IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANTWAUN L. CHANDLER, 

Petitioner, CASE NO. 2:10-CV-1150

JUDGE FROST

v. MAGISTRATE JUDGE KING

ROSS CORRECTIONAL INSTITUTION, 

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this acti on for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. This matter is before the Court on the Petition, Doc. No. 3, Respondent’s Return of

Writ, Doc. No. 10, and the exhibits of t he parties. Petitioner’s request to withdraw his Motion to

Amend the Petition, see Motion to Stay, Doc. 16, is GRANTED. The Motion to Amend, Doc. 14,

is WITHDRAWN. For the reasons that f ollow, Petitioner’s request f or a stay of the action is

DENIED. The Magistrate Judge RECOMMENDS that this action be DISMISSED. 

FACTS and PROCEDURAL HISTORY

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of

this case as follows: 

On August 31, 2001, defendant-appellant, Antwa un L. Chandler

(“appellant”), was bound over for trial in the Franklin County Court

of Com mon Pleas, General Division, on charges of aggravate d

murder and aggravated robbery. Bot h charges included three-year

firearm specifications and the aggravated murder charge also carried

a capital specification. On June 11, 2002, appellant pled guilty to the

lesser-included offense of murder with a firearm specification. The

court sentenced appellant to an indefinite prison term of 15 years to

life, plus a consecutive three-year term for the firearm specification.

The trial court entered its judgment of conviction on June 18, 2002.

On Novem ber 12, 2002, appella nt filed his petition for postCase: 2:10-cv-01150-GLF-NMK Doc #: 18 Filed: 12/27/11 Page: 1 of 15 PAGEID #: <pageID>
conviction relief. Therein, appellant contended that his trial counsel

had lied to him by telling him that a co-defendant by the name of

“Delontie Rhym ” had im plicated appellant and was planni ng t o

testify on behalf of the prosecution. In support of his petition for

post-conviction relief appellant subm itted his own affidavit along

with two unauthenticated letters, purportedly written by Rhym.

In the first letter, which is addressed to “Troy,” the author instructs

the recipient to “tell young blood with you I got the sam e chrages

(sic) he got and I didn't make no statement I don't know what they

talkin about I don't know what the fuckz going on ‘you dig!’ and tell

that nigga if he goen (sic) write we not goin (sic) to talk about m y

case, “you dig!” ' ( Emphasis sic.) In the second letter, which is

addressed to “Twaun,” the author states, “Dog I' m going to tell my

lawyer to come talk to you ok so don't fuck me man, I don't have shit

to do with this, I don't no (sic) nothing.”

In his affidavit, appellant avers, inter alia, “[trial counsel] persuaded

me to enter a guilty plea, specifically, because of t he statem ent

Delontie allegedly wrote. For fear of a harsh sentence, I plead (sic)

guilty because of counsels (sic) advice. Since, I have learned that

[trial counsel] falsely adviced (sic) m e to plea (sic) guilty.

Particularly, Delontie Rhym did not give any statements implicating

me in the murder. Moreover, had I known prior to my plea, I would

not have plead (sic) guilty.”

On June 30, 2003, appellant f iled a m otion f or production of

transcripts of all proceedings in his case, at the state' s expense. On

December 4, 2003, the court denied the motion.

On August 10, 2004, appellant filed a motion for summary judgment

and attached thereto the affi davit of Delontie Rhym . Therein, the

affiant declares, “On June 2002 I, Delontie Rhym was apprehended

by homocide (sic) detectives and Columbus Police. I was interrogated

by detectives about a homocide (sic) that occurred March 2001. Prior

to the investigation I never made any statements verbally or written

statements that would indicate Mr. Cha ndler. I never m ade any

promises to the prosecuting attorney that I would testify against Mr.

Chandler.”

On March 10, 2005, the trial court journalized a de cision and entry

denying appellant's petition for post-conviction relief. Noting that the

petition was based on the allegedly def icient performance of trial

counsel, and further noting that no trial occurred because appellant

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pled guilty, the court viewed the motion substantively as a motion to

withdraw appellant's guilty plea pursuant to Crim.R. 32.1. Finding no

basis upon which to allow withdrawal of appellant's guilty plea, the

court denied the motion.

