Hearn v. Warden, Belmont County Correctional Institution

Filing 14

OPINION AND ORDER sustaining the 12 objections to 10 Report and Recommendations.; denying 13 Motion for Order. Remanding to state court for further proceedings. This judgment shall be held in abeyance until the deadline for Respondent to file a timely appeal has passed. Signed by Judge James L. Graham on 8/28/24. (ds)(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
EASTERN DIVISION
:
Jonathan Hearn,
:
: Case No. 2:22-cv-2916
Petitioner,
:
v.
: Judge Graham
:
Warden, Belmont Correctional
: Magistrate Judge Silvain
Institution,
:
:
Respondent.
:
OPINION & ORDER
This matter is before the Court upon Petitioner Jonathan Hearn’s objections (ECF No. 12)
to the Magistrate Judge’s Report and Recommendation (“R&R”) (ECF No. 10), which
recommended dismissal of the instant habeas action on the basis of procedural default.1 Because
the Court finds merit in Petitioner’s objections, the Court SUSTAINS the same, to the extent set
forth herein. Accordingly, the Court GRANTS the petition for writ of habeas corpus (ECF No. 1).
Due to incorrect information in the written plea agreement, Petitioner Jonathan Hearn
(“Petitioner”) entered his guilty pleas believing he would be eligible for Ohio’s statutory sentencereduction opportunities, such as a judicial release and credit for program participation (often
known as “good time credit”). See, e.g., O.R.C. § 2929.20; O.R.C. § 2967.193; O.R.C. § 2967.194.
But due to his criminal history, Petitioner was in fact categorically ineligible for such programs,
and he thus received sentences that could not be so reduced. See O.R.C. § 2929.13(F)(6). The
misleading plea agreement was never corrected during the plea and sentencing hearing. In fact, the
record indicates that Petitioner was never advised of the mandatory—i.e., irreducible—nature of
the sentence he faced. He therefore entered the plea agreement with a fundamental

1

In the same order, the Magistrate Judge also granted Petitioner’s motion to expand the record. See ECF No. 8, 36.

[1]

misunderstanding of “the relevant circumstances and likely consequences.” Brady v. United States,
397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970). Because the Due Process Clause
requires that a guilty plea be entered knowingly and voluntarily, Petitioner’s plea must be vacated.
McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L. Ed. 2d 418 (1969) (“[I]f
a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of
due process and is therefore void.”).
PROCEDURAL POSTURE
This is a pro se habeas corpus action brought under 28 U.S.C. § 2254. Petitioner filed his
petition for writ of habeas corpus on July 25, 2022. ECF No. 1. Respondent filed a return of writ,
along with the state court record, on September 27, 2022. ECF No. 6; ECF No. 5. Thereafter, the
Magistrate Judge conducted an initial screening of the petition, as set forth in the R&R filed
September 14, 2023. R&R, ECF No. 10; See RULES GOVERNING SECTION 2254 CASES

IN THE

UNITED STATES DISTRICT COURTS, 4 (describing screening procedure) and Am. Columbus Gen.
Order 22-01, filed February 1, 2022 (referring initial habeas screens to magistrate judges). The
Magistrate Judge concluded that the petition should be dismissed because the two (2) claims upon
which the petition is based are both procedurally defaulted, and Petitioner cannot make the
requisite showing to excuse the procedural default. R&R, 25.
Petitioner filed objections on November 6, 2023. ECF No. 12. Respondent did not file any
objections and did not file a response to Petitioner’s objections; however, Respondent argued for
dismissal in its return of writ. ECF No. 6. When a party raises timely objections to a magistrate
judge’s report and recommendation, the court “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C).

[2]

DISCUSSION
Petitioner raises two (2) grounds for relief. The Court will first address Petitioner’s claim
(raised as “Ground Two” in the petition) that his guilty plea was not made knowingly, intelligently,
or voluntarily (hereinafter sometimes referred to as “trial error”). ECF No. 1, PAGEID # 35. Next,
the Court will address Petitioner’s claim (raised as “Ground One” in the petition) that he received
ineffective assistance of appellate counsel. Id. at PAGEID # 33. Importantly, Petitioner’s claim of
ineffective assistance of appellate counsel alleges that his appellate counsel was ineffective for
failing to raise, on direct appeal, the issues which constitute the trial error. Id.
Petitioner entered his plea on February 12, 2020, and was sentenced on the same day. The
trial court memorialized the plea and sentence in a journal entry dated February 21, 2020, which
stated a “mandatory sentence of fourteen (14) years” for Petitioner. ECF No. 5, PAGEID # 77.
However, while Petitioner’s direct appeal was pending, the trial court filed a nunc pro tunc entry
on May 6, 2020, purporting to “correct an error” in the original sentencing entry. Id. at PAGEID
# 80. On June 22, 2020, with Petitioner’s appeal still pending, the trial court filed another nunc pro
tunc “to correct an error in the Amended Entry previously filed.” Id. at PAGEID # 88.2
For the relevant procedural history of Petitioner’s direct appeal and subsequent challenges
to his sentence, the Court turns to the Magistrate Judge’s summary, set forth as follows:
A. Direct Appeal
On March 9, 2020, Petitioner, proceeding pro se, filed a timely
notice of appeal to the Ohio Fourth District Court of Appeals. (Doc. 5 at
PAGEID # 96-106.) The appellate court appointed counsel for Petitioner,
and Petitioner raised three assignments of error:
First Assignment of Error: The trial court did not have
jurisdiction to resentence defendant-appellant.
2

The specific corrections made in the nunc pro tunc entries are not pertinent to this opinion except to the extent that
they signal confusion on the part of the sentencing court.

[3]

Second Assignment of Error: The defendant-appellant’s
plea was involuntary and must be vacated.
Third Assignment of Error: The indefinite sentencing
scheme adopted by the Reagan Tokes Act is an
unconstitutional violation of separation of powers, such
that defendant’s sentence must be vacated.
(Id. at PAGEID # 110.)
On February 22, 2021, the state appellate court issued a decision
sustaining Petitioner’s first assignment of error and overruling Petitioner’s
second and third assignments of error. (Id. at PAGEID # 151-69.) With
respect to the first assignment of error, the appellate court determined that
the trial court’s amended sentencing entries were “legal nullities” because
the trial court no longer had jurisdiction to act once the notice of appeal
was pending. (Id. at PAGEID # 158.) The court of appeals remanded the
case to the trial court, authorizing the trial court to file new amended
sentencing entries, because “generally nothing precludes a trial court from
filing amended entries after a remand.” (Id.)
Petitioner did not appeal the decision of the Fourth District Court
of Appeals to the Ohio Supreme Court, and his filing deadline expired
April 8, 2021.
B. Amended Sentencing Entry
On March 15, 2021, and pursuant to the remand from the court of
appeals, the trial court filed an amended sentencing order correcting
Petitioner’s original sentencing entry. (Doc. 5, at PAGEID # 349-56.)
Petitioner did not appeal the amended sentencing entry.
C. Post-Conviction
On July 29, 2020, Petitioner, proceeding pro se, filed a postconviction action seeking to vacate or set aside his conviction. (Doc. 5, at
PAGEID # 199-223.) Petitioner set forth three claims for relief all
asserting ineffective assistance of trial counsel:

[4]

Claim One: [Petitioner] was deprived of [his] Sixth
Amendment right to counsel because trail [sic] counsel was
ineffective.
Claim Two: [Petitioner] was deprived of [his] Sixth
Amendment right to effective assistance of counsel, right
to a speedy and public trail [sic], right to call witnesses in
[his] defense.
Claim Three: [Petitioner] was denied the 5th and
Fourteenth and the Sixth was denied due process and right
to efftive [sic] assistance of counsel.
(Id. at PAGEID 202, 209, 214.).
On August 18, 2020, the trial court denied the petition for
postconviction relief, finding Petitioner “made a knowing, intelligent, and
voluntary guilty plea in the presence of counsel and the Court,” and
Petitioner’s plea “waived any claim that his counsel was ineffective.” (Id.
at PAGEID # 262.)
Petitioner did not appeal the trial court’s decision denying postconviction relief.
D. Rule 26(B) Application to Reopen Appeal.
On April 26, 2021, Petitioner filed a pro se application to reopen
his direct appeal pursuant to Ohio App. R. 26(B). (Doc. 5, at PAGEID #
170-86.) Petitioner alleged appellate counsel provided ineffective
assistance of counsel on direct appeal by failing to raise the following
claim:
The trial court erred in the prejudice of appellant in its
acceptance of a guilty plea which was not knowing,
intelligent and voluntary, in violation of appellant’s due
process rights under the Fifth and Fourteenth Amendments
to the United States Constitution and Article I, Section 16
[of] the Ohio Constitution.
(Id. at PAGEID # 172.) The gist of Petitioner’s claim was that appellate
counsel should have alleged that the trial court erred by “misadvising him
of the mandatory nature of his prison term” and “advising him that, before
he serves his maximum prison term, he may be eligible to earn credit
[5]

