Beavers v. Franklin County Adult Probation et al

Filing 12

OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Kevin Beavers. Signed by Judge Algenon L. Marbley on 9/29/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEVIN BEAVERS,
CASE NO. 2:13-CV-00404

Petitioner,

JUDGE ALGENON L. MARBLEY
Magistrate Judge Elizabeth A. Deavers

V.

FRANKLIN COUNTY ADULT

PROBATION,
Respondent.
OPINION & ORDER

Petitioner, a state prisoner, has filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's
Answer, and the exhibits of the parties.

For the reasons that follow, this action is hereby

DISMISSED.

Facts and Procedural History
Petitioner challenges his convictions pursuant to his guilty plea in the Franklin County
Court of Common Pleas on one count of importuning and one count of disseminating matter

harmful to juveniles. On January 7,2011, the trial court imposed a term of two years community
control. See State v. Beavers, No. 1lAP-1064, 2012 WL 3291833 (Ohio App. 10th Dist. Aug.

14, 2012). Petitioner did not file an appeal. On September 13, 2011, he filed a motion to

withdraw his guilty plea, alleging that the criminal statute for disseminating matter harmful to

Juveniles, Ohio Revised Code ("O.R.C.") § 2907.31, is unconstitutionally void for vagueness.
On November 8,2011, the trial court denied the motion. On August 14,2012, the state appellate

court affirmed the judgment ofthe trial court. Id. On January 23,2013, the Ohio Supreme Court
dismissed the appeal. State v. Beavers, 134 Ohio St.3d 1419 (Ohio 2013).

On April 26, 2013, Petitioner filed the instant pro se habeas corpus petition pursuant to
28 U.S.C. § 2254, On May 1, 2014, Petitioner withdrew his unexhausted claim of the denial of

the effective assistance ofcounsel. Therefore, the sole claim remaining for this Court's review is
Petitioner's claim that he was convicted under an unconstitutional statute, and therefore should

have been permitted to withdraw his guilty plea. It is the position of the Respondent that
Petitioner has procedurally defaulted this claim, and alternatively, that it lacks merit.
State Law

Petitioner argues, inter alia, that he was denied due process because the state courts

improperly considered the timeliness of his motion to withdraw his guilty plea under Rule 32.1
of the Ohio Rulesof Criminal Procedure as a factor warranting dismissal of his motion. Petition
(ECF No. 1-1, PagelD# 22.) This issue presents a matter regarding the interpretation of Ohio

law, and does not provide a basis for federal habeas corpus relief. 28 U.S.C. § 2254(a). A
federal court may review a state prisoner's habeas petition only on the ground that the challenged
confinement violates the Constitution, laws or treaties of the United States, and not "on the basis

of a perceived error of state law." 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37,41 (1984);
see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[l]t is not the province of a federal
court to reexamine state-court determinations on state-law questions"). Therefore, a federal

habeas court can only consider whether the alleged error violated a federal constitutional right.

The state appellate court has already decided the issue, and this Court defers to a state's

interpretation ofits own laws. See Troiano v. Warden, Ross Corn Inst., No. 2:12-CV-940, 2015
WL 196405, at *10 (S.D. Ohio Jan. 15, 2015) (citations omitted). Similarly, to the extent that

Petitioner argues that the state court "abused its discretion" or improperly denied his Rule 32.1
motion to withdraw guilty plea under Ohio law, the claim does not provide Petitioner the relief

he seeks. See, e.g., Gibson v. Warden, Hocking Corr. Fac., No. l:10-cv-8,2011 WL 1429099, at
*5-6 (S.D. Ohio Feb. 23, 2011) (state court's alleged abuse ofdiscretion in denying motion to
withdraw guilty plea does not constitute a federal constitutional claim) (citing Dickey v. Warden,
Lebanon Corr. Inst., No. I:08cv819, 2010 WL 92510, at*8 (S.D. Ohio Jan. 6,2010)); Akemon v.
Brmsman,'Ho. C-1-06-166,2007 WL 2891012, at *12 (S.D. Ohio Sept. 28,2007) (same).
However, Petitioner also asserts that that his conviction must be set aside because the

