IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES C. HUMR, 

Petitioner, CASE NO. 2:11-CV-0546

JUDGE GRAHAM

v. MAGISTRATE JUDGE ABEL

MICHELE MILLER, WARDEN, 

BELMONT CORRECTIONAL INSTITUTION, 

Respondent. 

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this action for a writ of habeas corpus under 28 U.S.C. §

2254. This matter is before the Magistrate Judge on the petition, Respondent’s Return of Writ,

Petitioner’s Traverse, and the exhibits of the parties. This case involves Petitioner’s convictions by

his negotiated guilty plea in the Portage County Court of Common Pleas for trafficking in cocaine

and illegal manufacture of drugs. On direct appeal, the state appellate court remanded the case to

the trial court for re-sentencing. After a hearing on Petitioner’s motion to withdraw his guilty plea,

the trial court re-sentenced Petitioner, and the appellate court affirmed the trial court’s judgment.

The Ohio Supreme Court dismissed Petitioner’s subsequent appeal. Petitioner filed a Rule 26(B)

application, which was denied by the state appellate court. He thereafter attempted to file successive

Rule 26(B) applications. 

In this habeas corpus petition, Petitioner asserts that his sentence violates Ohio law, that the

trial court failed to comply with Ohio law in accepting his guilty plea, that the trial court erred in

imposing restitution, court costs and a fine, and that his guilty plea was not knowing, intelligent or

voluntary based on the ineffective assistance of counsel. For the reasons that follow, the Magistrate

Judge concludes that these claims are without merit or procedurally defaulted and therefore

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RECOMMENDS that this action be DISMISSED. 

Petitioner’s request for an evidentiary hearing is DENIED.

FACTS and PROCEDURAL HISTORY

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

of his case as follows:

On September 7, 2006, appellant was indicted by the Portage County

Grand Jury on six counts of trafficking in cocaine, felonies of the

fifth degree, in violation of R.C. 2925.03(A) and (C)(4)(a); two

counts of illegal manufacture of drugs, felonies of the second degree,

in violation of R.C. 2925.04; and one count of possessing criminal

tools, a felony of the fifth degree, in violation of R.C. 2923.24(A) and

(C). Appellant entered a not guilty plea at his arraignment on

September 15, 2006.

A change of plea hearing was held on October 12, 2006. Appellant

withdrew his former not guilty plea and entered an oral and written

plea of guilty to count three of the indictment, trafficking in cocaine,

a felony of the fifth degree, in violation of R.C. 2925.03(A) and

(C)(4)(a), and count eight, illegal manufacture of drugs, a felony of

the second degree, in violation of R.C. 2925.04. On October 13,

2006, the trial court accepted appellant's guilty plea and entered a

nolle prosequi to the remaining counts of the indictment. The trial

court referred the matter to the Adult Probation Department for a

statutory investigation and written report.

Pursuant to its December 7, 2006 judgment entry, the trial court

sentenced appellant to ten months in prison for trafficking in cocaine,

and five years for illegal manufacture of drugs, to run concurrent to

one another, with credit for seventy-seven days for time already

served. In addition, the trial court ordered appellant to pay restitution

through the Portage County Adult Probation Department in an

amount up to $400 within seven years; suspended appellant's driver's

license for eight years; and assessed a mandatory drug fine of $7,500,

costs of the proceedings, and the indigent assessment and recoupment

fee, to be paid within seven years.

In its March 7, 2008 nunc pro tunc judgment entry, the trial court

changed/added that appellant shall receive credit for ninety-three

days for time already served in the Portage County Jail and on house

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arrest.

