Fenstermaker v. Warden Southeastern Correctional Inst.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

TONY FENSTERMAKER, : Case No. 2:24-cv-162

:

Petitioner, :

: Judge James L. Graham

vs. : Magistrate Judge Elizabeth P. Deavers

:

WARDEN, SOUTHEASTERN :

CORRECTIONAL INSTITUTION :

:

Respondent. :

REPORT AND RECOMMENDATIONS

Tony Fenstermaker, a state prisoner proceeding with counsel, has filed a petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court to consider the

Petition (ECF No. 1), the Return of Writ (ECF No. 7), Petitioner’s Traverse (ECF No. 12), and the

state court record. (ECF Nos. 6, 6-1, 6-2, 13-1). For the reasons that follow, it is

RECOMMENDED that the petition be DENIED and this action be DISMISSED WITH

PREJUDICE.

I. FACTUAL BACKGROUND

On December 10, 2020, a Delaware County, Ohio grand jury indicted Fenstermaker in

Case No. 20 CRI 12 0772 on seven counts of Pandering Sexually Oriented Matter Involving a

Minor in violation of Ohio Revised Code § 2907.322(A)(1) and two counts of Gross Sexual

Imposition in violation of O.R.C. § 2907.05(A)(1). (ECF No. 6 at PageID# 32-37). Fenstermaker

was indicted a second time on March 26, 2021, in Case No. 21 CRI 03 0176 on three counts of

Having Weapons While Under Disability, in violation of O.R.C. § 2923.13 (A)(2).

The following represents the relevant facts and procedural history as recounted by the Fifth

District Court of Appeals (“Court of Appeals”):

{¶4} The parties…reached a resolution on both cases and a plea hearing was set for

June 29, 2021. A visiting judge presided over the June 29, 2021, hearing. A

Crim.R.11(F) plea agreement was signed by Fenstermaker and his attorney in each

case on June 28, 2021. The agreements were filed in each case on June 30, 2021.

{¶5} On June 29, 2021, the plea hearing began with the 20 CRI 12 0772 case.

Pursuant to the plea agreement, the state dismissed counts 5, 6, and 7 of the

Indictment. The Court then proceeded,

THE COURT: Okay. So, Mr. Fenstermaker, are you voluntarily pleading

guilty to Counts 1 through 4, the pandering charges,

second degree felonies, and Counts 8 and 9, gross sexual

imposition, fourth degree felonies? Are you voluntarily

pleading guilty to those charges?

DEFENDANT: Yes, Your Honor.

THE COURT: Are you aware that when you enter a guilty plea to these

charges, you allow the Court to find you guilty and you

give up a number of constitutional rights?

You give up the right to have a jury trial on these charges.

At that trial you’d have a right to confront and cross-

examine anyone who testifies against you. You’d have a

right to issue subpoenas to get witnesses here to testify on

your behalf. You’d have the right to require the State to

prove your guilt beyond a reasonable doubt. You’d have

the right to remain silent throughout the trial. And you

would have the right to appeal if any Court rulings or jury

verdicts or Court verdicts went against you in a trial. Are

you voluntarily giving up those rights with regard to these

four second degree felonies of pandering and these two

fourth degree felonies of gross sexual imposition?

DEFENDANT: Yes, Your Honor.

The trial court continued with the colloquy in compliance with Crim.R. 11(C)(2)(a)

and (b) by informing Fenstermaker of the nature of the charges against him, the

maximum penalties involved, his eligibility for probation, and the required sex

offender registration associated with the convictions. Fenstermaker acknowledged

he understood. The trial court inquired if any promises or threats were made to

Fenstermaker to obtain his plea. Fenstermaker answered in the negative. The trial

court further inquired if the Fenstermaker understood a guilty plea is an admission

to the truth of the charges against him. Fenstermaker again confirmed he

understood. The trial court further reviewed the Tier I sexual classification

registration and reporting requirements with Fenstermaker. Fenstermaker informed

the trial judge that he had been advised and understood the sexual offender

classification and reporting requirements.

{¶6} The trial court then requested the state provide a statement of facts concerning

the 20 CRI 12 0772 case. During this recitation, some confusion arose between the

parties. The state insisted that Fenstermaker had touched the “vagina” of the victim;

the defenses preferred the state use the term “erogenous zone.” The trial judge and

counsel then entered into a discussion wherein all parties agreed the distinction

would have no effect on the plea agreement. At the time, the state was unwilling to

amend its statement of facts. The parties agreed to continue the hearing for

Fenstermaker to review discovery previously restricted to counsel only. The plea

was continued to the next day, June 30, 2021.

