Gentry v. Warden, Correctional Reception Center

Filing 13

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appeal ability 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 6/19/2019. Signed by Magistrate Judge Michael R. Merz on 6/5/2019. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

:

- vs -

Case No. 1:18-cv-318
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

Warden,
Correctional Reception Center,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Kenneth Gentry to obtain relief
from his convictions in the Hamilton County Court of Common Pleas for involuntary manslaughter
and drug trafficking. Upon review of the Petition (ECF No. 1), Magistrate Judge Stephanie
Bowman ordered the State to answer and file the state court record (ECF No. 2). Respondent has
done so (State Court Record, ECF No. 7; Return of Writ, ECF No. 8). Petitioner has filed a
Supplemental Memorandum in Support of the Petition (ECF No. 4) and a Reply (ECF No. 10).
Respondent has filed a Reply (ECF No. 11) to Gentry’s Reply, making the case ripe for decision.
The Magistrate Judge reference in the case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in the District (ECF No. 12).

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Litigation History

On June 15, 2015, a Hamilton County grand jury indicted Petitioner on one count of
involuntary manslaughter, one count of corrupting another with drugs, two counts of trafficking in
heroin, and two counts of possession of heroin in case number B1502592 (State Court Record,
ECF No. 7, Ex. 1). Ten days later a second grand jury indicted him on two counts of trafficking
in heroin, one count of aggravated trafficking in drugs, and one count of possession of heroin in
case number B1503265-A. In the first case Gentry pleaded guilty to one count of involuntary
manslaughter and one count of trafficking in heroin pursuant to a plea agreement; in the second
case he pleaded guilty to another count of trafficking in heroin. He was sentenced in both cases to
an aggregate term of ten years imprisonment.
Represented by counsel, Gentry appealed to the Ohio First District Court of Appeals which
affirmed the convictions and sentence. State v. Gentry, Nos. C-160184 and C-160222 (unreported;
copy at State Court Record, ECF No. 8, Ex. 18), appellate jurisdiction declined, 150 Ohio St. 3d
1432. Gentry filed an Application to Reopen his appeal under Ohio R. App. P. 26(B), but did not
appeal to the Supreme Court of Ohio from its denial. On October 28, 2016, Gentry also filed a
petition for post-conviction relief which was never ruled on by the Common Pleas Court and thus
may be presumed to have been denied.
Gentry filed his Petition for Writ of Habeas Corpus in this Court on May 8, 2018, pleading
the following grounds for relief:
Ground One:
Supporting Facts: There was other opioids in the victims system
which stated on the toxicology reports contributed to death along
with the health issues which victim was already very ill. Since sadly
I was the first charged with involuntary manslaughter in Hamilton
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county this was handle[d] wrong, poorly & they wanted to presence
[sic] to the community with the rise of drugs epidemic courts knew
they charged me wrong and that’s why I was told with 2 separate
indictments I would get 14 years for the drugs so just plea to
involuntary manslaughter which under duress they threatened the
wellbeing of my baby’s mom to release her from jailed for my plea.
I more so should’ve been charged with lesser crimes. Being after the
fact newspaper magazine wrote and stated how I got 4 to 5 years
more than anyone else sentenced in Hamilton County after me.
Ground Two: [No second Ground for Relief is pleaded.]
Ground Three:
Supporting Facts: Well due to the fact police officers of Renu
coerced me into talking to them without reading or advising me of
my rights. Which they use that evidence to indictment. Furthermore
they overcharged me on the drugs found, also due to circumstances
of victims prior drugs uses & collapses with history of injection into
picc-line, toxicology reports also indicated higher levels of
morphine and oxycodone which contributed to cause of death. Also
coroners office article submitted where health issues Nov 2017
suggested/stated the same health issues in this matter couldn’t be
ruled as an overdose with these underlining definicies [sic]
involuntary manslaughter doesn’t fit as charged but think lesser
charged offense should’ve been required as neglent [sic] but not
murder.
(Petition, ECF No. 1, PageID 6, 9.)
In his Supplemental Memorandum in support of the Petition, he recites four Propositions
of Law on which he believes he deserves relief. The first seems to claim that he is entitled to the
same treatment as Thomas Kosto who was similarly charged, but part of whose conviction was
vacated on lack of proof the drugs Kosto sold to the victim, Chad Baker, caused Baker’s death
(ECF No. 4, PageID 41). The second proposition asserts the police violated his Miranda rights.
Id. at PageID 42. The third asserts seizure of evidence in violation of the Fourth Amendment. Id.
The fourth is a vague assertion about the chain of custody of the drugs seized. Id. at PageID 43.
In his Reply to the Return of Writ, Gentry further explains his chain of custody argument:

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the deceased victim was found by his sisters who gave the heroin found on his person to a brotherin-law who took it so several different police departments, which broke the chain of custody (ECF
No. 10, PageID 203). In connection with this chain of custody argument, he claims he received
ineffective assistance of trial counsel and there was insufficient evidence to support a conviction
beyond a reasonable doubt. Id. at PageID 204.
In support of his second proposition of law, Petitioner again cites the Kosto case and argues
that Petitioner was not solely liable for the victim’s death and Kosto received a light sentence. Id.

