Walker v. Warden, Lebanon Correctional Insititution

Filing 39

ORDER adopting in part Report and Recommendations re 14 Report and 19 Report and Recommendation; the matter is returned to the magistrate judge for further consideration. Signed by Judge Michael R. Barrett on 3/11/15. (ba1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Gary D. Walker,
Petitioner,
v.

Case No. 1:13cv159

Warden, Lebanon
Correctional Institution,

Judge Michael R. Barrett

Respondent.
ORDER
This matter is before the Court upon the April 7, 2014 Magistrate Judge=s Report
and Recommendation (AR&R@) recommending that Petitioner=s case be dismissed with
prejudice. (Doc. 14). Notice was given to the parties under 28 U.S.C. '636(b)(1)(C).
On April 11, 2014, Petitioner filed objections to the R&R. (Doc. 15). 1 After the matter
was recommitted to the Magistrate Judge, the Magistrate Judge entered a Supplemental
R&R on April 30, 2014 which again recommended that Petitioner’s case be dismissed
with prejudice. (Doc. 19). Petitioner filed objections to the Supplemental R&R. (Docs.
20, 21, 22).
I.

BACKGROUND
Petitioner has filed a pro se petition for a writ of habeas corpus pursuant to 28

U.S.C. ' 2254. Petitioner brings four grounds for relief, all of which are based upon the
denial of appellate counsel. As the Magistrate Judge explained in more detail, Petitioner
filed his first direct appeal pro se on July 1, 2009. The appeal was assigned Case No.
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Petitioner filed the same objections twice. (See Doc. 17).

09-CA-88. A few months after it was filed, Petitioner filed a pro se motion to dismiss his
appeal. Petitioner then filed several motions with the trial court, including a motion to
withdraw his guilty plea. The motion to withdraw his guilty plea was denied on March 24,
2010. However, Petitioner filed several motions regarding his sentence, and the trial
court resentenced Petitioner on December 30, 2009 and entered an Amended
Sentencing Entry on September 7, 2010.

Petitioner filed a pro se appeal of the

Amended Sentencing Entry, and the appeal was assigned Case No. 10-CA-116.
On appeal, the Ohio Court of Appeals found that the March 24, 2010 denial of
Petitioner’s motion to withdraw his guilty plea was a final appealable order from which
Petitioner did not appeal.

The court found that the September 7, 2010 Amended

Sentencing Entry was in the nature of a nunc pro tunc entry and did not extend the time in
which to appeal his convictions and sentences.
II.

ANALYSIS
A. Standard of Review
When objections to a magistrate judge’s report and recommendation are received

on a dispositive matter, the assigned district judge “must determine de novo any part of
the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). After review, the district judge “may accept, reject, or modify the recommended
decision; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
B. Grounds One and Two
The Magistrate Judge recommends that Grounds One and Two be dismissed as
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procedurally defaulted. The Magistrate Judge explained that while it is clear that there is
a right to have counsel appointed for indigent criminal defendants at the trial level, there is
no support for Petitioner’s argument that a state appeals court must appoint counsel on
direct appeal when there has been no request for counsel. The Magistrate Judge noted
that Ohio Rule of Criminal Procedure 32(B) provides that “[u]pon defendant’s request, the
court shall forthwith appoint counsel for appeal.” The Magistrate Judge explained that
Petitioner did not comply with this rule and request counsel while his direct appeal was
pending in Case No. 09-CA-88.

