# Lewis v. Warden, Dayton Correctional Institution

> District Court, S.D. Ohio · November 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10376697

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** November 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10376697

## How later opinions describe it (automated extraction)

- holding that "evidence out of the record in the form of petitioner's own self- serving affidavit alleging a constitutional deprivation will not compel a hearing."

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS

JASMINE D. LEWIS,

Petitioner, : Case No. 2:20-cv-3461

- vs - District Judge Michael H. Watson
Magistrate Judge Michael R. Merz

SHELBIE SMITH, Warden,
Dayton Correctional Institution,

:
Respondent.
REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Magistrate Judge for a recommendation on the merits.
Relevant filings are the Petition (ECF No. 1), the State Court Record (ECF No. 4, as expanded at
ECF Nos. 15 and 18), the Respondent’s Amended Return of Writ (ECF No. 19), and Petitioner’s
Amended Traverse (ECF No. 16).

Litigation History

On June 18, 2017, the Logan County, Ohio, grand jury indicted Petitioner in connection
with the November 24, 2016, shooting death of Jeffrey Brentlinger in his home. Lewis was charged
with one count each of complicity to commit aggravated burglary in violation of Ohio Revised Code
§§ 2911.11(A)(1) and 2923.03; aggravated robbery in violation of Ohio Revised Code §§
2911.01(A)(1) and 2923.03; and murder in violation of Ohio Revised Code §§ 2903.02 and 2923.03
(Ohio Revised Code § 2923.03 is the complicity statute.) Each count carried a firearm specification
(Indictment, State Court Record, ECF No. 4, Ex. 1).
With the assistance of counsel, Lewis reached a plea agreement with the State under which
she would plead guilty to complicity to murder. The terms of the agreement unique to Lewis are
handwritten onto a six-page form presumably prepared and in general use by the Logan County
Prosecutor.1 Id. at Ex. 6, PageID 38-43. After conducting the required plea colloquy, the trial

court judge accepted the guilty plea, found Lewis guilty as charged of complicity to commit
murder, and dismissed the remaining charges and the firearm specification (Judgment Entry, State
Court Record, ECF No. 4, Ex. 17). After receiving a presentence investigation report, the trial
court sentenced Lewis to the mandatory life sentence applicable to her offense with parole
eligibility after fifteen years. Id. at Ex. 8.
Lewis appealed, but the conviction was affirmed. State v. Lewis, 2018-Ohio-1911 (Ohio
App. 3d Dist. May 14, 2018). Lewis did not appeal to the Supreme Court of Ohio. On December
3, 2018, represented by her appellate counsel, Lewis filed a petition for post-conviction relief under
Ohio Revised Code § 2953.21 (State Court Record, ECF No. 4, Ex. 18). The trial court denied

relief. Id. at Ex. 23.
With the assistance of new counsel who continue to represent her in this proceeding, Lewis
again appealed, but the trial court was affirmed. State v. Lewis, 2019-Ohio-3031 (Ohio App. 3d
Dist. Jul. 29, 2019), appellate jurisdiction declined, 2019-Ohio-5289 (2019)). Almost a year later,
but within the statute of limitations, Lewis filed her Petition for Writ of Habeas Corpus in this
Court, raising the following single ground for relief:
Ground One: When an attorney acknowledges giving
fundementally [sic] incorrect legal advice that forms the basis of a

1 The Magistrate Judge infers its general use from the fact that it contains provisions for use in sex offender cases, not
applicable in this case.
client’s decision to plead guilty to murder, the ineffective assistance
of counsel has been established under the Sixth and Fourteenth
Amendments to the United States Constitution.

(Petition, ECF No. 1, PageID 11).

Facts of the Crime

To support a finding of guilt, the prosecutor stated the following as the relevant underlying
facts:
On November 24, 2016, MarQuevous Watkins, Zachariah
Huddleston, Alexus Walton, Tatiana Freeman, and the defendant,
Jasmine Lewis were in a conspiracy to rob Jeffrey Brentlinger at his
house located at 6498 Township Road 127, Zanesfield, Logan
County, Ohio.

Specifically, the defendant had met the victim Brentlinger on a
website called MeetMe, and set up a sexual encounter to include a
possible threesome that included codefendant Tatiana Freeman;
however, the plan was to rob Jeff Brentlinger instead of engaging in
the sexual activity.

