Francis v. Warden, Warren Correctional Institution

Filing 33

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the case in light of the Objections, the Magistrate Judge again respectfully recommends that the Petition 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. Objections to R&R due by 7/17/2019. Signed by Magistrate Judge Michael R. Merz on 7/2/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JAMES FRANCIS,
Petitioner,

:

- vs -

Case No. 1:16-cv-606
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

WANZA JACKSON-MITCHELL,
Warden, Warren Correctional
Institution
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 31) to the
Magistrate Judge’s Report and Recommendations (“Report,” ECF No. 25). District Judge Barrett
has recommitted the case to the Magistrate Judge for reconsideration in light of the Objections
(ECF No. 32).
James Francis was indicted on four counts of rape of a child under the age of ten; two
different victims were involved. The penalty upon conviction of any of those counts would have
been life imprisonment without the possibility of parole. After plea negotiations, Francis pleaded
guilty to all four counts with the age specification dismissed. The sentence provided by law for
each offense is ten years to life. The trial judge imposed that sentence and ran the terms
consecutively because there were two victims.
In this habeas corpus case, Francis contends he received ineffective assistance of trial
counsel when his trial attorney promised him a sentence of a flat ten years. He made no such claim

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at the time he was sentenced, but first raised this claim in a petition for post-conviction relief under
Ohio Revised Code § 2953.21. The Ohio Twelfth District Court of Appeals rejected Francis’
claim. State v. Francis, 2014-Ohio-443, 8 N.E.3d 371 (Ohio App. 12th Dist. Feb. 10, 2014),
appellate jurisdiction declined, 139 Ohio St. 3d 1401 (2014) (Francis I); after remand, State v.
Francis, Ohio App. 12th Dist. Butler No. CA2014-09-187, 2015-Ohio-2221 (Jun. 8, 2015)(Francis
II).1
The principal question before this Court is what effect to give to the Twelfth District’s
decision. The Report found that Francis I was entitled to deference under the AEDPA and that
Francis was therefore not entitled to habeas relief (ECF No. 25). Francis raises a series of
objections which will be discussed seriatim.
Counsel begins his Objections by asserting Francis’ trial lawyer was “inexperienced and
new.” (Objections, ECF No. 31, PageID 394.) Where does this fact appear in the record? No
record reference is provided. The Objections make many assertions about whether certain facts
were or were not found by the state courts, but they lose credibility when they begin with habeas
counsel’s mere assertion of a rhetorically prejudicial fact, unsupported by evidence, which is
obviously intended to color the whole discussion of trial counsel’s performance, suggesting the
Court should presume an “inexperienced and new” attorney would be more prone to provide
ineffective assistance. Even if the Court should indulge that presumption,2 where is the evidence
to support the assertion?

1

Francis did not appeal to the Supreme Court of Ohio from this second appellate decision.
Actually, the presumption under Strickland v. Washington, 466 U.S. 668 (1984), is that any licensed attorney can
provide effective assistance.
2

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Objection One: The Ohio Courts Did Not Decide Francis’s Claim on the Merits

The predicate for deference under the AEDPA as codified at 28 U.S.C. § 2254(d)(1) and
(2) is that the state courts decided the federal constitutional claim in question on the merits. The
Report concluded that the Ohio courts had decided Francis’ ineffective assistance of trial counsel
claim on the merits (ECF No. 25, PageID 375-78).
Francis objects:
The postconviction court did not review Francis' or his lawyer's
affidavits that depicted the sentencing advice. It stated "[w]hatever
conversations and directives occurred between counsel and client
outside the record may not be utilized to overcome the burden for
post-conviction relief." . . . So the postconviction court made no
factual findings-concluding that Francis' postconviction
affidavits were somehow outside the postconviction record and
unavailable to review.

(Objections, ECF No. 31, PageID 395-96, quoting Decision and Entry Denying Petition for
Postconviction Relief, State Court Record, ECF No. 6, Ex. 13, PageID 87.) Francis relied on
this excerpt to claim the trial court did not consider his trial attorney’s affidavit, but the
immediately preceding sentence reads: “Francis’s petition for postconviction relief fails because
the claimed ineffective assistance regarding the plea and subsequent imposition of sentence, even
with counsel’s affidavit, is diametrically opposite of reality as evidenced by the recorded
proceedings.” (ECF No. 6, PageID 87.) At several points in the Decision, Judge Sage adverts to
the critical decision in Ohio law about ineffective assistance of trial counsel claims: those which
can be proved from the record on direct appeal must be made on direct appeal or be barred by res
judicata; those which depend on evidence outside the record must be made in a post-conviction
petition supported by affidavit. State v. Cheren, 73 Ohio St. 3d 137 (1995)(per curiam), following
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State v. Perry, 10 Ohio St. 2d 175 (1967). Judge Sage expressly cites Perry for this point at ECF
No. 6, PageID 84.
Francis then objects that “[t]he Ohio Court of Appeals ignored the postconviction court's
holding that Francis' postconviction affidavits were outside the postconviction record and
unavailable for review. It acted as if the postconviction court had rejected the claim by considering
Francis' evidence.” (Objections, ECF No. 31, PageID 396.) But that was not the holding of the
trial court at all. Clearly understanding the distinction deeply embedded in Ohio law3 between
ineffective assistance of trial counsel claims which must be raised on direct appeal and those that
can be raised only in post-conviction by presenting evidence outside the record, Judge Sage found
that trial counsels’ affidavit was plainly contradicted by the plea colloquy and therefore was
insufficient substantive evidence on which to grant relief. In affirming, the Twelfth District found
that Judge Sage had “undoubtedly considered Francis’ and his trial counsel’s affidavits, both of
which were evidence dehors the record. . . .” Francis II, 2015-Ohio-2221at ¶ 15.
In sum, the Objection that the Ohio courts did not decide Francis’ claim on the merits
should be overruled.