Appellant tim ely appealed and asserts the followi ng t hree

assignments of error for our review:

FIRST ASSIGNMENT OF ERROR: 

APPELLANT W AS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL GUARANTEED HI M UNDER THE SIXTH

AMENDMENT OF THE UNITED STATES CONSTITUTION

WHEN COUNSEL DECEIVED APPELLANT TO PLEAD GUILTY

DUE TO AN INVOLUNTARY PLEA AGREEMENT. 

SECOND ASSIGNMENT OF ERROR: 

THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION,

IN NOT C ONSIDERING T HE C REDIBILITY AND

ACKNOWLEDGMENT OF APPELLANT'S AFFIDAVIT IN

SUPPORT OF HIS PETITION, AND TREATING HIS PETITION

AS A WI THDRAWAL OF GUILTY PLEA, CRIMINAL RULE

32.1. 

THIRD ASSIGNMENT OF ERROR: 

THE TRIAL COURT ERRED IN DENYING APP ELLANT'S

REQUEST FOR TRANSCRIPTS AT STATE EXPENSE. 

State v. Chandler, No. 05AP-306, 2006 WL 620898, at *1-2 (Ohio App. 10th Dist. March 9, 2006). 

On March 9, 2006, t he appellate court sustained Petitioner’s second assignm ent of error, and

remanded the case to the trial court. Id. 

On remand, appellant filed motions for an evidentiary hearing, for

production of a transcript a t s tate expense, and to am end and

supplement his petition. On December 28, 2006, the trial court issued

a decision and entry granting appellant's motion for an evidentiary

hearing and denying appellant's motion to amend and supplement his

petition. Thereafter, on January 16, 2007, appellant filed motions for

issuance of subpoenas and for appointment of counsel. The trial court

did not issue written decisions or entries deciding any of appellant's

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remaining motions.

The trial court held an evidentiary hearing on appellant's petition on

February 8, 2007, and, on March 12, 2007, the trial court issued a

decision and entry denying appellant 's petition. The trial court' s

decision indic ates t hat the court heard testim ony from appellant,

Allen, and assistant prosecut ing attorney, Jeffrey Davis. The trial

court found Davis and Allen's testimony credible and concluded that

appellant failed to overcome the presumption that Allen's conduct fell

within the wide range of reasonable, professional assistance. The trial

court also found that appellant failed to show that he would not have

pled guilty but for his attorney's alleged misrepresentation.

Appellant filed a timely notice of appeal and presently asserts three

assignments of error for our review:

[I.] THE TRIAL COURT ERRED W HEN DENYING

DEFENDANTS [sic] PETITION FOR POST CONVICTION RELIEF.

[II.] DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL GUARANTEED HI M UNDER THE SI XTH

AMENDMENT TO THE U.S. CONSTITUTION.

[III.] THE TRIAL COURT ABUSED ITS DISCRETION AND

COMMITTED PREJUDICIAL ERROR IN FAILING TO APPOINT

COUNSEL FOR DEFENDANT W HO REQUESTED SUCH

APPOINTMENT.

State v.Chandler, No. 07AP-269, 2007 WL 3036836, at *1-2 (Ohio App. 10th Dist. Oct. 16, 2007). 

On October 16, 2007, the appellate court sustained Petitioner’s third assignment of error, reversing

the trial court’s judgment and remanding the case to the trial court. Id. The trial court again denied

relief following a second evidentiary hearing, and the appellate court affirm ed that judgm ent. 

State v. Chandler, No. 09AP-394, 2009 W L 3681649 (Ohio App. 10 th Dist. Nov. 5, 2009). On

March 3, 2010, the Ohio Suprem e Court dism issed Petitioner’s subsequent appeal. State v.

Chandler, 124 S.Ct. 1493 (2010).

On December 2, 2010, Petitioner filed the pro se petition for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of t he

Constitution of the United States based upon the following grounds: 

1. Petitioner was denied effective a ssistance of counsel under the

Sixth Amendment to the U.S. Constitution. 

Petitioner was denied effective assistance of trial counsel when

counsel lied to Petitioner that a second co-defendant made statements

implicating Petitioner and that his co-def endant agreed to testif y

against him for a proffer with the State. 

2. Petit ioner wa s denied his Fifth Am endment rights at his post

conviction evidentiary hearing. 

In the 2008 evidentiary hearing upon cross-exam ination t he

prosecutor violated Petitioner’s Fifth Amendment right by asking him

questions that he did not put into dispute on direct examination. 

It is the position of the Respondent that Petitioner’s claims are without merit. 