{¶7} The parties returned the next day on June 30, 2021, to complete the plea. The

trial court announced the cases and then proceeded to advise Fenstermaker of the

maximum penalties and fines with respect to the 20 CRI 12 0772 case. The trial

court further informed Fenstermaker of the mandatory sex offender registration.

The trial court then advised Fenstermaker of the potential for post-release control

and the consequences for violating this supervision. Fenstermaker confirmed he

understood. The state then recited the statement of facts, changing its previous

language to include the touching of “multiple erogenous zones” rather than the

touching of breasts and vagina. No changes were made to the plea agreement. The

trial court again inquired if the Fenstermaker was pleading voluntarily, and then

Fenstermaker responded in the affirmative. The trial court also inquired if any

promises or threats were made to obtain Fenstermaker’s plea. Fenstermaker

responded in the negative. The trial court then held the following colloquy with

Fenstermaker:

THE COURT: Okay. Thank you. Do you admit that you committed the

crimes of sexual -- of pandering sexually oriented

material involving a minor as alleged in Counts 1, 2, 3,

and 4? Do you admit that you committed those crimes?

DEFENDANT: Yes. Yes, Your Honor.

THE COURT: And do you admit that you committed the crime of gross

sexual imposition as alleged in Counts 8 and 9?

DEFENDANT: Yes, Your Honor.

THE COURT: Okay. Do you understand the nature of the charges and

the possible defenses that you might have?

DEFENDANT: I do, Your Honor.

THE COURT: All right. Are you satisfied with your attorney’s advice

and confidence?

DEFENDANT: Yes, Your Honor.

THE COURT: And are you under-currently under the influence of any

alcohol or drugs?

DEFENDANT: No, Your Honor.

THE COURT: Okay. Then I will accept the -- the pleas and find Mr.

Fenstermaker guilty of pandering sexually oriented

material involving a minor, second degree felonies as

alleged in Counts 1, 2, 3, and 4. I’ll enter nolle prosequi

as to Counts 5, 6, and 7. And I will find the defendant

guilty of Counts 8 and 9, gross sexual imposition.

After accepting Fenstermaker’s pleas in case number 20 CRI 12 0772, the following

exchange took place,

MR. WALKER: Your Honor, I don’t know if you still intend to do this

later -- I don’t mean to rush you -- but we still need to do

the plea in the second of the two cases, in 0176.

THE COURT: I’m sorry. I couldn’t hear you very well. Would you—

MR. WALKER: Your Honor, we still need to complete the plea in 21CR

03 0176. I’m sorry if you had already planned to do that.

I just wanted to remind the Court.

MR. KOFFEL: There’s a weapons under disability, a second indictment,

Your Honor. Probation did a home visit, found some

firearms.

THE COURT: Okay.

MR. HARRIS: Do you have that one?

THE COURT: I probably have it here.

The trial court advised Fenstermaker of the maximum penalties and fines. Further,

pursuant to the plea agreement the state agreed to dismiss Count 2 and Count 3 of

the Indictment. The following exchange the took place,

THE COURT: Do you -- do you admit that you committed the crime of

having weapons under disability as charged in –

DEFENDANT: Yes, Your Honor.

The trial court advised Fenstermaker of the potential for post release control and

the consequences for violating this supervision. The trial court also inquired if any

promises or threats were made to obtain Fenstermaker’s plea. Fenstermaker

responded in the negative. After a rendition of the facts pertaining to Case Number

21 CRI 03 0176, the trial court accepted Fenstermaker’s plea and found him guilty.

{¶8} The sentencing hearing took place on August 9, 2021, and the court imposed

an aggregate 8 year prison term. The sentencing entry was filed August 10, 2021.

(ECF No. 6 at PageID# 160-165).

On September 9, 2021, Fenstermaker filed notices of appeal to the Court of Appeals in

both cases. (Id. at PageID# 101-105). Fenstermaker’s brief raised two assignments of error:

(1) Appellant’s plea colloquy is invalid and violates due process of law because the

trial court failed to strictly comply with Crim.R.11.

(2) The trial court’s findings of guilt and the sentences are void because Mr.

Fenstermaker never entered a plea of guilty or nolo contendere.

(Id. at PageID# 111).

