JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson
REPORT AND RECOMMENDATION Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Response, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that this action be DISMISSED.
Petitioner challenges his August 23, 2018, convictions in the Franklin County Court of Common Pleas pursuant to his guilty plea on two counts of trafficking in heroin. The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case:
{¶ 1} Defendant-appellant, Ovier Delgadillo-Banuelos, appeals from the judgment of the Franklin County Court of Common Pleas sentencing him to 16 years of imprisonment and ordering him to pay a fine of $35,000 following his entry of guilty pleas to 2 counts of trafficking in heroin. For the reasons outlined below, we affirm.
{¶ 2} On January 5, 2018, appellant, an undocumented immigrant from Mexico, was indicted on 2 counts of trafficking in heroin arising from events occurring on December 27, 2017. Pursuant to R.C. 2925.03(A)(2) and (C)(6)(g), Count 1 of the indictment alleged a first-degree felony in that the amount of heroin involved equaled or exceeded 100 grams. Pursuant to R.C. 2925.03(A)(2) and (C)(6)(e), Count 2 alleged a second-degree felony in that the amount of heroin involved equaled or exceeded 10 grams but less than 50 grams.
{¶ 3} On July 23, 2018, appellant entered guilty pleas on each count of the indictment. The trial court accepted appellant's guilty pleas after a Crim.R. 11 colloquy. FN1 The trial court ordered a pre-sentence investigation ("PSI") pursuant to the joint recommendation of the prosecutor and defense counsel and deferred the matter for sentencing.
FN1: All trial proceedings in this case were facilitated by court-appointed Spanish language interpreters.
{¶ 4} On August 23, 2018, the trial court conducted a sentencing hearing at which the court imposed a sentence of 11 years imprisonment on Count 1, and 5 years imprisonment on Count 2, with the sentences to be served consecutively. In addition, the court imposed maximum fines of $20,000 on Count 1, and $15,000 on Count 2, for a total fine of $35,000. The court memorialized its judgment in an entry filed August 27, 2018 and filed a corrected judgment entry on September 28, 2018.
{¶ 5} Appellant filed a timely notice of appeal from the trial court's initial judgment entry and sets forth the following three assignments of error for our consideration:
[I]. Ovier Delgadillo-Banuelos received ineffective assistance of counsel when counsel failed to file an affidavit of indigency on Mr. Delgadillo-Banuelos' behalf, or otherwise advocate against financial sanctions, and Mr. Delgadello-Banuelos was in fact indigent.
[II]. Ovier Delgadillo-Banuelos received ineffective assistance of counsel when his attorney failed to argue that the two counts of trafficking heroin were allied offenses.
[III]. The trial court committed plain error when it imposed multiple sentences on the two counts of trafficking heroin, which were allied offenses.
***
{¶ 11} At the plea hearing, the state's recitation of the facts established that appellant was the subject of a Columbus police investigation for approximately three weeks prior to his arrest on December 27, 2017. During that investigation, the police identified appellant's residence as well as a motel room where appellant temporarily stayed and stored drugs. The police also identified one of appellant's customers, who reported that he had been purchasing heroin from appellant for approximately 3 years. On December 27, 2017, police recovered 48 grams of heroin during a search of appellant's vehicle, and later that day recovered 160 grams of heroin from appellant's motel room. The state further asserted that the heroin found at both locations was to be sold on the streets of Columbus.
{¶ 12} The PSI report provided a more detailed recitation of the facts underlying appellant's crimes. According to the report, on December 27, 2017, the Central Ohio HIDTA Drug Task Force conducted surveillance on appellant, who was suspected of delivering small amounts of heroin to multiple locations in the Central Ohio area. At 1:51 p.m., police observed appellant meet a man in the parking lot of a retail establishment. The man entered appellant's vehicle; he returned to his own vehicle less than one minute later. The man drove away, but was later apprehended by the police. The man admitted to purchasing one gram of black tar heroin for $40 from appellant; he further admitted that he had been purchasing heroin from appellant for the past three years.
{¶ 13} Thereafter, upon further surveillance of appellant, the police observed him enter a residence at 835 Seymour. Appellant returned to his vehicle, and police subsequently effectuated a traffic stop. Pursuant to a search of appellant's person and his vehicle, police recovered a total of 49.071 grams of heroin, which had been separated into four plastic bags. Police also recovered 2 cell phones and $1,711 in cash. Police transported appellant to police headquarters for processing and a formal interview. Appellant refused consent to search his motel room at 1309 St. James Lutheran Lane, so the police obtained a search warrant, which was executed at 8:02 p.m. Pursuant to that search, the police recovered a total of 159.1 grams of heroin, which had been separated into 9 plastic bags/balloons. At 8:30 p.m., the police executed a second search warrant at 910 Center Street, a mobile home police had observed appellant enter during the time he was under surveillance. Police believed this location was a "stash house" for drugs. (PSI at 4.). Pursuant to that search, the police recovered more heroin and 4 bottles of pills. The laboratory results of the drugs recovered at this location were not included in the PSI report.
State v. Delgadillo-Benuelos, 10th Dist. No. 18AP-729, 2019 WL 5078717, at *1-3 (Ohio Ct. App. Oct. 10, 2019). On October 10, 2019, the state appellate court affirmed the judgment of the trial court. Id. On September 1, 2020, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Delgadillo-Benuelos, 159 Ohio St.3d 1487 (Ohio 2020).
On December 18, 2019, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B), asserting that he had been denied the effective assistance of appellate counsel because his attorney failed to raise on appeal a claim of a defective indictment. (Doc. 3, PAGEID # 207, 228). On February 11, 2020, the appellate court denied the Rule 26(B) application. (PAGEID # 225). On April 28, 2020, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (PAGEID # 258).
On September 23, 2020, Petitioner filed this pro se habeas corpus petition. He asserts that he was denied the effective assistance of counsel because his attorney failed to file an affidavit of indigency or otherwise advocate against the imposition of financial sanctions (claim one); that he was denied the effective assistance of counsel because his attorney failed to argue that Petitioner's convictions involved allied offenses of similar import (claim two); and that the trial court committed plain error by imposing multiple sentences on allied offenses of similar import (claim three). It is the Respondent's position that claim three is procedurally defaulted and his other claims are without merit.
Before considering the merits of this case, the Court first must determine whether Petitioner has cleared certain procedural hurdles. Respondent says he has not with regard to claim three. And, as explained below, the issue of procedural default collides with claim two as well.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust claimsbut would find those claims barred if later presented to the state courts, "there is a procedural default for purposes of federal habeas." Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
Over time, the term "procedural default" has come to describe a situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This "requires the petitioner to present 'the same claim under the same theory' to the state courts before raising it on federal habeas review." Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of "fairly presenting" a claim to the state courts is that...
