KAREN L. LITKOVITZ, Magistrate Judge.
Petitioner, an inmate in state custody at the Chillicothe Correctional Institution in Chillicothe, Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on respondent's motion to dismiss (Doc. 8) with state-court record (Doc. 7); petitioner's memorandum in opposition to the motion to dismiss (Doc. 14); respondent's reply memorandum and notice of supplemental filing of state-court record (Docs. 16, 17); petitioner's motion for leave to respond to respondent's reply (Doc. 18), which is hereby
This case involves the following facts, as summarized by the Ohio Court of Appeals, First Appellate District:
(Doc. 7, Ex. 13, p. I, at PAGEID#: 56) (footnotes omitted).
In May 2009, the Hamilton County, Ohio, grand jury returned an indictment charging petitioner with one count of desecration in violation of Ohio Rev. Code § 2927.11 (A)(4) (Count l); one count of carrying a concealed weapons in violation of Ohio Rev. Code§ 2923. 12(A)(2) (Count 2); one count of improperly handling firearms in a motor vehicle in violation of Ohio Rev. Code § 2923. 16(A) (Count 3); one count of discharge of a firearm on or near prohibited premises in violation of Ohio Rev. Code§ 2923.162(A)(2) (Count 4); and one count of having weapons while under disability in violation of Ohio Rev. Code § 2923. 13(A)(5) (Count 5). Counts 4 and 5 each carried firearm specifications. (Doc. 7, Ex. 1).
On September 4, 2009, petitioner entered a guilty plea to all counts of the indictment and to the second firearm specification attached to Counts 4 and 5 in exchange for the dismissal of the first firearm specification attached to Counts 4 and 5. (Doc. 7, Ex. 3). After holding a hearing and concluding that petitioner made a knowing, intelligent, and voluntary plea of guilty, the trial court accepted petitioner's guilty plea. (See Doc. 7, Exs. 4-5 & Trial Tr. 1-30, at PAGEID#: 141-70). The Court also referred petitioner for a psychiatric examination for purposes of determining whether petitioner should be confined at "another hospital" or a prison following sentencing. (Doc. 7, Ex. 6 & Trial Tr. 20, 28-29, at PAGEID#: 160, 168-69).
On October 2, 2009, petitioner was sentenced to concurrent one-year prison terms for the offenses charged in Counts 1 through 3; five-year prison terms for the offenses charged in Counts 4 and 5; and three-year prison terms for the two firearm specifications, which the court merged. The sentences for Counts 4, 5 and the merged firearm specifications were to be served consecutively, for an aggregate prison term of 13 years. (Doc. 7, Ex. 7). The final judgment entry of sentence was filed on October 6, 2009. (Id.).
Petitioner, through new counsel, timely appealed to the Ohio Court of Appeals, First Appellate District. (Doc. 7, Ex. 8).
Petitioner filed a number of prose motions following his conviction and sentencing:
The trial court did not rule on any of those motions.
On January 16, 2013, petitioner moved for judicial release. (Doc. 7, Ex. 19). The court denied that motion in an entry filed October 23, 2013. (Doc. 7, Ex. 20).
On October 3, 2013, petitioner filed a pro se motion to withdraw his guilty plea, which was denied by the trial court on October 22, 2013. (Doc. 7, Exs. 21, 22). On March 14, 2014, petitioner filed a motion for leave to file a delayed appeal to the Ohio Court of Appeals, First Appellate District. (Doc. 7, Ex. 23). In the motion, petitioner averred as "cause" for his delay in filing that he did not receive a copy of the trial court's ruling from the clerk of courts and first learned of the denial of his motion after he filed an application for a writ of mandamus with the Ohio Supreme Court "seeking a Judgment on that Motion" and "saw a copy of the Judgment attached" to the State's reply to his pleading. (Id., at PAGEID#: 85). A review of the on-line docket records maintained by the clerk of the Ohio Supreme Court reveals that petitioner did indeed file a mandamus petition on January 7, 2014 in Case No. 14-0031, requesting that the trial court be ordered to rule on his motion to withdraw his guilty plea. On January 17, 2014, the State responded by filing a "Suggestion of Mootness," which included a copy of the trial court's October 22, 2013 entry overruling the motion. The Ohio Supreme Court dismissed the mandamus petition as moot on March 12, 2013.
