Hawkins v. Warden, Belmont Correctional Institution

Filing 21

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, it is also recommended that Petitioner be denied a cer tificate of appealability 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 12/15/2020. Signed by Magistrate Judge Michael R. Merz on 12/1/2020. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:20-cv-00014-DRC-MRM Doc #: 21 Filed: 12/01/20 Page: 1 of 13 PAGEID #: 390

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

:

- vs -

Case No. 1:20-cv-014
District Judge Douglas R. Cole
Magistrate Judge Michael R. Merz

WARDEN, Belmont
Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Jeffrey Hawkins under 28 U.S.C. §
2254, seeks relief from Petitioner’s convictions in the Hamilton County Court of Common Pleas.
The case is before the Court for decision on the merits on the Petition (ECF No. 4), the State Court
Record (ECF No. 10), the Return of Writ (ECF No. 11) and Petitioner’s Reply (ECF No. 19). The
Magistrate Judge reference in the case has recently been transferred to the undersigned to help
balance the Magistrate Judge workload in the District (ECF No. 20); ultimate decision of the case
remains with District Judge Cole.

Litigation History
On May 2, 2016, a Hamilton County, Ohio grand jury indicted Hawkins on one count of
aggravated murder in violation of Ohio Revised Code § 2903.01(A)(2) and one count of murder in
violation of Ohio Revised Code Ohio Revised Code § 2903.02(A); both counts carried firearm

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specifications (Indictment, State Court Record, ECF No. 10, Ex. 1). With the assistance of counsel,
Hawkins negotiated a plea agreement under which he was to plead guilty to one count of murder and
one count of felonious assault, each with a firearm specification. Id. at Ex. 6. The Plea Agreement
noted that it was pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), and contained an agreed

sentencing range of fifteen to twenty years. After considering a presentence investigation report,
the trial judge sentenced Hawkins to an aggregate twenty years imprisonment.
Hawkins appealed to the Ohio Court of Appeals for the First District which affirmed the
conviction and sentence. State v. Hawkins, 2018 Ohio App. LEXIS 3517 (1st Dist. Aug. 15, 2018),
appellate jurisdiction declined, 154 Ohio St. 3d 1432 (2018).
On October 29, 2018, Hawkins filed a motion to withdraw his guilty plea on the grounds
that it was not knowing, intelligent, and voluntary and based on ineffective assistance of trial
counsel. The trial judge denied the motion and Hawkins did not appeal.
Hawkins filed his Petition by placing it in the prison mail system November 15, 2019. He
pleads the following grounds for relief:
Ground One: Trial Court erred to Hawkins (sic) prejudice by
convicting him of multiple 3 year gun specifications attached to
involuntary manslaughter and felonious assault and ordering the two
gun specifications to run consecutive to each other in this Alford
Agreed plea, where it was not voluntarily, knowing or intelligently
made as to the multiple consecutive gun specifications, resulting in
a violation of petitioner (sic) Due Process right, as guaranteed by the
14th Amendment to the United States Constitution; and against
Article 1, Section 16 of the Ohio Constitution.
Ground Two: Trial Court erred to petitioner (sic) prejudice and
abused its discretion by not ruling on petitioner (sic) affidavit of
indigence, when it imposed $35,000.00 Non-Mandatory fines,
resulting in a violation of petitioner (sic) Due process right, as
guaranteed by the 14th Amendment to the United States
Constitution, and against Article 1 Section 16 of the Ohio
Constitution.

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Ground Three: Petitioner received ineffective assistance of counsel
and is prejudiced by trial counsel (sic) failure to file affidavit of
indigence, resulting in a violation of right to effective assistance of
counsel as guaranteed by the Sixth Amendment to the United States
Constitution, and Article 1, Section 10 of the Ohio Constitution.
Ground Four: Trial court erred to petitioner’s prejudice by
imposing an excessive consecutive prison term, resulting in a
violation of right from cruel and unusual punishment, the violation
is against the Eighth Amendment of the United States Constitution,
and Article 1 Section 9 of the Ohio Constitution.
Ground Five: Trial court erred by failing to replace petitioners (sic)
trial counsel, resulting in a violation of the right to effective
assistance of counsel, as guaranteed, by the Eighth Amendment, of
the United States Constitution, and Article 1 Section 10 of the Ohio
Constitution.
(Petition, ECF No. 4 PageID #66-67).

