The opinion of the court was delivered by: Judge Michael R. Barrett
Before the Court is the June 27, 2006 Magistrate Judge's Report and Recommendation ("R&R") (Doc. 15) regarding Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1)
The parties were given proper notice, pursuant to 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Petitioner filed timely objections to the R&R.
On November 26, 2001 petitioner was indicted for two counts of attempted murder with firearm specifications, four counts of felonious assault with specifications, and two counts of carrying a concealed weapon. After a jury trial began, petitioner entered an Alford guilty plea to the two attempted murder charges and one of the firearm specifications. Petitioner was then sentenced to 15 years in prison, but a clerical error on the Judgment Entry showed a total prison term of 14 years.
Petitioner filed a timely pro se notice of appeal, but counsel appointed to represent petitioner "agreed [the] sentence is not reviewable by an appellate court." On April 30, 2003, the Ohio Court of Appeals denied petitioner's appeal, and noted that petitioner had to be re-sentenced because the new sentencing entry would result in an additional year in prison. On May 15, 2003, petitioner was re-sentenced "nunc pro tunc to 6-25-02." Petitioner was present with counsel at the re-sentencing.
On July 24, 2003 petitioner filed an appeal asserting he was denied allocution at re-sentencing under Ohio R. Crim. P. 43(A). The Ohio Court of Appeals dismissed the appeal as untimely. The Ohio Supreme Court declined jurisdiction to hear the appeal, stating it did not involve a constitutional question.
At the same time petitioner's appeal was in front of the Ohio Court of Appeals, petitioner filed a pro se motion to withdraw his guilty plea, which were followed by two identical motions. The subsequent motions were dismissed, but the appeals of the first and third motions were consolidated and placed on the Ohio Court of Appeals, First Appellate District's accelerated calendar. In his brief, plaintiff laid out seven assignments of error. The court overruled all of petitioner's assignments of error, concluding that the trial court lacked the jurisdiction to allow petitioner to withdraw his guilty plea because his direct appeal was still pending. The Ohio Supreme Court declined jurisdiction because the appeal lacked a substantial constitutional question.
Petitioner then filed the instant habeas corpus petition asserting the following ten grounds for relief: (1) he was denied his allocution rights under Ohio R. Crim. P. 43 (A) at his re-sentencing,*fn1 (2) he must be re-sentenced because a correction will result in an increased sentence, (3) the dismissal of his appeal on April 30, 2003 was in error, (4) the Ohio Court of Appeals erred in not allowing petitioner to withdraw his guilty plea to "correct manifest injustice," (5) before he entered his Alford plea, the trial judge did not inform the petitioner that he had a pre-trial motion pending, or had the right to preserve appeal on the motion by pleading no-contest, (6) the pre-trial motion for fingerprint and palm analysis of Michael Smith had no response from the prosecution, (7) constitutional violations based on the prosecution's failure to respond to the pre-trial motion, (8) petitioner was denied the right to examine exculpatory and mitigating material including weapons, (9) the trial judge's participation in the plea negotiation, and (10) the trial judge and prosecution destroyed firearms.
II. MAGISTRATE JUDGE'S R&R
The Magistrate Judge recommends dismissing petitioner's writ of habeas corpus. The Magistrate Judge concluded that Petitioner is not entitled to relief on the claims he raised in grounds one through three--in essence that he was denied allocution under Ohio R. Crim. P. 43 (A) at his re-sentencing. The Magistrate Judge explained that a federal court can only consider claims of constitutional violations, not questions of state law. However, the Magistrate Judge explained that Petitioner waived his constitutional claims because his appeal of the re-sentencing order was untimely. The Magistrate Judge also explained that even if petitioner did not waive his constitutional claims, there is no federal right to allocution at sentencing or re-sentencing.
The Magistrate Judge also concluded that Petitioner's claims asserted in grounds four through ten of his appeal should be denied. The Magistrate Judge noted that even if Petitioner's claim triggers constitutional claims, Petitioner previously agreed to the serve a 15-year sentence, the same sentence that was given to him at re-sentencing. The Magistrate Judge also noted that by entering his Alford plea, Petitioner waived claims seeking to challenge his conviction as a result of non-jurisdictional errors that occurred before he entered his plea. Regarding Petitioner's argument that the trial judge intimidated him into accepting a plea bargain, the Magistrate Judge explained that nothing in the record rebuts the presumption of correctness that should be accorded to the Ohio Court of Appeals factual finding on direct appeal that petitioner's plea was knowingly, intelligently, and voluntarily given. The Magistrate Judge also concluded that the trial judge was not obligated under state law or the federal Constitution to inform Petitioner about the claimed difference in the appeal consequences of an Alford plea versus a "no contest" plea after the parties had negotiated and executed a written plea agreement.
In his objections, Petitioner argues that in the April 30, 2003 order denying his appeal, there is a clerical error in the date that petitioner and his counsel appeared for re-sentencing. Next, Petitioner repeats his argument that he ...