The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JONATHAN W. HALL, ) Case No. 3:21-cv-1664
)
Petitioner, ) Judge J. Philip Calabrese
)
v. ) Magistrate Judge Darrell A. Clay
)
TOM WATSON, Warden, )
)
Respondent. )
)
OPINION AND ORDER
Petitioner Jonathan Hall pled guilty to a specification enhancing the penalty
for his underlying offense that carried a potentially lengthy mandatory consecutive
sentence. At the change-of-plea hearing in State court, after he admitted his guilt to
that specification, the prosecutor advised the Court that it could not impose a
mandatory consecutive sentence either legally or factually. Despite its resulting
confusion, the State trial court proceeded to take Mr. Hall’s plea and impose a
sentence that did not include a term of imprisonment for that specification.
Instead of appealing or pursuing post-conviction relief, Petitioner filed a post-
sentence motion to withdraw his plea of guilty, which the State trial court denied.
On appeal, the State appellate court determined that the doctrine of res judicata
barred consideration of the motion because he failed to take a direct appeal. Then,
Petitioner sought a writ of habeas corpus on the basis of ineffective assistance of
counsel.
In his Report and Recommendation, the Magistrate Judge determined that
Petitioner indeed entered a plea that was not knowing and voluntary because he
faced the threat of a significant consecutive sentence that he was not advised could
not be imposed. Notwithstanding this constitutional violation, the Magistrate Judge
recommends denying the petition for a writ of habeas corpus based on procedural
default. Accordingly, this petition requires close review in light of the congressional
limitations on the issuance of the writ based on principles of comity, federalism, and
finality.
FACTUAL AND PROCEDURAL BACKGROUND
On October 19, 2017, a grand jury indicted Mr. Hall on one count of burglary
under Sections 2911.12(A)(2), 2911.12(D), and 2929.14(A)(3)(a) of the Ohio Revised
Code. (ECF No. 9-1, PageID #156.) Under Ohio law, this offense is a felony of the
second degree, carrying a penalty of two to eight years in prison with a presumption
of imprisonment. See Ohio Rev. Code § 2929.13(D)(1). On its face, the indictment
also charged Mr. Hall with a repeat violent offender specification under Section
2941.149(A) based on a conviction for aggravated robbery from 1993. (ECF No. 9-1,
PageID #156.) Such a specification authorizes an additional consecutive prison term
of one to ten years under Ohio law. See Ohio Rev. Code § 2929.14(B)(2)(a). Mr. Hall’s
conduct giving rise to these charges appears to result from a longstanding and serious
drug addiction, as does his criminal history supporting the specification. (See, e.g.,
ECF No. 1-5, PageID #55–57.)
A. State Conviction
Pursuant to a plea agreement, Mr. Hall agreed to plead guilty to the
substantive offense and the repeat violent offender specification. (ECF No. 9-1,
PageID #160.) On September 17, 2018, the State trial court conducted a change-of-
plea hearing addressing the burglary charge at issue in this habeas case and another
charge of escape, which also carried a repeat violent offender specification. (ECF
No. 1-5, PageID #36.) In the months leading up to the change of plea, Mr. Hall’s trial
counsel warned him that he could receive an additional ten years in prison on the
specification. (ECF No. 10, PageID #447.) At the morning of the hearing, Mr. Hall
still could not confirm whether the ten-year sentence on the specification applied or
not. (Id.) To avoid that additional penalty, Mr. Hall decided to plead guilty. (ECF
No. 1, PageID #16.) Just before the hearing began, Mr. Hall’s trial counsel had a
conversation about the issue with the prosecutor, but he did not inform Mr. Hall of
the substance of the conversation. (ECF No. 10, PageID #447–48.)
At the outset of the hearing, the prosecutor represented that Mr. Hall
“consent[s] that the Court find he is a repeat violent offender. . . . The Court at
sentencing would nonetheless have to consider the five factors set forth in
2929.14(B)(2)(a) in order to determine whether or not any additional prison term
would be appropriate under those repeat violent offender specifications.” (ECF
No. 1-5, PageID #37.) Through counsel, Mr. Hall indicated that he intended to plea
guilty to the burglary charge and to the repeat violent offender specification. (Id.,
PageID #38.) The State trial court advised Mr. Hall of the maximum penalties for
each charge:
THE COURT: Do you understand that with respect to the escape
charge, the maximum potential penalty could be up to eight years in
prison, the repeat violent offender specification would add ten years to
that, and the burglary is also eight years in prison, and the repeat
violent offender specification adds 10 years to that? Do you understand
that?
