Howard v. Warden, Pickaway Correctional Institution

Filing 16

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a certificate of appealab ility and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 9/8/2020. Signed by Magistrate Judge Michael R. Merz on 8/25/2020. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:19-cv-00274-MWM-MRM Doc #: 16 Filed: 08/25/20 Page: 1 of 13 PAGEID #: 290

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
MICHAEL J. HOWARD,
Petitioner,

:

- vs -

Case No. 1:19-cv-274
District Judge Matthew W. McFarland
Magistrate Judge Michael R. Merz

WARDEN,
Pickaway Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Michael Howard under 28 U.S.C. §
2254, is before the Court for decision on the Petition (ECF No. 3), the State Court Record (ECF
No. 8), the Return of Writ (ECF No. 9), and the Petitioner’s Reply (ECF No. 14).
Although the case was assigned on filing to District Judge Susan Dlott, it was transferred
to District Judge Matthew McFarland upon his assuming office. The Magistrate Judge reference
of the case was recently transferred to the undersigned to help balance the Magistrate Judge
workload in the District. Final decision of the case remains with Judge McFarland.

Litigation History

Howard was indicted on July 16, 2015, on one count of trafficking heroin (Count 1); one
count of trafficking cocaine, (Count 2); one count of possession of heroin (Count 3), and one count of

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possession of cocaine (Count 4). After denial of his motion to suppress, Howard pleaded guilty on
January 6, 2016, to counts three and four; sentencing was set for February 17, 2016. Howard was
released on bond pending sentencing, but later tested positive for ingestion of marijuana and fled to
Nevada where he was apprehended. Upon return to Ohio and represented by new counsel, he moved
to withdraw his guilty plea. The trial judge denied the motion and sentenced Howard to nine and onehalf years imprisonment.
Howard appealed to the Fourth District Court of Appeals, raising three assignments of error,
to wit, that the trial judge had abused his discretion in denying withdrawal of the guilty plea, imposing
the maximum sentence, and denying the motion to suppress. However, the trial court was affirmed.
State v. Howard, 2017-Ohio-9392 (Ohio App. 4th Dist. Dec. 28, 2017), appellate jurisdiction declined,
152 Ohio St. 3d 1481 (2018).
Howard then filed his Petition in this Court, pleading the following grounds for relief:

Ground One: The trial court failed to give proper consideration and
abused its discretion in denying Appellant’s motion to withdraw his
guilty plea.
Supporting Facts: In this instant case the petitioner submitted his
Motion to Withdraw Guilty plea prior to sentencing. Which pursuant
to the Ohio Supreme Court and the United States courts the
petitioner should have been allowed to withdraw his plea. The
petitioner testified that he was coerced to pleading guilty to the
charges and had no option but plea guilty. Moreso the petitioner was
claiming that the prior trial counsel was ineffective. There are
factors that the trial court was to consider in weighing in the
consideration of the petitioners presentence withdraw guilty plea. If
the trial court would have properly considered those factors that trial
court would have freely and liberally granted said motion.
Ground Two: The trial court abused its discretion by sentencing
Appellant to the maximum time allowed by law.
Supporting Facts: Petitioner’s sentence is clearly contrary to
established law. The trial court abused its discretion by not
following the precedents set forth by the state & federal rulings.

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Ground Three: The trial court abused its discretion in overruling
Appellant’s motion to suppress.
Supporting Facts: The petitioner submits that the trial court clearly
miss-applied well established federal law/precedent. The
investigatory stop of the petitioner was not supported by probable
cause and was unreasonable. This was a clear violation of the
petitioner’s Fourth & Fourteenth Amendment rights.
(Petition, ECF No. 3, PageID 44, 46-47).

Analysis

Standard of Review

Howard has pleaded each of his Grounds for Relief as involving an “abuse of discretion”
by the trial judge. This Court is not authorized to review state convictions on that basis because a
state court judge does not violate the United States Constitution by abusing his or her discretion.
Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995).
Nevertheless as a pro se litigant Howard is entitled to a liberal construction of his pleadings.
2d 485 (6th Cir. 1990). Haines v. Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 292,
295 (6th Cir. 2001). To achieve that end, the Magistrate Judge will read the Petition as directly
asserting violations of the Constitution. For example, the Magistrate Judge reads Ground One as
claiming the state courts denied Howard due process of law by not permitting withdrawal of the
guilty plea.

