Fannon v. Warden, London Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

TERRENCE W. FANNON,

Petitioner, : Case No. 1:20-cv-051

- vs - District Judge Matthew W. McFarland

Magistrate Judge Michael R. Merz

WARDEN, London

Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Terrence Fannon under 28 U.S.C. §

2254, is before the Court for decision on the merits. The Magistrate Judge reference in the case

has recently been transferred to the undersigned to help balance the Magistrate Judge workload in

the Southern District.

The relevant pleadings are the Petition (ECF No. 3), the State Court Record (ECF Nos. 5,

7) and the Amended Return of Writ (ECF No. 8). When ordering the Respondent to answer,

Magistrate Judge Bowman set a deadline for Petitioner to file a reply or traverse of twenty-one

days after the Return was filed (Order, ECF No. 2, PageID 28). Because the Amended Return was

filed May 14, 2020, Petitioner’s deadline for a reply was June 8, 2020.1 However, Petitioner has

neither filed a reply nor sought an extension of time to do so.

1 Petitioner was entitled to an additional three days under Fed.R.Civ.P. 6 because the Return was served on him by

mail.

Litigation History

On December 12, 2014, the Hamilton County grand jury indicted Fannon on four counts of

rape in violation of Ohio Rev. Code § 2907.02(A)(1)(b) (counts 1-4), and two counts of gross sexual

imposition (GSI) in violation of Ohio Rev. Code § 2907.05(A)(4) (counts 5-6). (Indictment, State Court

Record, ECF No. 5, Ex. 1).

On October 10, 2017, pursuant to a plea agreement, Fannon pleaded guilty to one count of first

degree felony rape in violation of Ohio Rev. Code § 2907.02(A)(2) (count 1, as amended) and one

count of third degree felony gross sexual imposition (count 5) with the remaining counts dismissed.

After reviewing a presentence investigation report, the trial judge sentenced Fannon to an aggregate

prison term of thirteen years.

On May 9, 2018, Fannon sought leave to file a delayed direct appeal (Motion, State Court

Record, ECF No. 5, Ex. 9). The motion was granted, and counsel appointed. However, the Ohio First

District Court of Appeals affirmed the conviction and sentence. State v. Fannon, 2019-Ohio-1752

(Ohio App. 1st Dist., May 8, 2019), appellate review declined, 156 Ohio St. 3d 1478 (2019).

On October 23, 2019, the trial court amended its sentencing entry nunc pro tunc to state that

“defendant was found to be a Tier III sex offender” and “defendant is classified a Tier III sex

offender/child victim offender.” (Amended Sentencing Entry, State Court Record, ECF No. 5, Ex. 20).

On January 6, 2020, Fannon deposited his habeas corpus Petition in the prison mail system,

thereby effectively filing it with this Court. He pleads two grounds for relief:

Ground One: Petitioner was denied Constitution’s Fifth

Amendment right to adequate notice of his classification and

registration requirements.

Supporting Facts: The trial court judge when accepting the plea of

guilty failed to inform petitioner of the consequences of a Tier III

classification and the plea must be vacated.

Ground Two: The petitioner was denied Fifth Amendment

Constitution right to notification of nature of sentence.

Supporting Facts: During the plea colloquy, the trial court failed to

comply with the notice requirements under Crim.R. 11 and inform

Mr. Fannon of the mandatory nature of his sentence.

(Petition, ECF No. 3, PageID 34-36).

Analysis

Ground One: Plea Invalid for Failure to Notify of Sex Offender Classification and

Registration Requirements

Lack of Exhaustion

In the Return of Writ, Respondent asserts Petitioner has not exhausted his available state

court remedies for his First Ground for Relief because he did not appeal from the Nunc Pro Tunc

Amended Judgment Entry that imposed the Tier III sex offender classification (Amended Return,

ECF No. 8, PageID 260). Although the time to appeal of right has expired, the Warden asserts

Fannon still has available the possible remedy of a delayed direct appeal. Although the Warden

thinks it unlikely the First District would grant a delayed appeal, he asserts this Court should allow

the state courts to decide that question of state law, rather than decide that the supposed remedy

was futile. Id. at PageID 189-90.

By the time of this Report, more than thirteen months have expired since the Nunc Pro

Tunc Entry was filed. Petitioner has provided no evidence of doing anything in the state courts in

response to the Warden’s position on delayed direct appeal despite being twice reminded of the

possible remedy. Indeed, Petitioner has not responded at all to the Warden’s defense of lack of

exhaustion.

