United States District Court, S.D. Ohio, Eastern Division
MAGISTRATE JUDGE MICHAEL R. MERZ
OPINION AND ORDER
A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE.
April 3, 2019, the Magistrate Judge issued a Report and
Recommendation recommending that the Petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed.
(ECF No. 9.) Petitioner has filed an Objection to the
Magistrate Judge's Report and Recommendation. (ECF No.
12.) Respondent has filed a Response. (ECF No. 13.) Pursuant
to 28 U.S.C. § 636(b), this Court has conducted a de
novo review. For the reasons that follow, Petitioner's
Objection (ECF No. 12) is OVERRULED. The
Report and Recommendation (ECF No. 9) is
ADOPTED and AFFIRMED. This
action is hereby DISMISSED.
Court DECLINES to issue a certificate of
challenges his August 20, 2015, convictions pursuant to his
guilty plea in the Franklin County Court of Common Pleas on
four counts of trafficking in cocaine. (ECF No. 6-1, PAGEID
#98.) He asserts that his guilty plea was not knowing,
intelligent or voluntary, because his attorney failed to
notify him of the consequences of his guilty plea (claim
one); and that he was denied the effective assistance of
counsel, because his attorney told him he would only serve
three years imprisonment (claim two). The Magistrate Judge
recommended dismissal of Petitioner's claims as
procedurally defaulted and without merit.
objects to the recommendations of the Magistrate Judge. As
cause for his failure to file an appeal with the Ohio Supreme
Court, Petitioner states that he is a Spanish speaking
immigrant who does not read or understand English, and the
prison where is incarcerated does not provide the assistance
of an interpreter or Spanish legal materials. Referring to
Blackledge v. Allison, 431 U.S. 63 (1977),
Petitioner also again argues that his claim that his guilty
plea was not knowing, intelligent, or voluntary, based on an
off-the-record promise from defense counsel presents a
meritorious basis for relief.
"'cause' under the cause and prejudice test must
be something external to the petitioner, something that
cannot fairly be attributed to him[, ]'... some objective
factor external to the defense [that] impeded ... efforts to
comply with the State's procedural rule.'"
Coleman v. Thompson, 501 U.S. 722, 753 (1991)
(quoting Murray, 477 U.S. at 488). It is
Petitioner's burden to show cause and prejudice.
Hinkle v. Randle, 271 F, 3d 239, 245 (6th Cir.
2001). A petitioner's pro se status, ignorance of the
law, or ignorance of procedural requirements are insufficient
bases to excuse a procedural default. Bonilla v.
Hurley, 370 F.3d 494, 498 (6th Cir. 2004). Instead, in
order to establish cause, a petitioner "must present a
substantial reason that is external to himself and cannot be
fairly attributed to him." Hartman v. Bagley,
492 F.3d 347, 358 (6th Cir. 2007). The United States Court of
Appeals for the Sixth Circuit has held that a
petitioner's language difficulties, or unfamiliarity with
the English language does not constitute cause for a
procedural default "because such alleged unfamiliarity
is not 'external to [his]defense.'"
Bonilla, 370 F.3d at 498 (citing Murray v.
Carrier, 477 U.S. 478, 488 (1986)). Other federal
courts, including this one, have reached a similar
conclusion. See Cruz-Altunar v. Warden, Ross Correctional
Inst., No. 2:14-cv-1844, 2016 WL 909422, at *5 (S.D.
Ohio March 9, 2016) (citing Promoter v. Pollard, 628
F.3d 878, 887 (7th Cir. 2010); Vazquez v. Lockhart,
867 F.2d 1056, 1058 (8th Cir. 1988); Sanchez v.
Hetzel, No. 1:11 -cv-940-TMH, 2014 WL 1491178, *4 (M.D.
Ala. 2014) (collecting cases)); see also Amnathphonthip
v. Warden, North Central Correctional Complex, No.
2:17-cv-1129, 2018 WL 3586660, at *7 (S.D. Ohio July 26,
2018) ("[C]ourts have held that language barriers and
unfamiliarity with the legal system are not external factors
sufficient to excuse procedural default.") (quoting
Sanchez v. Hetzel, No. 1:11-cv-940-TMH, 2014 WL
1491178, at *4 (M.D. Ala. April 15, 2014) (citing Vazquez
v. Lockhart, 867 F.2d 1056, 1058 (8th Cir. 1988)) (pro
se and language barrier insufficient to excuse procedural
default); Bonilla, 370 F.3d at 498
("[U]nfamiliarity with the English language" is not
"external to [his] defense[.]"); Silva v.
