Nickelson v. Warden, Chillicothe Correctional Institution

Filing 78

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS re 37 Report and Recommendation in its entirety, denying 38 Petitioner's Objections to Report and Recommendation, denying 33 Petitioners Motion for Summary Judgment. Petitioner's habeas corpus petition is DENIED WITH PREJUDICE. Further, the Court FINDS that a certificate of appealability should not issue with respect to the claims alleged in the petition and CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that with respect to any application by Petitioner to proceed on appeal in forma pauperis, an appeal of this Order would not be taken in good faith, and therefore the Court DENIES Petitioner leave to appeal in forma pauperis. Finally, the Court's ruling herein r enders the remainder of Petitioners outstanding motions moot, and they are each DENIED as such 53 59 61 62 63 65 70 72 76 and 77 . Pursuant to the Court's authority under 28 U.S.C. § 1651(a), the Court hereby DIRECTS the Clerk of Court to refuse for filing any further documents by Petitioner except for a notice of appeal from this Order and to return to Petitioner, without filing, any such documents presented. Unless directed to the contrary by the Court of Appeals, this Court will entertain no further filings by Petitioner in this matter as this case is CLOSED. Signed by Judge S Arthur Spiegel on 2/29/2012. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

LeSHAWN NICKELSON,
Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,

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NO. 1:11-CV-00334

OPINION AND ORDER

Respondent.
This matter is before the Court on the Magistrate Judge’s
Report and Recommendation, (doc. 37) and Petitioner’s objections
thereto (doc. 38).

Also pending before the Court are Petitioner’s

Motion for Summary Judgment (doc. 33); Petitioner’s Objections to
Magistrate’s Order Denying Motion for Grand Jury Minutes Based on
Fraudulent Misrepresentation (doc. 53); Objections to Motion Leave
to File an Amended Petition (doc. 59); Petitioner’s Objections to
Magistrate’s

Order

Denying

Evidentiary

Hearing

(doc.

61);

Petitioner’s Objections to Magistrate’s Order Motion to Strike
Exhibit 69 to the Return of Writ “because this Court document has
never been submitted in any State Court proceeding” (doc. 62);
Objection to Magistrate’s Order Denying Motion Judicial Notice of
Adjudicative Facts Rule 201 of Federal Rules of Evidence (doc. 63);
Petitioner’s Objection to Magistrate’s Order Denying the Motion and
Affidavit in Supports to Order Lawrence County Clerk of Court to

Release the Certified Copy of the Docket and Journal Filed February
19, 2009 and April 28, 2010 (doc. 65); Petitioner’s Objections to
the Magistrate’s Order Denying the Motion Pursuant to Rule 60(b)(5)
Fraudulent Misrepresentation & Fraud on the Court by Respondent’s
Attorney (doc. 70); Objections to Magistrate’s Order for Failure to
Give Finding of Facts & Conclusion of Law on 60(B)(5) Motion (doc.
72); and Objection to Magistrate Judge’s Order Denying Motion for
Judicial Notice of Adjudicative Facts (doc. 76).
For the following reasons, the Court AFFIRMS and ADOPTS
the Magistrate Judge’s Report and Recommendation in its entirety
(doc. 37), DENIES Petitioner’s objections, DENIES Petitioner’s
Motion for Summary Judgment (doc. 33) and DENIES WITH PREJUDICE
Petitioner’s habeas petition.

This decision renders Petitioner’s

outstanding objections moot, and they are denied as such.
I.

Background and the Magistrate Judge’s Report & Recommendation
In 2005, Petitioner pleaded guilty to two counts of

trafficking, in exchange for a dismissal of the other eight counts,
and then failed to appear at his sentencing hearing (doc. 37).

