Dunlap v. Warden, Belmont Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

KYLE DUNLAP,

Case No. 2:21-cv-05849

Petitioner, Chief Judge Algenon L. Marbley

Magistrate Judge Elizabeth P. Deavers

v.

WARDEN, BELMONT

CORRECTIONAL INSTITUTION,

Respondent.

REPORT AND RECOMMENDATION

Petitioner, a state prisoner proceeding with the assistance of counsel, has filed a petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter has been referred to the

Undersigned pursuant to 28 U.S.C. § 636(b) and this Court’s General Order 22–05. Pending

before the Court are the Petition and its attachments (Doc. 1); Respondent’s Return of Writ (Doc.

5); and the state court record (Doc. 4). Also before the Court are supplemental exhibits filed by

Respondent. (Docs. 15, 20.) Petitioner did not file a Reply. For the reasons that follow, the

Magistrate Judge RECOMMENDS that the Petition be DENIED and that this action be

DISMISSED.

The Undersigned further RECOMMENDS that the Court decline to issue a certificate of

appealability (“COA”).

I. Procedural History

The record reveals the following relevant procedural history. On October 4, 2018,

Petitioner was indicted by a grand jury in the Court of Common Pleas for Licking County, Ohio.

(Doc. 4, PageID # 49–52.) In that indictment (“the original indictment”) Petitioner was charged

with one count of illegal assembly or possession of chemicals for the manufacture of drugs in

violation of Ohio Revised Code § 2925.041(A)(C), and two counts of the illegal manufacture of

drugs or illegal cultivation of marijuana in violation of Ohio Revised Code §

2925.04(A)(C)(5)(e). (Id.) All three counts constituted second degree felonies. (Id.) The

original indictment also included four forfeiture specifications. (Id.) On October 23, 2018,

Petitioner pleaded not guilty to the charges in the original indictment. (Id., PageID # 55.)

On April 17, 2019, Petitioner was charged in a superseding indictment for one count of

illegal manufacture of drugs or illegal cultivation of marijuana in violation of Ohio Revised Code

§ 2925.04(A)(C)(5)(f), a felony of the first degree; one count of trafficking in marijuana in

violation of Ohio Revised Code § 2925.03(A)(2)(C)(3)(g), a felony of the first degree; one count

of possession of marijuana in violation of Ohio Revised Code § 2925.11(A)(C)(3)(g), a felony of

the second degree; three counts of endangering children in violation of Ohio Revised Code §

2919.22(A), a first degree misdemeanor; and one count of permitting drug abuse in violation of

Ohio Revised Code § 2925.13(B), a felony of the fifth degree. (Id., PageID # 57–63.) The

superseding indictment also included five forfeiture specifications and one firearm specification.

(Id.)

On May 16, 2019, Petitioner moved the state trial court to accept his guilty pleas to the

charges in the original indictment and to dismiss the superseding indictment. (Id., PageID # 69–

76.) After the prosecution opposed Petitioner’s motion (id., PageID # 78–86), and Petitioner

filed a reply in support (id., PageID # 88–92), the parties apparently negotiated a plea agreement.

Specifically, Petitioner agreed to plead guilty to the three counts in the original indictment and

the prosecution agreed to defer at sentencing and to refrain from arguing that a statutory

presumption in favor of a prison term would apply. (Id., PageID # 98). On August 13, 2019, the

prosecution moved to dismiss the superseding indictment, indicating that Petitioner would be

“pleading to the original indictment.” (Id., PageID # 94.) The state trial court granted the

prosecution’s motion and dismissed the superseding indictment. (Id., PageID # 96.)

The Court of Appeals for Ohio’s Fifth District summarized the relevant events that took

place thereafter.

{¶4} On August 13, 2019, Appellant entered a plea of guilty to Counts One, Two,

and Three to the [original] indictment. After accepting Appellant’s guilty plea, the

trial court proceeded to sentencing. Trial counsel for Appellant referenced

Appellant’s efforts to assist investigators by proffering information to the Central

Ohio Drug Enforcement Task Force (“CODE”) in hopes to mitigate the sentence.

{¶5} When asked for a recommendation, the prosecuting attorney stated he didn’t

“believe that there was any cooperation with the Central Ohio Drug Enforcement

Task Force. I don’t believe that the individual that he mentions being in the county

jail had anything to do with anything that was provided by this Defendant.”

{¶6} The trial court then sentenced Appellant to an eight-year mandatory prison

term.

{¶7} Thereafter, Appellant filed Appellant’s Motion to Withdraw Plea. In an

Affidavit to support the motion, Appellant asserts that his trial counsel assured him

it was overwhelmingly likely that he would be placed on probation if he entered a

plea of guilty to the original indictment. Counsel predicted there was a 99%

likelihood that Appellant would be placed on probation and that any period of

incarceration would not exceed sixty days of local jail time. Affidavit further asserts

trial counsel told Appellant he had spoken to the judge the previous day, who had

remarked that trial counsel must have been pleased that the case was resolving in

the manner he hoped it would.

{¶8} The trial court denied Appellant’s Motion to Withdraw Plea, finding that the

Appellee’s statements at sentencing were made to correct the record, and there was

no breach of the parties’ plea agreement. The court also noted that the comments

did not affect the sentence imposed. The trial court found the Appellant failed to

demonstrate that a plea withdrawal was necessary to prevent manifest injustice, and

that Appellant failed to provide sufficient evidentiary support to justify conducting

an evidentiary hearing.

State v. Dunlap, No. 2020 CA 00029, 2020 WL 5413600, at *1 (Ohio Ct. App. Sept. 9, 2020);

(Doc. 4, PageID # 158-59.)