against his prison term and be eligible for early release.” (Id. at PAGEID
# 192.)
On September 28, 2021, the state appellate court declined to reopen
the direct appeal, finding Petitioner failed to establish a genuine issue as
to whether he was deprived of the effective assistance of counsel on direct
appeal. (Id. at 187-98.) Petitioner had until November 12, 2021, to appeal
the decision of the court of appeals denying his Rule 26(B) application.
The Ohio Supreme Court refused to consider Petitioner’s appeal, because
it was received three days late, on November 15, 2021. (Doc. 8, at
PAGEID # 520.)
E. Motion to Withdraw Plea
On March 15, 2021, Petitioner filed a motion to withdraw his guilty
plea. (Doc. 5, at PAGEID # 299.) On March 17, 2021, the trial court denied
the motion. (Id. at PAGEID # 348.) Petitioner did not appeal the trial
court’s decision.
F. Second Motion to Withdraw Plea
On November 19, 2021, Petitioner filed a second motion to
withdraw his guilty plea. (Doc. 5 at PAGEID # 357-58.). On May 24,
2022, the trial court denied the motion. (Id. at PAGEID # 359.) Petitioner
did not file a notice of appeal.3
R&R, 3-6. Additionally, the Magistrate Judge thoroughly and accurately outlined the applicable
law regarding federal habeas petitions and the doctrine of procedural default:
[AEDPA]
Because this is a habeas corpus case, provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub.L. 104-132, 110 Stat. 1214, apply to this case. See Lindh v. Murphy,
521 U.S. 320, 336 (1997). The AEDPA limits the circumstances under
3

This appears to be incorrect, as the state court record shows that Petitioner filed a notice of appeal on June 22, 2022.
ECF No. 5, PAGEID # 382. The Court takes judicial notice of the docket for case number 19CR000511 in the
Washington County Court of Common Pleas, which indicates that this appeal was dismissed as moot.

[6]

which a federal court may grant a writ of habeas corpus with respect to
any claim that was adjudicated on the merits in a state court proceeding.
Specifically, under AEDPA, a federal court shall not grant a writ unless
the state court adjudication “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,” 28 U.S.C. §
2254(d)(1), or “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)(2). Section 2254(d)(1) circumscribes a federal court’s review of
claimed legal errors, while § 2254(d)(2) places restrictions on a federal
court’s review of claimed factual errors. This standard is “intentionally
difficult to meet.” Woods v. Donald, 575 U.S. 312, 316 (2015).
Additionally, this Court’s habeas review is limited to the record that was
before the state court that adjudicated the claim on the merits. Cullen v.
Pinholster, 563 U.S. 170 (2011).
[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 first present
those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c).
If the prisoner fails to do so, but still has an avenue open to present the
claims, then the petition is subject to dismissal for failure to exhaust state
remedies. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing
Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has
failed to exhaust claims but would find those claims barred if later
presented to the state courts, “there is a procedural default for purposes of
federal habeas.” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
Over time, the term “procedural default” has come to describe a
situation where a person convicted of a crime in a state court fails (for
whatever reason) to properly present a particular claim to the highest court
[7]

of the state so that the state has a fair chance to correct any errors made in
the course of the trial or the appeal, before a federal court intervenes in the
state criminal process. This “requires the petitioner to present ‘the same
claim under the same theory’ to the state courts before raising it on federal
habeas review.” Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004)
(quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the
aspects of “fairly presenting” a claim to the state courts is that a habeas
petitioner must do so in a way that gives the state courts a fair opportunity
to rule on the federal law claims being asserted. That means that if the
claims are not presented to the state courts in the way in which state law
requires, and the state courts therefore do not decide the claims on their
merits, neither may a federal court. As the Supreme Court found in
Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law
which were not resolved on the merits in the state proceeding due to [the]
failure to raise them there as required by state procedure” also cannot be
resolved on their merits in a federal habeas case – that is, they are
“procedurally defaulted.” It is well settled that “[a] common example of a
procedural default is a failure to raise a claim in state court in a timely
manner.” Gibbs v. Huss, 12 F.4th 544, 550 (6th Cir. 2021).
To determine whether procedural default bars a habeas petitioner’s
claim, courts in the Sixth Circuit engage in a four-part test. See Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also McNeill v. Bagley, 10
F.4th 588, 595 (6th Cir. 2021) (citing the four-part Maupin standard). First,
the court must determine whether there is a state procedural rule that is
applicable to the petitioner’s claim and whether the petitioner failed to
comply with the rule. Second, the court must determine whether the state
courts actually enforced the state procedural sanction. Third, the court
must determine whether the forfeiture is an adequate and independent state
ground on which the state can rely to foreclose review of a federal
constitutional claim. Finally, if the court determines that a state procedural
rule was not complied with and the rule has an adequate and independent
[8]

state ground, then the petitioner may still obtain review of his or her claims
on the merits if the petitioner establishes: (1) cause sufficient to excuse the
default and (2) that he or she was actually prejudiced by the alleged
constitutional error. Maupin, 785 F.2d at 138. In order to establish cause,
a petitioner must show that “some objective factor external to the defense”
impeded the petitioner’s efforts to comply with the state’s procedural rule.
Murray v. Carrier, 477 U.S. 478, 488 (1986). The petitioner bears the
burden of showing cause and prejudice. Hinkle v. Randle, 271 F.3d 239,
245 (6th Cir. 2001).

R&R, 7-9, ECF No. 10. Petitioner and Respondent each offer summaries of the law consistent with
that set forth above; in other words, there appears to be no dispute as to the applicable law and
standard of review.
Based on the above procedural history and relevant law, the Magistrate Judge determined
that both claims were procedurally defaulted. Id. at 15. However, the Magistrate Judge further
concluded that Petitioner could establish cause sufficient to excuse his procedural default due to
prison mailroom delays which stymied his efforts to exhaust his state court remedies. Id. at 19.
Naturally, Petitioner does not object to that conclusion. However, the Magistrate Judge determined
that Petitioner could not establish prejudice. Id. at 25. The Court construes Petitioner’s objections
as primarily disputing the no-prejudice conclusion.4
With regard to the procedural default analysis, Petitioner’s grounds for relief take on a
nesting-doll character, as illustrated by the following passages in the R&R:
In this case, Petitioner committed more than one procedural
default… Here, Petitioner failed to raise the underlying claim of trial

Petitioner also objected to the Magistrate Judge’s summary of the facts and procedural history. The Court considers
Petitioner’s objections in that regard to be, effectively, another means of disputing the Magistrate Judge’s conclusion
that he could not establish prejudice, which is the only substantive legal holding at issue.
4

[9]

court error set forth as his second claim for relief on direct appeal. Further,
once Petitioner sought to assert a claim of ineffective assistance of
appellate counsel for failing to raise that claim of trial court error on direct
appeal, Petitioner did not timely appeal the adverse decision of the court
of appeals dismissing his Rule 26(B) application…
Because the Undersigned has determined Petitioner cannot
establish prejudice resulting from appellate counsel’s failure to raise the
substantive claim of trial court error in connection with the plea,
Petitioner cannot establish the required prejudice to excuse the default of
his ineffective assistance of appellate counsel claim set forth as his first
claim for relief. Because that ineffective assistance of appellate counsel
claim is defaulted, that claim cannot excuse the procedural default of the
substantive claim of trial court error set forth as the second claim for relief
in these habeas proceedings.

Id. at 15, 25. As noted, the Court agrees with and adopts the Magistrate Judge’s summation of the
applicable law and his determination that both claims were procedurally defaulted; however, the
Court reaches a different conclusion as to whether Petitioner has made the requisite showing to
excuse his procedural default.
The Court will first consider whether Petitioner’s plea was made voluntarily, knowingly,
and intelligently. If Petitioner can establish a constitutional error in the trial court’s acceptance of
his plea, and that he was prejudiced by such error, the Court must next consider whether
Petitioner’s appellate counsel was objectively unreasonable for failing to raise the issue of the
constitutional defect on direct appeal. On the other hand, if the plea is determined to be
constitutionally sound, or if Petitioner establishes a constitutional error but cannot demonstrate a
prejudicial effect therefrom, both claims in the instant petition must fail, because (as the Magistrate
Judge concluded) Petitioner would be unable to show that his appellate counsel was objectively
[10]

unreasonable for failing to raise an issue where there was none. See Wells v. Potter, No. 16-4133,
2018 WL 1614273, at *2 (6th Cir. Jan. 24, 2018) (“[Petitioner] does not show that appellate
counsel was ineffective for failing to raise a claim on appeal if the underlying claim itself lacks
merit.”). The Magistrate Judge began his analysis on the other end (reflecting the order in which
the claims are presented in the petition) by first addressing the claim of appellate error. However,
as the R&R demonstrates, the prejudice analysis for a claim of ineffective assistance of appellate
counsel “necessarily involves an examination of the merits of the underlying claim.” ECF No. 10,
19. The claims are mutually dependent on one another, but all roads lead to the guilty plea. This
Court thus begins at the beginning.
I.

