The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NATHAN A. SWARTZ,
Petitioner, : Case No. 3:22-cv-117
- vs - District Judge Michael J. Newman
Magistrate Judge Michael R. Merz
WARDEN, London Correctional
Institution
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Nathan Swartz pursuant to 28 U.S.C.
§ 2254. The case is ripe for decision on the Petition (ECF No. 4), the Return of Writ (ECF No. 9),
the State Court Record (ECF No. 11), and Petitioner’s Reply (ECF No. 13). The Magistrate Judge
reference in the case has recently been transferred to the undersigned to help balance the Magistrate
Judge workload in this District (ECF No. 14).
Litigation History
On April 25, 2019, the Miami County Grand Jury indicted Swartz on one count of rape in
violation of Ohio Revised Code § 2907.02(A)(2), (Count 1); and two counts of sexual battery in
violation of Ohio Revised Code § 2907.03(A)(5), (Counts 2-3). (State Court Record, ECF 7,
Exhibit 1; PageID 73). After a competency examination found him competent to stand trial, he
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entered into a plea agreement under which he would plead guilty in return for a promise of
concurrent sentences. The court accepted his plea and sentenced him to an aggregate sentence of
eleven years.
Swartz appealed late, claiming he was not in fact competent to stand trial, that all charges
against him should have been merged, and that he received ineffective assistance of trial counsel
(Appellant’s Brief, State Court Record, ECF No. 7, Ex. 14). The appellate court affirmed. State
v. Swartz, 2020-Ohio-5037 (Ohio App. 2nd Dist. Oct. 23, 2020). The Supreme Court of Ohio
allowed Swartz to proceed on an untimely appeal raising the same issues as in the Second District,
but then declined to exercise jurisdiction (State Court Record, ECF No. 7, Ex. 22).
Swartz then filed his Petition for Habeas Corpus in this Court, pleading the following
grounds for relief:
GROUND ONE: Petitioner was Denied his right to Due Process in
violation of his Fifth and Fourteenth Amendment to the U.S.
Constitution; when trial court found him competent to understand
the proceedings against him.
Supporting Facts: The trial court erred in finding that Mr. Swartz
was competent to understand the proceedings against him. The
conviction of an accused not legally competent to understanding the
proceedings against him is a violation of Due Process. Here,
petitioner was evaluated by a forensic specialist, who presented a
conflicting report on the nature petitioner’s understanding. Here,
there was no basis for the trial court to find petitioner competent,
with the long history of mental illness. To further support that
petitioner has no understanding of the proceedings, he inadequately
made [sic]request to the court, for a new attorney and to withdraw
his plea, through a prison inmate request form (Kite), instead of
through the required formal motion.
GROUND TWO: Petitioner was denied his Fifth Amendment of
the U.S. Constitution, and Section 10, Article I of the Ohio
Constitution, rights against Double Jeopardy, when the trial court
committed Plain Error and failed to merge all convictions for Rape
and Sexual Battery.
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Supporting Facts: The Double Jeopardy Clause of the Fifth
Amendment of the U.S. Constitution provides that no person shall
“be subject for the same offense to be twice put in jeopardy of life
and limb.” This protection is additionally guaranteed by Section 10,
Article I, of the Ohio Constitution. The Double Jeopardy Clause
protects against multiple punishments for the same offense. The
petitioner has several convictions that pertain to a single victim,
these offenses should not merge if the harm from each offense is
separate and identifiable. The multiple convictions for the same
victim require the court to merge for sentencing. The Plain error
standard apples because trial counsel also failed to raise the issue.
The sentence of the petitioner was a joint recommended term, but
this did not relinquish the court’s responsibility to inquire of the
clear ‘allied offenses’. The court did merge the only Rape count with
one Sexual Battery count, involving contact that incurred [sic]
between January 1, 2018 and January 31, 2018. The remaining
offenses were also committed with similar animus as to the first
Battery offense, and involved the same victim.
GROUND THREE: Petitioner was denied his right to Effective
Assistance of Trial Counsel, in violation of the Sixth Amendment of
the U.S. Constitution and Section 10, Article I, of the Ohio
Constitution.
Supporting Facts: The Sixth Amendment of the U.S. Constitution
provides for the right to effective assistance of trial counsel, in all
criminal proceedings. Counsel renders ineffective assistance when
that performance was prejudicial. Here, trial counsel wrongly
advised petitioner to enter a plea to ‘allied offenses’, which resulted
in multiple punishments for the same offense. Further counsel failed
to mitigate for petitioner during sentencing, resulting in the trial
count [sic] not waiving court costs, as petitioner is clearly a pauper
and indigent. During the hearing to determine the competency
status, counsel failed to the detriment of the petitioner, to challenge
to [sic] forensic report. And shared with the court, his personal belief
that petitioner was competent to understand. Counsel had every
opportunity to read the report and see that the writer contradicts the
results of the questioning of the petitioner.
