Opinion
1:19-CV-02724-SO
12-12-2022
MICHAEL MARBUERY DAVIS, Plaintiff, v. WARDEN WANZA JACKSON-MITCHELL, Defendant,
SOLOMON OLIVER, JR., JUDGE.
REPORT AND RECOMMENDATION
Jennifer Dowdell Armstrong, United States Magistrate Judge.
I. INTRODUCTION
Petitioner Michael Marbuery Davis (“Marbuery Davis”) seeks a Writ of Habeas Corpus under 28 U.S.C. § 2254. (ECF Doc. 1). Davis, an Ohio inmate, is currently serving a 22-year prison sentence for drug trafficking, possession of criminal tools, drug possession, attempted drug possession, and endangering children. Respondent, Warden Wanza Jackson-Mitchell (“Respondent”), filed a Return of Writ. (ECF Doc. 7). Marbuery Davis filed a Traverse. (ECF Doc. 8). Respondent filed a Sur-Reply. (ECF Doc. 9). The matter is before me by an automatic order of reference under Local Rule 72.2 for preparation of a report and recommendation on Bailey's petition and other case-dispositive motions. For the reasons set forth in detail below, I RECOMMEND that the Court DENY and/or DISMISS Davis's petition. I also RECOMMEND that Chae Harris, the Warden of Lebanon Correctional Institution-where Marbuery Davis is currently incarcerated-should be substituted for Wanza Jackson-Mitchell as the Respondent in this case.
According to the Ohio Department of Rehabilitation & Correction website, Marbuery Davis is now incarcerated at the Lebanon Correctional Institution. https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A683240 (last visited Dec. 9, 2022). Marbuery Davis has failed to provide the court with his current address. It is the party, not the court, who bears the burden of apprising the court of any changes to his mailing address. See Yeschick v. Mineta, 675 F.3d 622, 630 (6th Cir. 2012) (affirming district court's denial of Rule 60(b) motion when movants claimed, due to house fire, that they did not receive mail informing them of court's entry of summary judgment); Soliman v. Johanns, 412 F.3d 920, 922 (8th Cir. 2005) (“[A] litigant who invokes the processes of the federal courts is responsible for maintaining communication with the court during the pendency of his lawsuit.”); Watsy v. Richards, No. 86-1856, 1987 WL 37151, at *1 (6th Cir. April 20, 1987) (affirming dismissal for failure to prosecute when appellant failed to provide district court with “current address necessary to enable communication with him”).
The Warden of Lebanon Correctional Institution, where Marbuery Davis is currently confined, is Chae Harris. https://drc.ohio.gov/leci (last visited Dec. 9, 2022). Chae Harris should be substituted as the proper respondent in this case. See 28 U.S.C. § 2243 (“The writ . . . shall be directed to the person having custody of the person detained.”); Fed.R.Civ.P. 25(d) (providing that, “when a public officer who is a party in an official capacity . . .
This matter was originally before Magistrate Judge William H. Baughman, Jr. pursuant to an automatic order of reference. Due to Magistrate Judge Baughman's retirement, this case was referred to me pursuant to General Order 2022-14 on September 2, 2022.
II. RELEVANT FACTUAL BACKGROUND
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 “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1); see also Spagnola v. Horton, No. 17-1462, 2017 WL 8948745, at *2 (6th Cir. 2017). The Ohio Court of Appeals for the Eighth District set forth the following facts on direct appeal:
{¶3} Between February 2014 and June 2015, Marbuery Davis was indicted in six cases for various drug trafficking related offenses. These cases proceeded before the same judge in the common pleas court. In April 2016, a pretrial was held and the state's plea offer to Marbuery Davis in each of the six cases were placed on the record. The state set forth the terms of each offer and the trial court advised Marbuery Davis that, based upon the plea offer, he would be facing a prison term anywhere from a minimum of 3 years to a maximum of 39 years. The trial court explained to Marbuery Davis that it does not discuss with the state or the defense its views on a defendant's sentence prior to sentencing. The matter was then continued so that Marbuery Davis could be evaluated by the court psychiatric clinic.
{¶4} In May 2016, Marbuery Davis entered guilty pleas to numerous felony counts spanning the six cases. Before accepting Marbuery Davis's plea, the trial court explained on the record that the court psychiatrist had evaluated Marbuery Davis and determined that he was capable of understanding the nature of the proceedings against ceases to hold office while the action is pending[,]” “[t]he officer's successor is automatically substituted as a party.”).
him. The trial court questioned Marbuery Davis: THE COURT: Are you satisfied with the representation that you have received from [your attorney]? [MARBUERY DAVIS]: Yes.
{¶5} The trial court went through the terms of the state's plea offer with Marbuery Davis, advising him of postrelease control and the mandatory driver's license suspension for each count of drug trafficking to which he pled guilty. The court explained, “there is a mandatory suspension of your driver's license which will be determined at sentencing. Minimum would be a six-month suspension, maximum would be five years.”
{¶6} The trial court then engaged in the Crim.R. 11 plea colloquy with Marbuery Davis. This exchange included, in relevant part: THE COURT: All right. Now, two more questions, then we can take your plea. Have any threats been made to you to change your plea? [MARBUERY DAVIS]: No, your Honor. THE COURT: Have there been any promises made to you to get you to change your plea? [MARBUERY DAVIS]: No, your Honor.
{¶7} The trial court accepted Marbuery Davis's guilty pleas to eight counts of drug trafficking, four counts of possessing criminals tools, one count of endangering children, one count of attempted drug possession, and one count of drug possession.
{¶8} The trial court proceeded directly to sentencing. Prior to imposing a sentence, the trial court gave Marbuery Davis the opportunity to present any mitigating information on his own behalf. Marbuery Davis reiterated his guilt, stating: Well, your Honor, I would like to say I'm guilty as charged * * * I'm ready and willing to accept my consequences.
{¶9} The trial court sentenced Marbuery Davis to an aggregate prison term of 22 years and imposed mandatory fines on the applicable trafficking counts under R.C. 2929.18(B)(1), as well as court costs. Immediately upon hearing this sentence, Marbuery Davis requested his court-appointed attorney to move to withdraw the guilty pleas. The trial court gave Marbuery Davis the opportunity to address his request to withdraw his plea. Marbuery Davis told the trial court that his attorney had promised him that if he pled guilty he would receive only a three-year sentence. The state and Marbuery Davis's defense attorney reiterated to the trial court that there had been no agreed sentence and Marbuery Davis's defense attorney advised the trial court that he had not made any promises to Marbuery Davis. When further questioned by the trial court, Marbuery Davis alleged that he wasn't provided any discovery and denied that he was guilty of all the crimes to which he had just pled guilty. The trial court denied Marbuery Davis's motion to withdraw the guilty pleas, noting that he had answered negatively when questioned if any threats or promises had been made to him to induce his plea and had not mentioned any of these allegations prior to being sentenced.
{¶10} The trial court then continued with sentencing. The trial court denied defense counsel's motion to waive fines and court costs, stating that no affidavit of indigence
had been filed prior to sentencing. The trial court advised Marbuery Davis of postrelease control, appointed appellate counsel, and concluded the hearing. Notably, the trial court did not impose a suspension of Marbuery Davis's driver license.
{¶11} On May 20, 2016, Marbuery Davis filed a pro se motion to withdraw his guilty plea, renewing his allegation that his attorney had promised he would receive a three-year sentence and further alleging that counsel had not allowed him to see discovery that had been designated “counsel only.” The trial court filed its sentencing entry on May 23, 2016. It is from this sentencing entry that Marbuery Davis appeals.
{¶12} On May 27, 2016, the trial court set a hearing on Marbuery Davis's pro se motion to withdraw his guilty plea and assigned him new counsel for purposes of that hearing. The hearing was held on June 22, 2016. Because of scheduling and the need to obtain evidence, the court continued the hearing, and ultimately concluded the hearing on October 5, 2016. Over the course of these hearings, the court heard testimony from Marbuery Davis, his girlfriend, Michelle Westover (“Westover”), and his former defense attorney. Westover often contacted Marbuery Davis's attorney by phone and text message and acted as an intermediary between Marbuery Davis and his attorney. For purposes of his former attorney's testimony, Marbuery Davis waived attorneyclient privilege.
{¶13} At the hearing, Marbuery Davis and Westover testified that the attorney had told them Marbuery Davis would get three years in an “off the record” deal with the state. Westover testified that, although she was not certain, she recalled her text messages with the attorney containing a promise of a three-year sentence. She explained that she could no longer recover these text messages because the phone on which she received them had broken, causing its memory to be erased.