The Ohio Court of Appeals was apparently persuaded by petitioner's argument and granted petitioner's request for leave to pursue a delayed appeal. (Doc. 7, Ex. 24). In his appellate brief, petitioner presented the following assignments of error:
(Doc. 7, Ex. 27).
Six months later, on June 5, 2015, petitioner filed a notice of appeal and motion for delayed appeal to the Ohio Supreme Court. (Doc. 7, Exs. 32, 33). In his motion requesting leave to file a delayed appeal, which was apparently prepared with the assistance of a "jailhouse attorney," petitioner claimed as cause for his delay in filing that he suffers from a mental illness, which renders him "unable to comprehend, understand or perfect any legal work in [his] own behalf." (Doc. 7, Ex. 33, at PAGEID#: 113). He contended that because of his "mental health condition," he had to "completely depend" on a "jailhouse attorney" to process his appeal in a timely manner and "did not know that [his] appeal ... was late until another jailhouse attorney informed [him] that [he] was pa[s]t the filing deadline." (Id.). On July 22, 2015, the Ohio Supreme Court summarily denied petitioner's motion for delayed appeal. (Doc. 7, Ex. 34).
The instant federal habeas corpus action commenced on January 2, 2016.
(Doc. 1, at PAGEID#: 16).
Respondent has filed a motion to dismiss the petition. (Doc. 8). Respondent contends that the petition is subject to dismissal with prejudice on procedural grounds. Specifically, respondent argues that the petition is barred from review because it is time-barred under the applicable one-year statute oflimitations governing federal habeas petitions set forth in 28 U.S.C. § 2244(d) and, alternatively, because petitioner's grounds for relief are procedurally defaulted and waived. Petitioner opposes the motion to dismiss. (See Docs. 14, 18, 19).
As discussed below, it appears that respondent's motion to dismiss based on procedural bars to review has merit to the extent that it appears from the record that (1) the instant petition was filed after the expiration of the applicable one-year statute of limitations and (2) petitioner's claims for relief were procedurally defaulted in the state courts. However, the petitioner has presented arguments suggesting that the petition may be timely under equitable tolling principles and that cause may exist to excuse his procedural default of his claims for federal habeas relief. Because the question of whether or not the petition is procedurally barred from review is a close one, the undersigned finds that it would be more expeditious and efficient for the Court to directly address the merits of petitioner's grounds for relief rather than pursue further inquiry into the procedural issues. Upon review of the record and the parties' pleadings, the undersigned concludes that the petition is subject to dismissal because petitioner is not entitled to habeas relief based on the merits of his claims.
Under 28 U.S.C. § 2244(d)(1), as amended by § 101 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a person in custody pursuant to the judgment of a state court must file an application for a writ of habeas corpus within one year from the latest of:
28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(2), the running of the limitations period is tolled during the pendency of a properly filed application for state post-conviction relief or other collateral review.
In this case, as the respondent has argued in the motion to dismiss, it appears that petitioner's grounds for relief are governed by the one-year statute of limitations set forth in § 2244(d)(1)(A) because they are based on errors that allegedly occurred before or during the state plea-taking proceeding, which could have been discovered in the exercise of due diligence before petitioner's conviction became final by the conclusion of direct review or expiration of time for seeking such review. Petitioner's conviction became final on September 27, 2010, when the 45-day period expired for filing a timely appeal to the Ohio Supreme Court from the court of appeals' August 13, 2010 direct appeal decision. See Ohio Sup. Ct. Prac. R. 7.01(A)(1)(a)(1). The statute commenced running on September 28, 2010, one day after petitioner's conviction became final, see Fed. R. Civ. P. 6(a); Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000), and expired one year later absent application of statutory or equitable tolling principles.
