NOT RECOMMENDED FOR PUBLICATION

File Name: 15a0799n.06

No. 14-4043

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LAVELLE JONES,

Petitioner-Appellant,

v.

WARDEN, LEBANON CORRECTIONAL

INSTITUTION,

Respondent-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE SOUTHERN 

DISTRICT OF OHIO

BEFORE: GRIFFIN and KETHLEDGE, Circuit Judges; and CLELAND, District Judge.*

GRIFFIN, Circuit Judge.

Petitioner Lavelle Jones seeks a writ of habeas corpus, contending that he was denied his 

right to the effective assistance of counsel in connection with his decision to plead guilty to firstdegree kidnapping in an Ohio state court. The district court dismissed the petition for failure to 

establish that the state appellate court’s determination of petitioner’s claim was an unreasonable 

application of federal law. We agree and affirm. 

I.

Petitioner robbed a tanning salon with a BB-gun. State v. Jones, No. 09AP-700, 2010 

WL 866126, at *1 (Ohio Ct. App. Mar. 11, 2010). Police arrested him not long after, and the 

State of Ohio charged him with first-degree kidnapping and second- and third-degree robbery, 

 

*

The Honorable Robert H. Cleland, Senior United States District Judge for the Eastern 

District of Michigan, sitting by designation.
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each with a “repeat violent offender” specification. Id. at *1. Defendant pleaded guilty to the 

charges. Id. at *1. According to the Ohio Court of Appeals, at the plea hearing, 

[a]fter the state recited the facts of the case, the trial court stated it had a 

“problem” with the kidnapping charge because the facts indicated that the victim 

was released without being harmed, which would reduce the kidnapping offense 

to a second-degree felony pursuant to R.C. 2905.01(C)(1). The prosecutor 

countered that the “safe place unharmed” issue was an affirmative defense to be 

raised at trial and also argued that the victim had suffered psychological harm. 

The court responded that, while appellant could waive the affirmative defense and 

plead guilty, the evidence simply did not show the necessary “elements” for a 

first-degree felony kidnapping offense, and the court did not believe 

psychological harm constituted harm. The state indicated it would proceed with 

the kidnapping offense being a first-degree felony. Appellant’s counsel 

responded he did not feel he could take the current case to trial because another 

case against appellant was outstanding. The trial court responded it still had a 

problem with the kidnapping charge because the state did not meet its burden, and 

the court indicated it would never find the offense to be a first-degree felony. 

However, the trial court accepted the guilty plea, but allowed briefing on the “safe 

place unharmed” issue, stating that, if psychological harm does not constitute 

harm, it would probably reduce the kidnapping offense to a second-degree felony 

on its own motion. Appellant then reiterated that he wished to plead guilty and 

that he understood all of the proceedings and ramifications. 

* * *

[At sentencing, t]he trial court and the parties then discussed whether the 

kidnapping offense was a first- or second-degree felony, and the court found that 

the phrase “safe place unharmed” related to physical harm and not psychological 

harm. However, the court found that the guilty plea had been to a first-degree 

felony and that the “safe place unharmed” affirmative defense, which would have 

reduced the offense to a second-degree felony, was waived by the plea. . . .

The trial court then indicated that it would proceed with sentencing. At that point, 

appellant’s counsel moved to withdraw appellant’s guilty plea, asserting that he 

had been ineffective in his representation of appellant, although counsel admitted 

he would not be seeking withdrawal of the plea if the legal rulings would have

been in appellant’s favor. The trial court denied the motion, finding that appellant 

should have sought to withdraw his plea before the legal rulings, and there was no 

basis to withdraw a plea based upon a legal determination. 
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Id. at *1–2 (paragraph notations omitted). The trial court sentenced petitioner to an aggregate 

term of nineteen years in prison. Id. at *2. 

Petitioner appealed his conviction to the Ohio Court of Appeals, claiming that his “guilty 

plea was not given knowingly, voluntarily, and intelligently, in that trial counsel rendered 

ineffective assistance of counsel in violation of appellant’s rights under the Fifth, Sixth, and 

Fourteenth Amendments to the United States Constitution . . . .” Id. The state court of appeals 

rejected this claim and affirmed his convictions. Id. at *3–4. The Ohio Supreme Court denied 

Jones’ motion for a delayed appeal. State v. Jones, 965 N.E.2d 310 (Ohio 2012) (table). Jones 

also filed a motion to reopen his appeal, which the Ohio Court of Appeals denied, State v. Jones, 

No. 09AP-700 (Ohio Ct. App. Aug. 9, 2012), and the Ohio Supreme Court declined to hear his

appeal, State v. Jones, 978 N.E.2d 911 (Ohio 2012). 

