Oliver v. McConahay

Filing 6

Report and Recommendation that the Court DISMISS and/or DENY Mr. Oliver's petition for writ of habeas corpus under 28 U.S.C. § 2254. It is also RECOMMENDED that the Court not grant him a Certificate of Appealability. Finally, it is also recommended that Warden Harold May be substituted for Tim McConahay as the Respondent in this case. Objections to Report & Recommendation due by 12/6/2024 Referral Terminated. Signed by Magistrate Judge Jennifer Dowdell Armstrong on 11/22/2024. (K,L)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
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DAVID OLIVER,
Petitioner,
v.
WARDEN TIM MCCONAHAY,
Respondent,

I.

CASE NO. 4:23-CV-01092-PAB
U.S. DISTRICT JUDGE
PAMELA A. BARKER
U.S. MAGISTRATE JUDGE
JENNIFER DOWDELL ARMSTRONG
REPORT AND RECOMMENDATION

INTRODUCTION
Petitioner, David Oliver (“Mr. Oliver”), seeks a writ of habeas corpus under 28 U.S.C. §

2254. (ECF No. 1). On December 15, 2016, Mr. Oliver was indicted on seven counts: (1)
aggravated murder with prior calculation and design; (2) aggravated murder during an aggravated
robbery; (3) aggravated murder during an aggravated burglary; (4) aggravated robbery; (5)
aggravated burglary; (6) tampering with evidence; and (7) having a firearm specification while
under disability, as a result of two 2014 burglary convictions. Firearm specifications accompanied
all counts except Count 6.
Mr. Oliver subsequently entered a written plea agreement on August 16, 2019, where he
pled guilty to an amended charge of murder in Count 1, having weapons while under disability in
Count 7, and a firearm specification on both Counts 1 and 7. The state dismissed Counts 2 through
6. The parties jointly agreed upon an aggregate sentencing recommendation of 21 years to life.
After accepting Mr. Oliver’s guilty plea following a lengthy colloquy, the trial court imposed the
agreed-upon sentence of 21 years to life.

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Mr. Oliver’s petition asserts a single ground for relief related to whether he knowingly,
intelligently, and voluntarily pled guilty at the change of plea hearing. This matter was referred to
me under Local Rule 72.2 to prepare a report and recommendation on Mr. Oliver’s petition. (ECF
No. 3). For the reasons below, I RECOMMEND that the Court DISMISS and/or DENY Mr.
Oliver’s petition. I further recommend that the Court not grant Mr. Oliver a certificate of
appealability.

Finally, I recommend that Harold May, the current Warden of Mansfield

Correctional Institution, be substituted for Tim McConahay as the Respondent.1
I.

RELEVANT FACTUAL BACKGROUND
In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment

of a state court, factual determinations made by state courts “shall be presumed to be correct.” 28
U.S.C. § 2254(e)(1); see also Spagnola v. Horton, No. 17-1462, 2017 WL 8948745, at *2 (6th Cir.
2017). The Ohio Court of Appeals for the Seventh District set forth these facts on direct appeal:
{¶2} On September 20, 2016, Andre Harrison was shot and killed in his Youngstown
residence. According to the prosecution, the police responded to a call of a shot fired at
5:29 p.m. and found the victim dead with a single gunshot wound to the chest. Neighbors
reported seeing two young black males running from the scene. (Sent.Tr. 5). The house
was “trashed” and it was apparent the intruders took interior video surveillance cameras
and a corresponding digital video recorder (DVR) from inside the residence; an outdoor
camera near the driveway was not taken. Later that day, the victim's house was “burnt
down” by arson. (Sent.Tr. 6).
{¶3} According to a defense filing in the case, the stolen DVR was recovered by the
Youngstown Police Department on September 28, 2016 and sent to the state's Bureau of
Criminal Investigation (BCI) for data recovery. BCI recovered video from the DVR and
transferred it to a DVD, which the police department received on December 1, 2016. The
police released scenes from the video to the news stations to generate community assistance
with identification. (5/31/17 Def. Mot.).

1

Tim McConahay was previously the Warden of Mansfield Correctional Institution, where Mr. Oliver is incarcerated.
Harold May, however, is now Warden of that facility. See https://drc.ohio.gov/about/facilities/mansfield-correctional
(last visited on Nov. 18, 2024.) Thus, Warden Harold May should be substituted as the proper respondent. See 28
U.S.C. § 2243 (“The writ ... shall be directed to the person having custody of the person detained.”); Fed. R. Civ. P.
25(d) (providing that “when a public officer who is a party in an official capacity ... ceases to hold office while the
action is pending[,]” “[t]he officer's successor is automatically substituted as a party.”).