He

was arrested several years later and, at that time, filed a pro se
motion to withdraw his guilty plea, which was rejected, and
Petitioner was sentenced to the term he is currently serving (Id.).
In his habeas petition, Petitioner pleads seven grounds
for relief: (1) ineffective assistance of counsel based on his
counsel’s alleged failures to explain the nature and elements of

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the charge and to investigate and move to suppress based on a
warrantless search; (2) denial of due process and equal protection
when the trial court denied as untimely his motion to withdraw his
guilty plea; (3) violation of his Fifth and Fourteenth Amendment
rights when the trial court denied his motion to withdraw his
guilty plea without first conducting a hearing; (4) denial of due
process and equal protection when appellate counsel “failed to
address prosecutor’s misconduct” for failure to produce a valid
affidavit for the search warrant; (5) denial of due process and
equal

protection

when

appellate

counsel

“failed

to

address

prosecutor’s misconduct” for failure to produce evidence that
someone else pled guilty to the same offense; (6) denial of due
process and equal protection when appellate attorney failed to
address

on

appeal

whether

Petitioner

was

denied

effective

assistance of trial counsel; and (7) ineffective assistance of
appellate counsel for failure to advise the court of a conflict of
interest between Petitioner and his appellate counsel’s law firm
(Id.).
As an initial matter, the Magistrate Judge observed that
Petitioner

asserts

violations

of

his

rights

under

the

Ohio

Constitution in each of his grounds for relief (Id.). Noting that
federal

habeas

relief

is

available

only

to

address

federal

constitutional violations, the Magistrate Judge recommends that all
such claims should be dismissed without prejudice for failure to

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state a claim upon which federal habeas relief can be granted
(Id.).
With

respect

to

the

federal

claims

contained

in

Petitioner’s grounds for relief, the Magistrate Judge recommends
that they be dismissed with prejudice (Id.).

Specifically, as to

Ground One, the Magistrate Judge determined that the state court’s
adjudication

of

Petitioner’s

federal

constitutional

claim

of

ineffective assistance of counsel was not contrary to or an
objectively unreasonable application of clearly established Supreme
Court precedent under Strickland v. Washington, 466 U.S. 668
(1984).

Thus, he recommends that Ground One be dismissed on the

merits (Id.).

Regarding Grounds Two and Three, the Magistrate

Judge first observed that there is no federal constitutional right
to withdraw a guilty plea once it has been properly given (Id.).
To the extent Petitioner’s petition could be read to assert that
his plea was not made knowingly, intelligently and voluntarily, the
Magistrate Judge found the record cannot support such an assertion
(Id.).

Therefore, he recommends that Grounds Two and Three be

dismissed

on

the

merits

because

the

state

appellate

court’s

decision regarding the withdrawal of the guilty plea was not an
objectively unreasonable application of Supreme Court precedent
under the Fourteenth Amendment (Id.).
The Magistrate Judge recommends that Grounds Four, Five,
Six

and

Seven

be

dismissed

with

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prejudice

because

they

are

procedurally barred (Id.). The Magistrate Judge further recommends
that if the Court were to reach the merits of Ground Four it should
similarly

be

dismissed

with

prejudice

because

there

is

no

prosecutorial duty to produce a search warrant affidavit so failure
to do so is not misconduct.

In addition, the Magistrate Judge

recommends that if the Court were to reach the merits of Ground Six
it should similarly be dismissed because Petitioner has not shown
what issues could have or should have been raised in a supplemental
motion supporting his motion to withdraw his guilty plea that would
have had any merit beyond the issues raised by Petitioner himself
(Id.).

Further, the Magistrate Judge determined that there is no

merit to Ground Seven because the “mere fact of a casual sexual
encounter between a law firm employee and a client does not create
a conflict of interest between the lawyer and the client”
Consequently,

the

Magistrate

Judge

(Id.).

recommends

that

Petitioner’s motion for summary judgment be denied; that his
petition

be

dismissed

with

prejudice;

that

a

certificate

of

appealability not issue; and that the Court certify that any appeal
would not be taken in good faith
II.

(Id.).

Petitioner’s Objections & the Court’s Analysis
A.

Ground One

Petitioner objects to the Magistrate Judge’s report as to
Ground One, saying that he was prejudiced by his attorney’s failure
to share the bill of particulars and BCI report, his attorney’s
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alleged failure to explain to him the nature and elements of the
charges to which he pleaded guilty, and his attorney’s alleged
failure to investigate and file a motion to suppress evidence (doc.
38).

Specifically, he seems to imply that, had he been given the

bill of particulars and the BCI report, he would not have pleaded
to one of the counts and would only have been subjected to a five
year sentence instead of the eight years to which he was sentenced
(Id.).
As an initial matter, Petitioner’s objections largely
consist of a rehashing of the arguments set forth in his petition,
which were thoroughly and properly addressed and rejected by the
Magistrate Judge.

