Rose v. Warden, Chillicothe Correctional Institution
Filing
47
ORDER AND REPORT AND RECOMMENDATIONS granting 33 Petitioner's Motion to Amend Habeas Corpus Petition. IT IS RECOMMENDED THAT: (1) The petition, as amended, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 1 27 33 be DENIED with prejudice; (2) In light of the Court's recommendation to deny with prejudice petitioner's amended habeas petition, petitioner's motion for preliminary injunction 46 be DENIED; (3) A certificate of appealability should not issue with respect to the claim alleged in the petition, which this Court has concluded is waived and thus procedurally barred from review; (4) With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore DENY petitioner leave to appeal in forma pauperis upon a showing of financial necessity. Objections to R&R due by 4/5/2018. Signed by Magistrate Judge Stephanie K. Bowman on 3/22/2018. (km)(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
JERRY R. ROSE,
Petitioner,
Case No. 1:15-cv-353
Black, J.
Bowman, M.J.
vs.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.
ORDER AND REPORT
AND RECOMMENDATION
Petitioner, a state prisoner, has filed a pro se petition (Doc. 1) and amended petition (Doc.
27) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on
the petition, as amended (Docs. 1, 27), petitioner’s motion to amend the petition a second time
“to include an additional argument in support of the ineffective-assistance-of-counsel claim in
Ground Four” (Doc. 33, at PageID 281), respondent’s opposition to the motion to amend (Doc.
34), petitioner’s reply (Doc. 36), respondent’s return of writ (Doc. 44), petitioner’s traverse to
the return of writ (Doc. 45), and petitioner’s motion for preliminary injunction (Doc. 46).
I.
BACKGROUND
The facts and procedural history of this case, having been fully set forth in prior decisions
of this Court (see Doc. 15, at PageID 182-84); see also Rose v. Warden, Case No. 1:14-cv-308
(S.D. Ohio) (Dlott, J.; Litkovitz, M.J.) (Doc. 10), are summarized below.
In July 2007, after petitioner waived his right to prosecution by indictment, the Butler
County, Ohio, Prosecuting Attorney filed a bill of information with the Butler County Court of
Common Pleas charging petitioner with one count of sale of unregistered security in violation of
Ohio Rev. Code § 1707.44(C)(1) (Count 1); one count of perjury in violation of Ohio Rev. Code
§ 2921.11 (Count 2); and one count of forgery in violation of Ohio Rev. Code § 2913.31(A)(3)
(Count 3). (Doc. 43, Exs. 1-2, at PageID 315-16, 318-19). Petitioner was convicted following
entry of a guilty plea (id., Ex. 3, at PageID 320-22) and was sentenced to an aggregate prison
term of twenty (20) years (id., Ex. 4, at PageID 323-24). See State v. Rose, Case No. CA201003-059, 2010 WL 4721244, at *1 (Ohio Ct. App. Nov. 22, 2010). Petitioner was also ordered to
pay restitution, totaling $17,759,141.11, to victims injured by his illegal activities. (Doc. 43, Ex.
4, at PageID 323-32).
Petitioner’s trial counsel filed a timely notice of appeal to the Ohio Court of Appeals,
Twelfth Appellate District, on petitioner’s behalf. (Id., Ex. 5, at PageID 333-34). Different
counsel was appointed to represent petitioner on direct appeal. See Rose, Case No. 1:14-cv-308
(Doc. 10, at PageID 1024). However, in November 2008, petitioner moved to have his attorney
removed. (See id.). In February 2009, petitioner filed a pro se appellate brief, raising only two
assignments of error challenging the imposition of maximum consecutive sentences. (See id.)
On October 19, 2009, the Ohio Court of Appeals found no merit to petitioner’s arguments and
affirmed the trial court’s judgment. (See id.).
Petitioner did not pursue a timely appeal to the Ohio Supreme Court. However, over five
months later, on March 30, 2010, the attorney who had been removed as petitioner’s counsel on
direct appeal, filed a notice of appeal and motion for delayed appeal on petitioner’s behalf with
the Ohio Supreme Court, which was granted. (See id.). In the memorandum in support of
jurisdiction that was subsequently filed, petitioner asserted the following claim as the sole
proposition of law: “In order for a court to impose a non-minimum or consecutive sentence, it
2
must first find that imposition of a minimum sentence demeans the seriousness of the offense or
otherwise violates the law.” (See id.) (quoting the record). Thereafter, on August 25, 2010, the
Ohio Supreme Court denied petitioner leave to appeal and dismissed the appeal “as not involving
any substantial constitutional question.” (See id., at PageID 1024-25) (quoting the record).
Petitioner’s attempts at post-conviction relief were unsuccessful. (See id., at PageID 1025-30)
(detailing petitioner’s post-conviction proceedings).
On April 14, 2014, petitioner filed his initial federal habeas corpus petition pursuant to 28
U.S.C. § 2254 raising three grounds challenging his underlying sentence and the denial of his
request for resentencing. (See id.) (Doc. 1). The petition was dismissed on statute-of-limitations
grounds on May 22, 2015. (See id.) (Docs. 10, 23, 24).