REQUEST FOR A STAY

On November 22, 2011, Petitioner filed a request for a stay of these proceedings to enable

him to file a successive post conviction petition. Petitioner proposes to pursue a claim of ineffective

assistance of trial counsel based on the resignation of his trial attorney from the practice of law with

a disciplinary complaint pending against him.1 According to the documents submitted by Petitioner

in support of this request, which were obtained by Petitioner in August 2011, Motion to Stay, p. 2,

a disciplinary com plaint had been f iled against Phillip Lon Allen, Petitioner’s f ormer attorney,

alleging that Allen failed to appear at various court hearings and failed to return telephone calls in

regard to several clients. Allen also purportedly failed to respond to requests for documents or to

propose a method for refunding unearned fees from clients. The complaint further alleged that Allen

1

 Respondent opposes Petitioner’s request for a stay. See Doc. 17. 

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suffered “from mental illness and/or addition to drugs or alcohol” and was “not receiving adequate

treatment for these illnesses” thereby substantially impairing his ability to practice law and represent

clients. See Exhibits to Motion to Amend. Allen subsequently resigned from the practice of law in

Ohio. In re Resignation of Allen, 124 Ohio St.3d 1224 (2010). See id. 

In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court held that a stay

of habeas corpus proceedings is appropriate only where a petitioner can establish “good cause” for

failing to exhaust state court rem edies, and where his unexhausted claim s a re “ potentially

meritorious.” Id. at 277. Here, however, Petitioner acknowledges that he obtained the documents

proffered in support of this claim more than three (3) months ago, but has not, apparently, filed a

successive post conviction petition in state court. Petitioner does not explain this delay. Thus, it

does not appear that he can establish good cause for failing to exhausted this claim of ineffective

assistance of trial counsel. See Pace v. DiGuglielmo, 544 U.S. 408 (2005)(petitioner's reasonable

confusion about whether a state filing would be timely will ordinarily constitute “good cause”);

Riner v. Crawford, 415 F.Supp. 2d 1207, 1209-11 (D.Nevada 2006)(discussing standards of good

cause under Rhines adopted by various courts).

Petitioner has likewise f ailed to establish that his unexhausted claim is potentially

meritorious because a successive post conviction petition appears to be procedurally barred. Under

O.R.C. § 2953.23, the circum stances under whic h c onsideration of the m erits of a claim in a

successive post conviction petition are strictly lim ited 2

 and are not present here. I n Neville v.

2

 O.R.C. § 2953.23 provides in relevant part: 

(A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised

Code, a court may not entertain a petition filed after the expiration of the period prescribed in division

(A) o f that section or a second petition or succe ssive petitions for sim ilar relief on behalf of a

petitioner unless both of the following apply:

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Dretke, 423 F.3d 474, 480 (5th Cir. 2005), the United States Court of Appeals for the Fifth Circuit

held that claims are “plainly meritless” for purposes of deciding whether to grant a stay of habeas

corpus proceedings where, as here, a petitioner is procedurally barred from raising his unexhausted

claim in the state courts. 

Moreover, even assum ing this Cour t can appr opriately consider these recently obtained

documents in connection with Petitioner’s claim of ineffective assistance of counsel, the record fails

to reflect that Petitioner is entitled to relief.3

 

CLAIM ONE

Petitioner asserts in claim one that he was denied the effective assistance of counsel because

his attorney, in order to induce his guilty plea, falsely told Petitioner that co-defendant Rhym had

agreed to testify against Petitioner at trial. The state appellate court rejected Petitioner’s claim as

follows: 

(1) Either of the following applies:

(a) The petitioner shows that the petitioner was una voidably prevented from discovery of the facts

upon which the petitioner must rely to present the claim for relief.

(b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or

to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state

right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim

based on that right.

(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no

reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was

convicted or, if the claim challenges a sentence of death that, bu t for constitutional error at the

sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.

3

 In Cullen v. Pinholster, – U.S. –, –, 131 S.Ct. 1388, 1398 (2011), the United States Supreme Court held,

“under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”

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At the second evidentiary hearing, Chandler was the first person to

testify. Chandler claimed that he always intended to go to trial on his

charges, despite knowing that Marshawn Shaw, one of the other men

charged with robbery and aggravated murder in the case, had reached

a plea agreement with the State of Ohio and intended to testify that

Chandler was the m an who shot and killed the victim during the

robbery.

