Pierce v. Robinson

Filing 11

Report and Recommendation the Court DISMISS and/or DENY Mr. Pierce's petition for a writ of habeas corpus under 28 U.S.C. § 2254. It is also recommended that the Court not grant him a certificate of appealability. Objections to Report & Recommendation due by 3/24/2025. Referral Terminated. Signed by Magistrate Judge Jennifer Dowdell Armstrong on 3/10/2025. (K,L)

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES EUGENE PIERCE,

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Petitioner,
v.
WARDEN NORM ROBINSON,
Respondent.

I.

Case No. 4:24-CV-00570-JPC
JUDGE J. PHILIP CALABRESE
MAGISTRATE JUDGE
JENNIFER DOWDELL
ARMSTRONG

REPORT & RECOMMENDATION

INTRODUCTION
Petitioner, James Eugene Pierce (“Mr. Pierce”), seeks a writ of habeas corpus under

28 U.S.C. § 2254. (ECF No. 1). Mr. Pierce was sentenced to a term of ten years to life after
pleading guilty to two counts of rape and one count of disseminating matter harmful to
juveniles.
Mr. Pierce asserts two grounds for relief. Respondent, Warden Norm Robinson
(“Warden”), filed an answer/return of writ on July 3, 2024. (ECF No. 7). Mr. Pierce filed a
traverse on September 13, 2024. (ECF No. 10). This matter was referred to me on March 27,
2024 under Local Rule 72.2 to prepare a report and recommendation on Mr. Pierce’s petition.
(See ECF non-document entry dated March 27, 2024). For the reasons set forth below, I
recommend that Mr. Pierce’s petition be DISMISSED and/or DENIED. I further recommend
that the Court not grant Mr. Pierce a certificate of appealability.
II.

RELEVANT FACTUAL BACKGROUND
For purposes of habeas corpus review of state court decisions, a state court's findings

of fact are presumed correct and can be contravened only if the habeas petitioner shows, by