On February 8, 2022, the Court of Appeals issued a consolidated decision affirming the

convictions in Case No. 20 CRI 12 0772 but vacating the conviction for Having Weapons Under

Disability in Case No. 21 CRI 03 0176. (Id. at PageID #159-173). The Court of Appeals denied

Fenstermaker’s motion for reconsideration. (Id. at PageID# 175-193). On remand, the state

dismissed the charge for Having Weapons Under Disability in Case No. 21 CRI 03 0176 without

prejudice. (Id. at PageID# 233, 235).

Fenstermaker filed a Notice of Appeal with Supreme Court of Ohio and a Memorandum

in Support of Jurisdiction. (Id. at PageID# 195-209). On October 11, 2022, the Supreme Court of

Ohio declined jurisdiction. (Id. at PageID# 228).

On August 2, 2022, Fenstermaker filed an Application for Reopening his Appeal pursuant

to App. R. 26(B). (Id. at PageID# 237-246). He raised two assignments of error:

(1) Appellate counsel was ineffective for failing to raise the issue that trial counsel

was ineffective for failing to raise the issue that the state never provided a bill

of particulars, prior to defendant/appellant’s change of plea in violation of

appellant’s right to due process under the Sixth Amendment to the United States

Constitution.

(2) Appellate counsel was ineffective for failing to raise the issue that trial counsel

was ineffective for failing to raise the issue that the state committed

prosecutorial misconduct.

(Id. at PageID# 239-244). On September 12, 2022, the Court of Appeals denied Fenstermaker’s

application. (Id. at PageID# 258-266). He subsequently filed a Notice of Appeal to the Supreme

Court of Ohio, which declined jurisdiction. (Id. at PageID# 268-292, 307).

II. FEDERAL HABEAS PROCEEDINGS

On January 16, 2024, Fenstermaker filed the instant federal habeas petition. He asserts four

grounds for relief:

GROUND ONE: Petitioner’s plea was invalid because the trial court failed to strictly

comply with Crim. R. 11.

Supporting Facts: Petitioner was not advised of any of his constitutional rights under

Crim. R. 11(C).

GROUND TWO: Petitioner never entered a plea of guilty thus voiding his

sentences.

Supporting Facts: The tacit acquiescence to plead is insufficient and strict compliance

is essential, with Crim. R. 11. The colloquy in the instant case is not

in compliance with constitutional requirements.

GROUND THREE: Ineffective assistance of appellate counsel for failing to raise the

issue that trial counsel was ineffective for failing to raise the issue

that the state never provided a bill of particulars.

Supporting Facts: Defendant/Appellant’s change of plea hearing in violation of

Appellant’s right to due process under the Sixth Amendment to the

constitution.

GROUND FOUR: Appellate counsel was ineffective for failing to raise the issue that

the state committed prosecutorial misconduct.

Supporting Facts: The state prevaricated and made false statement entered into the

record that petitioner was visiting sex sites while out on bond via his

home computer and/or phone. Trial counsel was ineffective for

failing to request a suppression hearing of state’s false evidence and

unsupported verbal character assassination of petitioner.

(ECF No. 1 at PageID# 7, 9, 10, 12).

On May 13, 2024, Respondent filed a Return of Writ. (ECF No. 7). Respondent contends

that Grounds One and Two are non-cognizable in federal habeas review (id. at PageID# 541-542,

544), Grounds Three and Four are procedurally defaulted (id. at PageID# 545-548), and all four

grounds for relief lack merit. (Id. at PageID# 543, 545, 549-552). Fenstermaker filed a Traverse

on August 15, 2024, disputing Respondent’s procedural defenses and arguing the merits of his

claims. (ECF No. 12). Fenstermaker withdrew Ground Four in his Traverse. (Id. at PageID# 577).

III. STANDARDS OF REVIEW

A. AEDPA

The statutory authority of federal courts to issue habeas corpus relief for persons in state

custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). The United States Supreme Court has described AEDPA as “a

formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in

state court” and emphasized that courts must not “lightly conclude that a State’s criminal justice

system has experienced the ‘extreme malfunction’ for which federal habeas relief is the remedy.”

Burt v. Titlow, 571 U.S. 12, 20 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011));

see also Renico v. Lett, 559 U.S. 766, 773 (2010) (“AEDPA...imposes a highly deferential standard

for evaluating state–court rulings and demands that state-court decisions be given the benefit of

the doubt.”) (internal quotation marks, citations, and footnote omitted).

