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Oliphant v. Wainwright

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

September 3, 2019

JASIN OLIPHANT, Petitioner,
v.
WARDEN WAINWRIGHT, Respondent.

          DAN AARON POLSTER, JUDGE

          REPORT & RECOMMENDATION

          JONATHAN D. GREENBERG, UNITED STATES MAGISTRATE JUDGE

         This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the Petition of Jasin Oliphant (“Oliphant” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Oliphant is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Oliphant, Lucas County Court of Common Pleas No. G-4801-CR-0201202836-000. For the following reasons, the undersigned recommends that the Petition be DENIED.

         I. Summary of Facts

         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the facts underlying Oliphant's conviction as follows:

{¶ 5} The charges stem from an incident that occurred on October 29, 2012, in which appellant shot at two individuals, shot out the widows of one of the victim's vehicles, doused the vehicle with gasoline, lit the vehicle on fire, and fled the scene. After fleeing the scene, appellant was pursued by Toledo police in a high speed chase. Appellant was eventually caught after wrecking the getaway vehicle and attempting to flee on foot. Inside appellant's wrecked vehicle was a loaded gun, which contained bullets that matched the bullet casings found at the scene of the crime.

State v. Oliphant, 2017 WL 3981162, at *2 (Ohio App. 6th Dist. Sept. 8, 2017).

         II. Procedural History

         A. Trial Court Proceedings

         On November 2, 2012, the Lucas County Grand Jury indicted Oliphant on the following charges: two counts of felonious assault in violation of Ohio Revised Code (“O.R.C.”) §2903.11(A), with a firearm specification (Counts One and Two); one count of arson in violation of O.R.C. §2909.03(A)(1) and (B)(2)(b) (Count Three); carrying a concealed weapon in violation of O.R.C. §2923.12(A)(2) and (F) (Count Four); and having a weapon while under disability in violation of O.R.C. §2923.13(A)(2) (Count Five). (Doc. No. 8-1, Exh. 1.) On November 28, 2012, Oliphant entered pleas of not guilty to all charges. (Doc. No. 8-1, Exh. 2.)

         On February 26, 2013, Oliphant withdrew his guilty plea and entered an Alford[1] guilty plea to one count of felonious assault with a firearm specification, one court of arson, and one count of having a weapon while under a disability. (Doc. No. 8-1, Exh. 3.) The state agreed to nolle Count Two, with the attached firearm specification, and Count Four at sentencing. (Id.) The state also agreed not to pursue failure to comply charges resulting from the incident. (Id.)

         This matter proceeded to sentencing and on May 20, 2013, the court sentenced Oliphant to seven years on Count One, with an additional one year mandatory incarceration on the firearm specification, one year on Count Three, and three years on Count Five, to be served consecutively, for an aggregate sentence of 12 years. (Doc. No. 8-1, Exh. 5.) At the State's request, the court entered nolle prosequi as to Counts Two and Four. (Id.)

         B. Motion to Withdraw Guilty Plea

         On March 21, 2014, Oliphant, pro se, filed a motion to withdraw his guilty plea. (Doc. No. 8-1, Exh. 6.) In his motion, Oliphant raised three grounds for relief:

I. When a defendant's attorney outright lies to him in order to induce a plea by falsely representing to the defendant that he had worked out a plea agreement with the court and the state for a specific maximum sentence in exchange for a plea of guilty to all charges, the plea entered by the defendant is completely unconstitutional and cannot be said to be knowingly, voluntarily or intelligently made. The attorney's improper actions have resulted in a manifest miscarriage of justice and should be vacated.
II. An evidentiary hearing should be held on this defendant's claim because the facts alleged concerning the way the plea was induced, require this court, if proven true, to vacate the plea.
III. When an attorney's performance falls below the standard of reasonableness by outright lying to his client to induce a plea, his actions clearly prejudice the defendant and it is also true that had it not been but for the attorney's lies, this defendant would have gone to trial.

(Id.)

         The State filed a brief in opposition (Doc. No. 8-1, Exh. 7), to which Oliphant replied. (Doc. No. 8-1, Exh. 8.)

         On August 15, 2014, the trial court held a hearing on Oliphant's motion to withdraw his guilty plea. (Doc. No. 8-1, Exh. 9.) The trial court appointed counsel to represent Oliphant at this hearing. (Doc. No. 8-1, Exh. 18.) Oliphant, his girlfriend, and trial counsel testified at the hearing. (Doc. No. 8-3 at 3.) The trial court granted appointed counsel's request for a transcript of the proceedings and gave counsel two weeks from the receipt of the transcript to file a memorandum in support of Oliphant's motion for a new trial. (Doc. No. 8-1, Exh. 9.)

