United States District Court, S.D. Ohio, Western Division, Cincinnati
Michael R. Barrett, District Judge.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge.
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).
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.
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,
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.
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,  where is the
evidence to support the assertion?
One: The Ohio Courts Did Not Decide Francis's Claim on
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).
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.
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
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.
the Objection that the Ohio courts did not decide
Francis' claim ...