During the one-year limitations period that began on September 28, 2010, petitioner was entitled to tolling of the statute under 28 U.S.C. § 2244(d)(2) based on any pending "properly filed" applications for state post-conviction relief or other collateral review. See 28 U.S.C. § 2244(d)(2); see also Holland v. Florida, 560 U.S. 631, 635 (201 O); Allen v. Siebert, 552 U.S. 3, 4 (2007) (per curiam); Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003). "The tolling provision does not, however, `revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run." Vroman, 346 F.3d at 602 (quoting Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998)). Once the limitations period is expired, state collateral review proceedings can no longer serve to avoid the statute of limitations bar. Id
In this case, petitioner filed five motions with the trial court that were never ruled on: a "motion for no bill/negligence" and a "motion for ineffective counsel" on February 3, 2010 (Doc. 7, Exs. 14, 15); a motion for appointment of counsel on March 28, 2011 (Doc. 7, Ex. 16); a motion for re-sentencing pursuant to Ohio Crim. R. 32 on February 14, 2012 (Doc. 7, Ex. 17); and a motion for a final disposition of this matter on June 25, 2012 (Doc. 7, Ex. 18). Petitioner is unable to prevail on any argument that those motions have served to indefinitely toll the limitations period because they have remained pending before the trial court since the first motions were filed in February 2010. As respondent has pointed out in the return of writ (see Doc. 8, p. 6 n.3, at PAGEID#: 188), under Ohio law, when a trial court fails to rule on a motion, it must be presumed that the motion was denied. See State v. Olah, 767 N.E.2d 755, 760 n.2 (Ohio Ct. App. 2001) (and Ohio cases cited therein) (applying the presumption to an outstanding motion in a criminal case that "[w]hen a trial court fails to rule on a motion, the motion will be considered denied"); State v. Crawford, No. 25506, 2013 WL 5532 183, at *2 (Ohio Ct. App. Oct. 4, 2013) (same); see also Edwards v. Warden, Ross Corr. Inst., No. 1:08cv850,2009 WL 6600255, at *5 (S.D. Ohio Dec. 17, 2009) (Report & Recommendation) (applying the presumption set forth in Olah in rejecting the contention that the one-year statute of limitations governing federal habeas petitions was "indefinitely toll[ed]" by a state post-conviction petition that was never ruled on by the trial court), adopted, 2010 WL 2519659 (S.D. Ohio June 17, 2000).
The question then becomes by what date were the motions presumptively denied for tolling purposes? Under the circumstances presented here, the Court presumes that they were denied by October 22, 2013, the date the trial court denied petitioner's prose motion to withdraw his guilty plea, which was filed on October 3, 2013. In the motion to withdraw his guilty plea, petitioner essentially alleged the same claims of ineffective assistance of trial counsel, insufficient evidence, and void sentence for allied offenses of similar import that he had asserted in his earlier-filed "motion for no bill/negligence" and "motion for ineffective counsel" filed in February 2010 and "motion for re-sentencing" filed in February 2012. By then, the earlier-filed motions had already been pending for a substantial period of time. Therefore, it must be presumed that they were denied by the time the trial court issued its ruling in October 2013 denying petitioner's motion to withdraw his guilty plea based on the same arguments.
The Court assumes in petitioner's favor that his motions "for no bill/negligence," "for ineffective counsel," and "for re-sentencing" were properly filed applications for state post-conviction relief or other collateral review,
The AEDPA's statute of limitations is subject to equitable tolling, see Holland v. Florida, 560 U.S. 631, 645 (2010), "when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond the litigant's control." Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 749 (6th Cir. 2011) (quoting Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010)). Equitable tolling is granted "sparingly." Id. (quoting Robertson, 624 F.3d at 784). A habeas petitioner is entitled to equitable tolling only if he establishes that (1) "he has been pursuing his rights diligently;" and (2) "some extraordinary circumstance stood in his way and prevented timely filing." Id. (quoting Holland, 560 U.S. at 649 (internal quotations omitted)); see also Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Although the Sixth Circuit previously utilized a five-factor approach in detennining whether a habeas petitioner is entitled to equitable tolling, Holland's two-part test has replaced the five-factor inquiry as the "governing framework" to apply. Hall, 662 F.3d at 750 (citing Robinson v. Easterling, 424 F. App'x 439, 442 n.1 (6th Cir. 2011)). "With Holland now on the books, the `extraordinary circumstances' test, which requires both reasonable diligence and an extraordinary circumstance, has become the law of this circuit." Id.; see also Patterson v. Lafler, 455 F. App'x 606, 609 n. 1 (6th Cir. 2012).
In this case, petitioner has presented two strong arguments for equitable tolling of the statute of limitations. First, as petitioner pointed out in his motion for delayed appeal to the Ohio Court of Appeals from the trial court's October 22, 2013 decision denying his motion to withdraw his guilty plea (see Doc. 7, Ex. 23), petitioner was unaware of the trial court's decision and did not find out about it until after he filed a mandamus petition with the Ohio Supreme Court requesting a ruling on the motion and received the State's responsive pleading filed on January 17, 2014, which included a copy of the trial court's October 22, 2013 entry. Because it thus appears that petitioner did not know that his motion to withdraw his guilty plea had been denied until he received the State's response to his mandamus petition, an argument can be made that equitable tolling principles should apply to extend the tolling period beyond November 21, 2013 (the date the 30-day period expired to file a timely appeal to the Ohio Court of Appeals from the trial court's October 22, 2013 entry) to cover not only the two-month period of time that petitioner remained unaware of the trial court's ruling but also an additional 30 days in which to pursue an appeal from that ruling. The extension of the tolling period for an additional three months would mean that the petition filed on January 2, 2015 is not time-barred.