AEDPA limits the federal courts’ authority to issue writs of habeas corpus and forbids a

federal court from granting habeas relief with respect to a “claim that was adjudicated on the merits

in State court proceedings” unless the state-court decision either:

(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.

28 U.S.C. § 2254(d).

The United States Court of Appeals for the Sixth Circuit has explained the meaning of the

standards found in § 2254(d)(1) as follows:

Under the “contrary to” clause, a federal habeas court may grant the

writ “if the state court applies a rule different from the governing

law set forth in our cases, or if it decides a case differently than we

have done on a set of materially indistinguishable facts.” Bell v.

Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)

(citing Williams v. Taylor, 529 U.S. 362, 405–06, 120 S.Ct. 1495,

146 L.Ed.2d 389 (2000)). Under the “unreasonable application”

clause, a federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from the Supreme

Court’s decisions but unreasonably applies the law or bases its

decision on an unreasonable determination of the facts, in light of

the record before the state court. Harrington v. Richter, 562 U.S. 86,

100, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams, 529 U.S. at

412–13, 120 S.Ct. 1495.

Lang v. Bobby, 889 F.3d 803, 810 (6th Cir. 2018).

Moreover, under § 2254(d)(2), a state court’s factual determination is not “unreasonable”

merely because the federal habeas court would have reached a different conclusion. Wood v. Allen,

558 U.S. 290, 301 (2010). Instead, a state court’s factual findings are “only unreasonable where

they are ‘rebutted by clear and convincing evidence’ and do not have support in the record.” Moritz

v. Woods, 692 F. App’x 249, 254 (6th Cir. 2017) (quoting Pouncy v. Palmer, 846 F.3d 144, 158

(6th Cir. 2017)) (internal quotation marks omitted). Moreover, “[f]actual determinations by state

courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1),

and a decision adjudicated on the merits in a state court and based on a factual determination will

not be overturned on factual grounds unless objectively unreasonable in light of the evidence

presented in the state-court proceeding[.]” Ayers v. Hudson, 623 F.3d 301, 308 (6th Cir. 2010)

(quoting Miller–El v. Cockrell, 537 U.S. 322, 340 (2003)).

The burden of satisfying AEDPA’s standards rests with the petitioner. See Cullen v.

Pinholster, 563 U.S. 170, 181 (2011).

B. Procedural Default

In recognition of the equal obligation of the state courts to protect the constitutional rights

of criminal defendants, and to prevent needless friction between the state and federal courts, a state

criminal defendant with federal constitutional claims is required to first present those claims to the

state courts for consideration. 28 U.S.C. § 2254(b), (c). If the prisoner fails to do so, but still has

an avenue open to present the claims, then the petition is subject to dismissal for failure to exhaust

state remedies. Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard v. Connor,

404 U.S. 270, 275–78 (1971)). Where a petitioner has failed to exhaust claims but would find

those claims barred if later presented to the state courts, “there is a procedural default for purposes

of federal habeas.” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

Over time, the term “procedural default” has come to describe a situation where a person

convicted of a crime in a state court fails (for whatever reason) to properly present a particular

claim to the highest court of the state so that the state has a fair chance to correct any errors made

in the course of the trial or the appeal, before a federal court intervenes in the state criminal

process. This “requires the petitioner to present ‘the same claim under the same theory’ to the

state courts before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552–53 (6th

Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of

“fairly presenting” a claim to the state courts is that a habeas petitioner must do so in a way that

gives the state courts a fair opportunity to rule on the federal law claims being asserted. That

means that if the claims are not presented to the state courts in the way in which state law requires,

and the state courts therefore do not decide the claims on their merits, neither may a federal

court. As the Supreme Court found in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions

of federal law which were not resolved on the merits in the state proceeding due to [the] failure to

raise them there as required by state procedure” also cannot be resolved on their merits in a federal

habeas case – that is, they are “procedurally defaulted.” It is well settled that “[a] common

example of a procedural default is a failure to raise a claim in state court in a timely

manner.” Gibbs v. Huss, 12 F.4th 544, 550 (6th Cir. 2021).