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{¶4} The police were then able to identify Appellant as the shooter and Jalon Allen as the
accomplice. Jalon Allen gave a statement to police saying he did not shoot the victim or
commit the arson. From the video, it appeared the “motive was to rob the victim and steal
items from inside the house.” (Sent.Tr. 6).
{¶5} On December 15, 2016, Appellant was indicted on seven counts: (1) aggravated
murder with prior calculation and design; (2) aggravated murder during an aggravated
robbery; (3) aggravated murder during an aggravated burglary; (4) aggravated robbery; (5)
aggravated burglary; (6) tampering with evidence; and (7) having a weapon while under
disability (as a result of two 2014 burglary convictions). Firearm specifications
accompanied all counts except the sixth. Jalon Allen was jointly indicted on all counts
except the seventh.
{¶6} On August 16, 2019, Appellant entered a plea agreement wherein he pled guilty to an
amended charge of murder, the charge of having a weapon while under disability, and a
firearm specification. The state agreed to dismiss the other charges. The jointly agreed
upon sentencing recommendation was 15 years to life for murder, plus three years for the
firearm specification, followed by a consecutive sentence of three years for having a
weapon while under disability, for a total of 21 years to life. A presentence investigation
was waived, but the state asked to hold sentencing until after the co-defendant's trial, which
was to begin the next week. (Plea Tr. 3).
{¶7} Sentencing proceeded on August 22, 2019. The defense noted that Appellant's
acceptance of responsibility helped the state settle the co-defendant's case. The trial court
imposed the agreed-upon sentence at the hearing and in the August 23, 2019 sentencing
entry. The within appeal followed.
State v. Oliver, 7th Dist. Mahoning No. 20MA28, 159 N.E.3d 751, 753-54, 2021-Ohio-1247, ¶¶ 27 (Oct. 8, 2021).
II.

RELEVANT PROCEDURAL HISTORY

A. Trial Court Proceedings
On December 15, 2016, the Mahoning County grand jury issued an indictment charging
Mr. Oliver with seven counts: (1) aggravated murder with prior calculation and design; (2)
aggravated murder during an aggravated robbery; (3) aggravated murder during an aggravated
burglary; (4) aggravated robbery; (5) aggravated burglary; (6) tampering with evidence; and (7)
having a weapon while under disability (as a result of two 2014 burglary convictions). (ECF No.

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5-1, Exhibit 1.) Firearm specifications accompanied all counts except the tampering with evidence
count. (Id.) Mr. Oliver pled not guilty to all charges. (Id., Exhibit 2.)
At a hearing on August 20, 2019, the State amended Count 1 from aggravated murder to
murder. Mr. Oliver, through counsel, then withdrew his original plea of not guilty and entered a
plea of guilty to the amended Count One (murder) and Count Seven (having weapons while under
disability), along with the firearm specifications accompanying those counts. (Id., Exhibit 3; see
also ECF No. 8-2, PageID # 160-176.) The State and defense recommended an agreed-upon
sentence of 21 years to life in prison. (Id.) After a lengthy colloquy, the trial court accepted Mr.
Oliver’s guilty plea and found him guilty as charged. (ECF No. 8-1, Exhibit 4; ECF No. 8-2,
PageID # 160-176.)
On August 22, 2019, the trial court conducted a sentencing hearing. A member of the
victim’s family spoke at the hearing about the pain she and her family sustained because of the
murder. (ECF No. 8-2, PageID # 180-82.) She concluded by saying:
So at the end of the day I asked and I pray for both families involved [the victim’s and Mr.
Oliver’s] and everybody find peace and closure after today. Whatever time this court
decides to give him, I will not question it in any kind of way or any decision you make
today.
(Id. at PageID # 181-82.) Prior to the imposition of his sentence, Mr. Oliver apologized to the
victim’s family:
I want to tell the victim I’m very remorseful. I really mean it. And it was never intended
to go that way. And I hope now they can find some comfort in my sentence in knowing
justice is served. Sorry.
(Id. at PageID # 186.) The trial court then sentenced Mr. Oliver to the agreed-upon aggregate
sentence of 21 years to life. (ECF No. 8-1, Exhibit 5; ECF No. 8-2, PageID # 178-193.)

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B. Direct Appeal
On March 2, 2020, Mr. Oliver filed notice of appeal and motion for leave to file delayed
appeal of the judgment of conviction to the Seventh District Court of Appeals for Mahoning
County. (ECF No. 8-1, Exhibits 6, 7.) He asserted that his request for assistance from the public
defender’s office garnered no response. (Id.) The appeals court granted the delayed appeal. (ECF
No. 8-1, Exhibit 8.)
In his merit brief, Mr. Oliver raised a single assignment of error:
Nodding one’s head is not a sufficient response to knowingly, intelligently and voluntarily
make a complete admission of one’s guilt in this murder case and other serious felonies in
this case.
(ECF No. 8-1, Exhibit 9.) On March 31, 2021, the Seventh District Court of Appeals overruled
the assignment of error and affirmed the trial court’s judgment. (Id., Exhibit 11); see also State v.
Oliver, 7th Dist. Mahoning No. 20MA28, 159 N.E.3d 751, 753-54, 2021-Ohio-1247, ¶¶ 2-7 (Oct.
8, 2021.
On April 27, 2022, Mr. Oliver, acting pro se, filed a notice of appeal and a motion for leave
to file delayed appeal to the Ohio Supreme Court. (Id., Exhibits 12, 13.) The Ohio Supreme Court
granted the delayed appeal. (Id., Exhibit 14.) On June 15, 2022, the Ohio Supreme Court
dismissed the case for failure to prosecute. (Id., Exhibit 15.)
C. Federal Habeas Corpus
Mr. Oliver, acting pro se, filed his federal habeas petition on May 8, 2023. (ECF No. 1.)
His petition raises a single ground for relief:2
GROUND ONE: The Appellate Court erred when it did not find David Oliver guilty plea
was obtained in violation of the fifth and fourteenth amendment of the United States
Constitution; Article 1, second 10 of the Ohio Constitution; and Crim.R. 11(C) when it
found that a “head Nod” was sufficient to make a complete admission of guilt.
2

Mr. Oliver’s ground for relief is set forth verbatim.

