Starkey v. Warden Chillicothe Correctional Institution
REPORT AND RECOMMENDATION re 4 MOTION to Dismiss filed by Warden Chillicothe Correctional Institution and 5 MOTION for Expansion of Record Pursuant to Rule 7 filed by Donald Starkey in that it is RECOMMENDED that Respondent' s Motion to Dismiss be GRANTED and this action be DISMISSED. It is also RECOMMENDED that Petitioner's Motion for Expansion of Record be DENIED. Objections to R&R due by 2/10/2017. Signed by Magistrate Judge Kimberly A. Jolson on 1/27/17. (sem)(This document has been sent by regular mail 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
Case No. 2:16-cv-00525
Judge George C. Smith
Magistrate Judge Kimberly A. Jolson
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings 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 Motion to
Dismiss, Petitioner’s Motion for Expansion of Record Pursuant to Rule 7, Respondent’s
Response in Opposition, and the exhibits of the parties.
For the reasons that follow, the
Magistrate Judge RECOMMENDS that Respondent’s Motion to Dismiss (Doc. 4) be
GRANTED and that this action be DISMISSED.
In addition, it is recommended that
Petitioner’s Motion for Expansion of Record Pursuant to Rule 7 (Doc. 5) be DENIED.
FACTS AND PROCEDURAL HISTORY
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of
this case as follows:
On May 29, 2014, the Licking County Grand Jury indicted
appellant, Donald Starkey, on six counts of unlawful sexual
conduct with a minor in violation of R.C. 2907.04 and three counts
of sexual imposition in violation of R.C. 2907.06. Said charges
arose from incidents involving a thirteen year old child.
On September 3, 2014, appellant pled guilty to three of the
unlawful sexual conduct counts and all three of the sexual
imposition counts. The remaining three counts were dismissed.
On September 24, 2014, appellant filed a Crim.R. 32.1 motion to
withdraw his guilty pleas, claiming he changed his mind and
wanted a trial because he strongly felt he was not guilty of the
charges. A hearing was held on September 26, 2014. During the
hearing, appellant withdrew his motion to withdraw his guilty
A sentencing hearing was held on October 13, 2014. By judgment
entry filed same date, the trial court sentenced appellant to three
years on each of the unlawful sexual conduct counts, to be served
consecutively, for a total aggregate term of nine years in prison.
The trial court also sentenced appellant to sixty days on each of the
sexual imposition counts, to be served concurrently with the nine
Appellant filed an appeal and this matter is now before this court
for consideration. Assignments of error are as follows:
“THE TRIAL COURT COMMITTED HARMFUL ERROR IN
FAILING TO FULLY INQUIRE INTO THE DEFENDANT–
PREVIOUSLY ENTERED GUILTY PLEAS.”
“THE SENTENCING OF THE APPELLANT WAS IN ERROR.”
State v. Starkey, No. 14-CA-92, 2015 WL 4624544, at *1 (Ohio Ct. App. 2015). On July 31,
2015, the appellate court affirmed the judgment of the trial court, id., and the Ohio Supreme
Court declined to accept jurisdiction of the appeal on December 2, 2015. State v. Starkey, 41
N.E.3d 448 (Ohio 2015).
On June 10, 2016, Petitioner filed the instant pro se Petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Doc. 1). He asserts that the trial court improperly failed to
inquire into his reasons for requesting to withdraw his guilty plea by failing to hold a hearing or
examine a possible conflict between Petitioner and his attorney (claim one); and that his sentence
is contrary to federal law because his penalty was enhanced in violation of the Ex Post Facto
Clause, and he was sentenced pursuant to an unconstitutional sentencing scheme or legislation
(claim two). It is the position of the Respondent that this action should be dismissed, because
Petitioner has failed to present cognizable claims for relief and has waived any federal issue for
habeas corpus review.
STANDARD OF REVIEW
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the familiar standards of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”) govern this case. The United
State Supreme Court has described AEDPA as “a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court” and emphasized that courts must
not “lightly conclude that a State’s criminal justice system has experienced the ‘extreme
malfunction’ for which federal habeas relief is the remedy.” Burt v. Titlow,--U.S.--, 134 S. Ct.
10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559
U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for evaluating statecourt rulings, and demands that state court decisions be given the benefit of the doubt.”) (internal
quotation marks, citations, and footnote omitted)).