To determine whether procedural default bars a habeas petitioner’s claim, courts in the

Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986);

see also McNeill v. Bagley, 10 F.4th 588, 595 (6th Cir. 2021) (citing the four-part Maupin

standard). First, the court must determine whether there is a state procedural rule that is applicable

to the petitioner’s claim and whether the petitioner failed to comply with the rule. Second, the

court must determine whether the state courts actually enforced the state procedural

sanction. Third, the court must determine whether the forfeiture is an adequate and independent

state ground on which the state can rely to foreclose review of a federal constitutional

claim. Finally, if the court determines that a state procedural rule was not complied with and the

rule has an adequate and independent state ground, then the petitioner may still obtain review of

his or her claims on the merits if the petitioner establishes: (1) cause sufficient to excuse the default

and (2) that he or she was actually prejudiced by the alleged constitutional error. Maupin, 785 F.2d

at 138. In order to establish cause, a petitioner must show that “some objective factor external to

the defense” impeded the petitioner's efforts to comply with the state's procedural rule. Murray v.

Carrier, 477 U.S. 478, 488 (1986). The petitioner bears the burden of showing cause and

prejudice. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001).

IV. DISCUSSION

A. Procedural Default

Respondent argues that Ground Three is procedurally defaulted because the Court of

Appeals dismissed it due to Fenstermaker’s failure to comply with App.R. 26(B)(2)(d). (ECF No.

6 at PageID# 545-548). Fenstermaker argues that Ground Three is not procedurally defaulted

because the Court of Appeals addressed the claim on the merits. (ECF No. 12 at PageID# 564-

565).

Central to this ground, the Court of Appeals found that Fenstermaker failed to include a

sworn statement of the basis for the claim that his appellate counsel’s representation was deficient.

(ECF No. 6 at PageID# 262). In discussing this omission, the Court of Appeals concluded:

Because Fenstermaker has not complied with App.R. 26(B)(2)(d), we need not

address the merits of his application to reopen as that failure independently warrants

the denial of the application. However, in the interest of justice, we will address

Fenstermaker's proposed assignments of error.

(Id. at PageID# 263).

“[A] procedural default does not bar consideration of a federal claim on…habeas review

unless the last state court rendering a judgment in the case clearly and expressly states that its

judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). Arguably, the

Court of Appeals was equivocal about whether it enforced App.R. 26(B)(2)(d), but the Court

cannot say that it “clearly and expressly” dismissed Ground Three on a state procedural bar. For

this reason, Ground Three is not procedurally defaulted and will be addressed on the merits.

B. Merits

i. Grounds One and Two

In Grounds One and Two Fenstermaker challenges the voluntariness of his plea.

Particularly, he contends that the trial court denied his constitutional rights because it failed to

comply with Ohio Criminal Rule 11 (ECF No. 1 at PageID# 7) and claims that he never officially

entered a plea of guilty. (Id. at PageID# 9). Respondent argues that Grounds One and Two are non-

cognizable and lack merit. (ECF No. 7 at PageID# 541-543).

A claim that the trial court failed to comply with Ohio Criminal Rule 11 is a state-law claim

is not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“[I]t

is not the province of a federal habeas court to reexamine state-court determinations on state-law

questions.”); Rose v. Warden, Chillicothe Corr. Inst., No. 1:15-cv-353, 2018 WL 1425971, at *7

(S.D. Ohio Mar. 22, 2018) (claim that the trial court failed to follow Ohio Criminal Rule 11 when

accepting a guilty plea is not cognizable on federal habeas review), report and recommendation

adopted, No. 1:15-cv-353, 2018 WL 4566324 (S.D. Ohio Sept. 24, 2018).

Indeed, Fenstermaker argued in his direct appeal briefs that the trial court failed to strictly

comply with the requirements of Ohio law (ECF No. 6 at PageID# 121-130, 201-208) and even

acknowledged that the analysis would be “looser” if his plea had been accepted in federal court.

(Id. at PageID# 155). Fenstermaker’s arguments in Grounds One and Two that he is entitled to

relief because the trial court failed to comply with the strict requirements of Ohio law should be

dismissed as state-law claim that is non-cognizable in federal habeas review.

That said, the Court broadly construes Ground One along with Ground Two as asserting a

claim that the plea was involuntary because it violated his due process rights under the Fourteenth

Amendment. The Fourteenth Amendment’s Due Process Clause guarantees that a guilty plea must

be made voluntarily and intelligently with sufficient awareness of the relevant circumstances and

likely consequences. Boykin v. Alabama, 395 U.S. 238, 242 (1969); see also Brady v. United

States, 397 U.S. 742, 748 (1970); King v. Dutton, 17 F.3d 151, 153 (6th Cir. 1994). “[A] plea does

not qualify as intelligent unless a criminal defendant first receives ‘real notice of the true nature of

the charge against him, the first and most universally recognized requirement of due process.’”