The state trial court denied Petitioner’s motion to withdraw his guilty plea on February

25, 2020. (Doc.1, PageID # 20.) Petitioner appealed that determination to the state appellate

court and raised the following three assignments of error:

{¶10} “I. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO

BREACH OF THE PLEA AGREEMENT BETWEEN THE PARTIES AND

THAT APPELLANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE

OF THE PARTIES’ AGREEMENT OR WITHDRAWAL OF HIS GUILTY

PLEA, IN VIOLATION OF HIS RIGHTS GUARANTEED BY THE OHIO AND

UNITED STATES CONSTITUTIONS.

{¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN

DENYING APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA

WHERE SAID PLEA WAS ENTERED INVOLUNTARILY AND IN

REASONABLE RELIANCE ON HIS FORMER ATTORNEY’S

ASSURANCES THAT A GUILTY PLEA WOULD RESULT IN A SENTENCE

MORE LENIENT THAT THE SENTENCE IMPOSED.

{¶12} “III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S

REQUEST FOR AN EVIDENTIARY HEARING ON HIS MOTION TO

WITHDRAW HIS GUILTY PLEA, IN VIOLATION OF HIS RIGHTS AS

GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS.”

Dunlap, 2020 WL 5413600, at *2; (Doc. 4, PageID # 159-60.)

On September 9, 2020, the state appellate court overruled Petitioner’s three assignments

of error and affirmed the state trial court’s decision. Id. at * 3, 4, 5; (PageID # 160-67.) On

October 26, 2020, Petitioner filed an appeal in the Ohio Supreme Court and raised the following

issue for review:

A criminal defendant’s Due Process rights are violated when a trial court fails to

hold an evidentiary hearing when a motion to withdraw a guilty plea alleges facts

which establish that his plea of guilty was entered in reliance on the erroneous

representation of counsel, thereby rendering the plea involuntary.

(Doc. 4, PageID # 170–71, 173–86.) On January 27, 2021, the Ohio Supreme Court declined to

accept jurisdiction over Petitioner’s appeal with three Justices dissenting. State v. Dunlap, 2020-

1287, 161 Ohio St.3d 1416 (Ohio S.Ct. 2021); (Doc. 4, PageID # 200.)

On December 20, 2021, Petitioner, with the assistance of counsel, sought a writ of habeas

corpus pursuant to 28 U.S.C § 2254. (Doc. 1.) In his petition, he raises the following ground for

relief:

When the facts establish a defendant entered guilty pleas based upon erroneous

representations by trial counsel, rendering the plea involuntary, Due Process

requires an evidentiary hearing.

(Id., PageID # 6.) In addition, he alleges, in passing, that “Ohio’s adjudication of this issue resulted

in a decision that was contrary to or an unreasonable application of Strickland v. Washington, 466

U.S. 668, 690 (1984); Libretti v. United States, 516 U.S. 29, 50–51 (2995) [sic]; and Santobello v.

New York, 404 U.S. 257 (1971). (Id., PageID # 19.)

II. Standard of Review

The Sixth Circuit Court of Appeals recently discussed the appropriate standard of review

for habeas claims brought by state prisoners in Stermer v. Warren, 959 F.3d 704, 720–22 (6th

Cir. 2020). “Petitions for habeas corpus brought by state prisoners are subject to 28 U.S.C. §

2254, the modern version of which comes from the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”).” Id. at 720 (citing Northrop v. Trippett, 265 F.3d 372, 376 (6th Cir.

2001); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999)). “AEDPA requires habeas

petitioners to exhaust their claims in state court before turning to a federal court for

relief.” Id. (citing 28 U.S.C. § 2254(b)(1)). “And if a state court decides a claim on the merits,

that decision is subject to significant deference.” Id. (citations omitted).

“For a federal court to grant relief in such a case, the state court’s decision must have

been ‘(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States; or (2) . . . based on an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.’” Id. at 720–21 (quoting 28 U.S.C. § 2254(d)). “Under these rules, a state court’s

determination that a claim lacks merit precludes federal habeas relief so long as fairminded

jurists could disagree on the correctness of the state court’s decision.” Id. at 721 (citations and

internal quotation marks omitted). “This deference applies even when the state court fails to

explain its reasoning, in which case ‘the federal court ‘must determine what arguments or

theories . . . could have supported the state court’s decision’” and afford those theories AEDPA

deference.” Id. (quoting Sexton v. Beaudreaux, ––– U.S. ––––, 138 S. Ct. 2555, 2558, 201

L.Ed.2d 986 (2018) (per curiam) (alteration in original) (quoting Harrington v. Richter, 562 U.S.

86, 102, (2011)). “Furthermore, ‘evaluating whether a rule application was unreasonable

requires considering the rule’s specificity. The more general the rule, the more leeway courts

have in reaching outcomes in case-by-case determinations.’” Id. (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)).

“Section 2254(d) also determines which facts a federal court can consider.” Id. “When

assessing whether the state court’s decision was contrary to, or involved an unreasonable

application of, clearly established Federal law,’ 28 U.S.C. § 2254(d)(1), the reviewing court ‘is

limited to the record that was before the state court that adjudicated the claims on the merits [.]’ ”

Id. (quoting Cullen v. Pinholster, 563 U.S. 170, 181, (2011)). “Because of this, a district court

cannot use a federal evidentiary hearing to supplement the record when assessing a claim under §

2254(d).” Id. (citing Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 465 (6th Cir.

2012)). “That said, if a review of the state court record shows that additional fact-finding was

required under clearly established federal law or that the state court’s factual determination was

unreasonable, the requirements of § 2254(d) are satisfied and the federal court can review the

underlying claim on its merits.” Id. (citations omitted).

