieterman reported that he began drinking alcohol at age 15,
using marijuana at age 20, and using cocaine during his senior year of high
school. Id. at 21-22. Schwieterman later told her that his drug habits formed in the
following order: alcohol, nicotine, marijuana, and cocaine. Id. at 23.2
Schwieterman disclosed that he would drink alcohol on Thursday nights and
4

during the weekends; that he used marijuana once per week; and that he used
cocaine once per month. Id.
2

The pre-sentence investigation report supported the latter statement.
However, alcohol abuse began at age 15, and drug abuse began while
Schwieterman was in high school.
{¶9} The next defense witness was Sarah Hein, Schwieterman’s life-long friend
and neighbor. Hein testified that she and Schwieterman were close to each other
and described a sibling-like relationship. Id. at 27. Hein told the court that
Schwieterman was very hurt by the collision and would trade places with any of
the victims if he could. Id. at 29. Hein testified that Schwieterman cried about the
collision, and she believed that his tears were for the victims and not out of selfpity. Id. Hein also indicated Schwieterman’s desire to make presentations after he
had served his sentence. Id. at 30. On cross-examination, Hein testified that she
had seen Schwieterman and his family praying for the victims and their families,
and that she had been surprised when she learned the frequency of his drug use.
Id. at 36.
{¶10} Finally, Schwieterman’s father, Robert, testified that he had been aware of
his son’s “partying.” Id. at 44. Robert had known that Schwieterman worked
when it was time to work and partied when it was time to party. Id. Robert stated
that he had never talked to Schwieterman about underage drinking because his
father had never talked about it with him and because “it’s the social system in
this area.” Id. at 45. Robert discussed his son’s emotional state since the collision,
indicating that Schwieterman had been inconsolable and wished he could have
been the one to die instead of the victims. Id. at 49.
{¶11} On cross-examination, Robert admitted he had been aware of
Schwieterman’s juvenile adjudication, which was for an alcohol-related offense,
and he had also been aware of Schwieterman’s conviction for criminal damaging.
Id. at 51. However, Robert indicated that Schwieterman’s juvenile adjudication
made him more secretive about his alcohol use, and he downplayed the facts of
the misdemeanor conviction while demonstrating that Schwieterman had accepted
responsibility for the act, had served his sentence, had been offered a job upon his
completion of community service. Id. Robert believed his son’s remorse to be
genuine. Id. Robert testified that Schwieterman was always concerned about his
appearance and only wore pressed shirts. Id. at 53. He also stated that he had not
been aware of Schwieterman’s drug usage, and that Schwieterman had been able
to keep his drug use a secret from the entire family. Id. at 46; 54.
{¶12} Defense counsel then spoke on Schwieterman’s behalf. Counsel asked the
victims’ families to forgive Schwieterman for his failure to apologize earlier.
Counsel indicated that Schwieterman had wanted to apologize to the victims’
families since the collision, but he had not done so on counsel’s advice. Counsel
5

