Copley v. Fender

• Decision Date: 11 February 2021
• Docket Number: 1:19-cv-00847
• Court: U.S. District Court — Northern District of Ohio
• Parties: GREGORY COPLEY, Petitioner, v. WARDEN DOUGLAS FENDER, Respondent.

GREGORY COPLEY, Petitioner, v. WARDEN DOUGLAS FENDER, Respondent.

No. 1:19-cv-00847

United States District Court, N.D. Ohio, Eastern Division

February 11, 2021

JAMES S. GWIN, JUDGE

REPORT & RECOMMENDATION

Kathleen B. Burke, United States Magistrate Judge

Petitioner Gregory Copley (“Copley” or “Petitioner”) brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Doc. 1. His federal habeas petition is deemed filed on April 9, 2019, the date he placed it in the prison mailing system.^[1] Doc. 1, p. 13 (hereinafter referred to as “Petition”). Copley's habeas petition relates to his conviction and sentence rendered in Cuyahoga County Common Pleas Court No. CR-16-612252-A State of Ohio v. Gregory A. Copley. Doc. 1. Copley pleaded no contest to and was found guilty of aggravated robbery, robbery, kidnapping, attempted safecracking receiving stolen property, two counts of carrying concealed weapons, improperly handling firearms in a motor vehicle, and having weapons under disability.^[2] Doc. 11-1, p. 22-23. The trial court sentenced Copley to a total of 13 years in prison. Doc. 11-1, pp. 22-23.

This matter has been referred to the undersigned Magistrate Judge for a Report Recommendation pursuant to Local Rule 72.2. Respondent has filed an Answer/Return of Writ (Doc. 11) and Copley has filed a Traverse (Doc. 12). For the reasons explained herein, the undersigned recommends that the Court DISMISS and/or DENY Copley's Petition (Doc. 1).

I. Factual Background

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, the state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008).

The Eighth District Ohio Court of Appeals summarized the facts underlying Copley's conviction and sentence as s as follows:

{¶ 3} Copley, Alijah Lee (“Lee”), and Charles Summers (“Summers”), were indicted in connection with the December 5, 2016 armed robbery at Rascal House Pizza in Euclid, Ohio. As is relevant herein, Copley was charged with aggravated robbery, robbery, kidnapping, attempted safecracking, receiving stolen property, two counts of carrying a concealed weapon, improperly handling firearms in a motor vehicle, and having a weapon while under disability. The offenses of violence also contained one-year and three-year firearm specifications and a notice of prior conviction alleging that Copley was convicted of robbery in 2010. The safecracking charge also contained firearm specifications.

{¶ 4} Counsel was assigned to represent Copley. He obtained discovery and supplemental discovery. Thereafter, on March 21, 2017, Copley pled no contest to the indictment. His trial counsel stated that he had discussed “the facts and circumstances” to Copley and “based upon the State of Ohio's offer here, we have no choice but to enter a no contest plea.” The court conducted a Crim.R. 11 colloquy that included the potential sentence for each offense, and also explained that by entering a no contest plea, the court could proceed directly to sentencing. The prosecuting attorney stated as follows on the record:

[T]he case essentially involves three codefendants. Mr. Copley and Alijah Lee entered the Rascal House Pizza out in Euclid. They brandished firearms. They came through a side door, brandished firearms. A victim named Dwight Knipe, the manager of the store, was seated in the office. The gun was pointed at him at which point he fell out of his chair. He was basically backed into a corner clearly looking for a means of escape. He did not find a means of escape. This was captured on video. Also Dwight Knipe made statements to the police. He was ordered to open the safe. The safe was on a time lock, so he was unable to open the safe. He tried to call the owner of the store to get the code for the safe and was unsuccessful in that. Another employee followed the two defendants as they fled to a car driven by Charles Summers. That car then was intercepted by Euclid police. They ended up turning the wrong way down an off ramp onto the Shoreway there where they were apprehended. When the police searched the car, they found the latex gloves, the clothing, the cell phones, and they also found two firearms underneath the front passenger seat.

{¶ 5} Defense counsel explained to the court that Copley was not the “quarterback” of the offense, and that he confessed to police and apologized in a videotaped statement.

{¶ 6} Shortly before sentencing, Copley filed pro se motions to vacate the no contest plea and to disqualify his counsel. During a hearing on these issues, Copley stated that he did not understand that he was pleading to all charges, and believed he faced six-to-nine years imprisonment. At the time of the hearing, defendant's trial counsel was in a domestic relations hearing and he sent another attorney to attend on his behalf. The trial court demanded that the original defense counsel appear for the hearing, and he did so after a brief delay.