{¶14} The attorney testified that not long after being appointed to represent Marbuery Davis, he had presented to both his client and Westover what he understood to be a plea offer from the state that included a term of incarceration for all six cases “as low as three years.” He further testified that this offer “didn't sit quite right with [him],” so he requested the offer be put on the record so that “everybody [would be] on the same page.” The attorney testified that he made no promises that Marbuery Davis would receive a three-year sentence to either Marbuery Davis or Westover. He testified that he explained to both Marbuery Davis and Westover that sentencing was within the court's discretion, and he did not know how the court would ultimately sentence Marbuery Davis. Upon the trial court's request, the attorney produced his text messages with Westover. These text messages were consistent with his testimony that he never made any promise of a three-year sentence to Westover.
{¶15} The attorney also denied that he had kept discovery from Marbuery Davis. He explained that, based upon his understanding of the “counsel only” designation, he could not provide the discovery to his client, but rather had to describe the contents of the discovery to him. Marbuery Davis acknowledged that his attorney did discuss the state's discovery with him.
{¶16} On February 7, 2017, the trial court, construing Marbuery Davis's motion to withdraw as a petition for postconviction relief, filed a “[n]otice * * * pursuant to [App.R. 6(A)]” with this court advising that it had determined that grounds existed to hold a hearing to determine if the court should grant Marbuery Davis's motion to withdraw his guilty plea. The trial court further advised that it became aware of the present appeal only after reviewing the docket in preparing its journal entry and opinion for Marbuery Davis's motion to withdraw his guilty plea. In this notice, the trial court explained that it would not file its ruling on the motion to withdraw until it received a response from this court.
{¶17} On March 15, 2017, we remanded this matter to the trial court pursuant to App.R. 6(A), which states: Whenever a trial court and an appellate court are exercising concurrent jurisdiction to review a judgment of conviction, and the trial court files a written determination that grounds exist for granting a petition for post-conviction relief, the trial court shall notify the parties and the appellate court of that determination. On such notification, or pursuant to a party's motion in the court of appeals, the appellate court may remand the case to the trial court.
{¶18} Following our remand, the trial court denied Marbuery Davis's motion to withdraw his guilty pleas. In May 2017, Marbuery Davis moved to supplement the record to include the trial court's denial of his pro se motion to withdraw his guilty pleas. We granted Marbuery Davis's motion to supplement the record and ordered that he amend his appeal. We also granted the state's request to reopen briefing on these issues.(ECF Doc. 7-2, Ex. 48, PageID#679-86). State v. Davis, 2018-Ohio-1147, ¶¶3-18.
III. RELEVANT STATE PROCEDURAL HISTORY
A. State Conviction
On February 5, 2014, a Cuyahoga County Grand Jury indicted Marbuery Davis, charging him with one count of trafficking with forfeiture and schoolyard specifications, one count of drug possession with forfeiture specifications, and one count of possession of criminal tools with forfeiture specifications. (ECF Doc. 7-1, Ex. 1, PageID#81-85).
On July 7, 2014, a Cuyahoga County Grand Jury indicted Marbuery Davis of six counts of drug trafficking and three counts of drug trafficking. (Id., Ex. 2, PageID#86-90).
On July 28, 2014, a Cuyahoga County Grand Jury indicted Marbuery Davis on five counts of drug possession, eight counts of drug trafficking, one count of possessing criminal tools, one count of having weapons under disability, and one count of endangering children. (Id., Ex. 3, PageID#91-100).
On August 19, 2014, a Cuyahoga County Grand Jury indicted Marbuery Davis on one count of drug possession, one count of possessing criminal tools, and one count of drug trafficking. (Id., Ex. 4, PageID#101-05).
On November 5, 2014, a Cuyahoga County Grand Jury indicted Marbuery Davis on two counts of drug trafficking, one count of drug possession, and one count of possessing criminal tools. (Id., Ex. 5, PageID#106-12).
On June 19, 2015, Marbuery Davis was indicted by a Cuyahoga County Grand Jury on one count of possessing criminal tools, two counts of drug possession, two counts of drug trafficking, and one count of endangering children. (Id., Ex. 6, PageID#113-25).
At his arraignments, Marbuery Davis pled not guilty in all six cases. (See id., Exs. 7-12, PageID#125-32). Later, he withdrew his pleas of not guilty and entered negotiated guilty pleas in each of the six cases. He pled guilty to the following counts:
Case
Guilty Plea
582057
Count 2: Drug Possession Count 3: Possessing Criminal Tools
586437
Counts 1, 4, 7: Drug Trafficking
586870
Counts 11: Drug Trafficking; with a firearm specification Count 13: Drug Trafficking Count 14: Possessing Criminal Tools
587857
Count 1: Drug Possession Count 2: Possessing Criminal Tools
590819
Count 1: Drug Trafficking Count 4: Possessing Criminal Tools
596537
Count 5, 7: Drug Trafficking; with a juvenile specification Count 8: Endangering Children
The trial court sentenced Marbuery Davis to a 22-year aggregate term of imprisonment in all six cases. (See id., Exs. 13-18, PageID#133-143).
After sentencing, Marbuery Davis, through counsel, moved to withdraw his guilty pleas in all six cases on the grounds that he was promised a lesser sentence by his trial counsel. (Id., Ex. 19, PageID#144). The trial court denied the motion based on its determination that Marbuery Davis knowingly, intelligently, and with a full understanding of his rights, entered a guilty plea in each case. (Id., Exs. 19-20, PageID#144-47).
On May 20, 2016, Marbuery Davis, pro se, filed a motion to withdraw his guilty plea, arguing that his plea of guilty was entered by way of threat, duress or coercion, misrepresentation of fact, and promises made off the record. (Id., Ex. 21, PageID#148). The State opposed his motion. (Id., Ex. 22, PageID#151-56). Marbuery Davis, through counsel, filed a supplemental motion to vacate the guilty plea. (Id., Ex. 23, PageID#157-61). The trial court held hearings on the motions. (See, e.g., PageID#474-549, 550-649, 724-822, 823-899). On April 7, 2017, the trial court denied Marbuery Davis's motion to withdraw his guilty plea in all six cases. (Id., Ex. 25, PageID#167).
B. Direct Appeal
Marbuery Davis, through counsel, filed a timely notice of appeal to the Ohio Court of Appeals for the Eighth District. (Id., Ex. 26, PageID#182). He raised the following assignments of error:
Marbuery Davis's assignments of error asserted in his direct appeal are set forth verbatim herein, including certain typographical and/or grammatical errors.
(1) The trial court erred in not allowing Appellant to withdraw his guilty plea.
(2) The trial court erred by ordering Appellant to serve a consecutive sentence without making the appropriate findings required by R.C. 2929.14 and HB 86.
(3) Appellant's sentence is contrary to law because the trial court failed to comply with the purposes and principles of sentencing as set forth in R.C. 2929.11 and R.C. 2929.12.
(4) the trial court erred by ordering Appellant to pay costs when it did not properly comply with the statute.
(5) The court costs imposed at the sentencing hearing infringes upon Appellant's rights under the Eighth and Fourteenth Amendments to the United States Constitution, R.C. 2929.18, R.C. 2919(b)(5), R.C. 2947.14, and related sections of the Ohio Constitution.
(6) Appellant Michael Marbuery-Davis was denied effective assistance of counsel as guaranteed by Section 10, Article I, of the Ohio Constitution and the Sixth and Fourteenth Amendments.(Id. at 202). Respondent filed a brief in opposition. (Id., Ex. 28, PageID#228-50).
On May 4, 2017, Marbuery Davis, through counsel, filed a motion to supplement the record. (Id., Ex. 30, PageID#252-57). The State filed a brief in opposition. (Id., Ex. 31, PageID#258-62). On May 15, 2017, the Ohio Court of Appeals granted Marbuery Davis's motion to supplement the record and ordered both parties to file supplemental briefs regarding the motion to withdraw the guilty plea. (Id., Ex. 32, PageID#263).
In his supplemental brief, Marbuery Davis raised a single assignment of error: (1) The trial court erred in not allowing Appellant to withdraw his guilty plea. (Id., Ex. 33, PageID#264-79). The State filed an opposition brief. (Id., Ex. 34, PageID#280-97). On October 19, 2017, the Ohio Court of Appeals for the Eighth District overruled the assignments of error raised in his direct appeal brief and supplemental brief and affirmed the trial court's judgment. (Id., Ex. 35, PageID#298-321).
On October 27, 2017, Marbuery Davis, pro se, filed an application for reconsideration pursuant to App.R.26(A). He argued that his sentence was void because the trial court failed to impose a driver's license suspension and failed to properly notify him of postrelease control. (Id., Ex. 36, PageID#322-352). The State opposed this application for reconsideration. (Id., Ex. 37, PageID#353-57). Marbuery Davis filed a reply brief. (Id., Ex. 38, PageID#358-61). On November 29, 2017, the Ohio Court of Appeals for the Eighth District denied Marbuery Davis's motion for reconsideration. (Id., Ex. 39, PageID#362).
