King v. Warden North Central Correctional Institution

Filing 11

REPORT AND RECOMMENDATION re 2 Petition for Writ of Habeas Corpus filed by Thomas Earl King Objections to R&R due by 9/29/2016. Signed by Magistrate Judge Michael R. Merz on 9/12/2016. (srb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
THOMAS EARL KING,
Petitioner,

:

- vs -

Case No. 1:15-cv-583
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

NEIL TURNER, WARDEN,
North Central Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATION

This is a habeas corpus case brought with the assistance of counsel by Petitioner Thomas
King to obtain relief from his conviction in the Butler County Court of Common Pleas on one
count of possession of marijuana (Petition, ECF No. 2, PageID 2, ¶ 1). On Magistrate Judge
Bowman’s Order (ECF No. 4), the Warden has filed the State Court Record (ECF No. 7) and a
Return of Writ (ECF No. 8). Judge Bowman set a date for Petitioner to file a reply to the Return,
but he has not done so and the time has expired. However, his Memorandum in Support of the
Petition anticipates many of the arguments raised by the Warden. The case is accordingly ripe
for decision.
King pleads one ground for relief:
Ground One: King was deprived of his Sixth Amendment right
to effective assistance of counsel, rendering his guilty plea
unknowing and involuntary.

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(Petition, ECF No. 2, PageID 6.)

Procedural History

Mr. King was arrested on March 2, 2012, for possession of a large quantity of marijuana.
He was indicted by the Butler County Grand Jury for possession of marijuana in excess of
40,000 grams, a charge carrying a mandatory minimum sentence of eight years imprisonment
(State Court Record, ECF No. 7, PageID 131). He filed a motion to suppress his statements to
law enforcement on the theory that a substantial portion of his statements were elicited after he
invoked his right to counsel. Id. at PageID 134, et seq. The motion to suppress was set for
hearing the day before trial. On the day of the hearing, December 17, 2012, he agreed to
withdraw his not guilty plea and plead guilty to the lesser charge of possessing more than 20,000
grams of marijuana, an offense carrying a mandatory minimum sentence of five years, which is
the sentence that was imposed (Plea of Guilty & Jury Waiver, State Court Record, ECF No. 7,
PageID 138, et seq.)
King took no direct appeal, but filed a petition for post-conviction relief under Ohio
Revised Code § 2953.21 on August 29, 2013. Id. at PageID 148, et seq. The Common Pleas
Court denied the petition, without an evidentiary hearing, both originally (Id. at PageID 165)
and on remand for findings of fact and conclusion of law. Id. at PageID 283, et seq. The
Twelfth District Court of Appeals affirmed. State v. King, 2014-Ohio-5393, 2014 Ohio App.
LEXIS 5229 (12th Dist. Dec. 8, 2014)(hereafter “State v. King”). The Ohio Supreme Court
declined to accept jurisdiction. State v. King, 142 Ohio St. 3d 1518 (2015). King filed this
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timely1 habeas corpus petition on September 10, 2015.

Analysis

King’s sole ground for relief is that he received ineffective assistance of trial counsel,
rendering his guilty plea unknowing and involuntary. He asserts a number of deficiencies in his
attorney’s performance:
King's trial counsel rendered ineffective assistance because 1) he
failed to investigate the case, interview witnesses, prepare for trial,
or properly advise King of the strength of the State's case against
him; 2) he scared and pressured King into pleading guilty; and 3)
he failed to follow through with a meritorious motion to suppress
King's alleged confession.
(Memo in Support, ECF No. 2-1, PageID 23.) King raised the same claims in his Petition for
Post-Conviction Relief (Petition, State Court Record, ECF No. 7, PageID 154). On appeal from
denial of the Petition, King raised a single assignment of error: “The trial court erred by denying
Defendant’s petition for post-conviction relief without an evidentiary hearing.” Id. at PageID
222. However he presented as an issue for review his claim that he was deprived of effective
assistance of trial counsel and reiterated the same subclaims he raises here. Id. at PageID 230.
The Twelfth District began its discussion of the ineffective assistance of trial counsel
claim by citing the controlling constitutional standard. State v. King, ¶ 15, citing Strickland v.
Washington, 466 U.S. 668 (1984).

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The Warden does not contest the timeliness of the Petition.