The Magistrate Judge found that the rule is an

“adequate and independent” state ground. In addition, the Magistrate Judge found that
Petitioner did not establish that there was cause for his failure to comply with the rule, and
Petitioner did not present any new probative evidence of actual innocence.
The Magistrate Judge also found that Grounds One and Two were procedurally
defaulted because Petitioner failed to appeal the dismissal of his first appeal to the Ohio
Supreme Court. The Magistrate Judge noted that Petitioner claimed that his failure to
appeal was due to his lack of knowledge of his right to appeal. However, the Magistrate
Judge noted that cause must be something external to the petitioner. Moreover, the
Magistrate Judge noted that Petitioner waited thirty-eight months to request a delayed
appeal, and in the interim, Petitioner had filed other appeals with the Ohio Supreme
Court.
Petitioner argues that his failure to file an appeal with the Ohio Supreme Court is
excused by the appellate court’s failure to appoint counsel. However, as the Magistrate
Judge explained, the right to appointed counsel only extends to the first appeal of right.
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While states must appoint counsel to represent indigent defendants, a state need not
appoint counsel to aid a poor person in discretionary appeals to the state's highest court,
or in petitioning for review in the United States Supreme Court. Halbert v. Michigan, 545
U.S. 605, 610 (2005).
Petitioner also objects on the basis that he was never advised of his right to appeal
by the trial court. The transcript from Petitioner’s June 2, 2009 change of plea and
sentencing hearing reveals that the trial court did not inform Petitioner of his right to
appeal at that time. (Doc. 7-2). However, Ohio courts have held that where an appeal
is precluded by law, the sentencing court is not required to advise the defendant of the
right to appeal the defendant's sentence. See State v. Houston, 2004 WL 2785286, *1
(Ohio Ct. App. 2004) (“Where a defendant has been convicted following a guilty or no
contest plea, the court is not constitutionally required to advise the defendant of his
appeal rights.”); State v. White, 2003 WL 22451372, at *1 (Ohio Ct. App. Oct. 6, 2003);
Bd. v. Bradshaw, No. 1:12 CV 00637, 2014 WL 700026, at *7 (N.D. Ohio Feb. 21, 2014)
(explaining that Ohio courts have held that “there is no requirement to advise a defendant
of a right to appeal from a plea agreement containing a recommended sentence.”); see
also Ohio Crim. R. 32(B)(2) (requiring the sentencing court to advise a defendant of the
right to appeal or to seek leave to appeal “where applicable”). 2 Moreover, as this Court

2

One court has outlined when a defendant has a right to appeal:

the right to appeal is granted to all defendants in Ohio. Ohio Rev.Code § 2953.02.
Even a defendant who has pled guilty has limited rights to appeal. It is true that a
defendant who pled guilty may not appeal the factual basis of his conviction,
except on the basis that his guilty plea was not entered knowingly, intelligently, and
voluntarily. United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927
(1989); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747

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has explained, “a defendant cannot base a claim on the court's failure to inform him of his
appellate rights if he has personal knowledge of these rights. Wolfe v. Randle, 267 F.
Supp. 2d 743, 748 (S.D. Ohio 2003) (citing Peguero v. United States, 526 U.S. 24, 29–30
(1999)); see also Kelley v. Brunsman, 625 F. Supp. 2d 586, 599-600 (S.D. Ohio 2009) (“a
court's ‘failure to advise the defendant of his right to appeal does not entitle him to habeas
relief if he knew of his right and hence suffered no prejudice from the omission.’”) (quoting
Peguero, 526 U.S. at 24).
Here, Petitioner signed a form entitled “Admission of Guilt/Judgment Entry.”
(Doc. 7-1, PAGEID # 169).

In that document, Petitioner acknowledged that “I

understand my right to appeal a maximum sentence, my other limited appellate rights and
that any appeal by me must be filed within 30 days of my sentence.”

This same

language appeared in a summary of rights form signed by a habeas petitioner in Crouse
v. Bradshaw, No. 1:12 CV 970, 2013 WL 5774702, at *2 (N.D. Ohio Oct. 23, 2013). The
(1970); Baker v. United States, 781 F.2d 85 (6th Cir.1986). It is also true that a
defendant who pled guilty may not appeal a sentence that was jointly
recommended by the prosecution and the defense, or a sentence imposed for a
conviction of murder (as the judge has no discretion on the sentence to impose for
a murder conviction). Ohio Rev.Code § 2953.08(D). However, that defendant
still retains some appellate rights. State v. Wilson, 58 Ohio St.2d 52, 388 N.E.2d
745, 748 (1979) (citing and adopting Menna v. New York, 423 U.S. 61, 62, footnote
2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975)). A defendant who pled guilty may appeal
his conviction on grounds that the statute on which his conviction is based is
unconstitutional. Id. A defendant who pled guilty may appeal a sentence that is
contrary to law. Ohio Rev.Code § 2953.08. At least one Ohio appellate court has
held that all Ohio defendants who plead guilty have a right to a delayed appeal
where notice of a right to appeal was not given by the trial court. State v.
Robinson, 101 Ohio App.3d 238, 655 N.E.2d 276 (1995). Even though a right to
appeal might be limited, the Fourteenth Amendment requires procedural
safeguards to protect that limited right. Wolfe, 267 F.Supp.2d at 746 (“After
deciding that a right to appeal is essential, the state cannot then deny [a]
defendant due process.”).
McIntosh v. Hudson, 632 F. Supp. 2d 725, 737-38 (N.D. Ohio 2009).

