United States District Court, S.D. Ohio, Western Division
Michael R. Merz Magistrate Judge
DOUGLAS R. COLE UNITED STATES DISTRICT JUDGE
cause comes before the Court on Petitioner's Objections
(ECF Nos. 31, 34) to the Magistrate Judge's Reports and
Recommendations. (ECF Nos. 25, 33). As required by 28 U.S.C.
§ 636(b) and Fed.R.Civ.P. 72(b), this Court has made a
de novo review of the record in this case. For the
reasons more fully set forth below, the Court
OVERRULES Plaintiff's Objections (ECF
Nos. 31, 34) and ADOPTS the Magistrate
Judge's Reports and Recommendations (ECF Nos. 25, 33).
Accordingly, the Court DISMISSES the
Petition (ECF No. 1) WITH PREJUDICE. As
reasonable jurists could not disagree with this conclusion,
Petitioner is denied a certificate of appealability and the
Court certifies to the Sixth Circuit any appeal would be
objectively frivolous. Therefore, Petitioner should not be
permitted to proceed in forma pauperis. The Clerk is
ORDERED to terminate the instant case.
FACTS & PROCEDURAL HISTORY
October 2011, a Butler County grand jury indicted Petitioner
James Francis, (“Francis”) then 36, on four
counts of rape of a child under the age of ten. (ECF No. 25,
PageID 370). Those charges involved two victims, and a
conviction on any one of the counts would have resulted in a
mandatory life sentence without parole. (Id.). On
March 7, 2012, pursuant to a plea agreement between Francis
and the prosecutor, Francis pled guilty on all counts
conditioned on the age specifications being dismissed.
(Id.). The dismissal of those specifications meant
Francis faced sentences of ten years to life for each count,
rather than a mandatory life sentence for each count.
(Id. at PageID 380). Based on the plea, the trial
court sentenced Francis on all four counts, with the
sentences on Counts One and Two to run concurrently, and the
sentences on Counts Three and Four also to run concurrently.
(ECF No. 6. PageID 20-21). As a result, Francis
received an aggregate sentence of twenty years to life.
(Id.). Francis then filed an untimely direct appeal
to the Twelfth District Court of Appeals challenging his
sentence, which the appeals court dismissed on timeliness
grounds. (ECF No. 6, PageID 266). Francis filed a motion for
delayed appeal, which the Twelfth District also denied.
(Id. at PageID 267).
next filed a petition for post-conviction relief under Ohio
Revised Code § 2953.21, claiming ineffective assistance
of trial counsel, to which he attached two affidavits: one on
his own behalf and the other by his trial attorney. The
petition essentially pressed one claim-ineffective
assistance-based on two issues: (i) his counsel's alleged
failure to inform him the plea deal called for a sentence of
up to ten years per count, not ten years
“flat, ” and (ii) his counsel's alleged
failure to notify Francis that he had thirty days in which to
appeal the sentencing decision. (ECF No. 25, PageID 373). The
post-conviction court dismissed his petition on cross-motions
for summary judgment. (ECF No. 25, PageID 370). Francis
appealed to the Twelfth District, which affirmed the trial
court's order denying the claim of ineffective assistance
of trial counsel based on the alleged failure to accurately
disclose to him the consequences of the plea; but it vacated
and remanded as to the trial court's jurisdiction to
consider the ineffective assistance of counsel claim for
failure to properly advise Francis regarding the appeal
window. (ECF No. 6, PageID 267-68). On remand, the
post-conviction court heard and denied that latter claim,
finding trial counsel had advised Francis of the thirty-day
limit for filing an appeal. (Id. at PageID 272-73).
The Twelfth District affirmed. (Id.). Francis did
not appeal to the Ohio Supreme Court, but instead filed this
habeas corpus petition on June 3, 2016.
March 5, 2019, the Magistrate Judge issued his initial Report
and Recommendations to dismiss the petition. (ECF No. 25).
Francis filed timely objections. (ECF No. 31). The District
Court recommitted the matter to the Magistrate Judge for
initial consideration of the objections. (ECF No. 32). The
Magistrate Judge then issued a Supplemental Report and
Recommendations on July 30, 2019, recommending overruling the
objections and dismissing the petition. (ECF No. 33). Francis
again filed timely Objections. (ECF No. 34). Those objections
are now before this Court.