“If a habeas petitioner satisfies the heightened requirements of § 2254(d), or if the

petitioner’s claim was never ‘adjudicated on the merits’ by a state court, 28 U.S.C. § 2254(d),

AEDPA deference no longer applies.” Id. “Instead, the petitioner’s claim is reviewed de novo as

it would be on direct appeal.” Id. (citing Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003)).

“The district court would also be free to expand the record, provided that the petitioner diligently

attempted to present those facts in state court (or alternatively if [he] meets AEDPA’s narrow

exception for evidence of actual innocence).” Id. at 721–22 (citations omitted).

III. Discussion and Analysis

A. Cognizability / Fundamental Fairness

As noted, Petitioner contends that the state trial court violated his due process rights by

denying his motion to withdraw his plea hearing without holding an evidentiary hearing. (Doc.

1, PageID # 6.) More specifically, Petitioner appears to contend that a due process violation

occurs when a defendant moves to withdraw a guilty plea because he allegedly relies on

misinformation from counsel and a court fails to hold an evidentiary hearing. (Id.)

Respondent first contends that Petitioner’s claim is not cognizable. (Doc. 5, PageID #

302-04.) The Undersigned agrees. A criminal defendant does not have a constitutional right to

an evidentiary hearing on a motion to withdraw a guilty plea. Armstrong v. Wainwright, No. 19-

3446, 2019 WL 5874623, at *2 (6th Cir. Oct. 8, 2019) (denying certificate of appealability for

claim pertaining to a state trial court’s failure to hold an evidentiary hearing; “[the petitioner] did

not have a right to an evidentiary hearing with respect to his motion to withdraw his plea”)

(citing Hines v. Miller 318 F. 3d 157, 162 (2d Cir. 2003). See also Starkey v. Chillicothe Corr.

Inst., No. 2:16-cv-00525, 2017 WL 386834, at *3 (S.D. Ohio Jan. 27, 2017) (“The decision

whether to hold a hearing on a motion to withdraw a guilty plea likewise does not present a claim

cognizable in habeas because “[a] criminal defendant has no constitutional right to an evidentiary

hearing on a motion to withdraw a guilty plea.”) (internal citation omitted), report and

recommendation adopted, No. 2:16-cv-00525, 2017 WL 567942, (S.D. Ohio Feb. 13, 2017).

Moreover, habeas corpus relief is only available to correct violations of federal law. 28 U.S.C. §

2254(a). “[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).

Therefore, to the extent Petitioner challenges the denial of his motion to withdraw his guilty plea

under state law, that claim generally is not cognizable on federal habeas review.

Notwithstanding the foregoing, a petitioner alleging violations of state law can obtain

habeas relief if the alleged violation of state law “resulted in the denial of fundamental fairness,

thereby violating due process….” Dillon v. Warden, Ross Corr. Inst., 541 F. App’x 599, 604-05

(6th Cir. 2013) (citations omitted). Fundamental fairness under the Due Process Clause is

compromised where “the action complained of . . . violates those fundamental conceptions of

justice which lie at the base of our civil and political institutions, . . . and which define the

community’s sense of fair play and decency.” Dowling v. United States, 493 U.S. 342, 353

(1990) (internal citations and quotation marks omitted). Courts, therefore, “have defined the

category of infractions that violate ‘fundamental fairness’ very narrowly.” Bugh v. Mitchell, 329

F.3d 496, 512 (6th Cir. 2003) (quotation marks omitted). Because, for the reasons discussed

below, the Undersigned is satisfied that Petitioner’s guilty plea was constitutionally valid, the

Undersigned necessarily concludes that Petitioner has not shown a denial of fundamental

fairness.

B. Merits

Petitioner asserts that “Ohio’s adjudication of this issue resulted in a decision that was

contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668, 690

(1984); Libretti v. United States, 516 U.S. 29, 50–51 (2995) [sic]; and Santobella v. New York,

404 U.S. 257 (1971). (Doc. 1, PageID # 19.) Respondent asserts that the state court reasonably

determined that Petitioner’s plea was voluntary, and that the state trial court’s plea colloquy

rectified any misinformation that Petitioner’s trial counsel may have conveyed to Petitioner.

(Doc. 5, PageID # 305–13.) In addition, Respondent asserts that Petitioner’s invocation of

Santobello and Libretti is misplaced. (Id. at PageID # 314–15.) The Undersigned agrees with

Respondent.

1. Voluntariness of the Plea / Ineffective Assistance Under Strickland

Although Petitioner’s sole ground for relief alleges a due process violation stemming

from the trial court’s failure to hold an evidentiary hearing on Petitioner’s motion to withdraw

his guilty pleas, (Doc. 1, PageID # 6), Petitioner also intimates in that ground that his trial

counsel made erroneous representations that constituted ineffective assistance of counsel under

Strickland v. Washington 466 U.S. 668 (1984), and that those erroneous representations rendered

Petitioner’s guilty plea involuntary (id. PageID # 18-19).

Because a criminal defendant waives numerous constitutional rights when he enters a

guilty plea, any 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), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010) (quoting North

Carolina v. Alford, 400 U.S. 25, 31 (1970)). In applying this standard, the reviewing court must

consider the totality of circumstances surrounding the plea. Id. A criminal defendant’s solemn

declaration of guilt carries a presumption of truthfulness. Blackledge v. Allison, 431 U.S. 63, 74

(1977).