In the meantime, petitioner filed, on May 28, 2014, a pro se “Motion for Resentencing of
Void Judgment” with the state trial court. See Rose, Case No. 1:15-cv-353 (Doc. 43, Ex. 57, at
PageID 962-64). On September 26, 2014, the trial court granted petitioner’s motion in part,
finding that a “limited resentencing hearing” was appropriate solely for the purpose of (1)
advising “the Defendant of the possibility that community service could be imposed upon the
Defendant should he fail to pay court costs”; (2) advising “the Defendant that he could be placed
on post-release control for his convictions in Counts Two and Three of this case”; and (3)
“unequivocally” advising “the Defendant that there is a mandatory, rather than potential, five
year period of post-release control for the Defendant’s conviction in Count One.” (See id., Ex.
60, at PageID 982). The resentencing hearing was held on December 29, 2014, and on February
18, 2015, the trial court issued an Amended Judgment of Conviction Entry advising petitioner of
the matters set forth in the September 26, 2014 order and imposing the same aggregate twenty3
year prison term. (Id., at PageID 982-85). Petitioner subsequently filed a motion for leave to
appeal the trial court’s February 18, 2015 entry. The trial court denied that motion on March 26,
2015, on the ground that petitioner, who had “previously been declared a vexatious litigator,”
failed to provide a sufficient reason to grant leave to appeal “since this matter was previously
sustained on appeal, and Defendant was only brought back before the court to address the issues
of post release control and community service in lieu of court costs.” (Id., Ex. 61, at PageID
986). Petitioner apparently attempted to appeal the trial court’s decision to the Supreme Court of
Ohio, but his “documents were not filed” because “a court of appeals’ decision [was] not
attached to the memorandum in support of jurisdiction as is required by Rule 7.02(D)” of the
Rules of Practice of the Supreme Court of Ohio. (See Doc. 10, Ex. L-2, at PageID 143; see also
Doc. 1, at PageID 2).
In the instant petition, filed in May 2015, petitioner brought four new grounds
challenging his underlying conviction and sentence:
GROUND ONE: DUE PROCESS AND EQUAL PROTECTION
Supporting facts: Prior to the re-sentencing on 10/20/2014, Petitioner filed a presentence motion to withdraw his plea for the litany of contrarian statutes and
fraud as presented. The lower court continued the 10/20/14, re-sentencing
hearing, and on 12/29/14, and denied Petitioner his right to address the court and
did not docket the motion as served and filed on 10/17/14.
GROUND TWO: DUE PROCESS AND EQUAL PROTECTION AND
DOUBLE JEOPARDY
Supporting facts: The lower court failed to comply with the legislative mandates
and strict compliance with Criminal Rule 11 at the plea hearing.
GROUND THREE: DUE PROCESS AND EQUAL PROTECTION
Supporting facts: The lower court amended a void judgment that was allegedly a
4
valid final judgment. The court continued in their prejudice and did not allow an
appeal of right contrary to the language of the amended judgment entry “advising
Petitioner of his right to appeal.” Moreover, the lower court found Petitioner
indigent without any mandated hearing for restitution and/or fines.
GROUND FOUR: INEFFECTIVE ASSISTANCE OF COUNSEL
Supporting facts: At all critical stages, Petitioner was denied effective assistance
of counsel. Petitioner per counsel, pled to charges that have no factual basis
under Ohio law. Counsel likewise at the plea hearing ignored the absence of
statutory authority to impose the charges including the unambiguous fraud by the
general partners. Appellate counsel failed to recognize the obvious infringements
and statutory language, including the failure to timely file the post conviction
relief.
(Doc. 1).
In response, respondent filed a motion to transfer the petition to the United States Court
of Appeals for the Sixth Circuit as a “second or successive” petition in accordance with 28
U.S.C. § 2244(b)(3). (Doc. 4). On February 10, 2016, the undersigned issued a Report and
Recommendation to grant respondent’s motion. (Doc. 15). The court’s recommendation was
based on the determination that the trial court’s February 18, 2015 Amended Judgment of
Conviction Entry did not constitute an intervening “new judgment” that would render the instant
petition non-successive under the Supreme Court’s decision in Magwood v. Patterson, 561 U.S.
320, 331-39 (2010), and the Sixth Circuit’s decision in King v. Morgan, 807 F.3d 154, 159 (6th
Cir. 2015). (Doc. 15, at PageID 187-91). On March 22, 2016, the district court issued an Order
adopting the Report and Recommendation to the extent that the claims challenging petitioner’s
underlying conviction, which were alleged in Grounds Two and Four of the petition, were
deemed to be “successive” and subject to transfer to the Sixth Circuit. (Doc. 19, at PageID 208).
However, the district court overruled the Report and Recommendation and denied
5
respondent’s motion to transfer with respect to the claims alleged in Grounds One and Three
because they “relate[d] to the resentencing hearing.” (Doc. 19, at PageID 208-09). On August
22, 2016, the Sixth Circuit issued an Order denying petitioner’s “application to file a second or
successive § 2254 habeas corpus petition” after petitioner filed a corrected application seeking to
raise a claim that “[t]he charges as set forth are in non-compliance with the legislature as
Petitioner did not violate the charges contrary to counsel’s advice at the plea.” (Doc. 26).
Although it thus appeared that petitioner was unable to proceed at that juncture on his
claim challenging the effectiveness of his trial counsel, the undersigned was troubled about the
propriety of the decision to transfer two of petitioner’s grounds for relief to the Sixth Circuit as
“successive” in light of Sixth Circuit case-law that developed following the issuance of the
February 10, 2016 Report and Recommendation to grant respondent’s motion to transfer and the
March 22, 2016 Order and Judgment adopting in part the Report and Recommendation.