On December 6, 2017, Marbuery Davis, pro se, filed a motion to certify a conflict and an application for en banc consideration pursuant to App.R.26(A). (Id., Ex. 40, PageID#363-69). On December 14, 2017, Marbuery Davis, pro se, filed a motion for clarification of the court's November 29, 2017 decision denying his application for reconsideration. (Id., Ex. 41, PageID#370-72). On March 22, 2018, the Eighth District Court of Appeals denied Marbuery Davis's motion to certify a conflict and application for en banc consideration pursuant to App.R.26(A). (Id., Exs. 45-46, PageID#668-69).
On March 22, 2018, the Ohio Court of Appeals granted Marbuery Davis's motion for clarification and the court sua sponte reconsidered its October 19, 2017 opinion. (Id., Ex. 47, PageID#676). Upon sua sponte reconsideration, the appellate court issued a decision affirming in part and reversing in part the lower court's judgment. (Id., Ex. 48, PageID#677-704). The appellate court overruled all Marbuery Davis's assignments of error and his reconsideration claim of improper notification regarding postrelease control. (Id.). However, the appellate court accepted Marbuery Davis's argument that the trial court failed to impose a mandatory license suspension. (Id. at 700-01). The appellate court remanded the matter to the trial court to hold a limited resentencing to impose the statutorily mandated license suspension. (Id. at 701-02). Marbuery Davis did not appeal this decision to the Ohio Supreme Court.
C. Ohio App. R. 26(B) Application to Reopen Direct Appeal
On January 12, 2018, Marbuery Davis, pro se, filed an application to reopen his direct appeal pursuant to Ohio Appellate Rule 26(B). (Id., Ex. 42, PageID#373-82). In his 26(B) application, he alleged that his appellate counsel was ineffective for failing to raise the following claims:
Marbuery Davis's grounds asserted in his 26(B) application are set forth verbatim herein, including certain typographical and/or grammatical errors.
(1) The sentence is contrary to law because, the trial court failed to impose a mandatory drivers license suspension as part of the appellant's sentences as required by former R.C. 2925.03(D)(2) and (G), causing the sentence to be void in part-citing State-v-Harris 132 Ohio St. 3D 318.
(2) The trial court abused its discretion because it failed to properly comply with the delegation of powers concerns and to fulfill the requirements of the post release control statutes pursuant to R.C. 2929.19(B); 2929.14(D)(1) and 2967.28.
(3) The sentence is contrary to law because the trial court engaged in the illegal “sentencing package doctrine,” prohibited by State v. Saxon, 109 Ohio St. 3D 176.
(4) The appellant's plea was entered unknowingly, involuntarily, and unintelligently, because the trial court completely failed to comply with Crim.R.11(C)(2)(A) and R.C. 2943.032.
(5) Michael S. Marbuery-Davis Sr, was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendment of the United States Constitution and Article I Section 10 of the Ohio Constitution.(Id.). The State opposed Marbuery Davis's 26(B) application. (Id., Ex. 43, PageID#650-62). Marbuery Davis, pro se, filed a brief in support of his application to reopen direct appeal. (Id., Ex. 44, PageID#663-66). On April 28, 2018, the Ohio Court of Appeals denied his 26(B) application. (Id., Ex. 53, PageID#922-34). Marbuery Davis failed to file a timely appeal to the Ohio Supreme Court.
On August 6, 2018, Marbuery Davis, pro se, filed an untimely appeal from the Ohio Court of Appeals April 18, 2018 decision. (Id., Ex. 54, PageID#934-35). He also filed a motion for leave to file a delayed appeal in the Ohio Supreme Court. (Id. at 936). The Ohio Supreme Court denied his motion for a delayed appeal. (Id., Ex. 55, PageID#970).
D. Ohio App. R. 26(A) Application for Reconsideration
On August 21, 2018, Marbuery Davis, pro se, filed a motion for leave to file an Ohio App. R. 26(A) for reconsideration in the Ohio Court of Appeals for the Eighth District, requesting that the court reconsider its April 18, 2018 decision. (Id., Ex. 56, PageID#971-77). On September 17, 2018, the Ohio Court of Appeals denied his application for reconsideration. (Id., Ex. 57, PageID#978). Marbuery Davis did not appeal this decision to the Ohio Supreme Court.
E. Petition for Post-Conviction Relief
On July 11, 2017, Marbuery Davis, pro se, filed a petition for post-conviction relief under R.C. § 2953.21. He raised the following grounds for relief:
Marbuery Davis's grounds for habeas relief asserted in his post-conviction petition are set forth verbatim herein, including certain typographical and/or grammatical errors.
GROUND ONE: Prior counsel was incompetent and thus ineffective because, he was unaware of the procedure under Crim R. 16(f), to remove the counsel only designation, and due to his ignorance of said rule, failed to advocate the petitioner's cause in viewing his discovery.
GROUND TWO: The petitioner was denied the effective assistance of counsel because prior counsel did not seek permission from the courts to withdraw as the petitioner's counsel, however he stopped preparing the petitioners case, stop providing assistance to the petitioner, and completely abandoned his legal obligations, for a total of twenty-seven (27) days.
GROUND THREE: Prior counsel was ineffective because he failed to conduct pretrial investigations and he failed to prepare a defense for trial on behalf of the petitioner.
GROUND FOUR: Prior counsel was ineffective because the advice he gave to the petitioner to plead guilty was outside of the range of competence demanded of attorney's in criminal cases.(Id., Ex. 49, PageID#705-21). On August 2, 2017, the Cuyahoga Court of Common Pleas denied his petition for post-conviction relief, noting that he raised “substantially similar” claims in his pro se 2016 motion to withdraw his guilty pleas. (Id., Ex. 50, PageID#906-07).
On September 1, 2017, Marbuery Davis, pro se, filed a timely notice of appeal in the Ohio Court of Appeals for the Eighth District. (Id., Ex. 51, PageID#912). On January 16, 2018, the Eighth District Court of Appeals dismissed the appeal for failure to file a brief. (Id., Ex. 52, PageID#921).
F. Appeal of Resentencing
On September 8, 2018, Marbuery Davis, through counsel, filed a notice of appeal from the judgment of the sentence with the Eighth District Court of Appeals. (Id., Ex. 64, PageID#996). He raised the following assignment of error: (1) The trial court erred when it did not conduct a de novo resentencing hearing. (Id., Ex. 65, PageID#1024-33). The State filed a brief in opposition. (Id., Ex. 66, PageID#1034-44). On May 30, 2019, the Eighth District Court of Appeals overruled Marbuery Davis's assignment of error and affirmed the decision of the trial court. (Id., Ex. 67, PageID#1045-50).
Marbuery Davis's assignment of error in his appeal are set forth verbatim herein, including certain typographical and/or grammatical errors.
IV. FEDERAL HABEAS CORPUS PETITION
On November 20, 2019, Marbuery Davis, through counsel, filed the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF Doc. 1). In his Petition, Marbuery Davis asserts the following grounds of relief:
Marbuery Davis's grounds for habeas relief asserted in his Petition are set forth verbatim herein, including certain typographical and/or grammatical errors.
GROUND ONE: Sixth and Fourteenth Amendment
Supporting Facts: Petitioner was denied his right to effective assistance of counsel and was denied his right to received an agreed sentence of 3 years rather than 22 years. Petitioner was denied his right to withdraw his plea when the sentence he believed was promised to him of 3 years was not imposed by the court.
GROUND TWO: Sixth and Fourteenth Amendment
Supporting Facts: Petitioner was denied his constitutional rights when he was sentenced to a consecutive sentence when the court did not make appropriate findings as required by Ohio law. Moreover, the sentence imposed by the court failed to identify the purposes and principles of sentencing set forth by law. Moreover, the court improperly ordered petitioner to pay court costs when the court did not comply with the statutory requirements for the imposition of court costs.
GROUND THREE: Sixth Amendment
Supporting Facts: Petitioner was denied effective assistance of counsel. Petitioner alleged this supported by other persons, that he was promised a 3 year sentence if he entered pleas of guilty to the various charges. Moreover, the court imposed a 22 year sentence instead of the agreed 3 year sentence even though trial counsel had promised a 3 year sentence if petitioner entered a plea guilty. Petitioner was denied his right to withdraw his pleas of guilty when the court did not impose an agreed sentence as promised by his defense counsel. Moreover, the discovery was not properly shared with petitioner so that he could enter a plea of guilty intelligently, knowingly and voluntarily. Moreover, trial counsel fail to file an affidavit the petitioner was indigent even though counsel had been appointed so as to waive any mandatory fines and court cost.(ECF Doc. 1, PageID#5-9). Respondent filed the Return of Writ on April 3, 2020. (ECF Doc. 7). Marbuery Davis, through counsel, filed a Traverse. (ECF Doc. 8). Respondent filed a Sur-Reply.. (ECF Doc. 9).