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Sub-claim One: Failure to Prepare for Trial

As to the sub-claim that the trial attorney was not prepared for trial, the Twelfth District
found that claim barred by Ohio’s criminal res judicata doctrine because it could have been
raised on direct appeal but was not. Id. at ¶¶16-19.
The Warden relies on this procedural default – failure to file a direct appeal – as a bar to
King’s habeas claims. Although King did not file a Reply, he anticipated this argument in his
Petition. He asserts this Court cannot know that his default was enforced against him because
“[t]he trial court did not mention any independent state law ground” . . . and
The Ohio Supreme Court simply did not accept jurisdiction, and
therefore, it cannot be determined if the Ohio Supreme Court, as
the last court where King presented his federal claim, relied on
federal grounds or a state procedural ground when denying
jurisdiction.
(Memo in Support, ECF No. 2-1, PageID 29.)
The correct procedural default analysis, however, does not look at either the trial court
decision or the unexplained refusal to exercise jurisdiction of a supreme court. Where there has
been one reasoned state court judgment rejecting a federal claim, there is a rebuttable
presumption that later unexplained orders upholding the judgment or rejecting the same claim
rest on the same ground. Ylst v. Nunnemaker, 501 U.S. 797 (1991). The district court must look
at the last state court disposition providing reasons for the decision. Joseph v. Coyle, 469 F.3d
441, 450 (6th Cir. 2006); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). A state court’s
noncommittal denial of review is not controlling. McBee v. Abramajyts, 929 F. 2d 264, 267 (6th
Cir. 1991). In rejecting this sub-claim, the Twelfth District clearly relied on res judicata.
Ohio’s doctrine of res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St.
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2d 175 (1967), is an adequate and independent state ground. Durr v. Mitchell, 487 F.3d 423, 432
(6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d
417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d
155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913
(S.D. Ohio 2001).

Failure to Advise King of the Weakness of the Case Against Him

King also asserts he was provided ineffective assistance of trial counsel in the plea
bargaining process because his trial attorney did not properly advise him of the strengths and
weaknesses of the case against him. In particular, he claims his attorney should have told him
that Gamble, the man from whom he accepted delivery of the marijuana in suit, was refusing to
testify against him.
The Twelfth District also rejected this sub-claim on res judicata grounds. It held:
[*P22] At first blush, based on the alleged timing of King's
knowledge regarding Gamble's lack of cooperation, this evidence
appears to be evidence outside of the record at the time of a direct
appeal, and therefore would fall under the exception to the res
judicata bar. However, we find that King and his wife's affidavits
are insufficient to meet the exception. Although King claims he
was unaware of Gamble's refusal to cooperate, it is clear that King
knew of him and that he could be a potential witness against him.
Accordingly, as the information King now relies upon was clearly
in existence and readily available to him, any claim that his trial
counsel was ineffective relating to Gamble's potential testimony,
could have been and should have been raised on direct
appeal. This claim is therefore also barred by the doctrine of res
judicata. Wagers at ¶ 10.

State v. King, supra.

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King argues he could not have raised this claim on direct appeal because it depends on
evidence outside the record:
In fact, King's claim required three pieces of critical evidence
outside the original record: 1) the Gamble sentencing
memorandum, which was filed [in federal court in Gamble’s case]
almost a month after King was sentenced, 2) the affidavits of King
and his wife which were signed almost seven months after King
was sentenced, and 3) the recording of King's statement, which
was never filed as part of the record because King never had a
suppression hearing. It naturally follows that the affidavits
attesting to the fact that they were not apprised of Gambles refusal
to cooperate would fall outside the record because that knowledge
did not exist during plea negotiations.