statute under which he stands convicted is constitutionally invalid. This Court has jurisdiction to
consider this underlying federal claim. See Gibson, 2011 WL 1429099, at *6 (federal habeas
court may address underlying constitutional claims raised in a motion to withdraw guilty plea);
Guzman v. Houk, No. 2:04-CV-194, 2006 WL 1064052, at *18 (S.D. Ohio April 20, 2006)
(addressing merits of federal claim raised in motion to withdrawguilty plea).
Respondent nonetheless argues that Petitioner procedurally defaulted this claim because
he failed to raise it at the trial-court level, as required under State v. Awan, 22 Ohio St.Sd 120
(1986). Respondent also contends that Petitioner waived this argument by entering a plea of

guilty.
Procedural Default

In recognition of the equal obligation of the state courts to protect the constitutional rights

of criminal defendants, and in order to prevent needless friction between the state and federal

courts, a state criminal defendant with federal constitutional claims is required to present those

claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the

petitioner fails to do so, but the state still provides a remedy to pursue, his or her petition is
subject to dismissal for failure to exhaust state remedies. Id; Coleman v. Thompson, 501 U.S.
722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of aprocedural

default, the petitioner can no longerpresentthe relevant claimsto a state court, the petitioner also
waives the claims for purposes of federal habeas review unless he or she can demonstrate cause

for the procedural default and actual prejudice resulting from the alleged constitutional error.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v. Carrier,
All U.S. 478,485(1986).

In the Sixth Circuit, a court must undertake a four-part analysis to determine whether

procedural default is a bar to a habeas petitioner's claims. Maupin v. Smith, 785 F.2d 135, 138
(6th Cir. 1986); see also Scuba v. Brigano, 259 F. App'x 713, 718 (6th Cir. 2007) (following the

four-part analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth
Circuitrequires the district courts to engage in the following inquiry:
First, the court must determine that there is a state procedural rule

that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule. . . . Second, the court must decide
whether the state courts actually enforced the state procedural
sanction. . . . Third, the court must decide whether the state

procedural forfeiture is an adequate and independent state ground
on which the state can rely to foreclose review of a federal
constitutional claim.

Maupin, 785 F.2d at 138 (internal quotations omitted). Finally, if "the court determines that a

state procedural rule was not complied with and that the rule [has] an adequate and independent

state ground, then the petitioner" may still obtain review of his or her claims on the merits if the

petitioner establishes: (1) a substantial reason to excuse the default and (2) that he or she was
actually prejudiced by the alleged constitutional error. Id. "Cause" under this test "must be
something external to the petitioner, something that cannot fairly beattributed to him[;]... some
factor external to the defense [that] impeded [ ] efforts to comply with the State's procedural
rule." Coleman, 501 U.S. at 753. This "cause and prejudice" analysis also applies to failure to

raise or preserve issues for review atthe appellate level orfailure to appeal atall. Id. at750.

Nevertheless, "'[i]n appropriate cases' the principles of comity and finality that inform
the concepts of cause and prejudice 'must yield to the imperative of correcting a fundamentally
unjust incarceration.'" Murray, All U.S. at 495 (quoting Engle v. Isacc, 456 U.S. 107, 135
(1892)). Petitioners who fail to show cause and prejudice for procedural default may nonetheless
receive a review of their claims if they can demonstrate that a court's refusal to consider a claim
would result in a "fundamental miscarriage ofjustice." Coleman, 501 U.S. at 750; see also Lett

V. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001) (same). The fundamental miscarriage of justice
exception requires a showing that "in light of the new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298,
329(1995).

In State v. Awan, 22 Ohio St.3d at 120, to which Respondent refers, the Ohio Supreme
Court held that the failure to raise the issue of the constitutionality of a statute or its application

at the time of trial, if it is apparent at the time of trial, constitutes a waiver of the issue and it
therefore need not be heard for the first time on appeal. Id. at \2\. Here, however. Petitioner did

not attempt to raise his claim regarding the constitutionality of the statute of issue on direct

appeal. Instead, he raised the issue in a motion to withdraw his guilty plea. Further, the state

appellate court does not appear to have enforced the procedural rule referred to by the
Respondent.