To facilitate the foregoing, the five codefendants drove from Lima
to the victim’s home with codefendant Alexus Walton being the
driver of her maroon 2006 Chevy Malibu. Prior to departing Lima,
they stopped at a local Walmart where the defendant and
codefendants Alexus Walton and Tatiana Freeman entered and
shoplifted a ski mask and a roll of duct tape that were to be used in
the robbery of Brentlinger.

Upon arriving at Brentlinger’s residence, Jasmine Lewis and
Tatiana Freeman were dropped off. They entered the residence and
ended up going into the victim’s bedroom. Once there, they engaged
in the pretense of preparing to engage in the threesome, but in reality
were merely stalling and waiting for codefendant’s Watkins and
Huddleston to enter and rob Brentlinger.

After a period of time, Watkins and Huddleston did just that, barging
into the residence, each possessing a drawn handgun and confront
Brentlinger and demanding his money. Unfortunately, during this
robbery, Brentlinger was shot by codefendant Huddleston in the
thigh and was later fatally shot by codefendant Watkins in the chest.
It was after this fatal shot that the four codefendants fled the
residence into the waiting car driven by defendant Walton and fled
the scene.

(Transcript of Plea Hearing, State Court Record, ECF No. 4-2, PageID 279-280). Lewis admitted
to the truth of those facts. Id. at PageID 281. She does not now dispute their accuracy.

Analysis

In her sole Ground for Relief, Petitioner asserts she received ineffective assistance of trial
counsel when her trial attorney, Joseph Benavidez, advised her that she could receive a sentence
as low as life imprisonment with parole eligibility after seven years.
On direct appeal, Lewis raised as her sole assignment of error that she had received
ineffective assistance of trial counsel. The Assignment was quite general: “[Lewis's] trial counsel
rendered ineffective assistance of counsel, in violation of her constitutional rights under the Sixth
and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16,
of the Ohio Constitution.” Lewis, 2018-Ohio-1911 ¶ 4. The Third District understood her
particular claim to be “that her counsel was ineffective for not informing her that she could not get
a sentence lower than life in prison with parole eligibility after fifteen years.” Id. at ¶ 6. In support,
the appellate court says she cited to an argument made by her attorney at sentencing for the
possibility of parole before fifteen years. Id.
In her brief on appeal, represented by the same counsel who represent her here, Lewis
alleged “the record is clear that Ms. Lewis' counsel promised her that she could receive a sentence
of less than 15 years to life.” (Return of Writ, ECF No. 18, PageID 427). However, instead of
quoting any portion of the record which is said to show such a clear promise, counsel quoted the
defense attorney’s argument at sentencing for some sentence less than fifteen to life “We would
ask for a lesser amount if the Court can see fit so that she may possibly entertain the
possibility of parole at an earlier date.” Id. (Emphasis in original).

In addition to deficient performance, Lewis had to prove prejudice. Strickland v.
Washington, 466 U.S. 668 (1984). Attempting to do so, her counsel alleged “[h]ad Ms. Lewis
known that the only sentence she could have received was 15 years to life, she would not have
pled guilty.” Id. at PageID 429. Again there is no record reference to any supporting facts.
The Third District elided the absence of record proof of either a promise by Benavidez or
reliance by Lewis. Assuming that any advice that a sentence less than fifteen to life would have
been deficient performance, it concluded there was no proof of prejudice:
Lewis alleges that counsel's representation that the sentence could
be lower was what caused her to agree to plead guilty. There is no
question that anyone convicted of violating R.C. 2903.02 "shall be
imprisoned for an indefinite term of fifteen years to life." R.C.
2929.02(B)(1). Thus, counsel's alleged statement that Lewis should
be eligible for parole in fewer than fifteen years would be contrary
to statute. However, this does not mean that counsel's alleged error
was prejudicial.