Second, petitioner has raised issues regarding his mental competence, which he claims prevented him from filing a timely habeas petition. The Sixth Circuit has held that mental incompetence or incapacity, which prevents the timely filing of a habeas petition, is an extraordinary circumstance that may equitably toll the one-year limitations period. Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011). To obtain equitable tolling on that basis, the petitioner must demonstrate that (I) he suffers a mental incompetence or incapacity, and (2) his mental incompetence or incapacity caused his failure to comply with the statute of limitations. Id. "[A] blanket assertion of mental incompetence is insufficient to toll the statute of limitations. Rather, a causal link between the mental condition and untimely filing is required." Id. (citing McSwain v. Davis, 287 F. App'x 450, 456 (6th Cir. 2008)).
The question is a close one in this case. Petitioner has shown that he suffers from "chronic disorganized schizophrenia," requiring his "involuntary" commitment on two occasions since his incarceration in order to receive medications to treat his mental condition. (See Doc. 7, Ex. 33). A "jailhouse attorney," who assisted petitioner with his motion for delayed appeal to the Ohio Supreme Court from the Ohio Court of Appeals' December 10, 2014 decision affirming the denial of his motion to withdraw his guilty plea, stated in a supporting affidavit executed on May 27, 2015 that petitioner "is severely mentally disabled, and on medication, and is unable to produce or complete his legal issues." (Id., "Declaration of Lee D. Williams," at PAGEID#: 122). Apparently, petitioner is being assisted by another "jailhouse attorney" in this proceeding. (See Doc. 14, p. 5, at PAGEID#: 215). That person has provided the following statement in a pleading filed in response to the respondent's motion to dismiss:
(Id., pp. 2-3, 7, at PAGEID#: 212-13, 217).
The assertions made in support of petitioner's motion for delayed appeal to the Ohio Supreme Court, as well as in response to the respondent's motion to dismiss in the instant action, raise concerns that further development of the record by way of an evidentiary hearing may be necessary before the equitable tolling issue can be resolved. See Ata, 662 F.3d at 742-43 (holding that "[a]lthough an evidentiary hearing need not be provided as a matter ofright, an evidentiary hearing is required when sufficiently specific allegations would entitle the petitioner to equitable tolling on the basis of mental incompetence which caused the failure to timely file").
Accordingly, in sum, in light of the petitioner's arguments for equitable tolling, the Court is reluctant to find on the basis of the present record that the petition is procedurally barred from review on statute-of-limitations grounds. Rather than decide the close question or hold an evidentiary hearing to further develop the record, the undersigned concludes that it would be a more expedient and efficient use of the Court's time and resources to directly address petitioner's claims for relief on the merits.
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 defendant with federal constitutional claims must fairly present those claims to the state courts for consideration before raising them in a federal habeas corpus action. See 28 U.S.C. § 2254(b)(1), (c); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). In order to satisfy the fair presentation requirement, the claims asserted in the federal habeas petition must be based on the same facts and same legal theories that were presented to the state courts. Carter v. Mitchell, 693 F.3d 555, 568 (6th Cir. 2012) (citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998)). Moreover, a claim is deemed fairly presented only if the petitioner presented his constitutional claims for relief to the state's highest court for consideration. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94, 97, 99-100 (6th Cir. 1985).
