Warner v. U.S., s. 91-3696

Citation975 F.2d 1207
Decision Date16 September 1992
Docket NumberNos. 91-3696,91-3836 and 91-3878,s. 91-3696
PartiesAnthony T. WARNER, Petitioner-Appellant (91-3696), Petitioner-Appellee (91-3836), Cross-Appellant (91-3878), v. UNITED STATES of America, Respondent-Appellee (91-3696), Anthony J. Celebrezze, Jr., Attorney General, State of Ohio, Respondent-Appellant (91-3836), Cross-Appellee (91-3878).
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Debra M. Hughes (argued and briefed), Federal Public Defender's Office, Stephen W. Gard, Cleveland, Ohio, for petitioner-appellant.

Gregory C. Sasse, Asst. U.S. Atty. (argued and briefed), Office of U.S. Atty., Cleveland, Ohio, for respondent-appellee.

Stuart A. Cole, Asst. Atty. Gen. (argued and briefed), Office of Atty. Gen. of Ohio, Columbus, Ohio, for respondent-appellant Anthony J. Celebrezze, Jr.

Before: KEITH and SUHRHEINRICH, Circuit Judges, and CONTIE, Senior Circuit Judge.

SUHRHEINRICH, Circuit Judge.

Petitioner Anthony T. Warner pled guilty in Ohio State Court to the charges of murder and aggravated robbery. Eleven days later, Warner pled guilty in the United States District Court for the Northern District of Ohio to two counts of bank robbery. After numerous state post-conviction appeals, Warner filed for federal habeas corpus relief from his state sentence pursuant to 28 U.S.C. § 2254. This case was consolidated with Warner's pending petition requesting habeas corpus relief from his federal sentence pursuant to 28 U.S.C. § 2255. The district court held an evidentiary hearing and granted Warner's motion with respect to the state convictions, but denied his request as to the federal convictions. For the following reasons, we affirm the district court.

I.

On December 18, 1980, Warner pled guilty to murder and aggravated robbery charges in the Cuyahoga County Common Pleas Court. The Common Pleas Court sentenced Warner to an indefinite term of fifteen years to life imprisonment on the murder charge and four to twenty-five years imprisonment on the robbery charge, the sentences to run concurrently. Warner was then turned over to federal authorities for prosecution of federal charges of bank robbery.

On December 29, 1980, Warner pled guilty in federal court to two counts of armed bank robbery arising out of an indictment returned by a grand jury in the Central District of California (voluntarily transferred to the Northern District of Ohio pursuant to Fed.R.Crim.P. 20). At the plea hearing, the district judge asked Warner whether there were any promises made to him that were not in the record, and Warner responded "No, sir." On March 5, 1981, the district court sentenced Warner to twenty-two years imprisonment on each count, with the sentences to run concurrently. The court clearly stated that the "federal sentence will go into effect, but in no way will that be shortened or modified by the state sentence. The state sentence still exists, and if, indeed, you are ever paroled from federal imprisonment, you would then, I believe, be subjected to serve time as a state prisoner."

A. State Court Proceedings

Warner did not file a direct appeal from the state court sentence imposed on December 18, 1980. Warner claims that he did not pursue a direct appeal in state court because he believed that his state and federal sentences were running concurrently due to a plea agreement. In May 1984, Warner discovered that a state detainer warrant had been filed with the federal authorities, requesting that he be transferred to the State of Ohio to serve his state sentence upon completion of his federal imprisonment. Warner claims that it was the detainer warrant that first alerted him to the possibility that his federal and state sentences were not concurrent.

Warner then filed a state habeas corpus petition in the Cuyahoga County Common Pleas Court. As a result of this action, the United States Department of Justice requested a clarification of Warner's sentence. The Common Pleas Court responded with a one sentence order that Warner's state sentence be consecutive to his federal sentence. Warner argued that the parties had agreed that the state and federal sentences would be served concurrently, not consecutively. Since the state sentence was imposed first, Warner argued that the state prosecutor was supposed to recommend to the state court that the state sentence would be concurrent to any federal sentence after the federal sentence was imposed. The Common Pleas Court rejected this contention, finding no evidence of such an agreement. The court then dismissed Warner's petition.