THE DEFENDANT: I do.
(Id., PageID #41.) In addition, the State trial court ensured the voluntariness of the
plea and reviewed the rights Mr. Hall would waive by entering a guilty plea. (See
generally id., PageID #39–44 & #49–51.)
Then, the prosecutor provided the factual basis for the plea, to which there was
no objection. (Id., PageID #44–49.) Regarding the repeat violent offender
specification, the prosecutor referenced Mr. Hall’s conviction from 1993 for “burglary
in violation of Revised Code Section 2911.01.” (Id., PageID #45.) Regarding the
burglary offense to which Mr. Hall pled guilty on September 17, 2018, the basis for
the plea included the following facts. On July 25, 2017, the local sheriff received a
phone call from a woman house sitting for two friends. When she returned to that
house from work, she noticed that the door had been forced open and a number of
items worth about $3,500 had been stolen. Several days later, some of the stolen
property was pawned, and the ensuing investigation identified Mr. Hall as the
suspect. (See generally id., PageID #45–47.) Later, he confessed to the burglary. (Id.,
PageID #47.)
Mr. Hall pled guilty to the burglary charge and to the repeat violent offender
specification. (Id., PageID #49–51; see also ECF No. 9-1, PageID #160.) After the
State trial court accepted the pleas of guilty, the prosecutor contradicted his position
from the outset of the hearing, when he advised that the State trial court would have
to analyze five factors under Ohio law to determine whether a term of imprisonment
would be appropriate on the repeat violent offender specification. Now, he advised
the State trial court that it could not impose a sentence under the repeat violent
offender specification as a matter of fact or a matter of law:
[PROSECUTOR]: . . . It’s the State’s obligation to advise the Court that
under 2929.14(B)(2)(a)(ii), in order for the Court to impose any time for
a repeat violent offender specification in either case, the Court would
have been required to make a factual finding that the underlying offense
involved an attempt to cause or a threat to cause serious physical harm
to a person or resulted in serious physical harm to a person.
As a matter of fact and as a matter of law, that did not occur in
either of the underlying cases, so I don’t believe the Court has a basis
for imposing time under the repeat violent offender specifications.
(ECF No. 1-5, PageID #52.) The presiding judge expressed his confusion. (Id.) In
further discussion with the prosecutor to clarify, the State trial court asked a simple
question to confirm that a penalty for the repeat violent offender specification is not
available as a matter of fact or law:
THE COURT: So the repeat violent offender penalty would not be
applicable in either case?
[THE PROSECUTOR]: Correct. There’s still a finding of guilt [on the
specification], but there’s no time that can be imposed under the
sentencing statute.
(Id., PageID #53.)
The State trial court sentenced Mr. Hall to eight years in prison, to be served
consecutive to the two-year sentence for the escape offense. (Id., PageID #58–59; ECF
No. 9-1, PageID #174.) Significantly, Mr. Hall did not appeal his conviction or
sentence (ECF No. 12, PageID #490), though he acknowledged in the plea agreement
that he had “a very limited right to appeal [the] sentence within 30 days” of the entry
of judgment (ECF No. 9-1, PageID #161).
B. Motion to Withdraw Guilty Plea
On April 19, 2019, more than six months after sentencing, Mr. Hall filed a
pro se motion to withdraw his guilty plea. (Id., PageID #179.) In his motion, Mr. Hall
raised two ineffective assistance of counsel claims that he contended made his plea
not knowing and voluntary. First, none of the three lawyers who represented him at
different times during the pendency of his burglary charge failed properly to
investigate availability of the repeat violent offender specification, resulting in a
gross misrepresentation of the time in prison he actually faced. (Id., PageID
#180–81.) Second, counsel did not inform him that, if he went to trial, the jury could
have been instructed on a lesser-included offense that carried a maximum of three
years in prison. (Id., PageID #185.) In discussing the details of his representation,
Mr. Hall referenced discussions and advice not appearing in the record of the case.
