Patterson v. Warden

Filing 48

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends the Petition herein, as amended, 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. Objections to R&R due by 8/31/2018. Signed by Magistrate Judge Michael R. Merz on 8/17/2018. (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
TROY PATTERSON,
Petitioner,

:

- vs -

Case No. 3:16-cv-098
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz

TERRY A TIBBALS, Warden,
London Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Troy Patterson brought this habeas corpus action to obtain relief from his
conviction on one count of aggravated robbery and one count of aggravated burglary in the
Montgomery County Court of Common Pleas (Petition, ECF No. 1, PageID 1). Patterson pleaded
guilty pursuant to a negotiated plea agreement and was sentenced to eight years imprisonment on
August 20, 2013.

Procedural History

On August 11, 2011, Patterson was indicted by a Montgomery County grand jury on two
counts of aggravated burglary (Ohio Rev. Code § 2911.11(A)(1-2) (Counts 1-2); five counts of
aggravated robbery (Ohio Rev. Code § 2911.01(A)(1, 3) (Counts 3-7); five counts of kidnapping
(Ohio Revised Code § 2905.01(A)(2)) (Counts 8-12); and five counts of felonious assault (Ohio

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Revised Code §§ 2903.11(A)(1-2)) (Counts 13-17) (Indictment, State Court Record, ECF No. 5,
PageID 23 et seq.) Each count carried a firearm specification. Id. The charges stemmed from an
October 2007 home invasion.
Two years after the Indictment was handed down, Patterson pleaded guilty to one count of
aggravated burglary and one count of aggravated robbery with the remaining counts and all firearm
specifications dismissed. Prior to sentencing, but after having obtained new counsel, Patterson
moved to withdraw his plea on the basis that two of the victim witnesses, Charlene and James
Easterling, had recanted the identification of Patterson that they had made at the time of the crime.
New counsel also claimed prior counsel had pressured Patterson into accepting the plea agreement.
The trial court held a hearing on the motion to withdraw and concluded that Patterson’s
testimony was not credible, that the plea was valid, and that original trial counsel, H. Charles
Wagner, had not provided ineffective assistance (Transcript, State Court Record, ECF No. 5,
PageID 78).
With new appointed counsel, Patterson appealed to the Second District Court of Appeals.
That court affirmed the conviction and sentence. State v. Patterson, 2nd Dist. Montgomery No.
26015, 2014-Ohio-4962 (Nov. 7, 2014), appellate jurisdiction declined, 142 Ohio St. 3d 1450
(2015).
On March 24, 2015, Patterson filed a motion for leave to file a motion for new trial based
on new evidence from Jamie Harris and Shawn McLean. The trial court denied the motion and
Patterson appealed, the Second District affirmed, State v. Patterson, 2nd Dist. Montgomery No.
26723, 2016-Ohio-839 (Mar. 2, 2016), and Patterson did not appeal further to the Ohio Supreme
Court.
On March 3, 2016, Patterson moved to withdraw his guilty plea on the basis of the Harris