Objection Two: The Postconviction Court Decided a Boykin Claim Rather than Francis’
Strickland Claim

Francis next objects that the postconviction court improperly reframed his claim as if it
were a claim under Boykin v. Alabama, 395 U.S. 238, 242-44 (1969), rather than Strickland. The
Report rejected this argument, finding that the Ohio courts had adverted to the plea colloquy not
to show that the plea was knowing, intelligent, and voluntary, but because Francis’ statements

3

Perry was decided fifty-two years ago.

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during the plea colloquy were used to assess the credibility of the affidavits in post-conviction
(Report, ECF No. 25, PageID 378-79).
Francis objects that
[The Report] failed to acknowledge 6th Circuit precedent holding i)
that a Boykin claim is distinct from a Strickland claim for a grossly
misrepresented sentence, McAdoo [v. Elo, 365 F.3d 487 (6th Cir.
2004)] above, and ii) that no AEDPA deference applies when the
presented claim was ignored and a distinct claim was addressed and
adjudicated. [Ray v.] Maclaven [665 Fed. Appx. 301 (6th Cir. 2016)]
and Nichols [v. Heidle, 725 F.3d 516, 556 (6th Cir. 2013),] above.
(Objections, ECF No. 31, PageID 397.)
The Magistrate Judge acknowledges that McAdoo is published binding precedent of the
Sixth Circuit. However, the other two cases are not cited in the Traverse at all, so the Report had
no occasion to acknowledge them, much less discuss them. McAdoo made three claims in habeas,
to wit, that his plea was involuntary, that the plea bargain was illusory, and that he received
ineffective assistance of trial counsel when his attorney advised him of the consequences of the
plea. McAdoo, 365 F.3d at 493. The Sixth Circuit did indeed decide these three claims separately,
but there is no holding of the court about separating Boykin and Strickland claims because there
was no assertion the district court or the state courts had confused them.
Nor was there any such confusion here. Both the post-conviction court and the Twelfth
District clearly decided the ineffective assistance of trial counsel claim. Judge Sage cited
Strickland, and State v. Bradley, 42 Ohio St. 3d 136 (1989), the case in which the Strickland
standard was recognized as binding in Ohio. (Decision, State Court Record, ECF No. 6, PageID
86.) The Twelfth District also expressly relied on Strickland. Francis I at ¶ 23.
Francis’s second objection should be overruled.

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Objection Three: The Ohio Courts Unreasonably Decided the Facts

In his Third Objection, Francis complains that the Report did not address his argument that
the Ohio courts unreasonably determined the facts (Objections, ECF No. 31, PageID 397). Francis
asserts the Ohio courts, both trial and appellate, made factually unreasonable decisions because
they did not consider Francis’ postconviction evidence.
For reasons given above as to the First Objection, the Third is not well taken. The Twelfth
District clearly held Judge Sage had considered the affidavits and the Report found, as noted above,
that was a fair reading of Judge Sage’s decision.

Objection Four: Francis Is Entitled to Relief on the Merits

Because the Magistrate Judge found the state court decisions were entitled to deference
under the AEDPA, the analysis of the merits was not de novo. The Report agreed with Francis
that giving misinformation about the direct consequences of a plea constitutes deficient
performance, satisfying the first prong of Strickland. But deferring to the state court findings of
fact, the Report concluded Francis had not proved the bad advice was given (Report, ECF No. 25,
PageID 380).

The Objections assert “this ignores the fact that the lawyer was new and

inexperienced.” (Objections, ECF No. 31, PageID 399.) We must again inquire, where is the
proof of this fact? It is undisputed that the lawyer, however young or lacking in experience he
may have been, was an attorney at law licensed to practice in Ohio. From that fact flows the
presumption under Strickland that he provided effective assistance.
Francis also objects to the Report’s conclusion that he did not show prejudice as required

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by the second prong of Strickland (Objections, ECF No. 31, PageID 399). The Report noted that
Francis had not shown why it would have been rational to reject the plea bargain. Had he been
convicted of even one of the four rape counts, he would have faced a mandatory life without parole
sentence. He argued in his Traverse that the victims had recanted their testimony, but no record
reference was offered and neither that evidence nor any protestation of innocence was before the
post-conviction court.
Francis’ Fourth Objection should also be overruled.

Conclusion

Having reconsidered the case in light of the Objections, the Magistrate Judge again
respectfully recommends that the Petition 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.

July 2, 2019.
s/ Michael R. Merz
United States Magistrate Judge

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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 mail. 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.
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 Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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