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Ground One: Withdrawal of Guilty Plea

There is no constitutional right to withdraw a guilty plea. Although both the Ohio and
Federal Rules of Criminal Procedure provide for a motion to withdraw a guilty plea prior to
sentencing, neither of those rules is enforcing a constitutional requirement.
However there is a constitutional right not to be convicted on a guilty plea unless that plea is
knowingly, intelligently, and voluntarily made. 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).
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.
The Fourth District Court of Appeals considered whether Howard’s plea was constitutional
or not when deciding the First Assignment of Error. It held:
[*P3] On January 6, 2016, appellant agreed to plead guilty to
possession of heroin (a second-degree felony) and possession of
cocaine (a fourth-degree felony), both in violation of R.C.

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2925.11(A). At the change of plea hearing, the trial court initially
noted:
The record should further reflect that it's a negotiated plea,
pursuant to Section 2953.08(D) and Criminal Rule 11(F),
that as long as [appellant] abides by his conditions of bond
when he returns here for sentencing February 17 * * * he'll
receive a four year mandatory prison term [for the
possession of heroin offense], and on the [possession of
cocaine offense], an 18 month prison—non-mandatory
prison term, for a total of five—five and a half years. If he
fails to abide by his conditions of bond he'll receive a nine
and one half year prison term.
Both defense counsel and appellant concurred that the court
accurately recited their understanding of the agreement.
[*P4] The trial court asked appellant if he understood that "by
proceeding in this fashion, * * * you're waiving your right to
appeal[.]" Appellant indicated that he understood. The court
observed that appellant had signed a document entitled, "Waiver,"
and questioned appellant whether he signed the Waiver. Appellant
responded affirmatively. The document indicates that the court
advised appellant of the charges against him, the penalty provided
by law, his rights under the constitution, including the right to a jury
trial, the right to confront witnesses, the right to compulsory process,
and the right to require the state to prove his guilt beyond a
reasonable doubt. The document additionally recites that "[n]o
promises, threats or inducements have been made to me by anyone
to secure my plea of guilty."
[*P5] In addition to asking appellant about the written form, the
trial court verbally questioned appellant whether he understood that
pleading guilty waives his right to a jury trial, his right to confront
witnesses, his right to compulsory process, and his right to require
the state to prove his guilt beyond a reasonable doubt. Appellant
responded that he understood and further stated that he understood
that he could not be made to testify against himself.
[*P6] The trial court next reviewed the maximum penalties and
informed appellant that a fourth-degree felony carries a maximum
prison term of eighteen months and a $5,000 maximum fine, and
that a second-degree felony carries a maximum prison term of eight
years and a $15,000 maximum fine. Appellant indicated that he
understood the maximum penalties. Appellant also signed two
documents entitled, "Maximum Penalty." One document outlined
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the maximum penalty for appellant's possession of cocaine offense,
and the other set forth the maximum penalty for appellant's
possession of heroin offense.
[*P7] After the trial court explained post-release control, the court
asked appellant if he was "satisfied with the efforts of [his] lawyer."
Appellant answered, "Yes." The court asked appellant: "Other than
what's been stated on the record here today, has anybody made any
additional promises, threats, or inducements in order to get you to
change your plea to guilty?" Appellant responded, "No."
[*P8] The trial court next asked appellant, "how do you plea?"
Appellant answered, "No contest." Defense counsel interjected,
"Guilty." The trial court stated, "No, that won't get it." Appellant
then stated, "No, guilty. Guilty." The court again asked him his plea,
and appellant stated, "Guilty."
[*P9] The trial court subsequently accepted appellant's guilty plea
and scheduled the sentencing hearing for February 17, 2016.
[*P10] However, prior to the sentencing hearing, appellant took a
drug test, tested positive for THC and fled the jurisdiction. Appellant
later was apprehended in the State of Nevada.
[*P11] On June 23, 2016, appellant, through new counsel, filed a
motion to withdraw his guilty plea. He claimed that when he entered
his guilty plea, "he was in distress * * *, acted out of fear and panic,
was confused in his thought process, and prematurely entered a
guilty plea." Appellant contended that "his judgement was impaired
when he entered his guilty plea [due] to emotions of fear, panic, and
confusion." He asserted that "he did not have any other choice but
to accept a plea deal in this case, despite significant misgivings
about accepting the same." He thus argued that his plea was not
knowing and voluntary.
[*P12] On June 23, 2016, the trial court held the sentencing
hearing. The court noted that appellant did not appear as scheduled
for the February 17, 2016 sentencing hearing. The court pointed out
that appellant appeared late, tested positive for THC, and fled the
jurisdiction.
[*P13] Before the trial court proceeded with the sentencing
hearing, defense counsel addressed appellant's motion to withdraw
his guilty plea. Appellant's counsel asserted that appellant will
testify that