Bousley v. United States, 523 U.S. 614, 618 (1998) (quoting Smith v. O'Grady, 312 U.S. 329, 334

(1941)). In Brady, the Supreme Court adopted the following standard for determining the

voluntariness of a guilty plea:

[A] plea of guilty entered by one fully aware of the direct

consequences, including the actual value of any commitments made

to him by the court, prosecutor, or his own counsel, must stand

unless induced by threats (or promises to discontinue improper

harassment), misrepresentation (including unfulfilled or

unfulfillable promises), or perhaps by promises that are by their

nature improper as having no proper relationship to the prosecutor’s

business (e.g. bribes).

Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957)

(en banc), rev’d on other grounds, 356 U.S. 26 (1958)). The voluntariness of a guilty plea must be

assessed in light of all the relevant circumstances surrounding the plea. Brady, 397 U.S. at 749;

King, 17 F.3d at 153 (and cases cited therein). “[T]he representations of the defendant, his lawyer,

and the prosecutor at [the guilty plea hearing], as well as any findings made by the judge accepting

the plea, constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge v.

Allison, 431 U.S. 63, 73-74 (1977).

Fenstermaker argued in his direct appeal that his plea did not comply with Ohio Criminal

Rule 11 because he was not advised of his constitutional rights on the second day of the plea

hearing, June 30, 2021 (ECF No. 6 at PageID# 123), and because he never said the word “guilty.”

(Id. at PageID# 128-129). The Court of Appeals rejected both arguments. It concluded that

Fenstermaker was advised of his rights on June 29, 2021, and citing United States v. Smith, 743 F.

App’x 606, 610 (6th Cir. 2018), found that there was “no authority holding that a continuance

requires the court to revisit what a defendant has acknowledged before.” (ECF No. 6 at PageID#

168-169). The Court of Appeals also concluded that “Fenstermaker’s admission that he committed

the crimes is an admission of his guilt, which is the functional equivalent to entering a plea of

‘guilty.’” (Id. at PageID# 171).

The record reflects that the trial court advised Fenstermaker on June 29, 2021, of the nature

of the charges against him and the maximum possible sentences. (ECF No. 6-1 at 439-444). He

was also advised that by pleading guilty he was giving up his right to a jury trial, right to confront

witness against him, right to require the state to prove his guilt beyond a reasonable doubt, and

right to remain silent. (Id. at PageID# 442-443). Fenstermaker advised the court that the was

voluntarily waiving his rights, understood the maximum sentences, and was admitting the truth of

the charges. (Id. at PageID# 443-444). On June 30, 2021, the trial court asked Fenstermaker if he

was voluntarily pleading guilty to the counts in the indictment and whether he committed the

crimes of pandering and gross sexual imposition and he responded, “yes.” (ECF No. 13-1 at

PageID# 584, 588).

Fenstermaker argues in his Traverse that it was unreasonable for the Court of Appeals to

rely on United States v. Smith, and the case is distinguishable on the facts because the June 30,

2021, hearing was not a true continuance, but instead the plea hearing began anew. (ECF No. 12

at PageID# 568-571). As noted above, the Supreme Court specifically found that “the

voluntariness of a guilty plea must be assessed in light of all the relevant circumstances

surrounding the plea.” Brady, 397 U.S. at 749. For this reason, the Court cannot say it was

unreasonable for the Court of Appeals to analyze the voluntariness of Fenstermaker’s plea based

on the hearings on both June 29, 2021, and June 30, 2021. Habeas relief is not due unless the

petitioner can show that no fairminded jurist would have reached the same conclusion as the Court

of Appeals or that its conclusion is contrary to a United States Supreme Court opinion. See

Harrington v. Richter, 562 U.S. 86, 101 (2011); Williams v. Taylor, 529 U.S. 362, 365 (2000).

That Fenstermaker cannot do.

