Leonhart v. Jenkins

Filing 22

OPINION AND ORDER adopting Report and Recommendations re 18 Report and Recommendations. Signed by Judge James L. Graham on 5/29/2019. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEVEN M. LEONHART,
CASE NO. 2:16-CV-911
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson

Petitioner,
v.
WARDEN, CHARLOTTE JENKINS,
Respondent.

OPINION AND ORDER
On January 17, 2018, the Magistrate Judge issued a Report and Recommendation
(“R&R”) recommending that the petition seeking a writ of habeas corpus under 28 U.S.C. §
2254, the Antiterrorism and Effective Death Penalty Act (“AEDPA”), be denied and that this
action be dismissed. (ECF No. 18.) Petitioner filed timely Objections to that R&R. (ECF No.
21.) Pursuant to 28 U.S.C. § 636(b), the Court has conducted a de novo review. For following
reasons, Petitioner’s Objections (ECF No. 21) are OVERRULED. The R&R (ECF No. 18) is
ADOPTED and AFFIRMED. This action is hereby DISMISSED.
The Court further DECLINES to issue a certificate of appealability (“COA”).
Petitioner alleges that he received ineffective assistance of counsel. Petitioner asserts that
his attorney advised him that in exchange for his guilty plea he would be sentenced to life
imprisonment with parole eligibility after no more than thirty-five years, but that after his guilty
plea was accepted, he was instead sentenced to life with parole eligibility after fifty-two years.
The Magistrate Judge concluded that the state appellate court reasonably determined that even if
Petitioner could establish that his lawyer’s performance was deficient under the first prong of the
two-part test for attorney effectiveness in Strickland v. Washington, 466 U.S. 556 (1984),

Petitioner could not establish Strickland’s prejudice prong. The Magistrate Judge concluded it
was reasonable for the state appellate court to find that Petitioner could not show that but for the
deficient performance, Petitioner would not have pleaded guilty— the state trial court remedied
any misinformation that Petitioner received from his lawyer about parole eligibility by explicitly
informing him that the maximum aggregate sentence that he could receive was life with parole
eligibility after 52 years. (Transcript, ECF No. 12–1, at PAGE ID # 449, 455.)
Petitioner objects on the basis that the Magistrate Judge used the wrong standard of
review. Petitioner asserts that the standard of review described in the AEDPA does not apply to
his claim because the state trial court did not hold an evidentiary hearing to resolve a factual
dispute about whether his attorney performed deficiently. This objection is without merit. As
the Magistrate Judge explained, the state court did not reach the deficiency prong of Strickland,
finding instead that Petitioner could not establish the prejudice prong. See State v. Leonhart, No.
13CA38, 2014 WL 7251568, at *18 (Ohio Ct. App. December 16, 2014). When a state court
relies on one prong of Strickland to adjudicate an ineffective assistance of counsel claim, “the
cases mandate AEDPA deference to that prong and de novo consideration of the unadjudicated
prong.” Rayner v. Mills, 685 F.3d 631, 639 (6th Cir. 2012).1 The Magistrate Judge reviewed the
state appellate court’s analysis of the prejudice prong and properly afforded it “double
deference” under the AEDPA. See Harrington v. Richter, 562 U.S. 86, 105 (2011).
Petitioner also makes two related objections to the Magistrate Judge’s determination that
the state appellate court reasonably determined that Petitioner could not establish Strickland’s

1
It is well settled that if one of Strickland’s prongs disposes of an ineffective assistance claim, a

court is not required to analyze the second prong. Strickland, 466 U.S. at 697 (explaining that
“there is no reason for a court deciding an ineffective assistance claim . . . to address both
components of the inquiry if the defendant makes an insufficient showing on one”).

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prejudice prong. Petitioner first objects that the Magistrate Judge erred by relying on the
transcript from the plea hearing instead of two affidavits submitted by Petitioner. Both affidavits
contain facts that pertain to Strickland’s deficiency prong. (Affidavits, ECF Nos. 11–1, at PAGE
ID # 104–06, 108–09.) As already explained, however, the state appellate court did not reach the
deficiency prong. This objection is also without merit.
Petitioner next objects to the Magistrate Judge’s determination that the state appellate
court reasonably concluded that the state trial court remedied any misinformation about parole
eligibility provided by Petitioner’s counsel. Petitioner asserts that he was “promised that if he
pled guilty he would not receive the ‘high end’ of the sentencing range,” and that the state trial
court had informed Petitioner that the “high end” of the sentencing range was a life term with the
possibility of parole after 52 years. (Objections, ECF No. 21, at PAGE ID # 565.) In support of
this assertion, however, Petitioner points to an excerpt from the following exchange about the
prosecution’s agreement not to seek the “high end” of the sentencing range—i.e., a life sentence
with no possibility of parole:
THE COURT: Is there a plea agreement in this case?
[THE PROSECUTION]: Judge, upon the Defendant’s plea to Count 1 and its
specifications, Count 5 and Count 6, the State will ask the Court to dismiss
Counts 2 and 4 from the indictment [in one matter] and the single charge in
[another matter].
THE COURT: Counsel, there’s an additional part of this agreement, is there not?
[THE PROSECUTION]: Yes, there is Judge. The state has agreed not to ask the
Court to impose a sentence of life with no possibility of parole, and the state will
not seek the minimum sentence in this case.
THE COURT: Is that your understanding of the agreement, Counsel?
[DEFENSE COUNSEL]: Yes, it is, your honor.