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SUPPORTING FACTS: It is uncertain if David Oliver made a “complete admission to
these charges.” At the plea agreement hearing, the judge directly addressed the defendant.
The court asked David if he understood, if David would make a plea of guilty, would David
be making a complete admission to these charges. David Oliver made no audible response.
David only nodded his head. It is uncertain if David made any affirmative response to the
judge’s question.
THE COURT: Do you understand that if you make a plea of guilty here today you’re
making a compere admission to these charges?
THE DEFENDANT: (Nods Head). Transcript, Plea hearing, p.7, line 4-7.
The defendant did not give a clear answer. The trial judge did not insist on a verbal answer,
let alone a clear verbal response. Plea Hearing: p 7 lines 4.
Immediately prior to the “Nods Head’ reaction of David, the judge asked about “elements”
that the State had to prove. David interrupted the court and gave an answer before the
judge was finished with the judge’s question. SEE, Plea Agreement, p6, lines 11-19.
Was David trying to tell the judge that he was not “making complete admission to these
charges”? Was David trying to communicate to the judge that he, David, did not
understand the question?
This question and answer from the judge is crucial because the judge needs to know if the
defendant is “making a complete admission to these charges.” When that question, the
defendant-appellant did not verbally answer. Instead, David Oliver “(Nods head.”
The defendant did not give a clear answer, nor a verbal answer. The trial judge did not
insist on a verbal answer and went onto questioning David Oliver. Plea Hearing: p7 lines
4-7.
The Warden filed a return of writ on August 30, 2023 (ECF No. 5.) On June 27, 2024, I
issued the following order:
A review of the Court's docket reveals that the Warden's return of writ was filed on
8/30/2023 (ECF No. 5). Petitioner has not filed a traverse to the return of writ. The Court
hereby establishes a final deadline of 8/5/2024 by which the Petitioner must file a traverse,
should he wish to respond to the Warden's arguments. If a traverse is not filed on or before
this date, the Court will proceed to consider the writ.
(See ECF non-document order dated June 27, 2024). To date, Mr. Oliver has not filed a traverse,
and the time to do so expired over three months ago.

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III.

STANDARDS OF REVIEW AND GOVERNING LAW

A. Jurisdiction
28 U.S.C. § 2254(a) authorizes this court to entertain an application for a writ of habeas
corpus on “behalf of a person in custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”
A state prisoner may file a § 2254 petition in the “district court for the district wherein such person
is in custody or in the district court for the district within which the State court was held which
convicted and sentenced him[.]” 28 U.S.C. § 2241(d).
The Mahoning Court of Common Pleas sentenced Mr. Oliver, and the Court takes judicial
notice that Mahoning County is within this Court’s geographic jurisdiction. Accordingly, this
Court has jurisdiction over Mr. Oliver’s § 2254 petition.
B.

Exhaustion and Procedural Default

Under the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.
1214 (1996) (“AEDPA”), state prisoners must exhaust all possible state remedies, or have no
remaining state remedies, before a federal court can review a petition for a writ of habeas corpus
on the merits. 28 U.S.C. § 2254(b) and (c); see also Rose v. Lundy, 455 U.S. 509 (1982). This
entails giving 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). In other words, “the highest court in the state in which the petitioner
was convicted [must have] been given a full and fair opportunity to rule on the petitioner's claims.”
Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). The exhaustion requirement, however,
“refers only to remedies still available at the time of the federal petition.” Engle v. Isaac, 456 U.S.

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107, 125 n.28 (1982). It “does not require pursuit of a state remedy where such a pursuit is clearly
futile.” Wiley v. Sowders, 647 F.2d 642, 647 (6th Cir. 1981).
Procedural default is a related but “distinct” concept from exhaustion.

Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006). It occurs when a habeas petitioner fails to obtain
consideration of a federal constitutional claim by state courts because he failed to: (1) comply with
a state procedural rule that prevented the state courts from reaching the merits of the petitioner’s
claim; or (2) fairly raise that claim before the state courts while state remedies were still available.
See generally Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Engle, 456 U.S. at 125 n.28;
Williams, 460 F.3d at 806. In determining whether there has been a procedural default, the federal
court looks to the last explained state-court judgment. Ylst v. Nunnemaker, 501 U.S. 797, 805
(1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000). A claim is fairly presented when it
has been asserted as a federal constitutional issue at every stage of the state court review process.
Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281, 285 (6th Cir. 2010); Williams, 460 F.3d
at 806.
If a procedural default has occurred, the default can be excused and will not preclude
consideration of a claim on federal habeas review if the petitioner can demonstrate: (1) “cause for
the default and actual prejudice as a result of the alleged violation of federal law;” or (2) “failure
to consider the claim will result in a fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750 (1991). A “fundamental miscarriage of justice” can occur only when the
procedurally defaulted claim – supported by new reliable evidence not presented at trial – would
establish that the petitioner was “actually innocent” of the offense. Schlup v. Delo, 513 U.S. 298,
324 (1995); Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).