Petitioner’s Claim That His Plea Was Involuntary (“Trial Error”)
To comport with the due process mandates of the Fourteenth Amendment, a guilty plea

must be entered voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct.
1709, 1711, 23 L. Ed. 2d 274 (1969). A plea is entered voluntarily and intelligently when the
defendant has “sufficient awareness of the relevant circumstances and likely consequences.” Brady
v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970). More
specifically, the defendant must be apprised “of the direct consequences of the plea”; but “the trial
court is under no constitutional obligation to inform the defendant of all the possible collateral
consequences of the plea.” King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994). When distinguishing
between a direct versus collateral consequence, the Sixth Circuit has described the latter as “one
that remains beyond the control and responsibility of the district court in which that conviction
was entered.” Kratt v. Garvey, 342 F.3d 475, 485 (6th Cir. 2003). A plea can only be voluntary if
the defendant is aware of the maximum possible sentence for the offenses to which they are
pleading. King, 17 F.3d at 154. Thus, consideration of the voluntariness of Petitioner’s plea

[11]

requires the Court to consider the relevant criminal statutes and applicable sentencing provisions
of Ohio law.
A.

Ohio’s Sentencing Scheme

In Ohio, the Reagan Tokes Law (“RTL”) adds an extra wrinkle to the determination of a
defendant’s maximum sentence for certain offenses. O.R.C. § 2901.011. The RTL requires Ohio
courts to impose indefinite sentences for most first- and second-degree felonies, such that an
offender’s sentence for such felonies will be stated in the form of “minimum” and “maximum”
terms of incarceration. O.R.C. § 2929.14. The minimum term is “selected by the court” from the
relevant terms of years set forth in the statute.5 Id. However, the maximum term is determined by
the procedure set forth in O.R.C. § 2929.144, which provides, as relevant to the instant case:
(2) If the offender is being sentenced for more than one felony, if
one or more of the felonies is a qualifying felony of the first or
second degree, and if the court orders that some or all of the prison
terms imposed are to be served consecutively, the court shall add all
of the minimum terms imposed on the offender under division
(A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a
qualifying felony of the first or second degree that are to be served
consecutively and all of the definite terms of the felonies that are not
qualifying felonies of the first or second degree that are to be served
consecutively, and the maximum term shall be equal to the total
of those terms so added by the court plus fifty per cent of the
longest minimum term or definite term for the most serious
felony being sentenced.
O.R.C. § 2929.144(B)(2) (emphasis supplied). The RTL provides that “there shall be a
presumption that the person shall be released from service of the sentence on the expiration of the
offender’s minimum prison term.” O.R.C. § 2967.271. This presumption can be rebutted—and the

E.g., as applicable to the instant case: “For a felony of the second degree… the prison term shall be an indefinite
prison term with a stated minimum term selected by the court of two, three, four, five, six, seven, or eight years.”
O.R.C. § 2929.14
5

[12]

offender can be made to serve his/her sentence up to the maximum term as calculated above—
upon certain determinations made by the department of rehabilitation and correction. Id.
Math-averse jurists will find cold comfort that the RTL sentencing scheme, since first
going into effect in March 2019, has spawned abundant litigation and vastly differing conclusions
on its constitutional validity. See, e.g., State v. Maddox, 2022-Ohio-764, 168 Ohio St. 3d 292, 198
N.E.3d 797 (Supreme Court of Ohio opinion with three dissents as to the ripeness of a
constitutional challenge to RTL); State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536, appeal
allowed, 2022-Ohio-1485, 166 Ohio St. 3d 1496, 186 N.E.3d 830, and aff'd sub nom. In re Cases
Held for State v. Hacker & State, 2023-Ohio-3863, 174 Ohio St. 3d 92, 234 N.E.3d 403, cert.
denied sub nom. Shepard v. Ohio, No. 23-7094, 2024 WL 2805805 (U.S. June 3, 2024) (en banc
appellate panel denying constitutional challenge to RTL, vacating prior holding finding law
unconstitutional; four separate opinions); cf. § 118:4.50. Legal Challenges to Reagan Tokes Act,
Baldwin's Oh. Prac. Crim. L. § 118:4.50 (3d ed.) (cataloging challenges under various theories and
case examples).
Before the Supreme Court of Ohio weighed in, constitutional challenges to the RTL found
disparate reception across Ohio’s twelve appellate districts. See State v. Hearn, 2021-Ohio-594, ¶
29-34 (summarizing then-state of appellate district split on constitutionality of RTL). On July 26,
2023—well after Petitioner commenced the instant habeas action—the Supreme Court of Ohio
settled the split, rejecting the three predominant theories of constitutional challenges by holding:
(1) that RTL does not violate the separation of powers doctrine; (2) that RTL does not violate the
right to a jury trial; and (3) that RTL is not void for vagueness, and does not otherwise violate
procedural due process. State v. Hacker, 2023-Ohio-2535, 173 Ohio St. 3d 219, 229 N.E.3d 38.

[13]

Petitioner does not challenge the constitutionality of RTL, but the complexities of the law provide
important background for this case.
Petitioner pleaded guilty to two counts of Felonious Assault under O.R.C. § 2903.11, each
a second-degree felony. Under Ohio law, a term of incarceration is presumptively appropriate for
any second-degree felony, though that presumption can be rebutted. See O.R.C. § 2929.13(D)(1)
(“[F]or a felony of the first or second degree… it is presumed that a prison term is necessary in
order to comply with the purposes and principles of sentencing.”). However, O.R.C. § 2929.13(F)
sets forth the circumstances in which the imposition of a prison term is mandatory, 6 and paragraph
(F)(6) specifically requires a term of imprisonment for “Any offense that is a first or second degree
felony… if the offender was previously convicted of or pleaded guilty to… any first or second
degree felony.” O.R.C. § 2929.13(F)(6); see also State v. Paskins, 2022-Ohio-4024, ¶¶ 100-104
(discussing application of 2929.13(F) in detail).
Under Ohio law, a mandatory sentence such as Petitioner’s is in fact “mandatory” in two
senses: first, it is imposition-mandatory in the sense that the sentencing court has no discretion to
impose a non-prison sanction. See O.R.C. § 2929.13(F)(6). The imposition of the sentence is
mandated.7 But a sentence such as Petitioner’s is also service-mandatory in the sense that it renders
him ineligible for various statutory programs, such as judicial release, which allow a sentence to
be reduced—i.e., the service of the (complete) sentence is mandatory. Id. 8 Ohio law does not
specifically articulate this imposition/service distinction, but it’s useful here: to the extent that

6

While O.R.C. § 2929.13(F)(6) does not specifically describe the prison sanction imposed on Petitioner as
“mandatory,” the Ohio Revised Code elsewhere defines “mandatory prison term” to include those that the court “shall”
impose under (F)(6). O.R.C. § 2929.01.
7
To be clear, a sentence may be imposition-mandatory, but in many cases the court has discretion to choose among
prison terms of different duration as set forth in the applicable statute. See supra n.5.
8
Specifically, O.R.C. § 2929.13(F) commands that “the court shall impose a prison term or terms” and “shall not
reduce the term or terms” pursuant to O.R.C. § 2929.20 (judicial release), 2967.193 (sentence reduction for
participation in certain programs), or 2967.194 (additional sentence reduction provisions). O.R.C. § 2929.13
(emphasis supplied).