Analysis

Claims under the Ohio Constitution

Each of Petitioner’s Grounds for Relief contains a claim made under Article I, Section 9,
10, or 16 of the Ohio Constitution. Federal habeas corpus is available only to correct federal
constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463
U.S. 939 (1983). Therefore Petitioner’s claims under the Ohio Constitution should be dismissed
without prejudice for failure to state a claim upon which federal habeas corpus relief can be
granted.

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Ground One: Invalid Guilty Plea as to Firearm Specifications

In his First Ground for Relief, Hawkins asserts his guilty plea was not knowing, intelligent,
and voluntary insofar as his sentence to two consecutive three-year terms of imprisonment on the
firearm specifications.
The First District considered this claim on direct appeal and held as follows:
In his first assignment of error, Hawkins contends that the trial court
erred by convicting him of multiple firearm specifications, and in
ordering the sentences on those specifications to run consecutively
to each other, because they were allied offenses of similar import.
This assignment of error is not well taken.
This case involves an agreed sentence, which is not subject to
appellate review as long as it is authorized by law. State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶
16; State v. Williams, 1st Dist. Hamilton No. C-150320, 2016-Ohio376, ¶ 4. But when a sentence is imposed for multiple convictions
on offenses that are allied offenses of similar import, R.C.
2953.08(D)(1) does not bar appellate review of the sentence even
though it was jointly recommended by the parties and imposed by
the court. Underwood at paragraph one of the syllabus; Williams at
¶ 5. An exception to this rule is when the state and a defendant
stipulate in the plea agreement that the offenses were committed
with a separate animus, thus subjecting the defendant to more than
one conviction and sentence. State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, ¶ 20; Underwood at ¶ 29; Williams
at ¶ 5-7.
The record shows that the parties had stipulated that the two
underlying offenses, involuntary manslaughter and felonious
assault, were committed with a separate animus. A firearm
specification is a sentencing enhancement, not a separate criminal
offense. State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945
N.E.2d 498, ¶ 16; State v. Welninski, 6th Dist. Wood Nos. WD-16039 and WD-16-040, 2018-Ohio-778, ¶ 101. The firearm
specification is contingent upon the underlying felony conviction
and does not contain a positive prohibition of conduct. Ford at ¶ 16.
Therefore, if the underlying offenses were committed with a
separate animus, then the firearm specifications were also
committed with a separate animus.
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The trial court's statement at the sentencing hearing that the firearm
specifications would merge does not change the fact that the firearm
specifications were committed with a separate animus. Further,
former R.C. 2929.14(B)(1)(g) permitted the imposition of
consecutive sentences for the firearm specifications. See Welninski
at ¶ 101-102.
Hawkins also claims that his plea was not made knowingly,
intelligently, and voluntarily because he believed that the
specifications would be merged. A trial court must strictly comply
with the provisions of Crim.R. 11(C) related to the constitutional
rights a defendant waives by entering a guilty plea. State v. Ballard,
66 Ohio St.2d 473, 476-478, 423 N.E.2d 115 (1981); State v. Fields,
1st Dist. Hamilton No. C-090648, 2010-Ohio-4114, ¶ 8. It must
substantially comply with the provisions of the rule relating to other
notifications. State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474
(1990); Ballard at 475-476; Fields at ¶ 8.
Substantial compliance means that under the totality of the
circumstances the defendant subjectively understands the
implications of the plea and the rights he is waiving. Nero at 108. A
defendant who challenges his plea on the basis that it was not
knowingly, intelligently and voluntarily made must show that he
was prejudiced. "The test is whether the plea would otherwise have
been made." Nero at 108; Fields at ¶ 9.
The record shows that the trial court strictly complied with the
provisions of Crim.11(C) relating to Hawkins's constitutional rights
and substantially complied with the rule in all other respects. The
court conducted a meaningful dialogue to ensure that his plea was
made knowingly, intelligently, and voluntarily. See Fields at ¶ 10.
Hawkins agreed to a sentencing range of 15 to 20 years, and the
sentence imposed by the trial court was within that range. The trial
court's erroneous statement that the firearm specifications would
merge did not cause him prejudice. Hawkins has not demonstrated
that but for the erroneous statement, he would not have entered his
pleas. We, therefore, overrule his first assignment of error.
State v. Hawkins, 2018 Ohio App. LEXIS 3517.
Respondent defends this Ground for Relief on the merits, asserting the First District’s
findings of fact have not been shown to be clearly erroneous and its legal conclusions are neither
contrary to nor an objectively unreasonable application of Supreme Court precedent.