If a petitioner fails to fairly present his constitutional claims through the requisite levels of appellate review to the state's highest court, or commits some other procedural default that prevents a merit-based review of the federal claims by the state's highest court, he may have waived the claims for purposes of federal habeas review. See O'Sullivan, 526 U.S. at 847-48; Harris v. Reed, 489 U.S. 255, 260-62 (1989); McBee v. Grant, 763 F.2d 811, 813 (6th Cir. 1985); see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989). If, because of a procedural default, the petitioner has not had his claims considered by the state's highest court and he can no longer present his claims to the state courts, the claims are barred from review unless the petitioner can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional errors or that failure to consider the claims will result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In this case, respondent contends that petitioner's claims for relief are procedurally defaulted to the extent that they are based on evidence in the record and were not raised by petitioner as assignments of error on direct appeal. (See Doc. 8, pp. 15-17, at PAGEID#: 197-99). It appears from the record that although petitioner did not assert any claims alleging ineffective assistance of trial counsel on direct appeal, he did raise them in his motion to withdraw his guilty plea filed in October 2013, over three years after the direct appeal proceeding had concluded. (See Doc. 7, Ex. 21). The Ohio Court of Appeals addressed the claims on the merits in its Judgment Entry filed December 10, 2014 affirming the trial court's decision to deny the post-appeal motion. (See id., Ex. 31). Because the Ohio Court of Appeals ultimately addressed the merits of petitioner's claims in that later proceeding, petitioner's failure to assert them on direct appeal did not constitute a procedural default that precludes federal habeas review under the circumstances presented by this case.
Respondent further contends, however, that to the extent the merits of his ineffective-assistance-of-trial-counsel claims were considered by the Ohio Court of Appeals in the appeal from the denial of his motion to withdraw his guilty plea, the claims are still defaulted because petitioner failed to perfect a timely appeal from the appellate court's decision to the Ohio Supreme Court. (Doc. 8, pp. 16-18, at PAGEID#: 198-200). As respondent has argued, petitioner committed a procedural default by failing to pursue a timely appeal to the Ohio Supreme Court. Although petitioner later attempted to obtain a delayed appeal with the Ohio Supreme Court, he was denied leave to pursue such an appeal. (See Doc. 7, Exs. 32-34). The Sixth Circuit has held that the Ohio Supreme Court's unexplained entry denying a motion for leave to file a delayed appeal constitutes an adequate and independent state procedural ruling sufficient to bar review of a federal habeas corpus petition. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004) (per curiam); see also Baker v. Bradshaw, 495 F. App'x 560, 565 (6th Cir. 2012) (citing Bonilla in pointing out that "[t]his court has held that violation of ... the timeliness requirements for an appeal to the Ohio Supreme Court ... constitute[s] adequate and independent state grounds to preclude hearing an untimely claim on the merits"). Here, as in Bonilla and Baker, because petitioner failed to pursue a timely appeal to the Ohio Supreme Court and the Ohio Supreme Court denied petitioner leave to file a delayed appeal, the state's highest court never had the opportunity to consider the merits of the ineffective-assistance-of-counsel claims alleged herein. Therefore, petitioner's grounds for relief are barred from review by this Court unless petitioner can demonstrate cause for the default and actual prejudice from the alleged constitutional errors or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750; Bonilla, 370 F.3d at 497.
Petitioner has neither argued nor otherwise demonstrated that failure to consider his defaulted claims will result in a "fundamental miscarriage of justice," or in other words, that the alleged errors "probably resulted in the conviction of one who is actually innocent." See Murray, 477 U.S. at 495-96; see also Schlup v. Delo, 513 U.S. 298, 327 (1995).
However, petitioner has argued as cause for his procedural default that his mental health issues, which prevented him from filing a timely habeas petition, also prevented him from perfecting a timely appeal to the Ohio Supreme Court. As discussed above in addressing the potential statute-of-limitations bar to review, the undersigned is reluctant to find on the basis of the present record that petitioner's mental incompetence or incapacity does not constitute sufficient "cause" to excuse his procedural default in this case. Given the closeness of the "cause" issue, the Court must then address the merits of petitioner's underlying claims to determine if petitioner has met the "prejudice" requirement for excusing his default. Therefore, as previously determined in addressing the statute-of-limitations defense lodged by the respondent, the undersigned concludes that it would be a more expedient and efficient use of the Court's time and resources to simply address petitioner's claims for relief on the merits without resolving whether or not petitioner's claims are procedurally barred from review.