[14]

Petitioner seeks relief based on his ignorance of the “mandatory nature” of his sentence, he has a
stronger claim as to its service-mandatory nature than its imposition-mandatory nature.
A final note of clarification: an indefinite sentence imposed under RTL refers to a
“minimum term” or “definite term”—i.e., the presumptive sentence to be served absent certain
determinations by the department of rehabilitation and corrections. On first impression, the
descriptors “minimum” and “definite” appear to be synonymous, in some sense, with “mandatory,”
such that one could reason that an offender could serve nothing less than the “minimum” term,
and that its “definite” nature means it cannot be reduced by judicial release or good time credit.
But Ohio law makes clear that the “minimum prison term” imposed under RTL can be reduced by
judicial release or good time credit to the extent the offender is eligible (O.R.C. § 2967.271(A)(1)),
and a sentencing court retains discretion to impose non-prison sanctions for certain RTL offenses,
unless otherwise provided by the revised code (O.R.C. § 2929.13). In sum, a “minimum term” in
the context of RTL does not (necessarily) describe a mandatory sentence.
In the instant case, Petitioner had a prior conviction for felonious assault,9 thus requiring
the trial court to impose a prison sentence (i.e., the sentence was imposition-mandatory) which
was not eligible to be reduced by Petitioner’s program participation or by function of judicial
release (i.e., the sentence was also service-mandatory). O.R.C. § 2929.13(F). Unfortunately,
Petitioner was not advised of the mandatory nature of his sentence, in either sense, and the record

Petitioner argues that the State coerced his plea by improperly including Repeat Violent Offender (“RVO”)
specifications as to each felony count of the original indictment, pursuant to O.R.C. § 2941.149. Petitioner contends
that the State, in a pretrial discovery response, purported that “the Defendant has a known criminal history” and listed
three (3) previous Felonious Assaults and one (1) charge of Rape. Petitioner argues that two (2) of the Felonious
Assaults were “completely falsified/fabricated” and that the Rape charge ended in Petitioner’s acquittal, thus making
the RVO specifications inapplicable. Setting aside Petitioner’s arguments regarding coercion and the RVO
specifications, there is no dispute that Petitioner had at least one (1) prior Felonious Assault at the time of his
sentencing in this case.
9

[15]

reveals numerous instances in which Petitioner was given misleading or outright incorrect
information.
B.

Issues with Petitioner’s Plea

The written plea agreement, as signed by Petitioner, states “I understand that the
MAXIMUM penalty COULD be: a maximum basic prison term of 20 years of which 0 years are
mandatory, during which I am NOT eligible for judicial release or community control.” ECF No.
5, PAGEID # 68. This is incorrect. In fact, the maximum term for Petitioner’s offenses would be
20 years, of which 16 years would be mandatory—i.e., could not be abridged by judicial release
or Petitioner’s earning of good time credit. See O.R.C. § 2929.144(B)(2). By incorrectly stating
that “0 years” were mandatory, the written plea agreement falsely suggested that Petitioner could
be eligible for community control instead of a prison sentence. Worse, by indicating that Petitioner
would be ineligible for judicial release for “0 years,” the plea agreement gave the stark impression
that the sentence was not service-mandatory, and that Petitioner would be always eligible for
judicial release—even under the “MAXIMUM penalty.” ECF No. 5, PAGEID # 68
The erroneous information recited in the plea agreement was not cured by the plea
colloquy. Indeed, a review of the transcript of the plea and sentencing reveals that Petitioner was
never advised that his sentence was mandatory, and that, if anything, representations at the hearing
only compounded the confusion. For example, during sentencing, the court stated its findings that
“a prison term is consistent with the purposes and principles of sentencing and that the Defendant’s
not amenable to any available community control sanction.” ECF No. 5, PAGEID # 422. Given
that Ohio law mandated the imposition of a prison sentence, such findings were superfluous.
Petitioner cannot argue that this statement contributed to inducing his guilty plea, because the court
had already accepted his plea by that point. However, statements such as this and others cast

[16]

considerable doubt on the sentencing court’s own understanding of the applicable law, and, in turn,
undermine any confidence that Petitioner could have had “sufficient awareness of the relevant
circumstances and likely consequences.” Brady, 397 U.S. at 748. Similarly, though the court
reiterated the plea agreement’s language that “most prison inmates are eligible to earn days of
credit,” but that “some inmates… are not eligible,” it failed to inform Petitioner that his plea put
him squarely in the latter category, pursuant to O.R.C. § 2929.13(F). ECF No. 5, PAGEID # 424.
During the plea colloquy, the court and Petitioner’s trial counsel engaged in a lengthy
discussion regarding the (then-new) RTL which hardly clarified Petitioner’s sentencing outlook.
When the court first mentioned RTL and its potential to extend Petitioner’s sentence by three-anda-half (3.5) years, Petitioner asked, “Does that even apply to me?” Id. at PAGEID # 412. The
correct answer was, unambiguously, “yes.” But instead, the court responded, “It’s currently being
litigated, as to its Constitutionality.” Id. While it appears that Petitioner was effectively informed
of the gist of what RTL meant for his sentence—that the 14-year minimum prison term could be
extended by 3.5 years “for being bad” (Id. at PAGEID # 413)—it was likely paired with a strong
impression that RTL would be held unconstitutional before it would ever apply to him. Petitioner’s
trial counsel explicitly stated, “I told my client, in my opinion, it will not survive a legal challenge,
but I can’t guarantee that.” Id. Fanning the uncertainty, the court replied, “Right. None of us can
guarantee what’s going to happen with the future of that particular law.” Id. Openly considering
the unconstitutionality of a statute while at once sentencing a defendant upon that same statute
naturally raises concerns of propriety, and, in any event, only risks obfuscating the particularities
of the sentence being imposed. Later, during sentencing, Petitioner’s trial counsel took care to state
his objection to the constitutionality of RTL on the record, but then, puzzlingly, stated, “I’ve

[17]

explained to [Petitioner], he does not have to file his own appeal on [RTL], since it’s a
Constitutional issue.” Id. at PAGEID # 420. Again, the court indicated assent. Id.
Near the very end of the hearing, after the court had imposed the sentence and asked
counsel if they had anything further to put on the record, Petitioner asked, “is there any way that I
can get an earlier release, like after ten years?” Id. at PAGEID # 425. As with the application of
RTL to Petitioner’s sentence, the law dictated the unambiguous answer: no. The nature of his
sentence excluded him from the various statutory sentence-reduction provisions available to Ohio
inmates in the ordinary course. See supra, § I.A. The sentencing court directed Petitioner to talk
to his attorney regarding earlier release, but by then the plea had been accepted and the sentence
imposed, despite Petitioner’s question evincing a fundamental misunderstanding of the servicemandatory nature of his sentence. ECF No. 5, PAGEID # 425-26.
C.

State Court Findings

In recommending dismissal of this action, the Magistrate Judge largely followed the
reasoning of the Fourth District Court of Appeals when it dismissed Petitioner’s application to
reopen his appeal. As to the patently incorrect “MAXIMUM penalty” on the face of the plea
agreement, the Fourth District found no issue because the plea agreement also accurately states the
agreed disposition of seven years on each count. ECF No. 5, PAGEID 193-97. Indeed, on page 2
of the plea agreement, the agreed disposition is stated as “Plead to counts 1 and 2, remaining counts
and the specifications will be dismissed. Serve a 7 year prison term on each count consecutively,
up to a maximum possible term of 17 ½ years.” Id. at PAGEID # 69. From this, the Fourth District
concluded that “while one part of the agreement states that zero years of appellant’s penalty are
mandatory, another part of the document correctly sets forth the plea and the correct nature of
the penalty.” Id. at PAGEID # 194 (emphasis supplied). The Fourth District did not explain how

[18]

Petitioner was to heed only the correct portions of his plea agreement and disregard the incorrect
portions, thus arriving at a constitutionally appropriate understanding of his sentence.
But even if this Court assumes Petitioner could somehow differentiate between correct and
incorrect portions of the agreement he signed, this line of reasoning would still depend on the plea
agreement actually stating the correct information. Presumably, “the correct nature of the penalty”
would include the mandatory imposition of a prison term which could not be reduced by judicial
release and good time credit; i.e., that his sentence was imposition-mandatory and servicemandatory. But, despite the Fourth District’s conclusion to the contrary, the plea agreement does
not actually say any of that, anywhere.10 Id. at PAGEID # 68-70. Even so, the Fourth District was
satisfied that “the trial court advised appellant of the mandatory nature of his sentence during the
plea colloquy, at sentencing, and in the sentencing entry.” Id. at PAGEID # 194. But again, the
record reflects no mention of the mandatory nature of Petitioner’s sentence at the plea colloquy.
Consider the following transcript excerpts quoted by the Fourth District to support its finding that
the trial court “spoke to the mandatory nature” of Petitioner’s sentence:
[Court:] You understand that the—while there’s an agreed
disposition of seven years on each of the charges, to run
consecutively with one another, the actual maximum on these
particular counts is eight years.11 But it’s—it’s—the agreement is
only doing seven. You understand that?
...
[Court:] As I indicated, there’s an agreed disposition that upon this
plea, the other counts and the specifications will be dismissed.12
In fact, the plea agreement states that “most prison inmates are eligible to earn days of credit against their prison
sentences.” Id. at PAGEID # 69. The plea agreement also mentions the possibility of community control. Id. But it
does not mention that, in each case, Petitioner’s guilty plea would render him categorically ineligible. Id.
11
Here, the court is referring to the longest definite term of incarceration available (pursuant to statute) for the offense
of second-degree felonious assault. See O.R.C. § 2929.14.
12
It’s possible that the dismissal of the specifications compounded Petitioner’s misunderstanding of the mandatory
nature of his sentence. As noted supra, n.9, Petitioner was charged with Repeat Violent Offender (“RVO”)
specifications as to each count in the original indictment. In most circumstances, a RVO specification carries an
imposition-mandatory prison sentence. See O.R.C. § 2929.14(B)(2). In all circumstances, a sentence imposed for a
RVO specification is service-mandatory, i.e., cannot be reduced by judicial release or good time credit. Id. at (B)(2)(d).
But the dismissal of these specifications did not affect the service-mandatory nature of Petitioner’s sentence.
10