It is from the foregoing December 7, 2006 judgment entry, and the

March 7, 2008 nunc pro tunc judgment entry that appellant filed the

instant appeal, asserting the following eight assignments of error for

our review: FN2

FN2. On July 2, 2007, appellant filed a pro se petition for

postconviction relief. On October 23, 2007, appellant filed a pro se

motion to vacate order requiring payment of court costs, fines and/or

restitution, which was overruled without a hearing by the trial court

on October 25, 2007. On March 3, 2008, appellant filed a pro se

motion for jail time credit, which was granted by the trial court

pursuant to its March 7, 2008 nunc pro tunc judgment entry. On June

27, 2008, appellant filed a pro se motion to dismiss, which was

overruled without a hearing by the trial court on July 1, 2008. On

September 4, 2008, appellant filed a pro se motion for sentence

reduction and/or modification. On September 18, 2008, appellant

filed a pro se motion for a stay of execution, which was overruled

without a hearing by the trial court on September 22, 2008. Also on

September 22, 2008, appellant filed a pro se motion for the

assignment of counsel due to his indigency, as well as a pro se

motion for delayed appeal pursuant to App. R. 5(A). A judicial

release hearing was held on October 14, 2008. Pursuant to its October

16, 2008 judgment entry, the trial court overruled appellant's pro se

motion for judicial release. The trial court granted appellant's pro se

motion for the assignment of counsel on October 17, 2008, and

counsel was appointed. On December 1, 2008, this court granted

appellant's pro se motion for leave to file a delayed appeal and

appointed counsel to represent him for purposes of this appeal.

State v. Humr, No. 2008-P-0088, 2009 WL 33418997, at *1 (Ohio App. 11th Dist. Oct. 23, 2009).

Through counsel, Petitioner raised the following assignments of error on appeal: 

[1.] THE TRIAL COURT ERRED TO THE PREJUDICE OF

APPELLANT BY OVERRULING APPELLANT'S PRESENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA

WITHOUT AN EVIDENTIARY HEARING.

[2.] THE TRIAL COURT ERRED TO THE PREJUDICE OF

APPELLANT BY IMPOSING A SENTENCE WHICH WAS

CONTRARY TO LAW AND AN ABUSE OF ITS DISCRETION

UNDER THE SENTENCING GUIDELINES OF R.C. 2929 .11

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 The state appellate court held 

that the trial court exceeded its statutory authority by suspending appellant's driver's

license for eight years, three years beyond the five-year maximum under R.C.

2925.03(D)(2) & (G) and 2925 .04(D)(2). Id. at ¶ 18. This court indicated that the

trial court's restitution order failed to comply with R.C. 2929.18(A)(1), because the

order was not made in open court, no victim was identified, and no specific amount

was specified. Id. at ¶ 22-23. Also, we held that appellant's due process rights were

violated because he was never informed of his Crim.R. 32(B) rights by the trial court.

Id. at ¶ 36.

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AND 2929.12.

[3.] THE TRIAL COURT'S SENTENCING ORDER SUSPENDING

APPELLANT'S DRIVER'S LICENSE FOR EIGHT YEARS WAS

CONTRARY TO LAW.

[4.] THE TRIAL COURT'S SENTENCING ORDER REQUIRING

APPELLANT TO MAKE RESTITUTION WAS NULL AND VOID,

CONTRARY TO LAW, AND AN ABUSE OF DISCRETION.

[5.] THE TRIAL COURT ERRED IN OVERRULING

APPELLANT'S MOTION TO VACATE THE ORDER

REQUIRING PAYMENT OF COURT COSTS, FINES, AND

RESTITUTION.

[6.] THE TRIAL COURT ERRED TO THE PREJUDICE OF

APPELLANT WHEN IT FAILED TO ADVISE HIM AT THE

SENTENCING HEARING OF HIS APPEAL RIGHTS UNDER

CRIM.R. 32(B).

[7.] THE TRIAL COURT FAILED TO PROPERLY INFORM

APPELLANT IN ACCORDANCE WITH THE REQUIREMENTS

OF R.C. 2943.032 PRIOR TO ACCEPTING THE GUILTY PLEA.

[8.] APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT

TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

Id. at *1-2. On October 23, 2009, the appellate court sustained Petitioner’s third, fourth and sixth

assignments of error, finding the remainder of his claims moot, and remanding the case to the trial

court for re-sentencing.1

 Id. 

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State v. Humr, No. 2010-P-0004, 2010 WL 4054443, at *1 (Ohio App. 11th Dist. Oct. 15, 2010).

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On remand, appellant filed a motion on November 30, 2009, to

withdraw his guilty plea and vacate his conviction, alleging that his

plea was based on ineffective assistance of counsel and, therefore,

was not knowingly made. Following a December 14, 2009 hearing,

the trial court overruled appellant's motion and proceeded to

resentencing.