On July 1, 2016, the Sixth Circuit issued In re Stansell, 828 F.3d 412 (6th Cir. 2016), which
made it clear that the resentencing entry in this case created a “new judgment” and that,
therefore, petitioner’s second-in-time petition was not subject to the requirements for successive
petitions that are set forth in 28 U.S.C. § 2244(b). In a subsequent June 12, 2017 Report and
Recommendation (Doc. 31), which the district court adopted on September 20, 2017 (Docs. 40,
41), the undersigned therefore recommended that petitioner be permitted to proceed in this case
on all four grounds for relief alleged in the instant federal habeas corpus petition (Doc. 1) and
that petitioner’s then pending first motion to amend his petition (Doc. 27) be granted. 1
1
Petitioner sought leave to add an additional argument for relief based on “the recent
ruling of the United States Supreme Court” in Luis v. United States, 136 S.Ct. 1083 (2016),
6
In a second motion to amend, filed on June 22, 2017 (Doc. 33), petitioner now seeks
leave to amend Ground Four a second time to allege that counsel performed ineffectively by:
1) Advising Petitioner to release all “original” documents without copying to the
State in the absence of any indictment;
2) Advising Petitioner to waive an indictment despite the State’s failure to obtain
one;
3) Advising Petitioner to “knowingly, voluntarily, and intelligently” plea to
charges that are not felonies in the State of Ohio, including “intelligently”
pleading to erroneous language concerning post-release control;
4) Failing to subpoena any general partner or the brokerage firm, Raymond James
Financial Services;
5) Advising Petitioner to forfeit his “untainted” assets, including his legal
business enterprises;
6) Refusing to investigate the general partners and counsel’s former secretary for
fraud;
7) Continued submissions of “untimely” post-conviction motions that were ruled
meritless.
(Doc. 33, at PageID 281-82).
Respondent has filed an opposition to petitioner’s second motion to amend. (Doc. 34).
Nevertheless, respondent addresses petitioner’s new claims in the return of writ. (Doc. 44).
II.
PETITIONER’S SECOND MOTION TO AMEND IS GRANTED.
As set forth above, petitioner has filed a second motion to amend the ineffective-
assistance-of-counsel claims set forth in Ground Four. (See Doc. 33). Amendments to
habeas corpus petitions are governed by Rule 15 of the Federal Rules of Civil Procedure.
which petitioner asserted, “unambiguously supported [his] claim of ineffective assistance of
counsel.” (Doc. 27).
7
See 28 U.S.C. § 2242; see also Rule 12 of the Rules Governing Section 2254 Cases
(stating that “[t]he Federal Rules of Civil Procedure, to the extent that they are not
inconsistent with . . . these rules, may be applied to a proceeding under these rules.”).
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that “a party may
amend its pleading only with the opposing party’s written consent or the court’s leave,”
and that “[t]he court should freely give leave when justice so requires.” The Court of
appeals for the Sixth Circuit has held:
Under Rule 15(a), leave to amend a pleading shall be freely given when justice so
requires. This court has explained the factors that a district court should consider
when deciding whether to grant leave to amend. Several elements may be
considered in determining whether to permit an amendment. Undue delay in
filing, lack of notice to the opposing party, bad faith by the moving party,
repeated failure to cure deficiencies by previous amendments, undue prejudice to
the opposing party, and futility of amendment are all factors which may affect the
decision. Delay by itself is not sufficient reason to deny a motion to amend.
Notice and substantial prejudice to the opposing party are critical factors in
determining whether an amendment should be granted.
Coe v. Bell, 161 F.3d 320, 341-42 (6th Cir. 1998) (quoting Brooks v. Celeste, 39 F.3d 125, 130
(6th Cir. 1994)). A district court’s decision whether to grant a motion to amend the petition
pursuant to Fed.R.Civ.P. 15(a) generally is reviewed for an abuse of discretion.
Parry v.
Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000).
This Court has considered the factors set forth in Coe and determines that it does not
appear that the proposed amendments to Ground Four will cause such undue prejudice to
respondent or such undue delay to these proceedings as to make the amendment ill-advised. See
Coe, 161 F.3d at 341-42. The Court is satisfied that it is in the interests of justice to allow
petitioner’s proposed second amendment to his petition.
8
Accordingly, petitioner’s second
motion to amend his petition (Doc. 33) is hereby GRANTED.
III.
PETITIONER’S HABEAS PETITION, AS AMENDED, SHOULD BE DENIED.
In this federal habeas case, the applicable standard of review governing the adjudication
of the constitutional claims that were raised to and decided by the Ohio courts is set forth in 28
U.S.C. § 2254(d). Under that provision, a writ of habeas corpus may not issue with respect to
any claim adjudicated on the merits by the state courts unless the adjudication either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the United States
Supreme Court; 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.
28 U.S.C. § 2254(d).
“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 if the state
court 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)). “A state court’s adjudication only results in an
‘unreasonable application’ of clearly established federal law when ‘the state court identifies the
correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.’” Id. at 599-600 (quoting Williams, 529 U.S. at
413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600.
9
As the Sixth Circuit explained in Otte:
Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA’s
standards. See, e.g., Cullen v. Pinholster, [563] U.S. [170], 131 S.Ct. 1388, 1398,
179 L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to the
record before the state court where a claim has been adjudicated on the merits by
the state court). It is not enough for us to determine that the state court’s
determination is incorrect; to grant the writ under this clause, we must hold that
the state court’s determination is unreasonable. . . . This is a “substantially higher
threshold.”. . . To warrant AEDPA deference, a state court’s “decision on the
merits” does not have to give any explanation for its results, Harrington v.