Analysis

As indicated above, Gentry pleaded guilty to some of the charges against him in return for
dismissal of the remaining charges. On direct appeal he claimed that his guilty plea was not made
knowingly, intelligently, and voluntarily. The First District found the plea was proper, holding as
follows:
In his first assignment of error, Gentry claims that his guilty pleas
were not made knowingly, intelligently, and voluntarily for a variety
of reasons. Under Crim.R. 11(C), before accepting a guilty plea, the
trial court must address the defendant personally and, as relevant to
this appeal, make sure the defendant understands the consequences
of his guilty pleas and the maximum penalties involved. See
Crim.R. 11(C)(2)(a). A review of the record demonstrates that
Gentry understood the consequences of his guilty pleas. The court
engaged in an extensive Crim.R. 11 colloquy with Gentry, during
which he acknowledged that he understood the facts and charges
against him, the maximum penalties for the offenses, that his
sentences could be made consecutive, that involuntary manslaughter
was not a community control sanction eligible offense, that the
sentence would include a mandatory minimum term, and the rights
he was forfeiting by pleading guilty, including the rights to a jury
trial, to confront witnesses, and to subpoena witnesses. He stated
that he had reviewed the plea form with his attorney, he had signed
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it, the facts read by the prosecutor were true and accurate, he had no
remaining questions for his attorney, and he had received no threats
or promises in exchange for pleading guilty.
Gentry first argues that his pleas were involuntary because the court
failed to notify him that by pleading guilty he would waive his right
to appeal the denial of his motion to suppress. However, the court
is not required to provide that specific notification. State v.
Chichester, 1st Dist. Hamilton No. C-050381, 2006-0hio-4030, ¶
11; see Crim.R. 11(C)(2)(c). Next, he contends that the evidence
contains inconsistencies, and asserts that he did not cause the
victim's death and counsel should have obtained an expert witness
to testify on his behalf at trial. However, because a guilty plea is a
complete admission of guilt, a defendant who voluntarily enters a
guilty plea while represented by competent counsel waives the right
to appeal all nonjurisdictional issues arising at prior stages of the
proceedings. State v. Calloway, 1st Dist. Hamilton No. C-040066,
2004-0hio-5613, '¶ 21; see Ross v. Court, 30 Ohio St.2d 323, 323324, 285 N.E.2d 25 (1972). Further, much of what Gentry
challenges is based on information outside of the record, which we
cannot consider. See State v. Ishmail, 54 Ohio St.2d 402, 405-406,
377 N.E.2d 500 (1978), paragraph one of the syllabus.
Upon review of the record before us, we determine it contains ample
evidence that Gentry's pleas were voluntarily, knowingly, and
intelligently made. Thus, we overrule his first assignment of error.
(State v. Gentry, State Court Record, ECF No. 7, PageID 121-22.)
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, 100
(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);
Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 U.S.C. §
2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceedings.
A plea of guilty or no contest is valid if, but only if, it is entered voluntarily and
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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); Abdus-Samad v. Bell, 420 F.3d
614, 631 (6th Cir. 2005); King v. Dutton, 17 F.3d 151 (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). The voluntariness of a guilty or no contest plea is determined in
light of all relevant circumstances surrounding the plea. Brady, 397 U.S. at 749. If a prosecutor’s
promise is illusory, then a plea is involuntary and unknowing. United States v. Randolph, 230
F.3d 243, 250–51 (6th Cir. 2000). However, where a defendant is “fully aware of the likely
consequences” of a plea, it is not unfair to expect him to live with those consequences. Mabry v.
Johnson, 467 U.S. 504, 511 (1984). A plea-proceeding transcript which suggests that a guilty or
no contest plea was made voluntarily and knowingly creates a “heavy burden” for a petitioner
seeking to overturn his plea. Garcia v. Johnson, 991 F.2d 324, 326–28 (6th Cir. 1993). Where the
transcript shows that the guilty or no contest plea was voluntary and intelligent, a presumption of
correctness attaches to the state court findings of fact and to the judgment itself. Id. at 326–27.
By entering a plea of guilty, the accused is not simply stating that he did the discrete acts
described in the indictment; he is admitting guilt of a substantive crime. United States v. Broce,
488 U.S. 563, 570 (1989); McCarthy v. United States, 394 U.S. 459, 466 (1969).
A valid, unconditional guilty or no contest plea waives all “constitutional violations
occurring prior to a plea of guilty once the defendant enters his plea,” including a challenge to the
evidence supporting a conviction and any pre-plea constitutional violations, unless expressly
preserved in a plea agreement or at a plea hearing. United States v. Lalonde, 509 F.3d 750, 757