A prisoner may challenge the entry of a guilty plea on the basis that counsel’s

ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411

U.S. 258, 266-67 (1973). The two-part test set forth in Strickland v. Washington, 466 U.S. 668,

687 (1984), applies to challenges to guilty pleas based on a claim of ineffective assistance of

counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Sparks, 852 F.2d at 884. In order to obtain

relief, a prisoner raising such a claim must first show that counsel’s advice was not within the

range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852

F.2d at 884.

The second, or “prejudice” requirement, on the other hand, focuses on whether

counsel’s constitutionally ineffective performance affected the outcome of the plea

process. In other words, in order to satisfy the “prejudice” requirement, the

defendant must show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.

Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884. In the instant case, it is immaterial whether there is

a reasonable probability that, but for counsel’s alleged errors, Petitioner would not have pleaded

guilty because Petitioner has failed to demonstrate deficient performance sufficient to undermine

the validity of his guilty plea.

An inaccurate prediction by defense counsel regarding the sentence an accused may

receive does not constitute deficient performance under Strickland, nor render the accused’s

guilty plea invalid.

It has long been settled as a general rule that where an adequate guilty plea hearing

has been conducted, an erroneous prediction or assurance by defense counsel

regarding the likely sentence does not constitute grounds for invalidating a guilty

plea on grounds of ineffective assistance of counsel. See Masciola v. United States,

469 F.2d 1057, 1059 (3d Cir. 1972) (citing Wellnitz v. Page, 420 F.2d 935 (10th

Cir. 1970)); see also United States v. Marzgliano, 588 F.2d 395, 399 n. 6 (3d Cir.

1978) (explaining different rule where allegation is that plea was based on

misconduct or misrepresentation by defense counsel); United States v. Valenciano,

495 F.2d 585, 588 (3d Cir. 1974) (same). * * *

The rationale is that the Rule 11 colloquy, which advises the defendant of the

minimum and maximum imprisonment range under the statute and provides other

necessary information about the [] sentencing process, eliminates any arguable

prejudice from an earlier estimate by counsel. See, e.g., United States v. Martinez,

169 F.3d 1049, 1053 (7th Cir. 1999) (“[A]n attorney’s mere inaccurate prediction

of sentence does not demonstrate the deficiency component of an ineffective

assistance of counsel claim.”) (citation omitted); Gonzalez v. United States, 33 F.3d

1047, 1051-53 (9th Cir. 1994) (“The district court informed [defendant] of the

maximum possible sentences and fines for the offenses to which he pleaded guilty.

He responded affirmatively when asked if he was satisfied with [counsel]’s

representation of him. As a result, [he] cannot claim he was prejudiced by

[counsel]’s alleged gross error in calculating the sentencing guidelines range and

likely sentence.”); Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990)

(“[Defendant]’s attorney’s inaccurate prediction of what sentence [he] would

receive upon pleading guilty does not rise to the level of a gross mischaracterization

of the likely outcome of his case, and thus does not constitute ineffective assistance

of counsel…. Further, [defendant] suffered no prejudice from his attorney’s

prediction because, prior to accepting his guilty plea, the court explained that the

discretion as to what the sentence would be remained entirely with the court.”)

(citation omitted).

Brown v. United States, 75 F. Supp. 2d 345, 355 (D. New Jersey 1999). See also Houston v.

Phillips, No. 20-6102, 2022 WL 3371349, at *4 (6th Cir. Aug. 16, 2022) (“An attorney’s

professional prediction that does not become reality is not necessarily deficient performance.”

(emphasis added) (citing Lafler v. Cooper, 566 U.S. 156, 174 (2012)). Petitioner’s claim cannot

prevail under the foregoing authority.

First, the record demonstrates that Petitioner’s plea was voluntary. During a motion

hearing on July 16, 2019, the trial court advised Petitioner that the charge in Count 1 carried

eight years, that the charge in Count 2 took the sentence to sixteen years, and that the charge in

Count 3 took the sentence to twenty-four years. (Doc. 4-1, PageID # 237.) In the change-of-plea

form that Petitioner signed on August 13, 2019, and that was filed on August 14, 2019, Petitioner

acknowledged that the maximum sentence was twenty-four years, that he understood the nature

of the charges and possible defenses, his satisfaction with counsel’s advice and competence, that

he was not under the influence of drugs or alcohol, and that no threats or promises were made

except that the state would defer to the court at the time of sentencing and the defendant agreed

to all forfeitures. (Doc. 4, PageID # 98.) In the August 14, 2019, Judgment Entry summarizing

the plea change in open court, which included the trial court’s colloquy with Petitioner, the trial

court explained that Petitioner’s sentences were being imposed consecutively to protect the

public, to punish offender, and because of the seriousness of conduct; the trial court made no

mention of the prosecution’s statements countering defense counsel’s representation that

Petitioner’s cooperation with law enforcement had led to the detention of a suspected offender.

(Doc. 4, PageID # 100-03.) Petitioner offers no evidence or arguments sufficient to rebut or

undermine this demonstration of the voluntariness of his plea.

Nor does the record demonstrate that counsel was ineffective under Strickland.

According to Petitioner’s affidavit, counsel advised Petitioner “that there was a 99% percent

chance” that Petitioner would be placed on probation if he pleaded guilty to the charges listed in

the original indictment, and represented that there was an “overwhelming likelihood” that any

period of incarceration imposed would not exceed sixty days in a local jail. (Doc. 15-1, PageID

341.) But as set forth above, an inaccurate prediction by defense counsel regarding the sentence

an accused may receive does not constitute deficient performance under Strickland. See, e.g.,

Brown, 75 F. Supp. 2d at 355. There is no evidence in this case that counsel misunderstood, or

gave Petitioner incorrect advice about, the charges or possible sentences, which can constitute

ineffective assistance. See Warner v. United States, 975 F.2d 1207, 1211 (6th Cir. 1992)

(finding that advice by counsel about sentence that was incorrect as a matter of law amounted to

constitutionally deficient performance). And there is no evidence that counsel believed or

conveyed to Petitioner that there was an out-of-court agreement about the sentence Petitioner

would receive, which can also constitute ineffective assistance. Id. (finding that

misunderstanding by counsel about an agreement that was never conveyed to him by the

government amounted to constitutionally deficient performance).