V. LEGAL STANDARDS
A. Jurisdiction
28 U.S.C. § 2254(a) authorizes this court to entertain an application for a writ of habeas corpus “on behalf of a person in custody pursuant to the judgment of a State court.” A state prisoner may file a § 2254 petition in the “district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him.” 28 U.S.C. § 2241(d). The Court of Common Pleas of Cuyahoga County sentenced Marbuery Davis, and the Court takes judicial notice that Cuyahoga County is within this court's geographic jurisdiction. Accordingly, this Court has jurisdiction over petitioner's § 2254 petition.
B. AEDPA Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Marbuery Davis's petition for writ of habeas corpus. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). AEDPA was enacted “to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases,” and “‘to further the principles of comity, finality, and federalism[.]'” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting Williams v. Taylor, 529 U.S. 420, 436 (2000)). The Act “recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, 571 U.S. 12, 19 (2013). It therefore “erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Id.
One of AEDPA's most significant limitations on district courts' authority to grant writs of habeas corpus is found in § 2254(d). That provision prohibits federal habeas relief with respect to a “claim that was adjudicated on the merits in State court proceedings” unless the state-court decision either:
(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.28 U.S.C. § 2254(d).
Habeas courts review the “last explained state-court judgment” on the federal claim at issue. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (emphasis in original). A state court has adjudicated a claim “on the merits[,]” and AEDPA deference applies, regardless of whether the state court provided little or no reasoning at all for its decision. Harrington v. Richter, 562 U.S. 86, 99 (2011).
“Clearly established Federal law” for purposes of § 2254(d)(1) “is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). It includes only “‘the holdings, as opposed to the dicta, of [Supreme Court] decisions.'” White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Howes v. Fields, 565 U.S. 499, 505 (2012)). The state court decision need not refer to relevant Supreme Court cases or even demonstrate an awareness of them; it is sufficient that the result and reasoning are consistent with Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state court does not act contrary to clearly established law when the precedent of the Supreme Court is ambiguous or nonexistent. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam).
A state-court decision is contrary to “clearly established Federal law” under § 2254(d)(1) only “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). And “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
A state court's determination of fact is unreasonable under § 2254(d)(2) only if the court made a “clear factual error.” Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). The petitioner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” Burt, 571 U.S. at 18 (quoting § 2254(e)(1)); see also Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011). “This standard requires the federal courts to give considerable deference to state court decisions.” Ferensic v. Birkett, 501 F.3d 469, 472 (6th Cir. 2007). The Supreme Court has cautioned, “‘a statecourt factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'” Burt, 571 U.S. at 18 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
Indeed, the Supreme Court has repeatedly emphasized that § 2254(d), as amended by AEDPA, is an intentionally demanding standard, affording great deference to state court adjudications of federal claims. The Supreme Court has admonished that a reviewing court may not “treat[] the unreasonableness question as a test of its confidence in the result it would reach under de novo review[,]” and that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102 (2011); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.”). Rather, § 2254(d) “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,'” and does not function as a “substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03, quoting Jackson, 443 U.S. at 333 n.5 (Stevens, J., concurring in judgment). Thus, a petitioner “must show that the state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103. The Supreme Court readily acknowledges that this is a very high standard, observing that: “If this standard is difficult to meet, that is because it was meant to be.” Id. at 102.
C. Cognizable Federal Claim
A petition for a writ of habeas corpus filed by a petitioner imprisoned under the judgment of a state court is governed by 28 U.S.C. § 2254(a), which permits the state prisoner to challenge his custody “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Id. To say that a petitioner's claim is not cognizable on habeas review is another way of saying that his claim “presents no federal issue at all.” Bates v. McCaughtry, 934 F.2d 99, 101 (7th Cir. 1991). Federal habeas corpus relief “does not lie for errors of state law[.]” Lewis v. Jeffers, 497 U.S. 764, 780 (1990), and the federal court is bound by the state court's interpretations of state law. See, e.g., Wainwright v. Goode, 464 U.S. 78, 84 (1983). A federal habeas court does not function as an additional state appellate court reviewing state courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988) (citing Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987). “[F]ederal courts must defer to a state court's interpretation of its own rules of evidence and procedure” in considering a habeas petition. Allen, 845 F.2d at 614 (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)).
VI. ANALYSIS
A. Exhaustion
1. Legal Standard
The U.S. Supreme Court has recognized that “[p]rocedural barriers, such as statutes of limitations and rules concerning procedural default and exhaustion of remedies, operate to limit access to review on the merits of a constitutional claim.” Daniels v. United States, 532 U.S. 374, 381 (2001); see also United States v. Olano, 507 U.S. 725, 731 (1993). Under AEDPA, state prisoners must either exhaust all possible state remedies or have no remaining state remedies before a federal court can review a petition for writ of habeas corpus. 28 U.S.C. § 2254(b) and (c); see also Rose v. Lundy, 455 U.S. 509, 515- 19 (1982). This entails giving the state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990) (“The highest court in the state in which the petitioner was convicted [must have] been given a full and fair opportunity to rule on the petitioner's claims.”). To exhaust a claim, a petitioner must present it “to the state courts under the same theory in which it is later presented in federal court.” Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); see also McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
2. Respondent's Arguments
Respondent argues that the court should dismiss Marbuery Davis's Petition because it contains unexhausted claims. Specifically, Respondent contends that Marbuery Davis's assertions that the trial court failed to make factual findings prior to imposing consecutive sentences, and that he received ineffective assistance of trial counsel are unexhausted to the extent that these claims are the same claims as those raised on direct review. (ECF Doc. 7, PageID#53). Because Marbuery Davis failed to appeal his direct appeal claims to the Ohio Supreme Court and still has an opportunity to pursue a delayed appeal, Respondent argues that Marbuery Davis's unexhausted claims must be dismissed until he files a motion for delayed appeal in the Ohio Supreme Court. (See id. at 53-54). Further, Respondent asserts that Marbuery Davis's appeal of his 26(B) denial to the Ohio Supreme Court did not serve to exhaust these claims. (Id. at 54). Finally, Respondent submits that a dismissal rather than a stay is the appropriate disposition for Marbuery Davis's direct review claims. (Id. at 55). He contends that Marbuery Davis has failed to establish good cause for failure to exhaust state court remedies. (Id.).
Respondent does, however, acknowledge that the United States Supreme Court has held that, where a petitioner presents a mixed petition and determines that stay and abeyance is inappropriate, “the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief.” (Id. (quoting Rhines v. Weber, 544 U.S. 269, 278 (2005)). Assuming that Marbuery Davis could meet this burden, Respondent states that he would not oppose a motion by Marbuery Davis to dismiss his ineffective assistance of trial counsel claim and his second ground for relief. (Id. at 56).
Alternatively, Respondent contends that, if the Court deems it would be futile for Marbuery Davis to file a motion for leave to file a delayed appeal in the Ohio Supreme Court, the claims raised on direct review are procedurally defaulted because Marbuery Davis failed to file a timely appeal with the Ohio Supreme Court from the Eighth District Court of Appeals' decision affirming his conviction. (Id. at 56). Moreover, Respondent maintains that Marbuery Davis fails to demonstrate cause and prejudice, nor has he established actual innocence to excuse his procedural default. (See id. at 56-57). Accordingly, Respondent argues that Marbuery Davis's claims are procedurally defaulted and should be precluded from habeas review.
3. Application to Grounds One through Three
Marbuery Davis's three habeas grounds are difficult to decipher, but they all appear to assert trial court error and/or ineffective assistance of counsel based on trial counsel's alleged promise that Marbuery Davis would receive an aggregate sentence of three years imprisonment rather than the 22-year sentence imposed by the trial court, and the trial court therefore should have allowed Marbuery Davis to withdraw his guilty plea. (See ECF Doc. 1). Respondent's argument that Marbuery Davis previously raised these claims on direct review is well-taken. Indeed, the entirety of the claims in Marbuery Davis's Petition - with the exception of his claim that trial counsel was ineffective for failing to remove the “counsel only” designation from discovery materials - were raised on direct appeal. (See ECF Doc. 7-1, PageID#209-224). Specifically, a review of the record confirms that Marbuery Davis properly raised the relevant claims in his Petition on direct appeal, i.e., claims of ineffective assistance of trial counsel with respect to advice regarding his plea and failure to file an indigency affidavit, the trial court's imposition of court fees, and the trial court's imposition of a consecutive sentence. (Id.). Yet, Marbuery Davis never appealed the Ohio Court of Appeals' March 22, 2018 decision to the Ohio Supreme Court. Despite his failure to appeal, under Ohio S.Ct.Prac.R. 7.01(A)(4), he may still pursue a delayed appeal to the Ohio Supreme Court, if he demonstrates good cause.