[19]

You’re going to get seven years on each of the two counts. It’ll be
consecutive. So it’ll be fourteen years.
Id. at PAGEID # 193. Neither of these statements gave any indication that Petitioner’s sentence
would be mandatory in either sense.13 And regardless of whether the mandatory nature was
mentioned during sentencing (it was not) or in the sentencing entry (it was),14 by that point, the
plea had already been offered and accepted in open court. Notably, the trial court proceeded to
sentence Petitioner immediately after accepting his plea. Id. at PAGEID # 417.
Despite no mention of the mandatory nature of Petitioner’s sentence prior to the acceptance
of his plea, the Fourth District found that the trial court “sufficiently complied” with Criminal Rule
11: “Expressing an understanding of the maximum sentence includes an inherent understanding
that the mandatory nature of the sentence would make him ineligible for community control
sanctions, early release, and earned credit.” Id. at PAGEID # 196. Again, the knowledge attributed
to Petitioner is not supported by the record. Petitioner was advised via the plea agreement that “0
years” were mandatory, an error which was never corrected during the colloquy—thus, to the
extent that Petitioner “express[ed] an understanding of the maximum sentence,” his understanding
was fundamentally incorrect. As this Court sees it, the Fourth District had it backwards:
understanding the service-mandatory nature of the (maximum) sentence—i.e., that Petitioner was
ineligible for community control, early release, and earned credit—is inherent to understanding
the maximum sentence.

As noted, Petitioner’s ignorance of the service-mandatory nature of his sentence is more significant than his
ignorance of its imposition-mandatory nature. Though it appears likely that he was ignorant as to both, he cannot
reasonably contend that his ignorance of the imposition-mandatory nature had a prejudicial effect, given that he
entered a plea agreement in which he agreed to be sentenced to prison, and the court made clear its intent to follow
the agreed disposition. In contrast, nothing in the plea agreement or the hearing transcripts indicates that Petitioner
knowingly agreed to a service-mandatory sentence.
14
Briefly—the sentencing entry was amended, via nunc pro tunc, no less than three (3) times. By the third iteration,
the sentencing court had removed the word “mandatory” and replaced it with “definite” in most (but not all) instances
in the entry. ECF No. 5, PAGEID 349-356.
13

[20]

Though AEDPA requires that this Court defer to the factual determinations of the state
courts, the requirement gives way when such factual determinations are not “fairly supported by
the record.” Hart v. Marion Corr. Inst., 927 F.2d 256, 257 (6th Cir. 1991); see also 28 U.S.C. §
2254(d)(2). In Hart, the petitioner was repeatedly advised by the court and his counsel that he
would serve only fifteen years, when in fact he was sentenced (under a prior indefinite sentencing
scheme) to a term of thirty to seventy-five years in prison. Id. at 257. Despite the stark difference
between the on-the-record advice provided to the petitioner and his actual sentence, the state
appellate court determined that the petitioner “was aware of the actual sentencing possibilities.”
Id. at 259. But the Sixth Circuit found no support in the record for this determination, noting that
“nowhere does the record show that [petitioner] was informed before entering his plea of the true
sentence.” Id. at 258. In fact, the record appeared to show that the sentencing judge and the
petitioner’s counsel were both confused, further undermining the state court factual determination
that the petitioner “was aware of the actual sentencing possibilities.” Id. at 258-259 (noting from
the transcript “evidence that the trial judge himself did not understand the consequences of the
plea agreement and, accordingly, did not give [petitioner] correct information on the consequences
of his plea.”). Therefore, finding deference to state court factual determinations to be unwarranted
upon the record before it, the Sixth Circuit determined that the petitioner’s plea was not entered
voluntarily, and thus habeas relief was appropriate. Id. at 259.
In Wells v. Potter, an unpublished opinion, the Sixth Circuit considered a habeas petition
from an Ohio inmate arguing that “the trial court improperly failed to advise him during his guilty
plea colloquy that his sentence included a mandatory term of incarceration, thereby rendering him
ineligible for judicial release.” No. 16-4133, 2018 WL 1614273, at *2 (6th Cir. Jan. 24, 2018). The
petitioner maintained that he would not have pleaded guilty if he knew that he was ineligible for

[21]

judicial release. Id. at *3. However, the Sixth Circuit noted that “while the court did not inform
[petitioner] that he would be ineligible for judicial release, Ohio courts are not required to provide
this information as part of the plea colloquy, absent some misstatement elsewhere regarding
that fact.” Id. (citations omitted) (emphasis supplied). No such misstatement appeared in the
record in Wells. In contrast, as discussed above, the written plea in the instant case agreement gave
the clear, erroneous impression that Petitioner’s eligibility for judicial release was not at risk by
providing that, even under the maximal sentence, Petitioner would be ineligible for judicial release
for “0 years.” ECF No. 5, PAGEID # 68. While this may seem like a circuitous way to
communicate Petitioner’s eligibility for judicial release, it’s a much stranger way to communicate
that he is ineligible.
For the reasons above, this Court departs from the determination of the state appellate
court, and instead finds that Petitioner’s plea was not entered with “sufficient awareness of the
relevant circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748, 90
S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970). Therefore, the plea was not voluntarily and intelligently
entered. However, in order for Petitioner to overcome the procedural default of this claim, he must
make the additional showing that he was prejudiced by the constitutional error such that it affected
his substantial rights.15
D.

Prejudice

To demonstrate prejudice, the Supreme Court has held that “in cases where the burden of
demonstrating prejudice (or materiality) is on the defendant seeking relief,” the defendant must

As noted, Petitioner must also show “cause sufficient to excuse the default” in addition to actual prejudice. Maupin
v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Petitioner’s showing of cause with regard to his claim of trial error depends
on his successful presentation of his claim for ineffective assistance of appellate counsel. See sub. § II. In other words,
Petitioner’s failure to properly present his claim of constitutional trial error on appeal can be excused if Petitioner can
show that his appellate counsel was constitutionally ineffective for doing so.
15

[22]

show “a reasonable probability that, but for [the error claimed], the result of the proceeding would
have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 81–82, 124 S. Ct. 2333,
2339, 159 L. Ed. 2d 157 (2004) (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375,
87 L.Ed.2d 481 (1985)). In the context of alleged errors concerning a court’s acceptance of a guilty
plea, the Supreme Court has that prejudice must be shown by “a reasonable probability that, but
for the error, he would not have entered the plea.” Dominguez Benitez, 542 U.S. at 83. This Court
finds that Petitioner has made the requisite showing to establish that he was prejudiced by the trial
court accepting his plea which he did not enter voluntarily or intelligently.
Petitioner maintains that he had a legitimate argument that he was acting in self-defense,
and to that end he contends that he had arranged for multiple witnesses to appear and testify on his
behalf at a final pretrial hearing scheduled on February 3, 2020. Numerous affidavits in the record
appear to confirm that Petitioner had witnesses ready to testify in his defense. ECF No. 5, PAGEID
# 216-23. The affidavits, appearing to be executed by Petitioner’s sister, brother, sister-in-law, and
the mother of his children, describe arriving at court on for the final pretrial hearing only to learn
that Petitioner’s counsel was ill and thus the hearing would be continued. Id. The very next day,
February 4, Petitioner appeared with counsel to decline an offer of disposition from the State of
Ohio.16 Id. at PAGEID # 403-05 Then, with his trial date set for February 18, Petitioner entered
his guilty plea at a hearing on February 12. The affidavits claim that the witnesses were unaware
of either hearing after February 3 despite Petitioner’s repeated requests to his counsel that they be
brought to court on his behalf.17 Id. The affidavits also describe meeting with Petitioner’s counsel
at his office and allege that he was dismissive of their expected testimony. Id.