Petitioner asserts that Ohio’s adjudication of this issue resulted in a decision that was

contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668, 690

(1984). (Doc. 1, PageID # 6.) But Petitioner offers no reasoning or explanation for how the state

appellate court contravened or unreasonably applied Strickland. That is especially detrimental in

the instant case because claims of ineffective assistance of counsel raised in habeas corpus enjoy

“double deference.” As the Sixth Circuit has explained in this regard:

With respect to how AEDPA’s standard of review interacts with Strickland’s

performance-and-prejudice test, the Supreme Court’s decision in Harrington v.

Richter is instructive:

Surmounting Strickland’s high bar is never an easy task…. Even

under de novo review, the standard for judging counsel’s

representation is a most deferential one….

Establishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult. The

standards created by Strickland was § 2254(d) are both highly

deferential, and when the two apply in tandem, review is doubly

so…. [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.

Fitzpatrick v. Robinson, 723 F.3d 624, 634 (6th Cir. 2013) (quoting Harrington v. Richter, 562

U.S. 86, 105 (2011)). As demonstrated above, the state trial court’s entry denying Petitioner’s

motion to withdraw, and the state appellate court’s decision affirming the trial court’s denial of

motion to withdraw, were supported by the record. It cannot be said, therefore, that those decisions

were unreasonable. And as noted throughout this opinion, AEDPA deference applies to this

Court’s review of the state court decisions about the validity of Petitioner’s guilty plea. See, e.g.,

Fitzpatrick, 723 F.3d at 639.

Petitioner suggests that the statements he made and questions he answered in open court

and under oath should be given less weight because of his allegation that he was following his

attorney’s instructions and under the reasonable reliance that doing so was in furtherance of an

out-of-court agreement. (Appellate Brief, Doc. 4, PageID # 116-17, 126-28.) But nothing in the

record supports the existence of an out-of-court or reasonably justifies Petitioner’s assumption of

such an agreement. As noted above, a criminal defendant’s solemn declaration of guilt carries a

presumption of truthfulness. Blackledge, 431 U.S. at 74. In view of how fundamental the plea

process is to the functioning of the criminal justice system, id. at 71 (“Whatever might be the

situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain

are important components of this country’s criminal justice system.”), statements made in open

court and under oath are binding absent an extraordinary showing because they have to be. Any

claim of ineffective assistance offered to undercut the validity of one’s declarations under oath in

open is further undermined by a sufficient plea colloquy. See Ramos v. Rogers, 170 F.3d 560,

565 (6th Cir. 1999) (“a claim of ineffective assistance of counsel predicated on allegedly

misleading information given by counsel about the terms of a plea agreement can never

constitute an ‘extraordinary circumstance’ under Baker when the court conducts a proper, clear,

and thorough plea colloquy.”). Petitioner does not offer sufficient reason to disregard the

presumption of truthfulness accorded to the statements and answers he offered during his

change-of-plea hearing.

2. Libretti and Santobello

Petitioner’s precise argument in the sole ground for relief is that the evidentiary materials

he presented in support of his motion to withdraw his guilty plea warranted a hearing, and that

the trial court violated his right to due process in refusing to hold a hearing. (Doc. 1, PageID #

6.) According to Petitioner, the Ohio Supreme Court’s decision declining to accept jurisdiction

over Petitioner’s appeal “resulted in a decision that was contrary to or an unreasonable

application of Strickland v. Washington, 466 U.S. 668, 690 (1984); Libretti v. United States, 516

U.S. 29, 50-51 (1995); and Santobello v. New York, 404 U.S. 257 (1971).” (Doc. 1, PageID 19.)

But Petitioner fails to establish either a due process violation or an unreasonable application of

clearly established federal law within the meaning of 28 U.S.C. § 2254(d).

As the Court already noted in addressing whether Petitioner’s claim is even cognizable,

where, as here, the record reflects a guilty plea that was knowing, intelligent, and voluntary,

federal courts have consistently rejected the argument that a state trial court’s handling of a

motion to withdraw a guilty plea implicates federal constitutional rights. In Nicholson v. Larose,

the district court held that “to the extent Nicholson claims he is entitled to relief because the trial

court erred under Ohio law in denying his motion to withdraw guilty plea without a hearing,

Nicholson raises a state law issue that is not cognizable in these federal habeas proceedings.”

No. 1:13-cv-2535, 2015 WL 1757898, at *15 (N.D. Ohio Apr. 17, 2015) (citing Xie v. Edwards,

35 F.3d 567 (Table), 1994 WL 462143, at *2 (6th Cir. Aug. 25, 1994)). The district court also

held that because the record demonstrated that the plea was knowing, intelligent, and voluntary,

Nicholson was not able to establish a violation of his federal constitutional rights. Id. at *15-16;

see also United States ex rel. Scott v. Mancusi, 429 F.2d 104, 109-10 (2nd Cir. 1970) (holding

that the decision whether to permit a defendant to withdraw a guilty plea rests within the trial

court’s discretion, which does not generally provide a basis for habeas corpus relief); Johnson v.