Before a federal habeas court may grant relief, a state prisoner must exhaust his available remedies in state courts. 28 U.S.C. § 2254(b)(1); Castille v. Peoples, 489 U.S. 346, 349 (189). If a habeas petitioner has the right under state law to raise a claim by any available procedure, he has not exhausted that claim. 28 U.S.C. § 2254(b),(c). Moreover, a constitutional claim for relief must be presented to the state's highest court in order to satisfy the exhaustion requirement. Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). In Ohio, this exhaustion requirement includes direct and delayed appeals to the Ohio Court of Appeals and the Ohio Supreme Court. See Mackey v. Koloski, 413 F.2d 1019, 1021 (6th Cir. 1969) (“We conclude that while a delayed appeal on the merits of the conviction is open to the appellant he has not exhausted his state remedies.”); Allen v. Perini, 26 Ohio Misc. 149 (6th Cir. 1970); Creagh v. Wainwright, No. 3:18-cv-2227, 2020 WL 730833 (N.D. Ohio Feb. 13, 2020).
Under Ohio S.Ct. R. 7.01(A)(1)(a)(1), a party has 45 days from the entry of judgment to file a notice of appeal. Thus, Marbuery Davis would be outside of that period at this time. However, Marbuery Davis may still seek a delayed appeal pursuant to Ohio S.Ct. R. 7.01(A)(4). Courts in this District have held that a petitioner's federal habeas claims are not exhausted where he may yet file a motion for delayed appeal in the Ohio Supreme Court. See Williams v. Bobby, No. 1:06-cv-2032, 2007 WL 2156402, at *7 (N.D. Ohio July 25, 2007) (unpublished) (finding that the third and fourth grounds for relief were not exhausted because petitioner still had the remedy of filing a motion for delayed appeal to the Ohio Supreme Court); Dunford v. Tibbals, No. 3:11-cv-2028, 2013 WL 5726083, at *11 (N.D. Ohio Oct. 21, 2013) (“Because [petitioner] arguably still has a remedy (delayed appeal) in state court, his claims are unexhausted and not defaulted.”), report and recommendation adopted, 2014 WL 619206 (N.D. Ohio Feb. 18, 2014). Because Marbuery Davis likely still has the remedy of a delayed appeal in state court, his claims are unexhausted and not defaulted. 28 U.S.C. § 2254(c); see Banks v. Jackson, 149 Fed.Appx. 414, 418 (6th Cir. 2005).
Marbuery Davis contends that he exhausted all grounds in his Petition to the Ohio Supreme Court. (ECF Doc. 1, PageID#2). However, the case he cites as proof of exhaustion is his appeal to the Ohio Supreme Court from the Eighth District Court of Appeals' denial of his 26(B) application. (Id.). A 26(B) application is a post-conviction action that serves to exhaust claims of ineffective assistance of counsel, not Marbuery Davis's direct appeal claims. See Lott v. Coyle, 261 F.3d 594, 612-13 (6th Cir. 2001). Further, yet another issue with his assertion is that his 26(B) application did not raise the majority-if not all-of the claims that he now attempts to assert in his Petition. (See generally ECF Doc. 7-1, PageID#373-81). Therefore, from a logical standpoint, his appeal of his 26(B) denial to the Ohio Supreme Court would not have preserved his claims because they were never raised in his application. In sum, Marbuery Davis's 26(B) application did not serve to exhaust the claims raised in Ground Two or his other ineffective assistance of trial counsel claims raised in his Petition.
Finally, an exception to the exhaustion requirement exists only if there is no opportunity to obtain relief in the state courts, or if the corrective process is so clearly deficient as to render futile any effort to obtain relief in the state courts. Duckworth v. Serrano, 454 U.S. 1,3 (1983). An inordinate delay in adjudicating state court claims may be a circumstance which would excuse the exhaustion of state court remedies, especially when the State is responsible for the delay. See Workman v. Tate, 957 F.2d 1339, 1344 (6th Cir. 1992). Additionally, a habeas petitioner who makes “frequent but unavailing requests to have his appeal processed” in the state courts should not be “required to take further futile steps in state court in order to be heard in federal court,” even if the state court subsequently decides his appeal. Turner v. Bagley, 401 F.3d 718, 726 (6th Cir. 2005). Yet, Marbuery Davis neither alleges nor establishes that any of these circumstances apply to his case. Accordingly, Marbuery Davis's claims are unexhausted because he has not sought a delayed appeal to the Ohio Supreme Court.
4. Stay and Abeyance
The remaining issue regarding exhaustion is whether Marbuery Davis's petition is entitled to a stay and abeyance. Because Marbuery Davis did not exhaust his Ground Two claims and his Ground One/Ground Three ineffective assistance of trial counsel claims regarding an alleged promise from trial counsel inducing a guilty plea and failure to file an indigency affidavit, his habeas petition is “mixed” in that it contains exhausted and unexhausted claims. See Rhines v. Weber, 544 U.S. 269, 271 (2005). A federal court has discretion to stay a mixed habeas petition, containing both exhausted and unexhausted claims, to allow a petitioner to present the unexhausted claims to the state courts first and then return to federal court on a perfected petition. Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is available only in “limited circumstances” such as when the one-year statute of limitations applicable to federal habeas actions poses a concern, and when the petitioner demonstrates “good cause” for the failure to exhaust state court remedies before proceeding in federal court and the unexhausted claims are not “plainly meritless.” Id. at 277.
Here, Marbuery Davis has not demonstrated good cause for his delay in seeking a delayed direct appeal. Indeed, Marbuery Davis wholly fails to provide any indication of good cause in his Traverse. On March 22, 2018, the Ohio Court of Appeals dismissed Marbuery Davis's direct appeal. Although he certainly pursued his rights through 26(B) application and post-conviction relief, he did not make any effort to file a motion for leave to file a delayed appeal in the Ohio Supreme Court from the appellate court's decision on direct review. A timely appeal would have been due to the Ohio Supreme Court by May 7, 2018. Significantly, he still has a remedy to pursue a delayed appeal. Thus, Marbuery Davis has failed to demonstrate good cause.
Even if Davis could demonstrate good cause for failure to exhaust his claims in Ground One, his unexhausted claims appear to be meritless. The Ohio Court of Appeals found that his currently unexhausted claims lack merit. See State v. Ohio, 2018-Ohio-1147, ¶¶29-59. Finally, there is no indication that Marbuery Davis has engaged in dilatory litigation tactics in this case. Rather, the record reflects that he attempted to diligently pursue his rights in other proceeding contexts-just not in the direct appeal context. Nonetheless, he has failed to show good cause for his failure to exhaust the claims asserted in Ground Two and the ineffective assistance of counsel claims intertwined in Grounds One and Three. Further, it does not appear that these claims will prevail on the merits. For these reasons, a stay is not warranted, and I recommend that the Court dismiss Marbuery Davis's Ground Two claim (trial court's imposition of court fees, imposition of consecutive sentences, and failure to identify the purposes and principles of sentencing set forth by law) and his Grounds One/Three ineffective assistance of trial counsel claims regarding trial counsel's alleged promise of lesser sentence inducing his guilty plea and failure to file an indigency affidavit be dismissed as unexhausted.
Alternatively, if the Court concludes that exhaustion of these issues would be futile and Marbuery Davis's claims are not otherwise procedurally defaulted, this Report and Recommendation addresses the merits of the claims below.
The requirement of filing a timely appeal is an applicable procedural rule which Marbuery Davis failed to follow. Ohio S.Ct. R. 7.01(A)(1)(a)(i). In addition, it is well-established the Ohio Supreme Court's decision denying a motion for leave to file a delayed appeal constitutes a procedural ruling sufficient to bar federal court review of the petitioner's habeas petition. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). This procedural rule has been deemed to be an adequate and independent state ground for barring review. See Coleman v. Thompson, 501 U.S. 722, 740 (1991). Because Marbuery Davis has not established cause or prejudice or actual innocence to excuse such a procedural default, these claims would be procedurally defaulted.
B. Ground One
In his Ground One claim, Marbuery Davis asserts that he was denied his right to effective assistance of counsel. (ECF Doc. 1, PageID#5). He also asserts he was denied his right to receive an agreed sentence of three years imprisonment rather than 22 years. (Id.). Finally, he contends that the trial court improperly denied Marbuery Davis from withdrawing his plea after the trial court did not impose the sentence Marbuery Davis believed he was entitled to receive. (Id.).
1. Cognizability
To the extent that Petitioner asserts he was denied his right to withdraw his guilty plea when the trial court imposed a sentence different from that allegedly promised by trial counsel, this claim is not cognizable. There is no federal constitutional right to withdraw a plea. Hynes v. Birkett, 526 Fed. App'x 515, 521 (6th Cir. 2013); United States v. Woods, 554 F.3d 611, 613 (6th Cir. 2009) (“The defendant is not entitled to. the withdrawal of [his] plea as a matter of right”); Dickey v. Warden, Lebanon Corr. Inst., 2010 WL 92510, at *7-8 (S.D. Ohio Jan. 6, 2010) (“[T]here is no federal constitutional right, or absolute right under state law, to withdraw a guilty plea.”) (citing cases). Moreover, to the extent that he alleges that the trial court improperly denied his motion to withdraw his guilty plea, such a claim should also be rejected. Generally, federal habeas courts “lack[] authority to adjudicate a claim that the state court improperly denied a motion to withdraw a guilty plea.” Artiaga v. Money, 2007 WL 928640, at *2 (N.D. Ohio Mar. 27, 2007); see also Xie v. Edwards, 1994 WL 462143, at *2, 35 F.3d 567 (6th Cir. 1994) (unpublished) (finding that whether trial court abused discretion in denying motion to withdraw plea is a question of state law). “[I]n the absence of a constitutional violation in the taking of the plea, a trial court's abuse of discretion in denying a subsequent motion to withdraw the plea does not trigger constitutional concerns.” Weaver v. Moore, No. 1:06-CV-00557, 2008 L 697705, at *12 (S.D. Ohio Mar. 12, 2008).
