Morgan v. Warden

Filing 14

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the C ourt should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 7/23/2015. Signed by Magistrate Judge Michael R. Merz on 7/3/2015. (kpf)(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
WESTERN DIVISION AT DAYTON
BUSTER R. MORGAN,
Petitioner,

:

- vs -

Case No. 3:15-cv-237
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

OHIO ADULT PAROLE AUTHORITY,1
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case was transferred to this Court by the United States District Court
for the Northern District of Ohio (Doc. No. 12). When the case was first filed, Judge Nugent of
the transferor court ordered the Warden to file a return of writ and gave Morgan thirty days from
the filing of the return to file a reply (Doc. No. 7, PageID 50). The Return was filed on May 14,
2015 (Doc. No. 11) and Morgan has filed no reply, so the case is ripe for decision on the Petition
and Return.
Morgan pleads the following Grounds for Relief:
GROUND ONE: The trial court abused its discretion by denying
the defendant’s motion to withdraw plea.
Supporting Facts: The defendant clearly met the burden of
showing that the defendant’s trial counsel’s performance
prejudiced the defendant to such an extent that the guilty plea
could not have been made knowingly, voluntarily, and
intelligently, and being that the defendant was diligent and precise
1

The Ohio Adult Parole Authority, reported to be Petitioner’s current custodian, is substituted as the Respondent
herein and the caption is amended accordingly.

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by stating every prejudicial issue, and exhibiting evidence as proof,
the trial court’s denial; of defendant’s motion to withdraw plea was
arbitrary and unconscionable.
GROUND TWO: The defendant was completely denied counsel
at the July 17, 2013 evidentiary hearing, without notification being
submitted to the public defender’s office.
Supporting Facts: The trial court found that the defendant’s
postconviction motion to withdraw plea was sufficient enough to
warrant an evidentiary hearing on the merits of said motion. The
evidentiary hearing was a critical stage of the judiciary process,
and being that the defendant is an inmate in the Ohio Dept. of
Rehab and Corr. (ODRC), the defendant is presumptively indigent.
Furthermore, the defendant orally requested appointed counsel, on
the record, prior to the commencement of the hearing.
GROUND THREE: The defendant was left handcuffed at all
times during the July 17, 2013 evidentiary hearing.
Supporting Facts: The defendant is a pro se litigant that was
denied the assistance of appointed counsel. By leaving the
defendant handcuffed at all times during the July 17, 2013 hearing,
the trial court impaired his ability to be able to produce and present
the essential material evidence that is the sole purpose for an
evidentiary hearing. This also substantially impaired the
defendant’s ability to forcefully argue his motion, and helpless at
the hearing.
GROUND FOUR: The defendant was denied a full and fair
hearing with full and fair consideration given to the defendant’s
motion.
Supporting Facts: The trial court’s denial of defendant’s diligent
motion to withdraw plea was clearly unreasonable. Not only was
the defendant denied counsel, or the opportunity for counsel, but
he was left handcuffed the entire hearing as well, which left him
unable to properly present evidence, represent himself.
Furthermore, the trial court issued a July 24, 2013 judgment entry
denying defendant’s motion that contained erroneous factual
information, which is proof that the trial court failed to even have
true and accurate knowledge of the information in said motion.
(Petition, Doc. No. 1.)

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Procedural History

On October 14, 2009, Morgan was indicted on four counts arising out of an automobile
collision in which the car he was driving struck and killed Jeffrey Gates and struck and seriously
injured Virgil Gates. On March 8, 2010, Morgan accepted a plea agreement under which he
would plead guilty to one count of failure to stop after an accident resulting in death and one
count of failing to stop after an accident resulting in serious physical harm. In return the State
agreed to dismiss the remaining charges. In April 2010 the trial court sentenced Morgan to
consecutive imprisonment sentences of four years on Count 1 and eleven months of Count 2.
Morgan took no appeal, but more than three years later filed a pro se motion to withdraw
his guilty plea. He asserted he was induced to enter the guilty plea by unfulfilled promises made
by his defense counsel, the trial court relies on materially incorrect information, and he was
denied effective assistance of counsel.

At an evidentiary hearing on the motion, Morgan

requested and was denied counsel. After the trial court denied his motion to withdraw, he
appealed to the Third District Court of Appeals which affirmed. State v. Morgan, Case No. 813-14 (3rd Dist. Feb. 10, 2014)(unreported, copy at Doc. No. 11-2, PageID 225 et seq.). The
Supreme Court of Ohio declined jurisdiction over a subsequent appeal. State v. Morgan, 139
Ohio St. 3d 1419 (2014). Thereafter Morgan filed the instant Petition.

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Analysis

Ground One: Denial of Motion to Withdraw Plea

The substance of Morgan’s First Ground for Relief is that his guilty plea is invalid
because he received ineffective assistance of trial counsel in that his counsel guaranteed him
judicial release after he had served two years and successfully completed the Victim Awareness
Program.
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is
not the province of a federal habeas court to reexamine state court determinations on state law
questions.