Fenstermaker also cannot show that his plea was involuntary because he did not say the

word, “guilty.” The validity of a guilty plea is determined not by reference to some magic words

but from the totality of the circumstances surrounding it. Here, there was the necessary affirmative

showing in the record that the plea was intelligently and voluntarily made as required by Boykin

v. Alabama, 395 U.S. 238 (1969). Boykin does not require that particular words be used when

advising a defendant of rights he is waiving by pleading guilty or even that the defendant be

advised of all three constitutional rights mentioned in Boykin. See United States v. Gearin, 496

F.2d 691, 696 (5th Cir.1974) (“Specific judicial incantations of constitutional rights is not the

litmus test under ... the Constitution.”). As the Supreme Court itself has stated, Boykin’s

“requirement [is] that the record must affirmatively disclose that a defendant who pleaded guilty

entered his plea understandingly and voluntarily.” Brady v. United States, 397 U.S. 742, 747 n. 4

(1970). “The standard was and remains whether the plea represents a voluntary and intelligent

choice among the alternative courses of action open to the defendant.” North Carolina v. Alford,

400 U.S. 25, 31 (1970).

Grounds One and Two should be dismissed because Ohio Criminal Rule 11 is non-

cognizable in federal habeas review and the record reflects that Fenstermaker’s plea was consistent

with the Due Process Clause of the Fourteenth Amendment.

ii. Ground Three

In Ground Three Fenstermaker contends that his appellate counsel was ineffective.

Particularly, he claims his appellate counsel should have argued on direct appeal that his trial

counsel was ineffective for failing to argue that the state never produced a bill of particulars. Even

if this claim were not procedurally defaulted, the Court would find it lacks merit for the reasons

below.

“In all criminal prosecutions,” the Sixth Amendment affords “the accused...the right...to

Assistance of Counsel for his defence.” U.S. Const. amend. VI. “Only a right to ‘effective

assistance of counsel’ serves the guarantee.” Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011)

(citation omitted). The United States Supreme Court set forth the legal principles governing claims

of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To establish

ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis

v. Thompkins, 560 U.S. 370, 389 (2010). 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

that, under the circumstances, the challenged action “might be

considered sound trial strategy.”

Strickland, 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.” Id. at 694.

When an exhausted claim of ineffective assistance of trial counsel is raised in a federal

habeas petition, review under AEDPA is “doubly deferential.” Knowles v. Mirzayance, 556 U.S.

111, 123 (2009). That is, “Strickland requires deference to counsel and AEDPA requires deference

to the state court.” Moody v. Parris, No. 20-5299, 2022 WL 3788503, at *4 (6th Cir. Aug. 30,

2022). The question then is not whether trial counsel was ineffective, but “whether the state court’s

application of the Strickland standard was unreasonable.” Harrington, 562 U.S. at 101. The

Supreme Court clarified the double deference that is due:

This is different from asking whether defense counsel’s

performance fell below Strickland’s standard. Were that the

inquiry, the analysis would be no different than if, for example, this

Court were adjudicating a Strickland claim on direct review of a

criminal conviction in a United States district court. Under AEDPA,

though, it is a necessary premise that the two questions are

different. For purposes of § 2254(d)(1), an unreasonable application

of federal law is different from an incorrect application of federal

law. A state court must be granted a deference and latitude that are

not in operation when the case involves review under

the Strickland standard itself.

Id. (internal citation omitted).

The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285

(2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of

appellate counsel, the court must assess the strength of the claim that counsel failed to raise.

Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), (citing Wilson v. Parker, 515 F.3d 682, 707 (6th

Cir. 2008)). Counsel’s failure to raise an issue on appeal amounts to ineffective assistance only if

a reasonable probability exists that inclusion of the issue would have changed the result of the

appeal. Id., (citing Wilson). The attorney need not advance every argument, regardless of merit.

Jones v. Barnes, 463 U.S. 745, 751-752 (1983) (“Experienced advocates since time beyond

memory have emphasized the importance of winnowing out weaker arguments on appeal and

focusing on one central issue if possible, or at most on a few key issues.”). Effective appellate

advocacy is rarely characterized by presenting every non-frivolous argument which can be made.

Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003); Williams v. Bagley, 380 F.3d 932, 971 (6th

Cir. 2004); see Smith v. Murray, 477 U.S. 527 (1986). “Only when ignored issues are clearly

stronger than those presented will the presumption of effective assistance of [appellate] counsel be

overcome.” Dufresne v. Palmer, 876 F.3d 248 (6th Cir. 2017), (quoting Fautenberry v. Mitchell,

515 F.3d 614, 642 (6th Cir. 2008)).

The record reflects that an issue arose during the June 29, 2021, plea hearing when the state

recited the factual basis for the plea. The state said that Counts 1-4 were based on videos taken by

Fenstermaker showing he fondled the victim’s breasts, stomach, and back. Counts 8 and 9 were

based on the victim’s interview, where she stated that Fenstermaker touched her breast and vagina.