AEDPA limits the federal courts’ authority to issue writs of habeas corpus and forbids a
federal court from granting habeas relief with respect to a “claim that was adjudicated on the
merits in State court proceedings” unless the state-court decision either:
(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.
28 U.S.C. § 2254(d).
Further, under AEDPA, the factual findings of the state court are presumed to be correct:
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
28 U.S.C. § 2254(e)(1).
Accordingly, “a writ of habeas corpus should be denied unless the state court decision
was contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court, or based on an unreasonable determination of the facts in light
of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)
(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)). The United States Court of Appeals
for the Sixth Circuit recently explained these standards as follows:
A state court’s decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court’s decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular . . . case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
Coley, 706 F.3d at 748–49.
The burden of satisfying AEDPA’s standards rests with the
petitioner. See Cullen v. Pinholster, 563 U.S.170, 181 (2011).
Motion to Expand Record (Doc. 5)
As an initial matter, Petitioner seeks to expand the record to include affidavits he has
attached to the Petition. He contends that these documents will assist him in establishing his
actual innocence of the charges or are otherwise relevant to this Court’s resolution of this case.
Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts governs
expansion of a habeas record. It provides:
(a) In General. If the petition is not dismissed, the judge may direct
the parties to expand the record by submitting additional materials
relating to the petition. The judge may require that these materials
(b) Types of Materials. The materials that may be required include
letters predating the filing of the petition, documents, exhibits, and
answers under oath to written interrogatories propounded by the
judge. Affidavits may also be submitted and considered as part of
(c) Review by the Opposing Party. The judge must give the party
against whom the additional materials are offered an opportunity to
admit or deny their correctness.
Rule 7 permits federal habeas corpus courts to direct the parties to supplement the state court
record with materials relevant to the Court’s resolution of the petition. Expansion pursuant to
Rule 7, under the language of that Rule, therefore contains only a relevancy limitation. That is,
the materials a petitioner seeks to include need only be relevant to the determination of the merits
of the constitutional claims in order to be added to the record. The decision of whether to order
Rule 7 expansion is within the Court’s sound discretion. Ford v. Seabold, 841 F.2d 677, 691
(6th Cir. 1988) (holding that record expansion is left to discretion of the district court).
Here, Respondent maintains that Petitioner has waived his claims for relief or failed to
present issues appropriate for federal habeas corpus review.
Because that is the case, the
affidavits that Petitioner has submitted will not assist this Court in deciding these issues.
Moreover, it does not appear that the affidavits he refers to have ever been presented to the state
courts in support of his claims. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“[R]eview
under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.”).
In sum, because the affidavits Petitioner seeks to admit are not be relevant to this Court’s
resolution of Respondent’s Motion to Dismiss, the undersigned recommends that Petitioner’s
motion to expand the record (Doc. 5) be DENIED.
Motion to Dismiss (Doc. 4)
Respondent has moved to dismiss the entire Petition in this matter. (See generally Doc.
A. Claim One
In claim one, Petitioner asserts that the trial court improperly failed to inquire into his
reasons for requesting to withdraw his guilty plea. However, as Respondent has argued in the
Motion to Dismiss, Petitioner’s allegations regarding a desire to withdraw his guilty plea raise
only state-law claims, which are not subject to review in this federal habeas proceeding.
A federal habeas court has jurisdiction to review a state prisoner’s habeas petition only on
the ground that the challenged confinement violates the Constitution, law, or treaties of the
United States. See 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41 (1984) (holding that a
federal court may not issue a writ of habeas corpus “on the basis of a perceived error of state
law”). “A state defendant has no federal constitutional right, or absolute right under state law, to
withdraw a guilty plea.” See, e.g., Gibson v. Warden, Hocking Corr. Facility, No. 1:10cv8, 2011
U.S. Dist. LEXIS 40160, 2011 WL 1429099, at *5 (S.D. Ohio Feb. 23, 2011) (citing Dickey v.