Richter, [562] U.S. [86, 98-99], 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor
does it need to cite the relevant Supreme Court cases, as long as “neither the
reasoning nor the result of the state-court decision contradicts them.” Early v.
Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam).
Id. (emphasis in original). The Supreme Court has further held that when a state court rules
against a defendant in an opinion that “addresses some issues but does not expressly address the
federal claim in question,” the federal habeas court must presume, subject to rebuttal, that the
federal claim was “adjudicated on the merits” and thus subject to the “restrictive standard of
review” set out in § 2254(d). See Johnson v. Williams, 568 U.S. 289, 293 (2013).
Although the standard is difficult to meet, § 2254(d) “stops short of imposing a complete
bar on federal-court relitigation of claims already rejected in state proceedings” and “preserves
authority to issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington, 562 U.S.
at 102. In other words, to obtain federal habeas relief under that provision, the state prisoner
must show that the state court ruling on the claim presented “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
The Supreme Court has made it clear that in assessing the merits of a constitutional claim
10
under § 2254(d), the federal habeas court must apply the Supreme Court precedents that
controlled at the time of the last state-court adjudication on the merits, as opposed to when the
conviction became “final.” Greene v. Fisher, 565 U.S. 34, 40 (2011); cf. Otte, 654 F.3d at 600
(citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a claim
addressed by the state courts, the federal habeas court must “look to Supreme Court cases
already decided at the time the state court made its decision”). The writ may issue only if the
application of clearly-established federal law is objectively unreasonable “in light of the
holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant
state court decision.” McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529
U.S. at 412); see also White v. Woodall,
U.S.
, 134 S.Ct. 1697, 1702 (2014) (quoting Howes
v. Fields, 565 U.S. 499, 505 (2012) (internal citation and quotation marks omitted)) (“[C]learly
established Federal law’ for purposes of § 2254(d)(1) includes ‘only the holdings, as opposed to
the dicta, of this Court’s decisions.”). Decisions by lower courts are relevant only “to the extent
[they] already reviewed and interpreted the relevant Supreme Court case law to determine
whether a legal principle or right had been clearly established by the Supreme Court.” Otte, 654
F.3d at 600 (quoting Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)).
A.
Ground One
In Ground One, petitioner asserts that, on October 17, 2014, prior to his
resentencing, he filed a motion to withdraw his guilty plea. (See Doc. 1, at PageID 5).
Petitioner asserts that the trial court violated his right to due process when it did not
docket or allow him to argue the motion. (Id.). Respondent asserts that Ground One is
non-cognizable on federal habeas review, (Doc. 44, at PageID 1367), and the undersigned
11
agrees.
“In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.
62, 68 (1991). See also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus
relief does not lie for errors of state law.”); Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982) (“We
have long recognized that a ‘mere error of state law’ is not a denial of due process.”) (quoting
Gryger v. Burke, 334 U.S. 728, 731 (1948)).
A state defendant has no federal constitutional right, or absolute right under state law, to
withdraw a guilty plea. See, e.g., Dickey v. Warden, Lebanon Corr. Inst., No. 1:08cv819, 2010
WL 92510, at *1, *8 (S.D. Ohio Jan. 6, 2010) (Beckwith, J.; Black, M.J.) (and numerous cases
cited therein); see also Cline v. Kelly, No. 1:09cv859, 2010 WL 1006529, at *5 & n.7 (N.D.
Ohio Mar. 16, 2010) (citing United States v. Woods, 554 F.3d 611, 613 (6th Cir. 2009); Xie v.
Edwards, No. 93-4385, 1994 WL 462143, at *2 (6th Cir. Aug. 25, 1994)). Instead, “the 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.” Dickey, supra, 2010 WL
92510, at *8 (citing United States ex rel. Scott v. Mancusi, 429 F.2d 104, 109-10 (2nd Cir. 1970),
cert. denied, 402 U.S. 909 (1971)); cf. Cline, supra, 2010 WL 1006529, at *5 (finding that the
magistrate judge had “correctly concluded” that “whether a state court grants a motion to
withdraw a guilty plea is a matter of state law not cognizable on federal habeas review”).
Similarly, the decision whether to hold a hearing on a motion to withdraw a guilty plea does not
present a cognizable federal habeas claim. See, e.g., Moorer v. Warden, Marion Corr. Facility,
No. 1:11-cv-1079, 2012 WL 3579645, at *4 (N.D. Ohio July 23, 2012) (Report &
12
Recommendation) (“[A] criminal defendant has no constitutional right to an evidentiary hearing
on a motion to withdraw a guilty plea.”) (citing Hines v. Miller, 318 F.3d 157, 162 (2d Cir.
2003), adopted, 2012 WL 3579612 (N.D. Ohio Aug. 17, 2012).
As such, Ground One is not subject to review in this federal habeas proceeding and
should be denied.
B.
Ground Two
In Ground Two, petitioner asserts that “[t]he lower court failed to comply with the
legislative mandates and strict compliance with Criminal Rule 11 at the plea hearing.” (Doc. 1,
at PageID 7). Although Ground Two is pleaded sparsely, petitioner clarifies Ground Two in his
Traverse to Respondent’s Return of Writ. (Doc. 45). There, he states that his guilty plea was
involuntary because “Petitioner erroneously plead [sic] to three charges that are not felonies
under Ohio law,” and the trial court failed, at his original sentencing hearing, to provide
“notification to Petitioner regarding post-release control.” (Doc. 45, at PageID 1392).