also expressed concern that the community had a serious alcohol and drug abuse
problem. Counsel stated that he was shocked to learn how common alcohol abuse
was in the community; that bars were openly serving alcohol to people under the
age of 21; and that the community seemed to view drinking and driving as an
acceptable practice. Counsel noted that the community had been supportive of
Schwieterman until the toxicology reports had been released and revealed
Schwieterman’s cocaine use. Counsel noted Schwieterman’s genuine remorse for
the collision, and his desire to begin speaking engagements.
{¶13} Counsel requested that the court impose a prison term of between eight and
twelve years. Counsel told the court that a harsh sentence would simply send
Schwieterman to prison, and the community would forget him. However, if the
court was reasonable in sentencing, Schwieterman would be able to return to the
community and be scorned by residents who would recognize him and remember
the crimes he had committed. A more reasonable sentence would serve as a “wake
up call” to the young people of the community that alcohol abuse and drinking
and driving are not acceptable.
{¶14} Schwieterman also made a statement in which he first said that he had
made the worst decision of his life on March 15, 2008. Schwieterman apologized
to the families and indicated that “[n]ot a day will go by the rest of my life that I
don’t think of those four boys and the great lives that were taken that night.” Id. at
67. Schwieterman stated that his “decision to get behind the wheel while under
the influence was, you know, a horrible, horrible mistake.” Id. at 68.
Schwieterman told the court that a day will never pass that he does not think
about the victims, and he hoped that one day he would be able to give
presentations that might prevent even one person from making the same decisions
he had made. Id. Schwieterman ended his statement by asking that the victims’
families some day find peace and forgive him. Id. at 68-69.
{¶15} Representatives from each of the victims’ families were given the
opportunity to speak. Their readings were emotional and described the effects of
losing their children in such an abrupt manner. Several parents described their
dead sons’ bodies at the hospital following the collision and how they had held
their sons’ bodies for hours. One of the fathers described having been dispatched
to the scene of the collision as a first-responder and being apprehended by his
colleagues to prevent him from finding his deceased son in the wreckage. Several
siblings testified about their losses, and parents talked about how other siblings
had been affected; several smaller children waking with nightmares and other
small children sleeping in their deceased brother’s bed each night.
{¶16} Finally, the assistant prosecutor spoke on behalf of the state of Ohio and
requested a “lengthy and significant sentence.” Id. at 122. The state addressed
Ohio’s sentencing statutes, and focused on Schwieterman’s concern with
appearances, his ability to hide drug use from his family and Hein, and his lack of
6

remorse. The state noted Schwieterman’s statements, which had been recorded
when he was transported by law enforcement from the hospital to the county jail
and which were played during the hearing. In particular, the state focused on
Schwieterman’s statements about his life being over and his asking law
enforcement to end his life. Id. at 114. The state believed that, contrary to other
witnesses’ opinions, such statements demonstrated self-pity rather than concern
for the victims and their families.
{¶17} After a short recess, the court proceeded to sentence Schwieterman to four,
consecutive six-year prison terms for the involuntary manslaughter convictions.
The court also imposed a one-year prison term for the possession of drugs
conviction and six months in the county jail for the OMVI conviction. The court
ordered those sentences to be served concurrently with the sentences imposed for
the involuntary manslaughter convictions for an aggregate prison term of 24
years. The court filed its judgment entry of sentence on November 14, 2008.
Schwieterman appeals the judgment of the trial court, raising two assignments of
error for our review.
(Return of Writ, Doc. No. 7-18 at 1275-84, bolding and footnotes in original.)
Represented by new counsel, Schwieterman filed a direct appeal, asserting two
assignments of error:
I.

The trial court violated appellant’s Eighth Amendment, [sic] made
applicable to the States by the Fourteenth Amendment right against cruel
and unusual punishment by sentencing him to a term of twenty four years
in prison.

II.

The trial court erred in imposing consecutive/non minimum sentences on
the appellant.

(Doc. No. 7-15 at 1203.) On May 18, 2009, the court of appeals overruled the two assignments
of error and affirmed the judgment of the trial court. (Doc. No. 7-18.)
Again represented by counsel, on July 2, 2009, Schwieterman timely appealed the
appellate court’s decision to the Ohio Supreme Court, asserting as propositions of law the same
two grounds he had raised before the court of appeals. (Doc. No. 7-20.) On October 14, 2009, the
Ohio Supreme Court declined jurisdiction and dismissed the appeal as not involving any
substantial constitutional question. (Doc. No. 7-22.)
7

Meanwhile, while his direct appeal was pending, on May 7, 2009, through the
same counsel representing him on direct appeal, Schwieterman filed in the trial court a petition
for post-conviction relief. He asserted the following six claims:
I.

Petitioner was denied due process pursuant to the Fifth Amendment to the
federal Constitution made applicable to the States via the Fourteenth
Amendment due to the State of Ohio failing to fully investigate this
matter.

II.

Petitioner was denied due process pursuant to the Fifth Amendment of the
federal Constitution made applicable to the State of Ohio via the
Fourteenth Amendment when the State of Ohio destroyed exculpatory
evidence, the air bag sensors attached to the 1995 Grand Prix.

III.

Petitioner was denied due process by the misconduct of the Mercer
County prosecutor’s office.

IV.