Chandler clai med t o have had m inimal contact with his courtappointed attorney before the morning he was scheduled for trial. On

the m orning of the day set for trial, defens e counsel inform ed

Chandler that a second man involved in the robbery and murder had

been arrested. This second man was Delontie Rhym.

Chandler felt that his attorney had no confidence in the outcome of

a tr ial, f eeling th at th e S tate o f O hio h ad th e a bility to pr ove

Chandler's guilt. The attorney encouraged Chandler to take the plea

bargain and avoid the risk of longer incarceration, including a

possible s entence of life without parole. The nature of that

encouragement and the accuracy of what defense counsel stated were

the issues in Chandler's petition for post-conviction relief.

Chandler claimed his counsel said that Rhym had given a statement

to police and was going to testify against Chandler. Rhym allegedly

was going to testify Chandler was the triggerman in the murder and

robbery. After being told this, Chandler decided to take the plea offer.

He signed the plea form and answered all the questions required for

the trial court to accept his guilty plea. After the plea was accepted,

Chandler received the mandatory sentences.

After arriving at prison, Chandler began communicating with Rhym

and asking why Rhym had m ade statements harmful to Chandler.

Rhym, who also was in prison by then, denied making the statements

and eventually provided an affidavit in which he denied making any

such statements. Rhym did not testify at the evidentiary hearing.

Chandler contacted Rhym's attorney, who also said Rhym had not

planned to testify against Chandl er. Rhym's attorney also di d not

testify at the evidentiary hearing. As a re sult of these

communications, Chandler felt his lawyer had lied to him to get him

to plead guilty.

At the evidentiary hearing, Chandler acknowledged tha t he was

involved in the robbery and mur der, but denied being the shooter.

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However, Chandler acknowledged that at the time of his guilty plea,

the prosecution stated that Chandler shot the victim and Chandler did

not disagree or deny the statement. Chandler also stated at the plea

proceedings that he was pleading guilty because he was guilty.

When asked at the evidentiary hearing to explain hi s involvement,

Chandler claim ed to be no mor e t han an observer to a robbery

initiated by Marshawn Shaw which ended with Shaw shooting the

victim.

Chandler also denied being invol ved in a separate robbery and

shooting which occurred earlier in the day.

The second witness at the evident iary hearing was Charles

Alexander, Chandler' s father. Al exander testified that Chandler' s

attorney told Alexander that Rhym was going to testif y against

Chandler. Alexander claimed he did not encourage or discourage his

son from taking the plea agreement. Alexander also testified that he

did not tell his son about the conversation Alexander had with t he

defense attorney.

The State of Ohio called two witnesses to testify at the evidentiary

hearing. The first was Jeffrey R. Da vis who was an assistant

prosecuting attorney assigned to Chandler's case at the time of trial.

Davis testified that an agreem ent had been reached with Shaw for

Shaw to testify against Chandler. Rhym was not originally indicted

with Shaw and Chandler due to a lack of evidence. Then a girlfriend

or ex-girlfriend of Rhym provided inform ation which allowed the

prosecution to believe that they now had sufficient evidence to indict

Rhym. Rhym was then arres ted a few days before Chandler' s trial

date.

Davis informed Chandler's lawyer about the developments involving

Rhym. Davis told the defense lawyer that they would be approaching

Rhym with the same plea offer made to Shaw in return f or Rhym's

testimony. Davis told the lawyer that the offer of a plea to m urder

with a gun specification was only open until the following morning.

After that, Chandler could expect to face a charge of aggr avated

murder with a capital specif ication. Davis indicated that he knew

Rhym was represented by counsel, so neither he nor the police

detective tried to contact Rhym directly. Davis indicated that he had

significant other evidence of Chandler's guilt.

The second witness called by the State of Ohio at the evidentia ry

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hearing was Phillip Lon Allen, who wa s Chandler's attorney at the

time of the plea. Allen gave a history of his extensive experience as

a criminal defense lawyer. Allen discussed his actions as counsel for

Chandler, including full preparation for trial at a time the key witness

was viewed as being Shaw. After Rhym was arrested, Chandler' s

attitude about going to trial changed drastically.

Allen denied telling Chandler that Rhym had signed a plea agreement

or that Rhym would certainly be a witness. Allen also denied telling

Chandler or his father that Rhym had made statements implicating

Chandler. Allen testified he had regular contact with Chandler during

the time he represented Chandler.

State v. Chandler, 2009 WL 3681649, at *1-3. 

