Allen v. Warden, Warren Corr. Inst.

• Decision Date: 05 July 2020
• Docket Number: Case No. 1:19-cv-315
• Parties: SHAWN ALLEN, Petitioner, v. WARDEN, Warren Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

SHAWN ALLEN, Petitioner, v. WARDEN, Warren Correctional Institution, Respondent.

Case No. 1:19-cv-315

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

July 5, 2020

District Judge Douglas R. Cole

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254, brought by Petitioner Shawn Allen with the assistance of counsel, is before the Court for decision on the merits on the Petition (ECF No. 1), the State Court Record (ECF No. 6), the Return of Writ (ECF No. 7), and Petitioner's Reply (ECF No. 9).

Litigation History

On February 19, 2015, the Hamilton County grand jury indicted Allen on one count of murder in violation of Ohio Revised Code § 2903.02(B) with two firearm specifications and one count of aggravated robbery in violation of Ohio Revised Code § 2911.01(A)(1), also with two firearm specifications (Indictment, State Court Record, ECF No. 6, Ex. 1).

On November 4, pursuant to plea negotiations, Allen pleaded guilty to one count of involuntary manslaughter in violation of Ohio Revised Code § 2903.04(A) with one firearm specification and to the aggravated robbery count, with the remaining charges and specifications being dismissed. He was sentenced to eleven years imprisonment on the manslaughter charge, three years on the firearm specification, and four years on the aggravated robbery, all to be served consecutively for a term of eighteen years.

Allen appealed to the Ohio First District Court of Appeals which affirmed. State v. Allen, 2016-Ohio-5258 (Ohio App. 1^st Dist. Aug. 5, 2016)("Allen I"), appellate jurisdiction declined, 148 Ohio St. 3d 1426 (2017).

On December 19, 2016, Allen filed in the Court of Common Pleas a Petition to Vacate Judgment/Sentence under Ohio Revised Code § 2953.21 or, in the Alternative, to Withdraw Guilty Plea. (State Court Record, ECF No. 6, Exhibit 17). The trial court denied relief and Allen appealed, but the First District again affirmed, both initially and on reconsideration. State v. Allen, 2018 Ohio App. LEXIS 313 (Ohio App. 1^st Dist. Jan. 26, 2018)("Allen II"), appellate jurisdiction denied, State v. Allen, 152 Ohio St. 3d 1482 ( 2018)).

On April 30, 2019, Allen filed his Petition in this Court, pleading the following grounds for relief:

Ground One: Involuntary manslaughter and aggravated robbery were allied offenses of similar import. The court's imposition of separate sentences was a violation of the double jeopardy clause of the 5th Amendment.

Supporting Facts: The involuntary manslaughter and aggravated robbery conviction sin this case are allied offenses. The allegations involve one act, one animus. Separate sentences for these cases violations [sic] the prohibition against double jeopardy.

Ground Two: The guilty plea was not made knowingly, intelligently and voluntarily because the factual allegations did not support the charge and the court lacked jurisdiction to convict.

Supporting Facts: With regard to Petitioner's conviction for involuntary manslaughter, the allegations relied upon by the state do not give rise to a violation of that statute. The guilty plea was not knowing, intelligent and voluntary and the court was without jurisdiction absent a factual basis to do so.

Ground Three: Petitioner was deprived of effective assistance of counsel.

Supporting Facts: At the time trial counsel was representing Petitioner on this case, he was also representing a witness for the state. Gary Young was a witness for the state. Petitioner's counsel represented Mr. Young in his separate criminal case. Petitioner was negatively impacted (as discussed below) by counsel's advice to plead guilty based on misrepresentations about what the sentence would be. Trial counsel did not disclose this conflict.

Ground Four: Petitioner was deprived of effective assistance of counsel during plea negotiations.

Supporting Facts: In advising Petitioner to plead guilty, trial counsel informed Petitioner that trial counsel and [sic] negotiated a plea bargain with the prosecutor. Trial counsel told Petitioner that if he pled guilty he would receive a sentence of 6 years in prison. Petitioner relied on counsel's representations when entering the plea. Petitioner was not sentenced to 6 years in prison, but was given 18 years in prison. Trial counsel refused to talk to Petitioner or file a motion withdraw [sic] his plea after the sentencing hearing.

(Petition, ECF No. 1, PageID 6-11.)

The Petition states "Grounds five, six and seven are outlined in the attached documentation." Id. at PageID 11. However, the attachment does not contain any pleaded fifth, sixth, or seventh grounds for relief.

Analysis

Ground One: Violation of the Double Jeopardy Clause

In his First Ground for Relief, Allen asserts his conviction for both involuntary manslaughter and aggravated robbery violates the Double Jeopardy Clause.

Respondent asserts this claim is procedurally defaulted by Allen's failure to make a contemporaneous objection and alternatively is without merit (Return, ECF No. 7, PageID 356-64). In his Reply, Allen argues the merits of Ground One, but makes no response to the procedural default defense (ECF No. 9, PageID 381-86).

Procedural Default

The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6^th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). "Absent cause and prejudice, 'a federalhabeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review.'" Boyle v. Million, 201 F.3d 711, 716 (6^th Cir. 2000), quoting Gravley v. Mills, 87 F.3d 779, 784-85 (6^th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were procedurally defaulted in state court—that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important "corollary" to the exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed. d 659 (2004). "Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address" the merits of "those claims in the first instance." Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111 S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default doctrine thus advances the same comity, finality, and federalism interests advanced by the exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).

"A claim may become procedurally defaulted in two ways." Williams v. Anderson, 460 F.3d 789, 806 (6^th Cir. 2006). First, a claim is procedurally defaulted where state-court remedies have been exhausted within the meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the federal petition is filed because of a state procedural rule. Id.

Lovins v. Parker, 712 F.3d 283, 295 (6^th Cir. 2013).

The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 464 (6^th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6^th Cir. 2010)(en banc);Eley v. Bagley, 604 F.3d 958, 965 (6^th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6^th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6^th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02 (6^th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6^th Cir. 2001).

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.

. . . .

Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

Third, the court must decide 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.

Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6^th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357 (6^th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6^th Cir. 2002). A habeas petitioner can overcome a procedural default by showing cause for the default and prejudice from the asserted error. Atkins v. Holloway,...