Petitioner was denied effective assistance of counsel guaranteed by the
Sixth Amanemdnet [sic] made applicable to the States via the Fourteenth
Amendment for failing to properly investigate the government’s
allegations of how this accident occurred.

V.

Petitioner was denied effective assistance of counsel guaranteed under the
Sixth Amendment to the federal Constitution made applicable to the States
via the Fourteenth Amendment for failing to give sound advice regarding
the plea agreement.

VI.

Petitioner’s incarceration is a violation of the Eighth and Fourteenth
Amendments to the federal Constitution based upon his actual innocence
of the crime for which he plead no contest.

(Doc. No. 7-23 at 1364-65.) On July 23, 2009, the trial court denied the petition. (Doc. No. 725.) On August 11, 2009, an appeal was filed by counsel for Schwieterman. (Doc. No. 7-26.) In
his appellate brief, Schwieterman raised five assignments of error:
I.

The trial court erred in denying the post conviction petition without
holding an evidentiary hearing.

II.

The trial court erred in making a specific finding that the government did
not violate his right to due process guaranteed by the Fifth Amendment to
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the federal Constitution made applicable to the States by the Fourteenth
Amendment by destroying potentially exculpatory evidence.
III.

The trial court erred in making a specific finding that the prosecutor had
not engaged in misconduct.

IV.

The trial court erred in specifically finding that trial counsel was effective
purusant [sic] to the Sixth Amendment of the federal Constitution made
applicable to the States by the Fourteenth Amendment.

V.

The trial court erred in specifically finding that the appellant is not
actually innocent of the crime for which he plead no contest.

(Doc. No. 7-28 at 1699.) On January 21, 2010, the court of appeals affirmed the trial court’s
judgment. (Doc. No. 7-31.) Schwieterman unsuccessfully sought reconsideration by the court of
appeals. (Doc. Nos. 7-32, 7-35.) An appeal to the Ohio Supreme Court was filed through
counsel, raising five propositions of law:
I.

An appellate court cannot, sua sponte, raise an affirmative defense for a
party to a civil action including post conviction proceedings.

II.

The trial court and the court of appeals erred in making a specific finding
that the government did not violate his right to due process guaranteed by
the Fifth Amendment to the federal Constitution made applicable to the
States by the Fourteenth Amendment by destroying potentially
exculpatory evidence.

III.

The trial court and the court of appeals erred in making a specific finding
that the prosecutor had not engaged in misconduct.

IV.

The trial court and the court of appeals erred in specifically finding that
trial counsel was effective purusant [sic] to the Sixth Amendment of the
federal Constitution made applicable to the States by the Fourteenth
Amendment.

V.

The trial court erred in denying the post conviction petition without
holding an evidentiary hearing.

(Doc. No. 7-37 at 1823.) On June 9, 2010, the Ohio Supreme Court declined jurisdiction and
dismissed the appeal as not involving any substantial constitutional question. (Doc. No. 7-39.) A
9

timely-filed petition for certiorari was denied by the United States Supreme Court on November
8, 2010. (Doc. No. 7-40.)
Still represented by counsel, Schwieterman filed the instant petition on June 10,
2011, raising four grounds for relief:
Ground One: The trial court violated petitioner’s Eighth Amendment, [sic] made
applicable to the States by the Fourtheenth [sic] Amendment right against cruel
and unusual punishment by sentencing him to a term of twenty four years in
prison.1
Ground Two: The State of Ohio violated pettitioner’s [sic] right to due process
guaranteed by the Fifth Amendment to the federal Constitution made applicable
to the States by the Fourteenth Amendment by destroying potentially exculpatory
evidence.2
Ground Three: The State of Ohio via the Mercer County prosecutor had
engaged in misconduct.3
Ground Four: Trial counsel did not provide effective assistance of counosel
[sic] pursuant to the Sixth Amendment of the federal Constitution made
applicable to the States by the Fourteenth Amendment.4
(Doc. No. 1.) Respondent filed a return on September 30, 2011 (Doc. No. 7), and Schwieterman
filed a traverse on January 2, 2012 (Doc. No. 10).
On August 20, 2012, the Magistrate Judge issued her R&R recommending denial
of the petition. The R&R specifically concludes that Grounds Two, Three and Four are waived
by virtue of petitioner’s no contest plea and, further, are procedurally defaulted. With respect to
Ground One, which the R&R addresses on the merits, the Magistrate Judge concludes that
petitioner failed to meet his burden of establishing that the state appellate court’s decision was an

1

This ground was raised as assignment of error number 1 in petitioner’s direct appeal.