{¶ 7} Defense counsel informed the court that the state's pretrial position in the matter was that it would amend the charges only if the defendant agreed to serve fourteen years of imprisonment. Defense counsel stated that, in his opinion, a no contest plea created the possibility of Copley receiving a shorter sentence than that offered by the state. Additionally, defense counsel stated that Copley had confessed and apologized to police, and due to the evidence, which also included identification and “empirical evidence, ” he believed that it would be “impossible” to obtain a defense verdict. As a result, his “tactic” was to plead no contest.

{¶ 8} The court stated that Copley was advised of the full range of penalties during the plea and was not informed that he faced a maximum of nine years, in light of the numerous charges and specifications. The court merged the convictions on Counts 3 and 4 into Count 1 and imposed a ten year term for the offense, plus a three-year firearm specification, for a total of thirteen years of imprisonment . . .

State v. Copley, 2018-Ohio-1506, ¶¶ 3-8, 2018 WL 1882887, * 1-2 (Ohio App. Ct. Apr. 19, 2018); Doc. 11-1, pp. 101-113.

II. Procedural Background

A. State court conviction

On December 13, 2016, a Cuyahoga County, Ohio grand jury indicted Copley for aggravated robbery (Count 1); robbery (Count 2); kidnapping (Count 3); attempted safecracking (Count 4);^[3] receiving stolen property (Count 5); two counts of carrying a concealed weapon (Counts 6 and 7);^[4] improperly handing firearms in a motor vehicle (Count 8);^[5] and having weapons under disability (Count 9).^[6] Doc. 11-1, pp. 4-13. On March 21, 2017, with counsel, Copley withdrew his guilty plea and entered a plea of no contest to Counts 1 through 9.^[7] Doc. 11-1, pp. 15-16; Doc. 11-2, pp. 2-21. A trial court ordered a presentence investigation and report and scheduled sentencing for April 26, 2017. Doc. 11-1, p. 16.

On April 18, 2017, Copley, acting pro se, filed a motion to withdraw his no contest plea. Doc. 11-1, pp. 17-18. In his motion to withdraw, Copley argued:

I was mislead [sic] by my Counsel on the plea bargain which was present to me and I don't fully understand what is going on and what a no contest plea was. After contacting my attorney on 4-13-17 about what I had plead out to and was informed that I plead out to the entire indictment of no contest. I informed my attorney that I would like to take my no contest plead back was told that I cannot take it back and wanted him to file a motion to that regard and he told that he was overruling me.

Doc. 11-1, p. 18. At the same time, Copley filed a motion to disqualify counsel and appoint new counsel, arguing that his counsel was ineffective. Doc. 11-1, pp. 19-20.

A hearing was held on April 26, 2017, at which time the trial court addressed Copley's request to withdraw his plea. Doc. 11-1, p. 21; Doc. 11-2, pp. 22-35. Initially, at the hearing, an attorney other than Copley's court appointed attorney appeared on behalf of Copley because Copley's court appointed attorney was in trial in another court. Doc. 11-2, p. 25. Before proceeding further, the trial court ordered the substitute attorney to contact court appointed counsel and direct him to promptly appear at the hearing before her. Doc. 11-2, pp. 26-27. At the hearing, Copley indicated his counsel had explained the facts to him and he understood the charges (Doc. 11-2, pp. 24-25, 31-34) but he did not “think the [he] was going to cop out to all of [the charges]” (Doc. 11-2, p. 24) and he thought he “was just copping out to a six to nine year[]” (Doc. 11-2, p. 34). The trial court denied Copley's request to withdraw his plea (Doc. 11-1, p. 21; Doc. 11-2, p. 34). The trial court then proceeded to sentencing.^[8] Doc. 11-2, pp. 35-56.

After hearing from Copley and his counsel, the trial court merged Counts 2, 3 and 4 with Count 1 for purposes of sentencing and the State of Ohio elected to proceed with sentencing on Count 1. Doc, 11-1, pp. 22-23; Doc. 11-2, pp. 54-55. The trial court sentenced Copley to 10 years on Count 1 and 3 years on the firearm specification, with the 3 year-firearm specification sentence to be served prior to and consecutive to the 10-year sentence on Count 1.^[9] Doc. 11-1, pp 22-23; Doc. 11-2, pp. 54, 56. On Counts 5 through 8, the trial court sentenced Copley to 17 months on each count and, on Count 9, the trial court sentenced Copley to 30 months.^[10] Doc. 11-1, p. 23. All counts were run concurrent for a total of 13 years in prison. Doc. 11-1, p. 23.

B. Direct appeal

On June 1, 2017, Copley, acting pro se, filed a notice of appeal of...