2. Ineffective Assistance of Counsel
Although Marbuery Davis alleges that he was denied ineffective assistance of counsel in his Petition, he does not explain what error his trial counsel allegedly made. (See ECF Doc. 1, PageID#5). Pro se habeas petitioners are entitled to liberal pleading standards, but such pleadings standards do not apply to this Petition because Marbuery Davis was represented by counsel at the time of filing. (See id. at 16). “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to ... put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). Furthermore, a habeas petitioner must identify specific acts or omissions of counsel that are alleged not to be the result of reasonable professional judgment in order to obtain habeas relief for an ineffective assistance of counsel claim. Strickland v. Washington, 466 U.S. 668 (1984). A conclusory claim of ineffective counsel, unsupported by specific facts, is wholly insufficient to allege constitutional defects in a criminal proceeding and does not provide a basis for habeas relief. See Workman v. Bell, 160 F.3d 276, 287 (6th Cir. 1998). Thus, I recommend that this portion of his Ground One claim should be deemed waived.
However, in the abundance of caution, this Report and Recommendation notes that Marbuery Davis is likely raising an ineffective assistance of trial counsel claim that is similar or identical to his Ground Three claim, i.e., that his trial counsel induced him to plead guilty based on allegedly false promises regarding the length of his sentence. To the extent that this Court construes this portion of his Ground One claim as such, this Report and Recommendation addresses the merits of this assertion in its Ground Three analysis.
C. Ground Two
Petitioner asserts he was denied his constitutional rights when the trial court imposed a consecutive sentence without making appropriate findings required by Ohio law. (ECF Doc. 1, PageID#7). He further argues that the trial court failed to identify the purposes and principles of sentencing set forth by law. (Id.). Moreover, he contends that the trial court improperly ordered him to pay court costs when the court did not comply with the statutory requirements for the imposition of court costs. (Id.). In response, Respondent asserts that Petitioner's Ground Two claim is not cognizable for federal habeas corpus review. (ECF Doc. 7, PageID#47-48).
1. Cognizability
a. Trial Court's Imposition of a Consecutive Sentence
Petitioner's Ground Two claim challenging his sentencing and the court's imposition of court fees is not cognizable for federal habeas review. Although Petitioner refers to the Sixth and Fourteenth Amendments, his claim does not present a federal question because it plainly hinges on a matter relating to state sentencing, which is not a cognizable federal issue. It is well established that, in conducting habeas review, “a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle, 502 U.S. at 68. As such, the Supreme Court has explained “it is not the province of a federal habeas court to reexamine state-court decisions on state-law questions.” Id. at 67-68. See also Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007). Indeed, courts have consistently found that a habeas petitioner cannot challenge the interpretation and application of Ohio's sentencing laws, as “a state court's interpretation and application of Ohio's sentencing laws is not cognizable in a federal habeas corpus action.” Croce v. Miller, No. 1:15-cv-1758, 2017 WL 3394046, at *22 (N.D. Ohio July 12, 2017) (collecting cases). Moreover, as Petitioner even acknowledges, courts have consistently held that “[n]o federal constitutional issue is presented where.the sentence is within the range prescribed by state law.” Mahan v. Bunting, No. 1:13-CV-00165, 2014 WL 153444, at *18 (collecting cases).
And even if the trial court erred under state law by failing to engage in judicial factfinding before sentencing Petitioner to consecutive sentences, this error itself is a state law issue, which is beyond the jurisdiction of this Court. See Howell v. Tibbles, No. 1:11-CV-02029, 2013 WL 2337977, at *11 (N.D. Ohio May 28, 2013) (“[W]hether the trial court erred under state law by failing to engage in judicial factfinding before sentencing [petitioner] to consecutive sentences, by itself, is a question beyond the jurisdiction of this court.”). Further, to the extent that Petitioner attempts to allege that his consecutive sentence is in violation of the Sixth Amendment, this claim should also be rejected. The U.S. Supreme Court has ruled that the Sixth Amendment does not prohibit judges from imposing consecutive, rather than concurrent, sentences. Oregon v. Ice, 55 U.S. 160 (2009); Shie v. Smith, No. 1:08CV194, 2009 U.S. Dist. LEXIS 16431, 2009 WL 385617, at *3 (N.D. Ohio Feb. 13, 2009). Accordingly, I recommend that this Court deny this aspect of Marbuery Davis's Ground Two claim as non-cognizable.
b. Trial Court's Order to Pay Court Costs
Marbuery Davis's claim that the trial court improperly ordered him to pay court costs without complying with the statutory requirements for the imposition of court costs should also be rejected because it does not state a cognizable claim for federal habeas relief. Despite casting his claim as a federal constitutional issue by stating the words “Sixth Amendment” and “Fourteenth Amendment” in his heading, Marbuery Davis's challenges to the imposition of fees is based solely on state law, and “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Further, Marbuery Davis's claim is not cognizable because under 28 U.S.C. § 2254(a), he is only entitled to the writ of habeas corpus if he is “in custody of the violation of the Constitution or laws or treaties of the United States.” And generally, “fines or restitution orders fall outside the scope of the federal habeas statute because they do not satisfy the ‘in custody' requirement of a cognizable habeas claim.” Washington v. McQuiggin, 529 Fed.Appx. 766, 772 (6th Cir. 2013); see also Warsaw v. Palmer, No. 16-2554, 2017 WL 5201934, at *1 (6th Cir. Apr. 19, 2017) (denying a certificate of appealability on the petitioner's ground for relief challenging the court costs, reasoning that the “ground for relief is not cognizable because it does not challenge the fact or duration of his confinement”). Accordingly, I recommend that the Court deny Marbuery Davis's Ground Two claim as not cognizable.
D. Ground Three
Marbuery Davis's Ground Three claim argues that he was denied the effective assistance of counsel because trial counsel allegedly promised him he would receive a three-year sentence if he pleaded guilty to the various charges, rather than the 22-year sentence imposed by the trial court. (ECF Doc. 1, PageID#8). He also contends that he was denied the right to withdraw his guilty pleas when the trial court did not impose the agreed sentence allegedly promised by his defense counsel. (Id.). Further, he asserts that his trial counsel did not properly share discovery documents with him, which in turn prevented him from entering a knowing, intelligent, and voluntary guilty plea. (Id.). Finally, he argues that his trial counsel was ineffective for failing to file an indigency affidavit on his behalf, even though his trial counsel had been appointed to waive any mandatory fines and court costs. (Id. at 9).
This claim overlaps with claims previously raised in the Petition. It appears that Marbuery Davis is attempting to allege that he was denied his right to withdraw his guilty pleas because his trial counsel allegedly promised a different sentence. Yet, as established in Ground One, there is no constitutional right to withdraw a guilty plea. Accordingly, to the extent he attempts to assert a constitutional right to withdraw a guilty plea, I recommend that the claim should be rejected.
In his Traverse, Marbuery Davis asserts that he was induced to enter a guilty plea based on his attorney's alleged promises. (ECF Doc. 8, PageID#1124). Citing to Lafler v. Cooper, 566 U.S. 156 (2012), Marbuery Davis asserts that the Ohio Court of Appeals rendered a decision contrary to a Supreme Court decision or was an “unreasonable rendition and interpretation of the facts” under 28 U.S.C. § 2554. (Id.). He acknowledges that the trial court properly advised him of his constitutional rights. (Id. at 1125). However, he asserts that the court has not addressed the issue as to “whether a plea of guilty was induced by improper consideration with promises made by the defense attorney.” (Id.). Because he was allegedly promised a three-year term of imprisonment and there was not a hearing “where everyone could testify as to what was said or what was not said,” he asserts that he is entitled to a writ of habeas corpus. (Id.).
1. Improper Promise
a. Merits
Marbuery Davis's ineffective assistance of trial counsel claim regarding his trial counsel's alleged false promise should be rejected because it lacks merit. Because a criminal defendant waives several constitutional rights when he enters a guilty plea, any plea must be entered into knowingly and voluntarily to be constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 244 (1969). “‘The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988), abrogated on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). When applying this standard, the reviewing court must consider the totality of circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries a presumption of truthfulness. Blackledge v. Allison, 431 U.S. 63 (1977).