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petitioner in Crouse signed the form during his change of plea and indicated to the trial
court that he understood the form. Id. However, the trial court did not orally advise the
petitioner of his right to appeal. Id. On habeas review, the court found that trial court’s
error in failing to orally advise the petitioner of his right to appeal constituted harmless
error in light of the form signed by the petitioner, his statement that he understood the
form and his timely filed notice of appeal. Id. at *15.
Petitioner signed the “Admission of Guilt/Judgment Entry” in court during his
change of plea and sentencing hearing on June 2, 2009. (Doc. 7-1, PAGEID # 656-57).
After reviewing the form with his attorney, Petitioner stated that he did not have any
questions. (Id.) Moreover, as the Magistrate Judge explained, Petitioner did file a
timely appeal in Case No. 09-CA-88.
Next, Petitioner objects on the basis that in Swenson v. Bosler, 386 U.S. 258
(1967), the Supreme Court held that the right to appointed counsel on appeal exists even
in the absence of a request. As the Magistrate Judge explained, Swenson does not
stand for the general proposition that appellate counsel must automatically be appointed
in every case. 3 The Magistrate Judge noted that more recent decisions of the Supreme
3

Instead, the question in Swenson was whether there was a knowing and intelligent waiver
of the right to counsel on appeal. As the Eighth Circuit has recently explained:
As the Supreme Court has made clear, “where the assistance of counsel is a
constitutional requisite, the right to be furnished counsel does not depend on a
request.” Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70
(1962). Likewise, waiver of the right to appellate counsel cannot be inferred
simply from the defendant's failure to request appellate counsel. Swenson v.
Bosler, 386 U.S. 258, 260, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967) (per curiam):
When a defendant whose indigency and desire to appeal are manifest does
not have the services of his trial counsel on appeal, it simply cannot be
inferred from defendant's failure specifically to request appointment of

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Court would be inconsistent with Swenson. See Roe v. Flores-Ortega, 528 U.S. 470
(2000) (rejecting per se rule requiring attorney to file notice of appeal regardless of
whether client asks).
However, Petitioner points out that Ohio Rule of Criminal Procedure 44(C) requires
the waiver of counsel to be in writing, and there is no evidence in the record showing he
signed a plea agreement explicitly waiving his right to appellate counsel.
Ohio Rule of Criminal Procedure 44(C) provides:
Waiver of counsel shall be in open court and the advice and waiver shall be
recorded as provided in Rule 22. In addition, in serious offense cases the
waiver shall be in writing.
Ohio Crim. R. 44(C). A serious offense “means any felony, and any misdemeanor for
which the penalty prescribed by law includes confinement for more than six months.”
Ohio Crim.R. 2(C). In this instance, Petitioner plead guilty to multiple felony counts
arising from a scheme to generate fraudulent payroll checks at Wal-Mart. However,
there is no evidence in the record before this Court that Petitioner was informed of his
right to appellate counsel.
As the Eighth Circuit has explained in United States ex. rel. Smith v. McMann: “The
right to appeal at the expense of the state is mere illusion if the convicted indigent
defendant does not know such a right exists. And the one way to make sure that he does
know is to tell him so.” 417 F.2d 648, 654 (2nd Cir. 1969). While McMann is not binding
appellate counsel that he has knowingly and intelligently waived his right to
the appointment of appellate counsel.
Id.
Koenig v. N. Dakota, 755 F.3d 636, 641-42 (8th Cir. 2014).