Warden, Lebanon Corr. Inst., No. 1:12-cv-560, 2014 WL 935222, at *4 (S.D. Ohio Mar. 10,

2014) (“to the extent petitioner claims he is entitled to relief because the trial court committed

error or otherwise abused its discretion under state law in denying his motion to withdraw his

guilty plea, petitioner raises issues of state law only that are not cognizable in this federal habeas

corpus proceeding.”) (citations omitted); Armstrong v. Wainwright, No. 1:18-cv-1133, 2018 WL

8050904, at *13 (N.D. Ohio Dec. 20, 2018) (claim that the trial court violated due process rights

when it failed to hold an evidentiary hearing on a motion to withdraw guilty plea “is not

cognizable because a defendant’s right to an evidentiary hearing on a motion to withdraw guilty

plea is an issue of state law; there is no constitutional right to a hearing on a motion to withdraw

a guilty plea.”) (citations omitted); Dickey v. Warden, Lebanon Corr. Inst., No. 1:08-cv-819,

2010 WL 92510, at *7-8 (S.D. Ohio Jan. 6, 2010) (finding that the petitioner’s claim alleging

trial court error in denying his motion to withdraw his guilty plea did not implicate federal

constitutional rights).

The Undersigned has already determined that Petitioner’s guilty plea was constitutionally

valid. To the extent that Petitioner’s real issue, boiled down, is with the state courts’ reliance on

and application of state law regarding the level of cogency necessary for evidentiary materials to

be admissible and to require an evidentiary hearing, the cases discussed above establish that it is

not for federal courts in habeas corpus to pass judgment on state courts’ application of

controlling state law.1 Thus, the trial court’s refusal to conduct an evidentiary hearing on

Petitioner’s motion to withdraw his guilty plea does not support habeas corpus relief.

In view of the foregoing, Petitioner fails to establish that the state court’s rejection of his

sole habeas claim contravened or unreasonably applied clearly established federal law as

determined by the Supreme Court or involved an unreasonable determination of facts based on

the evidence presented. As a preliminary matter, the Undersigned rejects Petitioner’s argument

that the Ohio Supreme Court’s decision not to accept Petitioner’s appeal let stand “a decision

that was contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668,

690 (1984); Libretti v. United States, 516 U.S. 29, 50-51 (1995); and Santobello v. New York,

404 U.S. 257 (1971).” (Doc. 1, PageID # 19.) The Undersigned has already considered and

rejected any argument that Petitioner’s trial counsel was ineffective under Strickland. In Libretti,

the Supreme Court stated, “[a]part from the small class of rights that require specific advice from

1 That certainly appears to have been a focus of the Ohio Supreme Court justices who dissented

from the decision not to accept Petitioner’s appeal. Justice Donnelly stated, in an opinion in

which Justice Stewart concurred:

It is, of course, possible that Dunlap’s claims would not have been borne

out by the facts established during an evidentiary hearing. But he does not deserve

to have his claims dismissed out of hand with the usual bromides about relying on

a “self-serving affidavit.” A defendant in this scenario is rarely ever going to have

anything to back up a plea-withdrawal motion other than his own claims about what

happened. And only an evidentiary hearing will establish whether those claims are

true. As I stated in my dissenting opinion in State v. Bozso, __ Ohio St.3d __, 2020-

Ohio-3779, __ N.E.3d __, “a defendant cannot be expected to make a record of the

fact that he has been misinformed about a crucial issue at the time he is operating

under that misinformation.” Id. at ¶ 44 (Donnelly, J., dissenting). To say that a

defendant’s claims in support of withdrawing his plea do not warrant an evidentiary

hearing because they are not already backed up by solid, admissible evidence puts

the defendant in an impossible position and ensures that an evidentiary hearing is

never warranted no matter how specific and convincing a defendant’s claims might

be.

(Doc. 1, PageID # 39-40.)

the court under Rule 11(c), it is the responsibility of defense counsel to inform a defendant of the

advantages and disadvantages of a plea agreement and the attendant statutory and constitutional

rights that a guilty plea would forgo[,]” and “ ‘[a] failure by counsel to provide advice may form

the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as

the predicate for setting aside a valid plea.’ ” 516 U.S. at 50-51 (quoting United States v. Broce,

488 U.S. 563, 574 (1989)). Santobello addressed a state’s failure to keep its commitment

concerning the sentence recommendation on a guilty plea. 404 U.S. at 257-58. Petitioner does

not demonstrate, and it is not otherwise apparent to the Undersigned, how either Libretti or

Santobello even apply to Petitioner’s case, much less how the Ohio Supreme Court’s decision

declining to review the denial of Petitioner’s motion to withdraw his guilty plea contravened or

unreasonably applied Strickland, Libretti, and Santobello.

As noted above, with respect to any claim that the state courts adjudicated on the merits,

a federal court may not grant habeas corpus relief unless that decision contravened or

unreasonably applied clearly established federal law as determined by the Supreme Court. 28

U.S.C. § 2254(d)(1). As the Court noted earlier, the Sixth Circuit has held that “[u]nder this

deferential standard, we do not ask ‘whether the state court’s determination was incorrect, but

rather whether fairminded jurists could disagree about whether the state court’s decision conflicts

with existing Supreme Court caselaw.’ ” Allen v. Mitchell, 953 F.3d 858, 863 (6th Cir. 2020)

(quoting Dewald v. Wriggelsworth, 748 F.3d 295, 301 (6th Cir. 2014) (citing Harrington v.