Respondent asserts that Ground Two is procedurally defaulted because petitioner failed to
challenge the voluntariness of his guilty plea on direct appeal (Doc. 44, at PageID 1367-68,
1373-74), and, in any event, “[t]he transcript [from the plea colloquy] establishes that
[petitioner’s] guilty plea was voluntary” (Doc. 44, at PageID 1367).
“‘[F]ederal courts are not required to address a procedural-default issue before deciding
against the petitioner on the merits,’ especially where the procedural default issue is
‘complicated’ and ‘is unnecessary to [the] disposition of the case.’” Mahdi v. Bagley, 522 F.3d
631, 635 (6th Cir. 2008) (quoting Hudson v. Jones, 351 F.3d 212, 216 (6th Cir. 2003) (citing
Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (alteration in original)). The claims in Ground
13
Two do not warrant federal habeas relief for the reasons below. The undersigned therefore elects
to overlook any procedural default of the claims alleged in Ground Two.
As an initial matter, to the extent that petitioner bases the claims in Ground Two on the
trial court’s alleged failure to follow Ohio Criminal Rule 11 in accepting his guilty plea, Ground
Two should be dismissed as a non-cognizable state-law claim. See Estelle, 502 U.S. at 68; see
also Lewis, 497 U.S. at 780; Engle, 456 U.S. at 121 n.21.
Moreover, to the extent Ground Two raises a federal constitutional violation, it is still, at
least in part, not cognizable on federal habeas review. To the extent that petitioner asserts that he
“erroneously plead [sic] to three charges that are not felonies under Ohio law,” the substance of
his claim is that there was an insufficient factual basis for his plea. Such a claim is not
cognizable on federal habeas corpus review. See, e.g., Bonior v. Conerly, 416 F. App’x 475, 478
(6th Cir. 2010) (finding that “there is no constitutional requirement that a trial judge inquire into
the factual basis of a plea”) (quoting Roddy v. Black, 516 F.2d 1380 (6th Cir. 1975)). In any
event, by entering a guilty plea, petitioner forfeited his right to challenge his convictions based
on the sufficiency of evidence. See United States v. Martin, 526 F.3d 926, 933 (6th Cir. 2008)
(finding that the defendant “waived his right to appeal the sufficiency of evidence supporting his
conviction by entering a guilty plea that did not reserve the issue for appeal”).
Next, to the extent that petitioner asserts that the trial court failed to properly advise him
of post-release control, the undersigned presumes that petitioner seeks to reassert the challenges
to post-release control that he raised in his 2014 Motion for Resentencing of Void Judgment.
(See Doc. 43, Ex. 57, at PageID 962-65). There, petitioner asserted, in relevant part, that the trial
court “rendered a void judgment at sentencing when the trial court failed to properly address post
14
release control as to counts two and three . . . [and] journalized ‘up to five (5) years’ post release
control as to count one, which is a ‘mandatory five (5) year’ sanction.” (See id., at PageID 963).
For the reasons below, the undersigned finds that any failure of the trial court to correctly inform
petitioner regarding post-release control did not render his plea involuntary.
The Fourteenth Amendment’s Due Process Clause guarantees that a guilty plea must be
made voluntarily and intelligently with sufficient awareness of the relevant circumstances and
likely consequences. Boykin v. Alabama, 395 U.S. 238, 242 (1969); see also Brady v. United
States, 397 U.S. 742, 748 (1970); King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994). “[A] plea
does not qualify as intelligent unless a criminal defendant first receives ‘real notice of the true
nature of the charge against him, the first and most universally recognized requirement of due
process.’” Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Smith v. O'Grady, 312
U.S. 329, 334 (1941)). In Brady, the Supreme Court adopted the following standard for
determining the voluntariness of a guilty plea:
[A] plea of guilty entered by one fully aware of the direct consequences, including
the actual value of any commitments made to him by the court, prosecutor, or his
own counsel, must stand unless induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature improper as having no
proper relationship to the prosecutor’s business (e.g. bribes).
Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957)
(en banc), rev’d on other grounds, 356 U.S. 26 (1958)). The voluntariness of a guilty plea must
be assessed in light of all the relevant circumstances surrounding the plea. Brady, 397 U.S. at
749; King, 17 F.3d at 153 (and cases cited therein).
15
For a guilty plea to be deemed voluntarily entered with a “sufficient awareness of the
relevant circumstances and likely consequences,” the defendant must be correctly informed of
the maximum sentence that could be imposed. King, 17 F.3d at 154; Hart v. Marion Corr.
Instit., 927 F.2d 256, 259 (6th Cir. 1991). In Ohio, defendants convicted of certain classified
felonies are subject under Ohio Rev. Code § 2967.28 to a mandatory term of post-release control,
which the Ohio Supreme Court has defined as “a period of supervision that occurs after a
prisoner has served his or her prison sentence and is released from incarceration, during which
the individual is subject to specific sanctions with which he or she must comply.” See State v.