Warden, Lebanon Corr. Inst., No. 1:08cv819, 2010 U.S. Dist. LEXIS 779, 2010 WL 92510, at
*1, *8 (S.D. Ohio Jan. 6, 2010). Instead, “the decision whether to permit a defendant to
withdraw a guilty plea is committed to the trial court’s discretion, which generally is not a basis
for federal habeas relief.” Gibson, 2011 WL 1429099, at *5 (quoting Dickey, 2010 WL 92510,
at *8); see also United States ex rel. Scott v. Mancusi, 429 F.2d 104, 109–10 (2d Cir. 1970);
Akemon v. Ohio Adult Parole Auth., No. 1:13-cv-407, 2014 WL 4908914, at *43–54 (S.D. Ohio
July 3, 2014). The decision whether to hold a hearing on a motion to withdraw a guilty plea
likewise does not present a claim cognizable in habeas because “[a] criminal defendant has no
constitutional right to an evidentiary hearing on a motion to withdraw a guilty plea.” Moorer v.
Warden, Marion Corr. Facility, No. 1:11CV1079, 2012 U.S. Dist. LEXIS 116150, at *4 (N.D.
Ohio July 23, 2012) (citing Hines v. Miller, 318 F.3d 157, 162 (2d Cir. 2003)).
Petitioner thus has failed to establish that the state court’s actions regarding his guilty
plea were contrary to, or involved an unreasonable application of, clearly established federal law,
as determined by the Supreme Court. 1
B. Claim Two
In claim two, Petitioner asserts that his sentence violates the Ex Post Facto Clause and
that he was sentenced pursuant to an unconstitutional sentencing scheme or legislation.
Petitioner, however, failed to present such federal issues to the state appellate court, and
Respondent argues that Petitioner thus has procedurally defaulted these claims. (Doc. 4 at 18–
Federal habeas relief is available to state prisoners only after they have exhausted their
claims in state court.
28 U.S.C. §§ 2254(b)(1), (c).
In order to satisfy the exhaustion
Respondent also argues claim one is procedurally defaulted. (Doc. 4 at 16–18). The Court, however, does not
reach this question because claim one is otherwise not cognizable in habeas.
requirement in habeas corpus, a petitioner must fairly present the substance of each constitutional
claim to the state courts as a federal constitutional claim. Anderson v. Harless, 459 U.S. 4, 6
(1982); Picard v. Connor, 404 U.S. 270, 275 (1971). Although the fair presentment requirement
is not jurisdictional, see Castille v. Peoples, 489 U.S. 346, 349 (1989); O’Sullivan v. Boerckel,
526 U.S. 838, 844–45 (1999), it is rooted in principles of comity and federalism designed to
allow state courts the opportunity to correct the State’s alleged violation of a federal
constitutional right that threatens to invalidate a state criminal judgment.
In the Sixth Circuit, a petitioner can satisfy the fair presentment requirement in any one
of four ways: (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon
state cases employing federal constitutional analysis; (3) phrasing the claim in terms of
constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional
right; or (4) alleging facts well within the mainstream of constitutional law.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Importantly, general allegations of the denial of a
constitutional right, such as the right to a fair trial or to due process, are insufficient to satisfy the
“fair presentment” requirement. Id. If a petitioner has not fairly presented his claims and a state
remedy still exists for him to do so, then his habeas corpus petition should be dismissed for want
of exhaustion. Rose v. Lundy, 455 U.S. 509, 510 (1982); O’Guinn v. Dutton, 88 F.3d 1409, 1412
(6th Cir. 1996). However, if a return to state court would be futile, a habeas court need not wait
for a petitioner’s claims to be exhausted. If a petitioner fails to fairly present his claims through
the requisite of levels of state appellate review to the state’s highest court and no avenue of relief
remains open, or if it would otherwise be futile for a petitioner to continue to pursue his claims in
the state courts, the claims are subject to dismissal with prejudice as procedurally defaulted. See
O'Sullivan, 526 U.S. at 847–48.
In this case, Petitioner argued before the state appellate court that the trial court had
improperly imposed consecutive terms of incarceration under Ohio law. (See Doc. 4-1, PageID#
161–63.) His claim was based solely on state law. (See id.) He never referred to the Ex Post
Facto Clause or to any other federal constitutional issues. Nor did he refer to any federal case or
state court case employing federal constitutional analysis in support of his claim. He now has no
state remedies to pursue. The claims he asserts in his Petition would have to have been asserted
on direct appeal. Because he did not do so, his claims are now foreclosed by procedural default.