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letter, the affidavit of Shawn McLean, and a new affidavit from Michael Harris. The trial court
had not yet ruled on that motion when Patterson filed this case three weeks later on March 22,
2016.
In his original Petition, Patterson pleaded two grounds for relief:
Ground One: Denial of Effective Assistance of Trial Counsel
Supporting Facts: The negoiated [sic]Plea in this case is the direct
result of then counsel Charles Wagner coercement [sic] to get
Petitioner Troy Patterson to enter into a negoiated [sic] Plea
agreement with the State of Ohio that simply was not true. Petitioner
asserts the pretense that he accepted a Plea was in error, Wherefore,
Trial counsel provided {False} advice to Petitioner Troy Patterson
in a attempt to reach a guilty plea in this case. The Second District
Court of appeals decision to affirm the trial courts denial of effective
assistance of was a unreasonable application of clearly well
established Federal law and therefor cognizable for Habeas Corpus
Review.
Ground Two: Denied Access to the Due Process and Equal
Protection Clause of Ohio Law
Supporting Facts: The Second District Court of Appeasl [sic] in
this case denied Petitioner the Equal Protection to Ohio Law, when
it affirmed the trial court's decision by Overruling Petitoners [sic]
Motion to Withdraw. Furthermore, the facts demonstrate that
Petitioner Pled Guilty on the 20th of August 2013, his then Attorney
withdrew on the 3rd September, therefore Petitioner should have
been able to withdraw his Negoiated [sic] Plea aggrement [sic]
particularly based on counsel withdraw as he was scheduled to on
September 19th 2013 under the advisement of the Attorney Charles
Wagner who corerced [sic] Petitioner to accept the plea agreement.
(Petition, ECF No. 1, PageID 4.)
After Respondent filed an Answer, Patterson filed his Traverse in which he sought a stay
of this case pending exhaustion of his state court remedies (ECF No. 7). The Magistrate Judge
then stayed this case pending the outcome of the motion to withdraw (ECF No. 8). On July 6,
2018, Patterson moved to lift the stay (ECF No. 30) and the Court did so (ECF No. 38).

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Respondent has now supplemented the State Court Record with documents generated on the
motion to withdraw (ECF Nos. 42, 43). In particular, the Supplemental State Court Record shows
that Judge Huffman denied the Motion to Withdraw January 5, 2017 (Supp. State Court Record
ECF No. 42, PageID 604, et seq.) The Second District affirmed that decision March 9, 2018. State
v. Patterson, 2nd Dist. Montgomery No. 27423, 2018-Ohio-872 (Mar. 9, 2018), appellate
jurisdiction declined, 152 Ohio St. 3d 1491 (2018).
Petitioner then filed a Motion to Amend (ECF No. 39). Despite the fact that it is defective
in form, the Magistrate Judge granted this motion (ECF No. 47). As amended, his original claims
have an added assertion of actual innocence and he makes clear the claims are brought under the
United States Constitution. In addition, he adds a new claim as follows:
Ground Three1: Mr. Patterson’s U.S. Constitutional right to due
process was violated when Mr. Patterson presented new evidence
that amounts to actual innocence warranting withdrawal of plea and
state courts refused to address on the merits via res judicata.
Supporting Facts: Mr. Patterson relies on several factors including
his document numbers 33, 35, and 36.
(Motion, ECF No. 39, PageID 574.)

Analysis

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Mr. Patterson labels this “New Claim.” For consistency of reference, the Magistrate Judge adds the “Ground Three”
label.

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Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Patterson claims he received ineffective assistance of trial
counsel when his first trial attorney, H. Charles Wagner, coerced him to plead guilty. Respondent
defends this claim on the merits (Return, ECF No. 6, PageID 458- 67).
Under the Sixth Amendment to the United States Constitution, any person charged with a
criminal offense which carries a possible jail sentence is entitled to the effective assistance of
counsel in his or her defense. Powell v. Alabama, 287 U.S. 45 (1932) (capital cases); Gideon v.
Wainwright, 372 U.S. 335 (1963) (felony cases); Argersinger v. Hamlin, 407 U.S. 25 (1972)
(misdemeanor cases where imprisonment is a possibility); Alabama v. Shelton, 535 U.S. 654
(2002) (even if sentence is suspended).
Both parties agree that the correct federal standard for deciding a Sixth Amendment claim
of ineffective assistance of trial counsel is enunciated in Strickland v. Washington, 466 U.S. 668
(1984), where the Supreme Court held:

A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel was
not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant “must show both
deficient performance and prejudice.” Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
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Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel’s performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy.”
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d
313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally
Annotation, 26 A.L.R. Fed 218 (orig. published 1976).
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 101
(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);
Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
The first state court to pass on this claim was the Montgomery County Common Pleas
Court. In her Decision, Order and Entry Overruling Motion to Withdraw Plea, Judge Huffman
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cited Strickland as providing the controlling standard for ineffective assistance of trial counsel
(State Court Record, ECF No. 5, PageID 80). Judge Huffman recites at length the testimony she
heard in the hearing on that Motion. In part Patterson, claimed he was in California on the date of
the crime, but investigation proved his alibi to be false and Mr. Wagner found it “challenging.”
Mr. Wagner acknowledged his awareness of the Affidavits of James and Charlene
Easterling, recanting in 2013, the identifications they had made of Patterson as one of the
perpetrators about eighteen months after the crime. He had told Patterson these Affidavits were
“very suspect,” even though they were printed for signature on his office pleading paper. Patterson
had filed the affidavits with the court without Wagner’s knowledge. Id. at PageID 85.
Judge Huffman then recited the lengthy plea negotiations that took place on the date of the
plea, including a number of offers and counter-offers. Id. at PageID. 87. The State’s final offer
was of a sentencing range of three to nine years. Wagner testified that he told Patterson that a
three-year sentence was unlikely, but he also did not believe the court would impose nine years.
Id. Patterson, in contrast, testified Wagner promised him a three-year sentence, but Judge Huffman
credited Wagner’s testimony over Patterson’s. She noted that Patterson had James Easterling’s
Affidavit before he pleaded. Id. at PageID 89. While Wagner admitted he was frustrated at
Patterson’s filing the affidavits pro se, he testified he never threatened to withdraw. Id. at PageID
90.
Judge Huffman also recounted the plea colloquy. Id. at PageID 91-92. She then denied
the Motion, finding Patterson “merely had a change in heart,” apparently being influenced by
unnamed other attorneys who said they could do better. Id. at PageID 93. She particularly noted
Mr. Wagner’s very significant criminal experience. Id. She noted that Patterson had not obtained
any new evidence after his plea. Id.

The Easterling Affidavits would have been of limited

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impeachment value and other participants in the crime, Lloyd Jefferson and James Harris, were
prepared to testify for the State. Finally, Judge Huffman did not accept Patterson’s claims that
Wagner had pressured him. Id.
On appeal the Second District recited at length the findings Judge Huffman had made.
State v. Patterson, 2014-Ohio-4962, at ¶¶ 12-17. The claim of ineffective assistance of trial
counsel was the Second Assignment of Error and the Second District decided it on merits, applying
Strickland. Id. at ¶ 19. It concluded, as had Judge Huffman, that Mr. Wagner had not performed
deficiently. Id. at ¶¶ 20-21.
In his Traverse, Patterson again blames Wagner for downplaying the Easterling Affidavits
(Traverse, ECF No. 7, PageID 484). But the Magistrate Judge concludes the state courts’ decisions
in that regard are quite reasonable. Patterson believes that if Wagner had followed through with a
motion to suppress, the earlier identifications would have been suppressed. Id. But he offers no
reasonable basis for that conclusion. As Judge Huffman found, the new affidavits would have
been useful for impeachment at most. Wagner was just giving good legal advice when he told
Patterson that the Easterling Affidavits were of questionable use, particularly because Patterson
had been in prison with James Easterling.
Patterson does not deny the facts recited by Judge Huffman about the back-and-forth of the
plea bargaining and how Patterson took an active part. Nothing Patterson testified to in the hearing
on the motion to withdraw begins to support a claim that Wagner coerced him. Judge Huffman
had competing testimony on whether Wagner threatened to withdraw and she was properly placed
to decide as between the two witnesses. He himself was prepared to accept a three-year sentence
which is inconsistent with his claim now that he is actually innocent, a claim he never made at the
time of the plea or sentencing.