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(6th Cir. 2007); see also Tollett v. Henderson, 411 U.S. 258, 267 (1973).
A guilty or no contest plea renders irrelevant those constitutional violations not logically
inconsistent with the valid establishment of factual guilt. Menna v. New York, 423 U.S. 61 (1975).
“[A] voluntary and unconditional guilty plea ‘bars any subsequent non-jurisdictional attack on the
conviction.’” United States v. Corp, 668 F.3d 379, 384 (6th Cir. 2012), citing United States v.
Martin, 526 F.3d 926, 932 (2008), citing United States v. Pickett, 941 F.2d 411, 416 (6th Cir. 1991).
After entry of an unconditional guilty plea, the defendant may challenge only the court’s
jurisdiction and the voluntary and intelligent nature of the plea itself. United States v. Ferguson,
669 F.3d 756, 763 (6th Cir. 2012), citing United States v, Kirksey, 118 F.3d 1113, 1115 (6th Cir.
1997). “A guilty plea constitutes a break in the chain of events” leading up to it. Tollett v.
Henderson, 411 U.S. 258, 267 (1973). Federal habeas corpus review of claims raised by a
petitioner who has entered a guilty plea is limited to “the nature of the advice and the voluntariness
of the plea, not the existence as such of an antecedent constitutional infirmity.” Tollett, 411 U.S.
at 266. A guilty plea bars a defendant from raising in federal habeas corpus such claims as the
defendant’s right to trial and the right to test the state’s case against him. McMann v. Richardson,
397 U.S. 759, 774 (1970); McCarthy v. United States, 394 U.S. 459, 466 (1969).
The factual findings of a state court that a plea was proper generally are generally presumed
to be correct. Dunn v. Simmons, 877 F.2d 1275 (6th Cir. 1989), overruled on other grounds by
Parke v. Raley, 506 U.S. 20 (1992). Whether a guilty or no contest plea is or is not voluntary is a
mixed question of fact and law, but state court historical factual findings underlying the
determination are entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Parke v.
Raley, 506 U.S. 20 (1992).
Upon review of the record here, the Magistrate Judge concludes that the First District’s

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finding that Gentry’s guilty plea was knowing, intelligent, and voluntary is neither an objectively
unreasonable application of the relevant Supreme Court precedent nor an unreasonable
determination of the facts on the basis of the evidence presented.
Several consequences flow from the conclusion that Gentry’s guilty plea was knowing,
intelligent, and voluntary.
First of all, Gentry’s claims of Miranda violations become irrelevant. Police violations of
Miranda v. Arizona, 384 U.S. 436 (1966), prevent the admission in evidence of any statements
taken as a result. But here there was no evidence admitted because Gentry waived his right to a
trial. No evidence was necessary to convict him because he admitted he was guilty, pursuant to a
counseled knowing, intelligent, and voluntary guilty plea.
Second, any difficulties with the chain of custody are irrelevant for the same reason. If
Gentry had insisted on a trial, the State would have had to prove a proper chain of custody.1 But
Gentry waived his right to a trial.
Third, any possible Fourth Amendment violations in seizing evidence also are irrelevant
for the same reason. Just as the Fifth Amendment operates to exclude statements taken in violation
of Miranda, the Constitution forbids admission of evidence seized in violation of the Fourth
Amendment. Mapp v. Ohio, 367 U.S. 643 (1961). But a valid guilty plea such as Gentry entered
waives any antecedent Fourth Amendment violations.
The other arguments Gentry makes relate to his comparing his case with that of Thomas
Kosto. Gentry appears to be arguing that the evidence that he caused the victim’s death does not
measure up to the standard set in the Kosto case and in any event he was punished more harshly
than Kosto. These might be understood as an argument that there was insufficient evidence to

1

Chain of custody is a requirement of state evidence law, not the United States Constitution.

