Dunlap v. Warden, Belmont Corr. Inst.

• Decision Date: 15 November 2022
• Docket Number: 2:21-cv-05849
• Parties: KYLE DUNLAP, Petitioner, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

KYLE DUNLAP, Petitioner, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.

No. 2:21-cv-05849

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

November 15, 2022

Algenon L. Marbley, Chief Judge

REPORT AND RECOMMENDATION

ELIZABETH A. PRESTON DEAVERS UNITED STATES MAGISTRATE JUDGE

Petitioner a state prisoner proceeding with the assistance of counsel has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and this Court's General Order 22-05. Pending before the Court are the Petition and its attachments (Doc. 1); Respondent's Return of Writ (Doc. 5); and the state court record (Doc. 4). Also before the Court are supplemental exhibits filed by Respondent. (Docs. 15, 20.) Petitioner did not file a Reply. For the reasons that follow, the Magistrate Judge RECOMMENDS that the Petition be DENIED and that this action be DISMISSED.

The Undersigned further RECOMMENDS that the Court decline to issue a certificate of appealability (“COA”).

I. Procedural History

The record reveals the following relevant procedural history. On October 4, 2018, Petitioner was indicted by a grand jury in the Court of Common Pleas for Licking County, Ohio. (Doc. 4, PageID # 49-52.) In that indictment (“the original indictment”) Petitioner was charged with one count of illegal assembly or possession of chemicals for the manufacture of drugs in violation of Ohio Revised Code § 2925.041(A)(C), and two counts of the illegal manufacture of drugs or illegal cultivation of marijuana in violation of Ohio Revised Code § 2925.04(A)(C)(5)(e). (Id.) All three counts constituted second degree felonies. (Id.) The original indictment also included four forfeiture specifications. (Id.) On October 23, 2018, Petitioner pleaded not guilty to the charges in the original indictment. (Id., PageID # 55.)

On April 17, 2019, Petitioner was charged in a superseding indictment for one count of illegal manufacture of drugs or illegal cultivation of marijuana in violation of Ohio Revised Code § 2925.04(A)(C)(5)(f), a felony of the first degree; one count of trafficking in marijuana in violation of Ohio Revised Code § 2925.03(A)(2)(C)(3)(g), a felony of the first degree; one count of possession of marijuana in violation of Ohio Revised Code § 2925.11(A)(C)(3)(g), a felony of the second degree; three counts of endangering children in violation of Ohio Revised Code § 2919.22(A), a first degree misdemeanor; and one count of permitting drug abuse in violation of Ohio Revised Code § 2925.13(B), a felony of the fifth degree. (Id., PagelD # 57-63.) The superseding indictment also included five forfeiture specifications and one firearm specification. (Id.)

On May 16, 2019, Petitioner moved the state trial court to accept his guilty pleas to the charges in the original indictment and to dismiss the superseding indictment. (Id., PageID # 6976.) After the prosecution opposed Petitioner's motion (id., PageID # 78-86), and Petitioner filed a reply in support (id., PageID # 88-92), the parties apparently negotiated a plea agreement. Specifically, Petitioner agreed to plead guilty to the three counts in the original indictment and the prosecution agreed to defer at sentencing and to refrain from arguing that a statutory presumption in favor of a prison term would apply. (Id., PageID # 98). On August 13, 2019, the prosecution moved to dismiss the superseding indictment, indicating that Petitioner would be “pleading to the original indictment.” (Id., PageID # 94.) The state trial court granted the prosecution's motion and dismissed the superseding indictment. (Id., PageID # 96.)

The Court of Appeals for Ohio's Fifth District summarized the relevant events that took place thereafter.

{¶4} On August 13, 2019, Appellant entered a plea of guilty to Counts One, Two, and Three to the [original] indictment. After accepting Appellant's guilty plea, the trial court proceeded to sentencing. Trial counsel for Appellant referenced Appellant's efforts to assist investigators by proffering information to the Central Ohio Drug Enforcement Task Force (“CODE”) in hopes to mitigate the sentence.

{¶5} When asked for a recommendation, the prosecuting attorney stated he didn't “believe that there was any cooperation with the Central Ohio Drug Enforcement Task Force. I don't believe that the individual that he mentions being in the county jail had anything to do with anything that was provided by this Defendant.”

{¶6} The trial court then sentenced Appellant to an eight-year mandatory prison term.