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In his Reply, Hawkins asserts “The trial judge himself stated that this case was one incident
and could only have, by law, one gun specification.” (ECF No. 19, PageID 380, citing Doc. No.
10, page 83 of 125, PageID 164). Petitioner’s citation is not to any transcript, but to his own pro
se purported quotation from the plea colloquy in his Memorandum in Support of Jurisdiction in
the Supreme Court of Ohio (ECF No. 10, Ex. 19, PageID 158 et seq.).
The actual transcript of the change of pleading hearing is found at State Court Record, ECF
No. 10, PageID 225, et seq. Asked to state the terms of the plea agreement, the prosecutor stated
that Count One would be amended to murder and Count Two to felonious assault. Id. at PageID
227. “[B]oth of them have three-year Gun Specs. The agreement is that the offenses were
committed with a separate animus.” Id. On the very next page Judge Dinkelacker confirmed that
the plea entry included the separate animus admission. Id. at PageID 228. Defense counsel and
Hawkins separately also agreed. Id. The judge then confirmed that both sides agreed there was a
separate animus for the two offenses. Id.
Upon inquiry from defense counsel, the judge made the statement Hawkins quotes that the
firearm specifications would be merged at sentencing because there was only one incident
involved. Id. at PageID 231-32. He then followed up by saying that the gun specifications to
Count One and Count Two would merge at sentencing, which Defendant said he understood. Id.
at PageID 233. However, when pronouncing sentence orally, the judge provided that the two
firearm specifications would run consecutive to each other: “Specification 2 to Count 2 is a threeyear firearm spec. That is to run consecutive to Count 1 as well as the three-year gun specification
on Count 1, so there is a total of 20 years the Ohio Department of Corrections.” (Transcript, ECF
No. 10, PageID 308). The final Judgment Entry of Conviction embodies this orally pronounced
sentence: eleven years for murder plus three years consecutive for the firearms specification to

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Count One plus three years for felonious assault plus three years for the firearm specification to
Count Two (eleven plus three plus three plus three equals twenty)(ECF No. 10, Ex. 12).
According to the First District, the trial judge misstated the law when he stated during the
plea colloquy that the two firearm specifications would merge at sentencing. But the court also
found this error did not prejudice Hawkins because he had not shown that he would not otherwise
have pleaded guilty. That amounts to a harmless error determination.
Hawkins argument is that “I don’t believe it is legal or just to sentence someone to two
crimes when they were originally indicted for one act.” That is the logic behind Ohio Revised
Code § 2941.25, Ohio’s allied offenses statute, as it has been interpreted by the Supreme Court of
Ohio. But here Count One was reduced from aggravated murder all the way down to involuntary
manslaughter with the penalty reduced from mandatory life in prison to a maximum of eleven
years imprisonment. To achieve a sentence that the prosecution thought was fair, it was necessary
to add a conviction on the felonious assault count and to get an agreed sentencing range of fifteen
to twenty years. The sentencing range was plainly an important part of the plea agreement and
Hawkins receive the benefit of that bargain, an aggregate sentence of twenty years.
Had the case gone to trial and Hawkins been convicted as charged, the court at sentencing
would, in all probability, have been obliged under Ohio Revised Code § 2941.25 to treat the killing
as one act and impose a sentence of life without parole plus three years on the merged firearm
specifications. To achieve an agreed sentencing range both sides thought was fair, it was necessary
to stipulate that the two offenses occurred with a separate animus as to each. Even if only one act
would have been found if the case was tried, it was not unlawful for the parties to stipulate to
separate animus and to allow that stipulated fact to control the outcome.
Constitutional error is harmless if the habeas court is satisfied it did not have a substantial

