Buckner v. State Of Ohio
| Decision Date | 09 September 2022 |
| Docket Number | 3:19-CV-01557-JRK |
| Parties | THOMAS BUCKNER, JR., Plaintiff, v. STATE OF OHIO, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
REPORT & RECOMMENDATION
Petitioner Thomas Buckner, Jr., seeks a writ of habeas corpus under 28 U.S.C. § 2254. ECF (Doc. No. 1.) Buckner, an Ohio prisoner, is currently serving a prison term of 12 years with a mandatory time of six years for the following charges: (1) two counts of Illegal Assembly or Possession of Chemicals in violation of O.R.C. § 2925.041(A)(C) a second-degree felony; and (2) one count of Endangering Children in violation of O.R.C. § 2919.22(B)(6)(E)(3)(a), a third-degree felony. ECF Doc. No. 9-1 at Ex. 45, Page ID#277-283. He asserts three grounds of relief: (1) ineffective assistance of counsel; (2) broken plea agreement and (3) illegal search and seizure. (ECF Doc. No. 1.) Respondent State of Ohio has filed a return of writ. (ECF Doc. No. 9). And Petitioner has filed a traverse/answer to the return of writ. (ECF Doc. No. 10.)
This matter was referred to me under Local Rule 72.2 to prepare a report and recommendation on Buckner's petition and other case-dispositive motions.[1] Because Buckner has presented only procedurally defaulted, merit less, and/or non-cognizable claims, I recommend that the Court DENY and/or DISMISS Buckner's petition and not grant him a certificate of appealability.
In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1); see also Spagnola v. Horton, No. 17-1462, 2017 WL 8948745, *2 (6th Cir. Oct. 30, 2017). The Ohio Court of Appeals for the Third District set forth the following facts on direct appeal:
{¶2} On May 4, 2017, the Van Wert County Grand Jury indicted Buckner on six counts: Counts One and Two of illegal manufacture of drugs in violation of R.C. 2925.04(A), (C)(3)(b), first-degree felonies; Count Three of illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A), (C), a second-degree felony; Count Four of endangering children in violation of 2919.22(B)(6), (E)(3)(a), a third-degree felony; Count Five of aggravated possession of drugs in violation of R.C. 2925.11(A), (C)(1)(a), a fifthdegree felony; and Count Six of engaging in a pattern of corrupt activity in violation of 2923.32(A)(1), (B)(1), a first-degree felony. (Doc. No. 2). On May 10, 2017, Buckner appeared for arraignment and entered pleas of not guilty. (Doc. No. 11). (See May 10, 2017 Tr. at 1-11).
{¶3} On February 26, 2018, under a negotiated plea agreement, Buckner withdrew his pleas of not guilty and entered guilty pleas to Counts One and Four of the indictment. (Doc. No. 105). (See Doc. No. 104). (See also Feb. 26, 2018 Tr. at 139157). In exchange, the State agreed to dismiss Counts Two, Three, Five, and Six. (Id.); (Id.); (Id.). The trial court accepted Buckner's guilty pleas, found him guilty, and ordered a presentence investigation. (Doc. No. 105). (See Feb. 26, 2018 Tr. at 139-157). On March 15, 2018, Buckner informed the trial court that he desired to withdraw his guilty pleas. (Doc. No. 107). (See Mar. 15, 2018 Tr. at 158- 161).
{¶4} On April 3, 2018, the State filed a bill of information with a single count, Count One, of illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A), (C), a second-degree felony. (Doc. No. 115). On the same date, under a second negotiated plea agreement, Buckner entered guilty pleas to Count One of the bill of information and Counts Three and Four of the indictment. (Doc. No. 121); (Apr. 3, 2018 Tr. at 174-192). In exchange for his guilty pleas, the State agreed to dismiss the remaining charges against Buckner. (Apr. 3, 2018 Tr. at 164). (See Doc. No. 120). The trial court accepted Buckner's guilty pleas and found him guilty. (Doc. No. 121); (Apr. 3, 2018 Tr. at 192).
{¶5} As the parties had a jointly recommended sentence, the trial court proceeded directly to sentencing and sentenced Buckner to six years in prison on Count One of the bill of information; six years in prison on Count Three of the indictment; and 24 months in prison on Count Four of the indictment. (Doc. No. 121); (Doc. No. 122); (Apr. 3, 2018 Tr. at 197-198). In its judgment entry of sentence, the trial court ordered that the sentences for Count Three of the indictment and Count One of the bill of information be served consecutively to one another and that the sentence for Count Four of the indictment be served concurrently to Counts One and Three. (Doc. No. 121).
{¶6} Following the announcement of sentence, Buckner orally moved to strike his motion to withdraw his former guilty plea. (Apr. 3, 2018 Tr. at 202). On April 5, 2018, the trial court filed its judgment entry of conviction and sentence. (Doc. No. 121).
State v. Buckner, Third District Van Wert No. CR-17-04-0450, 2018-Ohio-4923, ¶¶ 2-6.