Lewis, 2018-Ohio-1911, ¶ 6. The court then quotes from the trial judge’s statement in the plea
colloquy advising Lewis that a fifteen to life sentence was mandatory and that that was the sentence
he would impose.
Although counsel may have made an improper request at
sentencing, Lewis had already been informed by the trial court that
the sentence was going to be a life term with parole eligibility after
fifteen years. Additionally, the written change of plea agreement,
which was signed by Jasmine in open court, stated that no attorney
had promised or suggested that she would receive a lighter sentence
because of the plea. Doc. 55 at 2-3. This all occurred before Lewis
entered her plea of guilty. Thus, the record does not support a
conclusion that a misstatement of counsel at sentencing would have
affected the outcome of the case. Lewis was fully informed by the
trial court of what the mandatory sentence was. She was also told by
the trial court that it would be imposing that sentence. After the trial
court informed her of the sentence, she agreed to change her plea.
No prejudice resulted from counsel's statement. Thus, this court
does not find that counsel was ineffective.

Id. at ¶ 7.

Because there was no record evidence sufficient to prove ineffective assistance of trial
counsel, Lewis reiterated that claim in her Petition for Post-Conviction Relief. Then she added
her argument based on evidence dehors the record:
Moreover, Ms. Lewis' counsel promised her that she could receive
a sentence of less than 15 years to life. (Exhibit A, Affidavit of
Jasmine D. Lewis; Exhibit B, Affidavit of Nikitta Peterson; Exhibit
C, Affidavit of Joseph A. Benavidez)

24. The Court of Appeals, in denying Ms. Lewis's claim of
ineffective counsel, found that "the record does not support a
conclusion that a misstatement of counsel at sentencing would have
affected the outcome of the case." State v. Lewis, 3rd Dist. Logan
No. 8-17-43, 2018-Ohio-l 911, ¶ 7. Such evidence now exists de
hors [sic] the record.

25. As indicated in the attached affidavits from Ms. Lewis, her
mother, Nikitta Peterson, and trial counsel, Joseph A.
Benevidez,[sic] (Exhibit A, Affidavit of Jasmine D. Lewis; Exhibit
B, Affidavit of Nikitta Peterson; Exhibit C, Affidavit of Joseph A.
Benavidez), there is no question that Ms. Lewis would not have pled
guilty, but for trial counsel's misinterpretation of the law. Trial
counsel, to his credit, admits that he told Ms. Lewis she would be
eligible for parole after serving half of a 15-year sentence. Ms.
Lewis's mother strongly urged her to plead guilty based on this
misunderstanding, and Ms. Lewis simply would not have done so
had she not been told she would get out of prison after 7 years if she
exhibited good behavior.

(Petition, State Court Record, ECF No. 4, PageID 74). The trial court dismissed the Petition and
Lewis appealed, asserting the trial court had erred in applying res judicata to bar her claim because
it was based on evidence dehors the record. State v. Lewis, 2019-Ohio-3031, ¶ 10. In deciding
that question, the Third District applied State v. Calhoun, 86 Ohio St. 3d 279 (1999) which
establishes criteria by which a trial court may assess the credibility of post-conviction affidavits
without holding an evidentiary hearing. The appellate court found that Lewis had raised on direct
appeal “the exact same arguments and issues that now she raises in her petition.” Id. at ¶ 20.

Examining its prior decision on direct appeal, it concluded Lewis was able to and did raise her
ineffective assistance of trial counsel claim on the basis of the appellate record and did not need
additional evidence dehors the record for the deficient performance prong of Strickland. Id. at ¶
22.
The Third District took note of the Benavidez Affidavit, but concluded that it added nothing
on the prejudice prong of Strickland. Id. at ¶ 24. Applying the credibility factors from Calhoun,
the court found the post-conviction affidavits from Lewis and her mother did not outweigh other
evidence of record, particularly Lewis’ statements during the plea colloquy and recorded in the
presentence investigation report:

[*P25] While the affidavits from Lewis and Peterson allege that
Lewis would not have pled guilty if her attorney provided her with
correct advice as to her parole eligibility, the statements in their
affidavits do not change our prior analysis for several reasons. First,
under the Calhoun factors, these affidavits do not provide credible
statements that establish prejudice. The judge who presided over
Lewis's change of plea hearing and sentencing was the judge who
ruled on Lewis's petition and was, therefore, aware of the
circumstances of this case. Calhoun, supra, at 285. In his ruling on
the petition, the judge noted that he had "in three separate ways
advised that the sentence was fifteen years to life and it was a
mandatory sentence that * * * [had to be] imposed." Doc. 105. Thus,
the judge did not find that the affidavits indicated that Lewis had
been prejudiced by her defense counsel's deficient performance.
Doc. 105.

