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Francis v. Jackson-Mitchell

United States District Court, S.D. Ohio, Western Division, Cincinnati

July 3, 2019

JAMES FRANCIS, Petitioner,
v.
WANZA JACKSON-MITCHELL, Warden, Warren Correctional Institution Respondent.

          Michael R. Barrett, District Judge.

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge.

         This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 31) to the Magistrate Judge's Report and Recommendations (“Report, ” ECF No. 25). District Judge Barrett has recommitted the case to the Magistrate Judge for reconsideration in light of the Objections (ECF No. 32).

         James Francis was indicted on four counts of rape of a child under the age of ten; two different victims were involved. The penalty upon conviction of any of those counts would have been life imprisonment without the possibility of parole. After plea negotiations, Francis pleaded guilty to all four counts with the age specification dismissed. The sentence provided by law for each offense is ten years to life. The trial judge imposed that sentence and ran the terms consecutively because there were two victims.

         In this habeas corpus case, Francis contends he received ineffective assistance of trial counsel when his trial attorney promised him a sentence of a flat ten years. He made no such claim at the time he was sentenced, but first raised this claim in a petition for post-conviction relief under Ohio Revised Code § 2953.21. The Ohio Twelfth District Court of Appeals rejected Francis' claim. State v. Francis, 2014-Ohio-443, 8 N.E.3d 371 (Ohio App. 12th Dist. Feb. 10, 2014), appellate jurisdiction declined, 139 Ohio St.3d 1401 (2014) (Francis I); after remand, State v. Francis, Ohio App. 12th Dist. Butler No. CA2014-09-187, 2015-Ohio-2221 (Jun. 8, 2015)(Francis II).[1]

         The principal question before this Court is what effect to give to the Twelfth District's decision. The Report found that Francis I was entitled to deference under the AEDPA and that Francis was therefore not entitled to habeas relief (ECF No. 25). Francis raises a series of objections which will be discussed seriatim.

         Counsel begins his Objections by asserting Francis' trial lawyer was “inexperienced and new.” (Objections, ECF No. 31, PageID 394.) Where does this fact appear in the record? No. record reference is provided. The Objections make many assertions about whether certain facts were or were not found by the state courts, but they lose credibility when they begin with habeas counsel's mere assertion of a rhetorically prejudicial fact, unsupported by evidence, which is obviously intended to color the whole discussion of trial counsel's performance, suggesting the Court should presume an “inexperienced and new” attorney would be more prone to provide ineffective assistance. Even if the Court should indulge that presumption, [2] where is the evidence to support the assertion?

         Objection One: The Ohio Courts Did Not Decide Francis's Claim on the Merits

         The predicate for deference under the AEDPA as codified at 28 U.S.C. § 2254(d)(1) and (2) is that the state courts decided the federal constitutional claim in question on the merits. The Report concluded that the Ohio courts had decided Francis' ineffective assistance of trial counsel claim on the merits (ECF No. 25, PageID 375-78).

         Francis objects:

The postconviction court did not review Francis' or his lawyer's affidavits that depicted the sentencing advice. It stated "[w]hatever conversations and directives occurred between counsel and client outside the record may not be utilized to overcome the burden for post-conviction relief." . . . So the postconviction court made no factual findings-concluding that Francis' postconviction affidavits were somehow outside the postconviction record and unavailable to review.

(Objections, ECF No. 31, PageID 395-96, quoting Decision and Entry Denying Petition for Postconviction Relief, State Court Record, ECF No. 6, Ex. 13, PageID 87.) Francis relied on this excerpt to claim the trial court did not consider his trial attorney's affidavit, but the immediately preceding sentence reads: “Francis's petition for postconviction relief fails because the claimed ineffective assistance regarding the plea and subsequent imposition of sentence, even with counsel's affidavit, is diametrically opposite of reality as evidenced by the recorded proceedings.” (ECF No. 6, PageID 87.) At several points in the Decision, Judge Sage adverts to the critical decision in Ohio law about ineffective assistance of trial counsel claims: those which can be proved from the record on direct appeal must be made on direct appeal or be barred by res judicata; those which depend on evidence outside the record must be made in a post-conviction petition supported by affidavit. State v. Cheren, 73 Ohio St.3d 137 (1995)(per curiam), following State v. Perry, 10 Ohio St. 2d 175 (1967). Judge Sage expressly cites Perry for this point at ECF No. 6, PageID 84.

         Francis then objects that “[t]he Ohio Court of Appeals ignored the postconviction court's holding that Francis' postconviction affidavits were outside the postconviction record and unavailable for review. It acted as if the postconviction court had rejected the claim by considering Francis' evidence.” (Objections, ECF No. 31, PageID 396.) But that was not the holding of the trial court at all. Clearly understanding the distinction deeply embedded in Ohio law[3] between ineffective assistance of trial counsel claims which must be raised on direct appeal and those that can be raised only in post-conviction by presenting evidence outside the record, Judge Sage found that trial counsels' affidavit was plainly contradicted by the plea colloquy and therefore was insufficient substantive evidence on which to grant relief. In affirming, the Twelfth District found that Judge Sage had “undoubtedly considered Francis' and his trial counsel's affidavits, both of which were evidence dehors the record. . . .” Francis II, 2015-Ohio-2221at ¶ 15.

         In sum, the Objection that the Ohio courts did not decide Francis' claim ...


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