(Id., PageID #180–81.) He indicated that other correspondence and documents
supported his contentions about the advice he received, but he was not able to obtain
them due to his incarceration. (Id., PageID #181.)
On July 1, 2019, the State trial court denied Mr. Hall’s motion in its entirety.
(Id., PageID #198–203.) In doing so, a different judge on the court noted that claims
like those brought typically come in a motion for post-conviction relief. (Id., PageID
#199.) Because Mr. Hall brought a motion to withdraw his guilty plea instead, the
State trial court analyzed the motion under the different standards and procedures
for such a motion and reviewed only for manifest injustice because Mr. Hall failed to
seek withdrawal of his guilty plea before sentencing. (Id., PageID #199–200.)
“Normally,” the State trial court noted, “the ineffective assistance of counsel
arguments made by Hall would be barred by res judicata.” (Id., PageID #201.)
However, Mr. Hall relied on material outside the record. Therefore, the State trial
court did not apply res judicata or limit its review and went “on and address[ed]
whether or not Hall should be allowed to withdraw his plea.” (Id.)
Based on its review of the materials from outside the record that Mr. Hall
presented, the State trial court determined that, even if he received ineffective
assistance of counsel, Mr. Hall pled guilty knowingly and voluntarily. (Id., PageID
#202.) The State trial court found support for this determination in the record. Trial
counsel and the prosecutor discussed the sentence for the repeat violent offender
specification before the change of plea: “Hall acknowledges that prior to going on the
record, his attorney had discussions with the prosecutor regarding the [repeat violent
offender] time. This is evident from the prosecutor stating on the record that Hall
could not receive an enhanced sentence on the RVO specification.” (Id.) Additionally,
in the view of the State trial court, “whether the state would have made a different
plea offer if the conversation had occurred at an earlier date is entirely speculative.”
(Id.) In any event, the State trial court found that the plea colloquy fairly advised
Mr. Hall of his rights and the sentence he faced. (Id.) Finally, it rejected his
argument based on the lesser-included offense. (Id.)
On September 11, 2020, again proceeding pro se, Mr. Hall appealed the denial
of his motion to withdraw his guilty plea. (Id., PageID #234.) He raised two
assignments of error paralleling the two issues he asserted in support of his motion
in the State trial court. (Id., PageID #238.) On March 26, 2021, the State appellate
court affirmed the trial court’s judgment denying Mr. Hall’s motion to withdraw his
guilty plea. (Id., PageID #302.) Because it found that Mr. Hall’s motion relied on
evidence contained within the trial record, the State appellate court determined that
res judicata barred his claim for ineffective assistance of counsel. (Id., PageID #307–
08.) Specifically, it ruled:
Here, appellant argues trial counsel’s failures led to his guilty plea and
that those failures support a finding of manifest injustice. Specifically,
appellant argues that counsel should have investigated aspects of the
burglary charge more in depth and that counsel overstated his possible
prison exposure due to the repeat violent offender specification.
However, the evidence appellant relies upon is contained in the trial
court record and appellant does not rely on evidence outside of that
record. Thus, these arguments could have been raised in a prior
proceeding and the doctrine of res judicata acts as a bar.
(Id., PageID #308 (emphasis added).) Mr. Hall sought reconsideration (id., PageID
#311 & #319), and the appellate court denied the motion (id., PageID #325–26).
On April 16, 2021, Mr. Hall sought discretionary review at the Ohio Supreme
Court (id., PageID #328–45), which declined to hear the case (id., PageID #427).
C. Motion for Leave to File a Delayed Direct Appeal
On April 19, 2021, Mr. Hall moved for leave to file a delayed direct appeal of
his burglary conviction and sentence in the State appellate court. (Id., PageID #363.)
On May 18, 2021, the State appellate court denied the motion, holding that Mr. Hall
had not set forth sufficient reason for why he delayed his appeal for more than two
years. (Id., PageID #386.) Mr. Hall did not appeal that decision to the Ohio Supreme
Court.