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and injurious effect or influence in determining the outcome. Brecht v. Abrahamson, 507 U.S. 619
(1993), adopting standard from Kotteakos v. United States, 328 U.S. 750 (1946). The First
District’s decision that the trial judge’s misstatement of the law during the plea colloquy did not
prejudice Hawkins is a reasonable application of Brecht. The First Ground for Relief should
therefore be dismissed.

Grounds Two and Three: Failure to Find Defendant Indigent

In his Second Ground for Relief, Hawkins claims the trial court violated his due process
rights when it imposed a fine of $35,000. In his Third Ground for Relief, he claims he received
ineffective assistance of trial counsel in violation of his Sixth Amendment rights when his trial
attorney did not timely file an affidavit of indigence.
Respondent argues these two claims are not cognizable in habeas corpus because Hawkins
is not in custody as a result of either of these asserted constitutional violations (Return, ECF No.
11, PageID 343, et seq.). Hawkins does not respond to this argument in his Reply (ECF No. 19,
PageID 381).
Respondent is correct that habeas corpus jurisdiction only extends to constitutional errors
which have resulted in petitioners’ being in custody. Maleng v. Cook, 490 U.S. 488 (1989).
Hawkins is not in custody on the fine portion of his sentence. Therefore Grounds Two and Three
should be dismissed without prejudice to their renewal if at some future time Hawkins is in custody
for failure to pay the fine.

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Ground Four: Excessive Punishment

In his Fourth Ground for Relief, Hawkins claims his twenty-year consecutive sentence
constitutes cruel and unusual punishment in violation of the Eighth Amendment.
Respondent asserts this claim is procedurally defaulted because it was not presented to the
First District as a constitutional claim (Return, ECF No. 11, PageID 352). Alternatively, the
Warden claims the First District’s decision is entitled to deference under 28 U.S.C. § 2254(d)(1).
Id. Hawkins replies that he had a record of thirty-five years of public service and this was not a
premeditated murder (Reply, ECF No. 19, PageID 382).
To preserve a federal constitutional claim for presentation in habeas corpus, the claim must
be "fairly presented" to the state courts in a way which provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by
Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.
1991).
There are occasions when a state court defendant will have made claims in the state courts
which, while not explicitly invoking the United States Constitution, in fact fairly place before the
state courts the substance, both facts and legal theory, of a claim or claims later made in habeas
corpus.
[T]he ways in which a state defendant may fairly present to the state
courts the constitutional nature of his claim, even without citing
chapter and verse of the Constitution, include (a) reliance on
pertinent federal cases employing constitutional analysis, (b)
reliance on state cases employing constitutional analysis in like
factual situations, (c) assertion of the claim in terms so particular as
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to call to mind a specific right protected by the Constitution, and (d)
allegation of a pattern of facts well within the mainstream of
constitutional litigation.
Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987); accord, Whiting v. Birt, 395 F.3d 602 (6th Cir.
2005); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
Examining Hawkins’ brief on appeal to the First District, the Magistrate Judge concludes
Hawkins did not fairly present an Eighth Amendment claim. His argument is entirely in terms of
the Ohio statutes governing imposition of consecutive sentences (Appellant’s Brief, State Court
Record, ECF No. 10, PageID 129-30). No mention is made of the Eighth Amendment or any
federal case law. The Ohio consecutive sentencing statutes, while intended in a very general way
to serve the same purpose as the Cruel and Unusual Punishment Clause of making punishment
proportional the offense, do not embody federal constitutional norms for deciding whether
consecutive sentences are justified.
In deciding the relevant Assignment of Error on direct appeal, the First District certainly
did not evince an understanding that it was deciding a federal constitutional claim. It held:
In his fourth assignment of error, Hawkins contends that the trial
court erred in imposing excessive consecutive prison terms. But
under R.C. 2953.08(D), we are precluded from reviewing whether
the sentences were excessive. See State v. Spurling, 1st Dist.
Hamilton No. C-060087, 2007-Ohio-858, ¶ 15.
We can review whether the proper findings were made justifying the
imposition of consecutive sentences. State v. Davis, 1st Dist.
Hamilton No. C-140351, 2015-Ohio-775, ¶ 4-9. The record shows
that the trial court made the proper findings to impose consecutive
sentences and incorporated them in the judgment entry. See State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
syllabus; State v. Thomas, 1st Dist. Hamilton No. C-140070, 2014Ohio-3833, ¶ 5-9. Therefore, we overrule Hawkins's fourth
assignment of error.
State v. Hawkins, 2019 Ohio App. LEXIS 3517. The Magistrate Judge concludes Hawkins