In the petition, petitioner alleges in his three grounds for relief that his trial counsel provided ineffective assistance by (1) advising him to enter a guilty plea to charges that were subject to merger as allied offenses of similar import under Ohio Rev. Code§ 2941.25; (2) failing to challenge the weapons-under-disability charge absent proof that petitioner had knowledge he was under a disability with respect to a weapon that he legally possessed prior to his "involuntary hospitalization"; and (3) failing to advise petitioner of his defenses before accepting his plea. (Doc. 1, at PAG EID#: 16; see also Doc. 21, p. 2, at PAGEID#: 295). Petitioner has not specified in Ground Three the "defenses" that his counsel failed to "correctly" advise him about. In his motion to withdraw his guilty plea, petitioner only alleged the claims set forth in Grounds One and Two of the petition. (See Doc. 7, Ex. 21). However, petitioner has additionally suggested in his responses to respondent's motion to dismiss that his counsel failed to adequately ensure that he was mentally competent to enter a valid guilty plea. (See Doc. 14; see also Doc. 18, p. 7, at PAGEID#: 279; Doc. 19, p. 5, at PAGEID#: 284).
The Ohio Court of Appeals was the only state court to issue a reasoned decision addressing the ineffective-assistance-of-counsel claims that were raised by petitioner in his motion to withdraw his guilty plea. The court rejected the claims, reasoning in relevant part as follows:
(Doc. 7, Ex. 31).
This Court's review of petitioner's claims of constitutional error is limited. Under § 2254(d), a writ of habeas corpus may not issue with respect to any claim adjudicated on the merits by the state courts unless the adjudication either:
28 U.S.C. § 2254(d).
"A decision is `contrary to' clearly established federal law when `the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question oflaw or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). "A state court's adjudication only results in an `unreasonable application' of clearly established federal law when `the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. at 599-600 (quoting Williams, 529 U.S. at 413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600.
As the Sixth Circuit explained in Otte:
Id. (emphasis in original). The Supreme Court has further held that when a state court rules against a defendant in an opinion that "addresses some issues but does not expressly address the federal claim in question," the federal habeas court must presume, subject to rebuttal, that the federal claim was "adjudicated on the merits" and thus subject to the "restrictive standard of review" set out in§ 2254(d). See Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 1091 (2013).
Although the standard is difficult to meet, § 2254(d) "stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings" and "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington, 562 U.S. at 102. In other words, to obtain federal habeas relief under that provision, the state prisoner must show that the state court ruling on the claim presented "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
The Supreme Court has made it clear that in assessing the merits of a constitutional claim under § 2254(d), the federal habeas court must apply the Supreme Court precedents that controlled at the time of the last state-court adjudication on the merits, as opposed to when the conviction became "final." Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 44-45 (2011); cf. Otte, 654 F.3d at 600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the state court's decision, the state court, the federal habeas court must "look to Supreme Court cases already decided at the time the state court made its decision"). The writ may issue only if the application of clearly-established federal law is objectively unreasonable "in light of the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state court decision." McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529 U.S. at 412); see also White v. Woodall, ___ U.S. ___, 134 S.Ct. 1697, 1702 (2014) (quoting Howes v. Fields, ___ U.S. ___, 132 S.Ct. 1181, 1187 (2012) (internal citation and quotation marks omitted)) ("[C]learly established Federal law' for purposes of§ 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions."). Decisions by lower courts are relevant only "to the extent [they] already reviewed and interpreted the relevant Supreme Court case law to determine whether a legal principle or right had been clearly established by the Supreme Court." Otte, 654 F.3d at 600 (quoting Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)).
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set forth the standard ofreview to be used in deciding ineffective-assistance-of-counsel claims. The standard is a two-part test, requiring a showing by the petitioner that (1) his trial attorney's conduct was constitutionally deficient; and (2) the attorney's deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687.
Under the first prong of the Strickland test, petitioner had to show that his counsel's representation fell below an objective standard of reasonableness based on all the circumstances surrounding the case. Id. at 688. Judicial scrutiny must be highly deferential, and a "fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight" and to evaluate the challenged conduct from counsel's perspective at the time the conduct occurred. Id. at 689. In determining whether or not counsel's performance was deficient, the court must indulge a strong presumption that the challenged conduct fell within the wide range ofreasonable professional assistance. Id. To satisfy the second "prejudice" prong of the Strickland test, petitioner had to demonstrate that a "reasonable probability" exists that, but for his counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (applying Strickland to a claim of ineffective assistance in the guilty plea context); see also Strickland, 466 U.S. at 687-88, 694. The court need not examine the question of whether counsel's performance was deficient before addressing the question of whether petitioner was prejudiced by counsel's performance. The court may dispose of an ineffective-assistance-of-counsel claim by finding that petitioner made an insufficient showing on either ground. Strickland, 466 U.S. at 697.