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clear and convincing evidence, that the state court's factual findings are erroneous. 28 U.S.C.
§ 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d
524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by
a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. The Ohio
Court of Appeals for the Eleventh Appellate District summarized the facts as follows:
Appellant pleaded guilty to two counts of rape (F1), in violation of R.C.
2907.02(A)(1)(b)&(B), and one count of disseminating matter harmful to
juveniles (F4), in violation of R.C. 2907.31(A)(1)&(F). He was sentenced to an
aggregate prison term of life with the possibility of parole after ten years and
classified as a Tier III Sex Offender / Child Victim Offender. The direct appeal
from appellant's conviction was dismissed as untimely. State v. Pierce, 11th Dist.
Trumbull No. 2021-T-0005, 2021-Ohio-1019.
(ECF No. 7-1, Exhibit 23, ¶ 2); State v. Pierce, No. 2022-T-0011, 2022 WL 16919818,
2022-Ohio-4048 (11th Dist. Nov. 14, 2022).
III. PROCEDURAL HISTORY
A. State Court Guilty Plea
On April 29, 2020, Mr. Pierce was indicted in the Trumbull County Court of Common
Pleas on: (1) two first-degree felony counts of rape, with factual findings that the victim was
less than ten years of age and that Mr. Pierce compelled the victim to submit by force or threat
of force, in violation of O.R.C. §§ 2907.02(A)(1)(b)&(B), 2971.03(B)(1)(b), and
2971.03(B)(1)(c); and (2) one fourth-degree felony count of disseminating matter harmful to
juveniles in violation of O.R.C. §§ 2907.31(A)(1)&(F). (ECF No. 7-1, Exhibit 1). On April
30, 2020, Mr. Pierce pled not guilty to the charges. (ECF No. 7-1, Exhibit 2).
On September 28, 2020, Mr. Pierce filed a motion to suppress statements he made to
the police on April 21, 2020, arguing that he did not make a knowing and intelligent waiver
of his Fifth Amendment rights under Miranda v. Arizona, 348 U.S. 436 (1966). (ECF No. 71, Exhibit 3). On October 22, 2020, the trial denied Mr. Pierce’s motion to suppress. (ECF
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No. 7-1, Exhibit 6).
On October 23, 2020, Mr. Pierce withdrew his plea of not guilty and pled guilty to all
charges. (ECF No. 7-1, Exhibit 8). In light of the COVID-19 pandemic, the plea hearing was
held by remote videoconference. (ECF No. 7-2). The transcript of the hearing indicates that
Mr. Pierce attended while sitting outside. (ECF No. 7-2, PageID # 310). Mr. Pierce also
asserts that he was wearing a face covering and sunglasses during the hearing. On January
12, 2021, the trial court sentenced Mr. Pierce to an aggregate term of ten years to life. (ECF
No. 7-1, Exhibit 9).
B. Direct Appeal
On February 12, 2021, Mr. Pierce, through new appellate counsel, filed a notice of
appeal to the Eleventh Appellate District. (ECF No. 7-1, Exhibit 10). On March 29, 2021, the
Eleventh Appellate District dismissed the appeal because it was untimely by one day. (ECF
No. 7-1, Exhibit 11). The court noted that Mr. Pierce could file a motion for leave to file an
untimely appeal under Ohio Appellate Rule 5(A). Id. at ¶ 6. Mr. Pierce did not file a motion
for leave to file a delayed appeal and did not file a notice of appeal to the Ohio Supreme
Court.
C. Motion to Withdraw Guilty Plea
On February 12, 2021, Mr. Pierce, through counsel, filed a motion in the trial court to
withdraw his guilty plea pursuant to Ohio Criminal Rule 32.1, arguing that his plea was not
knowing and voluntary because he was under extremely psychological distress and the
influence of prescription medication at the time of his plea. (ECF No. 7-1, Exhibit 14). Mr.
Pierce also requested that the trial court hold an evidentiary hearing on his motion.
On January 5, 2022, the trial court denied Mr. Pierce’s motion without a hearing. (ECF
No. 7-1, Exhibit 17). On January 18, 2022, Mr. Pierce filed a motion requesting that the court
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issue findings of fact and conclusions of law explaining the basis of the denial. (ECF No. 71, Exhibit 18). On February 2, 2022, the trial court denied Mr. Pierce’s motion. (ECF No. 71, Exhibit 19).
On February 7, 2022, Mr. Pierce, through counsel, timely filed a notice of appeal to
the Eleventh Appellate District. (ECF No. 7-1, Exhibit 20). On May 18, 2022, Mr. Pierce
filed his appellate brief, raising the following assignments of error:
1. The Trial Court did not accept Guilty pleas that were knowingly, intelligently,
and voluntarily given by Defendant-Appellant due to his psychological and
physical condition at the time of the Plea Hearing.
2. The Trial Court failed to conduct a Hearing on the post-Sentencing Motion to
Withdraw Guilty Pleas, depriving Appellant of his Constitutional rights to due
process of law.
3. The Trial Court failed to issue Findings of Fact and Conclusions of Law,
depriving Appellant of his Constitutional rights to due process of law in both the
Trial and Appellate Courts.
(ECF No. 7-1, Exhibit 21).
On November 14, 2022, the Eleventh Appellate District affirmed the trial court’s
denial of Mr. Pierce’s motion to withdraw his guilty plea. (ECF No. 7-1, Exhibit 23). On
December 29, 2022, Mr. Pierce, through counsel, filed a notice of appeal to the Ohio Supreme
Court. (ECF No. 7-1, Exhibit 24). In his memorandum in support of jurisdiction, Mr. Pierce
raised the following propositions of law:
1. The Trial Court did not accept Guilty pleas that were knowingly, intelligently,
and voluntarily given by Appellant due to his psychological and physical
condition at the time of the Plea Hearing.
2. The Trial Court failed to conduct a Hearing on the post-Sentencing Motion to
Withdraw Guilty Pleas, depriving Appellant of his Constitutional rights to due
process of law.
3. The Trial Court failed to issue Findings of Fact and Conclusions of Law,
depriving Appellant of his Constitutional rights to due process of law in both the
Trial and Appellate Courts.
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(ECF No. 7-1, Exhibit 25). On March 14, 2023, the Ohio Supreme Court declined to
accept jurisdiction of the appeal. (ECF No. 7-1, Exhibit 27).
D. Federal Habeas Action
On March 27, 2024, Mr. Pierce, through counsel, filed his 28 U.S.C. § 2254 habeas
petition. (ECF No. 1). Mr. Pierce’s habeas petition raises the following grounds for relief:
1. Mr. Pierce’s due process was violated. Mr. Pierce was not mentally competent
to enter a guilty plea. Mr. Pierce was not physically present in the Courtroom
when the plea was taken. Because of COVID restrictions the plea was taken by
Zoom. At the time of the plea Mr. Pierce was outdoors and wearing a mask and
sunglasses. It was not possible for the judge to take the plea to observe Mr. Pierce
sufficiently to determine if he was capable to knowingly and competently enter
a guilty plea. Under the circumstances described above, it was manifestly unjust
not to hold a hearing on Mr. Pierce’s request to withdraw his guilty plea. Failure
to hold a hearing on Mr. Pierce’s motion to withdraw his guilty plea violated his
constitutional due process rights. Attached to the motion to withdraw the guilty
plea was an affidavit stating that Mr. Pierce was under the influence of narcotics.
2. Ineffective assistance of counsel.
Id. The Warden filed an answer/return of writ on July 3, 2024. (ECF No. 7). Mr. Pierce
filed his traverse on September 13, 2024. (ECF No. 10).
IV. 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
Trumbull County Court of Common Pleas sentenced Mr. Pierce, and the Court takes judicial
notice that Trumbull County is within this Court’s geographic jurisdiction. Accordingly, this
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Court has jurisdiction over Mr. Pierce’s § 2254 petition.
B. Exhaustion and Procedural Default
Under 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. 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
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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.
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
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act,
Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), provides in relevant part as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant
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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.
(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
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(2003). “The unreasonable application clause requires the state court decision to be more than
incorrect or erroneous”—it must be “objectively unreasonable.” Id.
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, 34142 (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