16

The February 4 offer was for 8 years on each of the Felonious Assault counts, to be served consecutively, with the
remaining counts dismissed.
17
The transcript of the plea and sentencing hearing lends some support to the affiants’ contention that they were
prevented from appearing and testifying on Petitioner’s behalf. When the court asks counsel for the state if there is a

[23]

The merits of Petitioner’s self-defense argument are unclear from the thin factual record.
But while the prejudice inquiry requires a consideration of Petitioner’s chance at acquittal, it does
not “[look] to the probability of conviction for its own sake.” Lee v. United States, 582 U.S. 357,
367, 137 S. Ct. 1958, 1966, 198 L. Ed. 2d 476 (2017). In other words, even without fully
vindicating his affirmative defense at this stage, the sworn statements of multiple people willing
to testify on his behalf can still support Petitioner’s burden by demonstrating his willingness to
take the case to trial.
Petitioner’s obvious misunderstanding of the nature of his sentence also supports his
argument that he would not have accepted the plea deal. When Petitioner asked, “is there any way
that I can get an earlier release, like after 10 years?” he demonstrated a clearly flawed
understanding of the service-mandatory sentence that had just been imposed upon him. ECF No.
5, PAGEID # 425. He then said, “I got three children out there, and I’d just like to get back to
taking care of them.” Id. Prejudice is not established by the featherweight showing of a reason why
Petitioner would prefer less time in prison, but this statement further colors in the impression that
Petitioner subjectively believed himself to be receiving a materially different sentence in exchange
for his plea than what he in fact received. Therefore, this Court finds that Petitioner has shown a
reasonable probability that, but for the errors discussed supra, he would not have entered the plea.
In other words, had Petitioner been properly advised of the mandatory, irreducible nature of the
sentence that would be imposed upon him, his refusal of the offer appears reasonably probable.

victim impact statement, he replies “They were both notified today. Obviously, this was something quickly that was
happening, and they couldn’t make arrangements to be here.” ECF No. 5, PAGEID # 418. Additionally, while the
affiants generally insinuate that it was Petitioner’s counsel who avoided bringing them before the court, the
prosecution may have had its own reasons for avoiding such testimony, given that the mother of Petitioner’s children,
who originally requested (and received) a no-contact order as a term of Petitioner’s bond, (Id. at PAGEID # 399) had
by then reversed course and was seeking to testify in Petitioner’s defense as his trial approached. Id. at PAGEID #
221.

[24]

Petitioner’s Claim of Ineffective Assistance of Appellate Counsel
(“Appellate Error”)

II.

Petitioner claims that his counsel on direct appeal was ineffective for failing to raise
Petitioner’s claim of trial court error discussed supra, § I—i.e., constitutional error in the court’s
acceptance of Petitioner’s plea. Petitioner’s ineffective assistance claim does not offer independent
grounds for relief; rather, Petitioner must prosecute this claim to establish cause to excuse the
procedural default of his claim of trial error. Stated differently, Petitioner’s failure to raise his trial
error claim on direct appeal would ordinarily be a conclusive mistake, mandating the denial of the
claim; the claim can be saved, however, if Petitioner can show that the failure to raise it on direct
appeal was due to the constitutionally ineffective assistance of his appellate counsel. However,
Petitioner’s claim for ineffective assistance of appellate counsel is also procedurally defaulted,
requiring that Petitioner again make the dual showings of cause and prejudice.
A.

Cause

Petitioner first raised his claim of ineffective assistance of appellate counsel in an
application to reopen his appeal under Ohio App.R. 26(B), consistent with state procedural
requirements. ECF No. 5, PAGEID # 170-86; see also Williams v. Bagley, 380 F.3d 932, 971 (6th
Cir. 2004) (“Under Ohio law, claims of ineffective assistance of appellate counsel must be raised
in a motion for reopening before the court of appeals pursuant to Ohio App.R. 26(B).”). The Fourth
District Court of Appeals denied his Rule 26(B) application, and Petitioner’s attempt to appeal the
denial to the Ohio Supreme Court was rejected because the filing was untimely. The timeliness
required by Rule 26(B) has been held to be an “adequate and independent ground on which to find
procedural default.” Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010). However, because
Petitioner has shown that his failure to comply with the state procedural rule can be causally
attributed to “some objective factor external to the defense” (Murray v. Carrier, 477 U.S. 478, 488
[25]

(1986)), the Magistrate Judge determined that Petitioner had established cause as to this
procedurally defaulted claim:
With respect to the appeal of the denial of his Rule 26(B)
application, Petitioner asserts the prison mailroom was responsible
for the untimely filing, because he submitted his appeal paperwork
for delivery to the Ohio Supreme Court on November 4, 2021,
eight days before the November 12, 2021, deadline. (Doc. 8, at
PAGEID # 515, 518-19.) Ohio does not follow the federal “prison
mailbox rule,” which provides that submissions by pro se prisoners
“are considered filed at the moment of delivery to prison officials
for mailing.” Foster v. Warden, Chillicothe Corr. Inst., 575 F.
App’x 650, 653-54 (6th Cir. 2014) (citing Houston v. Lack, 487
U.S. 266, 271-72 (1988)). However, “a state’s ‘strict filing
deadline’ rule, which generally prevents its courts from
entertaining untimely submissions, does not apply to prevent
federal habeas courts ‘from excusing that procedural default
upon a finding of cause and prejudice.’” Kidd v. Warden, No.
1:13cv867, 2015 WL 269431, *7 (S.D. Oh. Jan. 21, 2015)
(Bertelsman, D.J., adopting Report and Recommendation)
(quoting Foster, 575 F. App’x at 654); Henderson v. Palmer, 730
F.3d 554, 560 (6th Cir. 2013); Maples v. Stegall, 340 F.3d 433, 439
(6th Cir. 2003))…
Petitioner has attached a copy of his prison account
statement showing a $2.36 debit from his account for “postage
charges” to the “Ohio Supreme Court” dated November 5, 2021,
seven days before his appeal filing was due on November 12, 2021.
(Doc. 8, at PAGEID # 519.) Petitioner has also attached a
postmarked envelope, addressed to the Ohio Supreme Court,
which was returned to him when that court rejected his appeal
filing. The envelope is clearly marked in large bold letters “Do Not

[26]

Delay, Legal Mail, Time Sensitive.” (Id. at PAGEID # 521.)
Although the postmark date is not legible on the copy submitted by
Petitioner, the Court affords Petitioner the benefit of the doubt that
the postmark reads November 9, 2021. Notably, Respondent has
not disputed this date or any of Petitioner’s contentions regarding
the mailing of his appeal. Based on these exhibits, it appears
Petitioner presented his legal mail to prison officials “in sufficient
time for [it] to arrive timely in the normal course of events.”
Maples, 340 F.3d at 439. Under these facts, Petitioner has
demonstrated cause for the late filing of his appeal that may be
able to excuse his procedural default.
ECF No. 10, 15-19 (emphasis supplied). This Court agrees in full with the reasoning and
determination of the Magistrate Judge regarding Petitioner’s demonstration of cause.18
B.

Prejudice

In addition to cause, Petitioner must also show “actual prejudice as a result of the alleged
constitutional violation.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). The constitutional
violation alleged is that Petitioner was denied effective assistance of appellate counsel. The
Supreme Court has long recognized the right to effective assistance of counsel on a first appeal as
of right. Evitts v. Lucey, 469 U.S. 387, 397, 105 S. Ct. 830, 837, 83 L. Ed. 2d 821 (1985). In accord
with the analysis articulated in Strickland v. Washington, 466 U.S. 668 (1984) as to claims of
ineffective assistance of trial counsel, Petitioner must show that his appellate counsel was
objectively unreasonable, and that such unreasonable performance actually prejudiced Petitioner.
Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764, 145 L. Ed. 2d 756 (2000). In this context,

In the course of reaching this determination, the Magistrate Judge also granted Petitioner’s motion to expand the
record to include the prison account statement and postmarked envelope as evidence of his attempt to timely appeal
the denial of his Rule 26(B) application. R&R, 18.
18

[27]

