Jefferson v. Warden, Chillicothe Correctional Institution

Filing 6

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus: The Magistrate Judge RECOMMENDS that Petition be DENIED and that this case be DISMISSED. Objections to R&R due within fourteen (14) days of the date of this Report. Signed by Magistrate Judge Terence P Kemp on 12/18/2014. (er)(This document has been sent by the Clerks Office by regular and certified mail (7002 0510 0004 3446 0011) 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
EASTERN DIVISION
MARK JEFFERSON,
CASE NO. 2:14-CV-736
JUDGE JAMES L. GRAHAM
MAGISTRATE JUDGE KEMP

Petitioner,
v.
WARDEN, Chillicothe
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION

I. INTRODUCTION
Mark Jefferson, the petitioner in this habeas corpus action, is a prisoner at the
Chillicothe Correctional Institution located in Chillicothe, Ohio.

He is serving an

aggregate eighteen-year sentence which was imposed by the Court of Common Pleas of
Franklin County, Ohio, following his guilty plea to two counts of rape and one count of
gross sexual imposition. Return of Writ, Doc. 5, Ex. 3. He now seeks a writ of habeas
corpus from this Court. For the following reasons, based on a review of the Petition, the
Return of Writ, the exhibits attached to the Return, and the applicable law, it will be
recommended that the Petition be DENIED and that this case be DISMISSED.
I. PROCEDURAL HISTORY
On August 11, 2011, Petitioner was indicted and charged with two counts of rape
and one count of gross sexual imposition. The two rape counts involved a minor victim

under the age of 13. The indictment did not specify exactly which subsection of the
rape statute, Ohio Revised Code (RC) §2907.02, Petitioner allegedly violated, but a
violation of §2907(A)(1)(b), which applies to a victim who is less than thirteen years of
age, carries a mandatory life term.
After initially pleading not guilty, Petitioner changed his plea and entered a
guilty plea to all three counts of the indictment. He did so pursuant to a plea agreement
which allowed him to plead guilty to two counts of rape under R.C. §2907.02(A)(2),
which carries a lesser sentence. Petitioner and the prosecutor also agreed to definite
consecutive eight-year sentences for the two rape counts, plus a two-year consecutive
sentence for gross sexual imposition.

Return, Ex. 2.

The trial court imposed that

sentence.
Petitioner did not initially appeal, but he sought and was granted leave to file a
delayed appeal. In his pro se brief (the Franklin County Public Defender was appointed
to represent Petitioner on appeal, but Petitioner elected to proceed without counsel), he
presented four assignments of error:
ASSIGNMENT OF ERROR I
Whether the trial court abused its discretion by sentencing Appellant to
consecutive sentences.
ASSIGNMENT OF ERROR II
Whether the trial court abused its discretion in failing to impose
proportional sentencing.
ASSIGNMENT OF ERROR III

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Whether the trial court abused its discretion by applying an improper
statute.
ASSIGNMENT OF ERROR IV
Whether Appellant was denied effective assistance of counsel.

In a decision filed on February 6, 2014, the Tenth District Court of Appeals overruled all
four assignments of error and affirmed the conviction and sentence. State v. Jefferson,
2014 WL 504751 (Franklin Co. App. Feb. 6, 2014) .
Petitioner asked the Ohio Supreme Court to review the court of appeals’
decision. In his memorandum in support of jurisdiction, he identified only a single
proposition of law, which reads as follows: “Whether the courts abused their discretion
in imposing a sentence that does not conform with the legislature or constitution.”
Return, Ex. 18. However, he argued two “branches” of this proposition of law. The
first, titled “Statutory Requirements,” focused on the statutory requirement that certain
findings be made under R.C. §2929.14(C)(1) before consecutive sentences may be
imposed for multiple offenses, but it also mentioned the Equal Protection clause as well
as Article I, section 2 of the Ohio Constitution. The second branch of his argument was
“Allied Offenses/Double Jeopardy.”

There, Petitioner claimed that the sentence

violated the Double Jeopardy clause as well as the Ohio General Assembly’s intent not
to allow multiple punishment for two or more offenses resulting from the same
conduct. The Ohio Supreme Court declined to take the case. State v. Jefferson, 139 Ohio
St.3d 1406 (May 28, 2014).