(Petition, ECF No. 4).
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Analysis
Ground One: Petitioner Was Incompetent to Plead No Contest
In his First Ground for Relief, Swartz claims he was incompetent to enter a no contest plea.
A person who is mentally incompetent may not be tried for a crime so long as the
incompetence continues. Bishop v. United States, 350 U.S. 961(1956). This fundamental right,
now protected by the Due Process Clause of the Fourteenth Amendment, has firm roots in the
common law. Drope v. Missouri, 420 U.S. 162, 171 (1975), citing 4 Blackstone, Commentaries
24. To protect this right, a State must adopt and observe adequate procedures for determining
whether a person is competent to stand trial. Pate v. Robinson, 383 U.S. 375 (1966). It is not
unconstitutional to presume competence, as Ohio law does, and to place the burden of proving
incompetence on a criminal defendant. Medina v. California, 505 U. S. 437(1992). A
determination of competence is a factual finding to which deference must be paid in habeas
proceedings. Filiaggi v. Bagley, 445 F.3d 851 (6th Cir. 2006), citing Thompson v. Keohane, 516
U.S. 99, 110-11 (1995).
The standard for competency to stand trial is whether the defendant "has sufficient present
ability to consult with his lawyer with a reasonable degree of rational understanding — and
whether he has a rational as well as factual understanding of the proceedings against him." Dusky
v. United States, 362 U.S. 402(1960).
His asserted lack of competence was the gravamen of Swartz’s First Assignment of Error
on direct appeal. The Second District decided that issue as follows:
{¶ 9} In his first assignment of error, Swartz contends that the trial
court erred by finding him competent to understand the nature of the
proceedings against him so as to stand trial. He claims to have “a
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history of mental illness,” and suggests that his use of inmate “kite”
requests to seek a new attorney and to withdraw his plea, instead of
filing formal motions with the trial court, demonstrates that he was
incapable of adequately assisting in his own defense. (Merit Brief of
Appellant, p. 3.)
{¶ 10} “Fundamental principles of due process require that a
criminal defendant who is legally incompetent shall not be subjected
to trial.” State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433
(1995). If a defendant “lacks the capacity to understand the nature
and object of the proceedings against him, to consult with counsel,
and to assist in preparing his defense[,]” he may not stand trial. State
v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶
155. The same standard applies as to a defendant's competency to
enter a plea of guilty or no contest. See State v. Mink, 101 Ohio St.3d
350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 57, citing Godinez v.
Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).
{¶ 11} R.C. 2945.37 codifies this due process right, providing in
pertinent part:
(B) In a criminal action in a court of common pleas, * * *
[the] defense may raise the issue of the defendant's
competence to stand trial. If the issue is raised before the
trial has commenced, the court shall hold a hearing on the
issue as provided in this section. * * *
{¶ 12} R.C. 2945.371 provides that if the issue of a defendant's
competence is raised under R.C. 2945.37, the court may order up to
three evaluations of the defendant's present mental condition.
Further, R.C. 2945.37(E) states that “[t]he prosecutor and defense
counsel may submit evidence on the issue of the defendant's
competence to stand trial. A written report of the evaluation of the
defendant may be admitted into evidence at the hearing by
stipulation, but if either the prosecution or defense objects to its
admission, the report may be admitted under sections 2317.36 to
2317.38 of the Revised Code or any other applicable statute or rule.”
{¶ 13} We review a trial court's decision regarding a competency
evaluation for an abuse of discretion. State v. Curry, 2d Dist. Greene
No. 2012-CA-50, 2014-Ohio-3836, ¶ 40; State v. Cook, 2016-Ohio-
2823, 64 N.E.3d 350, ¶ 63 (5th Dist.); State v. Patton, 10th Dist.
Franklin No. 08AP-800, 2009-Ohio-1382, ¶ 8. “ ‘Abuse of
discretion’ has been defined as an attitude that is unreasonable,
arbitrary, or unconscionable.” State v. Jackson, 2d Dist.
Montgomery No. 23458, 2010-Ohio-2836, ¶ 56. “It is to be expected
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that most instances of abuse of discretion will result in decisions that
are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.” Id.
{¶ 14} In determining whether a defendant is competent to stand
trial, the test is “ ‘ “whether [the defendant] has sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding – and whether he has a rational as well as factual
understanding of the proceedings against him.” ’ ” State v. Neyland,
139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 32, citing
State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995),
quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4
L.Ed.2d 824 (1960).