Pursuant to its December 16, 2009 judgment entry, the trial court

sentenced appellant to five years in prison for illegal manufacture of

drugs and ten months for trafficking in cocaine, to be served

consecutively. The trial court ordered appellant to pay a mandatory

drug fine in the amount of $7,500 within ten years, and restitution in

the amount of $380 within six years. Appellant's driver's license was

suspended for three years. The trial court also informed appellant of

his right to appeal. Upon his release from prison, appellant will be

subject to a three year term of post release control. FN3 It is from that

judgment that appellant filed the present appeal, asserting the

following assignments of error for our review:

FN3. In a March 11, 2010 nunc pro tunc judgment entry, the trial

court changed the language regarding post release control from

“may” to “will.”

“[1.] THE TRIAL COURT ERRED IN OVERRULING

APPELLANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS

GUILTY PLEA.

“[2.] THE TRIAL COURT ERRED BY IMPOSING MORE THAN

A MINIMUM SENTENCE BECAUSE IT WAS CONTRARY TO

LAW AND AN ABUSE OF DISCRETION.”

State v. Humr, No. 2010-P-0004, 2010 WL 4054443, at *1 (Ohio App. 11th Dist. Oct. 15, 2010). On

October 15, 2010, the state appellate court affirmed the trial court’s judgment. Id. Petitioner did

not timely appeal to the Ohio Supreme Court; however, the Ohio Supreme Court granted his motion

for delayed appeal, State v. Humr, 127 Ohio St.3d 1530 (2011), and on May 25, 2011, the Ohio

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Supreme Court dismissed Petitioner’s appeal. State v. Humr, 128 Ohio St.3d 1499 (2011). 

Petitioner also filed, on October 27, 2010, an application to reopen his appeal pursuant to

Ohio Appellate Rule 26(B), asserting he had been denied effective assistance of appellate counsel

because his attorney failed to raise on appeal a claim that the trial court abused its discretion in

increasing his sentence and imposing a harsher sentence based on vindictiveness at re-sentencing

or arguing that the trial court erred in not holding a hearing to address whether police obtained

evidence in violation of the Fourth Amendment or considering his entrapment defense. Exhibit 27

to Return of Writ. On December 15, 2010, the appellate court denied Petitioner’s Rule 26(B)

application. Exhibit 28 to Return of Writ. The record before this Court does not indicate that

Petitioner ever pursued an appeal of this decision to the Ohio Supreme Court. He did however,

subsequently file several additional Rule 26(B) motions in the state appellate court, and a request

for the appointment of counsel. Exhibits 29 – 32 to Return of Writ. The record before this Court

does not indicate whether the appellate court has issued any decision on these motions. Petitioner

indicates that he filed a Writ of Procedendo requesting a ruling. See Traverse. 

On June 21, 2011, Petitioner filed this federal petition for a writ of habeas corpus. He alleges

that he is in the custody of the Respondent in violation of the Constitution of the United States based

upon the following grounds: 

1. The Trial Court erred to the prejudice of the Petitioner by

overruling his pre-sentence motion to withdraw his guilty plea

without an evidentiary hearing. 

The trial court abused its discretion in denying the Petitioner[‘s]

motion to withdraw his guilty plea prior to sentencing where the

record demonstrates that (1) the plea was not knowingly and

voluntarily given, (2) The plea was induced through reliance upon

misleading and false assurances of trial counsel, (3) the plea was

given as a result of the petitioner’s trial counsel’s ineffectiveness, and

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(4) the petitioner was not afforded a full hearing on his motion and

was not granted full, fair and careful consideration of the same. 

2. The trial court erred to the prejudice f the Petitioner by imposing

a sentencing which was contrary to Ohio law, and an abuse of its

discretion under the sentencing guidelines of R.C. 29529.11 and

2929.12.

A criminal sentence is contrary to law and constitutes an abuse of

discretion where the trial court fails to give careful and substantial

deliberation to the relevant statutory considerations of R.C. 2929.11

and 2929.12. 

3. The trial court erred in overruling the Petitioner’s motion to vacate

the order requiring payment of court costs and fines, and restitution.