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that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id.
V. ANALYSIS
A. Ground One: Failure to Hold Hearing on Motion to Withdraw Plea
In his first ground for relief, Mr. Pierce asserts that the trial court violated his due
process rights because it failed to hold an evidentiary hearing on his motion to withdraw his
guilty plea. Mr. Pierce argues that a hearing on his motion to withdraw his plea was required
because his original plea hearing was “sufficiently unique” in that it was held remotely in
light of the COVID-19 pandemic. (ECF No. 10, PageID # 340). Mr. Pierce also argues that,
because the plea hearing was held via remote videoconference and he was wearing a face
covering and sunglasses, the trial judge was unable to observe to observe that Mr. Pierce was
“distraught and medicated.” Id. at PageID # 343. The Warden responds that Mr. Pierce’s
claim raises only questions of state law and is not cognizable in a federal habeas proceeding.
I agree.
“[T]here is no federal constitutional right to withdraw a guilty plea . . . [or] to an
evidentiary hearing on a motion to withdraw a guilty plea.” Hill v. Jackson, No. 3:19-cv1196, 2020 WL 6809117, at *15 (N.D. Ohio Oct. 15, 2020) (quoting Nicholson v. Larose,
No. 1:13CV2535, 2015 WL 1757898, at *15 (N.D. Ohio Apr. 17, 2015)), report and
recommendation adopted, 2020 WL 6802130 (N.D. Ohio Nov. 19, 2020); see also Moorer v.
Warden, Marrion Corr. Facility, No. 1:11CV1079, 2012 WL 3579645, at *4 (N.D. Ohio July
23, 2012) (“A criminal defendant has no constitutional right to an evidentiary hearing on a
motion to withdraw a guilty plea.”), report and recommendation adopted, 2012 WL 3579612
(N.D. Ohio Aug. 17, 2012).
Because there is no constitutional right to a hearing on a motion to withdraw a guilty
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plea, courts in this district have consistently held that claims like Mr. Pierce’s raise purely
state law challenges and are not cognizable. See Nicholson, 2015 WL 1757898 at *15 (“to the
extent Nicholson claims he is entitled to relief because the trial court erred under Ohio law in
denying his motion to withdraw guilty plea without a hearing, Nicholson raises a state law
issue that is not cognizable in these federal habeas proceedings”); Armstrong v. Wainwright,
No. 1:18CV1133, 2018 WL 8050904, at *14 (N.D. Ohio Dec. 20, 2018) (claim that trial court
violated petitioner’s due process rights in failing to hold evidentiary hearing was not
cognizable because “a defendant's right to an evidentiary hearing on a motion to withdraw
guilty plea is an issue of state law; there is no constitutional right to a hearing on a motion to
withdraw a guilty plea”), report and recommendation adopted, 2019 WL 1670995 (N.D.
Ohio Apr. 17, 2019); Ruffin v. Lazaroff, No. 5:15CV2718, 2016 WL 7974123, at *11 (N.D.
Ohio Nov. 1, 2016) (“to the extent Ruffin claims he is entitled to relief because the trial court
erred under Ohio law in denying his motion to withdraw guilty plea without a hearing, Ruffin
raises a state law issue that is not cognizable in these federal habeas proceedings”), report
and recommendation adopted, 2017 WL 347381 (N.D. Ohio Jan. 24, 2017).
It is true that “state court rulings on issues of state law may rise to the level of due
process violations if they ‘offend[ ] some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as fundamental.’” Hill, 2020 WL 6809117 at *15
(quoting Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000)). However, Mr. Pierce has
not demonstrated that the trial court’s denial of his motion without an evidentiary hearing
offended a fundamental principle of justice in the circumstances presented here.
Mr. Pierce cites several Sixth Circuit cases, including Osborne v. Thompson, 610 F.2d
461 (6th Cir. 1979), and Williams v. Bordenkircher, 696 F.2d 464 (6th Cir. 1983), for the