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he was basically told he had no option but to plea, that he
was scared into this. He was confused, and therefore, that's
why he did. * * * He's explained to me the full background
of what happened. So he feels as though there are many
legitimate grounds to grant a withdraw[al] of his plea based
on his prior interactions with his previous counsel.
[*P14] Appellant took the stand and testified that he tried to plead
"no contest," but the court would not allow it. Appellant spoke with
his counsel, and counsel informed him that he has "to enter a guilty
plea. That was part of the deal." Appellant stated that he believed
that he should be permitted to withdraw his plea because his
previous defense counsel pressured him to accept the state's plea
offer. Appellant claimed that his previous counsel stated:
"This is the best deal. I've seen people" * * * get more for
less. Take this deal. You know, if you want to see your
daughter, you want to get [***7] out, take this deal. And I
was just like, what, I couldn't believe it like the amount of
evidence that was—that was being held against me or
whatever and by me never being in prison, never, you
know, I just couldn't understand it. He was like, "Well, take
it or you're going to get eight years or something."
[**115] Appellant stated that he "was scared like shit" and did not
believe that he really had a choice.
[*P15] The state cross-examined appellant and asked him whether
he wished to withdraw his plea because he believes "the sentence
[he] agreed to was too harsh." Appellant responded, "Not
necessar[il]y too harsh[;] it was just I was coerced into believing that
I have no other option."
[*P16] After consideration, the trial court overruled appellant's
motion to withdraw his guilty plea and found that appellant had
entered his guilty plea in a knowing, intelligent, and voluntary
manner.
Howard, 2017-Ohio-9392.
Recounting the factors Ohio courts consider on motions to withdraw pleas, the Fourth
District noted that Howard claimed, inter alia,
(1)the state will not suffer prejudice if appellant is allowed to withdraw his
plea (2) appellant's counsel was deficient because appellant was coerced
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and forced to take a plea, (3) the Crim.R. 11 hearing was sufficient, . . . (7)
the reason for the motion was that appellant's trial counsel coerced him into
accepting the plea, (8) it is uncertain whether appellant fully understood the
nature of the charges and the sentence, and "he was confused by what plea
he was * * * allowed to enter," and (9) "Appellant had defenses to the
charges against him as this was a constructive possession case and
Appellant only admitted to knowledge of the marijuana in the vehicle."
Id. at ¶ 25. It noted that Howard’s testimony at the withdrawal hearing was directly contrary to
his testimony at the plea colloquy that he was not being coerced and was satisfied with his
attorney’s performance. Id. at ¶¶ 27-31. While Howard claimed he did not fully understand the
charges,
Appellant signed a written document stating that the court had
advised him of the nature of the charges and the maximum penalties.
Appellant signed additional documents that specifically set forth the
maximum penalties applicable to each offense. At the plea hearing,
the court asked appellant if he understood the maximum penalties
the court could impose, and appellant stated that he understood.
Id. at ¶ 40.
Considering the totality of the circumstances, the Fourth District overruled Howard’s First
Assignment of Error, concluding:
[T]his appears to be "a classic change of heart case." [citations
omitted] We again point out that appellant did not seek to withdraw
his guilty plea—or claim that he was confused whether he could
enter a no-contest plea—before the originally scheduled February
17, 2016 sentencing date. Instead, appellant did not file his
withdrawal motion until six months after the change of plea hearing.
In the interim, appellant violated the conditions of his bond and fled
the jurisdiction. Appellant filed his withdrawal motion immediately
before the rescheduled sentencing hearing. These factors strongly
suggest that appellant's plea withdrawal motion was a last-ditch
attempt to avoid the harsher prison sentence he faced for violating
the conditions of his bond.
Id. at ¶ 44.
When a state court decides on the merits a federal constitutional claim later presented to a