         On May 26, 2015, Oliphant, through counsel, filed a memorandum in support of his motion to withdraw his guilty plea. (Doc. No. 8-1, Exh. 10.) The State filed a brief in opposition. (Doc. No. 8-1, Exh. 11.) Oliphant, through counsel, then filed a supplemental memorandum in support of his motion to withdraw his guilty plea. (Doc. No. 8-1, Exh. 13.) This supplemental memorandum raised an additional argument:

I. Defendant's guilty pleas were not knowingly, intelligently, and voluntarily offered due to counsel's promise of a six year sentence and Defendant's justifiable reliance on counsel's promise.

(Id.) The State filed a supplemental brief in opposition. (Doc. No. 8-1, Exh. 14.)

         Oliphant, pro se, filed a request for leave to respond to the State's supplemental brief in opposition. (Doc. No. 8-1, Exh. 15.) The State moved to strike Oliphant's pro se request for leave. (Doc. No. 8-1, Exh. 16.)

         On April 22, 2016, the trial court denied Oliphant's motion to withdraw his guilty plea. (Doc. No. 8-1, Exh. 18.) The trial court then denied Oliphant's pro se request for leave to file his own post-hearing brief and the State's motion to strike that request as moot. (Id.)

         C. Appeal of Denial of Motion to Withdraw Guilty Plea

         Oliphant, pro se, filed a notice of appeal to the state appellate court, along with a motion for leave to file a delayed appeal. (Doc. No. 8-1, Exh. 19-20.) The state appellate court granted the motion for delayed appeal and appointed counsel for Oliphant. (Doc. No. 8-1, Exh. 21.)

         On April 12, 2017, counsel for Oliphant filed an Anders[2] brief, raising two possible assignments of error:

I. Ineffective assistance of counsel.
II. Denial of motion to withdraw guilty plea.

(Doc. No. 8-1, Exh. 22.) However, appointed counsel determined “there exist no grounds upon which any appeal could be based that are not frivolous” and moved for leave to withdraw. (Id.) The State filed a brief in response, agreeing with appointed counsel's conclusion. (Doc. No. 8-1, Exh. 23.)

         Oliphant, pro se, filed an opposition to appointed counsel's Anders brief and request for leave to withdraw. (Doc. No. 8-1, Exh. 24.) In his opposition, Oliphant raised the following assignment of error:

I. The trial court erred in not granting this appellant's motion to withdraw his plea because attorney Stepanik's outright lying to this appellant and his family to induce the plea rendered it unconstitutional as such an improper action cannot possibly yeild[sic] a plea which is knowingly, voluntarily, or intelligently made, and its acceptance violates the 5th and 14th amendments of the U.S. constitution and at Article I, Section 16 of the Ohio Constitution.

(Id.)

         The state appellate court decided it would treat Oliphant's opposition as a pro se brief. (Doc. No. 8-1, Exh. 25.) Oliphant moved the appeals court to reconsider its decision to treat his opposition brief as a merits brief. (Doc. No. 8-1, Exh. 26.) The appeals court denied Oliphant's motion for reconsideration. (Doc. No. 8-1, Exh. 27.)

         On September 8, 2017, the state appellate court affirmed the trial court's denial of Oliphant's motion to withdraw his guilty plea. (Doc. No. 8-1, Exh. 28.)

         On October 10, 2017, Oliphant, proceeding pro se, filed a Notice of Appeal with the Supreme Court of Ohio. (Doc. No. 8-1, Exh. 29.) In his Memorandum in Support of Jurisdiction, Oliphant raised the following Propositions of Law:

I. When an attorney outright lies to his or her client to induce a plea in a criminal case, the plea tendered is not constitutionally compliant as such an action renders the plea not knowingly voluntarily and intelligently made and the acceptance of such a plea and refusal to allow for withdrawal of the plea violates the 5th, 6th, and 14th amendments of the U.S. Constitution and the equivalent Articles and Sections of the Ohio Constitution.
II. An attorney renders constitutionally ineffective assistance of counsel when he lies to his client to induce a plea. This improper action violates the 5th, 6th and 14th Amendments of the U.S. Constitution and the Equivalent Articles and Sections of the Ohio Constitution.
III. When a witness has been found to be untruthful in part of his or her testimony, none of the testimony should be believed. When a trial or appellate court relies on this perjured testimony which is unreliable to deny a criminal defendant relief. Those courts violate the defendant's constitutional rights to a fair trial and the due process of law guaranteed by the 5th and 14th ...

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