The factual findings of the state appellate court are presumed to be correct:

In a proceeding instituted by an application for a writ of habeas

corpus by a person in custody pursu ant to the judgm ent of a State

court, a determination of a factual issue made by a State court shall

be presumed to be correct. The applicant shall have the burden of

rebutting the presum ption of correctness by clear and convincing

evidence.

 28 U.S.C. § 2254(e)(1). Further, 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.

An application for a writ of habeas corpus on behalf of a person i n

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 wa s c ontrary to, or involved an

unreasonable appl ication of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was ba sed on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

 28 U.S.C. § 2254(d). The United States Supreme Court has explained: 

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"[A]n unreasonable application of federal law is di fferent from an

incorrect application of federal l aw." Williams v. Taylor, 529 U.S.

362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, "a federal

habeas court m ay not issue the writ sim ply because that court

concludes in its independent judgm ent that the relevant state-court

decision applied clea rly established federal law erroneously or

incorrectly." Id., at 411, 120 S.Ct. 1495. Rather, that application must

be "objectively unrea sonable." Id., at 409, 120 S.Ct. 1495. This

distinction creates "a substantially hi gher threshold" for obtaining

relief than de novo review. Schriro v. Landrigan, 550 U.S. 465, 473,

127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). AEDPA thus i mposes a

"highly deferential standard for evaluating state-court rulings," Lindh

v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481

(1997), and "demands that state-court decisions be given the benefit

of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357,

154 L.Ed.2d 279 (2002) ( per curiam ).

Renico v. Lett, – U.S. –, 130 S.Ct. 1855,1862 (2010)(footnote omitted.)

"[C]learly established" law under § 2254(d)(1) consists of "the

holdings, as opposed to the dicta, of this Court's" cases. Williams v.

Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

An "unreasonable application" of t hat law involves not just an

erroneous or incorrect decision, but an objectively unreasonable one.

Renico v. Lett, 559 U.S. ----, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010).

Wong v. Smith, 131 S.Ct.10 (Mem ), 2010 W L 752363, at *2 (Nov. 1, 2010). “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. Harrington v. Richter, – U.S. –, –,

131 S.Ct. 770, 786 (2011)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Petitioner

has failed to meet this standard here. 

 A prisoner m ay challenge the entry of a plea of guilty on the basis that counsel's

ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411

U.S. 258, 267 (1973). The two part test announced in Strickland v. Washington, 466 U.S. 668, 687 

(1984), applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel.

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Hill v. Lockhart, 474 U.S. 52, (1985); Sparks v. Sowders, 852 F.2d 882, 884 (6th Cir.1988). In order

to obtain relief, a prisoner raising such a claim must first show that counsel's advice was not within

the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852

F.2d at 884.

The second, or “prejudice” requirement, on the other hand, focuses

on whether counsel' s constitut ionally ineffective perform ance

affected the outcome of the plea process. In other words, in order to

satisfy the “prejudice” requirem ent, the defendant m ust show that

there is a reasonable probability that, but for counsel' s e rrors, he

would not have pleaded guilty and would have insisted on going to

trial.

Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884. Petitioner has failed to meet this standard here. 

 The record reflects that Petitioner pleaded guilty, pursuant to the terms of his negotiated plea

agreement, on June 11, 2002, and years before his attorney allegedly com mitted the misconduct

referred to in the disciplinary com plaint filed against him . Nothing in the re cord supports

Petitioner’s current allegation that his attorne y was incompetent, under the influence of drugs or

alcohol, or otherwise unable to competently represent Petitioner during the relevant tim e period.

Petitioner does not refer to, and this Court is unable to locate, anything in the transcript of his guilty

plea and sentencing, or in his post conviction proceedings, that would support such an allegation.

Petitioner’s reference to trial counsel’s failure to recall certain conversations in the first evidentiary

hearing in post conviction proceedings, and his subsequent recollection of conversations in the

second evidentiary hearing in post conviction proceedings does not support Petitioner’s allegations

of incompetence. In any event, Marshawn Shaw, Petitioner’s co-defendant, was prepared to testify

against Petitioner and apparently would have identified Petitioner as the killer. Transcript, Post

Conviction Evidentiary Hearing, at 10. Significantly, there was additional substantial evidence

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pointing to Petitioner’s guilt.4

 Thus, even without Delontie Rhym’s testimony against Petitioner,

the case against Petitioner appears to have been strong. 