The Sixth Amendment provides that a criminal defendant is entitled to the effective assistance of counsel. Missouri v. Frye, 566 U.S. 134, 138(2012). To establish a violation of this right, a habeas petitioner bears the burden of pleading and proving that his attorney's performance was in some way deficient, and that the defense was prejudiced as a result of the deficiency. Strickland v. Washington, 466 U.S. 668 (1984). A deficiency occurs when counsel has acted in a way that falls below an objective standard of reasonableness under prevailing professional norms. Id. at 688. Within the context of a guilty plea, prejudice is shown by demonstrating “there is a reasonable probability that, but for counsel's error, [Petitioner] would not have pleaded guilty and would have, instead, insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). The Sixth Circuit has consistently held that any prejudice caused by counsel's erroneous advice concerning the defendant's sentencing exposure is cured if the trial court gives him the correct sentencing information during the change-of-plea hearing. See Ramos v. Rogers, 170 F.3d 560, 565-66 (6th Cir. 1999); United States v. Pola, 703 Fed.Appx. 414, 423 (6th Cir. 2017); Ewing v. United States, 651 Fed.Appx. 405, 411 (6th Cir. 2016); Cadavid-Yepes v. United States, 635 Fed.Appx. 291, 299300 (6th Cir. 2016).
While Marbuery Davis cites to Lafler v. Cooper, 566 U.S. 156 (2012), he does not explain his rationale for doing so. He appears to assert that Lafler stands for the proposition that trial counsel is deficient if trial counsel promises a certain sentence, and the trial court does not impose that sentence. (See ECF Doc. 8, PageID#1124). Thus, he contends that a writ of habeas corpus may be issued because the Ohio Court of Appeals' decision is contrary to a Supreme Court decision and an unreasonable determination of the facts under 28 U.S.C. § 2254. (Id. at 1124-25).
Marbuery Davis's invocation of Lafler is unavailing here. In Lafler v. Cooper, all parties agreed that the performance of the petitioner's counsel was deficient when he advised the petitioner to reject a plea offer because the petitioner could not be convicted at trial. 566 U.S. at 163. Thus, the issue before the Supreme Court in Lafler was how to apply Strickland's prejudice prong. Id. The court held that when ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the later trial:
[A] defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.Id. at 164. The Court then addressed the issue of the appropriate remedy. It determined that the trial court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that, but for counsel's errors he or she would have accepted the plea. See id. at 170-71.
Marbuery Davis's argument is incorrect because Lafler is factually distinguishable from the instant case. In Lafler, the Court's analysis was confined to assessing prejudice (the second Strickland prong) because the parties in that case agreed that counsel's performance was deficient (the first Strickland prong). See 566 U.S. at 163-64; see also Leonhart v. Shoop, No. 19-3570, 2019 WL 6869631, at *2 (6th Cir. 2019) (distinguishing its case from Lafler on the same basis). Here, the heart of the parties' dispute is whether Marbuery Davis's counsel was constitutionally deficient by allegedly promising Marbuery Davis a lesser sentence that the trial court did not in fact impose. (See ECF Doc. 1, PageID#8; ECF Doc. 8, PageID#1125). Marbuery Davis thus presumes deficient performance of trial counsel without making the required deficiency showing under the Strickland standard. (See ECF Doc. 8, PageID#1124-25).
In applying the Strickland standard, the Ohio Court of Appeals here determined that the evidence Marbuery Davis presented at his hearing on his motion to withdraw his guilty plea- testimony from himself and his girlfriend-did not support his ineffective assistance of counsel claim. State v. Davis, 2018-Ohio-1147, ¶¶31-32. Marbuery Davis's Petition and Traverse wholly fail to demonstrate why the Court of Appeals' ruling constitutes an unreasonable application of clearly established federal law or an unreasonable determination of the facts of his case.
Indeed, the Court of Appeals' ruling appears to be well-founded. In a trial court entry, the trial court found that Marbuery Davis failed to present credible evidence that his former attorney promised or guaranteed that the court would impose any particular sentence. (ECF Doc. 7-1, PageID#176-77). At the hearing to withdraw his guilty plea, Marbuery Davis and his girlfriend testified that the attorney told them Marbuery Davis would get three years in an “off the record” deal with the state. Marbuery Davis's girlfriend testified that, although she was not certain, she recalled her text messages with the attorney containing a promise of a three-year sentence. (ECF Doc. 7-2, PageID#683). Yet, she explained that she could no longer recover these text messages because the phone on which she received them had broken, meaning that its memory had been erased. (Id. at 506-507, 683-84).
Conversely, Marbuery Davis's former attorney testified that that he did not promise Marbuery Davis or his girlfriend that Marbuery Davis would receive a three-year sentence and, in fact, he explained to them that sentencing was within the trial court's discretion. (See id. at 53032). Indeed, at the trial court's request, the attorney produced text messages with Davis' girlfriend that the trial court deemed were wholly consistent with the testimony of Marbuery Davis's attorney. (See id. at 176-77).
Marbuery Davis does not offer any supporting facts to cast doubt on the Ohio Court of Appeals' determination. (See generally ECF Doc. 1, PageID#5-9; ECF Doc. 8, PageID#1123-25). Thus, Marbuery Davis has failed to demonstrate the cause portion of his ineffective assistance of trial counsel claim. Based on the record, I cannot conclude that the Ohio Court of Appeals' decision was an unreasonable application of clearly established federal law or determination of the facts. Accordingly, I recommend that the Court reject Marbuery Davis's ineffective assistance claim as lacking in merit because he has failed to demonstrate deficient performance.
b. Evidentiary Hearing
Marbuery Davis argues that his claim “has never been addressed at a hearing where everyone could testify as to what was said or what was not said.” (ECF Doc. 8, PageID#1125). To the extent that he requests an evidentiary hearing on this issue, AEDPA forbids a hearing under the circumstances. Under 28 U.S.C. § 2254(e)(2), if an applicant has failed to develop the factual basis of a claim in state court proceeding, the district court shall not hold and evidentiary hearing on the claim unless the applicant shows his claim: (1) relies on a new rule constitutional law; or (2) a factual predicate that could not have been previously discovered through the exercise of due diligence, and the facts underlying the claim would be sufficient to establish by clear and convincing evidence that - but for constitutional error - no reasonable fact finder would have found the applicant guilty of the underlying offense. Id.
It is entirely unclear from Marbuery Davis's Traverse who “everyone” is and what he means by “what was said or what was not said.” (See ECF Doc. 8, PageID#1125). Moreover, the record reflects that there was a hearing regarding Marbuery Davis's motion to withdraw his guilty plea where he and his girlfriend alleged that he was promised a three-year sentence by his trial counsel. At this hearing, Marbuery Davis, his girlfriend, and his trial attorney testified to the exchange between each other. Presumably, Marbuery Davis is referring to the remedy of an evidentiary hearing provided in Lafler v. Cooper. Yet, for the reasons established earlier in this Report and Recommendation, Lafler is not applicable to Marbuery Davis's case.
Here, Marbuery Davis is not relying on any new rule of constitutional law, and he has not asserted that he wishes to present evidence that was unavailable to him when the case was pending in state court. Moreover, this is not a situation where Marbuery Davis seeks to show that a jury would find him not guilty of the crime to which he pleaded guilty. Finally, the facts currently in the record can resolve his claim. Thus, the statute itself bars a hearing. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”). Accordingly, I recommend that this Court deny Marbuery Davis's request for an evidentiary hearing.
2. Discovery Trial Documents
Marbuery Davis's assertion that trial counsel was ineffective for not removing the “counsel only” designation from certain items provided by the state in discovery - and that it prevented him from making a knowing, intelligent, and voluntary plea - should also be rejected. The Ohio Court of Appeals determined the following in his 26(B) application:
{¶22} Marbuery Davis argues in this fifth proposed assignment of error that trial counsel was ineffective. The body of his argument asserts that counsel was ineffective for not removing the “counsel only” designation from certain items provided by the state in discovery, and for not sharing those items with him and for failing to act as his attorney during the time a motion to proceed pro se was pending.
{¶23} In his direct appeal, in a supplemental brief filed May 27, 2017, Marbuery Davis argued that this court should vacate his guilty pleas because trial counsel was ineffective for failing to share discovery with him and for failing to act as his attorney during the time a motion to proceed pro se was pending. Therefore, Marbuery Davis alleged that trial counsel was constitutionally ineffective for the same reasons argued in his application for reopening. This court rejected the
arguments that counsel was deficient for these reasons as a basis for allowing Marbuery Davis to withdraw his pleas. Davis II at ¶ 27. This error was raised below and may not form the basis for an application to reopen.
{¶24} The Sixth District addressed a similar situation in an application to reopen an appeal. State v. Mitchell, 6th Dist. Erie No. E-11-039, 2012-Ohio-5262. It held that applicant “can make no convincing ineffective assistance argument since his previous counsel did in fact raise and argue this issue. Repeating it here, even with some variation, does not establish ineffective assistance.” Id. at 8.