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convict and that the amount of punishment violates the Equal protection Clause or the Cruel and
Unusual Punishment Clause.
Thomas Kosto was charged with involuntary manslaughter of Chad Baker, corrupting him
with drugs, tampering with evidence, and possession of heroin. State v. Kosto, 2018-Ohio-1925
(5th Dist. May 14, 2018), appellate jurisdiction declined, 153 Ohio St.3d 1469 (2018). Kosto was
convicted on all four counts and appealed, arguing in part that the jury should have been instructed
in accordance with Burrage v. United States, 571 U.S. 204 (2014). In Burrage the Supreme Court
was interpreting a penalty enhancement statute, 21 U.S.C. § 841(b)(1)(C), which provides a
mandatory minimum twenty-year sentence where death “results from” unlawful distribution of a
controlled substance. The Court interpreted “results from” as requiring what is known in the law
as “but for” causation. That is the government must prove that the death would not have occurred
but for the use of the illegally distributed drug.
In Kosto, the Ohio Fifth District Court of Appeals was interpreting Ohio Revised Code §
2903.04(A), which provides: "No person shall cause the death of another or the unlawful
termination of another's pregnancy as a proximate result of the offender's committing or attempting
to commit a felony." In Kosto’s case, the predicate felony was corrupting another with drugs.
Recognizing that it was interpreting a different statute from the one at issue in Burrage, the Fifth
District nevertheless found the rationale of Burrage applicable. When it applied that rationale, it
concluded that the evidence did not support a finding that the heroin Kosto sold Baker was the
“but for” cause of Baker’s death. Instead, the medical examiner noted the presence of cocaine in
Baker’s body, which Kosto had not supplied, and testified, “[t]here’s no way to tell for sure if he
would have died of only heroin.” Kosto at ¶ 21-22, citing Trial Transcript at 261.
From the way he argues this point, Gentry may believe that the State must prove that the

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sold drugs are the sole cause of death. But that is not what Burrage and Kosto mean. Instead, they
hold the government must prove that the victim would not have died without adding the sold drug
into whatever the victim’s medical condition already was. That is, the victim would have survived
“but for” the injection of the heroin, fentanyl, whatever illicit drug. Thus, showing there were
other contributing causes – other drugs, a bad heart, etc. – does not exonerate the drug dealer whose
buyer dies.
As Respondent points out, however, all of this reference to Burrage and Kosto is irrelevant
because Gentry admitted, by pleading guilty, that he caused the death of his buyer. If the case had
proceeded to trial and assuming the First District would have followed Kosto, then the State would
have had to prove the drugs Gentry sold were the but for cause of his buyer’s death. But by
pleading guilty knowingly, intelligently, and voluntarily, Gentry waive his right to force the State
to prove that fact.
Finally, Gentry complains that his sentence is somehow disproportionate to the sentences
received by others for the same offense. Of course, Kosto received no sentence for manslaughter
because the Fifth District vacated that conviction.
The Eighth Amendment’s Cruel and Unusual Punishment Clause includes a requirement
that punishment be proportional to the crime.
The Eighth Amendment proportionality principle also applies to
noncapital sentences. In Rummel v. Estelle, 445 U.S. 263, 100 S.Ct.
1133, 63 L.Ed.2d 382 (1980), we acknowledged the existence of the
proportionality rule for both capital and noncapital cases, id., at 271274, and n. 11, but we refused to strike down a sentence of life
imprisonment, with possibility of parole, for recidivism based on
three underlying felonies. In Hutto v. Davis, 454 U.S. 370, 374, 102
S.Ct. 703, 70 L.Ed.2d 556, and n. 3 (1982), we recognized the
possibility of proportionality review but held it inapplicable to a 40year prison sentence for possession with intent to distribute nine
ounces of marijuana. Our most recent decision discussing the
subject is Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d
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637 (1983). There we held that a sentence of life imprisonment
without possibility of parole violated the Eighth Amendment
because it was "grossly disproportionate" to the crime of recidivism
based on seven underlying nonviolent felonies. The dissent in Solem
disagreed with the Court's application of the proportionality
principle but observed that in extreme cases it could apply to
invalidate a punishment for a term of years. Id., at 280, n. 3. See also
Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 2570, 57 L.Ed.2d
522 (1978) (dicta); Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct.
1401, 1410, 51 L.Ed. 2d 711 (1977) (dicta).
Harmelin v. Michigan, 501 U.S. 957, 997-998 (1991)(some parallel citations omitted). The Sixth
Circuit “adheres to the ‘narrow proportionality principle’ for evaluating Eighth Amendment claims
articulated in Harmelin.” United States v. Young, 847 F.3d 328 (6th Cir. 2017), quoting United
States v. Graham, 622 F.3d 445, 452 (6th Cir. 2010); United States v. Hill, 30 F.3d 48, 50-51 (6th
Cir. 1994). “One governing legal principle emerges as ‘clearly established’ under § 2254(d)(1):
A gross disproportionality principle is applicable to sentences for terms of years.” Lockyer v.
Andrade, 538 U.S. 63, 72 (2003).
Applying that principle to Gentry’s case, the Court cannot say his punishment is
disproportional to the offense he committed. He received ten years imprisonment for taking the
life of another human being who would not have died but for injecting the heroin Gentry sold him.
The exact same conduct if charged in federal court and judged under the Burrage standard would
have resulted in a mandatory minimum sentence of twenty years imprisonment, or double what
was imposed on Gentry. His Eighth Amendment claim is therefore without merit.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with
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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.

June 5, 2019.
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 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 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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