Jones v. Warden, Lebanon Correctional Institution

Filing 49

ORDER granting 47 Motion for Certificate of Appealability on the issue of whether the guilty plea was not knowing, intelligent, or voluntarily due to the ineffective assistance of counsel, and DENIED on Petitioner's claims of ineffective assistance of appellate counsel. Signed by Judge Gregory L Frost on 10/22/14. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LAVELLE JONES,
Petitioner,

CASE NO. 2:13-CV -155
JUDGE GREGORY L. FROST
MAGISTRATE JUDGE KEMP

v.
WARDEN LCI,
Respondent.
OPINION and ORDER
On October 9, 2014, this Court entered final Judgment dismissing the instant petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Judgment, ECF No. 45. This matter now
is before the Court on Petitioner’s October 16, and 17, 2014, Notice of Appeal, and Motion for
Certificate of Appealability. ECF Nos. 46, 47. For the reasons that follow, Petitioner’s request
for a certificate of appealability is GRANTED on the issue of whether his guilty plea was not
knowing, intelligent, or voluntary due to the ineffective assistance of counsel, and DENIED on
Petitioner’s claims of ineffective assistance of appellate counsel.
Petitioner requests the Court to grant a certificate of appealability on the following issues,
repeated here verbatim:
1.

Whether counsel provided ineffective representation which
resulted in an involuntary and unknowing plea?
2. Whether counsel was ineffective on appeal for failing to argue
for merger of sentences?
3. Whether counsel was ineffective on appeal for failing to
challenge the RVO classification?
4. Whether counsel was ineffective on appeal for failing to
communicate with Jones?
Petitioner raised these issues in habeas corpus claims one, four, five, and six. On October
9, 2014, the Court dismissed all of these claims on the merits.
1

When a claim has been denied on the merits, a certificate of appealability may issue only
if the petitioner “has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983).
Slack v. McDaniel, 529 U.S. 473, 484 (2000). To make a substantial showing of the denial of a
constitutional right, a petitioner must show “that reasonable jurists could debate whether. . . the
petition should have been resolved in a different manner or that the issues presented were “
‘adequate to deserve encouragement to proceed further.’ ” Id. (citing Barefoot, 463 U.S. at 893,
and n. 4).
In habeas corpus claim one, Petitioner asserts that his attorney’s ineffective assistance
resulted in a guilty plea that was not knowing, intelligent or voluntary. Petitioner argued that his
attorney performed in a constitutionally ineffective manner because he failed to advise Petitioner
of the nature of the charges against him, the maximum potential penalty he faced, and the effect
of his guilty plea. Petition, ECF No. 1, PageID# 5. In dismissing this claim on the merits, this
Court deferred to the factual findings of the state appellate court, as required under 28 U.S.C. §
2254(e)(1), in concluding that Petitioner had failed to meet his burden of establishing that, but
for the constitutionally deficient performance of his attorney, he would not have entered the
guilty plea, but would have proceeded to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Petitioner failed to establish that his claim warranted relief under the deferential standard of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”).
That said, this Court is persuaded that reasonable jurists could debate whether the claim
warranted relief. Slack v. McDaniel, 529 U.S. at 484 (citation omitted). Petitioner’s request for
a certificate of appealability on this claim therefore is GRANTED.

2

In habeas corpus claim four, Petitioner asserts that he was denied effective assistance of
appellate counsel because his attorney failed to raise on appeal a claim that his sentences on
robbery and kidnapping should have been merged. Petition, ECF No. 1, PageID# 9. In habeas
corpus claim five, Petitioner asserts that he was denied effective assistance of appellate counsel
because his attorney failed to raise on appeal a claim that the trial court improperly sentenced
him as a repeat violent offender. Id., PageID# 11. In habeas corpus claim six, Petitioner asserts
that he was denied effective assistance of counsel because his attorney failed to notify him of the
decision of the state appellate court denying his appeal. Petition, ECF No. 1, Page ID# 12. This
Court dismissed claims four and five on the merits because the state appellate court held that his
arguments failed under state law. A federal habeas court defers to a state court’s interpretation
of its own laws. Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)(“[I]t is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions”); Pulley v.
Harris, 465 U.S. 37)(“federal court may not issue the writ on the basis of a perceived error of
state law”).

Thus, Petitioner could not establish either that his attorney performed in a

constitutionally unreasonable manner by failing to raise claims four and five on appeal, or that he
was prejudiced thereby, as required under the test set forth in Strickland v. Washington, 466 U.S.
668 (1984). The Court likewise dismissed claim six on the merits because the claims Petitioner
wanted to raise on appeal lacked merit. The Court is not persuaded that reasonable jurists would
debate whether Petitioner’s claims of ineffective assistance of appellate counsel should have
been resolved differently. Slack, 529 U.S. at 484. Petitioner’s request for a certificate of
appealability on his claims of ineffective assistance of appellate counsel therefore is DENIED.
The Court grants Petitioner’s request for a certificate of appealability on the following
issue, as it is phrased by Petitioner:

3

Whether counsel provided ineffective representation which
resulted in an involuntary and unknowing plea?

IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
United States District Judge

4