D. Petition for a Writ of Habeas Corpus
On August 26, 2021, Mr. Hall filed a petition for a writ of habeas corpus,
asserting two grounds for relief. First, he argues that his trial counsel rendered
ineffective assistance by misstating the maximum sentence he faced. Therefore, his
guilty plea was not made knowingly or voluntarily. (ECF No. 1, PageID #5.) Second,
Petitioner claims that his trial counsel rendered ineffective assistance for the same
reasons raised in his motion to withdraw his guilty motion and related proceedings
in State court. (Id., PageID #7.) When Mr. Hall filed his petition, the proper
Respondent was Warden Neil Turner. Now, the Warden is Tom Watson, making him
the proper Respondent. See 28 U.S.C. § 2243; Fed. R. Civ. P. 25(d).
D.1. Report and Recommendation
In a Report and Recommendation, the Magistrate Judge recommended that
the Court dismiss the petition as procedurally defaulted. (ECF No. 12, PageID #488.)
In making this recommendation, the Magistrate Judge reviewed the factual and
procedural background of Petitioner’s conviction and subsequent proceedings in the
State courts. (Id., PageID #489–93.) The Magistrate Judge concluded: “although
Mr. Hall convincingly argues the trial court and defense counsel incorrectly informed
him about the maximum potential sentence before he pled guilty, his failure to pursue
this claim on direct appeal constitutes a procedural default that precludes this Court
from considering this claim.” (Id., PageID #505.)
After further review of the record from the State courts, the Magistrate Judge
determined that Mr. Hall pled guilty believing that he faced a sentence of eighteen
years. (Id., PageID #505–07.) In fact, however, he faced a sentence of only eight
years. (Id., PageID #507.) Accordingly, the Magistrate Judge recognized that the
plea colloquy “in no way informed Mr. Hall of the true nature of his maximum
sentence exposure.” (Id., PageID #508.)
Although these facts might appear to make his plea not knowing and voluntary
(id., PageID #507–08), the Magistrate Judge appreciated that the habeas standard
requires more (id., PageID #508). The Magistrate Judge addressed whether Mr. Hall
complied with the State’s procedural rules in presenting his claims and seeking
appropriate relief in State court, which he must do to obtain relief. (Id.) On this
score, the Magistrate Judge found that the State court record showed that Mr. Hall
could have pursued his arguments regarding ineffective assistance of counsel on
direct appeal. (Id., PageID #509.) For that reason, the Report and Recommendation
determined that claims supported by the record must be raised on direct appeal and,
if they are not, the doctrine of res judicata under Ohio law bars their review in post-
conviction proceedings. (Id.)
In making his recommendation, the Magistrate Judge took the unusual step of
acknowledging the “harsh result.” (Id., PageID #511.) That is, the Magistrate Judge
simultaneously recognized that Mr. Hall presented a credible violation of his
constitutional rights and that Congress struck a balance between the roles of State
and federal courts in providing a remedy for that violation. (Id.) Further, the
Magistrate Judge recommended against holding an evidentiary hearing and against
granting a certificate of appealability. (Id., PageID #512–13.)
D.2. Objections
Petitioner timely objected to the Report and Recommendation. (ECF No. 13.)
In his objection, Petitioner asserted that the State courts erred by applying the
doctrine of res judicata instead of “review[ing] the trial court decision for an abuse of
discretion.” (Id., PageID #515–16.) In short, he contends that the State courts should
not have barred review of the voluntariness of his post-sentencing motion to withdraw
his plea. (Id.) Also, he objects that the State courts came to an unreasonable
determination in light of the facts. (Id., PageID #516.)
STANDARD OF REVIEW
A district court judge may designate a magistrate judge to submit “proposed
findings of fact and recommendations for the disposition, by a judge of the court,” 28
U.S.C. § 636(b)(1)(B), of a petition for a writ of habeas corpus, which the Court does
by local rule, see LR 72.2. When reviewing a report and recommendation, if a party
objects within the allotted time, the district court is required to “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); United States
v. Walters, 638 F.2d 947, 949–50 (6th Cir. 1981). “Objections must be specific, not
general” and should direct the Court’s attention to a particular dispute. Howard v.