Clark, 893 N.E.2d 462, 470 (Ohio 2008). Violations of post-release control conditions “may
result in additional punishment, such as a longer period of control, more restrictions during the
control period, or a prison term of up to nine months per violation, subject to a cumulative
maximum of one-half of the original stated prison term.” Id. The Ohio Supreme Court has held
that a guilty plea cannot be accepted as validly entered unless the defendant, who faces
additional punishment of up to fifty percent of the original sentence for violating post-release
control conditions, is informed of the mandatory term of post-release control as “a part of the
maximum penalty.” State v. Sarkozy, 881 N.E.2d 1224, 1229 (Ohio 2008); see also State v.
Souris, No. 24550, 2009 WL 2171200, at *2 (Ohio App. 9th Dist. July 22, 2009) (“Even if postrelease control is discretionary, a defendant must be informed of the possibility of post-release
control before a court may accept his plea.”).
Although the defendant must be apprised of the “direct consequences” of the plea, the
court is under no constitutional obligation to inform the defendant of all the possible “collateral
consequences” of the plea. King, 17 F.3d at 153; see also El-Nobani v. United States, 287 F.3d
16
417, 421 (6th Cir. 2002). “When a defendant subsequently brings a federal habeas petition
challenging his plea, the state generally satisfies its burden by producing a transcript of the state
court proceeding.” Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993). As the Supreme Court
noted in Blackledge v. Allison, 431 U.S. 63 (1977):
[T]he representations of the defendant, his lawyer, and the prosecutor at [the
guilty plea hearing], as well as any findings made by the judge accepting the plea,
constitute a formidable barrier in any subsequent collateral proceedings. Solemn
declarations in open court carry a strong presumption of verity. The subsequent
presentation of conclusory allegations unsupported by specifics is subject to
summary dismissal, as are contentions that in the face of the record are wholly
incredible.
Id. at 73-74 (internal citations omitted).
Petitioner has not demonstrated that his plea was entered unknowingly, involuntarily, or
unintelligently. During petitioner’s plea hearing, the trial court reviewed with petitioner the
charges and maximum penalties associated with the offenses. (Doc. 43-1, at PageID 1025-38).
Petitioner affirmed that he understood the charges and maximum penalties he faced. (See id.).
Petitioner further affirmed that he read over his entry of plea of guilty and jury-waiver form and
reviewed them with his attorney. (See id. at PageID 1031-33). The trial court also reviewed
with petitioner the constitutional rights that he would waive by entering his guilty plea.
Petitioner indicated that he understood that he had a right to a jury trial, to call and compel
witnesses to testify on his behalf, to cross examine adverse witnesses, that he could not be forced
to testify against himself, and that the state was required to prove that he was guilty beyond a
reasonable doubt. (Id. at PageID 1031-32, 1039-41). Petitioner stated that no one had forced
him to enter a guilty plea or made any promises in exchange for his plea. (Id., at 1038). Finally,
petitioner indicated that he had an opportunity to consult with his attorney and that he was
17
satisfied with his advice. (Id., at PageID 1026, 1038).
Applying these principles, this Court has previously rejected a claim that the failure of
the trial court to correctly inform a petitioner regarding post-release control rendered a plea
involuntary. See Myers v. Warden, Warren Corr. Inst., No. 1:10-cv-343, 2011 WL 7039933, at
*7-9 (S.D. Ohio Aug. 9, 2011) (Report & Recommendation), adopted, 2012 WL 122568 (S.D.
Ohio Jan. 17, 2012). Here, as in Myers, “it is highly unlikely that [any] misinformation
regarding post-release control influenced or was even considered by petitioner in deciding
whether or not to plead guilty.” Id. at *10.
During the plea colloquy, the trial court explained to petitioner: “[I]f you’re sentenced to
a prison term for a felony one . . . after your prison release, you will have five years of postrelease control under conditions to be determined by the adult parole authority or the parole
board.” (Doc. 43-1, at PageID 1036). Petitioner was also informed of the mandatory five-year
post-release-control term on Count One in the entry of plea of guilty petitioner signed prior to his
plea hearing. (See Doc. 43, at PageID 321; see also Doc. 43-1, at PageID 1032-33 (containing
petitioner’s assurances during the plea hearing that he signed the entry of plea after reviewing
and discussing it with counsel). Similarly, the entry of plea advised petitioner that he would be
subject to discretionary post-release control on Counts Two and Three. (See Doc. 43, at PageID
321). Petitioner has not established that he was misled about the sentence that he faced.
Accordingly, Ground Two should be denied.
C.
Ground Three
In Ground Three, petitioner states:
The lower court amended a void judgment that was allegedly a valid final
18
judgment. The court continued in their prejudice and did not allow an appeal of
right contrary to the language of the amended judgment entry “advising Petitioner
of his right to appeal.” Moreover, the lower court found Petitioner indigent
without any mandated hearing for restitution and/or fines.
(Doc. 1, at PageID 8) (emphasis in original). Respondent asserts that Ground Three is not
cognizable on federal habeas review.
The undersigned agrees with respondent, at least in part, that Ground Three raises issues
that are not cognizable on federal habeas review. To the extent that petitioner challenges the trial
court’s authority to issue an Amended Judgment of Conviction Entry (see Doc. 43, at PageID
982), Ground Three presents an issue of state law, which is not cognizable on federal habeas
review. See, e.g., Hopkins v. Tate, No. 89-3055, 1989 WL 63271, at *1 (6th Cir. June 14, 1989)
(“[T]he alleged failure of the chairman of the Parole Authority to hear the appeal raises only an
issue of state law. A federal court may not issue a writ of habeas corpus based on perceived
errors of state law.”) Further, petitioner’s challenge to the trial court’s finding that he is indigent
is not cognizable on federal habeas review. See, e.g., Washington v. McQuiggin, 529 F. App’x
766, 772 (6th Cir. 2013) (explaining that “fines or restitution orders fall outside the scope of the
federal habeas statute because they do not satisfy the ‘in custody’ requirement of a cognizable
habeas claim”) (citing cases).