2

This ground was raised as claim number 2 in the post-conviction relief petition before the trial court.

3

This ground was raised as claim number 3 in the post-conviction relief petition before the trial court.

4

This ground is a combination of claims 4 and 5 raised in the post-conviction relief petition before the trial court.

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unreasonable application of federal law with respect to the Eighth Amendment prohibition
against cruel and unusual punishment. The R&R further concludes that there is no reason for
discovery and/or an evidentiary hearing because the issues can be, and should be, decided on the
same record that was before the state court.
Petitioner has raised four objections:
1.

Petitioner did not waive constitutional violations of the state court by
entering a no contest plea.

2.

Petitioner’s claims are not barred by res judicata.

3.

Petitioner’s Eighth Amendment claim has merit.

4.

Petitioner is entitled to discovery and an evidentiary hearing.

(Doc. No. 14.)
II. DISCUSSION
A.

Standard of Review
Under 28 U.S.C. § 636(b)(1), “[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.” Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at
* 1 (6th Cir. Sept. 30, 1994) (“Any report and recommendation by a magistrate judge that is
dispositive of a claim or defense of a party shall be subject to de novo review by the district court
in light of specific objections filed by any party.”). “An ‘objection’ that does nothing more than
state a disagreement with a magistrate’s suggested resolution, or simply summarizes what has
been presented before, is not an ‘objection’ as that term is used in this context.” Aldrich v. Bock,
327 F. Supp. 2d 743, 747 (E.D. Mich. 2004). See also Fed. R. Civ. P. 72(b)(3) (“[t]he district
judge must determine de novo any part of the magistrate judge’s disposition that has been
11

properly objected to”); LR 72.3(b) (any objecting party shall file “written objections which shall
specifically identify the portions of the proposed findings, recommendations, or report to which
objection is made and the basis for such objections”). After review, the district judge “may
accept, reject, or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).
In conducting its de novo review in a habeas context, this Court must be mindful
of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (“AEDPA”), which provides:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim−
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). “Section 2254(d) reflects the view that habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Jackson
v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
“Under 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 [the Supreme] Court on a question
of law or if the state court decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts. Under the ‘unreasonable application’ clause, a federal habeas
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court may grant the writ if the state court identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
In addition, “a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant [for a writ of habeas corpus] shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1).
B.

De Novo Review of Objections
1.

No Contest Plea as a Waiver of Pre-Plea Constitutional Violations
Petitioner pled no contest to six counts of the indictment (four first degree

felonies, one fifth degree felony, and one first degree misdemeanor). He was subsequently
sentenced to six years imprisonment for each first degree felony, all to run consecutively, and to
one year for the fifth degree felony and six months for the misdemeanor, the latter two sentences
to run concurrently with the others, for a total of 24 years imprisonment.
Respondent argued in his return of writ that, because of petitioner’s plea, all of the
grounds asserted in the habeas petition have been waived because petitioner has not contended
that his plea was unknowing, involuntary, or unintelligent.5

5

“The focus of federal habeas inquiry [with respect to a plea] is the nature of the advice and the voluntariness of the
plea, not the existence as such of an antecedent constitutional infirmity.” Tollett v. Henderson, 411 U.S. 258, 266
(1973). “When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of
the guilty plea by showing that the advice he received from counsel was not within the standards set forth in
McMann [v. Richardson, 397 U.S. 759 (1970).]” Id. at 267. In McMann, the Court held that “[w]hether a plea of
guilty is unintelligent . . . depends . . . not on whether a court would retrospectively consider counsel’s advice to be
right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal
cases.” Id. at 770-71 (footnote omitted).

