Lewis v. Eppinger
Memorandum Opinion and Order denying the petition (Doc. # 1 )and dismissing this action. An appeal from this decision may not be taken in good faith and there is no basis upon which to issue a certificate of appealability. Judge John R. Adams on 2/28/17. (K,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
LASHANN EPPINGER, WARDEN,
CASE NO. 4:16 CV 2839
JUDGE JOHN R. ADAMS
MEMORANDUM OF OPINION
Pro se Petitioner Michael Lewis filed this Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2254. Lewis is currently incarcerated in the Grafton Correctional Institution, having pled
guilty in 2014 to five counts of rape. He was sentenced to nine years in prison. In this federal
habeas petition, Lewis claims: (1) he was placed in double jeopardy because he was convicted of
multiple counts of the same offense; and (2) he received ineffective assistance of appellate counsel
on appeal of the denial of his motion to withdraw his guilty plea. He asks this Court to vacate his
conviction and sentence. For the reasons stated below, the Petition is denied and this case is
Lewis was indicted by a Mahoning County Grand Jury on January 30, 2014 on ten counts
of rape, first degree felonies with life in prison specifications, and one count of endangering
children. Pursuant to plea negotiations, he pled guilty to five counts of rape in exchange for the
state’s dismissal of five counts of rape and the endangering children charge, and the elimination of
the life sentence specifications. He was sentenced on October 17, 2014 to nine years on each count
of rape, to be serve concurrently. He was also classified as a Tier III sex offender.
Five months later, on March 23, 2015, Lewis filed a Motion to Withdraw his Guilty Plea.
He claimed he entered his plea without understanding the nature of the charges and the effect the
plea would have on his rights. He also claimed his counsel misled him and he was not satisfied with
his counsel’s advice. The trial court denied his Motion on April 13, 2015.
Lewis filed a Notice of Appeal on May 5, 2015. He did not specify whether he was
attempting to file a belated direct appeal of his conviction and sentence, or whether he was filing an
appeal of the denial of his Motion to Withdraw his Guilty Plea. The Ohio Seventh District Court
of Appeals granted Lewis thirty days to either file a Motion for Delayed Appeal of his October 2014
conviction or to file an Amended Notice of Appeal to identify the April 2015 denial of this Motion
to Withdraw Guilty Plea as the order under review. Lewis did not do either of these things. The
Court of Appeals noted that Lewis’s only timely appeal would be from the denial of his Motion, and
limited its review to that judgment.
The Court of Appeals appointed counsel to represent Lewis. That Counsel did not file a
merit brief and instead requested permission to withdraw pursuant to State v. Toney, 23 Ohio App.
2d 203 (Ohio 7th Dist. 1970). The Court of Appeals reviewed the trial court’s plea colloquy, and
determined he understood the nature of the charges against him, and the effect they would have on
his rights. The Court further determined that his trial counsel obtained a good deal for Lewis,
getting five rape charges dismissed, and the life sentence specifications withdrawn, taking his
potential sentence from life in prison to nine years incarceration. On April 19, 2016, the Court of
Appeals upheld the decision of the trial court to deny the Motion to Withdraw Guilty Plea.
Lewis did not immediately appeal that decision to the Supreme Court of Ohio. Instead, he
filed a Motion for Delayed Appeal on July 25, 2016. The Supreme Court denied his Motion and
dismissed the appeal on September 14, 2016.
Lewis filed this federal Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
on November 21, 2016. He asserts two grounds for relief:
1. Petitioner’s due process rights to double jeopardy protection was
[sic] violated when he was subjected to multiple convictions for the
2. Petitioner’s due process right to effective assistance of appellate
counsel was violated, when appellate counsel filed a no merit brief
and requested to withdraw as counsel of record.
(ECF No. 1 at 6, 8). In support of his first ground for relief, he asserts that although he pled guilty
to five counts of rape, he could only be convicted under state law of one count. He asserts his
conviction on all five counts subjected him to double jeopardy. In support of his second ground for
relief, he asserts that the attorney appointed to represent him with respect to the denial of his Motion
to Withdraw his Guilty Plea was ineffective for not recognizing and arguing his claim of double
jeopardy. He asks this Court to vacate his conviction and sentence.
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 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 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. Furthermore, it must
be contrary to holdings of the Supreme Court, as opposed to dicta. Id. 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 conflict 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).
Procedural Barriers to Habeas Review
Before a federal court will review the merits of a Petition for a Writ of Habeas Corpus, a
Petitioner must overcome several procedural hurdles. Specifically, he must surmount the barriers
of exhaustion, procedural default, and time limitation.
As a general rule, a state prisoner must exhaust all possible state remedies or have no
remaining state remedies before a federal court will review a Petition for a Writ of Habeas Corpus.
