United States District Court, N.D. Ohio, Eastern Division
REGINAL L. JOHNSON, Petitioner,
KIMBERLY CLIPPER, WARDEN, Respondent.
Y. PEARSON JUDGE.
REPORT AND RECOMMENDATION
M. PARKER MAGISTRATE JUDGE.
Reginal L. Johnson filed a pro se petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging the constitutionality of his convictions and
sentences in State v. Johnson, No.
13CR086507. ECF Doc. No. 1. Respondent Warden,
Kimberly Clipper, filed a motion to dismiss. ECF Doc. No. 7.
And Johnson filed a reply/response. ECF Doc. No. 8. On
November 21, 2017, the Court issued a memorandum of opinion
and order dismissing Ground One of Johnson's petition as
unexhausted and/or granting his motion to amend so as to
remove Ground One. ECF Doc. 12. Thus, only Ground Two of
Johnson's petition remains pending. Id.
the dismissal of Ground One, Warden Clipper filed nothing
further concerning Ground Two. However, Johnson filed a
Traverse in support of Ground Two (ECF Doc. 11). Because
Ground Two is probably procedurally defaulted, lacks merit
and presents only a noncognizable claim, I recommend that
Ground Two be DISMISSED.
February 13, 2013, a Lorain County grand jury issued an
indictment charging Johnson with two counts of engaging in a
pattern of corrupt activity in violation of Ohio Rev. Code
§§ 2923.32(A)(1) and (3); four counts of drug
trafficking in violation of Ohio Rev. Code
§§2925.03(A)(1) and (2); one count of drug
possession in violation of Ohio Rev. Code §2925.11(A);
one count of possessing criminal tools in violation of Ohio
Rev. Code §2923.24(A); one count of permitting drug
abuse in violation of Ohio Rev. Code §2925.13(B); and
one count of drug paraphernalia in violation of Ohio Rev.
Code §2925.14(C)(1). ECF Doc. No. 7-1 at Page ID# 47-51.
pleaded guilty to the indictment after reaching a plea
agreement with the state. As a part of the plea agreement,
Johnson was required to provide information to law
enforcement on a different criminal case in exchange for an
agreed recommended prison sentence of 15 years. ECF Doc. 7-3
at Page ID# 301-302.
2, 2014, the court sentenced Johnson to serve an aggregate
15-year prison sentence: 11-year terms on counts 1, 4, and 6;
4-year terms on counts 3 and 5; 11-month terms on counts 8
and 9; and a 1-month term on count 10. Counts 3 and 5 were
ordered to be served concurrently to each other but
consecutively to the concurrent sentences imposed on counts
1, 4, 6, 8, 9 and 10. Counts 2 and 7 were merged as allied
offenses. ECF Doc. 7-1 at Ex. 6, Page ID# 59-64. The court
also ordered forfeiture of real and personal property. ECF
Doc. 7-1 at Ex. 6, Page ID# 65-67.
26, 2014, Johnson moved to amend and withdraw his guilty
plea. ECF Doc. 7-1 at Ex. 8, Page ID# 70. Johnson argued that
he had been deprived of counsel of choice because his first
lawyer withdrew upon learning that he had represented a
confidential informant who was involved with some of the
charges. The court denied Johnson's motion to amend and
withdraw. ECF Doc. 7-1 at Ex. 9 &10, Page ID# 78, 79.
represented by new counsel, filed an appeal in the Ohio Court
of Appeals. ECF Doc. 7-1 at Ex. 11, Page ID# 80.
Johnson's brief asserted two assignments of error:
Assignment of Error I: The Court erred when it told Appellant
that he was possibly eligible for judicial release during the
plea portion of the proceedings. The result was that
Appellant's plea of guilty was not intelligently,
knowingly, or voluntarily entered.
Assignment of Error II: The State abused its prosecutorial
discretion in Appellant's case. The result of this abuse
of discretion was to render the trial court unable to conduct
a fair proceeding. The result was the inability of the
Appellant to have effective assistance of counsel.
ECF Doc. 7-1 at Ex. 18, Page ID# 97. On May 4, 2016, the
court of appeals affirmed the judgment of the trial court.