The exhaustion doctrine is not jurisdictional and is thus waivable by the State, Ex parte

Royall, 117 U.S. 241 (1886); Granberry v. Greer, 481 U.S. 129 (1987). 28 U.S.C. § 2254(b)(3) as

added by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214), provides, however, "A State shall not be deemed to have waived the exhaustion

requirement or be estopped from reliance upon the requirement unless the State, through counsel,

expressly waives the requirement." The warden may waive exhaustion by counsel’s conduct

which “manifested a clear and unambiguous intent to waive the requirement.” D’Ambrosio v.

Bagley, 527 F.3d 489, 496 (6th Cir. 2008). By insisting on the possibility of delayed direct appeal,

the Respondent has certainly not expressly waived the exhaustion requirement.

In support of his position that this Court should allow the First District Court of Appeals

to decide the delayed appeal issue rather than finding the remedy futile, the Warden cites

Cunningham v. Hudson, 756 F.3rd 477, 484-485 (6th Cir. 2014); Wagner v. Smith, 581 F.3d 410,

419 (6th Cir. 2009); Godbolt v. Russell, 82 Fed. Appx. 447, 450 (6th Cir. 2003); Mack v. Bradshaw,

No. 1:04 CV 829, 2011 WL 5878395, at *25-26 (N.D. Ohio Nov. 23, 2011); and Johnson v.

Warden, Leb. Corr. Inst., No. 1:09-cv-336, 2010 U.S. Dist. LEXIS 72968, at *31 (S.D. Ohio June

23, 2010) (citing Sampson v. Love, 782 F.2d 53, 58 (6th Cir. 1986), adopted, 2010 U.S. Dist.

LEXIS 72976 (S.D. Ohio July 20, 2010).

None of the three cited circuit court decisions adopts a rule that a district court must allow

a habeas petitioner to attempt a particular state court remedy that could possibly be accepted by

the state courts. In each case the Sixth Circuit considered state court precedent on the particular

remedy in weighing whether to insist on exhaustion.

The district court in Cunningham had denied habeas relief, but the Sixth Circuit concluded

Cunningham had not exhausted his juror bias claim “because Cunningham may file a motion for

a new trial or a second post-conviction petition.” 756 F.3d at 482. The Cunningham Court did

not adopt a categorical rule that the state courts must be given an opportunity to decide if a remedy

is available. Rather it analyzed the guidance provided in Ohio law on that question and found it

to be equivocal. Under those circumstances, it held the Ohio courts should decide the availability

of the suggested remedies. Id. at 484, citing Wagner, 581 F.3d at 419, and Godbolt, 82 F. App'x at

450.

Wagner also did not adopt a categorical rule, but concluded the Wagner’s unexhausted

claim could be presented to the Michigan courts by a post-conviction post-direct appeal motion

for relief from the judgment of conviction. 581 F.3d at 419. If the claim was one that could have

been presented on direct appeal but was not, a movant was required to show good cause for failing

to do so and resulting actual prejudice, “[b]ut there is no reason to believe that Petitioner would be

unable to make such a showing, and, in any event, such a determination is for the state court to

make.” Id.

The Godbolt decision states something closer to a categorical rule. The district court

dismissed Godbolt’s petition without prejudice because it included an unexhausted claim of

ineffective assistance of trial counsel. Godbolt claimed it would be too late for him to file a petition

for post-conviction relief under Ohio Revised Code § 2053.21, but the Sixth Circuit affirmed the

dismissal holding

No matter how unlikely it seems that Godbolt's petition will fall

within the narrow exception contained in the statute, it is for the state

courts to interpret and enforce their laws on such issues. See Israfil

v. Russell, 276 F.3d 768, 771-72, 18 Fed. Appx. 278 (6th Cir. 2001)

(holding that it was proper for the district court to defer to the state

court's findings as to whether a petitioner's post-conviction motion

had been submitted according to Ohio's timeliness requirements).

82 Fed. Appx at 450. It was handed down before the Supreme Court recognized our authority to

stay habeas cases pending exhaustion in Rhines v. Weber, 544 U.S. 269 (2005). The effect of the

decision was to permanently deny Godbolt federal merits review of his ineffective assistance of

trial counsel claim because the habeas statute of limitations ran while his case was pending.

Godbolt is unpublished and therefore not binding precedent.

Nothing in these three circuit court decisions removes district court authority to decide

whether sending Fannon back to the First District Court of Appeals to file a motion for delayed

direct appeal would be futile.