Nonetheless, the Court has conducted a de novo

review of the evidence and the law and has concluded that there is
no merit to Petitioner’s objections.

Petitioner’s assertions and

implications are simply insufficient to overcome the deference this
Court owes to the state court decision on this issue, and he has
presented nothing in either the petition or his objections that
demonstrates that the state court’s decision was contrary to or an
unreasonable application of clearly established Supreme Court
precedent.
(2011).

See, e.g., Harrington v. Richter, 131 S.Ct. 770, 792

In addition, the Court notes that Petitioner fails to

acknowledge that he was charged in a nine-count indictment and that
he received a significant benefit by pleading to only two counts.
He has presented nothing to show a reasonable probability that the

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ultimate resolution of the charges against him would have been
different, something the Supreme Court requires him to do.
Strickland, 466 U.S. at 694.

See

Therefore, his habeas petition fails

as to Ground One.
B.

Grounds Two and Three

With respect to Ground Two, Petitioner contends that the
Respondent Warden “admitted” the merits of his constitutional claim
and that the Magistrate Judge failed to address those merits (Id.).
As

an

initial

matter,

Petitioner

appears

to

misread

the

Respondent’s return of writ as an admission when, in fact, it is
not.

Petitioner

erroneously

quotes

from

page

34

of

the

Respondent’s filing as “Claim 2 Due Process to wit Fundamental
Fairness was violated where the trial court found Nickelson’s
Motion to withdraw guilty plea was untimely.”

In fact, the filing

read, “Ground Two claims due process (to-wit, fundamental fairness)
was violated where the trial court found Nickelson’s motion to
withdraw guilty plea was untimely” (doc. 19).

The difference

between the two sentences is important, and Petitioner’s confusion
likely arises from the use of the word “claim,” which can mean both
“assert” and a “ground” or “cause of action.”

Petitioner appears

to have read the Respondent’s filing with the latter meaning of
“claim.”

However,

in

context,

and

accurately

quoted,

the

Respondent was clearly using the word “claim” to mean “assert,” so
that

the

sentence

is

merely

a

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reiteration

of

Petitioner’s

assertions in Ground Two of his petition and not an admission at
all.
Petitioner appears to assert that the trial court’s
decision to deny his application to withdraw his guilty plea on the
basis that it was untimely was somehow a violation of his due
process or equal protection rights but presents nothing to support
that assertion apart from a citation to Hicks v. Oklahoma, 447 U.S.
343 (1980).

No conceivable reading of that case could lead the

Court to find a constitutional violation when a state trial court,
applying state laws, exercises its discretion to find that a motion
to withdraw a guilty plea rests on matters that should have been
addressed prior to the entry of the plea, that it was therefore
untimely, and to reach that conclusion without conducting the type
of hearing Petitioner wanted.1

As the Magistrate Judge noted,

there is no federal constitutional right to the withdrawal of a
guilty plea and certainly no federal constitutional right to
whatever type of hearing desired by individual defendants at any
point in time.
Petitioner asserts in his objections that his guilty plea
1

Hicks v. Oklahoma did not even involve a guilty plea but,
instead, was brought by a prisoner who had been convicted through
a trial by jury. 447 U.S. at 344. While Hicks did generally
deal with due process concerns, the specific issue presented was
whether due process was violated where a prisoner was sentenced
under a mandatory punishment statute when, under state law, he
was entitled to a discretionary sentencing approach. Id. at 345.
This question is not remotely present here, and the case
therefore does not guide the Court’s decision-making.
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was not made knowingly, intelligently and voluntarily and that he
was entitled to an evidentiary hearing before the trial judge
denied his motion to withdraw the plea.

Petitioner offers nothing

of

was

substance

petition,

and

in

his

objections

objections

to

that

magistrate

not

present

judges’

in

his

reports

and

recommendations are not meant to be simply a vehicle to rehash
arguments set forth in the petition.

Regardless, there is nothing

in either the petition or the objections to support Petitioner’s
position.
There appear to be two recurring sticking points for
Petitioner, which he injects throughout his petition and his
objections and which he believes make his habeas petition have
merit.

Specifically, he repeatedly asserts that there was not

evidence of him possessing at least 5 grams of crack cocaine, as
required by the count to which he pleaded.