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C.

Cognizable Federal Claim

Under 28 U.S.C. § 2254(a), a state prisoner may challenge his custody “only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United States.” A
petitioner's claim is not cognizable on habeas review if it “presents no federal issue at all.” Glaze
v. Morgan, No. 1:19-CV-02974, 2022 WL 467980, at *4 (N.D. Ohio Jan. 18, 2022) (quoting Bates
v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991)). Thus, “errors in application of state law . . . are
usually not cognizable in federal habeas corpus.” Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007)
(citing Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983)); see also Estelle v. McGuire, 502 U.S.
62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state court
determinations on state law questions.”).
A federal habeas court does not function as an additional state appellate court; it does not
review state courts’ decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th
Cir. 1988) (citing Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987)). Instead, “federal courts
must defer to a state court's interpretation of its own rules of evidence and procedure” in
considering a habeas petition. Id. (quotation omitted). Moreover, “the 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).
D.

AEDPA Standard of Review

AEDPA provides in relevant part:
(d) 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
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(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.

Id.
To determine whether relief should be granted, the Court must use the “look-through”
methodology and look to the “last explained state-court judgment” on the petitioner's federal claim.
Ylst, 501 U.S. at 804 (“The essence of unexplained orders is that they say nothing. We think that
a presumption which gives them no effect—which simply ‘looks through’ them to the last reasoned
decision—most nearly reflects the role they are ordinarily intended to play.”); Wilson v. Sellers,
138 S. Ct. 1188, 1193 (2018) (“We conclude that federal habeas law employs a ‘look through’
presumption.”).
“A decision is ‘contrary to’ clearly established federal law when ‘the state court arrives at
a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case
differently than the Supreme Court has on a set of materially indistinguishable facts.’” Otte v.
Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S. 362, 412-13
(2000)). “Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings,
as opposed to the dicta, of [the Supreme] Court's decisions.” White v. Woodall, 572 U.S. 415, 419
(2014) (quotations and citations omitted). “[U]nder 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.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). “The unreasonable application clause requires
the state court decision to be more than incorrect or erroneous”—it must be “objectively
unreasonable.” Id.

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Under § 2254(d)(2), “when a federal habeas petitioner challenges the factual basis for a
prior state court decision rejecting a claim, the federal court may overturn the state court's decision
only if it was ‘based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’” Burt v. Titlow, 571 U.S. 12, 18 (2013) (quoting 28
U.S.C. § 2254(d)(2)). A state court decision is an “unreasonable determination of the facts” under
§ 2254(d)(2) only if the trial court made a “clear factual error.” Wiggins v. Smith, 539 U.S. 510,
528 (2003). A state court's factual determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the first instance. Wood v. Allen, 558
U.S. 290, 301 (2010). Even if “[r]easonable minds reviewing the record might disagree” about
the finding in question, “on habeas review that does not suffice to supersede the trial court's . . .
determination.” Rice v. Collins, 546 U.S. 333, 341-42 (2006). The prisoner bears the burden of
rebutting the state court's factual findings “by clear and convincing evidence.” Burt, 571 U.S. at
18 (citing 28 U.S.C. § 2254(e)(1)).
For state prisoners, the § 2254(d) standard “is difficult to meet . . . because it is meant to
be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). This is because, “[a]s amended by AEDPA,
§ 2254(d) is meant only to stop short of imposing a complete bar on federal-court relitigation of
claims already rejected in state proceedings.” Id. at 103. “It preserves authority to issue the writ
in cases where there is no possibility [that] fairminded jurists could disagree that the state court’s
decision conflicts with this Court's precedents” and “goes no further.” Id. Thus, in order to obtain
federal habeas corpus 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.
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IV.

ANALYSIS

A. Mr. Oliver’s Ground One claim fails
1. Ground One is procedurally defaulted
Mr. Oliver argues in his Ground One claim that the Seventh District Court of Appeals erred
when it held that a “head Nod” was sufficient to make a complete admission of guilt. The Warden
correctly construes this argument to mean that Mr. Oliver’s plea was not knowing and voluntarily.
And the Warden argues that this claim is procedurally defaulted because Mr. Oliver failed to raise
it to the Ohio Supreme Court for review. I agree.
Before seeking a writ of habeas corpus in federal court, a petitioner must properly exhaust
his state court remedies by fairly presenting all constitutional claims to all levels of the state courts.
A petitioner may procedurally default his constitutional claim by failing to present the claim to all
appropriate state courts prior to that through the state's “ordinary appellate review procedures.”
O'Sullivan, 526 U.S. at 847. Ohio's “ordinary appellate review process” means a defendant must
timely present his on-the-record constitutional claim to the trial court, court of appeals, and the
Ohio Supreme Court on direct review. Caver v. Straub, 349 F.3d 340, 346 (6th Cir. 2003). While
Mr. Oliver raised this argument to the Seventh District Court of Appeals, he failed to raise it to the
Ohio Supreme Court. Specifically, he did not file a timely memorandum in support of jurisdiction,
and the Ohio Supreme Court dismissed the case for lack of prosecution. (ECF No. 8-1, Exhibit
14.)
To excuse his procedural default, Mr. Oliver must establish cause and prejudice. Mr.
Oliver offers no explanation regarding any cause that would explain his failure to raise his claim
at every level of the ordinary appellate review process.

