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Holin v. Attorney General

United States District Court, Sixth Circuit

August 16, 2013

DAWN R. HOLIN, Petitioner,
v.
ATTORNEY GENERAL OF OHIO, [1] Respondent.

REPORT AND RECOMMENDATION

KATHLEEN B. BURKE, Magistrate Judge.

Petitioner Dawn R. Holin ("Petitioner" or "Holin"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 16, 2012. Docs. 1 and 2. Holin challenges the constitutionality of her conviction and sentence in State v. Holin, Case No. 06-CR-402 (Lake County 2006). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2. Respondent has filed a motion to dismiss Holin's habeas petition as time-barred. Doc. 7. As explained below, Holin's petition is barred by the one-year statute of limitations in 28 U.S.C. § 2244(d). Accordingly, Respondent's motion to dismiss should be GRANTED and Holin's petition should be DISMISSED with prejudice.

I. Procedural Background

A. State Conviction

The April 2006 term of the Lake County Grand Jury issued an indictment charging Holin with the following counts: two counts of engaging in a pattern of corrupt activity, felonies of the first degree in violation of R.C. 2923.32(A)(1); four counts of conspiracy to commit aggravated murder, felonies of the first degree in violation of R.C. 2923.01(A)(1); four counts of conspiracy to commit aggravated arson, felonies of the second degree in violation of R.C. 2923.01(A)(1); and four counts of conspiracy to commit aggravated arson, felonies of the third degree in violation of R.C. 2923.01(A)(1).[2] Doc. 7, Exhibit 1. Upon arraignment, Holin entered a plea of not guilty to all of the counts in the indictment. Doc. 7, Exhibit 2. After a competency evaluation, Holin was deemed competent to stand trial. Doc. 7, Exhibit 9.

On December 4, 2006, Holin executed a written plea of guilty to four counts of conspiracy to commit aggravated murder (Counts 3-6). Doc. 7, Exhibit 10. The parties agreed that the convictions would merge for sentencing purposes. Doc. 7, Exhibit 10. On that same date, the court issued a judgment entry memorializing the guilty plea for counts 3-6 and entering a nolle prosequi on the remaining charges. Doc. 7, Exhibit 11.

On December 14, 2006, Holin, pro se, filed a motion to withdraw her guilty plea. Doc. 7, Exhibit 12. Holin stated that she "dismissed Terry Gilbert as [her] counsel" because she felt she "was misled and lied to." Doc. 7, Exhibit 12. On December 22, 2006, Terry Gilbert, still acting as Holin's counsel, filed a sentencing memorandum on her behalf, arguing that a three-year sentence was appropriate given the facts and circumstances of the case. Doc. 7, Exhibit 13. On January 4, 2007, the court held a sentencing hearing. Doc. 7, Exhibit 14. At the hearing, the court denied Holin's motion to withdraw her guilty plea, finding that "[s]he appears simply to have a change of heart" and "[t]he claims in support of her motion to withdraw the guilty plea are refuted by the record." Doc. 8, Transcript of 1/4/2007 Hearing, at p. 13. The court also denied Holin's request to dismiss her attorney. Doc. 8, Transcript of 1/4/2007 Hearing, at p. 14. Thereafter, the court proceeded to sentence Holin to a term of 10 years imprisonment on each of the four counts of conspiracy to commit aggravated murder, the terms to be served concurrently.[3] Exhibit 14.

B. Direct Appeal

On February 9, 2007, Holin, through new counsel, timely appealed to the Eleventh District Court of Appeals. Doc. 7, Exhibit 17. In her brief, Holin raised the following three assignments of error:

1. The trial court erred to the prejudice of the defendant-appellant by denying her pre-sentence motion to withdraw her plea in violation of her due process rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.
2. The trial court erred to the prejudice of the defendant-appellant when it denied her the right to dismiss her attorneys contrary to the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution.
3. The trial court erred sentencing the defendant-appellant to the maximum term of imprisonment.

Doc. 7, Exhibit 18. On June 27, 2007, the State filed a brief in response. Doc. 7, Exhibit 19. On November 23, 2007, the state court of appeals overruled Holin's assignments of error and affirmed her conviction. Doc. 7, Exhibits 20-21.

On January 4, 2008, Holin, through counsel, filed a timely notice of appeal in the Supreme Court of Ohio. Doc. 7, Exhibit 22. In her memorandum in support of jurisdiction, Holin set forth the following propositions of law:

1. A defendant's constitutional rights to due process are violated when the trial court denies her pre-sentence motion to withdraw her plea and her right to have a full, fair and impartial hearing on her motion after leading the mentally-impaired defendant through a series of questions designed to defeat the motion, culminating with the court's assertion that the defendant simply had a "change of heart."
2. A defendant is denied her constitutional right to dismiss her attorney when the trial court summarily denies the request at the sentencing hearing.

Doc. 7, Exhibit 23. The State filed its memorandum in opposition to jurisdiction on January 31, 2008. Doc.7, Exhibit 24. On April 23, 2008, the Ohio Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. Doc. 7, Exhibit 25.

Holin did not file a petition for writ of certiorari in the United ...


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