CHELSEY M. VASCURA, Magistrate Judge.
Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Motion to Dismiss, Petitioner's Motion in Opposition, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:
State v. Collopy, No. 2016CA0010, 2017 WL 1374169, at *1 (Ohio App. 5th Dist. April 13, 2017). On April 13, 2017, the appellate court affirmed the judgment of the trial court. Id. On June 8, 2017, Petitioner filed a Notice of Appeal and Motion for Delayed Appeal in the Ohio Supreme Court. (ECF No. 6-1, PAGEID# 142-44.) The Ohio Supreme Court granted Petitioner's motion for a delayed appeal. (PAGEID# 163.) However, Petitioner thereafter filed a motion to voluntarily dismiss the appeal as fruitless. (PAGEID# 164-65.) On August 14, 2017, the Ohio Supreme Court granted the motion, and dismissed the appeal. State v. Collopy, 150 Ohio St.3d 1416 (2017); (PAGEID# 166.) On July 3, 2017, Petitioner filed an application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B). (PAGEID# 167.) On August 14, 2017, the appellate court denied the Rule 26(B) application. (PAGEID# 182.) On December 6, 2017, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Collopy, 151 Ohio St.3d 1457 (2017); (PAGEID# 205.)
On December 28, 2017, Petitioner filed this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As his sole ground for federal habeas corpus relief, Petitioner asserts that he was denied the effective assistance of appellate counsel because his attorney failed to raise on appeal a claim that his guilty plea was not knowing, intelligent, or voluntary because the trial court failed to advise him of the community notification provisions of O.R.C. § 2950.11 and residential restrictions. It is the position of the Respondent that this claim is procedurally defaulted and without merit.
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the Antiterrorism and Effective Death Penalty Act ("the AEDPA") govern this case. The United State Supreme Court has described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the `extreme malfunction' for which federal habeas relief is the remedy." Burt v. Titlow, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) ("AEDPA . . . imposes a highly deferential standard for evaluating statecourt rulings, and demands that state court decisions be given the benefit of the doubt." (internal quotation marks, citations, and footnote omitted)).
The AEDPA limits the federal courts' authority to issue writs of habeas corpus and forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings" unless the state court decision either
28 U.S.C. § 2254(d).
Further, under the AEDPA, the factual findings of the state court are presumed to be correct:
28 U.S.C. § 2254(e)(1).
Accordingly, "a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts." Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)), cert. denied sub nom. Coley v. Robinson, 134 S.Ct. 513 (2013). The United States Court of Appeals for the Sixth Circuit has summarized these standards as follows:
Id. at 748-49. The burden of satisfying the AEDPA's standards rests with the petitioner. See Cullen v. Pinholster, 563 U.S.170, 181 (2011).
Petitioner asserts that he was denied the effective assistance of appellate counsel because his attorney failed to raise on appeal a claim that his guilty plea was not knowing, intelligent, or voluntary, in view of the trial court's failure to advise him of the community notification requirements of O.R.C. § 2950.11.
Judgment Entry (ECF No. 6-1, PAGEID# 185-86.)
"In all criminal prosecutions," the Sixth Amendment affords "the accused . . . the right . . . to Assistance of Counsel for his defence." U.S. Const. amend. VI. "Only a right to `effective assistance of counsel' serves the guarantee." Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011) (citation omitted). The United States Supreme Court set forth the legal principles governing claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984). Strickland requires a petitioner claiming the ineffective assistance of counsel to demonstrate that his counsel's performance was deficient and that he suffered prejudice as a result. Id. at 687; Hale v. Davis, 512 F. App'x 516, 520 (6th Cir.), cert. denied sub. nom. Hale v. Hoffner, 134 S.Ct. 680 (2013). A petitioner "show[s] deficient performance by counsel by demonstrating `that counsel's representation fell below an objective standard of reasonableness.'" Poole v. MacLaren, 547 F. App'x 749, 754 (6th Cir. 2013) (quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011) (internal quotation marks omitted); citing Strickland, 466 U.S. at 687), cert. denied, 135 S.Ct. 122 (2014). To make such a showing, a petitioner must overcome the "strong [] presum[ption]" that his counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 687. "To avoid the warping effects of hindsight, [courts must] `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Bigelow v. Haviland, 576 F.3d 284, 287 (6th Cir. 2009) (quoting Strickland, 466 U.S. at 689).
Leonard v. Warden, Ohio State Penitentiary, No. 1:09-cv-056, 2013 WL 831727, at *28 (S.D. Ohio March 6, 2013). Factors to be considered in determining whether a defendant has been denied the effective assistance of appellate counsel include the following:
Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999) (citations omitted).
The United States Supreme Court has cautioned federal habeas courts to "guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)." Harrington, 562 U.S. at 105. The Court observed that, while "`[s]urmounting Strickland's high bar is never . . . easy,' . . ., [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is even more difficult." Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010), and citing Strickland, 466 U.S. at 689). The Supreme Court instructed that the standards created under Strickland and § 2254(d) are both "`highly deferential,' and when the two apply in tandem, review is `doubly' so." Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, "[t]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
Additionally, because a criminal defendant waives numerous constitutional rights when he pleads guilty, the plea must be entered into knowingly and voluntarily in order to be constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 244 (1969). "`The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In applying this standard, the Court must look at the totality of circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648 (1976). A criminal defendant cannot successfully challenge the voluntariness of his plea merely on the basis that he was motivated to plead guilty. Brady v. United States, 397 U.S. 742, 750 (1970). Moreover, "[a] criminal defendant `need only be [made] aware of the direct consequences of the plea' and a trial court `is under no constitutional obligation to inform the defendant of all the possible collateral consequences of the plea.'" Rose v. Bauman, No. 2:17-cv-10836, 2018 WL 534490, at *5 (E.D. Mich. Jan. 24, 2018) (citing King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994)). Further, "it is well-settled under Sixth Circuit precedents" that a criminal defendant's classification as a sexual predator "is merely a `collateral consequence' of his guilty plea, which does not affect the validity of his plea or conviction." Doty v. Warden, Toledo Corr. Inst., No. 1:12-cv-239, 2013 WL 429100, at *7 (S.D. Ohio Feb. 1, 2013) (citing Leslie v. Randle, 296 F.3d 518, 521-23 (6th Cir. 2002); United States v. Cottle, 355 F. App'x 18, 20-21 (6th Cir. 2009); Tatum v. Warden, Allen Corr. Inst., No. 1:07cv355, 2008 WL 1766790, at *1, *5 (S.D. Ohio Apr.11, 2008)). Moreover, as noted by the state appellate court, the sentencing transcript indicates that the trial court advised Petitioner at the time of his guilty plea that he would be subject to a lifetime reporting requirement as a sexual offender. Petitioner indicated that he understood. (ECF No. 6-1, PAGEID# 211-12.) Petitioner does not allege, and the record does not reflect, that the guilty plea colloquy was otherwise inadequate.
Therefore, Petitioner has failed to establish that the state appellate court's denial of his claim of ineffective assistance of appellate counsel warrants relief.
For the reasons set forth above, it is
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A Judge of this Court shall make a de novo determination of those portions of the Report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the District Judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
