Mitchem v. Warden, Noble Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

HERBERT MITCHEM,

CASE NO. 2:20-CV-04241

Petitioner, JUDGE JAMES L. GRAHAM

Magistrate Judge Chelsey M. Vascura

v.

WARDEN, NOBLE

CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

On February 12, 2021, the Magistrate Judge issued a Report and Recommendation

recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be

dismissed. (ECF No. 13.) Petitioner has filed an Objection to the Magistrate Judge’s Report and

Recommendation. (ECF No. 18.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de

novo review. For the reasons that follow, Petitioner’s Objection (ECF No. 18) is

OVERRULED. The Report and Recommendation (ECF No. 13) is ADOPTED and

AFFIRMED. This action is hereby DISMISSED.

The Court DECLINES to issue a certificate of appealability.

Petitioner pleaded guilty in the Jackson County Court of Common Pleas pursuant to the

terms of his negotiated plea agreement to operating a vehicle with a hidden compartment used to

transport a controlled substance and aggravated possession of drugs. The trial court sentenced

him to a term of eight years’ incarceration to be followed by five years of community control.

The Ohio Fourth District Court of Appeals affirmed that judgment, and the Ohio Supreme Court

declined to accept jurisdiction of the appeal. Petitioner now asserts that his guilty plea was not

knowing, intelligent or voluntary (claim one); that he was denied the effective assistance of

counsel because his attorney forced him to plead guilty (claim two); and that he is actually

innocent of the charges because the drugs were found behind the seat on the floor board and the

car had no hidden compartment (claim three). The Magistrate Judge recommended dismissal of

Petitioner’s claims on the merits.

Petitioner objects to the dismissal of his claim that he was denied the effective assistance

of counsel because his attorney forced him to plead guilty. He again argues that his guilty plea

was not knowing, intelligent and voluntary because he was under duress and misled by his

attorney or did not understand the ramifications of his guilty plea. The record, however,

contradicts these allegations. See State v. Mitchem, 4th Dist. No. 17CA10, 2018 WL 5972012, at

*5 (Ohio Ct. App. Nov. 8, 2018) (finding that the record disproves this claim).

Petitioner stated while under oath that he had read and understood the Plea Agreement,

had no questions, had reviewed the discovery material and had sufficient time to discuss the case

with his attorney. (Transcript, ECF No. 8-1, PAGEID # 317-18.) He understood the nature of

the offenses charged and the penalties he faced. (PAGEID # 319-23.) The trial court advised

Petitioner of all of the rights he was waiving by entry of his guilty plea. (PAGEID # 323-24.)

Petitioner indicated that he understood and denied being threatened or coerced. (PAGEID #

316.) He expressed satisfaction with the representation of counsel. (PAGEID # 318.) Petitioner

expressed certainty regarding his decision to go forward with the guilty plea. (PAGEID # 325-

26.)

“In light of Petitioner's plea colloquy, his bare claim that his counsel coerced him into

pleading guilty is insufficient to overcome the presumption of truthfulness which attaches to

statements made during the plea colloquy.” See Tucker v. Berghuis, No. 1:15-CV-764, 2017 WL

2451574, at *3 (W.D. Mich. May 17, 2017), report and recommendation adopted sub nom.

Tucker v. Berguis, 2017 WL 2438644 (W.D. Mich. June 6, 2017) (citing United States v. Torres,

129 F.3d 710, 715 (2nd Cir. 1997) (no error in denying motion to withdraw plea where

defendant’s allegations of coercion were belied by his statements at the plea hearing); Jones v.

Page, 76 F.3d 831, 845 (7th Cir. 1996) (habeas relief not warranted where petitioner “made two

clear and unequivocal statements at the plea hearing” which belied his claim that he was

pressured or coerced into pleading guilty.); Otero–Rivera v. United States, 494 F.2d 900, 902–03

(1st Cir. 1974) (“That the plea was ‘coerced by defense counsel’ is a conclusion unbuttressed by

specific facts. Appellant originally told the court ‘this is a voluntary plea,’ a representation he

cannot now so easily repudiate.”); Restucci v. Spencer, 249 F. Supp.2d 33, 45–46 (D. Mass.

2003) (refusing to rely on petitioner's self-serving affidavits stating the counsel and family

members coerced him into pleading guilty that flew in face of plea colloquy); see also Heiser v.

Ryan, 813 F. Supp. 388, 401–03 (W.D. Pa. 1993) (rejecting petitioner's claim that counsel

coerced his guilty plea by threatening to withdraw from the case, where the petitioner indicated

during the plea colloquy that his plea was voluntary). “[A] presumption of correctness attaches

to the state court findings of fact and to the judgment itself” and the Petitioner bears a “heavy

burden” to overturn those findings. Id. at *3 (citing Garcia v. Johnson, 991 F.2d 324, 328 (6th

Cir. 1993); Parke v. Raley, 506 U.S. 20, 29 (1992); Blackledge v. Allison, 431 U.S. 63, 73

(1977)). Petitioner has failed to meet that burden here. He likewise has failed to establish the

ineffective assistance of counsel. Petitioner’s Objection (ECF No. 18) therefore is

OVERRULED.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States

District Courts, the Court now considers whether to issue a certificate of appealability. “In

contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal

court holds no automatic right to appeal from an adverse decision by a district court.” Jordan v.

Fisher, 576 U.S. 1071, ––––, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a

habeas petitioner to obtain a certificate of appealability in order to appeal).

When a claim has been denied on the merits, a certificate of appealability may issue only

if the petitioner “has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). To make a substantial showing of the denial of a constitutional right, a

petitioner must show “that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the issues presented were

‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim has been

denied on procedural grounds, a certificate of appealability may issue if the petitioner establishes

that jurists of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling. Id.

The Court is not persuaded that reasonable jurists would debate the dismissal of this

action. The Court therefore DECLINES to issue a certificate of appealability.

IT IS SO ORDERED.

Date: April 30, 2021

________s/James L. Graham _______

JAMES L. GRAHAM

UNITED STATES DISTRICT JUDGE