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Petitioner timely filed this petition for a writ of habeas corpus under 28 U.S.C.
§2254. Doc. 1. The three issues he raises, and the facts supporting them, are, in his
words:
GROUND ONE: Equal Protection Due Process.
Supporting facts: A plethora of case law in Ohio supports the fact that
consistency, proportionality, nor reasonableness was considered nor
applied, in contravention of the Equal Protection afforded.
GROUND TWO: Wrong Statute Pled To.
Supporting facts: Contrary to the General Assembly via the statutory
language, by and through counsel, Petitioner pled to two counts of rape that
did not occur as evidenced by the medical exams of both victims. This
factual basis is contrary to law nor authorized by law. Actual innocence of
the “charges” of rape.
GROUND THREE: Ineffective Assistance of Counsel.
Supporting facts: Ignoring clearly established law and statutory language,
counsel coerced Petitioner into accepting a plea that not only had no factual
basis, but a sentence that exceeded a vast majority of Ohio cases. Counsel’s
reliance on Petitioners severe mental emotional duress was utilized for an
unjust result.

Respondent argues that, through his guilty plea, Petitioner waived “any claims as to the
plea itself or the assistance of counsel before or during the plea.”

Return, at 8.

Respondent also asserts that all claims other than the one presented to the Ohio
Supreme Court have been procedurally defaulted, and that the single claim he did
present to the Ohio Supreme Court - ground one of his petition - rests entirely on state
law and is not cognizable in federal habeas corpus. Petitioner has not filed a traverse in
response.

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II. DISCUSSION
Cases filed under 28 U.S.C. §2254 are reviewed under a deferential standard.
When the claims presented in a habeas corpus petition have been presented to and
decided by the state courts, a federal habeas court may not grant relief unless the state
court's decision was contrary to or an unreasonable application of clearly established
federal law, or based on an unreasonable determination of the facts in light of the
evidence that was presented. 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.

In applying this statute, the Supreme Court has held that “[t]he focus ... is on whether
the state court's application of clearly established federal law is objectively
unreasonable ... an unreasonable application is different from an incorrect one.” Bell v.
Cone, 535 U.S. 685, 694 (2002). To obtain habeas corpus relief, a petitioner must show the
state court's decision was “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. ––––, ––––, 131 S.Ct. 770, 786–87 (2011).

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This bar is “difficult to meet” because “habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for ordinary error
correction through appeal.” Harrington, 131 S .Ct. at 786, quoting Jackson v. Virginia, 443
U.S. 307, 332, n. 5,(1979) (Stevens, J., concurring in judgment). In short, “[a] state court's
determination that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state court's decision.” Id.,
quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Before looking at the merits of the claims which Petitioner presents here, the
Court must first decide if the claims were properly presented to the state courts. Under
28 U.S.C. §2254, the habeas corpus statute which applies to prisoners in state custody, a
federal court may grant relief only if the prisoner is being held in violation of the
Constitution or law of the United States—that is, that the prisoner's conviction or
sentence was unlawful under federal law. In order for a federal court to decide any such
claims on their merits, “the state prisoner must give the state courts an opportunity to
act on his claims before he presents those claims to a federal court in a habeas petition.”
O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). That is so because §2254(b) states that an
application for a writ of habeas corpus filed by someone in petitioner's position “shall
not be granted” unless “the applicant has exhausted the remedies available in the courts
of the State ....”
A doctrine related to the exhaustion doctrine is known as “procedural default.”
“Procedural default” describes the situation where a person convicted of a crime in a
state court not only fails (for whatever reason) to present a particular claim to the