State v. Johnson, 2016-Ohio-2762, 2011 Ohio App.
LEXIS 1635 (9th Dist.); ECF Doc. 7-1 at Ex. 20, Page ID# 170.
Johnson did not appeal to the Ohio Supreme Court.
Application to Reopen Direct Appeal
October 31, 2016, Johnson also filed a pro se Rule
26(B) application to reopen his direct appeal in the Ohio
Court of Appeals. ECF Doc. 7-1 at Ex. 25, Page ID# 198. In
this filing, Johnson asserted ineffective assistance of
appellate counsel, the argument he now asserts in his Ground
Two claim. He argued that his appellate counsel was
ineffective for failing to address the following issues:
First Assignment of Error: Because
there is no evidence in this case as to the weight of actual
cocaine involved, the trial court erred in treating the
entire weight of the cocaine mixture as pure cocaine
consisting of 100 grams or more; and thereby convicting and
sentencing appellant under two Major Drug Offender
Specifications.  And as such, direct appeal counsel was
constitutionally ineffective in his failure to address this
substantial constitutional violation on appeal under: (1)
abuse of discretion, and (2) ineffective assistance of trial
Second Assignment of Error: The
trial court failed to make the statutory findings required by
R.C. 2929.14(C)(4) prior to imposing consecutive sentences 
- as clearly apparent by the complete absence of said
analysis in the record - -and accordingly, Mr.
Johnson's sentence is contrary to law and must be
vacated. Wherefore even in the context of a jointly
recommended consecutive sentence, a trial court is required
to make the statutory findings; where there was no
consecutive sentences discussed as part of the plea
ECF Doc. 7-1 at Ex. 25, Page ID# 198.
December 28, 2016, the court of appeals found that Johnson
had established good cause for the delayed filing, but denied
the application to reopen on the merits. ECF Doc. 7-1 at Ex.
27, Page ID# 218-220. The court held:
By pleading guilty to the offenses and specifications, Mr.
Johnson waived his right to appeal any nonjurisdictional
issues. State v. Quarterman, 9th Dist. Summit No.
26400, 2013-Ohio-3606, ¶ 4. Although a guilty plea does
not waive the right to argue that ineffective assistance of
counsel caused a plea to be involuntary, Mr. Johnson has not
argued that his plea was not knowing, intelligent or
voluntary. We, therefore, conclude that appellate counsel was
not ineffective for failing to raise Mr. Johnson's
drug-quantity based ineffective assistance argument on
ECF Doc. 7-1 at Ex. 27, Page ID# 219-220.
February 13, 2017, Johnson filed a motion to receive a copy
of the court of appeals' December 28, 2016 journal entry.
ECF Doc. 7-1 at Ex. 28, Page ID# 221. On February 27, 2017,
the court of appeals ordered that the clerk forward a copy of
the December 28, 2016 journal entry to Johnson. ECF Doc. 7-1
at Ex. 29, Page ID# 223.
on February 13, 2017, Johnson filed a memorandum in support
of jurisdiction and a notice of appeal with the Ohio Supreme
Court. ECF Doc. 8-1 at Page ID# 356-357. On
February 14, 2017, a deputy clerk for the Ohio Supreme Court
sent a letter to Johnson stating that his filings had not
been accepted because he had not included a copy of the court
of appeals' decision with them. ECF Doc. 8-1 at Page ID#
351. It does not appear that Johnson ever attempted to
re-file his Ohio Supreme Court appeal. ECF Doc. 1 at Page ID#
Post-Conviction Relief Petitions
February 17, 2015, Johnson filed a pro se petition
to vacate or set aside judgment of conviction or sentence.
ECF Doc. 7-1 at Ex. 30, Page ID# 224. Johnson's petition
represented that he was unable to support his arguments with
evidence and requested that he be permitted to amend his
petition at a later date. On March 2, 2015, the trial court
denied Johnson's petition. ECF Doc.7-1 at Ex. 31, Page
ID# 229. Johnson did not appeal.
year later, on May 25, 2016, Johnson filed a second petition
for post-conviction relief. ECF Doc. 7-1 at Ex. 32, Page ID#