(ECF No. 6-1 at PageID# 446). Fenstermaker challenged the part of the factual basis for Count 9,

where the state said he touched the victim’s vagina. (Id. at PageID# 446-449). Fenstermaker’s

counsel complained that the defense was unaware that the state was alleging that he had touched

the victim’s vagina, and the dispute arose because the state never responded to his request for a

bill of particulars. (Id. at PageID# 449). The defense suggested that the state change the language

in the factual basis to “erogenous zone” (Id. at PageID# 450-451). The state responded that it

would permit Fenstermaker to review the victim’s interview, and the hearing recessed to the next

day. (ECF No. 6-1 at PageID# 453). On June 30, 2021, Fenstermaker did not object to the factual

basis, which the state changed to “erogenous zone” (ECF No. 13-1 at PageID# 586-587), and the

trial court accepted the plea. (Id. at PageID# 589).

Fenstermaker asserted Ground Three in his Application for Reopening his Appeal pursuant

to App. R. 26(B). (ECF No. 6 at PageID# 239-244). The Court of Appeals concluded that his

appellate counsel was not ineffective because Fenstermaker never denied making videos fondling

the victim’s breasts, which was sufficient evidence for a conviction under the statute and he “failed

to articulate how having a bill of particulars would have changed the result.” (ECF No. 6 at

PageID# 264).

Fenstermaker argues in his Traverse that he is entitled to habeas relief because the plea

hearing proceeded without his knowledge of the nature of the charges against him. (ECF No. 12

at PageID# 575-577). This argument is contradicted by the record. The plea hearing was in fact

continued until the next day because the state made it very clear that they were asserting

Fenstermaker touched the victim’s vagina. (ECF No. 6-1 at PageID# 452-453). The state also

advised Fenstermaker on June 29, 2021, that it intended to argue at the sentencing hearing that he

touched the victim’s vagina, which was supported by the victim’s interview. (Id. at PageID# 450-

451).

Fenstermaker’s Traverse also fails to articulate how a bill of particulars would have made

any difference in his plea. Ohio Revised Code § 2907.05 prohibits “sexual contact,” defined as

“any touching of an erogenous zone of another, including without limitation the thigh, genitals,

buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing

or gratifying either person.” Ohio Rev. Code § 2907.01. Thus, the use of “erogenous zone” in the

factual basis for the plea on June 30, 2021, was consistent with the langue of the statute under

which Fenstermaker was charged. In any event, Fenstermaker assented to the language “erogenous

zone” on June 30, 2021, and as noted by the Court of Appeals, never denied that he touched the

victim’s breast.

A bill of particulars made no difference to Fenstermaker’s plea because the state provided

the information about Count 9 during the June 29, 2021, hearing, he was given time to contemplate

the consequences of the allegations and review the video of the victim’s interview during the

recess, and he proceeded with the guilty plea the next day. Fenstermaker’s argument that without

the bill of particulars he was unaware of the charges against him is simply without merit.

Fenstermaker failed to demonstrate that the Court of Appeals’ conclusion that he was not

prejudiced, and his appellate counsel was not ineffective is contrary to or an unreasonable

application of Strickland. Ground Three lacks merit and should be dismissed.

V. CONCLUSION

Fenstermaker’s claims are without merit. It is therefore RECOMMENDED that the

habeas petition be DENIED, and this action be DISMISSED WITH PREJUDICE.

For the foregoing reasons, the Undersigned RECOMMENDS:

1. Petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1)

be DENIED with prejudice.

2. A certificate of appealability should not issue with respect to the petition because petitioner

has not stated a “viable claim of the denial of a constitutional right” or presented an issue

that is “adequate to deserve encouragement to proceed further.” See Slack v. McDaniel,

529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see

also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

3. With respect to any application by a petitioner to proceed on appeal in forma pauperis, the

Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order

adopting this Report and Recommendation would not be taken in “good faith,” and

therefore DENY Petitioner leave to appeal in forma pauperis upon a showing of financial

necessity. See Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir.

1997).

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 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 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 Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140,

106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). The

parties are further advised that, if they intend to file an appeal of any adverse decision, they may

submit arguments in any objections filed, regarding whether a certificate of appealability should

issue.

IT IS SO RECOMMENDED.

March 3, 2025 s/ Elizabeth A. Preston Deavers

Elizabeth A. Preston Deavers

UNITED STATES MAGISTRATE JUDGE

22