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highest court of the State so that the State has a fair chance to correct its own errors, but
no longer has any opportunity to do so - usually because the time for filing an appeal or
other attack on a state conviction or sentence has come and gone. When that occurs, a
habeas petitioner may obtain review of the merits of his federal claims only if he can
show some “cause” for his failure to follow the state court rules relating to raising that
claim, and “prejudice” from not having obtained state court review. See Wainwright v.
Sykes, 433 U.S. 72 (1977).
Here, Respondent is correct that the only claim which Petitioner has not
procedurally defaulted is the claim he presented to the Ohio Supreme Court. Although
Petitioner presented other claims to the Tenth District Court of Appeals, in order to
satisfy the exhaustion requirement - and to avoid a procedural default - a petitioner
must present any claims he wants to raise in federal habeas corpus to the highest court
of the state. “The exhaustion requirement is satisfied when the highest court in the state
in which the petitioner was convicted has been given a full and fair opportunity to rule
on the petitioner's claim.” Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). When
a claim which can be raised on direct appeal - like all of the claims which Petitioner
presented to the Tenth District Court of Appeals, and the claims he raises here (with
one possible exception, discussed below) - is not presented to the Ohio Supreme Court,
under Ohio law, that claim cannot be raised in any other proceeding without being
barred by the doctrine of res judicata, and it is therefore procedurally defaulted. See
generally Bonilla v. Hurley, 370 F.3d 494 (6th Cir. 2004).

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There is an exception for claims of ineffective assistance of counsel which rely on
evidence outside the record. Those claims can be raised in Ohio by way of a postconviction proceeding filed under R.C. §2953.21. See State v. Cole, 2 Ohio St.3d 112
(1982). However, there is a time limit for raising such claims: 180 days after the date on
which the trial transcript is filed in the court of appeals as part of the direct appeal. R.C.
2953.21(c)(2).

Here, according to the online records of the Tenth District Court of

Appeals, the transcript of the proceedings in the trial court was filed on October 3, 2012.
The time has long passed for Petitioner to file a timely post-conviction proceeding, so
any ineffective assistance of counsel claim which relies on evidence outside the record as his third ground for relief appears to do - is also procedurally defaulted. See Ricks v.
Warden, Lebanon Correctional Inst., 2011 WL 4482076 (S.D. Ohio Aug. 25, 2011), adopted
and affirmed 2011 WL 4481424 (S.D. Ohio Sept. 27, 2011).
These principles do not completely resolve the issue of exactly what claim, if any,
is properly before this Court. The only claim which Petitioner may properly assert here
is the claim he raised in the Ohio Supreme Court. Respondent argues that this is,
essentially, Petitioner’s first ground for relief. Assuming that to be true, the issue raised
in the Return is whether the claim which Petitioner presented to the Ohio Supreme
Court was based only on state law. If it was, Respondent is correct that this Court may
not consider it, because “federal habeas corpus relief does not lie for errors of state
law....” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). But that argument appears to overlook
the fact that, in his Supreme Court brief, Petitioner cited to the “constitution” in his
proposition of law, and then argued both equal protection and double jeopardy issues.

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Those claims were fairly presented to the Ohio Supreme Court. It is questionable
whether the same claims were argued to the Tenth District Court of Appeals - the only
federal constitutional principle explicitly mentioned in Petitioner’s appellate brief
appears to be the due process clause, see Return, Ex. 8, at 3 - but Petitioner also argued
proportionality, which is an equal protection concept. Although the Ohio Supreme
Court does not ordinarily review issues not presented to the state courts of appeals,
Respondent has not argued that any potential federal constitutional claims subsumed in
his first ground for relief were waived due to the way in which Petitioner presented
them to the state courts. Consequently, the Court will examine the merits of those
claims, keeping in mind that “determining whether a state court's decision resulted
from an unreasonable legal or factual conclusion does not require that there be an
opinion from the state court explaining the state court's reasoning” and that “the habeas
petitioner's burden still must be met by showing there was no reasonable basis for the
state court to deny relief.” Harrington v. Richter, 131 S.Ct. at 784.
Perhaps understandably, given the very vague way in which Petitioner made his
arguments, these constitutional claims were not discussed by the Tenth District Court of
Appeals. Rather, it determined that any claims relating to the sentencing procedure and Petitioner’s primary claim there, and here, appears to be that the trial court violated
its statutory duty to make certain findings before imposing consecutive sentences for
multiple offenses - were waived when Petitioner agreed to the sentence as part of the
plea bargain. It is not clear that the state court held that this waiver extends to federal
constitutional claims; that court relied on State v. Porterfield, 106 Ohio St.3d 5, syllabus

