Jefferson v. Warden

MARK JEFFERSON, Petitioner, v. WARDEN, Chillicothe CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:14-CV-736

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

December 17, 2014

JUDGE JAMES L. GRAHAM

MAGISTRATE JUDGE KEMP

REPORT AND RECOMMENDATION

I. INTRODUCTION

Mark Jefferson, the petitioner in this habeas corpus action, is a prisoner at the Chillicothe Correctional Institution located in Chillicothe, Ohio. He is serving an aggregate eighteen-year sentence which was imposed by the Court of Common Pleas of Franklin County, Ohio, following his guilty plea to two counts of rape and one count of gross sexual imposition. Return of Writ, Doc. 5, Ex. 3. He now seeks a writ of habeas corpus from this Court. For the following reasons, based on a review of the Petition, the Return of Writ, the exhibits attached to the Return, and the applicable law, it will be recommended that the Petition be DENIED and that this case be DISMISSED.

I. PROCEDURAL HISTORY

On August 11, 2011, Petitioner was indicted and charged with two counts of rape and one count of gross sexual imposition. The two rape counts involved a minor victimunder the age of 13. The indictment did not specify exactly which subsection of the rape statute, Ohio Revised Code (RC) §2907.02, Petitioner allegedly violated, but a violation of §2907(A)(1)(b), which applies to a victim who is less than thirteen years of age, carries a mandatory life term.

After initially pleading not guilty, Petitioner changed his plea and entered a guilty plea to all three counts of the indictment. He did so pursuant to a plea agreement which allowed him to plead guilty to two counts of rape under R.C. §2907.02(A)(2), which carries a lesser sentence. Petitioner and the prosecutor also agreed to definite consecutive eight-year sentences for the two rape counts, plus a two-year consecutive sentence for gross sexual imposition. Return, Ex. 2. The trial court imposed that sentence.

Petitioner did not initially appeal, but he sought and was granted leave to file a delayed appeal. In his pro se brief (the Franklin County Public Defender was appointed to represent Petitioner on appeal, but Petitioner elected to proceed without counsel), he presented four assignments of error:

ASSIGNMENT OF ERROR I

Whether the trial court abused its discretion by sentencing Appellant to consecutive sentences.

ASSIGNMENT OF ERROR II

Whether the trial court abused its discretion in failing to impose proportional sentencing.

ASSIGNMENT OF ERROR III

Whether the trial court abused its discretion by applying an improper statute.

ASSIGNMENT OF ERROR IV

Whether Appellant was denied effective assistance of counsel.

In a decision filed on February 6, 2014, the Tenth District Court of Appeals overruled all four assignments of error and affirmed the conviction and sentence. State v. Jefferson, 2014 WL 504751 (Franklin Co. App. Feb. 6, 2014) .

Petitioner asked the Ohio Supreme Court to review the court of appeals' decision. In his memorandum in support of jurisdiction, he identified only a single proposition of law, which reads as follows: "Whether the courts abused their discretion in imposing a sentence that does not conform with the legislature or constitution." Return, Ex. 18. However, he argued two "branches" of this proposition of law. The first, titled "Statutory Requirements," focused on the statutory requirement that certain findings be made under R.C. §2929.14(C)(1) before consecutive sentences may be imposed for multiple offenses, but it also mentioned the Equal Protection clause as well as Article I, section 2 of the Ohio Constitution. The second branch of his argument was "Allied Offenses/Double Jeopardy." There, Petitioner claimed that the sentence violated the Double Jeopardy clause as well as the Ohio General Assembly's intent not to allow multiple punishment for two or more offenses resulting from the same conduct. The Ohio Supreme Court declined to take the case. State v. Jefferson, 139 Ohio St.3d 1406 (May 28, 2014).

Petitioner timely filed this petition for a writ of habeas corpus under 28 U.S.C. §2254. Doc. 1. The three issues he raises, and the facts supporting them, are, in his words:

GROUND ONE: Equal Protection Due Process.

Supporting facts: A plethora of case law in Ohio supports the fact that consistency, proportionality, nor reasonableness was considered nor applied, in contravention of the Equal Protection afforded.

GROUND TWO: Wrong Statute Pled To.

Supporting facts: Contrary to the General Assembly via the statutory language, by and through counsel, Petitioner pled to two counts of rape that did not occur as evidenced by the medical exams of both victims. This factual basis is contrary to law nor authorized by law. Actual innocence of the "charges" of rape.

GROUND THREE: Ineffective Assistance of Counsel.

Supporting facts: Ignoring clearly established law and statutory language, counsel coerced Petitioner into accepting a plea that not only had no factual basis, but a sentence that exceeded a vast majority of Ohio cases. Counsel's reliance on Petitioners severe mental emotional duress was utilized for an unjust result.

Respondent argues that, through his guilty plea, Petitioner waived "any claims as to the plea itself or the assistance of counsel before or during the plea." Return, at 8. Respondent also asserts that all claims other than the one presented to the Ohio Supreme Court have been procedurally defaulted, and that the single claim he did present to the Ohio Supreme Court - ground one of his petition - rests entirely on state law and is not cognizable in federal habeas corpus. Petitioner has not filed a traverse in response.

II. DISCUSSION

Cases filed under 28 U.S.C. §2254 are reviewed under a deferential standard. When the claims presented in a habeas corpus petition have been presented to and decided by the state courts, a federal habeas court may not grant relief unless the state court's decision was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence that was presented. 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

In applying this statute, the Supreme Court has held that "[t]he focus ... is on whether the state court's application of clearly established federal law is objectively unreasonable ... an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). To obtain habeas corpus relief, a petitioner must show the state court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. ----, ----, 131 S.Ct. 770, 786-87 (2011).

This bar is "difficult to meet" because "habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington, 131 S .Ct. at 786, quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5,(1979) (Stevens, J., concurring in judgment). In short, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id., quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

Before looking at the merits of the claims which Petitioner presents here, the Court must first decide if the claims were properly presented to the state courts. Under 28 U.S.C. §2254, the habeas corpus statute which applies to prisoners in state custody, a federal court may grant relief only if the prisoner is being held in violation of the Constitution or law of the United States—that is, that the prisoner's conviction or sentence was unlawful under federal law. In order for a federal court to decide any such claims on their merits, "the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). That is so because §2254(b) states that an application for a writ of habeas corpus filed by someone in petitioner's position "shall not be granted" unless "the applicant has exhausted the remedies available in the courts of the State ...."

A doctrine related to the exhaustion doctrine is known as "procedural default." "Procedural default" describes the situation where a person convicted of a crime in a state court not only fails (for whatever reason) to present a particular claim to thehighest court of the State so that the State has a fair chance to correct its own errors, but no longer has any opportunity to do so - usually because the time for filing an appeal or other attack on a state conviction or sentence has come and gone. When that occurs, a habeas petitioner may obtain review of the merits of his federal claims only if he can show some "cause" for his failure to follow the state court rules relating to raising that claim, and "prejudice" from not having obtained state court review. See Wainwright v. Sykes, 433 U.S. 72 (1977).

Here, Respondent is correct that the only claim which Petitioner has not procedurally defaulted is the claim he presented to the Ohio Supreme Court. Although Petitioner presented other claims to the Tenth District Court of Appeals, in...