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Johnson v. Clipper

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

February 20, 2019

REGINAL L. JOHNSON, Petitioner,
v.
KIMBERLY CLIPPER, WARDEN, Respondent.

          BENITA Y. PEARSON JUDGE.

          REPORT AND RECOMMENDATION

          THOMAS M. PARKER MAGISTRATE JUDGE.

         I. Introduction

         Petitioner 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.[1] ECF Doc. No. 1. Respondent Warden, Kimberly Clipper, [2]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.

         Following 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.

         II. Procedural History

         A. State Conviction

         On 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.

         Johnson 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.

         On June 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.

         On June 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.

         B. Direct Appeal

         Johnson, 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.

         C. Application to Reopen Direct Appeal

         On October 31, 2016, Johnson also filed a pro se Rule 26(B) application to reopen his direct appeal in the Ohio Court of Appeals[3]. 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 counsel.
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 negotiations.

ECF Doc. 7-1 at Ex. 25, Page ID# 198.

         On 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 appeal.

ECF Doc. 7-1 at Ex. 27, Page ID# 219-220.

         On 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.

         Also, on February 13, 2017, Johnson filed a memorandum in support of jurisdiction and a notice of appeal with the Ohio Supreme Court.[4] 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# 8.

         D. Post-Conviction Relief Petitions

         On 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.

         Over a year later, on May 25, 2016, Johnson filed a second petition for post-conviction relief. ECF Doc. 7-1 at Ex. 32, Page ID# ...


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