The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
SHAUN TRISTAN WILLIAMS,
Petitioner, : Case No. 2:20-cv-5460
- vs - District Judge Michael H. Watson
Magistrate Judge Michael R. Merz
JAY FORSHEY, Warden,
Orient Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Shaun Williams under 28 U.S.C. §
2254, is before the Court for decision on the Petition (ECF No. 1), the State Court Record (ECF
No. 9), the Return of Writ (ECF No. 10), and Petitioner’s Traverse (ECF No. 12).
The Magistrate Judge reference in this case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in the District (ECF No. 11).
Litigation History
On February 13, 2018, a Logan County Grand Jury indicted Williams on one count of engaging
in a pattern of corrupt activity along with two other persons at count seven of the indictment.
(Indictment, State Court Record, ECF No. 9, Exhibit 1). A superseding indictment was then filed
extending the time frame. Id. at Ex. 5. A second superseding indictment was filed May 8, 2018. Id. at
Ex. 7.
On September 17, 2018, the State filed a Bill of Information charging Williams with two counts
of trafficking in heroin. Id. at Ex. 10. Williams waived indictment and entered a plea of guilty. Id. at
Exs. 11, 12. He was then sentenced to an aggregate term of imprisonment of six years. Id. at Ex. 13.
Williams then appealed to the Ohio Court of Appeals for the Third District with the assistance of new
counsel. After appellate counsel filed an Anders brief and was permitted to withdraw, Williams filed a
new brief pro se. Id. at Ex. 17. The Third District affirmed the conviction and sentence. State v.
Williams, Case No. 8-19-17 (3rd Dist. Nov. 20, 2019)(copy at State Court Record, ECF No. 9, Ex.
18). The Supreme Court of Ohio declined appellate jurisdiction (Entry, State Court Record, ECF
No. 9, Ex. 21).
Williams filed his Petition for Writ of Habeas Corpus in this Court by placing it in the
prison mail system on October 13, 2020 (Petition, ECF No. 1, PageID 8). He pleads the following
grounds for relief:
Ground One: Petitioner was denied due process when the state
appellate court refused to provide counsel to brief and argue an
indigent defendant’s first appeal as of right, based on appointed
counsel’s conclusory statement of no merits, when counsel failed to
diligently and thoroughly search record for arguable merits.
Supporting Facts: In Penson v. Ohio, 488 U.S. 75 (1988), the
Supreme Court found constitutional error in providing substitute
counsel to brief and argue an indigent’s appeal where appointed
counsel has made a conclusory statement that no merits exist. The
constitutional violation is unambiguously clear herein. Petitioner,
notwithstanding his indigency, was made to take on the complexities
of the appellate process on his limited knowledge of the law and
articulation. While Petitioner was able to inartful point out some
areas of concern, he was “unable to protect the vital interests at
stake”. Penson, 488 U.S. at 85, citing Evitts v. Lucey, 469 U.S. 387,
396 (1985). This constitutes a pervasive denial of counsel, which
casts doubt on the fairness of the appellate process, and renders, the
results presumptively, prejudicial. Penson, 488 U.S. at 88, citing
Strickland v. Washington, 466 U.S. 668, 692 (1984) and Sattlewhite
[sic; should be Satterwhite] v. Texas, 486 U.S. 249, 256 (1988).
Given entitlement to a presumptively prejudicial finding, the second
constitutional concern of Penson, supra need not be addressed to
move forward to double-jeopardy claim. Strickland, 466 U.S. at 697.
Conversely, Petitioner raised double-jeopardy concerns that were
passed upon by the state courts. As such, there is no need to
condition a writ upon recommittal for examination of appointed
counsel’s performance or double-jeopardy concerns that were
allowed to be papered over in the first instance. Equally important,
the appellate court’s attention wasn’t adequately focused on
arguable claims, because it was unguided by the adversary process
itself.
Ground Two: Petitioner suffers violation of the protection from
double – jeopardy.
Supporting Facts: As discussed in the introduction, the power to
punish is thru means which the laws have provided for that purpose.
The Double Jeopardy Clause is one of those laws affecting a State’s
ability to punish. It is applicable to state court prosecutors thru the
Due Process Clause. Benton v. Maryland, 395 U.S. 784 (1969). It
precludes prosecution of a person who has been hailed into court
and convicted for a crime which has various incidents included in it.