On August 29, 1984, Warner appealed the dismissal of his habeas petition and the order mandating consecutive sentences. Warner alleged that the order was an invalid post-conviction modification of this sentence and that his guilty plea was invalid. The Ohio Court of Appeals, 1985 WL 8633, vacated the order imposing consecutive sentences as an improper post-conviction modification of Warner's sentence. However, the court also noted that Warner's sentences would still be consecutive because the district court had no authority to impose a sentence concurrent to a state sentence without the approval of the United States Attorney General. The Ohio Court of Appeals also ruled that there was no evidence of any plea agreement in the record, and the court therefore overruled this count of error in the appeal. The Ohio Supreme Court sua sponte dismissed Warner's appeal.

Warner next filed a state habeas corpus petition pursuant to Ohio Rev.Code § 2953.21, alleging that it was improper to impose consecutive sentences when he was promised concurrent sentences, and for the first time, that his trial counsel was ineffective. The Common Pleas Court denied the petition because Warner could have raised the ineffective assistance of trial counsel claim on direct appeal. Warner appealed to the Ohio Court of Appeals, which affirmed the lower court's decision 1990 WL 32588. The court held that "direct appeal was the appropriate time to raise these allegations of ineffective assistance." See State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982). The Ohio Supreme Court dismissed Warner's appeal on June 27, 1990.

B. Federal Court Proceedings

While seeking relief from his state court sentence, Warner also filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2255, challenging his federal sentence. In his section 2255 petition, Warner made three claims: (1) the United States Attorney breached the plea agreement by not recommending that the federal sentence be imposed concurrently; (2) his counsel provided ineffective assistance of counsel to Warner by counseling him to answer "no" to the court's inquiries about any promises made to induce the guilty plea; and (3) the guilty plea, induced by his erroneous belief in a promise of a concurrent sentence, was not made knowingly and voluntarily. The district court rejected the first claim, noting that the record revealed no such promise of concurrent sentences by the federal prosecutor but instead reflected Warner and his counsel's knowledge that the sentences were to be consecutive. With respect to the ineffective assistance of counsel claim, the district court decided that Warner was estopped from asserting his claim because of his answers at the federal sentencing hearing, stating that no promises had been made inducing him to plead guilty. Finally, the court concluded that Warner was collaterally estopped from bringing his claim that his plea was based upon misinformation because the state court of appeals had already dismissed this argument.

In a previous appeal to this court, we held that Warner was estopped from raising any additional promises not fulfilled by the federal government because he knew that he would serve consecutive sentences for his federal and state pleas. However, we concluded that Warner was not estopped from raising the ineffective assistance of counsel claim as to the proceedings at his federal plea hearing. We remanded to the district court for an evidentiary hearing solely on the issue of the ineffectiveness of Warner's counsel in his federal case. See Warner v. United States, 911 F.2d 734 (6th Cir.1990).

C. Consolidated Federal and State Proceedings

On August 23, 1990, the day after this court remanded Warner's section 2255 petition for an evidentiary hearing, Warner filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his state conviction. The district court consolidated this case with Warner's already filed habeas corpus petition challenging his federal sentence, which was on remand from this court. The district court then conducted an evidentiary hearing on the ineffectiveness of Warner's original trial counsel, Russell Adrine, who represented Warner at both state and federal sentencing.

The district court first determined that Warner was not procedurally barred from raising the issue of his trial counsel's ineffective assistance. The district court disagreed with the Ohio Court of Appeal's conclusion that State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), applied to Warner's allegations. Cole held that res judicata bars an individual from raising ineffective assistance of trial counsel in a post-conviction proceeding if the individual was represented by different counsel and failed to raise the issue on direct appeal. The district court held that Warner's first round of appeals in state court were not "direct" appeals but rather state habeas corpus petitions. Therefore, Cole did not apply.

The district court then held that Warner's trial counsel had rendered ineffective assistance by leading Warner to believe that he had a plea bargain for concurrent sentences with the state and federal authorities. The district court found that Warner relied on this erroneous belief when pleading guilty in state court on December 18, 1980. This amounted to substantial prejudice, which required the court to grant...

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