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The R&R concludes that ground one, relating to sentencing, is not waived by
petitioner’s plea and is, therefore, a proper matter for consideration on the merits. Not
surprisingly, petitioner has made no objection to this conclusion with respect to waiver. Nor has
respondent objected. Therefore, the Court accepts the R&R’s conclusion that ground one is not
waived and will separately consider below petitioner’s objection on the merits of ground one.
The R&R next concludes that the issues raised in grounds two and three, which
involve pre-plea matters, are waived as a result of the plea. There is nothing in petitioner’s first
objection that addresses this conclusion with respect to grounds two and three and, therefore, to
that extent, the R&R is accepted. Grounds two and three are deemed waived and will not be
considered on the merits.
The R&R’s conclusions with respect to the waiver of ground four are slightly
more nuanced. It reads ground four as raising two challenges: (1) to the effectiveness of counsel
with respect to the pre-plea investigation of the crash; and (2) to the effectiveness of counsel with
respect to the advice given vis-a-vis entering a plea. As to the first, the R&R concludes that,
because it relates to pre-plea actions of counsel, it is waived as a result of the plea. As to the
second, the R&R concludes that, in theory, to the extent this argument could be construed as a
challenge to the plea, it would not be waived; however, since petitioner has not shown how trial
counsel’s purported ineffectiveness invalidated his guilty plea6 and, further, since petitioner is

6

See Doc. No. 11 at 1929, citing McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“Issues adverted to in
a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on
its bones.”).

14

not actually contending that his plea was unknowing, involuntary, and/or unintelligent, the R&R
declines consideration of this aspect of ground four.7
To the extent one can read petitioner’s argument as an overall challenge to the
plea, the R&R is correct that, in theory, it would not necessarily be waived for purposes of
habeas. Naturally, petitioner offers no objection to that conclusion. His objection attempts to
challenge the R&R’s proposed dismissal of ground four on its merits. The Court concludes that
ground four is not automatically waived as a result of petitioner’s plea, and will, therefore,
address the merits of petitioner’s objection with respect to ground four below, not as part of this
section on waiver.
In summary, the Court accepts the R&R’s conclusion that grounds two and three
are waived as a result of petitioner’s guilty plea. Grounds one and four are not waived and will
be addressed on the merits below.
2.

Second, Third, and Fourth Grounds Barred by Res Judicata
The R&R concludes that grounds two, three, and four are all barred by res

judicata because, as found by the state court of appeals, they were raised for the first time in
post-conviction proceedings when they could have, and should have, been raised on direct
appeal. (Doc. No. 11 at 1931-32.)
It appears that petitioner’s objection is directed only at whether ground four is
barred by res judicata. There is no argument directed toward grounds two and three and,
therefore, the R&R is accepted to the extent it found grounds two and three procedurally barred.

7

See Doc. No. 11 at 1929, citing Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S.
238, 242 (1969); King v. Dutton, 17 F.3d 151, 153 (6th Cir.), cert. denied, 512 U.S. 1222 (1994).

15

By way of objection regarding whether ground four is barred, petitioner argues
that “this claim” could not have been raised on direct appeal. (Doc. No. 14 at 1953.) He asserts:
“It is unlikely that counsel would say he failed to put the state to its proof and should be found to
have provided ineffective assistance[ ]” and, further, that it is “difficult to understand how the
Petitioner claiming ineffective assistance can be denied relief because his ineffective lawyer did
not raise evidence of his own ineffectiveness.” (Doc. No. 15 at 1954.) Actually, what is difficult
to understand is why petitioner would make this particular argument, since he was represented
on direct appeal by two different lawyers than represented him at the trial stage. They were
certainly free to raise trial counsel’s ineffectiveness and should have done so if they felt it was a
viable assignment of error.
The Court concludes, as does the R&R, that ground four is procedurally barred;
however, in an abundance of caution, it will address the claim on its merits below.
3.