On May 4, 2017, a Van Wert County Grand Jury indicted Buckner, charging him with six counts: (1) two counts of illegal manufacture of drugs in violation of O.R.C. § 2925.04(B); (2) one count of illegal assembly or possession of chemicals for the manufacture of drugs in violation of O.R.C § 2925.041(A); (3) one count of endangering children in violation of O.R.C. § 2919.22(B)(6)(E)(3)(a); (4) one count of aggravated possession of drugs in violation of O.R.C. § 2925.11(A)(C)(1)(a(); (5) and one count of engaging in a pattern of corrupt activity in violation of O.R.C. § 2923.32(A)(1)(B)(1). (ECF Doc. No. 9-1 at Ex. 1, Page ID#87-91.) Buckner pled not guilty to all counts at an arraignment hearing on May 10, 2017. (ECF Doc. No. 9-2, Page ID#414-415.)
2. First Plea Agreement
Under a negotiated plea agreement, Buckner withdrew his plea of not guilty and entered guilty pleas to the count of illegal manufacture of drugs in violation of O.R.C. § 2925.04(B) and the count of endangering children in violation of O.R.C. § 2919.22(B)(6)(E)(3)(a). (ECF Doc. No. 9-2, Page ID#546-564.) In exchange, the State of Ohio agreed to dismiss the other charges against Buckner. (ECF Doc. No. 9-2, Page ID#546-564.) The trial court held a lengthy plea colloquy with Buckner, accepted Buckner's guilty pleas, and found Buckner guilty of one first-degree felony Illegal Manufacture of Drugs charge and one third-degree felony Endangering Children charge. (ECF Doc. 9-2, Page ID#546-564.)
Before Buckner's sentencing, Buckner made an oral pro se motion to withdraw his guilty pleas and requested new counsel. (ECF Doc. No. 9-2, Page ID#565-568.) Buckner's new trial attorney filed a notice of appearance, a discovery request, and a request for notice of intended evidence. (ECF Doc. No. 9-1 at Ex. 33, Page ID#258; ECF Doc. No. 9-1 at Ex. 34, Page ID #259-260; ECF Doc. No. 9-1 at Ex. 35, Page ID #261.)
3. Arraignment and Second Plea Agreement
On April 3, 2018, the State filed a bill of information with one count: illegal assembly or possession of chemicals for the violation for the manufacture of drugs in violation of O.R.C. § 2925.041(A), (C), a second-degree felony. (ECF Doc. No. 9-1 at Ex. 36, Page ID#262-264.) With new counsel and under a second negotiated plea agreement, Buckner entered guilty pleas to the bill of information's count and Counts Three and Four of the indictment. (ECF Doc. No. 9-1, Page ID#581-599.) In exchange for Buckner's guilty pleas, the State entered a nolle presequi on the remaining charges. (ECF Doc. No. 9-2, Page ID#571.) Buckner signed and executed a waiver of grand jury and agreed to withdraw his motion to withdraw his guilty plea. (ECF Doc. No. 9-1 at Ex. 37, Page ID#265-270.)
Because the parties had a stipulated plea agreement, the trial court proceeded directly to sentencing. The court sentenced Buckner to six consecutive years in prison for each illegal assembly or possession of chemicals for the manufacture of drugs conviction and 24 months in prison for the endangering children conviction. (ECF Doc. No. 9-2, Page ID#604-605.) In the trial court's judgment entry, the court ordered that the sentences for Count Three of the indictment and Count One of the bill of information be served consecutively to one another and that the sentence for Count Four of the indictment be served concurrently to Counts One and Three. (ECF Doc. No. 9-1, Page ID#604-605.) The trial court journalized Buckner's conviction and sentence entry on April 5, 2018. (ECF Doc. No. 9-1, Page ID#277.)
Buckner filed a timely pro se notice of appeal on April 30, 2018. (ECF Doc. No. 9-1 at Ex. 42, Page ID#284.) Buckner also filed a motion in the trial court for appointment of counsel for a direct appeal. (ECF Doc. No. 9-1 at Ex. 45, Page ID#306.) The trial court appointed appellate counsel to represent Buckner in his appeal. (ECF Doc. No. 9-2 at Ex. 46, Page ID#309.) Through counsel, Buckner raised the following assignment of error on direct appeal:
The trial court's decision to impose consecutive sentences was not supported by the record and was contrary to law.
(ECF Doc. No. 9-1 at Ex. 47, Page ID#313.)
The State filed a brief in response on September 25, 2018. (ECF Doc No. 9-2 at Ex. 48, Page ID#338.) On December 10, 2018, the Third District Court of Appeals declined jurisdiction and dismissed Buckner's appeal. (ECF Doc. No. 9-1 at Ex. 49, Page ID#352.)
On January 2, 2019, Buckner filed a timely pro se notice of appeal with the Ohio Supreme Court. (ECF Doc. No 9-1 at Ex. 50, Page...
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