Moreover, at least one other federal habeas court has declined to enforce a

procedural default rule under Awan, because the Supreme Court of Ohio has held that it is

discretionary. See Connell v. Andrews, No. 3:06-CV-2128, 2009 WL 544493, at *6 (N.D. Ohio

March 3, 2009) (citing In re M.D., 38 Ohio St.3d 149 (Ohio 1988)).' Because the Court

' But see Kronenberg v. Eppinger, No. 1:12CV3105,2014 WL 1681432, at *5 ^.D. Ohio April
17,2014) (questioning whether application ofAwan is discretionary for the Ohio courts of
appeals as well as the Ohio Supreme Court).

concludes that Petitioner waived his claim by entering a guilty plea, the Court declines to reach

the issue ofwhether

requires enforcement of a procedural default.
Entry of Guilty Plea

Respondent additionally argues that Petitioner has waived his claim by entry of his guilty
plea.

(EOF No. 7, PagelD# 56.) The Court agrees.

By pleading guilty, a defendant waives all non-jurisdictional defects in the proceedings.
United Slates v. Pickett, 941 F.2d 411, 416 (6th Cir. 1991). A "guilty plea represents a break in

the chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411
U.S. 258, 267 (1973). Therefore, "[w]hen a criminal defendant has solemnly admitted in open

court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional rights that occurred prior to the
entry of the guilty plea." Id.\ see also McMann v. Richardson, 397 U.S. 759, 768-69, 771
(1970); Campbell v. Marshall, 769 F.2d 314,318-19 (6th Cir. 1985).
"Notwithstanding this general rule, the Supreme Court has also held that a guilty plea
does not bar a constitutional challenge that 'goes to the very power of the State to bring the
defendant into court to answer the charge brought against him,' Blackledge v. Perry, 417 U.S.

21, 29 (1974), at least to the extent that such a challenges is unrelated to the question of factual
guilt established by virtue of the plea. . . ." Hann v. Caruso, No. 2:10-CV-10797, 2012 WL
2564818, at *10 (E.D. Mich. July 2, 2012) (citing Menna v. New York, 423 U.S. 61, 63 n.2

(1975)); see also Woodring v. McKee, No. l:09-cv-l 106, 2013 WL 1309641, at *7-8 (W.D.
Mich. Feb. 19, 2013) (noting that circuit courts have taken different positions on whether a
criminal defendant's challenge to the constitutionality of a statute may survive a guilty plea)

(citing United States v. De Vaughn, 694 F.3d 1141, 1150 n.5 (10th Cir. 2012) (internal citations

omitted). The United States Court of Appeals for the Sixth Circuit has held, "[a]lthough it is
well settled that a guilty plea does not waive the right of an accused to challenge the
constitutionality of the statute under which he is convicted, a defendant may not challenge the
statute where the facts admitted by the guilty plea render the statute's alleged unconstitutionality
moot as to the defendant." United States v. Skinner, 25 F.3d 1314, 1316 (6th Cir. 1994) (citing
Baxter v. Estelle, 614 F.2d 1030, 1036 (5th Cir. 1980); United States v. Burke, 694 F.2d 632,
633-34 (9th Cir. 1982)). Such are the circumstances here.

Petitioner pleaded guilty to Count 5 of the Indictment, which charged him with violating
O.R.C. § 2907.31(A)(1) by delivering or presenting to a law enforcement officer posing as a
juvenile, material that was obscene and harmful to juveniles. (ECF No. 7-1, PagelD# 73, 75.)
Petitioner does not argue that this statute is unconstitutionally vague. Rather, he challenges the
constitutionality of a segment of the statute, specifically O.R.C. § 2907.31(C)(1). This provision
of the statute sets out the affirmative defenses to the offense with which he was charged.

Petitioner, however, does not argue, and the record does not reflect, that this portion of the
statute had any application to him or to entry of his guilty plea.

The state appellate court therefore concluded that Petitioner lacked standing to raise the
issue:

[Ajppellant argues the trial court erred in denying his motion to
withdraw guilty plea because the statute on disseminating matter
harmful to juveniles is unconstitutionally vague, which in turn
renders the statute void and his conviction a manifest injustice.
Appellant further argues the presence of manifest injustice negates
any timeliness requirement for the filing of his motion to
withdraw.