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procedurally defaulted on his Eighth Amendment claim by not fairly presenting it to the First
District as a federal constitutional claim.
Alternatively, the claim is without merit. Regarding proportionality of sentence to crime
in the Eighth Amendment context, the Supreme Court has held:
The Eighth Amendment proportionality principle also applies to
noncapital sentences. In Rummel v. Estelle, 445 U.S. 263, 63 L. Ed.
2d 382, 100 S. Ct. 1133 (1980), we acknowledged the existence of
the proportionality rule for both capital and noncapital cases, id., at
271-274, 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, 70
L. Ed. 2d 556, 102 S. Ct. 703, 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, 77 L. Ed. 2d 637, 103 S. Ct.
3001 (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, 57 L. Ed. 2d 522, 98 S. Ct. 2565
(1978) (dicta); Ingraham v. Wright, 430 U.S. 651, 667, 51 L. Ed. 2d
711, 97 S. Ct. 1401 (1977) (dicta).
Harmelin v. Michigan, 501 U.S. 957, 997-998 (1991). 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), citing 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).
A twenty-year sentence within a range agreed to by the offender is not simply not a
disproportionate sentence for an intentional killing. Ground Four should therefore be dismissed
with prejudice.

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Ground Five: Failure to Replace Appointed Counsel

In his Fifth Ground for Relief, Hawkins claims the trial court violated his right to effective
assistance of counsel when it refused to replace his appointed attorneys. Although Hawkins cites
the Eighth Amendment, the right to counsel is guaranteed by the Sixth Amendment.
Hawkins raised this claim as part of his Fifth Assignment of Error on direct appeal, but the
First District refused to reach it for decision because it involved matters outside the appellate
record. State v. Hawkins, 2019 Ohio App. LEXIS 3517 at *7.
Respondent asserts this Ground for Relief is procedurally defaulted because Hawkins never
properly raised it in a collateral attack on the judgment (Return, ECF No. 11, PageID 357).
Hawkins’ Reply addresses the merits of this claim, but says nothing about any presentation of it
after appeal (Reply, ECF No. 19, PageID 383).
Under Ohio law a claim that a conviction is unconstitutional that could not be presented on
the record on direct appeal must be presented in a petition for post-conviction relief, supported by
the evidence outside the appellate court record on which the defendant relies. A § 2953.21 petition
may be brought to raise constitutional questions which depend on material outside the record on
direct appeal. State v. Milanovich, 42 Ohio St. 2d 46 (1975); Saylor v. Overberg, 608 F.2d 670
(6th Cir. 1979); State v. Gibson, 69 Ohio App. 2d 91 (Cuyahoga Cty. 1980). Because the time
within which Hawkins could have filed a petition for post-conviction relief has now expired, he
has procedurally defaulted his Fifth Ground for Relief and it should be dismissed with prejudice.

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Conclusion

On the basis of the foregoing analysis, the Magistrate Judge respectfully recommends that
the Petition herein 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 permitted to proceed in forma pauperis.

December 1, 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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6. 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.

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