Askew v. Bradshaw
Filing
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Memorandum of Opinion and Order accepting 40 Report and Recommendation of Magistrate Judge Ruiz. Petition for Writ of Habeas Corpus is denied. 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(c); Fed. R. App. P. 22(b). Judge Patricia A. Gaughan on 8/4/17. (G,CA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sero Duvall Askew,
Petitioner,
vs.
Margaret Bradshaw, Warden
Respondent.
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CASE NO. 5:12 CV 131
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
Introduction
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge Ruiz (Doc. 40), which recommends denial of the Petition for Writ of Habeas Corpus
pending before the Court. Petitioner filed objections to the recommendation. For the following
reasons, the Report and Recommendation is ACCEPTED.
Standard of Review
Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District
Courts provides, “The judge must determine de novo any proposed finding or
recommendation to which objection is made. The judge may accept, reject, or modify any
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proposed finding or recommendation.”
Discussion
Petitioner was indicted by an Ohio grand jury in 2004 on counts of possession of
cocaine and trafficking in cocaine. He entered a plea of no contest after the trial court denied
his pretrial motions to suppress evidence. The trial court sentenced Petitioner to a term of
imprisonment of fifteen years. He then filed a direct appeal, application to reopen his direct
appeal, and post-conviction petition in state court, all of which were denied.1 In 2006,
Petitioner filed a federal habeas petition, which this Court dismissed. Petitioner then filed a
variety of proceedings in state court. In 2010, the trial court granted a new sentencing hearing
because Petitioner’s 2004 judgment entry did not reflect the finding of guilt that the court had
made at his sentencing hearing and the notification of post-release control was defective. At
Petitioner’s resentencing hearing, he moved to withdraw his plea, which the trial court denied.
Petitioner was re-sentenced to an aggregate term of imprisonment of fifteen years. Petitioner
appealed from his resentencing. The appellate court denied Petitioner’s assignment of error
that the trial court had abused its discretion when it denied his motion to withdraw his plea,
finding that the trial court had been without jurisdiction to vacate his plea after his conviction
had been affirmed. It also denied his other assignments of error, holding that the resentencing
did not allow him to challenge anew his conviction because such challenges were barred by
res judicata. Petitioner’s motion for reconsideration was denied, and the Ohio Supreme Court
denied leave to appeal. Petitioner then filed several other proceedings in state court. Again, all
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The Report and Recommendation discusses Petitioner’s state court proceedings in
depth. (Doc. 40 at 3-14).
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were unsuccessful.
On January 19, 2012, Petitioner filed the currently pending petition for writ of habeas
corpus, which the Sixth Circuit determined was not a second or successive petition. The
Petition asserts three grounds for relief:
Ground One: When a petitioner is denied merit review of claimed
constitutional error, on the basis of an erroneous procedural determination,
petitioner is denied the effective assistance of counsel and due process of law
as guaranteed by the Fourteenth Amendment to the United States Constitution.
Ground Two: When appellate counsel fails to raise the most obvious and
significant issue on direct appeal, petitioner is denied the effective assistance of
counsel as guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution.
Ground Three: When appellate counsel fails to address the trial court’s failure
to properly inform petitioner of the maximum sentence he faced prior to
accepting his plea as required under Criminal Rule 11(C)(2)(a), petitioner is
denied the effective assistance of counsel as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution.
Ground One
The Magistrate Judge construed Ground One as arguing only that the state court
improperly applied the doctrine of res judicata to bar a merits review of his claims. He noted
that Petitioner made numerous citations to Ohio law in his briefing but did not attempt to
explain how the alleged misapplication of Ohio law resulted in a due process violation. The
Magistrate Judge concluded that this claim was not cognizable in a federal habeas petition
because Ohio’s doctrine of res judicata is an adequate and independent state ground to
procedurally bar claims asserted in federal habeas. He also concluded that, even if a federal
court could second guess the state appellate court’s application of Ohio’s procedural rules, its
application of res judicata was not erroneous.