Appellant's void-for-vagueness argument focuses specifically on
the affirmative defense provision found in R.C. 2907.31(C)(1),
which sets forth an affirmative defense to the offense if the

material was "presented for a bona fide medical, scientific.

educational, governmental, judicial, or other proper purpose, by a
physician, psychologist, sociologist, scientist, teacher, librarian,
clergyman, prosecutor, judge, or other proper person."
Appellant argues the term "other proper purpose" as used in this
provision is not defined, nor is "a bona fide medical, scientific,
educational, governmental, [or] judicial [purpose]." Appellant
contends this failure forces persons engaging in the activities
described in R.C. 2907.31(A) to have to guess as to whether or not
their conduct constitutes a "proper purpose." Consequently,

appellant submits the statute does not provide a person of ordinary
intelligence with fair notice that his or her contemplated conduct is
prohibited by the statute, and therefore, the statute is
unconstitutionally vague, and the trial court abused its discretion in
denying appellant's post-sentence motion to withdraw guilty plea.
We disagree.
***

'"An enactment of the General Assembly is presumed to be
constitutional, and before a court may declare it unconstitutional it
must appear beyond a reasonable doubt that the legislation and
constitutional provisions are clearly incompatible.' " State ex rel.
O'Brien v. Heimlich, 10th Dist. No. 08AP-521, 2009-0hio-1550,
^ 24, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St.
142, 128 N.E.2d 59 (1955), paragraph one of the syllabus. "'A
regularly enacted statute of Ohio is presumed to be constitutional
and is therefore entitled to the benefit of every presumption in
favor of its constitutionality.'" State ex rel. O'Brien at K 24,

quoting State ex rel. Dickman at 147, 128 N.E.2d 59. The party
alleging a statute is unconstitutional must prove that assertion
beyond a reasonable doubt in order to prevail. State v. Anderson,
57 Ohio St.3d 168, 171,566N.E.2d 1224(1991).

'"Under the vagueness doctrine, statutes which do not fairly inform
a person of what is prohibited will be found unconstitutional as
violative of due process.'" State v. Carrick, 131 Ohio St.3d 340,
965 N.E.2d 264,2012-0hio-608, T] 14, quoting State v. Reeder, 18
Ohio St.3d 25, 26, 479 N.E.2d 280 (1985), citing Connally v. Gen.
Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).
"[A]ny statute which 'fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbidden by the
statute' is void for vagueness." State v. Tanner, 15 Ohio St.3d 1,3,
472 N.E.2d 689 (1984), quoting Papachristou v. Jacksonville, 405
U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Yet,

'"[impossible standards of specificity are not required. * * * The
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test is whether the language conveys sufficiently definite warning
as to the proscribed conduct when measured by common
imderstanding and practices.'" Reeder at 26, 479 N.E.2d 280,
quoting Jbri/an v. De George, 341 U.S. 223,231-32, 71 S.Ct. 703,
95 L.Ed. 886(1951).

The provision at issue which appellant asserts is void for
vagueness does not address the criminal offense itself, which is
defined in R.C. 2907.31(A), but rather the provision in R.C.
2907.31(C)(1), which sets forth an affirmative defense. The
relevant portions of the statute, entitled "Disseminating matter
harmful to juveniles," reads as follows:
(A) No person, with knowledge of its character or content, shall
recklessly do any of the following:

(1) Directly sell, deliver, fiimish, disseminate, provide, exhibit,
rent, or present to a juvenile, a group of juveniles, a law
enforcement officer posing as a juvenile, or a group of law
enforcement officers posing as juveniles any material or
performance that is obscene or harmful to juveniles;
*

If

#

(C)(1) It is an affirmative defense to a charge under this section,
involving material or a performance that is obscene or harmful to
juveniles, that the material or performance was furnished or
presented for a bona fide medical, scientific, educational,
governmental, judicial, or other proper purpose, by a physician,
psychologist, sociologist, scientist, teacher, librarian, clergyman,
prosecutor, judge, or other proper person.
(Emphasis added.)

