MICHAEL R. MERZ, Magistrate Judge.
This is a habeas corpus case brought pro se by Petitioner Joshua Harris to obtain relief from his conviction in the Franklin County, Ohio, Court of Common Pleas for engaging in a pattern of corrupt activity, aggravated funding of drug trafficking, and aggravated trafficking in drugs and sentence of imprisonment in Respondent's custody. It is ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF No. 9), the Warden's Return of Writ (ECF No. 10), and Petitioner's Traverse (ECF No. 16).
The Magistrate Judge reference in this case was transferred to the undersigned to help balance the Magistrate Judge workload in the District. Final decision of the case remains with District Judge Graham.
On January 9, 2017, the Franklin County, Ohio, grand jury returned a 39-count indictment against Smith and his co-defendants arising from a multi-state oxycodone trafficking operation. Smith was charged with engaging in a pattern of corrupt activity in violation of Ohio Revised Code § 2923.32, aggravated funding of drug trafficking in violation of Ohio Revised Code § 2925.05 and 27 counts of aggravated trafficking in drugs in violation of Ohio Revised Code § 2925.03 between March 2015 and June 2016. (Indictment, State Court Record, ECF No. 9, Ex. 1, PageID 34-69.)
On March 31, 2017, the Franklin County grand jury returned a second indictment charging Smith with three counts of aggravated trafficking involving bulk amounts of methamphetamine in violation of Ohio Revised Code § 2925.03, in December 2016. (State Court Record ECF No. 9, Ex. 6, PageID 80-81).
Pursuant to a plea agreement, Smith pleaded guilty on June 26, 2017, to engaging in a pattern of corrupt activity, aggravated funding of drug trafficking and thirteen counts of aggravated trafficking in drugs from the first indictment and one count of aggravated trafficking in drugs from the second indictment (State Court Record, ECF No. 9, Exs. 10-11; PageID 90-92; Exs. 12-13; PageID 93-95).
After presentence investigation, the court sentenced Smith to eleven years imprisonment for engaging in a pattern of corrupt activity, eight years for aggravated funding of drug trafficking, and two years in prison for each of the thirteen counts of aggravated trafficking in drugs. The first two terms were to be served consecutively and the others concurrently with each other and the first two counts. With respect to the second indictment, the court sentenced Smith to three years for aggravated trafficking, to be served consecutively, for an aggregate term of twenty-two years. (State Court Record, ECF No. 9, Ex. 19, PageID 113-14).
With the assistance of new counsel, Smith appealed to the Tenth District Court of Appeals, which affirmed the conviction. State v. Smith, No. 17AP-636, 2018-Ohio-2271 (Ohio App. 10
Smith then filed the instant Petition for writ of habeas corpus, pleading the following grounds for relief:
(Petition, ECF No. 1, PageID 5-8).
In his Traverse, Petitioner argues that the prosecutor mischaracterized the evidence and relied on facts outside the record in arguing the case (ECF No. 16, PageID 379-81). He argues the trial judge was biased against him because the judge's own son is addicted. Id. at PageID 381, quoting Sentencing Tr., ECF No. 9-2, PageID 308, 319. Finally he argues the prosecutor committed misconduct be arguing that Petitioner should be made an example of with a heavy sentence. Id. at PageID 382, quoting Sentencing Tr., ECF No.9-2, PageID 302. This Report makes no effort to analyze these claims since they are not pleaded as separate grounds for relief.
In his First Ground for Relief, Petitioner asserts his guilty plea should be set aside because it was not voluntary in that it was induced by unkept promises by the trial court and the prosecutor. Specifically, he claims his guilty plea was induced by a promise, made by both the trial court and the prosecutor, that his bond would be reduced to an amount he could afford.
