United States District Court, N.D. Ohio, Eastern Division
R. Adams Judge
REPORT AND RECOMMENDATION
R. KNEPP II UNITED STATES MAGISTRATE JUDGE
se Petitioner Tashawn Walker (“Petitioner”),
a prisoner in state custody, filed a Petition seeking a writ
of habeas corpus under 28 U.S.C. § 2254
(“Petition”). (Doc. 1). Respondent Warden Lyneal
Wainwright (“Respondent”) filed an Answer/Return
of Writ (Doc. 10) and Petitioner filed a Reply / Traverse
(Doc. 12). The district court has jurisdiction over
the Petition under § 2254(a). This matter has been
referred to the undersigned for a Report and Recommendation
pursuant to Local Rule 72.2(b)(2). (Non-document entry dated
December 18, 2018). For the reasons discussed below, the
undersigned recommends the Petition be DENIED.
November 2013, a Trumbull County, Ohio, grand jury indicted
Petitioner on charges of aggravated murder (with a firearm
specification), carrying a concealed weapon, and improperly
handling firearms in a motor vehicle. (Ex. 1, Doc. 10-1, at
to a plea agreement, on July 20, 2015, Petitioner pled guilty
to an amended count of involuntary manslaughter (with a
firearm specification), carrying a concealed weapon, and
improperly handling firearms in a motor vehicle. (Ex. 2, Doc.
10-1, at 8-16). After a colloquy, the trial court accepted
Petitioner's plea. (Doc. 10-2, at 1-15) (transcript of
plea hearing). The trial court sentenced Petitioner to the
agreed seventeen year sentence with a mandatory term of five
years of post-release control on the involuntary manslaughter
count, and an optional term of up to three years post-release
control on counts two and three. (Ex. 4, Doc. 10-1, at
to Withdraw Guilty Plea
March 2016, Petitioner moved pro se to withdraw his
guilty plea pursuant to Ohio Criminal Rule 32.1. (Ex. 5, Doc.
10-1, at 32-38). In support, Petitioner asserted two grounds:
Ground One: The trial court committed prejudicial error in
violation of Mr. Walker's right to due process of law as
guaranteed by the 14th amendment to the United States
Constitution and Article I, Section 10 of the Ohio
Constitution where the trial court failed to explain to Mr.
Walker that he could use the subpoena powers of the courts to
compel an individual to appear and testify on his behalf and
that he did not have to secure witness on his own.
Ground Two: Mr. Walker was denied his right to effective
assistance of counsel as guaranteed by the Sixth Amendment of
the Un[it]ed States Constitution and Section 10 Article I of
the Ohio Constitution where counsel incorrectly advised Mr.
Walker that self defense was not a viable defense, which
denied Mr. Walker his right to a jury trial.
Id. at 33-34 (capitalization altered). The State
filed a response in opposition (Ex. 6, Doc. 10-1, at
63-66). On March 14, 2016, the trial court denied
Petitioner's motion. (Ex. 7, Doc. 10-1, at 106).
filed a pro se notice of appeal. (Ex. 9, Doc. 10-1,
at 112-13). In his subsequent counseled brief, Petitioner
raised a single assignment of error:
The trial court erred in denying Appellant's motion to
withdraw guilty plea without conducting a hearing where
Appellant's guilty plea was not knowingly and voluntarily
entered as a result of ineffective assistance of counsel as
guaranteed by the Sixth and Fourteenth Amendments to the U.S.
Constitution, and Section 10, Article I of the Ohio
(Ex. 10, Doc. 10-1, at 121). He further described the issue
presented for review and argument as:
A trial court commits reversible error where the Court denies
a post-sentence Motion to Withdraw without a hearing when the
Motion and attached exhibits set forth supported claims
which, if believed, render the guilty plea not knowingly and
intelligently entered as a result of ineffective assistance
Id. The State filed an answer brief (Ex. 11, Doc.
10-1, at 134-52), and on December 30, 2016, the Eleventh
Appellate District Court of Appeals affirmed the decision of
the trial court to deny Petitioner's motion to withdraw
his plea (Ex. 12, Doc. 10-1, at 153-61); State v.
Walker, 2016 WL 7626347 (Ohio Ct. App.)
(“Walker I”). Specifically, the court
held that trial counsel was not ineffective for advising
Petitioner that self-defense was not a viable strategy.
Walker I, 2016 WL 7626347, at *3-4. Moreover, the
court found Petitioner had not shown any alleged ineffective
assistance precluded him from entering a knowing and
voluntary guilty plea. Id. at *4. The appellate
court also denied Petitioner's subsequent counseled
motion for reconsideration (Ex. 13, Doc. 10-1, at 163-73) on
April 18, 2017. (Ex. 15, Doc. 10-1, at 223-26).
to Reopen Appeal
March 3, 2017, Petitioner filed a pro se application
to reopen his appeal pursuant to Ohio Appellate Rule 26(B).
(Ex. 16, Doc. 10-1, at 227-33). Therein, he asserted his
counsel was ineffective for failing to argue a “dead
bang winner” issue on appeal. Id. at 229. He
asserted counsel should have raised the following issue for
The Appellant's guilty plea was not knowingly,
intelligently, and voluntarily entered where the trial court
committed prejudicial error when it failed to advise
appellant of his Constitutional rights he was waiving by
pleading guilty in violation of the Sixth and Fourteenth
Amendment[s] to the U.S. Const[itution] and Article I
[S]ection 10 of the Ohio Const[itution] and Criminal Rule
Id. at 230 (capitalization altered). The State filed
an answer brief (Ex. 17, Doc. 10-1, at 269-73), and
Petitioner replied (Ex. 18, Doc. 10-1, at 274-76). On April
18, 2017, the state appellate court denied Petitioner's
application to reopen. (Ex. 19, Doc. 10-1, at 277-81).
filed a pro se notice of appeal with the Ohio
Supreme Court. (Ex. 20, Doc. 10-1, at 282-83). In his
memorandum in support of jurisdiction, he asserted two
propositions of law:
I. Appellant was denied his right to due process of law as
guaranteed by the 14th [A]mendment to the U.S. Const. and
Section 16, [A]rt. I Ohio Const. where the appeals court
committed prejudicial error by denying [Petitioner's]
II. Appellant was denied his right to receiving effective
assistance of counsel as guaranteed by the Sixth Amendment to
the U.S. Const. and Section 10 [A]rt]. I of the Ohio Const.
where appell[ate] counsel failed to assign as error a dead
bang winner: that the trial court ...