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proposition that a trial court’s failure to hold a hearing on a motion to withdraw a plea can
implicate constitutional due process concerns. Those cases dealt with a defendant’s
competency, and it is not clear that either case applies here. Regardless, “clearly established”
law under AEDPA is limited to the holdings of Supreme Court cases and does not include
decisions from the Sixth Circuit. See Otte, 654 F.3d at 599; Hill v. Hofbauer, 337 F.3d 706,
716 (6th Cir. 2003) (holding that “only Supreme Court case law is relevant under the AEDPA
in examining what Federal law is ‘clearly established,’” and that Sixth Circuit decisions are
informative solely to the extent that they discuss whether a legal principle has been clearly
established by the Supreme Court). Mr. Pierce’s argument that he was entitled to an
evidentiary hearing thus does not raise a cognizable due process claim.
The broader question of whether a defendant’s plea was knowing and voluntary can
raise federal constitutional concerns. See Brady v. United States, 397 U.S. 742, 748 (1970).
In his traverse, however, Mr. Pierce expressly disavows any broader argument, stating that
his claim “explicitly confines the issue before this Honorable Court to the state court judge’s
failure to hold an evidentiary hearing before denying petitioner’s motion to withdraw his
guilty plea.” (ECF No. 10, PageID # 347). Because that issue is not cognizable, I recommend
that the Court dismiss Mr. Pierce’s first ground for relief.
B. Ground Two: Ineffective Assistance of Counsel
In his second ground for relief, Mr. Pierce asserts that he received the ineffective
assistance of trial counsel in connection with his plea. The Warden responds that Mr. Pierce
failed to exhaust this claim. I agree, but I nonetheless recommend that the Court deny Mr.
Pierce’s second ground for relief on the merits notwithstanding his failure to exhaust.
Alternatively, I recommend that the Court give Mr. Pierce an opportunity to amend his
petition to omit his second ground for relief, and that the Court dismiss Mr. Pierce’s petition
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without prejudice for failure to exhaust if he fails to do so.
As noted above, a petitioner must exhaust all possible state remedies before a federal
court can review a petitioner’s claims on the merits. See 28 U.S.C. § 2254(b) and (c); Lundy,
455 U.S. at 510. Mr. Pierce did not raise an ineffective assistance of counsel claim either in
his direct appeal to the Eleventh Appellate District or in his appeal from the trial court’s denial
of his motion to withdraw his guilty plea. Mr. Pierce thus never fairly presented his ineffective
assistance claim to the Ohio courts and has not exhausted the claim. See O’Sullivan, 526 U.S.
at 845.
It is true that the exhaustion requirement “refers only to remedies still available at the
time of the federal petition.” Engle, 456 U.S. at 125 n.28. As the Warden correctly notes,
however, there remains a potential avenue for Mr. Pierce to raise his ineffective assistance of
counsel claim in state court. Specifically, Ohio Rule of Appellate Procedure 5(A) provides
that “[a]fter the expiration of the thirty day period provided by App.R. 4(A) for the filing of
a notice of appeal as of right, an appeal may be taken by a defendant with leave of the court
to which the appeal is taken in the following classes of cases . . . (a) Criminal proceedings.”
Ohio App.R. 5(A)(1)(a). Nothing in the record suggests that Mr. Pierce has pursued a motion
for a delayed appeal under Rule 5(A), and Mr. Pierce does not argue that Ohio law prevents
him from doing so at this time.
It is well-settled that a petitioner has not exhausted a claim where the petitioner can
still pursue a motion for a delayed appeal under Appellate Rule 5(A), even if it is unlikely
that the Ohio appellate court would grant the motion. See El v. Miller, No. 1:11CV2342, 2012
WL 3067365, at *6 (N.D. Ohio June 29, 2012) (holding that motion for delayed appeal to
appellate court was available remedy such that petitioner’s claims were not exhausted until