Secretary of Health & Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). “The filing of
objections to a magistrate’s report enables the district judge to focus attention on
those issues—factual and legal—that are at the heart of the parties’ dispute.”
Thomas v. Arn, 474 U.S. 140, 147 (1985).
Upon review, the court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1)(C). Importantly, the Court’s job is not to conduct a free-wheeling
examination of the entire report and recommendation, but only to address any
specific objections that a party has advanced to some identified portion of it.
Accordingly, it is the Court’s task in this matter to review the Magistrate Judge’s
report and recommendation de novo, based on the specific objections Petitioner raises.
GOVERNING LEGAL STANDARD
Where a petitioner “is in custody in violation of the Constitution or laws or
treaties of the United States,” he is entitled to a writ of habeas corpus. 28 U.S.C.
§§ 2241(c)(3) & 2254(a). At bottom, the writ tests the fundamental fairness of the
State court proceedings resulting in the deprivation of the petitioner’s liberty. See,
e.g., Brown v. Allen, 344 U.S. 443, 463 (1953); Powell v. Collins, 332 F.3d 376, 388
(6th Cir. 2003) (citing Estelle v. McGuire, 502 U.S. 62, 67–68 (1991)); Skaggs v.
Parker, 235 F.3d 261, 266 (6th Cir. 2000).
28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim –
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
“With the AEDPA, Congress limited the source of law for habeas relief to cases
decided by the United States Supreme Court.” Herbert v. Billy, 160 F.3d 1131, 1135
(6th Cir. 1998); see also Williams v. Taylor, 529 U.S. 362, 412 (2000).
A State court adjudication is “contrary to” Supreme Court precedent under
Section 2254(d)(1) “if the state court arrives at a conclusion opposite to that reached
by this Court on a question of law,” or “if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent” and arrives
at a different result. Williams, 529 U.S. at 405. “Avoiding these pitfalls does not
require citation of [Supreme Court] cases—indeed, it does not even require awareness
of [the] cases, so long as neither the reasoning nor the result of the state-court
decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).
Under Section 2254(d)(1), an unreasonable application of federal law is
different from an incorrect application of federal law. See Harrington v. Richter, 562
U.S. 86, 101 (2011) (citing Williams, 529 U.S. at 410). A State court adjudication
involves “an unreasonable application of” Supreme Court precedent under Section
2254(d)(1) in one of two ways: (1) if the State court identifies the correct governing
legal rule from the Supreme Court’s cases but unreasonably applies it to the facts of
the particular State prisoner’s case; or (2) if the State court either unreasonably
extends a legal principle from the Court’s precedent to a new context where it should
not apply or unreasonably refuses to extend that principle to a new context where it
should apply. See Williams, 529 U.S. at 407.
I. Procedural Default
Generally, a petitioner must demonstrate that he has “exhaust[ed] all
available opportunities to pursue his claim in state court.” Gerth v. Warden, Allen
Oakwood Corr. Inst., 938 F.3d 821, 826 (6th Cir. 2019). Further, a federal court may
not consider a habeas petition unless a State prisoner has presented his claim to the
State courts in accordance with their procedural rules. See Shinn v. Ramirez, 596
U.S. 366, 371 (2022). A petitioner may procedurally default a claim by failing to raise
it in State court and pursue it through the State’s appellate review procedures.
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). Where the petitioner has
failed to do so, and the State courts would dismiss or deny the claim on that basis,
the federal court must do the same because the petitioner has procedurally defaulted
the claim. Shinn, 596 U.S. at 371. If State law no longer allows the petitioner to
raise or appeal the claim at the time of the habeas petition, the claim is procedurally
defaulted. Id. Procedural default may be excused where a petitioner can show that
an external factor prevented him from complying with the procedural rule at issue,
through no fault of his own, and that the alleged constitutional violation resulted in
actual prejudice. Coleman v. Thompson, 501 U.S. 722, 753 (1991).
After pleading guilty, Petitioner failed to file a direct appeal. As relevant here,
on direct appeal, Ohio law afforded Mr. Hall the opportunity to challenge his
conviction and sentence, including the voluntariness of his plea, and to raise the issue
of the effectiveness of his counsel in connection with his guilty plea. See State v.