Richter, 562 U.S. 86, 101 (2011))); see also Chinn v. Warden, Chillicothe Corr. Inst., 24 F.4th

1096, 1105 (6th Cir. 2022) (“[T]he Supreme Court has admonished habeas courts not to ‘treat[]

the unreasonableness question as a test of its confidence in the result it would reach under de

novo review’ and that ‘even a strong case for relief does not mean the state court’s contrary

conclusion was unreasonable.’ ” (quoting Harrington, 562 U.S. at 102).

Petitioner raised three assignments of error on appeal from the trial court’s decision

denying his motion to withdraw his guilty plea: (1) that the prosecution had reneged on the plea

deal; (2) that the trial court abused its discretion in denying Petitioner’s motion to withdraw his

guilty plea; and (3) that the trial court erred in denying Petitioner’s request for an evidentiary

hearing on his motion to withdraw his guilty plea. (Doc. 4, PageID # 159-60.) The Court of

Appeals for the Fifth Appellate District rejected all three and affirmed the trial court’s decision.

(Doc. 4, PageID # 157-67.) In urging the Supreme Court of Ohio to accept jurisdiction of his

appeal from the court of appeals’ decision, Petitioner raised a single proposition of law: A

criminal defendant’s Due Process rights are violated when a trial court fails to hold an

evidentiary hearing when a motion to withdraw a guilty plea alleges facts which establish that his

plea of guilty was entered in reliance on the erroneous representation of counsel, thereby

rendering the plea involuntary. (Id. PageID # 174.) The Ohio Supreme Court declined to accept

Petitioner’s appeal without opinion, with two justices dissenting. (Id. PageID # 200; Doc. 1,

PageID # 38-40.)

In assessing the reasonableness of the state court’s adjudication, the relevant state court

decision is the last state court to adjudicate the claim on them merits. Joseph v. Coyle, 469 F.3d

441, 450 (6th Cir. 2006) (citations omitted). Here, that is the state appellate court’s decision,

since the Ohio Supreme Court declined to review Petitioner’s claim without opinion. See, e.g.,

Pudelski v. Wilson, 576 F.3d 595, 607 (6th Cir. 2009) (“In this case, that is the Eighth District

Court of Appeals’ decision, because the Ohio Supreme Court declined to review Pudelski’s

claims without comment.”). Because the sole claim that Petitioner presented to the Ohio

Supreme Court, and raises here, essentially combines the second and third assignments of error

that Petitioner presented to the state court of appeals, the Undersigned will, out of an abundance

of caution, construe the appellate court’s decision on those two assignments of error as the

adjudication of the merits of Petitioner’s habeas claim. The appellate court addressed those

assignments as follows:

II.

In Appellant’s Second Assignment of Error, Appellant argues the trial court

abused its discretion in denying Appellant’s motion to withdraw his guilty plea.

Appellant contends the plea was entered involuntarily as Appellant reasonably

relied on his former attorney’s assurances that a guilty plea would result in a

sentence more lenient than the sentence imposed. We disagree.

Crim.R. 32.1 states:

A motion to withdraw a plea of guilty or no contest may be

made only before sentence is imposed; but to correct manifest

injustice the court after sentence may set aside the judgment of

conviction and permit the defendant to withdraw his or her plea.

This Court’s review of the trial court’s ruling on a post-sentence motion to

withdraw plea is “limited to a determination of whether the trial court abused its

discretion.” State v. Wallace, 5th Dist. Perry No. 18-CA00015, 2020-Ohio-565,

¶20. As an appellate court may not substitute its judgment for that of the trial court,

a post-sentence withdrawal motion should only be granted in extraordinary cases.

Id. Appellant has the burden of establishing a manifest injustice warranting the

withdrawal of a guilty plea. Id.

A manifest injustice may occur if counsel provides erroneous advice of

counsel regarding the sentence to be imposed. State v. Radel, 5th Dist. Stark No.

2009-CA-00021, 2009-Ohio-3543, ¶13. Manifest injustice under Crim.R. 32.1

does not automatically result from trial counsel’s erroneous advice or incorrect

speculation regarding the sentence to be imposed. Id. “[A] defendant’s mistaken

belief or impression regarding the consequences of his plea is not sufficient to

establish that such plea was not knowingly and voluntarily made.” Id. However, a

guilty plea entered into because of a “counsel’s representation, as opposed to

counsel’s likely prediction, that such a plea would result in a lesser sentence than

the sentence actually received” the trial court must permit post-sentence withdrawal

of a guilty plea to prevent manifest injustice. State v. Blatnik, 17 Ohio App.3d 201,

203, 478 N.E.2d 1016, 1020 (6th Dist. 1984).

In Blatnik, the record indicated the defendant pled guilty and was then

sentenced. Id. at 204. The defendant does not assert any plea arrangement had

been made concerning the length of his sentence. Id. The defendant also does not

assert his counsel represented to him a sentence the state had promised. Id. The

defendant only asserts counsel speculated, incorrectly, on the length of the

sentence. Id. The Sixth District Court of Appeals found “[a]ccording to the

overwhelming weight of authority, this bare assertion does not, in and of itself,

constitute manifest injustice.” Id.

In this case, Appellant asserts trial counsel predicted a 99% likelihood he

would be placed on probation and that any period of incarceration would not exceed

sixty days of jail time. Appellant contends these assurances by trial counsel led

Appellant to believe an arrangement had been made with respect to his sentence.

However, nothing in the record shows that trial counsel told Appellant an

agreement regarding sentencing had been reached, nor did trial counsel say with a

certainty that a specific sentence would occur. Trial counsel merely predicted,

albeit inaccurately, what he thought the sentence might be.

Appellant also asserts his trial counsel informed him the day before

sentencing he conversed with the sentencing judge who commented about counsel

being pleased that the case was concluding in the manner that he hoped it would.