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In his Objections, Petitioner asserts that the Magistrate Judge “misinterpreted his
claim.” But Petitioner’s “clarification” supports that the Magistrate Judge correctly construed
Ground One: “To clarify, the basis for the claim presented in this ground for relief was created
when the state appellate court denied Askew his direct appeal of right, due to an erroneous
application of law-of-the-case and/or res judicata, and that procedural determination now
involves Askew’s liberty interest that invokes the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.” (Doc. 42, at 4). For the reasons addressed in
the Report and Recommendation, the Court agrees with the Magistrate Judge that Ground One
must be dismissed because Petitioner has not shown how the deprivation of a merits-based
review amounts to a constitutional violation cognizable on habeas review.
Moreover, to the extent that Petitioner is arguing in Ground One that the state courts
erred by denying his motion to withdraw his no contest plea, (id. at 5), and by failing to merge
allied offenses of similar offenses, (id. 8-9), these claims are not cognizable.
Because there is no federal due process right to withdraw a guilty plea, a federal
habeas court generally “lacks authority to adjudicate a claim that the state court improperly
denied a motion to withdraw a guilty plea.” Perry v. Lazaroff, 2016 WL 8674485 (N.D. Ohio
Nov. 4, 2016), report and recommendation adopted, 2017 WL 1251635 (N.D. Ohio Apr. 5,
2017) (citations omitted); see also, e.g., Gibson v. Warden, Hocking Corr. Facility, 2011 WL
1429099, at *5 (S.D. Ohio Feb. 23, 2011), report and recommendation adopted, 2011 WL
3861687 (S.D. Ohio Aug. 31, 2011) (“[T]he decision whether to permit a defendant to
withdraw a guilty plea is committed to the trial court’s discretion, which generally is not a
basis for federal habeas relief.”). Petitioner has not shown, or even argued, that his guilty plea
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was fundamentally unfair such that it rose to the level of a constitutional violation. Thus,
assuming that Ground One asserts that the state courts erred in denying his motion to
withdraw his guilty plea, it does not provide a basis for federal habeas relief.
Similarly, the Sixth Circuit has held that habeas relief is not available for a claim that
the state courts erred in failing to merge his convictions for sentencing. Jackson v. Smith, 745
F.3d 206, 214 (6th Cir. 2014) (“At worst, the state court incorrectly applied Ohio’s allied
offenses statute to determine the legislature’s intent. Habeas relief...is not available for such
alleged errors.”). See also Howard v. White, 76 F. App’x 52, 54 (6th Cir. 2003) (“A state
court’s alleged misinterpretation of state sentencing guidelines and crediting statutes is a
matter of state concern only.”); Wilcox v. Littlefield, 48 F.3d 1220 (6th Cir. 1995) (“Federal
courts may not review claims that a state court failed to adhere to state statutory sentencing
procedures.”).
Ground Two
The basis of Ground Two–whether it relates to appellate counsel’s performance on
direct appeal in 2005 or appellate counsel’s performance on direct appeal from
resentencing–is unclear from Petitioner’s briefing. Compare (Doc. 28, at 5) (“Here, Askew[‘s]
expectation of privacy in his cell phone was reasonable and justifiable, and counsel performed
deficiently by not raising the illegal search of cell phone issue at the suppression hearing, and
this ineffectiveness prejudiced Askew’s case at the suppression hearing as well as on appeal”),
with (Doc. 1, at 20) (“Because the Ohio Supreme Court’s decision in Smith is rooted long
standing principles of the Fourth Amendment, as defined by the United States Supreme Court,
appellate counsel had a duty to raise this issue on direct appeal from the de novo sentencing
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hearing.”). The Magistrate Judge construed Ground Two as challenging appellate counsel’s
performance on direct appeal in 2005 rather than counsel’s performance on appeal from
Petitioner’s resentencing. He concluded that the claim is procedurally defaulted because
Petitioner did not “fairly present” the claim to the state courts. To the extent that Ground Two
addresses appellate counsel’s performance on direct appeal in 2005, this Court agrees that the
claim is procedurally defaulted for the reasons stated in the Report and Recommendation.