Merits of the Eighth Amendment Claim in Ground One
Petitioner claims that his aggregate sentence of 24 years imprisonment violates

the Eighth Amendment cruel and unusual punishment clause because it is grossly
disproportionate to the sentences that other criminal defendants have received for the same or
similar crimes.
Although “[t]he concept of proportionality is central to the Eighth Amendment[,]”
Graham v. Florida, 560 U.S. --, 130 S. Ct. 2011, 2021 (2010) (citing Weems v. United States,
217 U.S. 349, 367 (1910) (“punishment for crime should be graduated and proportioned to [the]
offense”)), “[t]he Supreme Court has articulated a ‘narrow proportionality principle’ whereby it
held that only ‘extreme sentences that are grossly disproportionate to the crime are prohibited.’”
United States v. Flowal, 163 F.3d 956, 963 (6th Cir. 1998) (quoting Harmelin v. Michigan, 501
16

U.S. 957, 995-97 (1991)). “[T]here is no clearly established United States Supreme Court
precedent which requires proportionality between the sentence one offender receives and that
imposed on other persons for the same offense.” Stafford v. Warden, Marion Corr. Inst., No.
1:09-cv-417, 2010 WL 3703236, at * 5 (S.D. Ohio Jul. 26, 2010) (citing Pulley v. Harris, 465
U.S. 37 (1984)). Rather, where a petitioner challenges the length of his sentence, “the Court
considers all of the circumstances of the case to determine whether the sentence is
unconstitutionally excessive.” Stafford, 2010 WL at 3703236, at * 6 (quoting Graham, supra,
130 S. Ct. at 2021).
The R&R concludes that petitioner has failed to show that the state courts’
application of federal law was contrary to, or an unreasonable application of, federal law. The
R&R notes, in fact, that “Schwieterman acknowledges that the state court applied the correct
federal standard in evaluating his claim[,] [and] . . . argues only that the decision is unreasonable
because the state court simply concluded the sentence for each count was within the statutory
range and therefore constitutional, rather than conducting a full proportionality analysis.” (Doc.
No. 11 at 1939.)
In his objection, petitioner repeats his argument that a 24-year sentence “imposed
on a person with no criminal record, who accepted responsibility and spared the families a trial,
is disproportionate to other sentences handed down by the sentencing judge.” (Doc. No. 14 at
1957.) He cites no law other than Harmelin and a state law case (State v. Neace) for which he
gives no citation.8

8

On habeas review, this Court is bound by federal case law, in particular, the pronouncements of the Supreme
Court, 28 U.S.C. §§ 2241(c)(3), 2254(d), and may not issue a writ of habeas corpus based on a perceived error of
state law. Pulley, 465 U.S. at 41.

17

Considering “all the circumstances of the case,” Graham, supra, the Court
concludes that ground one has no merit. The state court of appeals considering petitioner’s
Eighth Amendment claim in the first instance properly applied Harmelin and petitioner has
failed to establish otherwise.
Accordingly, the objection with respect to ground one is overruled and the R&R’s
conclusion is accepted.
4.

Merits of the Sixth Amendment Claim in Ground Four9
Ground four addresses the issue of the effectiveness of counsel in two respects:

failure to fully investigate how the deadly crash occurred, and failure to give good advice for
purposes of petitioner’s plea.
In fact, in his objections, petitioner points out no actual error in the R&R’s
reasoning with respect to either aspect of ground four. He quotes the R&R verbatim from pages
1927-29, but does not isolate where the alleged factual or legal error resides.10 The closest he
comes to a specific objection relating to ground four is in the section captioned “Bad Advice,”
where he states: “The magistrate focuses her entire analysis on the voluntariness of the plea.”
(Doc. No. 14 at 1951.) Interestingly, petitioner then states: “This is the correct analysis to
employ in this case, but arguably the wrong conclusion.” (Id.)
Petitioner then simply reasserts arguments he has made before: that an expert
hired by post-conviction counsel subsequently concluded that the crash could not have occurred
in the manner stipulated to during the plea hearing. He asserts that counsel’s “lack of
9

As already noted, although ground four is arguably procedurally barred, the Court discusses it on the merits in an
abundance of caution.
10

As noted, above: “An ‘objection’ that does nothing more than state a disagreement with a magistrate’s suggested
resolution, or simply summarizes what has been presented before, is not an ‘objection’ as that term is used in this
context.” Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004).