However, to the extent that petitioner argues that the trial court’s denial of his motion for
leave to appeal the Amended Judgment of Conviction Entry (see Doc. 43, at PageID 986)
violates his right to due process, petitioner appears to raise a cognizable claim. See Evitts v.
Lucey, 469 U.S. 387, 400-01 (1985) (finding that, although there is no constitutional right to an
appeal, once the state grants the right of appeal, it must “act in accord with the dictates of the
19
Constitution-and, in particular, in accord with the Due Process Clause” of the Fourteenth
Amendment). Nevertheless, petitioner has failed to show that Ohio’s vexatious-litigator statute
violates due process. See, e.g., Starks v. Sheldon, No. 12-cv-191, 2013 WL 3992592, at *54
(N.D. Ohio Aug. 5, 2013) (finding similar provision addressing vexatious practice in the Ohio
Supreme Court did not violate due process) (citing Mayer v. Bristow, 740 N.E.2d 656, 666 (Ohio
2000) (noting that “an original action in mandamus is an appropriate means by which the
vexatious litigator could effectively challenge arbitrary denials of leave.”); Bozsik v. Bradshaw,
No. 1:03-cv-1625, 2010 WL 7702230, at *38-*39 (N.D. Ohio June 4, 2010) (finding nothing
“inherently improper in restricting non-meritorious, vexatious, or repetitive filings if such an
order is based upon reasonable grounds and does not prohibit the filing of legitimate claims”)).
Accordingly, Ground Three should be denied.
D.
Ground Four
In Ground Four, as amended (see Docs. 1, 27, 33), petitioner challenges the effectiveness
of trial and post-conviction counsel. Respondent contends that petitioner has failed to present
the claims in Ground Four to the state courts and may still do so in the form of a successive postconviction petition or a delayed Ohio App. R. 26(B) motion to re-open his direct appeal. (See
Doc. 44, at PageID 1375-81).
Generally, habeas petitioners must exhaust state remedies before raising their claims in
federal court. 28 U.S.C. § 2254 (B)(1). However, the exhaustion requirement is not a
jurisdictional limitation. Pudelski v. Wilson, 576 F.3d 595, 606 (6th Cir. 2009). 28 U.S.C.
§ 2254(b)(2) “gives the district court the alternative of simply denying a petition containing
unexhausted but non-meritorious claims.” Duncan v. Walker, 533 U.S. 167, 183 (2001)
20
(Stevens, J., concurring). Petitioner’s ineffective-assistance-of-counsel claims do not warrant
federal habeas relief for the reasons below. The undersigned therefore elects to overlook any
failure of petitioner to exhaust state remedies for the claims alleged in Ground Four. 2
To establish ineffective assistance of counsel, a petitioner must demonstrate: (1)
“counsel’s representation fell below an objective standard of reasonableness,” and (2) “but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). In the guilty-plea context, to
satisfy the second prong, a petitioner “must show that there is a reasonable probability that but
for counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). Counsel is “strongly presumed” to
have “rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690. Here, because petitioner has
not established that counsel’s performance was deficient for the reasons below, the Court need
not consider the prejudice prong of the Strickland analysis. See, e.g., Bagnoli v. United States,
No. 95-5731, 1995 WL 730482, at *2 (6th Cir. 1995).
In Ground Four, as amended, petitioner asserts that counsel performed ineffectively by:
1) Advising Petitioner to release all “original” documents without copying to the
State in the absence of any indictment;
2) Advising Petitioner to waive an indictment despite the State’s failure to obtain
one;
2
Further, it appears that petitioner did raise some ineffective-assistance-of-counsel claims in the state courts
during his post-conviction proceedings. See Rose, Case No. 1:14-cv-308 (Doc. 10, at PageID 1025-30). This Court
need not determine whether the claims in Ground Four are subject to a procedural bar, however, because none of the
claims warrant habeas relief. See 28 U.S.C. § 2254(b)(2); Mahdi, 522 F.3d at 635.
21
3) Advising Petitioner to “knowingly, voluntarily, and intelligently” plea to
charges that are not felonies in the State of Ohio, including “intelligently”
pleading to erroneous language concerning post-release control;
4) Failing to subpoena any general partner or the brokerage firm, Raymond James
Financial Services;
5) Advising Petitioner to forfeit his “untainted” assets, including his legal
business enterprises;
6) Refusing to investigate the general partners and counsel’s former secretary for
fraud;
7) Continued submissions of “untimely” post-conviction motions that were ruled
meritless.
(Doc. 33, at PageID 281-82).
As an initial matter, sub-claims one and two relate to pre-plea matters. As discussed
above in Ground Two, petitioner’s guilty plea was entered into knowingly, voluntarily, and
intelligently. “[P]re-plea ineffective assistance of counsel claims are waived” by the entry of a
knowing, voluntary and intelligent plea See, e.g., United States v. Stiger, 20 F. App’x 307, 309
(6th Cir. 2001) (citing Untied States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992)). Sub-claims
one and two are therefore waived.