In his Objections, Petitioner states that Ground Two challenges appellate counsel’s
performance on direct appeal from his 2010 resentencing, not appellate counsel’s performance
on direct appeal in 2005. The Ohio Supreme Court dismissed his appeal from the resentencing
as not involving any substantial constitutional questions. Because the court did not articulate
its reasoning, Petitioner argues that the claim must be reviewed under the standard set forth in
Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000). In Harris, the Sixth Circuit held that when a
state court rejects a constitutional claim without explaining its reasons for doing so, a federal
habeas court applies an intermediate approach that is in-between de novo review and complete
deference. The court must conduct an independent review of the record and applicable law to
determine whether, under the AEDPA standard, the state court decision is contrary to federal
law, unreasonably applies clearly established law, or is based on an unreasonable
determination of the facts in light of the evidence presented. Id. at 943.
Assuming Ground Two is based on appellate counsel’s performance on direct appeal
from his 2010 resentencing, the Ohio Supreme Court’s decision is not contrary to federal law,
an unreasonable application of clearly established law, or based on an unreasonable
determination of the facts in light of the evidence presented. A defendant has a constitutional
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right to effective assistance of counsel on appeal. Evitts v. Lucey, 469 U.S. 387, 396-97
(1985). The two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984), governs
ineffective assistance of appellate counsel claims. Under the first prong, Petitioner must
demonstrate that “counsel’s representation was deficient in that it ‘fell below an objective
standard of reasonableness.’” Id. at 688. In assessing whether counsel’s performance was
deficient, this Court “must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” and Petitioner “must overcome the
presumption that, under the circumstances, the challenged action might be considered sound
trial strategy.” Id. at 689 (citation and quotation marks omitted). Under the second prong,
Petitioner must show “prejudice.” He does so by establishing“a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.
A court evaluates the reasonableness of appellate counsel’s conduct by examining the
state of law at the time of the appeal. Ceasor v. Ocwieja, 655 F. App'x 263, 277–79 (6th Cir.
2016); see also Jacobs v. Mohr, 265 F.3d 407, 418 (6th Cir. 2001)(“[T]he reasonableness of
counsel’s performance is to be evaluated from counsel's perspective at the time of the alleged
error and in light of all the circumstances”) (citation and quotation marks omitted). Petitioner
filed his appeal from the resentencing on August 31, 2010. At that time, the law in Ohio was
clear that a resentencing for deficiencies involving notification and journalization of postrelease control did not allow a defendant to challenge anew his conviction and that appeals
from such resentencings could raise only arguments relating to the resentencing. See, e.g.,
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State v. Fischer, 181 Ohio App. 3d 758, 761 (Ohio Ct. App. 2009), aff’d, 128 Ohio St.3d 92
(2010); State v. Ortega, 2008 Ohio 6053, ¶ 7 (“[W]hen a ‘court affirms the convictions in the
First Appeal, the propriety of those convictions becomes the law of the case, and subsequent
arguments seeking to overturn them become barred. Thus, in the Second Appeal, only
arguments relating to the resentencing are proper.’”) (quoting State v. Harrison, 2008 Ohio
921, at ¶ 9). Thus, appellate counsel did not act unreasonably in failing to object to the legality
of the cell phone search, as such a challenge would have been barred by res judicata. Nor was
Petitioner prejudiced by appellate counsel’s failure to object to the search because the result of
the proceeding would not have been different. Indeed, the appellate court rejected Petitioner’s
other claims on appeal because they did not relate to the sentencing. (R. 58 at 4) (“This court
has repeatedly held such resentencings do not allow a defendant to challenge anew his
conviction(s) as such is barred under the principles of res judicata/law of the case.”).
Ground Three
The Magistrate Judge concluded that Ground Three is procedurally defaulted because
Petitioner did not raise it on direct appeal, which would have been his first available
opportunity. This Court agrees. Ground Three is, therefore, dismissed for the reasons stated in
the Report and Recommendation.
Conclusion
For the reasons set forth herein and for the reasons set forth in the Magistrate Judge’s
Report and Recommendation, which is incorporated herein, the Petition for Writ of Habeas
Corpus is denied. Furthermore, 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
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which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
Date:
8/04/17
/s/Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Court
Chief Judge
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