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Scott v. Warden, Noble Correctional Institution

United States District Court, S.D. Ohio, Eastern Division

December 20, 2017

ANTHONY A. SCOTT, Petitioner,
v.
WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.

          JUDGE ALGENON L. MARBLEY

          REPORT AND RECOMMENDATION

          NORAH MCCANN KING, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (Doc. 1), Respondent's Return of Writ (Doc. 7), Petitioner's Reply (Doc. 8), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

         Facts and Procedural History

         The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:

On May 4, 2012, under case 2012-CR-00244, Appellant Scott was indicted in Licking County on counts of felony possession of cocaine, attempted murder, felonious assault, trafficking in cocaine with a juvenile specification, and one count of misdemeanor possession of drug paraphernalia. Additionally, appellant was indicted on several attendant firearm and forfeiture specifications.
On May 18, 2012, appellant was additionally indicted under case number 12-CR-00280 for having weapons while under a disability. The indictments were then consolidated by the trial court.
On April 30, 2013, appellant appeared before the trial court for a change of plea hearing. At this hearing, in exchange for appellant's plea, the State agreed to dismiss the firearm specifications associated with Counts I through IV and make a jointly recommended sentence of twelve years. Appellant agreed to withdraw his previously entered not guilty pleas, to enter Alford pleas to the remaining counts, and withdraw his pending motion to dismiss and to suppress.
Following a plea colloquy, the trial court accepted appellant's Alford pleas. The trial court thereupon sentenced appellant under case 2012-CR-00244 to a four-year prison term on Count I, a five-year prison term on Count II, a one-year prison term on Count IV, and a thirty-day jail sentence on Count V. The court merged Counts II and III for sentencing. Appellant was also sentenced to three years in prison under case 2012-CR-00280. The trial court ordered all counts to run consecutively. Appellant was granted 370 days of credit towards his sentence. The court also issued, inter alia, post release control orders in each case.
Appellant then filed a direct appeal to this Court, raising issues of speedy trial rights, manifest weight of the evidence, and sufficiency of the evidence.
See State v. Scott, 5th Dist. Licking No. 13-CA-45, 2014-Ohio- 456 (“Scott I”). In our decision issued February 7, 2014, we overruled the assigned errors based on our conclusion that appellant had waived said claims via his Alford guilty pleas. The Ohio Supreme Court did not accept jurisdiction to hear his requested appeal from our decision. See State v. Scott, 142 Ohio St.3d 1519, 33 N.E.3d 66, 2015-Ohio-2341.
On August 31, 2015, appellant filed a motion for post-conviction relief in the trial court, alleging that trial counsel was ineffective for advising him to enter his Alford pleas. Appellant attached his own affidavit in support of the petition.
On October 12, 2015, the trial court denied appellant's post-conviction petition, finding it to be untimely and inadequately supported by the attached evidence.
Appellant filed a notice of appeal as to each of the two trial court case numbers on October 26, 2015. He herein raises the following sole Assignment of Error:
“I. TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT WHEN IT FAILED TO HOLD A HEARING PURSUANT TO R.C. 2953.21 AND FAILED TO VACATE THE JUDGMENT OF CONVICTION FOR REASON THAT TRIAL COUNSEL WAS INEFFECTIVE WHEN COUNSEL GAVE INCORRECT LEGAL ADVICE THAT INDUCED DEFENDANT TO ENTER A[N] UNKNOWINGLY [SIC], INVOLUNTARILY [SIC], AND UNINTELLIGENT AFFORD [SIC] / NO CONTEST PLEAS [SIC].”

State v. Scott, Nos. 15 CA 81, 15 CA 82, 2016 WL 3365756, at *1-2 (Ohio App. 5th Dist. June 15, 2016) (footnotes omitted). As noted supra, the state appellate court refused to address the merits of Petitioner's claims that he was denied his right to a speedy trial, that his convictions were against the manifest weight of the evidence, and that the evidence was constitutionally insufficient to sustain his convictions, reasoning that Petitioner had waived those claims when he pleaded guilty:

We shall address all three of Appellant's assignments of error together as we find their resolution is controlled by the same legal principle.
At the outset we must resolve what plea Appellant entered. Though not specifically identified as such in his brief to this Court, Appellant maintained during oral argument he entered Alford “no contest” pleas. While this Court is quite familiar with an Alford guilty plea, in the 70 plus collective years of this panel's experience on the bench, we have never before heard of an Alford “no contest” plea.
Appellant maintains the two plea forms he executed demonstrate he entered an Alford no contest Plea. Upon our review of the original forms, we find it plausible Appellant intended to do so, although any intent is difficult to determine based upon the numerous interlineations of printed plea types; circlings of plea types; apparent attempts to retract some circlings; handwritten arrow symbols; handwritten “Alford Guilty” and “Guilty”; and two additional separate sets of Appellant's handwritten initials near the area where all of the above changes were made to each of the two plea forms. The motion is further clarified/muddled by the use of two different colors of ink. While we believe the plea forms arguably support Appellant's claim he intended to enter an Alford no contest plea, we have no uncertainty as to what plea he actually entered during the change of plea hearing.
We have reviewed the transcript and find the prosecutor specifically states the defendant will be entering an Alford guilty plea on three separate times (Tr. at p. 6). Subsequently, while engaging Appellant in a colloquy regarding the rights he was waiving, the trial court specifically identified the plea as an Alford guilty plea on three separate occasions. (Tr. at p. 10, 12, and 19). At no time during the sentencing hearing did Appellant or his ...

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