{¶ 15} At Swartz's competency hearing, his trial attorney stipulated
as to the authenticity, findings, and admissibility of a forensic
evaluation report prepared by Dr. Massimo De Marchis of the
Forensic Psychiatry Center for Western Ohio. (7/2/19 Competency
Hearing Tr., p. 3 and Exh. I.) Dr. De Marchis opined that Swartz
was “capable of understanding the nature and the objectives of the
proceedings against him and assisting in his defense,” and that he
therefore was competent to stand trial. (Id., Exh. I, p. 2.)3 No
contrary evidence was presented.
{¶ 16} The trial court did not abuse its discretion by relying on the
uncontested findings of that report to find Swartz competent to stand
trial. Absent some conflicting indication at the time of the plea
hearing, we presume a defendant deemed competent to stand trial
likewise was competent to enter a plea of no contest to the charged
offenses. See State v. Smith, 2d Dist. Montgomery No. 26746, 2016-
Ohio-3361, ¶ 19. Swartz entered his no contest plea just nine days
after the competency hearing, and although he at that time claimed
to have suffered from depression and post-traumatic stress disorder
in the past, he affirmed that those conditions did not affect his ability
to understand the plea proceedings. (Plea Hearing Tr., p. 5.) Based
on the record, the trial court did not err by finding Swartz competent
to understand the nature of the proceedings against him.
{¶ 17} We are not dissuaded from that conclusion by Swartz's
reference to his use of inmate “kites” instead of legal motions to
request a new attorney and to try to withdraw his plea. A lay person's
lack of understanding of the appropriate procedures for seeking
court relief does not equate to an inability to assist in his own
defense; neither does it indicate his incompetence to stand trial.
Furthermore, at the time of Swartz's no-contest plea, his attorney
opined that Swartz “[a]bsolutely” was competent to enter that plea
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(Plea Hearing Tr., p. 5-6), and Swartz not only expressed his
understanding of the consequences of his plea, but also
demonstrated an ability to follow the proceedings and to respond
appropriately to the court's questions.
{¶ 18} Swartz's first assignment of error is overruled.
State v. Swartz, 2020-Ohio-5037 (Ohio App. 2nd Dist. Oct. 23, 2020).
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.
Comparing the decision of the Second District Court of Appeals with the United States
Supreme Court precedent cited above, it is clear the Second District’s decision is a completely
reasonable application of the relevant precedent. Swartz was given a competency hearing when it
was requested. The report of the forensic examiner, who is also the examiner very frequently used
by this Court in mental health evaluations, opined that Swartz was competent. No contradictory
evidence was presented and Swartz’s trial attorney both stipulated to admission of the report and
agreed with its conclusion. Swartz himself expressed no disagreement with the report.
Therefore the Second District’s decision is entitled to deference under both 28 U.S.C. §
2254(d)(1) and (d)(2). Given that deference, the First Ground for Relief is without merit and
should be dismissed on that basis.
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Ground Two: Double Jeopardy
In his Second Ground for Relief, Swartz claims his convictions violate his rights under the
Double Jeopardy Clauses of the federal and Ohio Constitutions.
Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C.
§ 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the
province of a federal habeas court to reexamine state court determinations on state law questions.
In conducting habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.);
Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, J. concurring). Thus determining
whether Swartz’s convictions violate the Ohio Constitution is beyond the scope of habeas corpus.
Swartz argues this claim in terms of Ohio’s allied offenses statute, Ohio Revised Code §
2941.25. The Second District Court of Appeals decided that the convictions were consistent with
the allied offenses statute. State v. Swartz, supra, ¶¶ 19-27. That determination of Ohio law is
binding on this Court. Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), quoting Bradshaw v. Richey,
546 U.S. 74, 76 (2005)(“We have repeatedly held that a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a federal court sitting
in habeas corpus.”), Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 2005); Vroman v. Brigano, 346
F.3d 598 (6th Cir. 2003); Caldwell v. Russell, 181 F.3d 731, 735-36 (6th Cir. 1999); Duffel v.
Dutton, 785 F.2d 131, 133 (6th Cir. 1986).
Nor does Ground Two state a claim for relief under the Double Jeopardy Clause itself.
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That 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). Here Swartz is basically arguing that he is being punished twice for the same offense. An
Ohio court of appeals decision of a double jeopardy claim which is limited to the application of
Ohio Rev. Code § 2941.25 is entirely dispositive of the federal double jeopardy claim. Jackson v.
Smith, 745 F.3d 206, 210 (6th Cir. 2014), citing State v. Rance, 85 Ohio St. 3d 632, 705 (1999),
overruled by State v. Johnson, 128 Ohio St. 3d 153 (2010).
What determines whether the constitutional prohibition against
multiple punishments has been violated is the state legislature’s
intent concerning punishment. Specifically, [w]ith respect to
cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from
prescribing greater punishment than the legislature intended.