Jones then filed a petition for a writ of habeas corpus in federal district court, asserting 

six grounds for relief, one of which is relevant to this appeal: whether trial counsel’s ineffective 

assistance resulted in an invalid guilty plea. The warden filed a motion to dismiss the petition on 

statute of limitations grounds. After holding an evidentiary hearing on the circumstances of 

petitioner’s untimeliness, the magistrate judge issued a report recommending that petitioner be 

entitled to equitable tolling because petitioner’s appellate counsel failed to inform him of the 

Ohio Court of Appeals decision affirming his convictions. The district court adopted the 

recommendation over respondent’s objections. 

Respondent then filed an answer, arguing that petitioner’s ineffective assistance of 

counsel claim was procedurally defaulted and, alternatively, failed on the merits. Specifically, 

respondent contended that petitioner failed to fully exhaust his state court remedies because he 

did not file a timely appeal in the Ohio Supreme Court. Respondent further argued that 
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petitioner could not invoke ineffective assistance of appellate counsel as cause for his failure 

because he did not exhaust that claim in state court as well. The magistrate judge agreed with 

respondent that petitioner failed to “present [his claim] to the Ohio Supreme Court in a timely 

fashion,” but concluded that petitioner “arguabl[y]” exhausted his ineffective assistance of 

appellate counsel claim by raising it in his motion for delayed appeal in the Ohio Supreme Court. 

Noting the “substantial uncertainties” surrounding the exhaustion issue, the magistrate judge 

elected to address the merits of petitioner’s claims. 

Regarding the merits, the magistrate judge agreed with respondent and recommended that 

the petition be dismissed for failure to demonstrate that the state court’s adjudication was an 

unreasonable application of Supreme Court case law or based on an unreasonable determination 

of the facts. The district court adopted the magistrate judge’s recommendation and dismissed the 

petition. The district court granted petitioner’s request for a certificate of appealability, limited 

to the issue “[w]hether counsel provided ineffective representation which resulted in an 

involuntary and unknowing plea[.]” This court denied petitioner’s motion to expand the 

certificate. Jones v. Warden, Lebanon Corr. Inst., No. 14-4043 (6th Cir. May 1, 2015).1 

II. 

Standard of Review. “We review the district court’s habeas decision de novo.” Lowe v. 

Swanson, 663 F.3d 258, 260 (6th Cir. 2011). We look to the decision of “the last state court to 

issue a reasoned opinion on the issue” raised in a habeas petition. Loza v. Mitchell, 766 F.3d 

466, 473 (6th Cir. 2014), cert. denied sub nom. Loza v. Jenkins, 135 S. Ct. 2892 (2015)

 

1

Petitioner’s brief on appeal includes a perfunctory claim that his conviction violates his 

right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466 (2000). This issue is outside the 

scope of the certificate of appealability and is therefore not properly before us. White v. 

Mitchell, 431 F.3d 517, 536 (6th Cir. 2005). 
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(alteration omitted). In this case, that court is the Ohio Court of Appeals, which addressed and 

rejected the claim presented here on the merits. Because the Ohio Supreme Court dismissed 

Jones’ appeal with a one-sentence order, we presume that its decision rested on the same 

grounds. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one 

reasoned state judgment rejecting a federal claim, later unexplained orders upholding that 

judgment or rejecting the same claim rest upon the same ground.”). 

Procedural Bars. Respondent contends that petitioner’s claim is barred by the statute of 

limitations and the requirement that he exhaust all his federal claims in state court. See 28 

U.S.C. §§ 2244(d)(1), 2254(b)(1). This court is not required to address either issue before 

reaching and rejecting the petitioner’s appeal on the merits. Mahdi v. Bagley, 522 F.3d 631, 635 

(6th Cir. 2008), as amended (July 7, 2008) (“[F]ederal courts are not required to address a 

procedural-default issue before deciding against the petitioner on the merits.”) (internal quotation 

marks omitted); see also Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004) (stating that 

“[§ 2244(d)]’s one-year statute of limitations is not jurisdictional”). This is especially so when 

the issues are complicated and unnecessary to the disposition of the case. Mahdi, 522 F.3d at

635; see also Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (“Judicial economy might counsel 

giving the [merits] question priority, for example, if it were easily resolvable against the habeas 

petitioner, whereas the procedural-bar issue involved complicated issues of state law.”). This 

case presents just such an occasion, see ID 741–41 (noting the “substantial uncertainties” 

surrounding petitioner’s ineffective assistance of appellate counsel issue). Therefore, we

proceed to the merits of petitioner’s claim. 