Petitioner pleaded guilty on June 26, 2017 (Plea Tr., ECF No. 9-1, PageID 268, et seq.). During the plea colloquy, the trial court judge ensured that Petitioner knew the minimum and maximum sentences of eleven to 126 years for the crimes to which he was pleading and understood the rights he was giving up. As to voluntariness, the court inquired:
Id. at PageID 279. The record shows that the same day as the guilty plea, the judge reduced bond in both cases (State Court Record, ECF No. 9, Exs. 11, 13, PageID 92, 95).
In part of Ground One, Smith alleges the State breached the plea agreement. The day after the guilty plea was entered, the State moved for reconsideration of the bond, alleging Petitioner had violated the condition that he have no contact with co-defendants by calling Alicia Adkins 136 times since the bond hearing in April (State Court Record, ECF No. 9, Ex. 14, PageID 97.) On July 6, 2017, Judge Mark Serrott rescinded the new bond, which had been set on June 26, reinstated the original bond, and then revoked it for violation of the "stay away order." Id. at Ex. 15, PageID 99. The same order acknowledges that bond had not been posted pursuant to the June 26 order. That implies the truth of Petitioner's allegation that he never in fact was released on the June 26bond.
"[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement for consideration, such a promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971). In reducing bond at the time of the plea hearing, the court noted that it was over the objection of the prosecutor (Plea Tr., ECF No. 9-1, PageID 286.) The prosecutor outlined the terms of the plea agreement at some length and mentioned, inter alia, that there was a joint recommendation for a presentence investigation. He did not recite that he agreed to a reduction of bond and neither Petitioner nor his counsel did either. It appears likely that Judge Serrott made an off-the-record comment to defense counsel that he would reduce the bond if Smith pleaded guilty. The judge seems to have had some idea, presumably from defense counsel, of the amount of bond Smith would be able to post. Id. at PageID 279
Thus, Petitioner has not proved that there was an agreement between him and the State that the State would recommend a bond reduction, much less that it would not move for reconsideration of any reduction on the basis of evidence the judge did not have before him when taking the plea.
Obviously, facts or considerations that are not part of a plea agreement may induce a defendant to accept the agreement. For example, in a sexual offense case, a defendant may be remorseful and wish to spare the victim the pain of reliving the offense. Here, the trial judge candidly acknowledged that Smith had a reasonable expectation of a bond reduction, based on the judge's conversation with defense counsel and that expectation could well have helped induce him to accept the plea bargain. But a bond reduction recommendation from the prosecutor was not a bargained-for term of the plea agreement.
Petitioner relied on appeal and again relies here on State v. Bowen, 52 Ohio St.2d 27 (1977) (Traverse, ECF No. 16, PageID 393). In that case the prosecutor made, as part of the plea agreement, a promise to recommend that two sentences be run concurrently when the law did not allow concurrent sentences for the offenses involved. Bowen, 52 Ohio St. 2d at 29-30. Bowen is inapposite because the prosecutor there made a promise which was illusory: a recommendation for concurrent sentences could have no benefit to a defendant when the sentences were legally required to run consecutively. Thus, Ground for Relief One is without merit insofar as it claims the State breached the plea agreement.
The second part of Ground One claims trial court erred in not reducing the bond as the judge had indicated he would. This claim is procedurally defaulted by failure to properly present it to the court of appeals. The Tenth District held
Smith, 2018-Ohio-2271.
The procedural default doctrine in habeas corpus is described by the United States Supreme Court as follows:
Coleman v. Thompson, 501 U.S. 722, 750 (1991). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). "Absent cause and prejudice, `a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review.'" Boyle v. Million, 201 F.3d 711, 716 (6
Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).
The United States Court of Appeals for the Sixth Circuit requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 464 (6
Maupin v. Smith, 785 F.2d at 138.