[*P26] Further, Peterson is Lewis's mother and is, therefore, a close
relative of the petitioner. Doc. 95. Calhoun, supra, at 285. See State
v. Knowles, 8th Dist. Cuyahoga No. 95239, 2011-Ohio-1685, ¶ 23
(holding that the affidavit of the petitioner's mother was self-serving
and lacked credibility). Similarly, Lewis, as an affiant, is most
certainly interested in the outcome of this petition. State v. Combs,
100 Ohio App.3d 90, 98, 652 N.E.2d 205 (1st Dist. 1994) (holding
that "evidence out of the record in the form of petitioner's own self-
serving affidavit alleging a constitutional deprivation will not
compel a hearing."). These two affidavits also contain similar
language. Calhoun, supra, at 285. Lewis's affidavit also contradicts
her statements before the trial court in the Crim.R. 11 colloquy.
Thus, her statements, as an affiant, contradict the evidence in the
record. Id.

[*P27] Second, the trial court correctly instructed her as to the
terms of her parole eligibility before she pled guilty in the Crim.R.
11 colloquy. Lewis, supra, at ¶ 7. In response, Lewis affirmed, on
the record, that she understood that she would not be eligible for
parole until she had served fifteen years of her prison term. Change
of Plea Hearing Tr. 9. Thus, Lewis's supporting affidavit has "the
effect of recanting prior statements [that she] made on the record"
before she entered her plea. Calhoun, supra, at 289. See Taylor v.
Ross, 150 Ohio St. 448, 83 N.E.2d 222 (1948), third paragraph of
the syllabus (holding that "[r]ecanting testimony ordinarily is
unreliable and should be subjected to the closest scrutiny."). This
Court has previously held that "a 'record reflecting compliance with
Crim.R. 11 has greater probative value' than a petitioner's self-
serving affidavit." Brehm, supra, 1997 Ohio App. LEXIS 3125,
[WL] at *1, quoting Moore, supra, at 753, citing Kapper, supra, at
38. In order to accept Lewis's affidavit, we must "believe that [her]
statements at [the] plea hearing, set forth in their entirety in the
record, were false." Brehm, 1997 Ohio App. LEXIS 3125, [WL] at
*1.

[*P28] Third, beyond the Crim.R. 11 colloquy, there is additional
evidence in the record that does not support the affidavits of
Peterson and Lewis. The PSI clearly indicates that Lewis was aware
that she would have to serve at least fifteen years in prison. PSI.
During an interview, she told the investigator that she knew that her
sentence was going to be fifteen years to life in prison and that she
believed she would be released on parole after she had served fifteen
years. PSI. While she said that she did not want this sentence, she
still indicated that she understood her sentence as communicated by
the trial court at her change of plea hearing. PSI.

[*P29] In the end, Lewis still cannot substantiate her claim that she
would not have pled guilty if her attorney had correctly informed
her of her parole eligibility because she correctly related the terms
of her sentence to the PSI investigator. PSI. See State v. Davis, 11th
Dist. Portage No. 2003-P-0077, 2004-Ohio-6684, ¶ 33 (holding that
an affiant's claims were not credible where they contradicted
statements made for the presentence investigation.). While her
attorney's statements at the sentencing hearing indicate that he left
the change of plea hearing with an incorrect understanding of the
terms of his client's sentence, Lewis's statements to the PSI
investigator indicate that she left the change of plea hearing with a
correct understanding of the terms of her sentence. Since her
affidavit contradicts her own statements as recorded in the PSI, her
affidavit is undermined—not corroborated—by the evidence in the
original record. Calhoun, supra, at 288.

[*P30] Similarly, even assuming that Peterson's affidavit
accurately states that she had pressured Lewis to plead guilty on the
basis of a misunderstanding of the law, Lewis's understanding of her
sentence is the determinative issue in this case. The record indicates
that Lewis was aware of the terms of her sentence regardless of
whether her mother was operating under a misapprehension of the
law. While Peterson may have pressured her daughter to plead
guilty, Lewis still stated during her change of plea hearing that her
decision was voluntary; that no one threatened her to enter this plea;
and that no one promised her anything to enter this plea. Change of
Plea Tr. 5, 7. She also signed a change of plea petition that stated
she was pleading guilty voluntarily; that no one had promised her a
more lenient sentence for so pleading; and that she was not
threatened or coerced in this process. Doc. 55.