In reading R.C. 2907.31 in its entirety, it is apparent that the statute
identifies specific situations in which it is proper to present
obscene or harmful materials to juveniles. TTie statute further
defines the persons who may do so. However, appellant has not

argued that he falls into one of these categories and, upon review
of the evidence in the record, we find nothing to demonstrate he
should fall into one of the specified categories or that the
affirmative defense was available to him. Instead, the conduct at

issue here centers around whether appellant directly delivered,
fumished, disseminated, provided, exhibited, or presented to a law
enforcement officer posing as a juvenile, or a group of law

enforcement officers posing as a juvenile, any material or
performance that is obscene and harmful tojuveniles.
The record indicates that appellant disseminated harmful material

to a police officer posing as a 15-year-old boy, thereby
demonstrating that appellant committed conduct which is clearly
statutorily prohibited conduct under R.C. 2907.31(A)(1). '"One to
whose conduct a statute clearly applies may not successfully
challenge it for vagueness.' " Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d
362 (1982), fn 7, quoting Parker v. Levy, 417 U.S. 733, 756, 94
S.Ct. 2547, 41 L.Ed.2d 439 (1974). Here, the language of R.C.
2907.31(A)(1) conveys a sufficiently definite warning as to the
proscribed conduct, pursuant to common understanding and
practices.

Furthermore, appellant is without standing to challenge the statute
except as it is being applied to him. Gandee v. Glaser, 785 P.
Supp. 684, 694 (S.D. Ohio 1992). See also State of Ohio/City of
Hamilton v. Hendrix, 144 Ohio App.3d 328, 760 N.E.2d 43 (12th

Dist. 2001) (in void for vagueness challenges based on alleged due
process violations, a challenger typically has standing to challenge
the statute only as to its application to his conduct; a challenger
must show the alleged vagueness of the statute actually deprived
him of due process of law, in light of his conduct).
Appellant has never made the argument that his actions constitute
(or could constitute) an "other proper purpose" or that he is (or
could be) an "other proper person" who would be justified in
disseminating the harmful material. He has not argued that he
believed his conduct was justified, only to be informed otherwise,
as he has not attempted to apply the affirmative defense to his
circumstances, nor has he claimed that the affirmative defense

applied to him. Under the law, he may only challenge the statute
as it was and is applied to him. See Gandee at 694; Hendrix. And,
as stated above, a person cannot challenge a statute for vagueness
where the statute clearly applies to his conduct. Hoffman Estates;
Parker.

The underlying principle of the void-for-vagueness doctrine is that
no person "shall be held criminally responsible for conduct which
he could not reasonable imderstand to be proscribed." Columbus v.

Rogers, 41 Ohio St.2d 161, 164, 324 N.E.2d 563 (1975), quoting
United States v. Harriss, 347 U.S. 612,617,74 S.Ct. 808,98 L.Ed.

989 (1954). Here, appellant cannot argue that he could not
reasonably understand that his conduct was proscribed. The statute
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clearly provides a person of ordinary intelligence with fair notice
that his contemplated conduct is prohibited under the statute.
Moreover, claiming that an affirmative defense which he has not
attempted to assert is void for vagueness is far different from
claiming that the provision of the statute setting forth the elements
of the crime is so vague that he could not know that his conduct
was forbidden. Any purported vagueness in the language of the
affirmative defense does not deprive this challenger of due process
in light of his particular conduct, and il is unnecessary for the
court to determine whether the affirmative defense provision is in
fact voidfor vagueness.

State V. Beavers, 2012 WL 3291833, at *1-4 (emphasis added).

Because the subsection he challenges was not applied in his case, this Court agrees that
Petitioner has waived his claim that the statute is unconstitutional in these proceedings by his

entry of a guilty plea. See, e.g., Moore v. McGuire, No. 4:09CV1342, 2012 WL 4479110, at *2

(E.D. Mo. Sept. 28, 2012) (holding petitioner waived his challenge to subsections of statute as
imconstitutionally vague that were not applied in his case by the entry of a guilty plea) (citing

Neely v. McDaniel, 677 F.3d 346,349 (8th Cir. 2012) (by entering a voluntary and intelligent

guilty plea to a violation ofa criminal statute, a defendant cannot challenge the constitutionality
of the statute as applied in his case)).

Therefore, the petition for a writ of habeas corpus is DENIED and this action is hereby
DISMISSED.
IT IS SO ORDERED.
/s/ Algenon L. Marblev

ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE

DATED:

2-f, 2^1^

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