LAW & ANALYSIS
makes several objections to the Magistrate's Supplemental
Report and Recommendations, largely rehashing his objections
to the original Report and Recommendations. (See ECF
Nos. 31, 34). As a general matter, Francis claims that the
Magistrate Judge erred in denying him relief based on his
allegations of ineffective assistance of trial counsel,
allegations that largely rest on Francis's claim that his
trial attorney advised him that, if he pled guilty, he faced
a guaranteed sentence of ten years “flat.” More
specifically, Francis claims that the Magistrate Judge erred
in not recognizing that: (1) that the state court improperly
failed to decide the ineffective assistance claim on its
merits; (2) that the state post-conviction court improperly
framed his claim as a Boykin claim rather than a
Strickland claim, and thus denied the claim on
improper grounds; (3) that the state court was unreasonable;
and (4) that he should be given relief on the merits. The
Magistrate Judge rejected all of these arguments and this
Francis argues the Twelfth District never determined his
post-conviction petition “on the merits” because
the court did not review the affidavits attached to the
petition. (ECF No. 34, PageID 410). In his view, such an
omission eliminates the deference this Court owes to the
Twelfth District under the Antiterrorism and Efficient Death
Penalty Act of 1996. See 28 U.S.C. § 2254.
But see e.g., Pike v. Gross, 396 F.3d 372,
378 (6th Cir. 2019) (noting the standard to overturn a state
conviction on the merits under AEDPA is “difficult to
meet and highly deferential … [and] demands
state-court decisions be given the benefit of the
doubt.”) (quotation and citation omitted).
to Francis's contentions, the Supplemental Report
indicates no such omission occurred and the Twelfth District
denied the post-conviction petition on the merits. More
specifically, the Twelfth District reviewed and considered
the trial attorney's affidavit, but determined that,
because the affidavit “was plainly contradicted by the
plea colloquy, ” it was insufficient to establish a
basis for post-conviction relief. (ECF No. 33, PageID 404).
Thus, contrary to the petitioner's claims, the Twelfth
District (and the post-conviction court) did review
the contents of the affidavits. Since Francis's first and
third objections likewise rely on his assertion the Twelfth
District never conducted such review or analysis, the
Magistrate Judge did not find these objections convincing.
(ECF No. 33, PageID 405). This Court agrees.
Francis's “on the merits”
ineffective-assistance-of-counsel claim as to the plea deal
also fails under Strickland v. Washington, 466 U.S.
668 (1984), and its Ohio corollary, State v.
Bradley, 42 Ohio St.3d 136 (1989). Francis argues the
post-conviction court misconstrued his claim by classifying
it as a Boykin claim, challenging whether he made a
knowing, intelligent, and voluntary plea, instead of
analyzing it separately as a Strickland claim for
ineffective assistance based on his counsel grossly
misrepresenting the potential consequences of the plea.
See McAdoo v. Elo, 365 F.3d 487, 495-500 (6th Cir.
2004). See also Boykin v. Alabama, 395 U.S. 238,
242-44 (1969). This conflation would, in Francis's
opinion, remove AEDPA deference to the state court's
decision. The principal problem with that argument, though,
is that the record does not bear out Francis's claim of
start, both the post-conviction court and the Twelfth
District clearly decided the ineffective assistance of trial
counsel claim; the Twelfth District explicitly cited to
Strickland, (ECF No. 33, PageID 406), undercutting
Francis's claim that those courts failed to conduct a
Strickland analysis. They did such an analysis;
Francis simply lost. Nor is that surprising on the record
here. Under Strickland, to succeed on an ineffective
assistance of counsel claim the petitioner must show both:
(1) his attorney's performance was deficient, and (2)
that this deficiency prejudiced the petitioner. See
Berghuis v. Thompkins, 560 U.S. 370, 389 (2010).
(See also ECF No. 25, PageID 404-06). Although the
initial Report correctly noted that misinformation regarding
a plea could satisfy Strickland's first prong,
Francis cannot establish that he suffered any prejudice that
would allow him to satisfy Strickland's second
prong. (ECF No. 33, PageID 407).
Francis cannot show that he suffered any prejudice as a
result of his attorney's alleged failure to accurately
describe the consequences of the plea. Accord Hill v.
Lockhart, 474 U.S. 52, 59 (1985) (discussing trial
counsel's failure to raise an affirmative defense and
quoting Evans v. Meyer, 742 F.2d 371, 375 (7th Cir.
1984) (“It is inconceivable to us … that the
defendant would have gone to trial … or that if he had
done so he either would have been acquitted or, if convicted,
would nevertheless have gotten a shorter sentence than he
actually received.”)). To borrow the Seventh
Circuit's phrase from Evans, it is inconceivable
to this Court that Francis would have rejected the plea
bargain and risked a conviction on four separate counts, any
one of which would have carried a mandatory life sentence
without parole, or that, if he had rejected the plea deal the
end result would have been a sentence shorter than the once
he received. ...