Lewis, 2019-Ohio-3031.

Exhaustion of State Court Remedies

Respondent, noting that Lewis never sought Supreme Court of Ohio review on direct
appeal, argues that the remedy of delayed direct appeal remains available to her (Return of Writ,
ECF No. 19, PageID 476-77). Nevertheless, Respondent urges the Court to dismiss the Petition
for lack of exhaustion, rather than staying it until the Supreme Court of Ohio could rule on such a
motion. Id.
Petitioner responds that her failure to take an appeal to the Supreme Court of Ohio on direct
review did not constitute a failure to exhaust because she filed a petition for post-conviction relief
and pursued that claim through both levels of appeal (Traverse, ECF No. 16, PageID 397).
Petitioner cites no authority for the proposition that filing a petition for post-conviction
relief without taking a direct appeal or a delayed direct appeal satisfies the exhaustion requirement.

At the same time Respondent does not mention that a dismissal without prejudice at this point in
time would bar Lewis from returning to federal court because the statute of limitations has run
while the instant Petition has been pending. Duncan v. Walker, 533 U.S. 167 (2001).
Failure to exhaust does not deprive this Court of jurisdiction and will be excused when the
federal constitutional claim is plainly meritless and it would be a waste of time and judicial
resources to require exhaustion. Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987). It is
extremely unlikely, given how seldom the Supreme Court of Ohio exercises appellate jurisdiction
over felony appeals, even when timely invoked, that it would grant a delayed appeal in this case.
The Court should excuse the lack of exhaustion here and decide this case on the merits.

Procedural Default

Alternatively, Respondent asserts Lewis’s Petition is barred by her procedural default in
the state courts, specifically that her claim in post-conviction was barred by Ohio’s criminal res
judicata doctrine enunciated in State v. Perry, 10 Ohio St. 2d 175 (1967)(Return of Writ, ECF No.
19, PageID 483).
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate 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 Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). 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 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).
The Sixth Circuit Court of Appeals 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 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th
Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261
F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).

First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).

Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Petitioner concedes the existence of Ohio’s criminal res judicata doctrine (Traverse, ECF
No. 16, PageID 401-02). Without doubt, that doctrine is firmly established; Perry dates from
1962. It is an adequate and independent state ground of decision. Durr v. Mitchell, 487 F.3d 423,
432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d
417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d
155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913
(S.D. Ohio 2001).
Petitioner also concedes that the res judicata doctrine was enforced against her (Traverse,
ECF No. 16, PageID 402). Nevertheless, she argues her claim is not procedurally defaulted

because “the Third District erred in finding Ms. Lewis’ claim barred by res judicata, and her claim
is not procedurally defaulted.” Id.
The question of whether the Ohio doctrine of res judicata applies here is a question of state
law on which this federal habeas court is bound by the determination of the state courts. Bradshaw
v. Richey, 546 U.S. 74 (2005). The argument that res judicata did not apply was presented to the
Third District in the post-conviction appeal and they thoroughly canvassed the relevant factors
from Calhoun before deciding that the evidence dehors the record presented in post-conviction
(i.e. the Affidavits of Lewis, Peterson, and Benavidez) were not sufficient evidence to overcome
the res judicata bar. Obviously, not just any additional evidence could overcome that bar, because
then the res judicata doctrine would be gutted. The requirement that affidavits satisfy the Calhoun

standard is therefore an adequate state rule because it promoted the interest in finality of criminal
judgments which is recognized as an appropriate state interest.
However, the Third District’s decision that res judicata prevented presentation of Lewis’
ineffective assistance of trial counsel claim in post-conviction does not prevent this Court from
reaching the merits of that claim. The Sixth Circuit has held:
There are two variants of res judicata under Ohio law for collateral
attacks on convictions. Lundgren v. Mitchell, 440 F.3d 754, 765 n.2
(6th Cir. 2006). The first variant is when a petitioner could have, but
failed, to bring a claim on direct review. Id. The second variant
occurs in state court when a claim was actually brought and litigated
on direct appeal. Id. This second variant of res judicata cannot form
the basis of federal procedural default, however, because the
petitioner did not fail to comply with a state procedural rule-namely
that claims must be raised on direct appeal if possible. See id.