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petitioner pursued motion, even if it was “debatable” whether court of appeals would grant
motion), report and recommendation adopted, 2012 WL 3067363 (N.D. Ohio July 27, 2012);
Brown v. Gray, No. 4:20-cv-01726, 2021 WL 4348265, at *2 (N.D. Ohio Sept. 24, 2021)
(holding that claim was not exhausted where delayed appeal to Ohio appellate court remained
available); Taper v. Luneke, No. 1:24-cv-602, 2024 WL 5056487, at *4 (S.D. Ohio Dec. 10,
2024) (same), report and recommendation adopted, 2024 WL 5237677 (S.D. Ohio Dec. 27,
2024). Mr. Pierce has not exhausted his second ground for relief.
Mr. Pierce’s failure to exhaust his ineffective assistance of counsel claim does not
necessarily preclude the Court from addressing the claim on the merits. Rather, § 2254(b)(2)
provides that “[a]n application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of
the State.” 28 U.S.C. § 2254(b)(2); see also Harris v. Lafler, 553 F.3d 1028, 1032 (6th Cir.
2009) (holding that a court may “ignore the exhaustion requirement altogether and deny the
petition on the merits if none of the petitioner's claims has any merit”) (emphasis omitted).
Notwithstanding Mr. Pierce’s failure to exhaust, I recommend that the Court deny his claim
rather than requiring him to exhaust the claim in state court because Mr. Pierce’s claim is
plainly without merit.
A petitioner claiming ineffective assistance of counsel must show that: (1) counsel’s
representation “fell below an objective standard of reasonableness,” such that he was not
performing as counsel guaranteed under the Sixth Amendment; and (2) counsel’s deficient
performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 688 (1984).
Under the first prong, the petitioner must overcome the “strong[] presum[ption that counsel]
rendered adequate assistance and made all significant decisions in the exercise of reasonable

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professional judgment.” Id. at 690. For prejudice, the petitioner must show that there was a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
The Strickland standard is “extremely deferential” because “‘counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.’” Kelly v. Lazaroff, 846 F.3d 819, 829 (6th Cir.
2017) (quoting Strickland, 466 U.S. at 690). “[T]he goal is not to ensure that a criminal
defendant be afforded perfect counsel, but rather ‘to ensure that the adversarial testing process
works to produce a just result under the standards governing decision.” Id. (quoting
Strickland, 466 U.S. at 687).
Strickland applies at the guilty plea stage. Indeed, the Supreme Court has held that,
“[b]efore deciding whether to plead guilty, a defendant is entitled to ‘the effective assistance
of competent counsel.’” Padilla v. Kentucky, 559 U.S. 356, 364 (2010) (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970)). To prevail on a Strickland claim in the guilty plea
context, a petitioner “must show 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). “In the Sixth Circuit, a petitioner ‘cannot make that
showing merely by telling [the court] now that she would have gone to trial then if she had
gotten different advice.’” Shimel v. Warren, 838 F.3d 685, 698 (6th Cir. 2016) (quoting Pilla
v. United States, 668 F.3d 368, 373 (6th Cir. 2012)). Rather, the petitioner must demonstrate
that “a decision to reject the plea bargain would have been rational under the circumstances.”
Pilla, 668 F.3d at 373 (quoting Padilla, 559 U.S. at 372). The test is an objective one, made
“without regard for the idiosyncrasies of the particular decisionmaker.” Lockhart, 472 U.S.

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at 59-60 (quotations omitted).
Mr. Pierce asserts that his trial counsel was ineffective because trial counsel permitted
the “clearly unconstitutional taking of Mr. Pierce’s guilty plea” to proceed. (ECF No. 1,
PageID # 7). However, Mr. Pierce has not cited any clearly established Supreme Court law
for the proposition that a defendant has a federal constitutional right to an in-person plea
hearing. Moreover, the Eleventh Appellate District held that the plea hearing did not violate
Ohio law (ECF No. 7-1, Exhibit 23, ¶ 12), and I must defer to a state court’s interpretation of
its own law. See Estelle, 502 U.S. at 67-68. As the Eleventh Appellate District also noted,
Mr. Pierce, through counsel, consented to proceeding with the plea hearing via remote
videoconference in light of the COVID-19 pandemic. (ECF No. 7-2, PageID # 309). Mr.
Pierce’s statements during the plea hearing also belie his arguments that his counsel was
ineffective or should not have permitted the plea hearing to go forward. Mr. Pierce informed
the trial court that he was satisfied with his counsel’s performance, stating that his counsel
had been “wonderful.” Id. at PageID # 313. He also expressly denied taking any drugs or
suffering from mental illness. Id. at PageID # 311.
Mr. Pierce also argues that his trial counsel was ineffective because counsel failed to
show him an “accusatory video” that would have “allowed him to understand the gravity of
the allegations by his granddaughter.” (ECF No. 1, PageID # 7). Mr. Pierce does not explain
what the “accusatory video” is or why his counsel should have shown it to him. He also has
not explained why viewing the video would have created a reasonable probability that he
would have rejected the plea and proceeded to trial. Finally, Mr. Pierce has not demonstrated
that it would have been objectively rational for him to proceed to trial under the
circumstances. As a result, Mr. Pierce’s ineffective assistance of trial counsel claim fails on

