Stone v. Moore, 08–4460.

Citation644 F.3d 342
Decision Date29 April 2011
Docket NumberNo. 08–4460.,08–4460.
PartiesJackie STONE, Petitioner–Appellant,v.Ernie MOORE, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

644 F.3d 342

Jackie STONE, Petitioner–Appellant,
v.
Ernie MOORE, Respondent–Appellee.

No. 08–4460.

United States Court of Appeals, Sixth Circuit.

April 29, 2011.


[644 F.3d 343]

ON BRIEF: Thelma Thomas Price, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. Jackie Stone, London, Ohio, pro se.Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.

OPINION
CLAY, Circuit Judge.

Pro se Petitioner Jackie Stone appeals from a judgment entered by the district court denying Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, we AFFIRM the district court's judgment.

STATEMENT OF FACTS

On September 16, 1999, Petitioner went to a residence in Franklin County, Ohio to purchase ecstacy pills from one Danny Feeney. Petitioner purchased the pills, and left the residence. Later that day, Petitioner returned to the residence with a few additional individuals. Feeney met Petitioner and the others at the residence's back door. Petitioner drew a gun, and began shooting at Feeney. Individuals on the second floor of the residence returned

[644 F.3d 344]

fire. Feeney was shot by Petitioner, as was one other individual, Darvelle Ward. Subsequently, Feeney was taken to the hospital where he died of gunshot wounds inflicted by Petitioner.

An Ohio grand jury indicted Petitioner, and charged him with the following crimes: (1) one count of robbery pursuant to Ohio Revised Code (“O.R.C.”) § 2911.02; (2) one count of aggravated murder pursuant to O.R.C. § 2903.01(A), with specifications that the killing was committed as part of a course of conduct involving the purposeful killing or attempted killing of two or more people pursuant to O.R.C. § 2929.04(A)(5), and that the offense was committed with a firearm in the course of committing an aggravated robbery, which included a death penalty specification, pursuant to O.R.C. § 2929.04(A)(7); (3) one count of aggravated murder of Danny Feeney with death penalty and firearm specifications pursuant to O.R.C. § 2903.01(B); (4) one count of attempted aggravated murder of Darvelle Ward with a firearm specification pursuant to O.R.C. § 2923.02; (5) one count of attempted aggravated murder of Darvelle Ward pursuant to O.R.C. § 2903.01(B); (6) one count of aggravated robbery pursuant to O.R.C. § 2911.01 with specifications for a firearm and for improperly discharging a firearm into a habitation pursuant to O.R.C. § 2923.161; and (7) one count of having a weapon while under a disability with a firearm specification pursuant to O.R.C. § 2923.13.

On May 15, 2000, Petitioner entered a guilty plea to one count of murder with a firearm specification, a lesser-included offense of aggravated murder, and one count of felonious assault, a lesser-included offense of attempted aggravated murder. On the guilty plea form, Petitioner acknowledged that his guilty plea “represents the free and voluntary exercise of my own free will and best judgment.” (R. 7–1, Ex. 4 at 2.)

That same day, the state court sentenced Petitioner to an agreed upon statutorily mandated term of imprisonment of fifteen years to life for murder, plus a three year term of imprisonment for the firearm specification, and to a concurrent seven year term of imprisonment for felonious assault. Petitioner was thus sentenced to a minimum of eighteen years of imprisonment.

More than six years later, Petitioner filed a motion for delayed appeal to challenge the voluntariness of his guilty plea pursuant to Ohio Rule of Appellate Procedure 5(A). On August 6, 2006, the Ohio Court of Appeals denied Petitioner leave to appeal. The Ohio Supreme Court similarly denied Petitioner's motion to appeal further.

On April 24, 2007, after exhausting his available state court remedies, Petitioner filed a pro se petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2254. In his habeas petition Petitioner raised three grounds for relief: (1) that the Ohio courts' denial of his motion for delayed appeal violated his due process rights; (2) that the State of Ohio's failure to provide him with appellate counsel violated his Sixth Amendment right to appellate counsel; and (3) that his trial counsel's ineffective assistance violated his Sixth Amendment right to trial counsel. (R. 9, Magistrate's Rep. and Recommendation at 4.) Although pro se Petitioner did not state so explicitly, the substance of his habeas petition challenges the voluntariness of his guilty plea.

The district court referred Petitioner's habeas petition to a magistrate judge. The magistrate judge stated in his Report and Recommendation that although Petitioner had not waived his right to challenge the voluntariness of his guilty plea,

[644 F.3d 345]

Petitioner had procedurally defaulted his habeas claims by failing to satisfy the requirements of Ohio Rule of Appellate Procedure 5(A) in filing his motion for delayed appeal in the Ohio Court of Appeals. The district court adopted the magistrate judge's Report and Recommendation, and denied Petitioner's habeas claims as procedurally defaulted. Nevertheless, the district court granted Petitioner a certificate of appealability on his habeas claims, and Petitioner thereafter filed the instant timely appeal.

DISCUSSION
I. Standard of Review

In reviewing a district court's denial of a petition for a writ of habeas corpus, this Court reviews findings of facts for clear error and questions of law de novo. Haliym v. Mitchell, 492 F.3d 680, 689 (6th Cir.2007).

II. Analysis

In pleading guilty, Petitioner waived his right to appeal the substance of his guilty plea, and was advised as much by the Ohio trial court. In his Report and Recommendation, the magistrate judge quoted the transcript of Petitioner's sentencing hearing at which the Ohio trial court engaged in the following colloquy with Petitioner: the court asked, “Do you understand that at the end of the trial, if you were convicted, you would have the right to appeal this conviction?” Petitioner replied, “Yes, ma'am.” The Ohio trial court further asked Petitioner, “If you proceed by pleading guilty and admitting your guilt, do you understand then that you would not be in a position to appeal your conviction and you would be waiving all of these rights that we just discussed?” Once again, Petitioner replied, “Yes, ma'am.” (R. 9, Rep. and Recommendation at 7.) However, as recognized by the district court, Petitioner did not waive his right to challenge the voluntariness of his guilty plea on appeal or in a federal petition for a writ of habeas corpus. See, e.g., United States v. Mader, 251 F.3d 1099, 1103 (6th Cir.2001).

Prior to addressing the merits of Petitioner's claims, we must determine whether the claims are properly before us, or whether they have been procedurally defaulted. “Under the procedural default doctrine, a federal court is generally barred from considering an issue of federal law arising from the judgment of a state court if the state judgment rests on a state-law ground that is both independent of the...

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