However, no representation from the trial counsel to Appellant that an agreement

to the length of sentencing had been made, only inaccurate speculation by the trial

counsel that due to the trial court’s comments the sentencing would be more lenient

than that imposed.

Therefore, according to the overwhelming weight of authority, the bare

assertion of the attorney’s prediction of the sentence does not, in and of itself,

constitute manifest injustice.

Appellant’s Second Assignment of Error is overruled.

III.

In the Appellant’s Third Assignment of Error, Appellant argues the trial

court erred in denying Appellant’s request for an evidentiary hearing on his motion

to withdraw his guilty plea. We disagree.

As noted above, Crim.R. 32.1 states:

A motion to withdraw a plea of guilty or no contest may be

made only before sentence is imposed; but to correct manifest

injustice the court after sentence may set aside the judgment of

conviction and permit the defendant to withdraw his or her plea.

Though Crim.R. 32.1 does not expressly require an evidentiary hearing, a

hearing is only required if the facts alleged in the motion are accepted as true by

the trial court, and those facts would require that the plea be withdrawn. State v.

Smith, 1st Dist. Hamilton No. C-180081, 2019-Ohio-3642, ¶34. The decision to

hold a hearing is discretionary and may be reversed only if the court abused its

discretion. Id. In Smith, the defendant, as well as his attorney, submitted affidavits

demonstrating that, because of defendant’s counsel’s drug addiction, he was

incapable of functioning as counsel under the Sixth Amendment. Id. at ¶42.

The defendant must support the allegations made in their motion to

withdraw a guilty plea with affidavits and/or the record. State v. Hutchinson, 5th

Dist. No. 16-CA-108, 2018-Ohio-200, 104 N.E.3d 91, ¶43. The defendant is “not

entitled to a hearing where he or she failed to provide evidentiary-quality materials

raising sufficient operative facts which would entitle the defendant to the requested

relief.” Id. The defendant must present evidence which meets a minimum level of

cogency to support his or her motion. Id.

In Hutchinson, on October 18, 2016, the defendant pleaded guilty to:

felonious assault of a police officer and the second accompanying firearm

specification; improper handling of a firearm in a motor vehicle; violation of a

protection order; forgery; and possession of criminal tools. Id. at ¶19. Appellant

entered an Alford plea to Count II, which was amended to attempted felonious

assault and the accompanying firearm specification. Id.

Between October 31, 2016, and November 15, 2016, the defendant filed a

series of motions to withdraw his guilty plea, arguing he blacked out and had no

memory of telling his trial counsel he agreed to the plea agreement. Id. at ¶20-21.

Appellee responded to these motion[s] on November 3, 2016, and

November 17, 2016. Id. at ¶21-22.

On November 29, 2016, the trial court entered a “Decision and Order

Denying Defendant’s Motions to Withdraw Guilty Pleas.” Id. at ¶24.

This Court held a petitioner’s self-serving affidavit does not meet the

minimum level of cogency. Id. at ¶43. “[A] trial court may assess the credibility

of a movant’s assertions.” Id. at ¶44.

In this case, Appellant submitted a self-serving affidavit, as well as a

recorded telephone conversation allegedly between Appellant’s trial counsel and

“John,” an acquaintance of the Appellant, with no accompanying authentication.

Ohio Evid.R. 901 states:

(A) General Provision: The requirement of authentication

as a condition precedent to admissibility is satisfied by evidence

sufficient to support a finding that the matter in question is what its

proponent claims.

The recording of the telephone conversation was not accompanied by any

authentication, making it inadmissible under Ohio Evid.R. 901 and not

“evidentiary-quality material.” As such, the only remaining affidavit is Appellant’s

self-serving affidavit, which does not meet the minimum level of cogency to

support Appellant’s claims of manifest injustice.

Appellant’s Third Assignment of Error is overruled.

(Doc. 4, PageID # 162-67.)

The Sixth Circuit’s definition of “reasonableness,” combined with the added difficulty of

establishing unreasonableness where, as here, the trial court’s decisions not to hold a hearing and

to deny Petitioner’s motion to withdraw his guilty plea were reviewed not de novo, but for abuse

of discretion, foreclose relief on Petitioner’s claim. Beyond that, the state appellate court’s

factual determinations, such as exactly what counsel said to Petitioner and what he did not, were

supported by the record that this Court reviewed. And the appellate court’s legal reasoning was

consistent with the Undersigned’s determinations, as a matter of federal constitutional law, that

Petitioner’s plea was knowing, intelligent, and voluntary, and that trial counsel was not

constitutionally ineffective. That being so, the Undersigned does not find the state court of

appeals’ decision rejecting Petitioner’s claim unreasonable.

IV. Recommended Disposition and COA Determination

For the foregoing reasons, the Undersigned RECOMMENDS that this action be

DISMISSED.

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

District Courts, a District Court must consider whether to issue a COA. A state prisoner who

seeks a writ of habeas corpus in federal court does not have an automatic right to appeal a district

court’s adverse decision unless the court issues a COA. 28 U.S.C. § 2253(c)(1)(A). When a

claim has been denied on the merits, a COA may be issued 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

such a showing, 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 COA may be issued 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.

Because no reasonable jurist would disagree with this conclusion, the Undersigned

RECOMMENDS that Petitioner should not be granted a certificate of appealability. Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003); Moody v. United States, 958 F.3d 485, 488 (6th Cir.

2020).

Procedure on Objections

If any party objects to this Report and Recommendation, that party may, within fourteen

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 District 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 District 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 Judge 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).

/s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

UNITED STATES MAGISTRATE JUDGE