(Memo in Support, ECF No. 2-1, PageID 30.)
The Twelfth District offered an alternative merits analysis of this sub-claim:
[*P23] Even if res judicata did not apply, King's claim that
Gamble refused to testify against him is not supported by the
record. The only evidence submitted in support of King's claim
was King's and Shawndra's statements in their affidavits. As to
King's affidavit, we find that this self-serving affidavit was
insufficient to trigger the right to a hearing. Isbell, 2004-Ohio-2300
at ¶ 14 ("in general, self-serving affidavits submitted by a
defendant in support of his claim for postconviction relief are
insufficient to trigger the right to a hearing or to justify granting
the petition under R.C. 2953.21"). In addition, Shawndra's affidavit
is mostly based on information provided by King and not based on
her own observations or discussions with trial counsel. Compare
State v. Smith, 1st Dist. Hamilton No. C-070624, 2008-Ohio-3789
(finding trial court erred in failing to conduct an evidentiary
hearing on a petition for postconviction relief for ineffective
assistance of counsel where the record bolstered the claims
asserted by defendant and his grandmother in their affidavits).
[*P24] Additionally, the record does not bolster or support King
and Shawndra's conclusion that Gamble's refusal to cooperate with
the government meant that he also refused to testify against King.
The government's sentencing memorandum in Gamble's case only
suggests that Gamble had not been forthcoming with some
unspecified information. It is pure speculation on the part of King
and Shawndra that simply because Gamble was uncooperative in
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his own case that he would also be uncooperative and refuse to
testify in King's case. Conjecture built upon insufficiently
supported speculation does not establish substantive grounds
entitling a defendant to postconviction relief." State v. Piesciuk,
12th Dist. Butler No. CA2013-01-011, 2013-Ohio-3879, ¶ 24,
quoting State v. English, 9th Dist. Lorain No. 99CA007408, 2000
Ohio App. LEXIS 848, 2000 WL 254912, *4 (Mar. 8, 2000).
Therefore, it remained unclear whether Gamble would have
provided testimony against King.
[*P25] Moreover, from the state's discovery response, it is clear
that Gamble was not the only witness the state intended to call in
the case against King. Rather, several law enforcement officers
who were present and participated in the control delivery were to
testify against King.
State v. King, supra. The Twelfth District’s factual basis for these conclusions is strong. The
Government’s Sentencing Memorandum in Gamble’s case advises the Court that he has not been
sufficiently cooperative to merit a substantial assistance adjustment to his Sentencing Guideline
range. It does not say that he had refused to testify against King. What it actually says is
In this case, over the course of several opportunities, this defendant
failed to provide information to the Government, On more than
one occasion, agents were forced to ferret out information
themselves, following which the defendant was provided
opportunities to explain his failure to be forthcoming. On each
occasion, the defendant has no explanation for his lack of candor.

(Government’s Sentencing Memorandum in United States v. Gamble, Case No. 1:12-cr-031,
copy at ECF No. 2-2, PageID 81-82.) This is not a description of Gamble’s behavior which
would include refusal to testify against King. What King had done was already known to the
Government. Yet this is the only source that King gives for Gamble’s supposed refusal to
testify.
Moreover, as a co-offender with King in the possession and delivery of a large quantity
of marijuana, Gamble would not have been the most credible witness to King’s jury. More

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credible, and certainly sufficient, would have been the law enforcement personnel who were
eyewitnesses to this controlled delivery.
King’s own affidavit adds little. In particular, he provides no foundation for his claim
that Gamble was refusing to testify against him, merely saying that he “later found out” that was
the case (Affidavit, ECF No. 2-2, PageID 86). Shawndra King, Petitioner’s wife, also signed an
affidavit which avers that she found out Gamble was refusing to cooperate when she “attended
his sentencing hearing [in federal court] on April 10, 2013.” Id. at PageID 88.
The Gamble Sentencing Memorandum was certainly not part of the state court record in
King’s case so that its significance could not have been argued on appeal. The Twelfth District’s
conclusion that King could have known about it in time to incorporate it in the record for appeal
is also not based on a reasonable determination of the facts because it did not exist until February
26, 2013 (see PageID 84). But the content of the Memorandum does not support the claim that
Gamble was refusing, as of December 18, 2012, to testify against King. Trial counsel Richard
Goldberg therefore did not provide ineffective assistance of trial counsel in failing to advise King
that the case against him was weak because of the possibility Gamble would not testify.
King also notes that the recording of his confession was not part of the state court record
because no suppression hearing was held.

However, King knew what the content of the

recording was at the time he decided to plead guilty and forego the suppression hearing. He
knew that he had made several incriminating statements before invoking his right to counsel. He
also knew there were Government eyewitnesses to his taking possession of the very large
quantity of marijuana, so the Government did not need his admissions to convict him. In sum, he
has not shown that Mr. Goldberg’s purported advice that the case against him was strong was
deficient performance on Goldberg’s part because the case was strong. The Twelfth District’s

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analysis of this sub-claim is neither contrary to nor an objectively unreasonable application of
Strickland.