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on this Court, another district court has noted that:
The Sixth Circuit has cited to McMann with approval in a number of cases.
See United States v. Aloi, 9 F.3d 438, 444 (6th Cir. 1993) (“Presumably,
these [appellate] rights are worthless to a defendant who does not know
they are available to him. The advice is necessary to guarantee that
poverty does not make it more difficult for an indigent convicted defendant
to engage the appellate process than for a convicted defendant with
money”); See also Henderson v. Cardwell, 27 Ohio Misc. 4, 426 F.2d 150,
154 (6th Cir. 1970). A defendant's right to an appeal, as well as his right to
appellate counsel, can only be waived knowingly and intelligently.
Swenson v. Bosler, 386 U.S. 258, 260, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967);
United States ex. rel. Smith v. McMann, 417 F.2d at 654-55. A criminal
defendant's right to appeal and to the appointment of appellate counsel “are
personal rights of Constitutional dimension.” Therefore, such rights cannot
be waived upon a silent record. See Boyd v. Cowan, 519 F.2d 182, 184
(6th Cir. 1975).
Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 829 (E.D. Mich. 2004); see also U. S. ex rel.
Singleton v. Woods, 440 F.2d 835, 836 (7th Cir. 1971) (“we hold that the trial judge should
have advised petitioner of his right to appeal and, as a constitutional corollary, his right to
court-appointed counsel on appeal if he is indigent. Failure to give such advice violated
petitioner's right to equal protection under the fourteenth amendment and his sixth
amendment right to counsel, incorporated through the due process clause of the
fourteenth amendment.”). As this Court has explained:
In order to be properly informed, a defendant must be told of his right to
appeal, the procedures and time limits involved in proceeding with that
appeal, and the right to have the assistance of appointed counsel for that
appeal. White, 180 F.3d at 652 (5th Cir. 1999), Norris v. Wainwright, 588
F.2d 130, 135 (5th Cir.), cert. denied, 444 U.S. 846, 100 S.Ct. 93, 62
L.Ed.2d 60 (1979). The petitioner bears the burden of showing by a
preponderance of the evidence that he was not advised of his rights.
Faught v. Cowan, 507 F.2d 273, 275 (6th Cir.1974), cert. denied, 421 U.S.
919, 95 S.Ct. 1583, 43 L.Ed.2d 786 (1975).
Wolfe v. Randle, 267 F. Supp. 2d 743, 748 (S.D. Ohio 2003); State v. Hunter, 2010 WL
8

660364, *3 (Ohio Ct. App. Feb. 25, 2010) (finding that failure to inform the defendant of
his appellate rights under Crim.R. 32, including the right to counsel, required the trial court
to resentence the defendant advising him of these rights, thus reinstating the time within
which he may file a timely notice of appeal on the resentencing).
While it does not appear from the record that Defendant was advised of his right to
appellate counsel when he was originally sentenced on June 2, 2009.

However,

Petitioner was resentenced on December 30, 2009 by video conference connection.
(See Doc. 7-1, PAGEID # 240). It does not appear that the transcript from that hearing is
in the record before this Court.
The Court therefore returns this matter to the Magistrate Judge pursuant to
Federal Rule of Civil Procedure 72(b)(3) for purposes of completing the record and further
analysis by the Magistrate Judge.
C. Ground Three
The Magistrate Judge recommends that Ground Three be dismissed with
prejudice. The Magistrate Judge explained that there is no appeal of right from the
decision of an Ohio intermediate court of appeals to the Ohio Supreme Court, and there is
no obligation that a court of appeals must inform a defendant of the procedural right to ask
the Ohio Supreme Court to take jurisdiction.
The Court finds no error in the recommendations of the Magistrate Judge, and
therefore Petitioner’s objections are OVERRULED.
D. Ground Four
The Magistrate Judge recommends that Ground Four be dismissed with prejudice
9

because it is without merit. The Magistrate Judge explains that Petitioner did request
appointment of counsel on his appeal in Case No. 2010-CA-116.

However, the

Magistrate Judge also explained that the Fifth District Court of Appeals decided that Case
No. 2010-CA-116 was not his first appeal of right, and the constitutional right to counsel
only extends to the first appeal of right.
The Court finds no error in the recommendations of the Magistrate Judge, and
therefore Petitioner’s objections are OVERRULED.
III.

CONCLUSION
Based on the foregoing, the Court hereby ADOPTS in PART the April 7, 2014

Magistrate Judge=s R&R (Doc. 14) and April 30, 2014 Supplemental R&R (Doc. 19)
recommending that Grounds Three and Four be dismissed with prejudice; and
RETURNS this matter to the Magistrate Judge for further analysis of Grounds One and
Two consistent with this Order.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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