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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, 69394 (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.
The Magistrate Judge concludes the Fourth District’s decision on the merits of the guilty
plea claim is not an objectively unreasonable application of clearly established Supreme Court
precedent. 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.
Howard’s claim of coercion is especially unpersuasive. He claims he had no choice but to
accept the plea. Of course he had a choice: he could have insisted on going to trial on all the
indicted charges, the trafficking counts as well as the possession counts. That would not have been
a good choice because he would have faced more severe penalties for trafficking than possession
if convicted. As a defendant in a drug case who had lost his motion to suppress, Howard apparently
did not have any really wonderful choices, but he does not suggest any off-record coercion applied
to him by anyone. A defendant in those circumstances, offered a plea agreement that his counsel

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recommends and an agreed sentence, faces hard choices, but that does not amount to
unconstitutional coercion.
The Fourth District’s decision on the guilty plea is entitled to deference under 28 U.S.C.
2254(d)(1) and (2). On that basis, Howard’s First Ground for Relief should be dismissed with
prejudice.

Ground Two: Unlawful Sentence

In his Second Ground for Relief, Howard claims he was unconstitutionally sentenced to
the maximum sentence allowed by Ohio law.
In his Traverse, Howard does stipulate that the sentence imposed was within the maximum
allowed by Ohio law: eight years for heroin possession (Count Three) and eighteen months for
the cocaine possession (Count Four)(ECF No. 14, PageID 284).
Howard claims he never agreed to a sentence of nine and one-half years. Id. at PageID 285.
However, the Fourth District found as a matter of fact, based on the record made in the trial court,
that this sentence was agreed on if Howard was found to have violated the conditions of his bond
pending sentence. Howard, 2017-Ohio-9392 at ¶ 50. It is undisputed that he did so, consuming
marijuana and fleeing the State of Ohio.
Howard claims here that the agreed sentence cannot stand because it is the product of
judicial misconduct, to wit, participation in the plea negotiations by the trial judge (Traverse, ECF
No. 14, PageID 284). That claim is procedurally defaulted because it was not made in the Fourth
District Court of Appeals. Moreover, there is no flat prohibition on such participation under the
Due Process Clause.

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Howard next argues that the eight year sentence for heroin possession is not authorized by
law (Traverse, ECF No. 14, PageID 285). However, the Fourth District Court of Appeals held it
was an authorized sentence and on this question of Ohio law, the Court is bound by the state court’s
interpretation. Bradshaw v. Richey, 546 U.S. 74 (2005).
As the Second Ground for Relief, Howard concludes 1 by asking for an evidentiary hearing
on this claim. However, this Court is bound to decide the claim on the basis of the facts before the
state courts. Cullen v. Pinholster, 563 U.S. 170 (2011).
Therefore Howard’s second Ground for Relief should be dismissed on the merits.

Ground Three: Denial of the Motion to Suppress

In his Third Ground for Relief, construed without the “abuse of discretion” limitation,
Howard urges that his Fourth Amendment rights were violated by the seizure of evidence against
him and the trial court should have granted his motion to suppress.
Federal habeas corpus relief is not available to state prisoners who allege they were
convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that
question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district court
to determine whether state procedure in the abstract provides full and fair opportunity to litigate,
and Ohio procedure does. The district court must also decide if a Petitioner's presentation of claim
was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an
unanticipated and unforeseeable application of a procedural rule prevents state court consideration
of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in discussing the concept

1

Howard raised a merger of allied offenses argument in the Fourth District, but does not plead that claim in habeas.

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of a “full and fair opportunity,” held:

The mechanism provided by the State of Ohio for resolution of
Fourth Amendment claims is, in the abstract, clearly adequate. Ohio
R. Crim. P. 12 provides an adequate opportunity to raise Fourth
Amendment claims in the context of a pretrial motion to suppress,
as is evident in the petitioner’s use of that procedure. Further, a
criminal defendant, who has unsuccessfully sought to suppress
evidence, may take a direct appeal of that order, as of right, by filing
a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P.
5(A). These rules provide an adequate procedural mechanism for the
litigation of Fourth Amendment claims because the state affords a
litigant an opportunity to raise his claims in a fact-finding hearing
and on direct appeal of an unfavorable decision.
Id. at 526.
In this case Howard was fully able to avail himself of the Ohio motion to suppress process.
He received a hearing in the trial court and would have been able to test the result on appeal if he
had not pleaded guilty. Because the Ohio process was fully complied with here, Stone v. Powell
precludes federal habeas review of the merits of the motion to suppress.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it
is also recommended that Petitioner be denied a certificate of appealability and that the Court
certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be

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permitted to proceed in forma pauperis.

August 25, 2020.
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. 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.
[ps

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