Second, he appears to

believe that the mere fact that a co-defendant also pleaded guilty
to trafficking on the same evidence used against him somehow
nullifies his own plea.

As to the co-defendant issue, Petitioner

clearly misunderstands the concept of “possession” in the criminal
context. In Ohio, possession may be actual or constructive, and it
may be individual or joint.

See State v. Haynes, 267 N.E.2d 787

(Ohio 1971), 25 Ohio St.2d 264; State v. Wolery, 348 N.E.2d 351
(Ohio 1976), 46 Ohio St.2d 316.

Of course, Petitioner had no

constitutional right to know that Lord-Dazvon McIntosh pleaded

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guilty to drug trafficking charges based on the same evidence used
against Petitioner.

But even if such a right existed, McIntosh’s

plea in no way nullifies Petitioner’s own plea and provides
absolutely no support to Petitioner’s ineffective assistance of
counsel claim or any other claim set forth in the petition.

Nor

does McIntosh’s plea serve in any way as proof of Petitioner’s
innocence, as he claims in his objections.
As to Petitioner’s assertion that it was “impossible” for
him to have committed the crime to which he pleaded guilty because
the amount of cocaine attributable to that count was insufficient,
Petitioner

is

Petitioner

was

simply

wrong.

informed

of

The
the

record

charges

clearly
against

shows
him

in

that
the

indictment, that both his attorney and the trial court explained
the elements of the crime to which he pleaded guilty, and that
enough cocaine was seized and attributed to Petitioner to support
his plea.
Petitioner has set forth nothing in either his petition
or his objections with respect to Grounds Two or Three that could
be read to support his contention that his plea was not knowing,
voluntary and intelligent, which is the only question regarding
guilty pleas that this Court may properly entertain via a habeas
petition.

Consequently, the Court finds Grounds Two and Three

meritless.
C.

Grounds Four, Five, Six & Seven

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In

his

objections,

Petitioner

does

not

address

the

procedural default of Grounds Four, Five, Six & Seven and, instead,
reiterates the arguments on the merits set forth in his petition.
He has therefore not demonstrated “cause of the default,” nor has
he shown “actual prejudice as a result of the alleged violation of
federal law,” and his failure to do so bars the Court from
considering these grounds on habeas review.

See

Coleman v.

Thompson, 501 U.S. 722, 750 (1991).
III. Conclusion
Having conducted a de novo review of this matter pursuant
to 28 U.S.C. § 636, the Court agrees with the findings, rationale
and recommendations of the Magistrate Judge. Indeed, the Report is
thorough, well-reasoned and correct. Accordingly, the Court ADOPTS
and AFFIRMS the Magistrate Judge’s Report and Recommendation in its
entirety (doc. 37) and denies Petitioner’s objections (doc. 38).
Therefore, Petitioner’s Motion for Summary Judgment is DENIED (doc.
33) and his habeas corpus petition is DENIED WITH PREJUDICE.
Further, the Court FINDS that a certificate of appealability should
not issue with respect to the claims alleged in the petition
because “jurists of reason” would not find it debatable whether
this Court is correct in its procedural rulings and because
Petitioner has failed to make a substantial showing of the denial
of a constitutional right.

Slack v. Daniel, 529 U.S. 473 (2000).

In addition, the Court CERTIFIES pursuant to 28 U.S.C. §

-11-

1915(a)(3) that with respect to any application by Petitioner to
proceed on appeal in forma pauperis, an appeal of this Order would
not

be

taken

in

good

faith,

and

therefore

the

Petitioner leave to appeal in forma pauperis.

Court

DENIES

Fed. R. App. P.

24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
Finally, the Court’s ruling herein renders the remainder
of Petitioner’s outstanding motions moot, and they are each DENIED
as such (docs. 53, 59, 61, 62, 63, 65, 70, 72, 76 and 77).
Pursuant to the Court’s authority under 28 U.S.C. § 1651(a), the
Court hereby DIRECTS the Clerk of Court to refuse for filing any
further documents by Petitioner except for a notice of appeal from
this Order and to return to Petitioner, without filing, any such
documents presented.

Unless directed to the contrary by the Court

of Appeals, this Court will entertain no further filings by
Petitioner in this matter as this case is CLOSED.

SO ORDERED.
Dated: February 29, 2012

s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

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