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In his amendment to the Petition, Patterson adds to this First Ground for Relief the
allegation that he is actually innocent. A claim of actual innocence alone is insufficient to warrant
habeas relief. Herrera v. Collins, 506 U.S. 390 (1993).
Case law in the Sixth Circuit establishes that the Supreme Court of
the United States has never recognized a free-standing or
substantive actual innocence claim. Cress v. Palmer, 484 F.3d 844,
854 (6th Cir. 2007), citing Zuern v. Tate, 336 F.3d 478, 482, n.1 (6th
Cir. 2003), and Staley v. Jones, 239 F.3d 769, 780, n.12 (6th Cir.
2001). The Supreme Court has twice suggested that a “truly
persuasive demonstration” of actual innocence would render a
petitioner’s execution unconstitutional. Herrera v Collins, 506 U.S.
390, 417 (1993); House v. Bell, 547 U.S. 518 (2006).
Raymond v. Sheets, No. 2:10-cv-187, 2012 U.S. Dist. LEXIS 160374, *26-27 (S.D. Ohio Nov. 8,
2012) (Merz, Mag. J.), report and recommendations adopted at 2013 U.S. Dist. LEXIS 22991
(S.D. Ohio Feb. 20, 2013) (Frost, J.); Stojetz v. Ishee, No. 2:04-cv-263, 2014 U.S. Dist. LEXIS
137501, *185-86 (S.D. Ohio Sept. 24, 2014) (Frost, J.), aff’d, 892 F.3d 175 (6th Cir. 2018). To the
extent Patterson is making a free-standing claim that he is entitled to habeas corpus relief because
he is actually innocent, his amended claim in that respect fails to state a claim upon which relief
can be granted. The accepted use of an actual innocence claim in habeas corpus is to allow a
petitioner to avoid a procedural bar such as procedural default or the statute of limitations.
McQuiggin v. Perkins, 569 U.S. 383 (2013). Patterson’s claim of actual innocence in this sense is
irrelevant to his First Ground for Relief because the State does not assert any procedural bar, but
defends on the merits.
In sum, Patterson has not shown Wagner provided ineffective assistance of trial counsel.
Judge Huffman’s and the Second District’s decision on the ineffective assistance of trial counsel
claim are objectively reasonable applications of Strickland. Ground One should therefore be
dismissed with prejudice.

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Ground Two: Denial of Due Process and Equal Protection Regarding Withdrawal of Plea

In his Second Ground for Relief, Patterson claims the Second District denied him due
process and equal protection when it upheld Judge Huffman’s decision to deny the plea withdrawal
motion.
Respondent asserts this claim was never fairly presented to the Ohio courts as a federal
constitutional claim. In his Traverse, Patterson asserts repeatedly that he presented this as a federal
claim under Strickland, supra.
Patterson’s First Assignment of Error on direct appeal reads “The trial court abused its
discretion in overruling Patterson’s motion to withdraw his plea.” (Appellant’s Brief, State Court
Record, ECF No. 5, PageID 126). Not a word is said about either the Due Process Clause or the
Equal Protection Clause of the Fourteenth Amendment. Only state court cases are cited. Id. at
PageID 123-24.
To preserve a federal constitutional claim for presentation in habeas corpus, the claim must
be "fairly presented" to the state courts in a way which provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir. 1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S.
99 (1995); Riggins v. McMackin, 935 F.2d 790, 792-93 (6th Cir. 1991). The claim must be fairly
presented at every stage of the state appellate process. Wagner v. Smith, 581 F.3d 410, 418 (6th
Cir. 2009).
The phrase “abuse of discretion” does not raise a federal constitutional issue for