Jackson v. Smith, 745 F.3d 206, 211 (6th Cir. 2014), quoting Missouri v. Hunter, 459 U.S. 359,
366 (1983)(internal quotation marks omitted). Ohio Rev. Code § 2941.25, and not the Blockburger
test determines whether a person has been punished twice for the same offense under Ohio law in
violation of the federal Double Jeopardy Clause. Jackson v. Smith, 745 F.3d 206, 213 (6th Cir.
2014).
The Ohio General Assembly did not intend that a person could rape his daughter twice on
separate dates and escape punishment for the second rape because the sexual misconduct was
repeated. Swartz’s Second Ground for Relief is without merit.
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Ground Three: Ineffective Assistance of Trial Counsel
In his Third Ground for Relief, Swartz asserts his trial attorney provided ineffective
assistance of trial counsel in several different ways.
The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
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that, under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of
a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,
379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
Swartz’s claim of ineffective assistance of trial counsel was presented to the Second
District Court of Appeals and decided as follows:
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{¶ 28} Swartz's final assignment of error contends that he was
denied his constitutional right to the effective assistance of counsel
by his trial attorney's failure both to move that all three charged
offenses be merged and to request that court costs be waived. Noting
that he was found to be indigent for purposes of court-appointed
counsel, Swartz maintains it was “reasonabl[y] probab[le] that the
trial court would have waived court costs had [his] counsel made the
request.” (Merit Brief of Appellant, p. 7.)
{¶ 29} We review alleged instances of ineffective assistance of trial
counsel under the two-prong analysis set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
and adopted by the Supreme Court of Ohio in State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). “Pursuant to those cases,
trial counsel is entitled to a strong presumption that his or her
conduct falls within the wide range of reasonable assistance.” State
v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31,
citing Strickland at 688. To warrant reversal of a conviction based
on ineffective assistance of counsel, it must be demonstrated that
trial counsel's conduct fell below an objective standard of
reasonableness and that his or her errors were serious enough to
create a reasonable probability that, but for the errors, the result of
the trial would have been different. Id. Hindsight is not permitted to
distort the assessment of what was reasonable in light of counsel's
perspective at the time, and a debatable decision concerning trial
strategy cannot form the basis of a finding of ineffective assistance
of counsel. State v. Cox, 2d Dist. Montgomery No. 25477, 2013-
Ohio-4941, ¶ 61, citing Mitchell at ¶ 31.
{¶ 30} Having determined above that Swartz's Count 3 sexual
battery conviction and his Count 1 rape conviction did not involve
allied offenses of similar import, we conclude that Swartz's trial
attorney did not perform deficiently by failing to pursue what would
have been a futile merger argument as to those offenses. We thus
turn to Swartz's challenge regarding his counsel's failure to seek a
waiver of court costs.
{¶ 31} Under R.C. 2947.23(A), a trial court is required to impose
“the costs of prosecution” against all convicted defendants and to
render a judgment for such costs against even those defendants who
are indigent. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989,
817 N.E.2d 393, ¶ 8. However, the trial court has the discretion to
waive court costs if the defendant moves for waiver. State v.
Hawley, 2d Dist. Montgomery No. 25897, 2014-Ohio-731, ¶ 13.
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{¶ 32} “A finding that a defendant is indigent for purposes of
appointed counsel does not shield the defendant from paying court
costs or a financial sanction.” State v. Felder, 2d Dist. Montgomery
No. 21076, 2006-Ohio-2330, ¶ 64. As the Supreme Court of Ohio
recently observed, “a determination of indigency alone does not rise
to the level of creating a reasonable probability that the trial court
would have waived costs had defense counsel moved the court to do
so.” State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d
560, ¶ 15. Thus, the fact that Swartz qualified for appointed counsel
is insufficient to demonstrate a reasonable probability that the trial
court would have deemed Swartz, who was only 36 at the time of
sentencing, unable to pay court costs in the future. See State v.
Lewis, 2d Dist. Greene No. 2011-CA-75, 2012-Ohio-4858, ¶ 22
(regarding future ability to pay fines). Consequently, Swartz cannot
demonstrate that he was prejudiced by his trial attorney's failure to
move for a waiver of court costs.
{¶ 33} Absent a showing of prejudice, Swartz cannot establish that
he was denied the effective assistance of counsel. His third
assignment of error is overruled.
State v. Swartz, supra.
As with Ground One, the Second District has here decided the ineffective assistance of trial
counsel claim on the merits, applying the appropriate federal standard under Strickland. Swartz
has not shown the decision is an unreasonable application of Strickland and it is therefore entitled
to deference. Ground Three should be dismissed on the merits.
Conclusion
In accordance with the foregoing analysis, the Magistrate Judge respectfully recommends
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
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should not be permitted to proceed in forma pauperis.
January 30, 2023
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.
#
s/ Michael R. Merz
United States Magistrate Judge
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