Page 1 of 7 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 05a0550n.06 Filed: June 24, 2005

Case No. 04-3475 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

DARNELL HALL, SR., ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR Petitioner-Appellant, ) THE NORTHERN DISTRICT OF OHIO ) v. ) ) RICHARD GAINSHEIMER, ) ) Respondent-Appellee. )

Before: SILER and GIBBONS, Circuit Judges; STAFFORD, District Judge.* STAFFORD, District Judge. Petitioner appeals the district court’s judgment denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm. I. On October 14, 1998, the Cuyahoga County Gr and Jury indicted Darnell Hall, Sr. (“Hall”), on (1) one count of knowingly possessing or using a controlled substance, cocaine, in an amount exceeding one thousand gr ams, in violation of Ohio Revised Code § 2925.11 (Count 1); (2) one count of knowingly preparing drugs for sale in violation of Ohio Revised Code § 2925.07 (Count 2); and (3) one count of possessing

* The Honorable William Stafford, United St ates District Judge for the NorthernPage 2 of 7 District of Florida, sitting by designation. criminal tools in violation of Ohio Re vised Code § 2923.24 (Count 3). Counts 1 and 2 contained a major drug offender specific ation because those counts involved the possession of at least one thousand grams of cocaine. On March 29, 1999, on the recommendati on of the prosecutor, Count 1 was amended to included a charge of attempt, and the major drug offender specification was deleted. Hall then pleaded guilty to Count1, as amended, and Counts 2 and 3 were “nolled.” On April 19, 1999, Hall was sentenced to a six-year term of incarceration, a $15,000 fine, and a mandatory five-year driver’s license suspension. During the course of the sentencing, Hall unsuccessfully a ttempted to withdraw the guilty plea he had entered the previous month. While explicit ly acknowledging that the court had complied with Rule 11 at the plea colloquy, Hall’s atto rney nonetheless advised the court that his client had changed his mind. Counsel did not suggest that Hall wanted to withdraw his plea because the court had failed to advise him about the direct consequences of his plea. Indeed, Hall’s attorney gave no reason at all for his client’s change of mind. Hall filed a timely appeal in the Court of Appeals of Ohio, asserting three errors: (1) that he was denied due process when the court denied his motion to withdraw his plea; (2) that he was denied due process when the court failed to inform him about the penalties; and (3) that he was denied due process when his guilty plea was entered unknowingly, unintelligently and involuntarily. On July 14, 2000, the court of appeals affirmed the judgment of the trial court, finding no merit to any of Hall’s claims of error. Hall thereafter appealed to the Ohio Suprem e Court, which dismissed the appeal as notPage 3 of 7 involving any substantial constitutional question. On December 8, 2000, Hall filed a feder al habeas corpus petition in the United States District Court for the Northern Distric t of Ohio, Eastern Division, raising, in essence, the same three claims that he ra ised in the state appellate court. On May 7, 2002, a magistrate judge recommended dismissal, with prejudice, of Hall’s petition. Adopting the magistrate judge’s report and re commendation in part, the district court dismissed Hall’s petition. The district c ourt thereafter denied Hall’s motion to alter or amend but granted Hall a certif icate of appealability on the sole issue of whether the trial court committed constitutional error by failing to advise Hall of a mandatory driver’s license suspension prior to taking his guilty plea and, if so, whether such an error required the granti ng of Hall’s writ. II. In reviewing the district court's denial ofHall’s petition for a writ of habeas corpus, we review the district court’s legal conclusions de novo and its factual findings for clear

error. Towns v. Smith , 395 F.3d 251, 257 (6th Cir. 2005). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), “[a]n application for a writ of habeas corpus on behal f of a person in custody pursuant to the judgment of a State court shall not be gr anted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the S upreme Court of the United States; orPage 4 of 7 (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). III. Hall argued before the Court of Appeals of Ohio that he was denied due process when the trial court failed to inform him that his plea would result in a suspension of his driver’s license. The Court of A ppeals rejected this argument, stating: In the instant case, the trial court was in, at a minimum, substantial compliance with Crim. R. 11. [Hall] states that [at the plea colloquy] the trial court failed to inform him of the potential penalties arising out of his plea because he was never told that he could be subject to a fine and he was never told that his driver’s license could be suspended. The record does not support these assertions. At the sentencing heari ng the judge requested that the prosecutor state on the re cord the potential license suspension facing [Hall] as a result of his plea. The prosecutor did so state on the record, prior to the juncture at which [Hall] attempted to withdraw his plea. [Hall] did not state that he was surprised by the potential license suspension and he did not list the suspension as a reason why he attempted to withdraw his plea. Given the fact that the suspension was for a period of five years and that the trial court imposed a sentence of imprisonment of six years, there was no prejudice to [Ha ll] in specifying the driver’s license suspension prior to sentencing, rather than at the time of the plea hearing. J.A. at 119-20. A guilty plea is valid if it is entered kno wingly, voluntarily, and intelligently by the defendant. Brady v. United States , 397 U.S. 742, 748 (1970). For a plea to be intelligent and knowing, the trial court must ensure that the defendant is "aware of the direct consequences of the plea." King v. Dutton , 17 F.3d 151, 153 (6th Cir. 1994)Page 5 of 7 (emphasis added). Here, the district court found, as a matter of fact, that the trial court failed to advise Hall during the plea colloquy that a guilty plea would result in the court’s having to suspend Hall’s driver’s license for a period up to five years. Indeed, there was a complete absence of any mention of a dr iver’s license suspension during the plea colloquy and, therefore, the di strict court’s finding of a failure-to-advise is not clearly