Harris v. Oklahoma, 433 U.S. 682, 683 (1977). It is not such a
fragile guarantee that prosecutors can avoid its limitations by the
simple expedient of dividing a single crime into a series of temporal
and spatial units. Brown v. Ohio, 432 U.S. 161,169 (1977). Lastly,
it protects against attempts to secure additional punishment after a
prior conviction and sentence. Green v. U.S., 355 U.S. 184, 187-
88(1957).
Petitioner’s ignorant failure to claim the protections afforded by the
Double Jeopardy Clause does not remove the constitutional
concerns involved. Johnson v. Zerbst, 304 U.S. 458, 465 (1938)
Rather, the clause’s constitutional policy of finality worked to
Petitioner’s benefit. U.S. v. Jorn, 400 U.S. 470, 479 (1971). Where
the Clause is applicable, its sweep is absolute, because it declares a
policy that is not open to further judicial examination. Burks v. U.S.,
437 U.S. 1, 11 at fn. 6 (1978). The first touchstone for double-
jeopardy concerns came by way of the superseding indictment. As a
matter of common sense, this calls into mind a State’s lawful attempt
to secure additional punishment for the same case. However,
Petitioner could not be held to answer a superseding indictment,
because he was already convicted and sentenced. Green, supra.
Therefore, as an act of gamesmanship, the prosecution redrafted a
“bill of information” using the same case number as the superseding
indictment. In theory, this presents the illusion of unrelated events
associated with prior case and superseding case. In practice, this
commits violence to Brown and Harris because Case No. CR-18-
02-0032 was prosecuted on the theory that Petitioner made drug
transactions for the furtherance of the illicit enterprise that caused
the overdose of two customers. (sic) The sale to a CI, which made
up prior case, and texts between one of the overdose victims formed
the basis for Petitioner’s involvement. Dismissing the superseding
indictment was superficial, because the bill of information still
involved the sales that were in the furtherance of the enterprise, and
the penultimate sentence was supported by the customers’
overdoses. (sic)
Had Petitioner been provided with an attorney acting on his behalf,
said could have persuaded the obvious double-jeopardy violation.
Given the pervasive denial to counsel presents a gateway for federal
habeas review of the passed upon grievance, this Court ought to
issue an unconditional writ of habeas corpus on Petitioner’s behalf.
(Petition, ECF No. 1, PageID 4-8).
Analysis
Ground One Denial of Counsel on Appeal
After Williams pleaded guilty, his trial attorney, Jim R. Gudgel, filed a Notice of Appeal
on his behalf (State Court Record, ECF No. 9, Ex. 14). Although no entry of appointment has
been made part of the State Court Record, new counsel, Samantha L. Berkhofer, filed Williams’
Appellant Brief. Id. at Ex. 15. Attorney Berkofer’s Brief was filed pursuant to Anders v. California,
386 U.S. 738 (1967), and advised the Third District that:
Pursuant to Anders v. California (1967), 386 U.S. 738 and State v.
Duncan (1978), 57 Ohio App.2d 93, appellate counsel has
thoroughly examined the record in the case at bar and has found no
issue for which to base an appeal. Counsel has reviewed the record
of the trial court including the trial transcript and has researched
applicable case law and has not found a meritorious issue that he can
appeal.
Id. at PageID 92. The Third District notified Williams of this filing and offered him an opportunity
to file a supplement pro se. Id. at Ex. 16. His Supplemental Brief makes clear that he is writing
about Logan County Case No. CR 18 02 0032. He was at that time already incarcerated at Noble
Correctional Institution as a result of the judgment in Logan County Case No. CR 17 03 0100. (See PageID
156, 159). He alleged the crimes for which he was sentenced in the 2017 case “materialized around the
same time as the aforementioned matter at hand,” that is, the offense to which he pleaded guilty in the 2018
case. Williams argues strongly that the two cases are unrelated: “Defendant/Appellant argues firmly that
the evidence regarding Mr. Williams prior conviction from same court is irrelevant to this matter, Case
No. CR 17030100 to Case No. CR 18 020032.” Id. at PageID 162.
Despite that statement, he then claims the State violated his Double Jeopardy rights by
indicting him in the 2018 case. Id. at PageID 163, invoking the double jeopardy protection against
a second trial and punishment for the “same offense.” He then asserts in conclusory fashion that
he received ineffective assistance of trial counsel in entering his guilty plea and that the trial court
did not comply with Ohio R. Crim. P. 11 in taking that plea.
