Collins v. Foley
| Decision Date | 29 December 2021 |
| Docket Number | 1:20-cv-1518 |
| Parties | LARRY COLLINS, Petitioner, v. KEITH FOLEY, WARDEN, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
JOHN R. ADAMS JUDGE
REPORT AND RECOMMENDATION[1]
On November 2, 2004, a man kicked in the front door of Laura Hammond's house, tied her up, and raped her. On July 12 2005, DNA testing of swabs taken from Hammond revealed a DNA profile that matched that of Larry Collins. Thirteen years later, Collins was charged with, and he later pleaded guilty to, rape, aggravated burglary, and kidnapping and was sentenced to 25 years' imprisonment.
Collins filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 (ECF Doc. 1) raising four grounds for relief:
Respondent Warden Keith Foley, filed a return of writ. ECF Doc. 10. Collins then filed a motion to stay proceedings so he could exhaust his Ground Four claim in state court, which Warden Foley opposed. ECF Doc. 11; ECF Doc. 12. The court denied the motion to stay because there was no available procedure by which Collins could raise his Ground Four claim in state court, such that Collins's Ground claim was exhausted, albeit procedurally defaulted because it was not timely addressed in the Ohio courts.[2] ECF Doc. 14. The court also established a final deadline for Collins to file his traverse, which has long since passed without a traverse being filed. ECF Doc. 14 at 8; see Docket for N.D. Ohio, case no. 1:20-cv-1518.
Because Collins's claims are procedurally defaulted, noncognizable, and/or lack merit, I recommend that the claims be DISMISSED and that his petition for writ of habeas corpus be DENIED. I further recommend that Collins not be granted a certificate of appealability.
On September 27, 2017, a Cuyahoga County, Ohio, grand jury indicted Collins, charging him with three counts of rape, four counts of aggravated burglary, and two counts of kidnapping; sexually violent predator, repeat violent offender, and sexual motivation specifications were attached. ECF Doc. 10-1 at 4-15. Collins pleaded not guilty. ECF Doc. 10-1 at 17.
On March 2 and 13, 2018, Collins pro se filed a motion to disqualify appointed counsel and a motion under Ohio Crim. R. 44 to represent himself. ECF Doc. 10-1 at 18, 230. At a hearing on the motions, held March 23, 2018, Collins stated he wished to represent himself because counsel had not shared any discovery with him and refused to file motions Collins had requested. ECF Doc. 10-1 at 230-32. However, he stated he recently suffered a stroke, which affected his mental capacity, speech, and ability to write, so he wanted substitute counsel. ECF Doc. 10-1 at 231-32. After confirming Collins's requested relief, the trial court appointed new counsel, and Collins withdrew his motion to represent himself. ECF Doc. 10-1 at 19, 235.
On June 4, 2018, Collins pleaded guilty under a negotiated plea agreement to one count of rape, one count of aggravated burglary, and one count of kidnapping with an attached sexual motivation specification; and the state agreed to seek to dismiss the remaining charges. ECF Doc. 10-1 at 20, 236, 239, 241-43, 250-51. Collins also agreed that the charges to which he was pleading guilty would not merge at sentencing and were not allied offenses; to be classified as a sexual predator under Megan's Law; and to be sentenced to between 3 to 10 years' imprisonment, as opposed to 3 to 11 under H.B. 86. ECF Doc. 10-1 at 240-41, 247-48.
On June 15, 2018, Collins filed[3] an Ohio Crim. R. 32.1 motion to withdraw his guilty plea, arguing his plea was involuntary because counsel: (1) had promised him a 6-year sentence; (2) failed to inform him that the lack of merger at sentencing and pleading guilty to the sexual motivation specification would result in a 28-year to life sentence; and (3) failed to convey the registration requirements for each offense classification. ECF Doc. 10-1 at 22-24. He also filed a motion to disqualify counsel. See ECF Doc. 10-1 at 25.
Before sentencing, the state filed a sentencing memorandum, providing the following factual background. ECF Doc. 1-2 at 49-55. On November 2, 2004, Hammond and her two-year-old son were alone at home when a stranger kicked in the front door, grabbed the knife that she used to keep the door closed, put the knife to her throat, tied her up, and raped her twice. ECF Doc. 1-2 at 50-51. Hammond went to the hospital, where she consented to a sexual assault kit examination. ECF Doc. 1-1 at 51.Subsequent testing detected a single DNA profile, which was entered into the Combined DNA Index System (“CODIS”). Id. On July 12, 2005, CODIS notified law enforcement that the DNA profile matched Collins. Id. In 2017, a DNA sample was collected from Collins for confirmation, the results of which verified that his DNA matched the profile found on swabs taken from Hammond. Id. During a follow-up interview, Hammond was able to recall the incident but was unable to pick Collins out of a photo line-up. Id.
On July 18, 2018, the trial court held a hearing on Collins's motions, at which Collins added that counsel had misrepresented the state's plea offers. ECF Doc. 10-1 at 254-56. According to Collins, counsel told him the state would remove the specifications from the indictment and made two plea offers: (1) plead guilty to one count of rape and one count of burglary with a firearm specification, despite having just said the state would remove the specification; and (2) plead guilty to one count of rape, one count of aggravated burglary, and one count of kidnapping, with no mention of a sexual motivation specification. ECF Doc. 10-1 at 256. And counsel advised him to take the second. Id. Collins further argued that counsel did not mention or explain merger, no one explained that the sexual motivation specification was punishable by ten years to life imprisonment, and no one explained that the sexual motivation specification made him a sexual predator. ECF Doc. 10-1 at 257-59.
Counsel denied ever promising a six-year sentence, stated the stipulation of no merger/allied offenses was material to the plea agreement and was explained to Collins, and stated Collins was aware of the potential for a three- to ten-year sentence for each offense. ECF Doc. 10-1 at 264-66. Collins responded that none of what counsel said was communicated to him before the guilty plea hearing, and counsel kept waving him away during the hearing when he tried to raise any issue. ECF Doc. 10-1 at 268. And although merger was discussed during the plea colloquy, Collins contended he could not remember what that meant due to the effects of his stroke. Id.
The trial court denied Collins's motion, finding that the plea colloquy transcript made clear that he knew he faced separate three- to ten-year sentences for each count; he affirmed no promises of a particular sentence were made; and he agreed he would be classified a sexual offender. ECF Doc. 10-1 at 272, 274, 280-81, 283. The court also noted that: (1) Collins did not once claim actual innocence; (2) the rape charge by itself required the court to classify him as a sexual offender; (3) the sexual motivation specification argument was “a meaningless red herring” because the specification merely mandated a sexual offender classification which pleading guilty to rape already required; (4) he was informed of the registration requirements for a person classified as a sexual predator at the plea hearing; and (5) he had previously been charged with rape, gone to several trials, been through six plea colloquies, and entered into plea agreements. ECF Doc. 10-1 at 271-72, 279. The court also denied the motion to disqualify counsel. ECF Doc. 10-1 at 25, 283.
The trial court then proceeded to sentencing. ECF Doc. 10-1 at 283. Collins's counsel offered in mitigation a 2006 competency evaluation made in connection with one of Collins's prior criminal cases, which determined Collins had major depression disorder, recurrent with severe psychotic features, polysubstance dependence, and personality disorder not otherwise specified with antisocial features. ECF Doc. 10-1 at 288, 290. The court sentenced Collins to prison terms of 10 years each on the rape and aggravated burglary counts and 5 years on the kidnapping count, all to be served consecutively, for an aggregate 25-year sentence. ECF Doc. 10-1 at 26, 294. In doing so, the court stated:
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