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¶3, (2005), which held that “[o]nce a defendant stipulates that a particular sentence is
justified, the sentencing judge need not independently justify the sentence.” So the
question then becomes whether it was unreasonable for the state courts not to grant
Petitioner relief from the sentences imposed based on due process, equal protection, or
double jeopardy principles. This Court concludes that it was not unreasonable to do so.
The due process question in this case is not whether the state trial judge violated
state law - and the Porterfield decision strongly suggests that he did not - but whether
the state trial judge’s application of Ohio law “rendered [the] entire [process]
fundamentally unfair ....” See Bey v. Bagley, 500 f.3d 514 (6th Cir. 2007).
The Court is aware of no United States Supreme Court case holding that when a
state court judge foregoes making findings required by a statute like R.C. 2929.14(C)(4)
due to an agreement between the defendant and the prosecution that certain
consecutive sentences should be imposed, it creates a fundamentally unfair proceeding.
Both state and federal courts have the power to impose consecutive sentences for
multiple offenses. The Supreme Court has called the practice of giving trial judges
“unfettered discretion [to decide] whether sentences for discrete offenses shall be
served consecutively or concurrently” a “common-law tradition....” Oregon v. Ice, 555
U.S. 160, 163 (2009). Doing so does not violate any clearly established federal law
construing the Due Process Clause, nor does it make the state court proceedings
fundamentally unfair. The current record simply does not support a due process claim,
nor has Petitioner met his burden of demonstrating that no reasonable jurist would
have rejected his due process claim.

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.
Petitioner also makes reference to the Double Jeopardy clause of the United
States Constitution. The Double Jeopardy clause, as it is applied by the federal courts to
state sentencing, is implicated only if multiple sentences are imposed for the same
offense “in excess of that authorized by the legislature,” White v. Howes, 586 F.3d 1025,
1032 (6th Cir. 2009), and then only if the offenses on which multiple sentences are
imposed are for identical offenses - that is, offenses which do not each “require proof of
a fact which the other does not.” Blockburger v. United States, 284 U.S. 299 (1932). There
is nothing here to suggest that the offenses for which Petitioner received multiple,
consecutive sentences are actually a single offense. The indictment identifies them as
having occurred on two different dates more than a month apart. Given that these are
different offenses, the Double Jeopardy clause simply does not apply.
Finally, Petitioner mentions the Equal Protection clause. Although he does not
make a specific argument under that constitutional provision, it would appear that he
believes that he received a longer sentence than most people convicted of rape in Ohio,
supposedly because the trial court did not make the statutory findings required by R.C.
§2914. However, it does not appear that he presented any evidence to support that
claim to the state courts, and he has not done so here. Without any proof that Petitioner
was singled out for a longer sentence due to some impermissible factor - or even that he
received a disproportionately longer sentence than other similarly-situated defendants
charged with rape of a child under the age of thirteen - no court could have been
expected to grant relief on this basis. First, “[t]he Constitution permits qualitative

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differences in meting out punishment and there is no requirement that two persons
convicted of the same offense receive identical sentences.” Williams v. Illinois, 399 U.S.
235, 243 (1970). And second, as this Court said in Oldham ex rel. Young v. Cincinnati
Public Schools, 118 F.Supp.2d 867, 871 (S.D. Ohio 2000), “the threshold element of an
equal protection claim is disparate treatment,” but there is no evidence of disparate
treatment in this record. Thus, there is no merit to Petitioner’s equal protection claim.
Consequently, the Ohio courts did not act unreasonably or contrary to clearly
established federal law by denying Petitioner relief on any of his federal constitutional
claims, and he is not entitled to habeas corpus relief in this Court.

III. RECOMMENDATION
For all of the reasons set forth above, it is recommended the petition for a writ of
habeas corpus be DENIED and that this action be DISMISSED.
IV. PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within
fourteen days of the date of this Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s). A judge of this Court shall
make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. Upon proper objections, a
judge of this Court may accept, reject, or modify, in whole or in part, the findings or

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recommendations made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review
the Report and Recommendation de novo, and also operates as a waiver of the right to
appeal the decision of the District Court adopting the Report and Recommendation. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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