And because Mr. Oliver fails to

demonstrate cause, I need not consider whether there was actual prejudice. Matthews v. Ishee, 486

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F.3d 883, 891 (6th Cir. 2007) (finding that the court need not engage in an actual prejudice analysis
where the habeas petitioner fails to establish cause).
Nor does Mr. Oliver establish actual innocence because he presents no new, reliable
evidence demonstrating actual innocence. Schlup, 513 U.S. at 324. Indeed, Mr. Oliver pled guilty
to murder and having weapons while under disability and has not suggested anywhere in his
petition that he is actually innocent. He also apologized to the victim’s family and expressed
remorse at his sentencing hearing. And as noted above, Mr. Oliver did not file a traverse and did
not respond to the Warden's procedural default argument, much less advance an actual innocence
claim. Accordingly, I recommend that the Court deny and/or dismiss Mr. Oliver’s Ground One
claim because it is procedurally defaulted.
2. Ground One fails on the merits
Mr. Oliver asserts in his Ground One claim that his plea was not knowingly, voluntarily,
and intelligently given because a “head nod” was insufficient to make a complete admission of
guilt. The Warden argues that Mr. Oliver’s nod to the trial court was in response to only one of
many questions posed by the trial court to Mr. Oliver during his change of plea hearing, and there
is ample evidence from the record and case law that Mr. Oliver’s nonverbal reply to the trial court
was sufficient to show his agreement to the question posed by the trial court. Thus, the Warden
maintains that the state appellate court’s reasonable decision rejecting this ground is entitled to
AEDPA deference. I agree.
“[G]uilty pleas ‘not only must be voluntary but must be knowing, intelligent acts done with
sufficient awareness of the relevant circumstances and likely consequences.’” Ruelas v.
Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009) (quoting Brady v. United States, 397 U.S. 742,
748 (1970)). The validity of the plea must be determined from the “totality of the circumstances.”

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Abdus-Samad v. Bell, 420 F.3d 614, 631 (6th Cir. 2005) (citing Brady, 397 U.S. at 747, 749).
When a habeas petitioner challenges the validity of his plea, “the state generally satisfies its burden
[to show that the plea was voluntary and intelligent] by producing a transcript of the state court
proceeding.” Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993). The state court's factual
finding that the plea was proper is accorded a presumption of correctness unless the transcript is
inadequate to show that the plea was voluntary and intelligent. Id. at 326-327; see U.S.C. § 2254
(e)(1).
In rejecting the same argument that Mr. Oliver advances here, the Seventh District Court
of Appeals found that Mr. Oliver’s plea was voluntary and intelligent:
{¶8} Appellant's sole assignment of error alleges:
“Nodding one's head is not a sufficient response to knowingly, intelligently and voluntarily
make a complete admission of one's guilt in this murder case and other serious felonies in
this case.”
{¶9} A defendant's decision to enter a plea must be knowing, intelligent, and voluntary.
State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 10. By providing
the procedure a trial court is to use when accepting a guilty plea, Crim.R. 11 allows a
reviewing court to ensure the plea has these qualities. Id. at ¶ 10-11.
{¶10} Crim.R. 11 initially states: “(B) Effect of Guilty or No Contest Pleas. With reference
to the offense or offenses to which the plea is entered: (1) The plea of guilty is a complete
admission of the defendant's guilt.” Crim.R. 11(B)(1). Another effect of the guilty plea is
listed under (B)(3), which says when the plea is accepted, the court shall proceed with
sentencing under Crim. R. 32. Crim.R. 11(B)(3). See also Crim.R. 32(A) (“Sentence shall
be imposed without unnecessary delay,” but bail or commitment can be utilized pending
sentencing).
{¶11} Crim.R. 11 then provides, the court shall not accept a guilty plea in a felony case
“without first addressing the defendant personally * * * (b) Informing the defendant of and
determining that the defendant understands the effect of the plea of guilty or no contest,
and that the court, upon acceptance of the plea, may proceed with judgment and sentence.”
Crim.R. 11(C)(2)(b).
{¶12} Subdivision (C)(2)(b) involves non-constitutional rights, as opposed to the
constitutional rights listed in subdivision (C)(2)(c). A failure with regards to a
constitutional right does not require a showing of prejudice in order to invalidate the plea.
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Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286 at ¶ 14. However, a failure
with regards to a non-constitutional right requires a showing of prejudice, unless the trial
court completely failed to comply with the advisement. Id. at ¶ 14-16.
{¶13} To show prejudice, the defendant must demonstrate the plea would not have been
made but for the court's failure. Id. at ¶ 16, citing State v. Nero, 56 Ohio St.3d 106, 108,
564 N.E.2d 474 (1990). Prejudice must be demonstrated on the face of the record. Dangler,
162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286 at ¶ 24.
{¶14} There is no dispute that the trial court addressed the defendant personally and
informed him of every item listed in Crim.R. 11(C)(2)(a)-(c), including that the guilty plea
is a complete admission of the charges. Appellant verbally responded to indicate that he
understood the court's advisement after every item except one.
{¶15} Specifically, Appellant's response to the court's inquiry on his understanding of the
first part of Crim.R. 11(C)(2)(b) was recorded by the court reporter as a nodded response
unaccompanied by words. Pertinent to subdivision (C)(2)(b), the transcript reads:
THE COURT: Do you understand that if you make a plea of guilty here today you're
making a complete admission to these charges?
THE DEFENDANT: (Nods head.)
THE COURT: And although we indicated that there's going to be a separate
sentencing date we can proceed immediately to sentencing today; do you
understand that?
THE DEFENDANT: Yes.
(Plea Tr. 7).
{¶16} Appellant notes the trial court could have instructed him to answer out loud, and he
cites cases to illustrate how trial courts have instructed nodding defendants to verbalize
answers. Appellant also provides instances of court reporters describing the nodding they
observed, such as “nodding in the affirmative” or “nodded his head yes.” He points to the
facts of these cases as examples; none of the cited cases contained arguments on whether
a court reporter's description was sufficient to show the nod indicated an affirmative
answer.
{¶17} In researching the matter, we notice the Sixth District had a case where the appellant
argued his plea was not made knowingly, intelligently, and voluntarily as he nodded instead
of orally answering the court's questions on a constitutional right and on the maximum
penalty. The appellate court stated, “there is no requirement that the appellant orally
indicate to the court his understanding and agreement with the court's statements.” State v.
Bannister, 6th Dist. Lucas No. L-88-052, 1989 WL 14749 (Feb. 24, 1989). Still, in that
case, the court reporter may have descriptively labeled the nod as the court found: “An
15