Petitioner can establish prejudice by demonstrating “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. As for deficient performance, Petitioner must demonstrate that his appellate counsel failed
to raise an issue that was clearly stronger than the issues that counsel did present. Smith v. Robbins,
528 U.S. at 288. As noted elsewhere, Petitioner’s argument is that appellate counsel was deficient
for failing to raise the trial error discussed supra, § I.
1. Issues Raised on Direct Appeal.
The record contains the merit brief submitted by Petitioner’s appellate counsel, which
states three assignments of error on direct appeal:
1. The trial court did not have jurisdiction to resentence defendantappellant.
2. The defendant-appellant’s plea was involuntary and must be
vacated.
3. The indefinite sentencing scheme adopted by [RTL] is an
unconstitutional violation of separation of powers, such that
defendant’s sentence must be vacated.
ECF No. 5, PAGEID # 114. The first assignment of error refers to the trial court’s issuance of two
(2) nunc pro tunc entries after Petitioner’s sentencing, purporting to correct errors in the original
sentencing entry. Because the trial court lacked jurisdiction to issue such entries during the
pendency of the appeal, the first assignment of error was in fact sustained, and the case remanded
“for resentencing.” State v. Hearn, 2021-Ohio-594, ¶ 35. The third assignment of error attacks the
constitutionality of the indefinite sentencing scheme under RTL. As noted supra, RTL faced many
constitutional challenges before the Supreme Court of Ohio settled the issue in July 2023. See State
v. Hacker, 2023-Ohio-2535, 173 Ohio St. 3d 219, 229 N.E.3d 38.
On its face, the second assignment of error appears to be that which Petitioner has brought
before this court. However, a review of the appellate brief shows that appellate counsel was
narrowly focused on the additional three-and-one-half years that could be imposed on Petitioner
[28]

under RTL. ECF No. 5, PAGEID # 116-18. Essentially, appellate counsel argued that Petitioner’s
plea was involuntary because he was unaware of the potential “additional” term under RTL:
Defendant-appellant believed that he was receiving a sentence of
fourteen years imprisonment. His attorney suggested that he was
receiving a sentence of fourteen years imprisonment, and strongly
suggested that any additional time would be unconstitutional. The
[trial] Court then imposed an additional term of three-and-one-half
years. Based on the above, this [appellate] Court must vacate the
defendant’s guilty plea and sentence as involuntarily made.
Id. The Fourth District court of appeals disagreed, due in no small part to the numerous instances
in the record showing that Petitioner was repeatedly advised as to his indefinite sentence, including
in the written plea agreement, which recites “a maximum possible term of 17 ½ years” as part of
the agreed disposition. See Id. at PAGEID # 69.
Furthermore, Petitioner’s appellate counsel inaccurately framed the alleged error as the
trial court’s failure to “strictly comply with Crim.R.11(C).” Id. at PAGEID # 116. Rule 11 of the
Ohio Rules of Criminal Procedure, like its federal counterpart, sets forth the procedure that a trial
court must follow in accepting a plea of guilt or no contest, and, specifically, what information
must be communicated to a defendant prior to accepting his plea. Ohio Crim. R. 11. The Supreme
Court of Ohio has held that trial courts must “strictly comply” with Rule 11 to the extent that the
rule requires the court to advise a pleading defendant of his or her constitutional rights. State v.
Veney, 2008-Ohio-5200, ¶ 18, 120 Ohio St. 3d 176, 180, 897 N.E.2d 621, 625 (“strict, or literal,
compliance [is] required when constitutional rights are involved.”). The court’s recitation of the
exact text of the rule is not required; rather, “the underlying purpose” of the rule “is to convey to
the defendant certain information so that he can make a voluntary and intelligent decision to plead
guilty.” Id.

[29]

The Supreme Court of Ohio has defined the constitutional rights for which strict
compliance is required as those set forth in paragraph (C)(2)(c) of Ohio Crim.R. 11:
[The court shall not accept a guilty plea before]: Informing the
defendant and determining that the defendant understands that by
the plea the defendant is waiving the rights to jury trial, to confront
witnesses against him or her, to have compulsory process for
obtaining witnesses in the defendant's favor, and to require the state
to prove the defendant's guilt beyond a reasonable doubt at a trial at
which the defendant cannot be compelled to testify against himself
or herself.
Ohio Crim.R. 11(C)(2)(c).19 For the “nonconstitutional notifications” required by Rule 11(C)(2)(a)
and 11(C)(2)(b), Ohio law requires only “substantial compliance.” Veney, 2008-Ohio-5200 at ¶
14. Included in 11(C)(2)(a) is the requirement that the defendant “understand[] the charges” and
“the maximum penalty involved.” Ohio Crim.R. 11(C)(2)(a). Therefore, appellate counsel’s
argument—that the trial court did not “strictly comply” with Rule 11 when it failed advise
Petitioner of the maximum penalty involved—misstated the well-settled law of Ohio that does not
require strict compliance with 11(C)(2)(a). Furthermore, the strict compliance standard requires
that a guilty plea must be vacated when a court fails to strictly comply with 11(C)(2)(c). Veney,
2008-Ohio-5200 at ¶¶ 26, 30. But when a court strays from the requirements of 11(C)(2)(a) or (b),
however, the defendant “must show prejudice before a plea will be vacated.” Id. at ¶ 17. In this
context, as above, establishing prejudice requires a showing “that the plea would otherwise not
have been entered.” Id. at ¶ 15. These differing standards were not identified in appellate counsel’s
brief, and, in any event, appellate counsel offered no facts or argument with regard to prejudice.
Finally, and most significantly, Petitioner’s appellate counsel failed to present any
argument regarding the highly misleading written plea agreement. As described above, the written

19

In the instant case, the trial court properly advised Petitioner of these rights, which were also included in the written
plea agreement. See ECF No. 5, PAGEID # 409.

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plea agreement erroneously stated that, of the maximum sentence Petitioner faced, “0 years” would
be mandatory, during which Petitioner would “NOT [be] eligible for judicial release or community
control.” ECF No. 5, PAGEID # 68. And as this Court found above, the record sufficiently supports
Petitioner’s required showing of prejudice, i.e., “that the plea would otherwise not have been
entered.” Veney, 2008-Ohio-5200 at ¶ 15; See also United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004) (“[A] defendant who seeks reversal of his conviction after a guilty plea… must show
a reasonable probability that, but for the error, he would not have entered the plea”). This omission
is made more glaring by appellate counsel’s citation to State v. Florence for the proposition that
“a guilty plea in which the defendant was incorrectly informed of [his] eligibility for judicial
release was not entered knowingly or intelligently,” thus warranting reversal. 2004-Ohio-1956, ¶
4 (emphasis supplied); ECF No. 5, PAGEID # 118.
In sum, the appellate brief misstated the applicable law as to Petitioner’s claim of trial error
and thus failed to address his burden of prejudice. Furthermore, the appellate brief failed to raise
Petitioner’s strongest argument—that the written plea agreement erroneously stated that Petitioner
was eligible for judicial release and good time credit—despite citing to authority supporting the
reversal of a conviction based upon that exact argument. Predictably, the Fourth District denied
Petitioner’s second assignment of error. Hearn, 2021-Ohio-594 at ¶ 28. The appellate court also
denied Petitioner’s third assignment of error, which argued that RTL was unconstitutional. Id. at
¶ 34. As noted, however, Petitioner’s first assignment of error was sustained, and the case was
remanded “for resentencing.” Id. at ¶ 35. Following remand, the trial court issued its third nunc
pro tunc entry regarding Petitioner’s judgment and sentence on March 15, 2021. ECF No. 5,
PAGEID # 349.20

20

Petitioner, in his objections, claims that the trial court failed to bring him before the court for a resentencing hearing
and thus failed to follow the instructions of the Fourth District on remand. While the Fourth District did indeed remand

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2. State Court Findings – Ineffective Assistance of Appellate Counsel.
Petitioner first raised his claim of ineffective assistance of appellate counsel in his
application to reopen his direct appeal pursuant to Ohio App.R. 26(B). ECF No. 5, PAGEID #
170-86. The Fourth District denied the application upon determining that Petitioner could not
establish that he was prejudiced by the trial error that his appellate counsel failed to raise. However,
the Fourth District’s holding in this regard was based entirely on findings which, as discussed
supra, § I.C, had little or no support in the record. “As we held in [Petitioner’s] direct appeal, the
trial court substantially complied with Crim.R.11. Consequently, appellant has failed to establish
his claim of ineffective assistance of counsel.” ECF No. 5, PAGEID # 197. Because the Fourth
District’s findings as to the trial error “[were] based on an unreasonable determination of the facts
in light of the evidence presented” (28 U.S.C. § 2254(d)(2)), this Court is not bound by such
findings or the holdings that follow therefrom. Hart v. Marion Corr. Inst., 927 F.2d 256, 257 (6th
Cir. 1991). Furthermore, because the Fourth District concluded that there was no trial error, and
thus no claim for appellate counsel to fail to raise, there was no occasion to consider whether such
a claim was “clearly stronger” than the issues raised on appeal. Smith v. Robbins, 528 U.S. 259,
288 (2000).
3. Deficient Performance – Relative Strength of Issues on Appeal
Petitioner has established deficient performance on the part of his appellate counsel
because the trial error raised in the instant habeas petition is clearly stronger than the issues that

“for resentencing,” the scope of its holding on this assignment of error—that the first and second nunc pro tunc
sentencing entries were “legal nullities” because the trial court lacked jurisdiction while the appeal was pending—was
narrow and technical. To address the error identified on appeal, the trial court simply needed to file a nunc pro tunc
after it assumed jurisdiction again on remand, as the Fourth District anticipated in its holding on this error: “We note,
however, that generally nothing precludes a trial court from filing amended entries after a remand.” Hearn, 2021Ohio-594 at ¶ 15. The trial court appeared to take this cue and issued the amended entry after remand without holding
a resentencing hearing, though Petitioner believes the court in fact held a hearing without him present, pointing to the
signatures of counsel on the amended entry. See ECF No. 5, PAGEID # 349. Regardless, Petitioner did not raise this
claim as a grounds for relief in the instant habeas action, and the Court offers no opinion on the merits thereof.