Oregon, 2009 WL 4505445, at *6 (D. Or. Dec. 2, 2009)
(holding that an inability to speak English not an
"objective factor amounting to cause"); Fabian
v. Herbert, 2003 WL 173910 at *4 (S.D.N.Y. Jan. 23,
2003) (inability to speak or comprehend English insufficient
to overcome procedural bar); Weeks v. Bowersox, 106
F.3d 248, 250 (8th Cir. 1997) (holding that illiteracy is
insufficient to excuse default); Marsh v. Soares,
223 F.3d 1217, 1220 (10th Cir. 2000) ("The fact that an
inmate law clerk was assisting in drafting [pleadings] does
not relieve [petitioner] from the personal responsibility of
complying with the law."). Moreover, Petitioner offers
no explanation for failing, to date, to pursue a delayed
appeal from the Ohio appellate court's September 27,
2016, decision denying his appeal to the Ohio Supreme Court,
The record does not support his allegation that he has been
unable to access the courts or prevented from so doing based
on his unfamiliarity with the English language.
the record indicates that, at the time of Petitioner's
guilty plea hearing, Petitioner stated while under oath and
with the assistance of an interpreter, that he had discussed
the charges against him with his attorney, who had answered
all of his questions. (Guilty Plea Transcript, ECF
No. 6-1, PAGEID # 117-18.) He had signed a written guilty
plea form, and reviewed it with his attorney, with an
interpreter, (PAGEID #119.) The Entry of Guilty Plea form
indicates that Petitioner understood that he could be
sentenced to 3 to 11 years on each of the four charges. (ECF
No. 6-1, PAGEID # 96.) Petitioner denied being threatened or
made any off-the-record promises to induce his guilty plea.
(PAGEID # 119-120.) The Court advised him that the charges
carried mandatory prison time, with a potential maximum
prison term of up to 11 years on each count. Petitioner
indicated that he understood. (PAGEID # 120.) He understood
that the trial court could impose up to 44 years. (PAGEID #
121.) The trial court reviewed with Petitioner all of the
rights he was waiving by entry of his guilty plea. Petitioner
at all times indicated that he understood. (PAGEID # 122-24.)
He admitted his guilt to the charges and indicated that he
did so knowingly and voluntarily. (PAGEID # 125-26.) The
transcript of Petitioner's sentencing hearing indicates
that defense counsel submitted a sentencing memorandum, and
asked the trial court to impose 6 years incarceration.
(Sentencing Transcript, ECF No. 6-1, PAGEID # 135.)
Petitioner had already served a year in the county jail.
(Id.) He had 410 days jail credit. (PAGEID #136.)
When asked by the trial court if he had anything to say,
Petitioner said "I'm sorry." (PAGEID # 137.)
Although he heard his attorney request 6 years, and an
interpreter was present, Petitioner never indicated that he
had been made an off-the-record promise of 3 years. The trial
court imposed a term of 12 years. (PAGEID # 137.)
petitioner challenges his guilty plea on the basis that it
was induced by an unkept promise, the Court must determine
whether that allegation, when viewed against the record of
the plea hearing, is so palpably incredible, so patently
frivolous or false, as to warrant summary dismissal.
Blackledge v. Allison, 431 U.S. at 76. In applying
this standard, a court will indulge a strong presumption that
statements made by the parties at the plea hearing were
truthful. Id. at 74.
For the representations of the defendant, his lawyer, and the
prosecutor at such a hearing, as well as any findings made by
the judge accepting the plea, constitute a formidable barrier
in any subsequent collateral proceedings. Solemn declarations
in open court carry a strong presumption of verity. The
subsequent presentation of conclusory allegations unsupported
by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly
Id. at 73-74 (citations and footnote omitted). Thus,
the record plainly contradicts Petitioner's allegation
now that his attorney promised him a sentence of 3 years. The
record entirely fails to support Petitioner's claim that
his guilty plea was not knowing, intelligent, and
that this claim is not waived, it nonetheless does not
provide Petitioner a basis for relief.
to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court now considers
whether to issue a certificate of appealability. "In
contrast to an ordinary civil litigant, a state prisoner who
seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a
district court." Jordan v. Fisher, ___U.S.___,
___, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1)
(requiring a habeas petitioner to obtain a certificate of
appealability in order to appeal).
claim has been denied on the merits, a certificate of
appealability may issue only if the petitioner "has made
a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). To make a
substantial showing of the denial of a constitutional right,
a petitioner must show "that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were 'adequate to deserve encouragement
to proceed further.'" Slack v. McDaniel,529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle,463 U.S. 880, 893, n.4 (1983)). When a claim
has been denied on procedural grounds, a certificate of
appealability may issue if the petitioner establishes that
jurists of reason would find it debatable whether the