Delayed direct appeal is governed by Ohio R. App. P. 5(A) which requires the appellant to

“set forth the reasons for the failure of the appellant to perfect an appeal as of right.” What reasons

are sufficient? The rule itself gives no guidance. Granting or denying a motion for delayed appeal

is committed to the “sound discretion” of the court of appeals. Deitz v. Money, 391 F.3d 804 (6th

Cir. 2004); State v. Fisher, 35 Ohio St. 3d 22 (1988); City of Toledo v. Reasonover, 115 Ohio App.

434 (6th Dist. 1962). However, the case law gives little guidance on what would constitute an

abuse of discretion.

In this case the Magistrate Judge concludes the possible remedy of delayed direct appeal

would be futile. One of the factors the First District Court of Appeals would look at would be

Fannon’s total lack of diligence in pursuing this claim. He had raised the issue in a prior appeal2

and obtained appellate recognition that the judgment entry was in error, but when the error was

corrected, he failed to persist in state court in his claim that the earlier error had made his plea

involuntary. Moreover, he has twice been reminded by Respondent’s Return and Amended Return

of the possible availability of delayed direct appeal to raise the claim anew, yet he has not acted

2 That prior appeal occurred on his motion for delayed appeal, so Fannon knew of that possible remedy and had

successfully invoked it before.

despite the expiration of over a year since the Nunc Pro Tunc Judgment was entered. Under those

circumstances, it is so unlikely the First District would grant a delayed appeal that the Magistrate

Judge concludes it would be futile.

Merits

In his First Ground for Relief, Petitioner asserts his guilty plea must be vacated because he

was not advised of the consequences of being classified as a Tier III sex offender, particularly the

registration requirements.

A plea of guilty or no contest is valid if, but only if, it is entered voluntarily and

intelligently, as determined by the totality of the circumstances. Brady v. United States, 397 U.S.

742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); Abdus-Samad v. Bell, 420 F.3d

614, 631 (6th Cir. 2005); King v. Dutton, 17 F.3d 151 (6th Cir. 1994); Riggins v. McMackin, 935

F.2d 790, 795 (6th Cir. 1991); Berry v. Mintzes, 726 F.2d 1142, 1146 (6th Cir. 1984). A defendant

must be fully aware of the direct consequences of his plea. Brady v. United States, 397 U.S. 742,

755 (1970).

However, the trial court has no constitutional duty to advise a defendant of the collateral

consequences of a conviction. King v. Dutton, 17 F.3d 151, 153-54 (6th Cir. 1994); Brown v.

Perini, 718 F.2d 784 (6th Cir. 1983). A collateral consequence is one that is “beyond the control

and responsibility of the trial court.” United States v. Rodriquez-Gonzales, 543 Fed. Appx. 531,

533 (6th Cir. 2013). Examples would include that a convicted felon loses his Second Amendment

right to possess a firearm and can be severely punished for doing so. See 18 U.S.C. § 922(g)(1).

Sex offender registration is merely a collateral consequence of a guilty plea because whether a

defendant "must actually register is controlled by state and federal law." United States v. Cottle,

355 F. Appx. 18, 20 (6th Cir. 2009); Blumenthal v. Curley, 2013 U.S. App. LEXIS 26018 (6th Cir.

2013).

Fannon’s guilty plea was not rendered invalid by failure to notify him of the collateral

consequences of being convicted of a sexual offense against a child. His First Ground for Relief

is therefore without merit.

Ground Two: Plea Invalid for Failure to Notify of Mandatory Nature of Sentence

In his Second Ground for Relief, Petitioner claims his guilty plea is invalid because the

trial judge did not notify him of the mandatory nature of his sentence. Fannon raised this claim as

his second assignment of error on direct appeal and the First District decided it as follows:

[*P6] Mr. Fannon next argues that he was not properly advised of

the mandatory nature of his sentence. A trial court must substantially

comply with nonconstitutional notification requirements under

Crim.R. 11. "Literal compliance with Crim. R. 11 is certainly the

preferred practice, but the fact that the trial judge did not do so does

not require vacation of the defendant's guilty plea if the reviewing

court determines that there was substantial compliance." (Citation

omitted.) State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474

(1990). "Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the

implications of his plea and the rights he is waiving." (Citations

omitted.) Id. Generally, vacating a plea on this basis requires a

showing of prejudice—that "the plea would not have otherwise been

made." State v. Maggard, 1st Dist. Hamilton No. C-100788, 2011-

Ohio-4233, ¶ 6, citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d

1163 (1977). Under Crim.R. 11(C)(2)(a), "[i]n felony cases the court

* * * shall not accept a plea of guilty * * * without first addressing

the defendant personally and * * * [d]etermining that the defendant

is making the plea voluntarily, with understanding of the nature of

the changes and of the maximum penalty involved."