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the merits, and I recommend that the Court deny his second ground for relief notwithstanding
his failure to exhaust the claim in state court.
Alternatively, I recommend that the Court give Mr. Pierce an opportunity to amend
his petition to omit his second ground for relief, and that the Court dismiss Mr. Pierce’s
petition if he fails to do so. Because Mr. Pierce exhausted his first ground for relief but not
his second, his habeas petition is a “mixed” petition. Rhines v. Weber, 544 U.S. 269, 271
(2005). When faced with a mixed petition, a court must generally dismiss the entire petition
without prejudice. Lundy, 455 U.S. at 510. In Rhines, however, the Court held that a district
court may also stay the action for good cause and permit the petitioner to present the
unexhausted claim in state court. Rhines, 544 U.S. at 277. But “[s]tay and abeyance, if
employed too frequently, has the potential to undermine” AEDPA’s goals of finality and
streamlining federal habeas proceedings. Id. at 277. Accordingly, the Rhines Court held that
stay and abeyance “should be available only in limited circumstances” where: (1) the
petitioner has good cause for the failure to exhaust; (2) the petitioner’s claims are not “plainly
meritless”; and (3) the petitioner is not engaged in abusive litigation tactics or intentional
delay. Id. at 277-78.
Mr. Pierce has not shown that stay and abeyance is warranted here. He has not
presented any good cause for his failure to exhaust his ineffective assistance of trial counsel
claim. Nor, as above, has he shown that his claim is more than plainly meritless. As a result,
I do not recommend that the Court stay Mr. Pierce’s petition and hold it in abeyance while he
pursues a motion for a delayed appeal.
“[I]f a petitioner presents a district court with a mixed petition and the court
determines that stay and abeyance is inappropriate, the court should allow the petitioner to

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delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the
entire petition would unreasonably impair the petitioner's right to obtain federal relief.”
Rhines, 544 U.S. at 278. In his traverse, Mr. Pierce states that he is willing to delete his
ineffective assistance of counsel claim if the Court permits. (ECF No. 10, PageID # 348 n. 1).
Accordingly, I alternatively recommend that the Court give Mr. Pierce 14 days to file an
amended petition omitting Ground Two. If he fails to do so, I recommend that the Court
dismiss his petition in its entirety without prejudice for failure to fully exhaust his claims.
VI. RECOMMENDATION REGARDING CERTIFICATE OF APPEALABILITY
A. Legal Standard
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
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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)].”). In light of the Rule
11 requirement that the court either grant or deny the certificate of appealability at the time
of its final adverse order, a recommendation regarding the certificate of appealability issue is
included here.
B. Analysis
Mr. Pierce 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 these conclusions
debatable, I recommend that no certificate of appealability issue in this case.
VII. RECOMMENDATION
For the foregoing reasons, I RECOMMEND that the Court DISMISS and/or DENY
Mr. Pierce’s petition for a writ of habeas corpus under 28 U.S.C. § 2254. I also recommend
that the Court not grant him a certificate of appealability.
/s/ Jennifer Dowdell Armstrong
Jennifer Dowdell Armstrong
U.S. Magistrate Judge

Dated: March 10, 2025

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
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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.
Id. (emphasis added).
Failure to file objections within the specified time may result in the forfeiture or
waiver of the right to raise the issue on appeal either to the district judge or in a subsequent
appeal to the United States Court of Appeals, depending on how or whether the party responds
to the report and recommendation. Berkshire v. Dahl, 928 F.3d 520, 530 (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, *2 (W.D. Ky. June 15,
2018) (quoting Howard). The failure to assert specific objections may in rare cases be
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excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79
(6th Cir. 2019).

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