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consideration by the state courts. Indeed, if Judge Huffman had abused her discretion, that would
not raise a constitutional claim. Abuse of discretion is not a denial of due process. Sinistaj v. Burt,
66 F.3d 804 (6th Cir. 1995).
Because he did not fairly present this claim to the Second District as a federal constitutional
claim, Patterson has procedurally defaulted the claim.
As noted above, evidence of actual innocence can excuse a procedural default, providing a
“gateway” through which a federal court can reach the merits of a claim.
[I]f a habeas petitioner “presents evidence of innocence so strong
that a court cannot have confidence in the outcome of the trial unless
the court is also satisfied that the trial was free of nonharmless
constitutional error, the petitioner should be allowed to pass through
the gateway and argue the merits of his underlying claims.” Schlup
v. Delo, 513 U.S. 298, 316 (1995). “Thus, the threshold inquiry is
whether "new facts raise[] sufficient doubt about [the petitioner's]
guilt to undermine confidence in the result of the trial.” Id. at 317.
To establish actual innocence, “a petitioner must show that it is more
likely than not that no reasonable juror would have found petitioner
guilty beyond a reasonable doubt.” Id. at 327. The Court has noted
that “actual innocence means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 140 L.
Ed. 2d 828, 118 S. Ct. 1604 (1998). “To be credible, such a claim
requires petitioner to support his allegations of constitutional error
with new reliable evidence -- whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence -- that was not presented at trial.” Schlup, 513 U.S. at 324.
The Court counseled however, that the actual innocence exception
should “remain rare” and “only be applied in the ‘extraordinary
case.’” Id. at 321.
Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005). Evaluated under this standard, Patterson’s
evidence of actual innocence as it relates to the Second Ground for Relief falls short. First of all,
the Easterling Affidavits do not constitute either scientific or physical evidence at all. Second,
they do not constitute new trustworthy eyewitness accounts in part because they are not new:
Patterson knew of them and filed them pro se before he pleaded guilty. Third, they are not

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particularly trustworthy – they are recantations of identifications made after Patterson spent time
in prison with one of the affiants. “Recanting affidavits and witnesses are viewed with extreme
suspicion.” United States v. Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991), superseded by statute
on other grounds as recognized in Moore v. Woods, No. 18-13156, 2018 WL 3089822 (6th Cir.
Jun. 20, 2018); accord: United States v. Willis, 257 F.3d 636, 645 (6th Cir. 2001); United States
v. Lewis, 338 F.2d 137, 139 (6th Cir. 1964). Patterson gives this Court no good reason to overcome
Judge Huffman’s suspicion of the recantations.
Even if this Second Ground for Relief were not procedurally defaulted, it is without merit.
Patterson cites no decision of the United States Supreme Court clearly establishing that there is
either a due process or an equal protection right to withdraw a guilty plea prior to sentencing, so
long as the plea has been entered knowingly, intelligently, and voluntarily.
The Second Ground for Relief should therefore be dismissed with prejudice.

Ground Three: Due Process Violation in Denying Second Motion to Withdraw Plea

In his Third Ground for Relief, recently exhausted in the state courts, Patterson claims he
was denied due process when Judge Huffman again denied his motion to withdraw his plea despite
his presentation of new evidence.
Having recited the relevant procedural history, Judge Huffman recited the relevant contents
of the affidavits of Shawne McLean and Michael B. Harrison (Decision, Order and Entry, Supp.
State Court Record, ECF No. 42, PageID 606-07). She then decided that because her prior decision
denying withdrawal had been affirmed on appeal, her court lacked jurisdiction to consider
Patterson’s second motion. Id. at PageID 612. The Second District concurred “with the trial

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court’s determination that it lacked jurisdiction to entertain Petitioner’s March 30, 2016, motion
to withdraw plea.” State v. Jackson, 2nd Dist. Montgomery No. 27423 (Mar. 9, 2018,) citing State
ex rel Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St. 2d 94 (1978) (copy at
Supp. State Court Record ECF No. 42, PageID 685 et seq.).
Patterson suggests in his Motion to Amend that Judge Huffman’s rationale for refusing to
address the merits of his second motion to withdraw was res judicata (ECF No. 39, PageID 574).
However neither she nor the Second District mentions res judicata.
Patterson makes this new claim under the Due Process Clause, but he cites no decisions
from the United States Supreme Court which have held that state trial courts must consider on the
merits a second motion to withdraw a guilty plea, made after the conviction based on that plea has
been affirmed on appeal. Therefore Patterson’s Third Ground for Relief is without merit.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition herein, as amended, 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.

August 17, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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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 mail. 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 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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