Scaring and Pressuring King into Pleading Guilty

In his third sub-claim, King alleges Mr. Goldberg provided ineffective assistance of trial
counsel by scaring and pressuring him into pleading guilty. The Twelfth District considered this
claim and decided it as follows:
[*P27] King next alleges that his trial counsel was ineffective as
counsel "scared and pressured" him into pleading guilty. In support
of his claim, King points to his affidavit in which he averred that
trial counsel scarred and pressured him into taking the plea
agreement by telling him that the state was going to use "the tape
recordings, cars that were seized, and a gun found at my house to
paint a picture of me being some kind of big kingpin." After
reviewing the record, we find that King's self-serving affidavit is
insufficient to trigger the right to a hearing or to justify granting
the petition under R.C. 2953.21. See Isbell at ¶ 14; see also State v.
Kapper, 5 Ohio St.3d 36, 38, 5 Ohio B. 94, 448 N.E.2d 823 (1983).
Furthermore, the record from the plea hearing reveals that King
told the court that no one was forcing him or threatening him into
entering the guilty plea. There is no evidence or indication in the
record which contradicts King's statements made during the plea
hearing.
[*P28] Accordingly, the trial court did not err in denying King's
petition for postconviction relief without holding an evidentiary
hearing on his claims that trial counsel pressured him into pleading
guilty.
State v. King, supra.
A plea of guilty or no contest is valid if, but only if, it is entered voluntarily and
intelligently, as determined by the totality of the circumstances. Brady v. United States, 397 U.S.
742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); King v. Dutton, 17 F.3d 151

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(6th Cir. 1994); Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991); Berry v. Mintzes, 726
F.2d 1142, 1146 (6th Cir. 1984). The determination of whether this plea was intelligently made
depends upon the particular facts and circumstances of each case. Johnson v. Zerbst, 304 U.S.
458, 463 (1938); Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993).
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 v. United States, 397 U.S. 742, 755 (1970). Where a court conducts an appropriate plea
colloquy, a defendant is bound by the admissions he makes during that proceeding. Baker v.
United States, 781 F.2d 85, 90 (6th Cir. 1986), quoting Moore v. Estelle, 526 F.2d 690 (5th Cir.
1976). King does not claim any deficiency in the process for taking his plea and, in any event,
such a claim would be required to be raised on direct appeal.
Denial of this sub-claim is also neither contrary to nor an objectively unreasonable
application of Strickland.

Failure to Follow Through on the Motion to Suppress

King’s last sub-claim is that Mr. Goldberg should have carried through with the motion
to suppress. The claim is not that Goldberg failed to file a motion. Indeed, the motion was set
for hearing on December 17, 2012, and only aborted when the decision to plead guilty obviated
any need for the hearing.
The Twelfth District decided this sub-claim was barred by res judicata, but also made an

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alternative merits analysis:
[*P33] However, after reviewing the recorded interview, it is
clear that prior to referencing talking to an attorney, King made
several incriminating statements, such as admitting that he helped
Gamble unload "it" and that he expected to receive some of "it" in
return. He also stated he was only "small time." These statements
corroborated the state's evidence, such as the DEA investigation
report which, among other things, indicated that Gamble had
several duffel bags of marijuana. Even if we assume that King's
statement, "I just need to talk to my lawyer," was an unequivocal
request for an attorney and therefore any statements made after the
request should have been suppressed, the record indicates that
these later incriminating statements were merely cumulative to
King's prior admissions and statements. As these prior statements
by King would have been admissible and otherwise corroborated
the state's case, we find that King failed to prove he was prejudiced
by counsel's failure to pursue a motion to suppress.
State v. King, supra.
Here again the Twelfth District’s opinion has a strong factual basis. King’s statements
before he invoked his right to counsel were incriminating and admissible. And even if the
remainder of the recording had been suppressed, it is unlikely that would have prevented a
conviction; there was all that marijuana and several Government eyewitnesses, even if Gamble
did not testify and King’s post-invocation admissions were suppressed.

Conclusion

When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
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693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
The Twelfth District’s merits analysis in this case is neither contrary to nor an objectively
unreasonable application of Strickland. Its res judicata analysis of the first sub-claim recognizes
a state procedural bar frequently upheld by the federal courts.
Therefore, the Magistrate Judge respectfully recommends the Petition herein be
DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.

September 12, 2016.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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 Recommendations are based in whole or in part upon matters occurring of 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 fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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