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his appellate counsel actually raised on direct appeal. The first assignment of error on direct appeal
concerned the two nunc pro tunc entries issued by the trial court while the direct appeal was
pending. ECF No. 5, PAGEID # 114. As noted, Petitioner prevailed on this assignment of error
because the Fourth District held that the trial court lacked jurisdiction to issue such entries. Hearn,
2021-Ohio-594 at ¶ 35. The appellate court remanded the case, the trial court issued a third (and
final) nunc pro tunc entry, and Petitioner experienced no material change whatsoever. Petitioner’s
claim now before the Court, which requires vacation of his guilty plea, and which appellate counsel
failed to raise on direct appeal, is clearly stronger than the attack on the nunc pro tunc entries, from
which Petitioner stood to gain very little.
The second assignment of error claimed that Petitioner’s plea was involuntary because
even though he “believed he was receiving a sentence of fourteen years imprisonment” he was
actually sentenced “to an additional indefinite period of time of three-and-one-half years” due to
RTL. ECF No. 5, PAGEID # 117. The Fourth District, denying this claim on direct appeal, pointed
to various places in the transcript of the plea colloquy where Petitioner was advised of the potential
for additional time (E.g., “[COUNSEL]: They can add three-and-a-half years.” (Id. at PAGEID #
412)). Hearn, 2021-Ohio-594 at ¶ 22. Again, Petitioner’s claim now before the court is clearly
stronger than this claim which appellate counsel failed to support with any evidence in the record.
The third assignment of error raised on direct appeal challenged the constitutionality of
RTL, alleging that the indefinite sentencing scheme violated the separation of powers. ECF No. 5,
PAGEID # 118. The Fourth District engaged in a lengthy discussion of the law and the various
challenges that had been brought against it by that point, noting “at least five [Ohio] appellate
districts have addressed the constitutionality of the [RTL].” State v. Hearn, 2021-Ohio-594, ¶ 29.
Ultimately, the Fourth District concluded that the RTL question was not ripe for review. Id. at ¶

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34. Petitioner’s appellate counsel clearly had good reason to raise such a challenge given the
novelty and ambiguity then surrounding the law. But at the same time, the novelty and ambiguity
of RTL’s status meant that a successful challenge to the law was likewise uncertain. In contrast,
the claim Petitioner now brings, and which he argues his appellate counsel should have brought,
was far from novel in Ohio law.
4. Prejudice – Reasonable Probability of Prevailing on Appeal
The crux of Petitioner’s claim is that his plea was involuntary because he subjectively
believed that he would be eligible for judicial release (and other sentence-reduction programs),
when in fact he was categorically ineligible. Under Ohio law, a guilty plea can be found to be
involuntary when a defendant is given erroneous information regarding his or her eligibility for
judicial release. State v. Williams, 2017-Ohio-2650, ¶ 15. In Williams, the defendant asked the
sentencing court if it would consider a motion for judicial release “after seven or eight years.” Id.
at ¶ 20. The judge stated, “you should know it’s typically not my policy to grant a judicial release,”
but that “you can always file a judicial release motion and they are considered.” Id. This was
inaccurate, as the statute provided that the defendant would be ineligible for judicial release until
he had served 12 years. Id. at ¶ 21; O.R.C. § 2929.20. The defendant “seemed quite concerned
about the possibility of obtaining judicial release” to the point of stopping the proceedings to
inquire about it. Williams, 2017-Ohio-2650 at ¶ 21. Similarly, the transcript here shows that
Petitioner was concerned about judicial release when he asked if he could “get an earlier release,
like after ten years,” demonstrating his subjective misunderstanding of his sentence. ECF No. 5,
PAGEID # 425.
Williams is not the only case with salient facts which could have been lifted from the instant
record. In State v. Silvers, “the record establish[ed] that the trial court in the instant case had before

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it a copy of [the defendant’s] plea form, which clearly stated that he did not face a mandatory
sentence and that he was eligible for community control ‘upon the granting of judicial release.’”
2009-Ohio-687, ¶ 13, 181 Ohio App. 3d 26, 29, 907 N.E.2d 805, 807 (emphasis supplied). In fact,
the defendant faced a mandatory sentence which rendered him ineligible for both community
control and judicial release. Id. During the plea colloquy, the sentencing court “orally advised [the
defendant] that he was not eligible for community control,” but the court “made no attempt to
amend [the] incorrect and misleading information in the plea form.” Id. at ¶¶ 12-13. In the instant
case, the written plea agreement committed the same error by stating that “0” years of Petitioner’s
sentence were mandatory. ECF No. 5, PAGEID # 68. During Petitioner’s plea colloquy, neither
the court nor his counsel said anything to correct this misinformation, and unlike in Silvers, neither
of them said anything inconsistent with the erroneous information in the plea agreement. Id. at
PAGEID # 407-427.
The Fourth District Court of Appeals, which heard Petitioner’s direct appeal, also has
caselaw which strongly supports Petitioner’s claim. In State v. Johnson, the prosecution promised
that there would be no objection to a motion for judicial release after four (4) years of incarceration.
2009-Ohio-1871, ¶ 13, 182 Ohio App. 3d 628, 632, 914 N.E.2d 429, 431. However, the judicial
release statute provided that the defendant would only be eligible after five (5) years. Id. at n.3.
Finding that “there [was] no question that everyone involved in the case sub judice misunderstood
the law,” the Fourth District vacated the plea agreement. Id. ¶¶ 14; 19. In the instant case, a
significantly larger delta exists between the sentence described in the plea agreement and
Petitioner’s actual sentence: whereas the plea agreement communicated that he would be ineligible
for judicial release and community control for “0” years, Petitioner would in fact never be eligible
for judicial release or community control under his actual sentence.

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In sum, this court concludes that Petitioner’s claim in the instant petition, attacking the
misrepresentation of the nature of his sentences, namely, his eligibility for judicial release, is
“clearly stronger” than the issues actually raised by his appellate counsel on direct appeal. The
straightforward body of caselaw supporting this argument demonstrates a "reasonable probability
that his claim[] would have succeeded on appeal." Franklin v. Curtin, No. 14-1467, 2015 WL
13927273, at *3 (6th Cir. Oct. 26, 2015). Thus, Petitioner was prejudiced by his appellate counsel’s
deficient performance in failing to identify and present this claim on appeal.
CONCLUSION
Petitioner has established cause and prejudice sufficient to overcome the procedural default
of his claim of ineffective assistance of appellate counsel. His attempt to present this claim to the
state’s highest court was frustrated by prison mailroom delays beyond his control, thus establishing
cause, a determination by the Magistrate Judge that this Court adopts in full. Additionally, the
claimed constitutional error had a prejudicial effect—i.e., but for appellate counsel’s deficient
performance, a reasonable probability exists that Petitioner’s claim would have succeeded on
appeal. By overcoming the bar of procedural default as to his claim of ineffective assistance of
appellate counsel, Petitioner has in turn established cause to excuse the procedural default of his
underlying claim that his plea was involuntarily entered. And finally, because Petitioner has
demonstrated a reasonable probability that he would not have entered his guilty plea but for his
insufficient awareness “of the relevant circumstances and likely consequences,” he has also
established prejudice as to this claim.
In sum, the Court finds Petitioner’s objections (ECF No. 12) have merit and hereby
SUSTAINS the same to the extent set forth herein. Accordingly, the Court finds the petition for
writ of habeas corpus (ECF No. 1) well-taken and hereby GRANTS the same. Petitioner’s guilty

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plea shall be VACATED. The Court ISSUES a writ of habeas corpus and remands to state court
for further proceedings. This judgment shall be held in abeyance until the deadline for Respondent
to file a timely appeal has passed.
Additionally, the Court does not disturb the Magistrate Judge’s grant of Petitioner’s first
motion to expand the record. Petitioner filed a second motion to expand the record along with his
objections to the R&R. ECF No. 13. However, in light of the holding herein, this Court finds
Petitioner’s second motion is moot, and therefore DENIES the same.
IT IS SO ORDERED.
s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: August 28, 2024

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