Jn this federal habeas action, this Court must employ a "doubly deferential'. standard of review in evaluating the reasonableness of the Ohio Court of Appeals' adjudication of petitioner's claims under Strickland. See Woods v. Daniel, ___ U.S. ___, 135 S.Ct. 1372, 1376 (2015) (per curiam); Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 13 (2013); Premo v. Moore, 562 U.S. 115, 122-23 (2011) (quoting Harrington, 562 U.S. at 104-05); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Although "[s]urmounting Strickland's high bar is never an easy task," Harrington, 562 U.S. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)), the A EDPA requires that a second layer of deference be accorded the state courts' adjudication of ineffective assistance of counsel claims. The Supreme Court has explained:
Harrington, 562 U.S. at 105 (quoting Strickland, 466 U.S. at 689, and Knowles, 556 U.S. at 123); see also Premo, 562 U.S. at 122-23. Therefore, on federal habeas review, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable," which "is different from asking whether defense counsel's performance fell below Strickland' s standard." Harrington, 562 U.S. at 101.
Here, without referring to Strickland or the two-prong standard established in Strickland, the Ohio Court of Appeals rejected petitioner's ineffective-assistance-of-counsel claims because the "underlying premises" for those claims lacked merit. Specifically, the court rejected the claims alleged in Grounds One and Two based on counsel's failure to challenge petitioner's convictions for "allied offenses of similar import" and for having weapons under disability because, as a matter of Ohio law and contrary to the petitioner's contentions, (1) the charges were not allied offenses "under the law as it existed when [petitioner] was sentenced in 2009"; and (2) petitioner could be convicted for having weapons under a disability even if he did not know that his mental disability prevented him from legally possessing a firearm. (See Doc. 7, Ex. 31). Furthennore, to the extent that petitioner has additionally suggested in Ground Three that his counsel failed to ensure that he had the capability to enter a guilty plea knowingly, voluntarily and intelligently given his mental health issues, the Ohio Court of Appeals expressly found that the trial record did not reflect that the guilty plea was anything "other than knowing, voluntary and intelligent." (See id.). Although the Ohio Court of Appeals did not explicitly refer to the two-part Strickland standard, which requires a showing of both constitutionally deficient performance by counsel and prejudice, the state court's adjudication of petitioner's claims is neither contrary to nor an unreasonable application of that standard.
First, it was not unreasonable for the Ohio Court of Appeals to conclude with respect to the claims alleged in Grounds One and Two that petitioner had not shown any error, much less error of constitutional dimension, by counsel in failing to raise issues governed by Ohio law, which lacked merit. The state appellate court's rulings pertaining to the underlying state-law issues are not subject to review and are entitled to deference in this federal habeas corpus proceeding. This Court has jurisdiction to review petitioner's claims only to the extent that petitioner challenges his confinement based on an alleged violation of the Constitution, laws or treaties of the United States, and not "on the basis of a perceived error of state law." 28 U.S.C. § 2254(a); Pulley v. Harris, 465 U.S. 37, 41 (1984); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010)(quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) ("it is not the province of a federal court to reexamine state-court determinations on state-law questions"). Moreover, "because the state courts are final authority on state-law issues, the federal habeas court must defer to and is bound by the state court's rulings on such matters." Bennett v. Warden, Lebanon Corr. Inst., 782 F.Supp.2d 466, 478 (S.D. Ohio 2011) (and cases cited therein); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); Jones v. Woods, 635 F. App'x 254, 257 (6th Cir. 2015) (citing Davis v. Straub, 430 F.3d 281, 291 (6th Cir. 2005)) (in affirming the district court's denial of a habeas petition based on a claim that the petitioner's trial counsel was ineffective for failing to request a self-defense jury instruction, the Sixth Circuit emphasized that "(w]e are bound by the [state] Court of Appeals' determination that [the petitioner] was not entitled to the instruction under state law"); Meyers v. Ohio, No. 1:14cv1505,2016 WL 922633, at *7 (N.D. Ohio Jan. 21, 2016) (Report & Recommendation) (citing Olsen v. McFaul, 843 F.2d 918, 929 (6th Cir. 1988)) ("federal habeas courts are bound by decisions of intermediate state courts on questions of state law unless convinced that the state's highest court would decide the issue differently"), adopted, 2016 WL 916602 (N.D. Ohio Mar. 9, 2016). Cf. Sheffey v. Bradshaw, No. 1: 14cv1329, 2015 WL 9591535, at *17 (N.D. Ohio Sept. 30, 2015) (Report & Recommendation) (finding that the petitioner's claim that the "trial court `failed to properly apply Ohio's allied offenses statute' ... is not cognizable ... in a federal habeas corpus action"), adopted, 2015 WL 9491230 (N.D. Ohio Dec. 30, 2015); Ragland v. Tibbals, No. 5:12cv2526, 2015 WL 3454882, at *2, *12 (N.D. Ohio May 29, 2015) (holding that because "a federal habeas court may not consider a claim asserting a violation of an Ohio statute," the petitioner had not stated a cognizable claim to the extent that he contended "his convictions and sentence violate O.R.C. § 2941.25").
