Merrick v. Warden, Noble Correctional Institution

Filing 4

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a certi ficate of appealability and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 9/21/2021. Signed by Magistrate Judge Michael R. Merz on 9/7/2021. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 3:21-cv-00245-TMR-MRM Doc #: 4 Filed: 09/07/21 Page: 1 of 5 PAGEID #: 42

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BRET MERRICK,
Petitioner,

:

- vs -

Case No. 3:21-cv-245
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

WARDEN,
Noble Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by petitioner Bret Merrick to obtain relief from
his conviction in the Common Pleas Court of Greene County, Ohio, on two counts of aggravated
murder and associated firearm specifications. The case is before the Court for initial review under
Rule 4 of the Rules Governing § 2254 Proceedings which provides: “If it plainly appears from the
petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the
judge must dismiss the petition and direct the clerk to notify the petitioner.”
Merrick pleads the following grounds for relief:
Ground One: Ineffective assistance of counsel, in violation of the
Sixth Amendment, for failing to raise various timely objections.
Supporting Facts: Counsel failed to make sure the record was
supplemented from the initial indictment proceedings, failed to
object to Miranda violations, [and] failed to follow through on
suppression issues.
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Ground Two: The trial court erred in failing to correct a manifest
injustice, in violation of due process of law and right to a fair trial
under the 6th and 14th Amendments.
Supporting Facts: Denial of suppression issues under the initial
indictment (Miranda and custodial interrogation). The trial court
allowed their decision to stand under the final indictment.

(Petition, ECF No. 1-1, PageID 14, 16).
Merrick claims he raised both of these grounds for relief on direct appeal to the Ohio
Second District Court of Appeals (Petition, ECF No. 1-1, PageID 11). Although he sought review
by the Supreme Court of Ohio, he reports that court declined to accept jurisdiction. He avers that
he did not file any petition for post-conviction relief.
The decision of the Second District Court of Appeals reflects that Merrick pleaded guilty
to two counts of involuntary manslaughter with a firearm specification and an agreed sentence of
twenty-five years. State v. Bret Merrick, 2020-Ohio-5209 ¶ 3 (Ohio App. 2nd Dist. Nov. 6, 2020),
appellate jurisdiction declined, 163 Ohio St. 3d 1452 (2021). With the assistance of new counsel,
he appealed, but his appointed counsel found no appealable issues and moved to withdraw under
Anders v. California, 386 U.S. 738 (1967). The Second District agreed, but reviewed on the merits
the assignments of error Merrick filed pro se. Finding no error, they affirmed the conviction and
sentence.
The Magistrate Judge takes Merrick at his word in the Petition and assumes that he raised
on direct appeal the issues he now raises in this Court. 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. §
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2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 785 (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). Deference is also due under 28 U.S.C. § 2254(d)(2) unless the state court
decision was based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceedings.
Concerning the issues raised by Merrick in his pro se brief, the court concluded:
{¶ 14} We now turn to Merrick's pro se brief. The brief asserts that
the trial court erred when it overruled a motion to suppress
statements filed in Case No. 2017-CR-57, and it also seems to assert
that appellate counsel rendered ineffective assistance of counsel by
not raising the suppression issue on appeal. The plea agreement
states that Merrick “stipulates and agrees, with the advice of
counsel, that he withdraws and waives any potential constitutional
challenge to any and all evidence obtained by the police and
prosecution.” This language is consistent with the reality that, upon
pleading guilty, a defendant “waives his ability to challenge [a]
suppression ruling on appeal.” State v. Barron, 2d Dist. Greene No.
2017-CA-46, 2018-Ohio-1221, ¶ 5, citing State v. Guerry, 2d Dist.
Clark No. 2015-CA-30, 2016-Ohio-962, ¶ 5, citing State v. Carson,
2d Dist. Montgomery No. 20285, 2004-Ohio-5809, ¶ 8. Based upon
the parties’ agreement and the case law, any appellate argument
attacking the trial court's suppression ruling would be wholly
frivolous, and appellate counsel cannot be faulted for a failure to
assert a wholly frivolous argument.

State v. Merrick, supra. This conclusion is completely consistent with federal constitutional law
which provides that a knowing, intelligent, and voluntary guilty plea waives prior constitutional
violations. A guilty plea constitutes a break in the chain of events leading up to it. Tollett v.
Henderson, 411 U.S. 258 (1973). Federal habeas corpus review of claims raised by a petitioner
who has entered a guilty plea is limited to “the nature of the advice and the voluntariness of the
plea, not the existence as such of an antecedent constitutional infirmity.” Tollett, 411 U.S. at 266.
At the suggestion of counsel that the record might support a claim that the plea was not

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knowing, intelligent, and voluntary, the Second District opined:
{¶ 13} Count one of the bill of information set forth the elements of
involuntary manslaughter, stating that Merrick had “cause[d] the
death of William ‘Skip’ Brown as a proximate result of * * *
committing or attempting to commit Aggravated Burglary * * *.”
The firearm specification stated that Merrick “had a firearm on or
about his person or under his control while committing the offense,
and displayed the firearm, brandished the firearm, indicated he
possessed the firearm, or used it to facilitate the offense * * *.”
Count two stated that Merrick had “cause[d] the death of Sherri
Mendenhall as a proximate result of * * * committing or attempting
to commit * * * Aggravated Burglary.” Thus, Merrick, by pleading
guilty, admitted to the facts set forth in the two counts of involuntary
manslaughter and the firearm specification. Moreover, the parties’
plea agreement stated that Merrick “acknowledges that he has
consult[ed] with his attorneys since he was indicted regarding the
charges contained in Case No. 2017-CR-57 and the Bill of
Information in Case No. 2018-CR-691, which are both related
factually to the murders of William Brown and Sherri Mendenhall,
and has continued to consult with his attorneys regarding a
resolution of the deaths of William Brown and Sherri Mendenhall.”
The plea agreement also stated that the “parties contemplate that *
* * Merrick will on the record and in open court confirm that he did
not shoot either William Brown or Sherri Mendenhall with any
firearms whatsoever.” Merrick, on the record and in open court, did
so state. The record supports the conclusion that Merrick
subjectively understood the nature of the two involuntary
manslaughter counts and the firearm specification to which he
pleaded guilty. Any appellate argument to the contrary would be
without potential merit.
State v. Merrick, supra.
A plea of guilty or no contest is valid if, but only 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); Abdus-Samad v. Bell, 420 F.3d
614, 631 (6th Cir. 2005); 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
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circumstances of each case. Johnson v. Zerbst, 304 U.S. 458, 463 (1938); Garcia v. Johnson, 991
F.2d 324, 326 (6th Cir. 1993). Again, the Second District’s decision is completely consistent with
this federal constitutional law.

Conclusion

Having reviewed the Petition under Habeas Rule 4, the Magistrate Judge concludes that
the Ohio Second District Court of Appeals decided Merrick’s constitutional claims on the merits
and its decision is not an unreasonable application of relevant Supreme Court precedent.
Accordingly, the Magistrate Judge respectfully recommends that the Petition be dismissed with
prejudice.

Because reasonable jurists would not disagree with this conclusion, it is also

recommended that Petitioner be denied a certificate of appealability and that the Court certify to
the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to
proceed in forma pauperis.
September 7, 2021.
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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. 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.
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