Durr v. Mitchell, 487 F.3d 423 (6th Cir. 2007). Durr also holds that the federal courts will review
habeas claims on the merits when Ohio courts hold on collateral review that claims are barred by
res judicata because decided on direct appeal, in that the petitioner has not procedurally defaulted.
When a state court declines to consider the merits of a claim in post-conviction on the grounds that
it has already done so, e.g., by holding the claim barred by res judicata because decided on direct
appeal, there is no procedural bar to habeas review. Post v. Bradshaw, 621 F.3d 406 (6th Cir. 2010),
citing Cone v. Bell, 556 U.S. 449 (2009).
Petitioner has not demonstrated that the Third District’s decision is an incorrect application
of res judicata doctrine, but under the “second variant” described in Durr, the merits of Lewis’s
claim can be decided by this Court.

Merits Consideration

The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):
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
Knowles v. Mirzayance, 556 U.S.111 (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, 184
(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing
Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland,
466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.”
Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S.
86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
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). 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.
The Third District Court of Appeals decided the merits of Lewis’s ineffective assistance of
trial counsel claim twice, once on direct appeal and once, in the alternative, on post-conviction
appeal. In both instances it accepted Lewis’s position on deficient performance, to wit, that
Attorney Benavidez’s request at sentencing for less than fifteen to life showed that he believed,
incorrectly, that such a sentence was possible. Respondent does not contest that finding on the
deficiency prong.
Instead, the parties’ argument focuses on the second prong of Strickland, the prejudice
prong. Respondent argues the state court’s factual decision that Lewis suffered no prejudice is
entitled to deference (Return, ECF No. 19, PageID 488-92).
Petitioner accuses the trial court of applying the wrong standard in determining prejudice,
deciding the Lewis would have been convicted at trial had she not pleaded guilty (Traverse, ECF
No. 16, PageID 403-04, citing State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992) (citing

Hill v. Lockhart, 474 U.S. 52, 59 (1985) and Strickland, 466 U.S. at 687)). However, she then
concedes that the Third District “arguably applied the proper standard.” Id. at PageID 403, citing
Lewis, 2019-Ohio-3031, ¶ 18. The Magistrate Judge agrees that the Third District did apply the
correct standard, and it is the final state court decision which is entitled to deference under 28
U.S.C. § 2254(d)(1).
Lewis argues the Third District misapplied the correct standard because it “inexplicably
determined Ms. Lewis did not establish she would not have pled guilty but for the erroneous
advice, Lewis, 2019-Ohio-3031, ¶ 23–30 (ECF No. 4, State Court Record, Exhibit 28, PageID
#194-98), despite clear evidence to the contrary.” However, the “clear evidence to the contrary”
to which Lewis adverts is all contained in the affidavits submitted in post-conviction.

Consideration of those affidavits was barred procedurally by res judicata under Perry, so even by
Lewis’s account, prejudice is only “clear” in light of evidence barred from consideration.
But even if the affidavits were not barred by res judicata, they do not present “clear”
evidence of prejudice because they do not show Lewis did not understand her sentence would be
fifteen to life. In summary, she pleaded guilty in a proceeding in which the consequences of the
plea were thoroughly explained to her by the judge well before the sentencing hearing in which
Attorney Benavidez misstated the law and indeed before she stated to the presentence investigator
her understanding that the sentence would be fifteen to life. A misunderstanding arising from a
misstatement of the law at sentencing cannot have made her prior guilty plea unknowing and
involuntary.
A court cannot rely on the petitioner’s alleged “subjective impression” “rather than the
bargain actually outlined in the record,” for to do so would render the plea colloquy process
meaningless. Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999). If the plea colloquy process

were viewed in this light, any defendant who alleged that he believed the plea bargain was different
from that outlined in the record would have the option of withdrawing his plea despite his own
statements during the plea colloquy indicating the opposite. Id.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends 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.

November 12, 2020.
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. 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376697. Public record. Not legal advice.