(25} An application for reopening may not rely on arguments that were addressed in the underlying appeal. This is because res judicata applies to bar such arguments. The Ohio Supreme Court has characterized the application for reopening as a collateral postconviction proceedings. Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157. As with other postconviction proceedings, res judicata can act to bar arguments that were raised in the direct appeal. State v. McGree, 8th Dist. Cuyahoga No. 91638, 2009-Ohio-6637. Appellate counsel cannot be ineffective for failing to pursue an error that was actually advanced in the underlying appellate proceedings. Marbuery Davis's attempt to slightly alter the argument does not preclude the application of res judicata.
(26} In an abundance of caution, because these errors were raised in different contexts with different applicable standards, we will address them.
{¶27} The trial court held a hearing on Marbuery Davis's motion to withdraw his pleas where the court heard testimony from trial counsel. There, it was learned that trial counsel did not provide Marbuery Davis with discovery that was marked “counsel only,” but provided summaries for those items. (Tr. 109-110.) Trial counsel would also not share discovery marked “counsel only” with Marbuery Davis's girlfriend. Id. Counsel also stated that he did not attempt to remove the “counsel only” designation from discovery materials, nor was he familiar with the process for doing so. Id. at 111.
{¶28} Marbuery Davis does not indicate how receiving summaries of these materials, rather than the actual documents, prejudiced him in his decision to plead guilty. Therefore, he has not presented a colorable claim of ineffective assistance of counsel.
Marbuery Davis has not demonstrated how the Ohio Court of Appeals' decision is an unreasonable application of Strickland or an unreasonable determination of the facts. He does not identify any piece of discovery that would have affected his decision to enter into his guilty plea. Nor has he identified any piece of information or specific discovery of which he was previously unaware that would bolster his defense. Instead, he merely states in conclusory fashion that counsel was ineffective for failing to remove the counsel-only designation, and as a result his guilty plea was not knowing, voluntary, and intelligent. A conclusory claim of ineffective counsel, unsupported by specific facts, is wholly insufficient to allege constitutional defects in a criminal proceeding and does not provide a basis for habeas relief. See Workman, 160 F.3d at 87. To satisfy the prejudice requirement for an ineffective assistance of counsel claim in the guilty plea context, the petitioner must show that “there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 57. Marbuery Davis has not made this showing. (See ECF Doc. 1, PageID#8). Thus, Marbuery Davis has not demonstrated how the Ohio Court of Appeals' decision was an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts. Accordingly, I recommend that this Court deny this aspect of his ineffective assistance claim because it lacks merit.
3. Failure to File Indigency Affidavits
Marbuery Davis's assertion that trial counsel was ineffective for failing to file an indigency affidavit should also be rejected because it lacks merit. The Ohio Court of Appeals addressed this issue in his direct appeal. The appellate court stated the following:
{¶33} Marbuery Davis also asserts that his attorney's performance was deficient because his attorney failed to file an affidavit of indigence in support of his motion to waive mandatory fines, and failed to request a presentence investigation report ("PSI").
{¶34} A trial court is required to impose all mandatory fines specified for a particular crime unless the court determines that the defendant is indigent. State v. Roberts, 2016-Ohio-7400, 72 N.E.3d 1126, ¶ 30 (8th Dist.), citing State v. Miller, 8th Dist. Cuyahoga No. 86505, 2006-Ohio-4752, ¶ 8. For the court to find a defendant indigent, an affidavit of indigence must be filed in accordance with R.C. 2929.18(B)(1), which provides:
If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division the court shall not impose the mandatory fine imposed upon the offender.(Emphasis added.)
{¶35} Marbuery Davis does not demonstrate how the outcome of sentencing would have been different had his attorney filed an affidavit of indigence on his behalf prior to sentencing. We note that even if his attorney had filed an affidavit of indigence, Marbuery Davis would not have been automatically entitled to waiver of the mandatory fine. Roberts at __ 36, citing State v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 759 (1998).
{¶36} The record demonstrates that the trial court considered Marbuery Davis's present and future ability to pay the mandatory fines as required under R.C. 2929.19 and that an affidavit of indigence likely would not have changed the trial court's finding that Marbuery Davis had a present and future ability to pay the mandatory fines. At sentencing, the trial court agreed with the state's contention that Marbuery Davis had unreported income, as evidenced by the forfeiture of over $17,000 as part of his plea. The court also explained that the record indicated that Marbuery Davis at one point had a trucking business with his father and that it found that Marbuery Davis "has the ability to earn income in the future." Therefore, we find the record fails to show a reasonable probability that the trial court would have found Marbuery Davis unable to pay the mandatory fine had counsel filed an affidavit of indigence prior to sentencing. State v. Marshall, 8th Dist. Cuyahoga No. 66409, 1995 Ohio App. LEXIS 3205, 7-8 (Aug. 3, 1995).
The Ohio Court of Appeals did not err in its application of the Strickland standard. The appellate court disposed of Marbuery Davis's claim by applying Ohio law to determine that Marbuery Davis could not demonstrate prejudice arising from his attorney's failure to file an affidavit of indigency. This federal habeas court is bound by the Ohio court's application of Ohio law regarding whether fines may be imposed in this case. Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Nor has Marbuery Davis provided any evidence to overcome the presumption of correctness that applies to the appellate court's factual determinations. (See generally ECF Docs. 1, 8). Accordingly, I recommend that this Court deny this aspect of Marbuery Davis's ineffective assistance claim because it lacks merit.
VII. RECOMMENDATION REGARDING CERTIFICATE OF APPEALABILITY
A. Legal Standard
As amended by AEDPA, 28 U.S.C. § 2253(c)(1) provides that a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate of appealability. The statute further provides that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Although the statute does not define what constitutes a “substantial showing” of a denial of a constitutional right, the burden on the petitioner is obviously less than the burden for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the courts that have considered the issue have concluded that “[a] ‘substantial showing' requires the applicant to ‘demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further.'” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999) (quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996)). The statute requires that certificates of appealability specify which issues are appealable. 28 U.S.C. § 2253(c)(3).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), 28 U.S.C. foll. § 2254. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Id.; see also 28 U.S.C. § 2253(c)(3) (“The certificate of appealability under [§ 2253(c)(1)] shall indicate which specific issue or issues satisfy the showing required by [§ 2253(c)(2)].”). In light of the Rule 11 requirement that the court either grant or deny the certificate of appealability at the time of its final adverse order, a recommendation regarding the certificate of appealability issue is included here.
B. Analysis
If the Court accepts my recommendations, Marbuery Davis will not be able to show that the Court's rulings on procedure and his claims are debatable among jurists of reason. Indeed, Marbuery Davis's claims for relief are unexhausted/procedurally defaulted, noncognizable, and/or meritless. Because jurists of reason would not find this conclusion to be debatable, I recommend that no Certificate of Appealability issue in this case.
VIII. RECOMMENDATION
Because Marbuery Davis's claims are either unexhausted, noncognizable, and/or meritless, I RECOMMEND that the Court DISMISS and/or DENY Marbuery Davis's petition for writ of habeas corpus under 28 U.S.C. § 2254 and not grant him a Certificate of Appealability. I also recommend that Chae Harris, the Warden of Lebanon Correctional Institution-where Marbuery Davis is currently incarcerated-should be substituted for Wanza Jackson-Mitchell as the Respondent in this case.
IX. NOTICE TO PARTIES REGARDING OBJECTIONS
Local Rule 72.3(b) of this Court provides:
Any party may object to a Magistrate Judge's proposed findings, recommendations or report made pursuant to Fed.R.Civ.P. 72(b) within fourteen (14) days after being served with a copy thereof, and failure to file timely objections within the fourteen (14) day period shall constitute a waiver of subsequent review, absent a showing of good cause for such failure. Such party shall file with the Clerk of Court, and serve on the Magistrate Judge and all parties, written objections which shall specifically identify the portions of the proposed findings,
recommendations, or report to which objection is made and the basis for such objections. Any party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. The District Judge to whom the case was assigned shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. The District Judge need conduct a new hearing only in such District Judge's discretion or where required by law, and may consider the record developed before the Magistrate Judge, making a determination on the basis of the record. The District Judge may also receive further evidence, recall witnesses or recommit the matter to the Magistrate Judge with instructions.Id. (emphasis added).
Failure to file objections within the specified time may forfeit the right to appeal the District Court's order. Berkshire v. Beauvais, 928 F.3d 520, 530-531 (6th Cir. 2019). Objections must be specific and not merely indicate a general objection to the entirety of the report and recommendation; a general objection has the same effect as would a failure to object. Howard v. Sec'y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Stated differently, objections should focus on specific concerns and not merely restate the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge without specific objections ‘wastes judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates Act.'” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, at *2 (W.D. Ky. June 15, 2018) (quoting Howard). The failure to assert specific objections may in rare cases be excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79 (6th Cir. 2019).