A trial court abuses its discretion in overruling an indigent criminal

offender’s motion to vacate an order requiring the offender to pay

court costs, fines and restitution where the court fails to first consider

the offender’s ability to pay and the motion and supporting affidavit

of indigence was filed prior to the trial court’s nunc pro tunc order.

4. The trial court failed to properly inform Petitioner in accordance

with the requirements of R.C. 2943.032 prior to accepting the guilty

plea. 

A trial court errs to the prejudice of a criminal defendant when it fails

to properly inform him in accordance with the requirements of R.C.

2943.032. 

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

defaulted.

CLAIMS TWO, THREE and FOUR

In claim two, Petitioner asserts his sentence violated Ohio law. In claim three, Petitioner

asserts that the trial court erred in overruling his motion to vacate the order requiring payment of

court costs and fines, and restitution. In claim four, Petitioner asserts the trial court failed to advise

him, at the time of his guilty plea, in compliance with Ohio law. These grounds for relief fail to

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present any federal constitutional claim. State law claims cannot be adjudicated in federal habeas

corpus.

A federal court may review a state prisoner’s habeas petition only on the grounds that the

challenged confinement is in violation of the Constitution, laws or treaties of the United States. 28

U.S.C. § 2254(a). A federal court may not issue a writ of habeas corpus “on the basis of a perceived

error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F>2d 735, 738

(6th Cir. 1988). 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). “‘[F]ederal courts must defer to a state court’s interpretation of its own rules of evidence

and procedure’” in considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d

1431, 1433 (11th Cir. 1985)). Only where the error resulted in the denial of fundamental fairness

will habeas relief be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). 

Petitioner asserts that he intended to raise in claim three a claim regarding the alleged

violation of the Eighth Amendment. See Traverse. Petitioner waived this claim, however, by failing

to raise the issue on direct appeal of his re-sentencing. 

PROCEDURAL DEFAULT

In recognition of the equal obligation of the state courts to protect the constitutional rights

of criminal defendants, and in order to prevent needless friction between the state and federal courts,

a state criminal defendant with federal constitutional claims is required fairly to present those claims

to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but

still has an avenue open to him by which he may present the claims, his petition is subject to

dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) ( per

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curiam ); Picard v. Connor, 404 U.S. 270, 275–76 (1971). If, because of a procedural default, the

petitioner can no longer present his claims to a state court, he has also waived them for purposes of

federal habeas review unless he can demonstrate cause for the procedural default and actual

prejudice resulting from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485

(1986); Engle v. Isaac, 456 U.S. 107 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a

federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). “First, the court must determine that there is a

state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to

comply with the rule.” Id. Second, the court must determine whether the state courts actually

enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural

forfeiture is an adequate and independent state ground on which the state can rely to foreclose

review of a federal constitutional claim. Id. Finally, if the court has determined that a state

procedural rule was not complied with and that the rule was an adequate and independent state

ground, then the petitioner is required to demonstrate that there was cause for him not to follow the

procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. This

“cause and prejudice” analysis also applies to failure to raise or preserve issues for review at the

appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.1985).

Petitioner failed to raise a claim that his sentence violated the Eighth Amendment on direct

appeal. Further, he may now no longer do so under Ohio’s doctrine of res judicata. See State v.

Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio

St.2d 175 (1967). The state courts were never given an opportunity to enforce the procedural rule

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at issue due to the nature of Petitioner's procedural default.

The Magistrate Judge finds that Ohio's res judicata rule is adequate and independent under

the third part of the Maupin test. To be “independent,” the procedural rule at issue, as well as the

state court's reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 501

U.S. 722, 732–33 (1991). To be “adequate,” the state procedural rule must be firmly established and

regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly

established and regularly followed state practice’ may be interposed by a State to prevent subsequent

review by this Court of a federal constitutional claim.” Id. at 423 (quoting James v. Kentucky, 466

U.S. 341, 348–351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP

v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d

521, 561 (S.D. Ohio 1998).

The Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry

rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754,

765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); Seymour v. Walker,

224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir. 2000); Norris

v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have consistently refused, in reliance on

the doctrine of res judicata, to review the merits of claims because they are procedurally barred. See

State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 16. Additionally, the doctrine

of res judicata serves the state's interest in finality and in ensuring that claims are adjudicated at the

earliest possible opportunity. With respect to the independence prong, the Magistrate Judge

concludes that res judicata does not rely on or otherwise implicate federal law. Accordingly, the

Magistrate Judge is satisfied from its own review of relevant case law that the Perry rule is an

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adequate and independent ground for denying relief.

Petitioner may still obtain review of this claim on the merits if he establishes cause for his

procedural default, as well as actual prejudice from the alleged constitutional violation.

“ ‘[C]ause’ under the cause and prejudice test must be something

external to the petitioner, something that cannot fairly be attributed

to him[;] ... some objective factor external to the defense [that]

impeded ... efforts to comply with the State's procedural rule.”

Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115

L.Ed.2d 640 (1991).

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir.2003). The constitutionally ineffective assistance of

counsel may constitute cause for a procedural default, so long as such claim has been presented to

the state courts and is not, itself, procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 452-

53 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488–89 (1986)). Petitioner did not attempt to

raise, in Rule 26(B) proceedings, a claim that the trial court’s imposition of restitution, fines and

court costs violated the Eighth Amendment. Moreover, Ohio does not permit successive Rule 26(B)

applications for relief. State v. Twyford, 106 Ohio St.3d 176 (2005)(citations omitted). Petitioner

has failed to show cause for his procedural default. 

Beyond the four-part Maupin analysis, a habeas court is required to consider whether this

is “an extraordinary case, where a constitutional violation has probably resulted in the conviction

of one who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley,

505 U.S. 333 (1992).

Claims two, three and four are waived. 

CLAIM ONE

In claim one, Petitioner asserts that his guilty plea was not knowing, intelligent or voluntary

and was induced upon misleading and false assurances of defense counsel, based on the ineffective

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assistance of counsel. The state appellate court rejected this claim, finding in relevant part as

follows: 

In the case at bar, in his November 30, 2009 written presentence

motion to withdraw his guilty plea and vacate his conviction,

appellant alleged that his plea was based on ineffective assistance of

counsel and, therefore, was not knowingly made. At the December

14, 2009 hearing, appellant, who was represented by counsel,

testified in support of his motion indicating, inter alia, that he was

unaware of the maximum penalty; he had improper legal

representation; his mind was not clear due to the fact that he was

coming off a very severe drug abuse situation; he improperly

believed he had no defense to the charged offenses; and the length of

his sentence was improper.

On cross-examination, appellant indicated the following: he signed

a written plea of guilty form; the trial court went over each of the

individual rights with him; the trial court reviewed with him the

monetary penalties involved; the trial court reviewed with him the

possible prison sentence; he had accepted the plea negotiations and

the presentence investigation report; and that the negotiations did not

include any agreed prison term or any additional terms that were

reduced to writing.

. . . [A]ppellant was represented by highly competent counsel.

Generally, a properly licensed attorney practicing in this state is

presumed to be competent. State v. Lytle (1976), 48 Ohio St.2d 391,

397, 358 N.E.2d 623. Here, appellant asserts that his defense counsel

was ineffective for not advising him to pursue an entrapment defense.

We note, however, that an entrapment defense was not an option in

this case. Our review of the record establishes that defense counsel

provided highly competent representation.

. . . [T]here is simply nothing to indicate that appellant's guilty plea

was not made knowingly, intelligently, and voluntarily. The trial

court conducted a thorough colloquy with appellant, determining that

he understood each and every right he was waiving. The trial court

made absolutely clear to appellant what the maximum sentence it

might impose on him could be, if he pleaded guilty. There is nothing

to indicate that appellant suffers from any cognitive or emotional

disability that might affect his ability to enter a knowing, intelligent,

and voluntary plea. Appellant informed the trial court that he

understood the effect of his guilty plea, its consequences, and

accepted the same. Thus, the plea hearing was fully compliant with

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the requirements of Crim.R. 11.

. . . [W]e note that appellant was given a complete and impartial

hearing on the motion to withdraw and our review of the transcript

reveals that the trial court gave the motion full and fair consideration.