Ketterer, 111 Ohio St. 3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶¶ 13–14 & 75–90. Of
course, on direct appeal, a claim of ineffective assistance of counsel would be limited
to the face of the record. That is why Ohio creates the opportunity for post-conviction
relief. See Ohio Rev. Code § 2953.21. Such a petition affords an opportunity in certain
limited circumstances for discovery or expansion of the record made on direct appeal.
See id. § 2953.21(B). Under Ohio law, post-conviction relief provides “the exclusive
remedy by which a person may bring a collateral challenge to the validity of a
conviction or sentence in a criminal case.” Id. § 2953.21(J). Generally, such a petition
must be brought within one year of the filing of the transcript in the State appellate
court. See id., § 2953.21(A)(2)(a). But Mr. Hall failed to file a post-conviction petition,
which might have permitted him to develop a record in support of his claims of
ineffective assistance of counsel.
Significantly, when Mr. Hall filed a post-sentence motion to withdraw his plea,
the State trial court noted that he did not file a petition for post-conviction relief.
(ECF No. 9-1, PageID #199.) Ohio law treats post-conviction petitions differently
from motions to withdraw a guilty plea. See State v. Bush, 96 Ohio St. 3d 235, 2002-
Ohio-3993, 773 N.E.2d 522, ¶ 14. Rule 32.1 of the Ohio Rules of Criminal Procedure
governs a motion to withdraw a guilty plea, like the one Mr. Hall filed. And the State
trial court recognized as much. (ECF No. 9-1, PageID #199–200.) Still, the State
trial court considered Mr. Hall’s arguments based on facts outside the record, though
it ultimately decided not to allow him to withdraw his plea based on (1) the governing
standard for claims of ineffectiveness of counsel involving guilty pleas, and (2) the
face of the record and its determination that the change-of-plea colloquy sufficiently
established the voluntariness of the plea. (Id., PageID #200–02.) If the State trial
court’s determination sufficed on habeas review to raise and preserve Mr. Hall’s claim
for ineffective assistance of counsel, the Court could not say that its adjudication of
the issue constituted an unreasonable application of clearly established federal as
determined by the Supreme Court.
But the State trial court’s ruling was not the last reasoned decision of the State
courts. On appeal, the State appellate court reviewed the decision not to allow
Mr. Hall to withdraw his guilty plea. (Id., PageID #304.) It examined whether res
judicata barred Mr. Hall’s motion because of his failure to file a direct appeal. (Id.,
PageID #306–07.) Though it did not have to do so, it determined that Mr. Hall “does
not rely on evidence outside of that record” from the trial court record. (Id., PageID
#308.) Therefore, it applied the doctrine of res judicata because Mr. Hall could have
raised ineffective assistance of counsel on direct appeal. (Id.) Because “res judicata
fully bars consideration” of Mr. Hall’s motion to withdraw his guilty plea, the State
appellate court found “no abuse of discretion in denying” the motion. (Id., PageID
#309.)
Res judicata constitutes an adequate and independent State procedural ground
that bars further review of a claim in federal court. See Monzo v. Edwards, 281 F.3d
568, 577 (6th Cir. 2002). Petitioner makes no showing of cause to set aside this
procedural bar. Nor does the record show a fundamental miscarriage of justice from
enforcing the State’s procedural bar. Indeed, Mr. Hall admitted his guilt.
For these reasons, the Court OVERRULES Petitioner’s objection to the
Magistrate Judge’s Report and Recommendation.
II. Unreasonable Factual Determination
Under Section 2254(d)(2), a federal court may issue a writ of habeas corpus
only where the State court decision “was based on an unreasonable determination of
the facts in light of the evidence presented in the State proceeding.” A State court’s
factual determination is not unreasonable simply because a federal habeas court
would have reached a different conclusion in the first instance. Wood v. Allen, 558
U.S. 290, 301 (2010). Even where reasonable minds reviewing the record might
disagree about the reasonableness of a factual determination, on habeas review more
is required to set aside the facts determined in State court. Id. (quoting Rice v.
Collins, 546 U.S. 333, 341–42 (2006)).