The Merits. A federal court’s authority to issue a writ of habeas corpus with respect to a 

state prisoner is governed by 28 U.S.C. § 2254. That statute prevents a federal court from 
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granting habeas corpus relief based on any claim “adjudicated on the merits” in state court, 

subject to the exceptions in § 2254(d)(1) and (2). Relevant here is § 2254(d)(1)’s exception for 

claims adjudicated in state court that “involved an unreasonable application of . . . clearly 

established Federal law, as determined by the Supreme Court of the United States[.]” Id.

§ 2254(d)(1); see also Mitchell v. Mason, 325 F.3d 732, 738 (6th Cir. 2003) (stating that we 

apply the “unreasonable application” prong of § 2254(d)(1) to ineffective assistance of counsel

claims).

Under the “unreasonable application” clause of § 2254(d)(1), habeas relief is available if 

“the state court identifies the correct governing legal principle from the Supreme Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Hill v. 

Curtin, 792 F.3d 670, 676 (6th Cir. 2015) (en banc) (alteration omitted). “In order for a federal 

court to find a state court’s application of Supreme Court precedent ‘unreasonable,’ the state 

court’s decision must have been more than incorrect or erroneous,” but rather must have been 

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

law beyond any possibility for fairminded disagreement.” Id. (alteration omitted). 

The federal law at issue in this case is the standard first announced in Strickland v. 

Washington, 466 U.S. 668 (1984), for determining whether a criminal defendant received 

constitutionally ineffective assistance of counsel. Under Strickland’s two-prong test, a person 

challenging his counsel’s representation must show (1) deficient performance, i.e., that 

“counsel’s representation fell below an objective standard of reasonableness” and (2) prejudice. 

See id. at 687–88, 691–92. To establish prejudice, a challenger must demonstrate “a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Id. at 694. In the context of conviction by guilty plea, “the defendant must 
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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 v. Lockhart, 474 U.S. 52, 59

(1985). Put differently, a defendant challenging his attorney’s conduct during a plea bargaining 

“must show that his lawyer’s deficiency was a decisive factor in his decision to plead guilty.”

Pough v. United States, 442 F.3d 959, 966 (6th Cir. 2006) (internal quotation marks omitted).

To obtain habeas relief on an ineffective assistance of counsel claim, a petitioner must 

establish that the state court’s decision constitutes an unreasonable application of both Strickland

prongs. Cullen v. Pinholster, 563 U.S. 170, 190 (2011). As a corollary, “if it is easier to dispose 

of an ineffectiveness claim on the ground of lack of sufficient prejudice,” we need not analyze 

the performance prong. Baze v. Parker, 371 F.3d 310, 321 (6th Cir. 2004) (alteration omitted) 

(citing Strickland, 466 U.S. at 697). Here, it is unnecessary to address the performance prong 

because Jones falls short of establishing that the state appellate court’s prejudice determination 

involved an unreasonable application of federal law. 

The Ohio Court of Appeals addressed Strickland’s prejudice prong as follows:

Here, we cannot find that the result would have been different had appellant’s trial 

counsel halted the change of plea hearing when a question was raised regarding 

the first-degree kidnapping count and the RVO specifications. Trial counsel 

candidly admitted at the change of plea hearing that he was “stuck” with pleading 

to what he “probably” believed was wrong, but he did not have any other option 

because he felt he could not take the case to trial. In discussing his weak 

bargaining power with the state, appellant’s counsel stated, “[w]e all know why, 

because there’s another case circling this case.” The other case was what was 

“driving” the present case, counsel stated, and there were “other forces” that put 

him in a “bind.” Appellant also told the court at the hearing that he considered a 

trial, but it was “not a fight I want to, I want to pick.” The difficulty of 

appellant’s situation was also compounded by the state’s persistent refusal to 

voluntarily amend the charges and strike a plea based upon the same issues 

discussed by the trial court. Appellant’s counsel stated at the change of plea 

hearing “I would love to do a lot of things, but the State of Ohio has said no to 
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virtually everything.” Counsel stated, “I have asked to resolve it. The State of 

Ohio has blanket said, no, forget it. Here are your choices. Trial, which presents 

significant problems and exposure for my client in front of twelve people, or 

plea.” The state reiterated at the hearing that it wished to proceed according to the 

charges in the indictment despite the questions surrounding the kidnapping charge 

and the RVO specifications. It was clear that appellant’s counsel and appellant 

both agreed that taking these charges to trial was not a viable option. Given these 

circumstances, we cannot find that the outcome would have been any different 

even if appellant’s counsel would have halted the change of plea hearing. 