28 U.S.C. § 2254(b) and (c); see Baldwin v. Reese, 541 U.S. 27 (2004). 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, courts
should consider whether the Petitioner (1) phrased the federal claim in terms of the pertinent
constitutional law or in terms sufficiently particular to allege a denial of the specific constitutional
right in question; (2) relied upon federal cases employing the constitutional analysis in question; (3)
relied upon state cases employing the federal constitutional analysis in question; or (4) alleged “facts
well within the mainstream of [the pertinent] constitutional law.” See Hicks v. Straub, 377 F.3d 538,
553 (6th Cir. 2004) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). For the claim
to be exhausted, it 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
The procedural default doctrine serves to bar review of federal claims that a state court has
declined to address because the Petitioner did not comply with a state procedural requirement.
Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In these cases, the state judgment is not based on a
resolution of federal constitutional law, but instead “rests on independent and adequate state
procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 730 (1991). When the last explained
state court decision rests upon procedural default as an “alternative ground,” a federal district court
is not required to reach the merits of a habeas petition. McBee v. Abramajtys, 929 F.2d 264, 265
(6th Cir. 1991).
To determine if a claim is procedurally defaulted the Court must determine whether: (1)
there is a state procedural rule that is applicable to the Petitioner’s claim and that the Petitioner
failed to comply with the rule; (2) whether the state courts actually enforced the state procedural
sanction; and (3) whether the state procedural forfeiture is an adequate and independent state ground
upon which the state can rely to foreclose review of a federal constitutional claim. See Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir.1986). A claim that is procedurally defaulted in state court will
not be reviewed by a federal habeas court unless a 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 claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 751.
“Cause” is a legitimate excuse for the default, and “prejudice” is actual harm resulting from the
alleged constitutional violation. See Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). If
a Petitioner fails to show cause for his procedural default, the Court need not address the issue of
prejudice. See Smith v. Murray, 477 U.S. 527 (1986).
Simply stated, a federal court may review only federal claims that were evaluated on the
merits by a state court. Claims that were not so evaluated, either because they were never presented
to the state courts (i.e., exhausted) or because they were not properly presented to the state courts
(i.e., were procedurally defaulted), are generally not cognizable on federal habeas review.
Lewis’s claims are procedurally defaulted. They have not been presented to any Ohio Court.
Moreover, Lewis has not completed any review to the highest court in the state, making exhaustion
of state court remedies impossible. A claim may be procedurally defaulted if the Petitioner fails “to
obtain consideration of a claim by a state court, either due to the petitioner'’ 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
In this case, Lewis did not present his claims to the state courts and there are now no
remedies available for him to return to state court to complete the exhaustion process. Lewis’s first
ground for relief could and should have been raised on direct appeal. Lewis did not file a direct
appeal and did not take the opportunity to file a Motion for Delayed Appeal when given the
opportunity to do so by the Court of Appeals. Ohio has a rule that claims must be raised on direct
appeal if possible; otherwise, res judicata bars their litigation in subsequent state proceedings. See
State v. Perry, 10 Ohio St.2d 175, 180 (1967). That rule is an adequate and independent state
ground upon which the state can rely to foreclose review of a federal constitutional claim Seymour
224 F.3d at 554-56. Lewis’s second ground for relief concerns ineffective assistance of appellate
counsel pertaining to the appeal of his Motion to Withdraw Guilty Plea. The only means for this
ground to be asserted in the state court is through an Application to Reopen Appeal under Ohio
Appellate Rule 26(b). That rule is specifically limited to the “reopening of the appeal from the
judgment of conviction... .” OHIO R. APP. P. 26(b). It is not clear whether his appeal of his Motion
would fall into this category. Regardless, Lewis did not file an Application to Reopen the Appeal.
The time limit for filing an Application to Reopen his Appeal is ninety days from the date of the
judgment. The time to file an App. Rule 26(b) Application expired well before he filed this federal
habeas corpus petition. He does not have an available remedy to exhaust his claims in the Ohio
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, 501 U.S. at 750. Lewis 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, 785 F.2d at 138; 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
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 his 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, Lewis 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 precluded Lewis from raising
these claims in an appeal of his conviction. Although he was represented by counsel, his counsel
did not file a merit brief because he believed Lewis’s ground for relief to be frivolous. Lewis states
he did not know he could file a brief pro se were until another inmate told him he could do so. This
remedy was reasonably available to Lewis. The Court of Appeals states in its opinion that they
notified Lewis that his attorney had filed a Toney but Lewis did not file a pro se brief. Furthermore,
Lewis has not shown he was prejudiced by the attorney’s failure to file a merit brief. He pled guilty
to five counts of rape, but his sentences run concurrent to each other, not consecutive. Whether he
was sentenced on one count or all five counts, he would still serve a total of nine years in prison.
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, 392 (2004)
(citing Murray, 477 U.S. at 495-96). Lewis does not claim he is actually innocent of the underlying
conviction. There is no suggestion that a fundamental miscarriage of justice occurred as a result of
this procedural default.
For all the foregoing reasons, the Petition (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.
IT IS SO ORDERED.
/s/ John R. Adams
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE
Dated: February 28, 2017
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