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THE COURT: [Defendant], did you hear the agreement as it was stated for the
record?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is that also your understanding of the agreement that you had with
the state?
THE DEFENDANT: Yeah.
THE COURT: Has anybody threatened you to force you to plead guilty?
THE DEFENDANT: No.
THE COURT: Again, sir, I need you to answer out loud.
THE DEFENDANT: No.
THE COURT: You understand that if any promise has been made to you by
anyone, that those promises are not binding on the Court, and if you plead guilty,
the Court alone—that is, the Judge—will decide your sentence and you could
receive the maximum penalty prescribed by law?
THE DEFENDANT: Yea—yes.
THE COURT: Other than the agreement that's been stated in open court, was
there any other promise made to you by any person to get you to plead guilty
today?
THE DEFENDANT: Just, other than the—low end would be taken off and the
high end would be taken off.
THE COURT: All right. But other than that, there's no other promise?
THE DEFENDANT: No.
(Transcript, ECF No. 12–1, at PAGE ID # 456–57.) The state trial court also specifically
informed Petitioner that he faced a maximum penalty of a life sentence with the possibility of
parole after 52 years.
THE COURT: Now, before you plead guilty, I need to be certain that you
understand these proceedings. You do understand the nature of the charges
against you?

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THE DEFENDANT: Yes.
THE COURT: You understand the maximum penalty the Court could impose, is
life imprisonment with a possibility of parole after 52 years and a fine of
$35,000?
THE DEFENDANT: Yes, ma‘am.
(Id., at PAGE ID # 455.)
On this record, the state appellate court reasonably concluded that the Petitioner could not
establish Strickland’s prejudice prong. Petitioner claims that when he testified about the “high
end” of the sentencing range, he was referring to life with parole eligibility after 52 years. But it
was reasonable for the appellate court to conclude that the “high end” end of the sentencing
range referred to life without any possibility of parole given that this reference immediately
followed a discussion about the prosecution’s agreement not to seek that sanction. The
reasonableness of that conclusion is bolstered by the fact that the trial court explained that
Petitioner faced a “maximum penalty” life with a possibility of parole after 52 years. It was thus
reasonable for the appellate court to conclude that the trial court remedied any misinformation
about parole eligibility that Petitioner’s attorney had conveyed to Petitioner. The Magistrate
Judge correctly determined that the state appellate court’s conclusion was not contrary to United
States Supreme Court precedent, an unreasonable application of federal law, or an unreasonable
determination of facts.
Petitioner also contends that the Magistrate Judge determined “the transcript of a plea
hearing will always insulate the plea from being challenged on the basis that counsel promised
the defendant a lesser sentence” than the one that is ultimately imposed. (Objections, ECF No.
21, at PAGE ID # 567.) In support of this objection, Petitioner relies on Blackledge v. Allison,
431 U.S. 63 (1977). In that case, the Supreme Court held that summary dismissal of a habeas

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petition was improper when the petitioner, a North Carolina inmate, claimed that he pleaded
guilty because he was promised that he would receive a ten-year sentence, but he instead
received a seventeen to twenty-one-year sentence after his guilty plea was accepted.
431 U.S. at 68–69. The Supreme Court explained “that no procedural device for the taking of
guilty pleas is so perfect in design and exercise as to warrant a per se rule rendering it ‘uniformly
invulnerable to subsequent challenge.’” Id. at 73 (citation omitted). The Supreme Court further
explained, however, that because of deficiencies in North Carolina’s plea proceedings at that
time, the Supreme Court could not determine whether the allegations in the petition, when
measured “against the record of the plea hearing, were so ‘patently false or frivolous’ as to
warrant summary dismissal.” Id. at 76. (internal citations omitted). At the time, North
Carolina’s pleading procedures “reflected the atmosphere of secrecy which then characterized
plea bargaining generally.” Id. at 76–77. Indeed, there was no transcript of the plea proceeding.
Id. at 77. Instead, the record was made by having the petitioner fill out a standard form which
the clerk of court then transcribed onto a second copy of the form that the petitioner then signed.
Id. at 65. Because there was no transcript of the plea proceeding, the Supreme Court concluded
that the petition warranted more thorough consideration than a summary dismissal and the case
was remanded to allow the petitioner a full opportunity to develop and present relevant facts. Id.
at 82–83.
In this case, there was a transcript from the plea hearing in the state trial court.
Moreover, the Magistrate Judge did not adopt a per se rule that a plea hearing transcript always
insulates a guilty plea from the type of challenge that Petitioner raises in this case. Rather, the
Magistrate Judge reviewed the state appellate court’s determination of Strickland’s prejudice
prong— a determination that was due double deference— and found that it was reasonably

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supported by the record, which included the plea hearing transcript. Blackledge is thus
distinguishable and this objection is without merit.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States
District Courts, the Court must consider whether to issue a COA. A state prisoner who seeks a
writ of habeas corpus in federal court does not have an automatic right to appeal a district court’s
adverse decision unless the court issues a COA. 28 U.S.C. § 2253(c). When a claim has been
denied on the merits, a COA may be issued only if the petitioner “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a
showing, a petitioner must show “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a
claim has been denied on procedural grounds, a certificate of appealability may be issued if the
petitioner establishes that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling. Id.
The Court DECLINES to issue a COA. The Court is not persuaded that reasonable
jurists could debate whether the state appellate court reasonably concluded that Petitioner could
not demonstrate Strickland’s prejudice prong.
IT IS SO ORDERED.
Date: May 29, 2019

/s/ James L. Graham____________
JAMES L. GRAHAM
United States District Judge   

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