erroneous. The district court also concluded, as a ma tter of law, that (1) the trial court was required to advise Hall at the plea colloquy that, if he pleaded guilty, he would face a suspension of his driver’s license under Oh io Revised Code § 2925.11(E)(2), and (2) the trial court’s failure to do so was error ofconstitutional magnitude. We agree with the district court’s conclusion. As a judge-imposed punishment made part ofHall’s sentence, the suspension of Hall’s driver’s license constituted a direct consequence of Hall’s guilty plea. It was not a collateral consequence to be imposed, if at all, by an agency or party external to the
court. See El-Nobani v. United States , 287 F.3d 417, 421 (6th Cir.) (explaining that “[a] collateral consequence is one that ‘remains beyond the control and responsibility of the district court in which that conviction was entered’") (quoting United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000)), cert. denied , 537 U.S. 1024 (2002); cf. Kratt v. Garvey , 342 F.3d 475 (6th Cir. 2003) (holding that revo cation of a defendant’s pilot’s license was a collateral consequence of the defendant’s guilty plea to drug charges where the revocation was effected by the Federal Avia tion Administration more than a year and a half after the defendant pleaded guilty before t he court). Because the suspension of Hall’s driver’s license was to be a direct c onsequence of his plea, effected by the trialPage 6 of 7 court as required by Ohio law, the trial c ourt was required to advise Hall that his plea would result in such suspension. The trial court having failed to advise Hall of all the direct consequences of his guilty plea, Hall’s plea was not “knowing.” To the extent that the state appellate court found that the trial court was in “substantial compliance” with the law and that Hall’s plea was, therefore, “knowing,” t he state court’s decision “was contrary to, or involved an unreasonable application of, clearly establis hed Federal law.” 28 U.S.C. § 2254(d)(1). Notwithstanding the trial court’s error, t he district court concluded that Hall was not entitled to relief because he failed to demons trate that he was prejudiced by the trial court’s failure to advise him about the driver’s license suspension at the time of his plea. Indeed, under Brecht v. Abrahamson , 507 U.S. 619 (1993), a habeas petitioner is not entitled to collateral relief unless he or s he demonstrates the existence of an error of constitutional magnitude which "had substantial and injurious effect or influence" on the guilty plea. Brecht 507 U.S. at 637. In other words, Brecht requires a habeas petitioner to establish that any error resulted in actual prejudice. See also Ford v. Curtis , 277 F.3d 806, 809 (6th Cir.) (explaining that a state pr isoner is not entitled to habeas relief unless he can establish actual prejudice), cert. denied , 537 U.S. 846 (2002). This Hall failed to do. The record suggests, and Hall does not contend otherwise, that his five-year driver’s license suspension runs concurrentlywith his six-year term of incarceration. The suspension will thus lapse while Hall is incarcerated and, consequently, will have no prejudicial effect on Hall. Hall makes no attempt to explain how a maximum fiveyear driver’s license suspension had a “subst antial and injurious effect or influence" onPage 7 of 7 his guilty plea. Indeed, when he learned at sentencing about the license suspension, he expressed no surprise; he failed to object to the suspension; and he failed to list the suspension as a reason why he wanted to withdrawhis plea. Before the district court, moreover, he made no showing that, but for t he trial court’s failure to properly advise him about the driver’s license suspensi on, he would not have pleaded guilty. Because Hall failed to demonstrate that t he trial court’s failure to advise him about the mandatory driver’s license suspensi on at the time of his plea resulted in actual prejudice to him, we AFFIRM the di strict court’s denial of Hall’s petition for habeas corpus relief.