18

investigation sullied the constitutional conclusion that counsel had provided effective assistance
of counsel.” (Doc. No. 14 at 1950.) In an additional attempt to save the first part of ground four
from waiver, petitioner bootstraps it to the second part of ground four, asserting that “[t]rial
counsel’s failure to fully investigate the origin of the crash led to the bad advice heeded by the
Petitioner[]” (Doc. No. 14 at 1951, emphasis added), and, since he “had no idea what the
computer simulated reconstruction of this accident showed[,]” it only “appear[ed] . . . that the
Petitioner, at that time, was entering the plea knowingly and voluntarily.” (Id. at 1952.) He
claims that “had [he] known the accident did not happen the way the state claimed[,] he would
not have entered a plea[.]” (Id.)
Since this ground addresses a claim of ineffective assistance of trial counsel,
petitioner’s burden is to establish the elements set forth in Strickland v. Washington, 466 U.S.
668 (1984). First, he must show that counsel’s performance was deficient, that is, “that counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687. Second, he must show that “that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The explanation of the Court in Hill is particularly useful under the facts of the
instant case:
In many guilty plea cases, the “prejudice” inquiry will closely resemble
the inquiry engaged in by courts reviewing ineffective-assistance challenges to
convictions obtained through a trial. For example, where the alleged error of
counsel is a failure to investigate or discover potentially exculpatory evidence, the
determination whether the error “prejudiced” the defendant by causing him to
plead guilty rather than go to trial will depend on the likelihood that discovery of
the evidence would have led counsel to change his recommendation as to the plea.
This assessment, in turn, will depend in large part on a prediction whether the
evidence likely would have changed the outcome of a trial. . . . As we explained
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in Strickland v. Washington, [466 U.S. at 695], these predictions of the outcome at
a possible trial, where necessary, should be made objectively, without regard for
the “idiosyncrasies of the particular decisionmaker.”
Hill, 474 U.S. at 59-60.
Here, petitioner asserts that he would not have entered a guilty plea if he had
known that a different (i.e., “proper”) investigation would have revealed that the crash could not
have occurred as described in the fact stipulation entered at his plea hearing. However, petitioner
does not claim that he was prevented from having a proper crash analysis performed prior to his
plea, nor does he claim that he was unaware of the nature and scope of the investigation that did
occur. Absent such a showing, it must be presumed that petitioner was kept apprised of the
investigation conducted by the defense expert and had enough confidence in the results that he
accepted his counsel’s advice to enter a plea.
Even if the Court were to take as true, for purposes this analysis, petitioner’s
assertion that he never would have entered a plea if he knew then what he knows now, that falls
short of the test set forth in Hill. Petitioner’s burden is to show that, had he gone to trial armed
with the report of the expert attached to his post-conviction petition, the ultimate outcome would
have been different. He has made no effort to establish this, either in his habeas petition or his
objections to the R&R, and the mere “presence of dueling experts would rarely, if ever, make it
impossible for a reasonable jury to convict a defendant.” U.S. ex rel. Blair v. Rednour, No. 11
CV 4108, 2012 WL 1280831, at * 6 (N.D. Ill. Apr. 11, 2012).
For the reasons discussed, the Court overrules petitioner’s objection with respect
to the merits of ground four.

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5.

Right to Discovery and an Evidentiary Hearing
Section 2254(e)(2) “imposes a limitation on the discretion of federal habeas

courts to take new evidence in an evidentiary hearing.” Cullen v. Pinholster, -- U.S. --, 131 S. Ct.
1388, 1400-01 (2011). In Cullen, a majority of the Supreme Court held “that review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on
the merits.” Id. at 1398.
In this case, there is no need for discovery and/or an evidentiary hearing because
the additional evidence petitioner would rely upon, namely, the expert opinion presented with his
post-conviction petition in the state court, is already in the record. Having resolved all of the
issues on the state court record as it existed when the issues were decided by the state courts,
there is no need to try to carve out any exception to Cullen’s holding in order to permit discovery
and/or an evidentiary hearing in this case.
Therefore, this objection is overruled.
III. CONCLUSION
For the reasons discussed above, petitioner’s objections to the R&R are overruled.
The petition for writ of habeas corpus is denied and the case is dismissed. Further, the Court
certifies 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.
Dated: October 3, 2013
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

21