In sub-claim three, petitioner asserts that trial counsel performed ineffectively by
advising him to plead guilty to “charges that are not felonies in the State of Ohio, including
‘intelligently’ pleading to erroneous language concerning post-release control.” (Doc. 33, at
PageID 282). Sub-claim three lacks merit. Given the evidentiary basis for petitioner’s guilty
plea, as recited by the State at petitioner’s plea hearing (see Doc. 43-1, at PageID 1000-1008),
and the absence of any indication that petitioner was misled by the term of post-release control
that he faced in this case (see discussion regarding Ground Two, supra), petitioner has not shown
22
that counsel’s advice to plead guilty was objectively unreasonable. Further, petitioner has not
established that counsel overlooked a meritorious challenge to the charges. The trial court
rejected petitioner’s argument, advanced during post-conviction proceedings, that “he could not
be guilty of sale of unregistered securities.” (See Doc. 43, Ex. 32, at PageID 619-21). Further,
by pleading guilty, petitioner “prevented the State from potentially bringing many other charges
such as Theft by Deception, Fraud in the Sale of Securities and additional Forgery counts.” (See
id., at PageID 620 n.3 (emphasis in original)). Sub-claim three is without merit.
In sub-claims four and six, petitioner asserts, respectively, that trial counsel was
ineffective by “[f]ailing to subpoena any general partner or the brokerage firm, Raymond James
Financial Services;” and by “refusing to investigate the general partners and counsel’s former
secretary for fraud.” (Doc. 33, at PageID 282). Petitioner has not shown that counsel’s
performance was deficient in this regard. Counsel reasonably could have decided to forgo
investigating the alleged wrongdoing of the brokerage firm or of the general partners for fear of
uncovering information detrimental to petitioner. Moreover, to the extent that petitioner believes
that such an investigation could have resulted in his facing a lesser amount of restitution (see
Doc. 45, at PageID 1397) (contending that “every person who participated in or aided Petitioner
in any way are jointly and severally liable for the full amount of loss in addition to court costs”),
such a claim is not properly before the Court on federal habeas corpus. See McQuiggin, 529 F.
App’x at 772.
In sub-claim five, petitioner asserts that counsel performed ineffectively by “[a]dvising
Petitioner to forfeit his ‘untainted’ assets, including his legal business enterprises.” (Doc. 33, at
PageID 282). Federal courts may review an application for federal habeas corpus “‘only on the
23
ground’ that [the petitioner’s] custody violates federal law.” Wilson v. Corcoran, 562 U.S. 1, 17
(2010) (quoting 28 U.S.C. § 2254(a)). Even if petitioner could show that counsel’s performance
was deficient as to the issue of forfeiture, it is irrelevant to the issue of whether petitioner is in
custody in violation of the Constitution. Sub-claim five thus is not cognizable on federal habeas
review.
In sub-claim seven, petitioner raises a substantive post-conviction-counsel claim. Such a
claim is without merit. “Because there is no constitutional right to an attorney in state postconviction proceedings, a petitioner cannot claim constitutionally ineffective assistance of
counsel in such proceedings.” Coleman v. Thompson, 501 U.S. 722, 725 (1991). Sub-claim
seven thus is not cognizable on federal habeas review. 3
Accordingly, in sum, petitioner’s motion to amend his federal habeas petition a second
time (Doc. 33) is GRANTED. Petitioner’s federal habeas petition, as amended (Docs. 1, 27,
33), should be DENIED with prejudice. In light of the Court’s recommendation to deny with
prejudice petitioner’s amended petition, petitioner’s motion for preliminary injunction (Doc. 46)
should also be DENIED.
IT IS THEREFORE ORDERED THAT:
1.
Petitioner’s motion to amend his federal habeas petition (Doc. 33) is GRANTED.
IT IS THEREFORE RECOMMENDED THAT:
1.
The petition, as amended, for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (Docs. 1, 27, 33) be DENIED with prejudice.
3
Petitioner is also not entitled to relief based on Luis v. United States, 136 S. Ct. 1083 (2016), which he
cites in his first motion to amend (Doc. 27). Petitioner makes no effort to apply Luis to the facts of this case.
Moreover, for the reasons set forth herein, petitioner has not demonstrated that counsel’s performance was deficient.
24
2.
In light of the Court’s recommendation to deny with prejudice petitioner’s
amended habeas petition, petitioner’s motion for preliminary injunction (Doc. 46) be DENIED.
3.
A certificate of appealability should not issue with respect to the claim alleged in
the petition, which this Court has concluded is waived and thus procedurally barred from review,
because under the first prong of the applicable two-part standard enunciated in Slack v.
McDaniel, 529 U.S. 473, 484–85 (2000), “jurists of reason” would not find it debatable whether
this Court is correct in its procedural ruling. 4 In addition, a certificate of appealability should not
issue with respect to the claim addressed alternatively on the merits herein in the absence of a
substantial showing that petitioner has stated a “viable claim of the denial of a constitutional
right” or that the issues presented are “adequate to deserve encouragement to proceed further.”
See Slack, 529 U.S. at 475 (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also
28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
4. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in “good faith,” and therefore DENY
petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R.
App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
4
Because the first prong of the Slack test has not been met, the Court need not address the second prong of
Slack as to whether “jurists of reason” would find it debatable whether petitioner has stated a viable constitutional
claim in his time-barred grounds for relief. See Slack, 529 U.S. at 484.
25
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JERRY R. ROSE,
Petitioner,
Case No. 1:15-cv-353
Black, J.
Bowman, M.J.
vs.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
26
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?