In conducting habeas review, a federal court is limited to deciding whether a

conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire,
502 U.S. 62, 67-68 (1991). There is no constitutional right to withdraw a guilty plea once
entered.
A plea of guilty or no contest is valid if it is entered voluntarily and intelligently, as
determined by the totality of the circumstances. Brady v. United States, 397 U.S. 742, 748
(1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); King v. Dutton, 17 F.3d 151 (6th Cir.
1994); Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991); Berry v. Mintzes, 726 F.2d
1142, 1146 (6th Cir. 1984). The determination of whether this plea was intelligently made
depends upon the particular facts and circumstances of each case. Johnson v. Zerbst, 304 U.S.
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458, 463 (1938); Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993).
A plea of guilty entered by one fully aware of the direct
consequences, including the actual value of any commitments
made to him by the court, prosecutor, or his own counsel, must
stand unless induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are by their
nature improper as having no proper relationship to the
prosecutor's business (e. g. bribes).

Brady, 397 U.S. at 755. In order for a guilty plea to be constitutional it must be knowing,
intelligent, voluntary, and done with sufficient awareness of the relevant circumstances and
likely consequences. Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). The identical standard
applies to a plea of no contest or nolo contendere. See Fautenberry v. Mitchell, 515 F.3d 614,
636–37 (6th Cir. 2008). The defendant must also be aware of the maximum sentence that can be
imposed for the crime for which he is pleading. King v. Dutton, 17 F.3d 151, 154 (6th Cir. 1994).
The voluntariness of a guilty or no contest plea is determined in light of all relevant
circumstances surrounding the plea. Brady, 397 U.S. at 749. If a prosecutor’s promise is illusory,
then a plea is involuntary and unknowing. United States v. Randolph, 230 F.3d 243, 250–51 (6th
Cir. 2000). However, where a defendant is “fully aware of the likely consequences” of a plea, it
is not unfair to expect him to live with those consequences. Mabry v. Johnson, 467 U.S. 504, 511
(1984) abrograted in part by Puckett v. United States, 556 U.S. 129 (2009). A plea-proceeding
transcript which suggests that a guilty or no contest plea was made voluntarily and knowingly
creates a “heavy burden” for a petitioner seeking to overturn his plea. Garcia v. Johnson, 991
F.2d 324, 326–28 (6th Cir. 1993). Where the transcript shows that the guilty or no contest plea
was voluntary and intelligent, a presumption of correctness attaches to the state court findings of
fact and to the judgment itself. Id. at 326–27.

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Rather than just summarily affirm the trial court, the Third District in this case considered
the merits of Morgan’s claim that his plea was not knowing, intelligent, and voluntary. The
Third District examined the plea colloquy transcript and found that Morgan had stated
unequivocally that no promises had been made to induce him to plead guilty other than those in
the written agreement or stated orally. To put the matter succinctly, a defendant cannot lie to a
court to get it to accept a plea agreement and then come back three years later and say “I lied
three years ago but I am telling the truth now. Let me out of the plea bargain.”
The Third District’s decision on the voluntariness of the plea is neither contrary to nor an
objectively unreasonable application of the Supreme Court law on guilty pleas set forth above.
Therefore the First Ground for Relief should be dismissed.

Ground Two: Denial of Counsel at the Plea Withdrawal Hearing

In his Second Ground for Relief, Morgan claims his constitutional rights were violated
when he was denied counsel at the plea withdrawal hearing. Factually, he is correct. The
judgment entry denying withdrawal recites that he moved for appointed counsel and the motion
was denied.
However, there is no constitutional violation here.

The right to appointed counsel

extends to the first appeal of right and no further. Pennsylvania v. Finley, 481 U.S. 551, 555
(1987); Ross v. Moffitt, 417 U.S. 600 (1974).
The Second Ground for Relief should be dismissed.

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Ground Three: Handcuffing at Hearing

In his Third Ground for Relief, Morgan asserts he was denied due process of law because
he was handcuffed throughout his hearing on the motion to withdraw. The Third District
rejected the claim because Morgan had cited no authority to show that this was error and had
shown no prejudice. State v. Morgan, supra.
The Third District’s decision on this issue is neither contrary to nor an objectively
unreasonable application of clearly established Supreme Court law. Even during the trial of a
capital case, shackling is not unconstitutional if necessary for security reasons. Deck v. Missouri,
544 U.S. 622, 624 (2005). This was not a jury proceeding where the presence of shackles would
undermine the presumption of innocence. Rather this was a post-conviction hearing while
Morgan was still in custody and transported to court by prison authorities.

He had no

constitutional right to attend the hearing without being handcuffed. The Third Ground for Relief
should therefore be dismissed.

Ground Four: Denial of a Full and Fair Hearing

In his Fourth Ground for Relief, Morgan cumulates his other claims to state generally that
he was denied a fair hearing because he was not appointed counsel, he was handcuffed, and the
entry denying relief was based on misinformation.
The Constitution of the United States does not as a matter of due process guarantee any
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hearing on a state court motion to withdraw a guilty plea. A fortiori it does not guarantee that a
movant will have an attorney and be allowed to appear without handcuffs. As to the third point,
Morgan does not say what was inaccurate in the trial judge’s decision, but there is no
constitutional right to an explained decision on a motion to withdraw a guilty plea. The Fourth
Ground for Relief should be dismissed.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein
be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.
July 3, 2015.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
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and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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