{¶7} Thereafter, Appellant filed Appellant's Motion to Withdraw Plea. In an Affidavit to support the motion, Appellant asserts that his trial counsel assured him it was overwhelmingly likely that he would be placed on probation if he entered a plea of guilty to the original indictment. Counsel predicted there was a 99% likelihood that Appellant would be placed on probation and that any period of incarceration would not exceed sixty days of local jail time. Affidavit further asserts trial counsel told Appellant he had spoken to the judge the previous day, who had remarked that trial counsel must have been pleased that the case was resolving in the manner he hoped it would.

{¶8} The trial court denied Appellant's Motion to Withdraw Plea, finding that the Appellee's statements at sentencing were made to correct the record, and there was no breach of the parties' plea agreement. The court also noted that the comments did not affect the sentence imposed. The trial court found the Appellant failed to demonstrate that a plea withdrawal was necessary to prevent manifest injustice, and that Appellant failed to provide sufficient evidentiary support to justify conducting an evidentiary hearing.

State v. Dunlap, No. 2020 CA 00029, 2020 WL 5413600, at *1 (Ohio Ct. App. Sept. 9, 2020); (Doc. 4, PageID # 158-59.)

The state trial court denied Petitioner's motion to withdraw his guilty plea on February 25, 2020. (Doc.1, PageID # 20.) Petitioner appealed that determination to the state appellate court and raised the following three assignments of error:

{¶10} “I. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO BREACH OF THE PLEA AGREEMENT BETWEEN THE PARTIES AND THAT APPELLANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OF THE PARTIES' AGREEMENT OR WITHDRAWAL OF HIS GUILTY PLEA, IN VIOLATION OF HIS RIGHTS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS.

{¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN DENYING APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA WHERE SAID PLEA WAS ENTERED INVOLUNTARILY AND IN REASONABLE RELIANCE ON HIS FORMER ATTORNEY'S ASSURANCES THAT A GUILTY PLEA WOULD RESULT IN A SENTENCE MORE LENIENT THAT THE SENTENCE IMPOSED.

{¶12} “III. THE TRIAL COURT ERRED IN DENYING APPELLANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA, IN VIOLATION OF HIS RIGHTS AS GUARANTEED BY THE OHIO AND UNITED STATES CONSTITUTIONS.”

Dunlap, 2020 WL 5413600, at *2; (Doc. 4, PageID # 159-60.)

On September 9, 2020, the state appellate court overruled Petitioner's three assignments of error and affirmed the state trial court's decision. Id. at * 3, 4, 5; (PageID # 160-67.) On October 26, 2020, Petitioner filed an appeal in the Ohio Supreme Court and raised the following issue for review:

A criminal defendant's Due Process rights are violated when a trial court fails to hold an evidentiary hearing when a motion to withdraw a guilty plea alleges facts which establish that his plea of guilty was entered in reliance on the erroneous representation of counsel, thereby rendering the plea involuntary.

(Doc. 4, PagelD # 170-71, 173-86.) On January 27, 2021, the Ohio Supreme Court declined to accept jurisdiction over Petitioner's appeal with three Justices dissenting. State v. Dunlap, 2020 1287, 161 Ohio St.3d 1416 (Ohio S.Ct. 2021); (Doc. 4, PageID # 200.)

On December 20, 2021, Petitioner, with the assistance of counsel, sought a writ of habeas corpus pursuant to 28 U.S.C § 2254. (Doc. 1.) In his petition, he raises the following ground for relief:

When the facts establish a defendant entered guilty pleas based upon erroneous representations by trial counsel, rendering the plea involuntary, Due Process requires an evidentiary hearing.

(Id., PageID # 6.) In addition, he alleges, in passing, that “Ohio's adjudication of this issue resulted in a decision that was contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668, 690 (1984); Libretti v. United States, 516 U.S. 29, 50-51 (2995) [ sic ]; and Santobello v. New York, 404 U.S. 257 (1971). (Id., PageID # 19.)

II. Standard of Review

The Sixth Circuit Court of Appeals recently discussed the appropriate standard of review for habeas claims brought by state prisoners in Stermer v. Warren, 959 F.3d 704, 720-22 (6th Cir. 2020). “Petitions for habeas corpus brought by state prisoners are subject to 28 U.S.C. § 2254, the modern version of which comes from the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)” Id. at 720 (citing Northrop v. Trippett, 265 F.3d 372, 376 (6th Cir. 2001); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999)). “AEDPA requires habeas petitioners to exhaust their claims in state court before turning to a federal court for relief.” Id. (citing 28 U.S.C. § 2254(b)(1)). “And if a state court decides a claim on the merits, that decision is subject to significant deference.” Id. (citations omitted).

“For a federal court to grant relief in such a case, the state court's decision must have been ‘(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) . . . based on an...