[*P7] Mr. Fannon urges adherence to Maggard, in which we

reversed nocontest rape pleas where the pleas were not knowingly

entered. In Maggard, however, the trial court affirmatively

misrepresented to the defendant that his sentence would not include

mandatory prison time, a misrepresentation that defendant's trial

counsel reaffirmed. Id. at ¶ 17. Under those circumstances, we

vacated the subject pleas.

[*P8] The state, for its part, points to State v. Lunsford, 1st Dist.

Hamilton No. C-850057, 1985 Ohio App. LEXIS 9697, 1985 WL

4499 (Dec. 18, 1985), in which this court found that a colloquy

including a discussion of the maximum sentence and specific

reference to the entry withdrawing plea substantially complied with

Crim.R. 11(C)—even though the trial court did not advise the

defendant that he was ineligible for probation. Whether we consider

an omission or misinformation, we must ensure that the defendant

understands the implications of the plea and the rights he is

relinquishing.

[*P9] The only part of the colloquy that raises concern in this case

is the trial court's mention of community control, which is not

applicable to a rape sentence. Under the totality of the

circumstances, however, inclusion of this admittedly inaccurate

point does not rise to the level of a misrepresentation that would

have affected Mr. Fannon's decision to plead. The trial court

addressed Mr. Fannon regarding the range of prison terms and fines

associated with his offenses, and it accurately informed him of the

maximum sentence that he faced. The "Entry Withdrawing Plea of

Not Guilty" indicates that a mandatory prison term is associated with

each offense, the trial court specifically directed Mr. Fannon's

attention to this document, and there is no allegation that this

document contained any misinformation. Therefore, Mr. Fannon

cannot credibly maintain that the court's stray comment about

community control led him to believe he was not going to be

incarcerated (nor does the record reflect any confusion on his part).

[*P10] In sum, it does not appear from a comprehensive reading of

the record that Mr. Fannon was unaware of or confused about the

applicability of mandatory prison time as a result of his pleas. This

case is more in line with Lunsford, and it is distinguishable from

Maggard and cases in similar vein where there was either a complete

omission in the colloquy of the maximum penalty or

misrepresentation of the mandatory nature of the defendant's

sentence. We therefore overrule Mr. Fannon's second assignment of

error.

State v. Fannon, 2019-Ohio-1752.

To the extent that Petitioner’s Second Ground for Relief complains of a failure of the trial

court to comply with Ohio R. Crim. P. 11, his claim is not cognizable in habeas corpus. Failure to

abide by state law is not itself a constitutional violation. Roberts v. City of Troy, 773 F.2d 720 (6th

Cir. 1985). Violation by a State of its own procedural rules does not necessarily constitute a

violation of due process. Bates v. Sponberg, 547 F.2d 325 (6th Cir. 1976); Ryan v. Aurora City Bd.

of Educ., 540 F.2d 222, 228 (6th Cir. 1976). “A state cannot be said to have a federal due process

obligation to follow all of its procedures; such a system would result in the constitutionalizing of

every state rule, and would not be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir.

1993), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by Thompson v.

Keohane, 516 U.S. 99 (1995).

To the extent that Ground Two raises a constitutional claim – that the plea was not

knowing, intelligent, and voluntary because Fannon did not understand the direct consequences –

the First District’s decision erects a barrier to relief.

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.

A state court determination that a guilty plea was knowing, intelligent, and voluntary,

especially when corroborated by a transcript of the plea, is a state court finding entitled to a

presumption of correctness. Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993). Here the First

District relied on the correct law and a plea transcript to make that finding and Fannon has presented

nothing to rebut it.

Because the First District’s decision on the claim made in Ground Two is a not unreasonable

application of relevant Supreme Court precedent and a reasonable determination of the facts based on

the evidence in the state court record, it is entitled to deference by this Court under 28 U.S.C. §

2254(d)(1) and (2). Ground Two should therefore be dismissed with prejudice.

Conclusion

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

Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this

conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that

the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not

be permitted to proceed in forma pauperis.

November 30, 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. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6. 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.