At Petitioner’s guilty plea proceeding, the prosecutor indicated that there was “no question”

as to Petitioner’s identity as the shooter. Guilty Plea Transcript, at 4. Petitioner agreed to the

prosecutor’s statement. Id. at 11. He expressly admitted his guilt and stated that he was pleading

guilty because he was infact guilty of the offense charged. Id. The trial court thoroughly advised

Petitioner of all the rights that he was waiving by the entry of his guilty plea. Petitioner at all times

indicated that he understood. He had no questions. Id. at 9-11. When asked if he wanted to make

a statement, Petitioner expressed his remorse to the family of the victim. Id. at 15-16. By virtue of

his guilty plea, the charges against Petitioner were reduced from aggravated murder with a capital

specification to m urder with a firearm specification; the prosecutor dismissed the charge of

aggravated robbery with a firearm specification. Petitioner thereby substantially reduced his

potential prison exposure. 

Petitioner has f ailed to establish that, but f or the unreasonable perf ormance of defense

counsel, he would not have pleaded guilty. Additionally, evidence of subsequent disciplinary action

against an attorney is insufficient to establish the constitutionally ineffective assistance of counsel. 

[C]ourts have declined to adopt a per se rule that an attorney who is

subject to discipline or di sbarment for conduct unrelated to the

representation of a defendant in a criminal case should be deemed to

have provided constitutionally ineffective assistance of counsel in the

criminal proceeding. See, e.g., United States v. Ross, 338 F.3d 1054,

1056-57 (9th Cir. 2003); United States v. Mitchell, 216 F.3d 1126,

1131-33 (D.C. Cir.2000); Vance v. Lehman, 64 F.3d 119, 122-24 (3d

Cir.1995). Rather, a def endant in such a case still m ust meet the

4 For example, Petitioner had allegedly admitted the killing to one Rico Glass. Id. at 58-59. 

Other witnesses had identified Petitioner in the area immediately prior to the shooting. Id. at 111. 

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familiar standards of Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), for establishing the ineffective

assistance of counsel. See Ross, 338 F.3d at 1056-57; Mitchell, 216

F.3d at 1132.

United States v. Grooms, No. 88-80651-16, 2009 WL 1543450, at *1, n.1 (E.D. Mich. June 2, 2009).

Claim one is without merit. 

CLAIM TWO

In claim two, Petitioner asserts that he was denied his right against self-incrimination under

the Fifth Amendment at his post conviction evidentiary hearing. The state appellate court rejected

this claim as follows: 

[T]he trial court's ruling that Chandler had waived his right of selfincrimination at the time of the plea proceedings, was clearly correct

with respect to the statem ents Chandler m ade in open court at the

time of his plea. Chandler was adm itting guilt in particular with

respect to the homicide and murder and knew he was doing so while

entering a plea of guilty.

The trial court's permitting the prosecution to ask about other crimes

may have been in error, but Chandler denied all the other crimes, so

Chandler was not harmed by the questions. Thus, no reversible error

occurred.

State v. Chandler, 2009 WL 3681649, at *3. Petitioner has failed to demonstrate that he is entitled

to federal habeas corpus relief on this claim. As noted by the state appellate court, Petitioner had

already admitted his guilt to murder with a firearm specification, and Petitioner cannot establish any

prejudice. 

Claim two is without merit. 

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Petitioner’s Motion to Amend, Doc. No. 14, is WITHDRAWN. Petitioner’s Motion to Stay, Doc.

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No. 16, is DENIED. 

 PROCEDURE ON OBJECTION

If any party objects to this Report and Recommendation, that party may, within fourteen (14)

days of the date of this report, f ile and serve on all parties written objections to those specif ic

proposed findings or recom mendations t o whi ch objection is m ade, together with supporting

authority for the objection(s). A judge of this Court shall ma ke a de novo determination of those

portions of the report or specifi ed proposed fi ndings or recom mendations to which objection is

made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation

will result in a waiver of the right to have the district judge review the Report and Recommendation

de novo, and also ope rates as a waiver of the right to appeal the decision of the District Court

adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States

v. Walters, 638 F.2d 947 (6th Cir.1981).

The parties are further advised that, if they intend to file an appeal of any adverse decision,

they may submit arguments in any objections filed, regarding whether a certificate of appealability

should issue.

 S/ Norah McCann King 

Norah McCann King

United States Magistrate Judge

 

 December 27, 2011

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