The trial court reviewed the mandatory nature of the prison term with

appellant and indicated twice that the term could be as great as eight

years for the second degree felony offense. Also, appellant's counsel

assured the trial court twice that he had reviewed this information

with appellant and that appellant understood that two years was a

mandatory minimum prison sentence, not the actual sentence. Again,

the record establishes that appellant's guilty plea was knowingly,

intelligently, and voluntarily entered.

. . . [T]he trial court did not abuse its discretion in denying appellant's

presentence motion to vacate his guilty plea.

Appellant's first assignment of error is without merit.

State v. Humr, 2010 W:L 4054443, at *3-4. 

The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. §

2254(e)(1) provides:

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

corpus by a person in custody pursuant to the judgment 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 presumption of correctness by clear and convincing evidence.

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. 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

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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.

“The focus ... is on whether the state court's application of clearly established federal law is

objectively unreasonable ... an unreasonable application is different from an incorrect one.” Bell v.

Cone, 535 U.S. at 694. To obtain habeas corpus relief, Petitioner must show the state court's decision

was “so lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Bobby v. Dixon, ––– U.S. – – –

– , –––S.Ct. ––––, 2011 WL 5299458, at *1 (Nov. 7, 2011) (quoting Harrington v. Richter, 562 U.S.

––––, ––––, 131 S.Ct. 770, 786–87 (2011). Petitioner has failed to meet this standard here. 

Because a criminal defendant waives numerous constitutional rights when he enters a plea

of guilty, the plea must be entered into knowingly and voluntarily in order 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)(quoting North Carolina v.

Alford, 400 U.S. 25, 31 (1970)). In applying this standard, the court must look at the totality of

circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries

a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648 (1976).

A prisoner may 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, 59 (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 constitutionally ineffective performance

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

satisfy the “prejudice” requirement, the defendant 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 59; Sparks, 852 F.2d at 884. 

As noted by the state appellate court, Petitioner signed a Written Plea of Guilty, indicating

he understood the maximum penalties he faced on his charges of conviction, the rights he was

waiving by entry of his guilty plea, and that he had not been threatened or coerced into pleading

guilty or made any off-the-record promises. Exhibit 3 to Return of Writ. At the time of Petitioner’s

guilty plea hearing, the prosecutor stated Petitioner would serve a mandatory two years in prison on

Count Two. Guilty Plea Transcript, at 2. Defense counsel stated he had discussed with Petitioner

the charges and evidence against him, his available defenses, and his constitutional and appellate

rights. Petitioner understood prison time was mandatory and wanted to plead guilty. Id. at 3.

Petitioner indicated he understood the nature of the charges against him. Id. at 3-4. The trial court

advised him of the maximum sentences he faced. Id. at 4. The trial court reviewed with Petitioner

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

understood. Id. at 6-7. He indicated he had reviewed his written guilty plea with his attorney and

had no questions. Id. at 8. He had no questions regarding the rights he was waiving. Id. at 9. 

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The record fails to support Petitioner’s allegation that his guilty plea was not knowing,

intelligent or voluntary or based on the ineffective assistance of counsel. The record demonstrates

Petitioner was advised of the maximum sentences he faced. The record fails to support Petitioner’s

allegation now that his mind was not clear, that he was unable to understand the proceedings, or that

he was misadvised by his attorney and thought he had no defense to the charges against him. See

Traverse. The record indicates to the contrary. According to the factual findings of the state

appellate court, entrapment was not a potential defense. Petitioner has failed to rebut this finding.

 [T]he representations of the defendant, his lawyer, and the prosecutor

at [a guilty plea hearing] as well as any findings made by the judge

accepting the plea, constitute a formidable barrier in any subsequent

collateral proceedings. Solemn declarations in open court carry a

strong presumption of verity. The subsequent presentation of

conclusory allegations unsupported by specifics is subject to

summary dismissal, as are contentions that in the face of the record

are wholly incredible.

Id. at 74. Such are the circumstances here. 

Claim one is without merit. 

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

Petitioner’s request for an evidentiary hearing is DENIED.

PROCEDURE ON OBJECTIONS

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

days of the date of this report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

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

portions of the report or specified proposed findings or recommendations to which objection is

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

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17

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 operates 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/Mark R. Abel 

United States Magistrate Judge

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