affirmative nod, noted by the court reporter in the transcript of proceedings, is sufficient to
establish that the appellant understood and agreed with the court's statements.” Id.
{¶18} Appellant argues the record does not show his head nod was performed in an
affirmative manner because the court did not insist he speak his answer or announce for
the record that the defendant was nodding his head affirmatively and because the court
reporter did not describe her observation “Nods head” by adding “affirmatively” or a
similar descriptor.
{¶19} Initially, we note the word “nod” when used in the context of replying to a question
typically refers to the act of moving one's head to show one is replying in the affirmative.
For instance, mcmillandictionary.com provides a common definition of the verb nod: “to
move your head first downward and then upward, to answer ‘Yes’ to a question or to show
that you agree, approve, or understand.” In Google's web browser, the dictionary search
bar (furnished by Oxford Languages) provides a similar definition of nod: “lower and raise
one's head slightly and briefly, especially in greeting, assent, or understanding, or to give
someone a signal.” It is not common to use the term “Nods head” to mean the opposite of
an affirmation or to indicate an expression of confusion or uncertainty.
{¶20} We also note that immediately after Appellant nodded, the court continued with the
second half of the sentence contained in Crim.R. 11(C)(2)(b): “And * * * we can proceed
immediately to sentencing today; do you understand that?” (Plea Tr. 7). Appellant said,
“Yes.” Both the guilty plea as a complete admission and the court's ability to proceed to
sentencing are defined as part of the “effect of the guilty plea.” Crim.R. 11(B)(1),(3). It is
possible the trial court was combining its recitation of both parts of the sentence within the
subdivision, and Appellant was answering verbally when the entire question was complete.
{¶21} Notably, a plea is not invalid merely because the court does not stop and inquire
after the explanation of each right. State v. Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d
115 (1981). This was true even in a case involving the advisement on constitutional rights,
whereas here we are discussing a non-constitutional (and non-complex) right. See id.
(although it is “best” to stop and inquire after each constitutional right, “the failure to so
proceed will not necessarily invalidate a plea”).
{¶22} Our review of the totality of the circumstances supports the state's position that
Appellant understood the effect of his guilty plea after he nodded his head when the court
asked if he understood that a guilty plea is a complete admission to the amended charges
and that Appellant was not prejudiced in any event. The case had been pending against
Appellant for over 2.5 years. He had multiple attorneys prior to the one representing him
for the final year and the plea. There were multiple plea negotiating sessions. Counsel
disclosed that he spoke to Appellant for two hours the day before the plea and an hour the
day before that about the case and the plea. (Plea Tr. 3).
{¶23} At the beginning of the plea hearing, the court asked if it was Appellant's intent to
withdraw his former plea of not guilty to the charges in the indictment and enter a plea of
guilty to the amended charges, and Appellant said, “Yes.” (Plea Tr. 4). There is no
16