It is axiomatic in Ohio appellate practice that the appeals court only decides assignments of error that have been properly raised and briefed. See Ohio App.R. 12(A), 16(A)(7) (requiring the appellant brief to include "the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies."); Hawley v. Ritley, 35 Ohio St.3d 157, 159 (1988), quoting Uncapher v. Baltimore & Ohio R.R. Co., 127 Ohio St. 351, 356 (1933) ("Errors not treated in the brief will be regarded as having been abandoned . . .). Here Petitioner complained on appeal that the prosecutor had not kept the plea bargain; his first assignment of error reads:
(Appellant's Brief, State Court Record, ECF No. 9, Ex. 24, PageID 137.) Thus, Petitioner did not raise the trial court's honor its promise as an assignment of error on appeal and the Tenth District declined to reach the merits of that claim because it was not properly pleaded. The State's interest in structuring appellate litigation so as to focus the issues is an adequate state procedural rule independent of federal law. Furthermore, Smith has offered no caused and prejudice to excuse this failure: he did not include failure to plead an appropriate assignment of error as one of the omitted assignments of error raised in his Application for Reopening. Therefore, the procedural default of this portion of Ground One remains unexcused.
Respondent argues a further basis of procedural default: failure to appeal to the Supreme Court of Ohio from denial of the 26(B) Application. Petitioner seeks to excuse this default on the basis of prison mailing procedures. The Court need not reach this issue because the default was complete in the 26(B) Application itself.
In his Second Ground for Relief, Smith alleges he received ineffective assistance of trial counsel when his attorney did not review the recordings or transcripts of recordings of his telephone calls from the Franklin County Jail which were alleged to have violated the conditions of his bond.
The governing standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984):
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 Knowles v. Mirzayance, 556 U.S.111 (2009).
Smith raised this claim as his second assignment of error on direct appeal, pleading: "Trial counsel offered ineffective assistance of counsel by failing to review the discovery disc of jail calls disclosed after change of plea but before sentencing, resulting in prejudice to the defendant-appellant." (Appellant's Brief, State Court Record, ECF No. 9, Ex. 24, PageID 137).
The Tenth District decided this assignment of error as follows:
Smith, 2018-Ohio-2271.
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, 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).
The Tenth District's decision on this assignment of error was neither contrary to nor an objectively unreasonable application of Strickland. The appellate court recognized Strickland as the governing case. It then noted that, while having trial counsel review the two hundred hours of tape would have been one way to approach dealing with those calls, it was not deficient performance to present other mitigating evidence and then allow Smith himself to explain the calls. He was, after all, the person most competent to explain his meaning. Indeed, anything counsel would have said would only have been a repetition of what Smith told him. Ground Two should therefore be denied on merits.
In his Third Ground for Relief, Smith asserts he received ineffective assistance of trial counsel when his trial attorney failed to correct "inaccuracies and inconsistencies" in the presentence investigation report. This was Smith's third assignment of error on appeal (State Court Record, ECF No. 9, Ex. 24, PageID 137), and the Tenth District decided it on the merits, employing the same Strickland precedent as on the second assignment. The appellate court decided:
Smith, 2018-Ohio-2271.
In his Traverse, Smith does not set forth any of the supposed inaccuracies and inconsistencies in the PSI (ECF No. 16, PageID 407-08.). Nor does he offer any record reference to evidence that would contradict or rebut what is in the PSI. As he notes, the PSI was not included in the State Court Record filed here, and he asks that the record be expanded to includes the PSI and additional briefing be allowed. Apparently, he believes the PSI will be self-evidently in error. But the Tenth District already considered the PSI in the context of the appellate record and found no such self-evident error.
This Court cannot consider evidence outside the direct appeal record to determine if statements made in the PSI are in error. Cullen v. Pinholster, 563 U.S. 170 (2011). To present such evidence, Smith would have had to file a petition for post-conviction relief under Ohio Revised Code § 2953.21 which he has not done and the deadline for doing so has expired. Because he has made no showing of error in the PSI, Smith has not shown his counsel provided ineffective assistance of trial counsel by not rebutting statements made there. The Tenth District's decision on this claim is therefore entitled to deference under 28 U.S.C. § 2254(d)(1) and should be dismissed on the merits.
Based on the foregoing analysis, it is respectfully recommended that the Petition 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.
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. 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 Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