With respect to any additional claim alleged in Ground Three regarding petitioner's mental competency to enter a valid guilty plea, such a claim is belied by the transcript of the plea and sentencing proceedings. As the Ohio Court of Appeals reasonably found, there is simply no evidence in the trial record to suggest that at the time petitioner entered his plea, he lacked the mental capacity to make a voluntary or intelligent decision as to whether to plead guilty or proceed to trial.
Indeed, upon review of the transcript of the plea-taking hearing, it is clear that petitioner understood and appropriately responded to all of the court's questions, which were asked to ensure that petitioner was entering a knowing, intelligent and voluntary plea with understanding of the nature ofthe charges, the rights he was giving up, and the maximum penalties he faced. (See Doc. 7, Trial Tr. 7-29, at PAGEID#: 147-69). Petitioner expressly acknowledged that he was taking medication to treat his mental health condition; that the medication helped him "focus and understand what's going on here"; and that he was "satisfied" with his counsel, who had "explained everything" to him and had "answered all [his] questions." (Id., Trial Tr. 10-11, at PAGEID#: 150-51). Petitioner also affirmed that he had read the "plea form" and had gone over it "in detail" with his counsel prior to the hearing. (Id., Trial Tr. 24-25, at PAGEID#: 164-65). When asked by the court if he understood the form, "what it says, and what it means," petitioner responded: "Yes, Your Honor, I do. I understood all of it. I'm very scared of it." (Id., Trial Tr. 25, at PAGEID#: 165). Petitioner nevertheless affirmed that he had signed the plea form of his "own free will" and stated that he still wanted to plead guilty to the charges. (Id., Trial Tr. 25-26, at PAGEID#: 166). Petitioner also stated that he understood that he faced a maximum aggregate prison sentence of seventeen and one-half years on the criminal charges "plus fines of $35,000" and only expressed concern that he did not have the funds to pay the fine. (Id., Trial Tr. 15-17, at PAGEID#: 16-17, at PAGEID#: 156-57). When petitioner later asked the court when he would be sentenced and "how much time" he would be "getting," the court responded that sentencing would occur later after another psychiatric report was completed for purposes of determining whether petitioner should be placed in a hospital or prison following sentencing; the court also stated with respect to the sentence to be imposed: "I'm not sure yet. I got to see what the reports say." (Id., Trial Tr. 20-21, at PAGEID#: 160-61).
Finally, it appears from the record that petitioner's counsel was well aware that petitioner's competency posed "a concern during this case." (See id., Trial Tr. 26, at PAGEID#: 166).
Accordingly, in sum, upon review of the trial record and under the doubly-deferential standard ofreview required to be applied in this case, the undersigned concludes that petitioner has not demonstrated the Ohio Court of Appeals' adjudication of his ineffective-assistance-of-counsel claims "was so Jacking in justification that there was an error well understood and comprehended in existing Jaw beyond any possibility for fairminded disagreement." See Harrington, 562 U.S. at 103. Because the Ohio court's adjudication of the Sixth Amendment issues is neither contrary to nor involves an unreasonable application of Strickland, it is
1. Petitioner's motion for leave to respond to respondent's reply to petitioner's memorandum in opposition to the motion to dismiss (Doc. 18) is
2. Petitioner's motion for appointment of counsel (Doc. 13) is
1. The respondent's motion to dismiss (Doc. 8) be
2. A certificate of appealability should not issue with respect to any of the grounds for relief alleged in the petition because petitioner has not stated a "viable claim of the denial of a constitutional right," nor are the issues presented "adequate to deserve encouragement to proceed further." See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
3. With respect to any application by petitioner to proceed on appeal informa pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and, therefore, should
Pursuant to Fed. R. Civ. P. 72(b),