When a claim is procedurally defaulted, federal habeas review is barred unless the
petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation, or can demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice. Coleman, 501 U.S. at 750. A petitioner can overcome a procedural
default by showing (1) there was cause for him not to follow the procedural rule and that he was
actually prejudiced by the alleged constitutional error or (2) a fundamental miscarriage of justice
would result from a bar on federal habeas review. See Maupin v. Smith, 785 F.2d 135, 138 (6th
Cir. 1986). “[T]he existence of cause for a procedural default must ordinarily turn on whether
the prisoner can show that some objective factor external to the defense impeded counsel’s
efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 484
(1986). “Such factors may include ‘interference by officials,’ attorney error rising to the level of
ineffective assistance of counsel, and ‘a showing that the factual or legal basis for a claim was
not reasonably available.’” Hargrave-Thomas v. Yukins, 374 F.3d 383, 388 (6th Cir. 2004)
(quoting McCleskey v. Zant, 499 U.S. 467, 493–94 (1991)). To establish prejudice, a petitioner
must demonstrate that the constitutional error “worked to his actual and substantial
disadvantage.” Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v.
Frady, 456 U.S. 152, 170 (1982)).
The Petition does not suggest that any factor external to the defense precluded him from
raising this claim in a state-court filing. Thus, Petitioner does not meet the cause-and-prejudice
However, because that standard is not a perfect safeguard against fundamental
miscarriages of justice, the United States Supreme Court has recognized a narrow exception to
the cause requirement where a constitutional violation has “probably resulted” in the conviction
of one who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392
(2004) (citing Murray, 477 U.S. at 495–96).
Upon review of the record, the undersigned
concludes that is not the case here.
Moreover, even if Petitioner’s procedural default could be excused, claim two is without
merit. Claim two challenges Ohio’s sentencing scheme and the ultimate sentence the trial court
imposed. Some of this claim raises pure state-law issues. (See, e.g., Doc. 1 at 8 (asserting that
Petitioner’s sentence violates Ohio’s single-subject rule)). As explained, state-law claims are not
cognizable in habeas. Supra at 6 (citing 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41
(1984)). Likewise, alleged errors in applying state procedural rules are not cognizable in habeas.
Simpson v. Jones, 238 F.3d 399, 406–07 (6th Cir. 2000); Allen v. Morris, 845 F.2d 610, 614 (6th
Finally, to the extent Petitioner argues that the trial court judge lacked authority to
impose a consecutive sentence, the Supreme Court has made clear that states have the power to
entrust judges, rather than juries, to impose consecutive sentences. In Oregon v. Ice, 555 U.S.
160 (2009), the United States Supreme Court noted that most States continue the common law
tradition of entrusting to sentencing judges the “unfettered discretion” to determine whether a
sentence should be imposed consecutively or concurrently. Id. at 163.
In some States, sentences for multiple offenses are presumed to run
consecutively, but sentencing judges may order concurrent
sentences upon finding cause therefor. Other States, including
Oregon, constrain judges’ discretion by requiring them to find
certain facts before imposing consecutive, rather than concurrent,
sentences. It is undisputed that States may proceed on the first two
tracks without transgressing the Sixth Amendment. The sole issue
in dispute, then, is whether the Sixth Amendment, as construed in
Apprendi and Blakely, precludes the mode of proceeding chosen by
Oregon and several of its sister States. We hold, in light of
historical practice and the authority of States over administration
of their criminal justice systems, that the Sixth Amendment does
not exclude Oregon’s choice.
Id. In short, the imposition of consecutive sentences does not implicate the Sixth Amendment.
Thus, “a state may allow courts unfettered discretion to impose consecutive sentences or it may
limit that authority without violating the Sixth Amendment.” Hooks v. Sheets, 603 F.3d 316, 321
(6th Cir. 2010).
At base, Petitioner has failed to show that the state court’s decision regarding his
sentence was contrary to, or involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court. Accordingly, even if claim two were not foreclosed
by procedural default, it would fail on the merits.
For the foregoing reasons, the Magistrate Judge RECOMMENDS that Petitioner’s
Motion for Expansion of Record Pursuant to Rule 7 (Doc. 5) be DENIED, and that
Respondent’s Motion to Dismiss (Doc. 4) be GRANTED and that this action be DISMISSED.
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 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).
IT IS SO ORDERED.
Date: January 27, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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