contention with regard to the court's colloquy on any Crim.R. 11 right except the alleged
failure to ensure the record adequately reflected an affirmative reply after the court asked
if he understood that if he pled guilty he would be making a complete admission to the
charges.
{¶24} The effect of the guilty plea as a complete admission to the charges in the plea
agreement is an easy to comprehend concept. In fact, it is such a basic premise that the
Supreme Court once observed that “a defendant is presumed to understand that he has
completely admitted his guilt” where he enters a guilty plea “without asserting actual
innocence” (i.e., where it is not an Alford plea). State v. Griggs, 103 Ohio St.3d 85, 2004Ohio-4415, 814 N.E.2d 51, ¶ 19 (after finding the record, including the written plea and
recitations by the state, indicated the defendant understood he was admitting to the crimes
by pleading guilty). “In such circumstances, a court's failure to inform the defendant of the
effect of his guilty plea as required by Crim.R. 11 is presumed not to be prejudicial.” Id.
Here, there was not a failure to inform Appellant of the effect of the guilty plea. Rather,
the argument is merely that the court did not sufficiently ensure the record reflected that he
voiced his understanding of the information the court stated on the effect of the plea.
{¶25} Additionally, the written plea specifically said: “I further understand that my plea of
guilty is a complete admission of my guilt as to the charge(s) and/or specification(s)
contained herein.” (Original all caps.) The court ensured Appellant could read and asked if
Appellant read the written plea agreement with his attorney, and Appellant said that he did.
(Plea Tr. 8). He also said he signed the written agreement voluntarily. (Plea Tr. 16).
{¶26} Although a written plea is not a substitute for the court's colloquy, it can be relevant
to the trial court's determination of the defendant's understanding. See, e.g., State v. Barker,
129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 25 (even on a constitutional right,
“an alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference
to other portions of the record, including the written plea, in determining whether the
defendant was fully informed of the right in question”). See also Griggs, 103 Ohio St.3d
85, 814 N.E.2d 51 at ¶ 16 (finding the record indicated the defendant understood the effect
of the plea, notwithstanding the court's failure to advise him that a guilty plea is a complete
admission, where the defendant acknowledged voluntarily signing and understanding a
plea form wherein he said he committed the offenses).
{¶27} In addition, the trial court said: “I've advised you of your statutory and constitutional
rights and you indicated that you understood them and are hereby waiving them. Do you
understand each and every one of these rights?” Appellant responded, “Yes.” He then
indicated that he had no questions regarding his rights. (Plea Tr. 15).
{¶28} At the close of the plea hearing, the court declared, “The court has fully advised the
defendant of the effect of his plea pursuant to Crim.R. 11 and finds that the plea has been
freely and voluntarily made with full knowledge of its consequences.” The court said
Appellant understood all of the rights explained to him and specifically concluded: “he
understood the effect of his plea and that the court, upon acceptance, may proceed to

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judgment and sentence.” (Plea Tr. 17). This further suggests the court interpreted
Appellant's one instance of nodding his response as nodding in the affirmative.
{¶29} Finally, we note the trial court said it watched a surveillance video of the events
inside the victim's house, and saw Appellant approach the victim and shoot him, which
made it appear he intended to go there to kill and rob the victim. (Sent.Tr. 10-11). Appellant
received a substantial benefit by his plea agreement with dismissal of the three forms of
aggravated murder, dismissal of the aggravated robbery and aggravated burglary offenses,
and dismissal of the tampering with evidence offense (which was a third-degree felony).
{¶30} Appellant's brief states he did not clearly admit to criminal conduct at sentencing.
This is apparently a recognition that courts have reviewed the sentencing transcript when
considering whether the record demonstrates the defendant was prejudiced due to a plea
issue. At the sentencing hearing less than a week after the plea, defense counsel said:
Appellant had “always accepted responsibility”; he wanted to plead guilty throughout the
year counsel represented him; he was insistent that he did not go to the victim's house with
the prior intent to kill him; and the issue was always with the number of years being offered
by the state. (Sent.Tr. 7-8). (He was originally charged with prior calculation and design
aggravated murder.) Appellant confirmed counsel's disclosure, stating “it was never
intended to go that way.” He also said he was remorseful and hoped the victim's family
could find comfort in the sentence knowing justice was served. (Sent.Tr. 9).
{¶31} In summary, we conclude the trial court complied with Crim.R. 11(C)(2)(b) by
informing Appellant that a guilty plea was a complete admission to the charges and by
determining that he understood this was the effect of his plea. Regardless, Appellant has
failed to show prejudice. There is no indication Appellant would have refused to continue
with the plea deal and would have risked trial on the original charges if the trial court had
stopped after Appellant's head nod and repeated that a plea of guilty was a complete
admission in order to evoke a verbal understanding of this basic statement.
Here, the Seventh District Court of Appeals reasonably determined that Mr. Oliver’s plea
was knowing and voluntary based on the totality of the circumstances, including but not limited
to: (1) there is no dispute that the trial court addressed the defendant personally and informed him
of every item listed in Crim.R.11(C)(2)(a)-(c), including that the guilty plea is a complete
admission of the charges; Mr. Oliver verbally responded to indicate that he understood the court’s
advisement after every item except one; (2) the case had been pending against Mr. Oliver for over
2.5 years, there were multiple plea negotiating sessions, and counsel disclosed that he spoke to Mr.
Oliver for two hours the day before the plea and an hour the day before that about the case and the

18

plea; (3) the trial court asked Mr. Oliver if he intended to withdraw his former plea of not guilty
to the charges in the indictment and enter a plea of guilty to the amended charges, and Mr. Oliver
responded

“yes”;

(4)

the

written

plea

agreement

stated

in

bold

capital

letters:

“I further understand that my plea of guilty is a complete admission of my guilt as to the charge(s)
and/or specification(s) contained herein,” the trial court confirmed that Mr. Oliver could read, and
Mr. Oliver indicated that he reviewed the plea agreement with his attorney and voluntarily signed
it; (5) in response to the trial court’s statement that the trial court had advised Mr. Oliver of his
statutory and constitutional rights, Mr. Oliver indicated he understood and waived every one of
those rights and had no questions regarding his rights; (6) at the close of the change of plea hearing
after the plea colloquy, the trial court stated that Mr. Oliver understood all of the rights explained
to him, understood the effect of his plea, and that the court could proceed to judgment and sentence;
(7) the trial court watched a surveillance video of the events inside the victim’s house and saw Mr.
Oliver approach the victim and shoot him, which made it appear he intended to go there and kill
and rob the victim; (8) Mr. Oliver also received a substantial benefit by his plea agreement with
dismissal of the three forms of aggravated murder, dismissal of the aggravated robbery and
aggravated burglary offenses, and dismissal of the tampering with evidence offense; and (9) Mr.
Oliver stated at his sentencing hearing that he was remorseful and hoped the victim’s family could
find comfort in the sentence knowing justice was served.
Applying AEDPA deference, the Seventh District Court of Appeals’ holding is not contrary
to or an unreasonable application of clearly established federal law. Nor was it based on an
unreasonable determination of the facts in light of the evidence presented in the state court
proceedings. Accordingly, I recommend that the Court find that Ground One lacks merit.

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V.

RECOMMENDATION REGARDING CERTIFICATE OF APPEALABILITY
As amended by AEDPA, 28 U.S.C. § 2253(c)(1) provides that a petitioner may not appeal

a denial of an application for a writ of habeas corpus unless a judge issues a certificate of
appealability. The statute further provides that “[a] certificate of appealability may issue . . . only
if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2).
Although the statute does not define what constitutes a “substantial showing” of a denial
of a constitutional right, the burden on the petitioner is obviously less than the burden for
establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the courts
that have considered the issue have concluded that “[a] ‘substantial showing’ requires the applicant
to ‘demonstrate that the issues are debatable among jurists of reason; that a court could resolve the
issues (in a different manner); or that the questions are adequate to deserve encouragement to
proceed further.’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999) (quoting Drinkard v.
Johnson, 97 F.3d 751, 755 (5th Cir. 1996)). The statute requires that certificates of appealability
specify which issues are appealable. 28 U.S.C. § 2253(c)(3).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts,
28 U.S.C. foll. § 2254, provides that “[t]he district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rule 11(a), 28 U.S.C. foll. §
2254. “If the court issues a certificate, the court must state the specific issue or issues that satisfy
the showing required by 28 U.S.C. § 2253(c)(2).” Id.; see also 28 U.S.C. § 2253(c)(3) (“The
certificate of appealability under [§ 2253(c)(1)] shall indicate which specific issue or issues satisfy
the showing required by [§ 2253(c)(2)].”).

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Mr. Oliver has not made a substantial showing of a denial of a constitutional right for the
reasons set forth above. Because jurists of reason would not find this conclusion to be debatable,
I recommend that no Certificate of Appealability issue in this case.
VI.

RECOMMENDATION
For the foregoing reasons, I RECOMMEND that the Court DISMISS and/or DENY Mr.

Oliver’s petition for writ of habeas corpus under 28 U.S.C. § 2254. I also RECOMMEND that the
Court not grant him a Certificate of Appealability. Finally, I also recommend that Warden Harold
May be substituted for Tim McConahay as the Respondent in this case.
Dated: November 22, 2024

VII.

NOTICE TO PARTIES REGARDING OBJECTIONS

Local Rule 72.3(b) of this Court provides:
Any party may object to a Magistrate Judge’s proposed findings,
recommendations or report made pursuant to Fed. R. Civ. P. 72(b)
within fourteen (14) days after being served with a copy thereof, and
failure to file timely objections within the fourteen (14) day period
shall constitute a waiver of subsequent review, absent a showing of
good cause for such failure. Such party shall file with the Clerk of Court,
and serve on the Magistrate Judge and all parties, 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. Any party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. The
District Judge to whom the case was assigned shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made and may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
Magistrate Judge. The District Judge need conduct a new hearing only in
such District Judge’s discretion or where required by law, and may
consider the record developed before the Magistrate Judge, making a
determination on the basis of the record. The District Judge may also
receive further evidence, recall witnesses or recommit the matter to the
Magistrate Judge with instructions.
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Id. (emphasis added).
Failure to file objections within the specified time may forfeit the right to appeal the
District Court’s order. Berkshire v. Beauvais, 928 F.3d 520, 530-531 (6th Cir. 2019).
Objections must be specific and not merely indicate a general objection to the entirety of the
report and recommendation; a general objection has the same effect as would a failure to
object. Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Stated differently, objections should focus on specific concerns and not merely restate
the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same
argument that was presented to the Magistrate Judge without specific objections ‘wastes
judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates
Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, at *2 (W.D. Ky. June 15,
2018) (quoting Howard). The failure to assert specific objections may in rare cases be
excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79
(6th Cir. 2019).

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