Appellant would likely have entered a guilty plea because of the other pending 

case. . . .

Jones, 2010 WL 866126, at *4. Petitioner’s sole challenge to this application of Strickland’s 

prejudice prong is that the court ignored the Supreme Court’s holding in United States v. 

Dominguez Benitez, 542 U.S. 74, 80 (2004), that when reviewing the voluntariness of the plea, 

“a reviewing court must look to the entire record, not to the plea proceedings alone[.]” 

Petitioner’s argument is unconvincing for several reasons. 

First, it was not an unreasonable application of federal law to give more weight to 

petitioner’s contemporaneous expressions of unwillingness to proceed to trial—in the context of 

the trial court inquiring whether he wished to pursue a trial on the affirmative defense, no less—

than a subsequent repudiation made after an adverse ruling and an opportunity to second-guess 

the decision. See McGowan v. Burt, 788 F.3d 510, 517 (6th Cir. 2015), cert. denied 2015 WL 

5176490 (Nov. 2, 2015) (mem.) (“[C]onsonant with Strickland’s cautionary note about a 

defendant’s natural tendency to second-guess his attorney’s assistance after an adverse judgment, 

the state court scrutinized [the petitioner’s] asserted misunderstanding in light of what was said 

at the time he rejected the plea offer without the distorting effects of hindsight.”) (internal 

quotation marks omitted); see also Hodges v. Colson, 727 F.3d 517, 539 (6th Cir. 2013) (“A selfserving statement . . . filed as a required part of [the petitioner’s] verified petition for post-
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conviction relief, cannot establish a reasonable probability that [he] would have pled not guilty 

but for the advice of counsel, where all objective evidence points unequivocally to the 

contrary.”). 

Second, Dominguez Benitez is of little help to petitioner because a holistic review of the 

record in this case shows that the Ohio Court of Appeals reasonably concluded that petitioner 

failed to establish a reasonable probability that he would have rejected the plea and proceeded to 

trial. In addition to trial counsel’s statements on the record regarding petitioner’s aversion to 

trial (documented by Ohio Court of Appeals above), petitioner made the following statements on 

the subject: 

THE COURT: Now, by pleading guilty you are waiving, you are giving up all of 

those very, very important rights. In effect what you are saying is, Judge, I do not 

want a trial. I do not want to contest these . . . charges. I don’t want to force [the 

prosecutor] to prove me guilty because I’m willing to admit my guilt. Is that what 

you want to do? 

THE DEFENDANT: Yes. 

THE COURT: You’ve got to be sure. 

THE DEFENDANT: I’ve thought about it, it’s not a fight I want to, I want to 

pick. 

* * *

THE COURT: Very good. All right. Is it your desire to enter a plea of guilty

today, give up all your rights, including your right to have a jury trial on these 

issues? 

THE DEFENDANT: Yes, sir. I thought about having a trial before you, but it’s 

not a fight I want to take. 

* * *

THE COURT: Very well. Now, anybody forced you to plead guilty here? 

THE DEFENDANT: Really didn’t have a choice, Your Honor. 

THE COURT: Oh, you always have a choice. 
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THE DEFENDANT: No, I didn’t have a choice. I had– 

THE COURT: If you don’t have a choice, I’m not taking your plea. 

THE DEFENDANT: Let me put it to you this way. I don’t want to go to trial, so 

yes, this is my voluntary action. 

Even taking into account the sentencing hearing—which petitioner faults the Ohio Court 

of Appeals for failing to consider—the only evidence petitioner cites is his counsel’s statement 

that “I talked to [Jones] and, you know, he agreed based on my advice to plead to the 

indictment.” However, the transcript of the plea hearing shows that counsel’s advice was to 

plead guilty to something he “probably believe[d] [was] wrong”—i.e., to plead to first-degree 

kidnapping despite knowing he could make a case for second-degree kidnapping at trial—

because of the extenuating circumstances petitioner faced at that time. Counsel never indicated 

at the sentencing hearing that Jones pleaded guilty based on a misunderstanding of the “safe 

place unharmed” concept. Thus, the evidence petitioner cites does not demonstrate a reasonable 

probability that, but for counsel’s erroneous advice regarding the potential affirmative defense, 

“he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at

59. 

Given petitioner’s repeated assurances on the record that he considered going to trial but 

decided it was “not a fight [he] want[ed] to take,” we cannot conclude that the Ohio Court of 

Appeals’ determination that petitioner failed to established prejudice was “so lacking in 

justification that there was an error well understood and comprehended in existing law beyond 

any possibility for fairminded disagreement.” Hill, 792 F.3d at 676. 

We affirm.