The Third District found “no merit to the "arguable" issues of error raised by counsel for
Appellant” (Judgment Entry, State Court Record, ECF No. 9, PageID 224). Having reached that
conclusion, it proceeded, under Penson v. Ohio, 488 U.S. 75 (1988), to consider the merits of the
issues raised in the Supplemental Brief and concluded:
Furthermore, the record discloses no evidence that this sentence
violated Appellant's double jeopardy rights. . . .
We find no merit to Appellant's assertions of error at the change of
plea and sentencing hearings. Moreover, based upon this Court's
full examination of the record and proceedings, we agree with
counsel's conclusion that there are no non-frivolous appealable issues
in this case. See Penson, 102 L.Ed.2d at 309. Having reviewed the
entire record and having found the appeal to be wholly frivolous under
Anders, the motion to withdraw filed by counsel is well taken.
Id. at PageID 225-26.
Williams claims that the process he received violated Penson (Traverse, ECF No. 12,
PageID 336). He asserts he was saddled with a prosecutor on appeal instead of an advocate and
was forced to plead his assignments of error on his own without the assistance of counsel. He
never asked the Third District for substitute counsel, nor has he ever claimed, by filing an
application to reopen under Ohio R. App. P. 26(B), his appointed counsel provided ineffective
assistance of appellate counsel.
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.
In Penson the Supreme Court was faced with a situation where initial counsel had filed a
completely conclusory Anders brief but had nonetheless been permitted to withdraw. When the
Ohio Second District Court of Appeals then reviewed the record on its own, it found several
arguable issues but refused to appoint new counsel. In this case the Anders brief was not
completely conclusory and the Third District examined each of Williams proposed assignments
and found none of them to be arguable.
The Third District’s decision here is a reasonable application of Penson. Williams First
Ground for Relief should therefore be denied.
Ground Two: Double Jeopardy
In his Second Ground for Relief, Williams asserts his Double Jeopardy rights have been
violated because his imprisonment in the 2018 case is for the same offense as his imprisonment in
the 2017 case.
Williams argues that one of the acts making up the alleged pattern of corrupt activity in the
Indictment in the 2018 case was the same fourth degree aggravated trafficking in drugs that formed
the basis of the 2017 conviction (Traverse, ECF No. 12, PageID 337). As proof he refers the Court
to the Bill of Particulars in the 2018 case (State Court Record, ECF No. 9, Ex. 8). That document
recites in part:
On February 1, 2017, Jessica Meeks, Todd Prall, and Shaun
Williams did sell methamphetamine, fentanyl, furanyl fentanyl, and
acryl fentanyl in Logan County, Ohio. . . On July 17, 2017,
Williams plead guilty to Aggravated Trafficking in Drugs, F-3,
regarding this Incident.
Id. at PageID 59-60. The Amended Bill of Particulars recites this act (on which it provides far
more details) as one of the acts the State will prove to show a pattern of corrupt activity.
The Bill of Information to which Williams pleaded guilty charged in Count One with
trafficking in a certain amount of heroin between September 9, 2016, and November 2, 2016 (State
Court Record, ECF No. 9, Ex. 10). Count Two charges trafficking in heroin from November 3,
2016, through January 31, 2017. Id.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
affords a defendant three basic protections:
It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same
offense after conviction. And it protects against multiple
punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969). The Double Jeopardy Clause was held to be applicable to the States through the Fourteenth
Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969). The test for whether two offenses
constitute the same offense for Double Jeopardy purposes is “whether each offense contains an
element not contained in the other.” United States v. Dixon, 509 U.S. 688, 696 (1993);
Blockburger v. United States, 284 U.S. 299, 304 (1932).
In this case the three offenses of which Williams stands convicted each has a different
element: each charges him with sale of heroin on different dates. The Double Jeopardy Clause
has never been interpreted to hold that if a person is convicted of selling heroin on a given date,
he cannot be convicted of selling heroin a second time on a different date or even of making a
second sale on the same date.
The Third District’s conclusion that there was no Double Jeopardy violation in this case is
not an objectively unreasonable application of United States v. Dixon, supra, or Blockburger v.
United States. Williams’ Second Ground for Relief should therefore be dismissed.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition herein 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.
March 31, 2021.
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, but service is complete when the document is mailed, not when it is recetved. 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. #