In any habeas proceeding, “a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1). Clear and convincing evidence requires a firm belief or abiding
conviction that what is alleged is highly probable. Kelley v. Apria Healthcare, LLC,
232 F. Supp. 3d 983, 1003 (E.D. Tenn. 2017); Automotive Techs. Int’l., Inc. v. Delphi
Corp., 776 F. Supp. 2d 469, 477 (E.D. Mich. 2011); Cooney v. Bob Evans Farms, Inc.,
645 F. Supp. 2d 620, 629 (E.D. Mich. 2009); In re Bowling, 314 B.R. 127, 135 (S.D.
Ohio 2004).
In his objection, Petitioner contends that the State trial court came to an
unreasonable determination in light of the facts. (ECF No. 13, PageID #516.)
Presumably, Petitioner refers to the determination of the State courts disposing of
his post-sentencing motion to withdraw his plea. Under Section 2254(e)(1), this
argument suffers from a fatal problem: the record contains few facts regarding
ineffective assistance of counsel or otherwise demonstrating that Mr. Hall’s plea was
not consistent with due process. As noted, Mr. Hall had the opportunity to develop
that record through post-conviction proceedings under Ohio law but did not do so.
Otherwise, the facts on which this argument depends consist largely of procedural
matters and questions of law. Ultimately, the State appellate court limited its review
to the trial record—that is, to the change-of-plea colloquy. Unlike the State trial
court, it did not credit Mr. Hall’s representations about his interactions with his trial
counsel that went outside the record. But even the State trial court’s consideration
of those additional facts, which credited Mr. Hall’s version of events, declined to find
ineffective assistance of counsel because of the colloquy.
Petitioner’s contention might refer to the State trial court’s decision to accept
the plea in the first instance. But Mr. Hall signed a plea agreement. He engaged in
a colloquy and admitted his guilt. Whatever confusion the State trial judge expressed
about application of the repeat violent offender specification traced more to the
position of the prosecutor than to any question of the voluntariness of the plea.
Indeed, the State trial judge expressed no concern about the voluntariness of his plea
at any point during the change-of-plea hearing. And the subsequent State trial judge
who reviewed Mr. Hall’s post-sentence motion to withdraw his plea expressed none
after a thorough review of the record (and Mr. Hall’s extra-record representations).
For these reasons, Petitioner cannot carry his burden of establishing that the
factual determinations in the State court record are not correct or that any such error
entitles him to a writ under Section 2254(d)(2).
CERTIFICATE OF APPEALABILITY
Without a certificate of appealability, a habeas petitioner cannot appeal a final
order in a habeas proceeding. 28 U.S.C. § 2253(c)(1). Issuance of a certificate of
appealability requires a petitioner to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). This means that the petitioner must
show that reasonable jurists could find the district court’s determination of the
relevant constitutional claims debatable or incorrect. Tennard v. Dretke, 542 U.S.
274, 282 (2004). The petitioner need not show that the appeal would succeed to be
eligible for a certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322, 337
(2003).
In this case, Petitioner makes a substantial showing of the denial of a
constitutional right. As the Magistrate Judge explained in the Report and
Recommendation, the record raises at least a serious question whether Mr. Hall
entering a knowing and voluntary plea. Given the procedural complexities attending
federal habeas practice, Ohio post-conviction procedure, and the interplay between
the two, the Court finds that reasonable jurists could fairly debate the determination
that procedural default bars consideration of Petitioner’s claims. This is particularly
so, among other reasons, because ineffective assistance of counsel may excuse a
procedural default, and reasonable jurists could so determine based on the
performance of counsel on the face of the record in this case. For these reasons, the
Court GRANTS a certificate of appealability for Mr. Hall to raise his claims of
ineffective assistance of counsel.
CONCLUSION
For the foregoing reasons, the Court OVERRULES Petitioner’s objections
(ECF No. 13), ADOPTS the Magistrate Judge’s Report and Recommendation (ECF
No. 12), and DENIES and DISMISSES the petition for a writ of habeas corpus (ECF
No. 1). Further, the Court GRANTS a certificate of appealability on the issue of
ineffective assistance of counsel.
SO ORDERED.
Dated: January 22, 2025
J.PhilipCalabrese
United States District Judge
Northern District of Ohio
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