Mitchem v. Warden, Noble Corr. Inst.

• Decision Date: 12 February 2021
• Docket Number: CASE NO. 2:20-CV-04241
• Parties: HERBERT MITCHEM, Petitioner, v. WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

HERBERT MITCHEM, Petitioner, v. WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:20-CV-04241

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

February 12, 2021

JUDGE JAMES L. GRAHAM

Magistrate Judge Chelsey M. Vascura

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Argument of Procedural History, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that this action be DISMISSED.

I. BACKGROUND

Petitioner challenges his September 13, 2017 convictions pursuant to his guilty plea in the Jackson County Court of Common Pleas on operating a vehicle with a hidden compartment used to transport a controlled substance and aggravated possession of drugs. The Ohio Fourth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶ 5} The Jackson County Grand Jury returned an indictment charging Herbert Mitchem with operating a vehicle with a hidden compartment used to transport a controlled substance, aggravated possession of drugs, aggravated trafficking in drugs, operating a vehicle while under the influence of alcohol, a drug of abuse, or a combination of them, and endangering children. The aggravated possession and aggravated trafficking counts included a major-drug-offender specification. Mitchem entered a plea of not guilty, and the trial court appointed counsel for him.

{¶ 6} Mitchem filed a motion to suppress evidence seized in a traffic stop and statements he made to a state trooper. He alleged the stop was not based on a reasonable suspicion, the search of the automobile was unreasonable, and he made statements without Miranda warnings while he was in custody.

{¶ 7} Before a scheduled hearing on the suppression motion, the trial court held a pretrial hearing where the state informed the court that in exchange for Mitchem's guilty plea to the charges of operating a vehicle with a hidden compartment used to transport a controlled substance and aggravated possession of drugs, the state would dismiss the major-drug-offender specification to the latter charge and dismiss the remaining charges. Under the proposed plea agreement there would be no agreed sentence, but the state would recommended [sic] community control for the first charge and an eight-year mandatory prison sentence for the second charge.

{¶ 8} After Mitchem advised the trial court that he did not want to take the plea offer, the state noted that its plea offer would remain open until the first witness at the suppression hearing was sworn in to testify. The trial judge then explained the timing of the plea offer to Mitchem. And after Mitchem talked about his right to appeal if he took the plea, the judge informed Mitchem that his ability to appeal would be limited if he accepted the plea offer:

JUDGE: ...so what I'm telling you is we start the motion to suppress, this deal is done. Now, you said you don't want it but you think about it and before we start the hearing you say I'd like to take it that's fine. We get done with the hearing and you go I want to take it there's nothing there to take.

DEFENDANT: At the same time, I get an appeal if I get the eleven (11) right? An automatic appeal, right?

JUDGE: There's no...

DEFENDANT: ...I don't get to appeal if I take a deal, right?

JUDGE: You take a deal your ability to appeal is certainly limited. If a jury convicts you, yes, you get to... you get to take [an] appeal to the Fourth District Court of Appeals.

DEFENDANT: That might be my better shot because I think lying to a judge is a big deal and I believe he would lie.

(Emphasis added.)

{¶ 9} A little more than a month later at the scheduled hearing on Mitchem's suppression motion, his counsel and the trial court advised him that the state intended to supplement its discovery with recorded jail phone calls that contained Mitchem's incriminating statements. Counsel then discussed the matter withMitchem off the record. When they returned on the record, Mitchem advised the trial court that he wanted to accept the state's plea offer.

{¶ 10} The trial court then proceeded to engage in a detailed Crim.R. 11(C) colloquy with Mitchem, who stated that he was not under the influence of drugs, had not been threatened, and had not been promised anything besides the terms of the plea agreement. Mitchem stated that he was satisfied with his trial attorney's services and that he understood that if he pleaded guilty to the charges, he would be making a complete admission to them:

Q. Do you understand the nature of the allegations that you are pleading guilty to in Count 1 and amended Count 2?

A. Yes sir.

Q. Do you have any question about either offense?

A. No sir.

Q. Do you understand that if you plead guilty to these offenses you are making a complete admission that you committed these crimes?

A. Yes sir.

(Emphasis added.)

{¶ 11} The trial court advised Mitchem about, and he acknowledged understanding, the maximum penalties involved for the offenses and that his prison term for aggravated drug possession would be mandatory, without opportunity for judicial release. The trial court further advised Mitchem, and he acknowledged, that he would be waiving his constitutional rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove beyond a reasonable doubt at a trial at which he could not be compelled to testify against himself. Mitchem then stated that he understood he had 30 days after he was sentenced to file an appeal and that if he could not afford an attorney or the costs of an appeal, the court could appoint one for him and assist in paying for the costs of his appeal, including a preparation of the transcript.

{¶ 12} Mitchem also signed a written "ENTRY OF GUILTY PLEA," stating that he desired to withdraw his prior not-guilty plea and plead guilty to the charges of aggravated possession of drugs and operating a vehicle with a hidden compartment used to transport a controlled substance and that he understood that his guilty plea to the crimes constituted "both an admission of guilt and a waiver of any and all constitutional, statutory, or factual defenses with respect to such crime(s) and this case." Mitchem further acknowledged in the form that hewaived certain rights, including the right "to appeal the verdict and rulings of the trial Court made before or during trial, should those rulings or the verdict be against my interests."

{¶ 13} After Mitchem informed the court that he had no questions, did not need to speak with his trial counsel, and was certain that he wanted to proceed with his guilty plea, another exchange occurred. Mitchem expressed both an objection to the hidden-compartment charge and his plan to appeal, but ultimately reiterated his decision to plead guilty:

Q. Okay. The Court finds that Mr. Mitchem has signed an Entry of Guilty Plea. Alright, Mr. Mitchem, how do you wish to plead to Count 1 of the indictment, which is Operating a Vehicle with a Hidden Compartment Used to Transport a Controlled Substance, a violation of Revised Code Section 2923.241(C) of the Revised Code?

A. Guilty, I guess.

Q. Well it's not a guess. It's either you're pleading guilty or you're not.

A. That's not what it was for but I'll plead guilty to it.

Q. Um... I just want to make sure I'm... this is clear for the Court of Appeals. You understand what you are charged with in Count 1?

A. Yeah, I'm going to appeal it. I'm... I'm...

Q. Well, I... I... that's fine but for, to make a clear appellate record I want to make sure we are being very clear here.

ATTORNEY NASH: He cannot accept your plea if you are going to say "well, no not really" ...

A. ...okay... okay... I'm guilty.

Q. Okay, so you understand that... what Count 1 is?

A. Yes sir.

Q. And you are pleading guilty to that?

A. Yes sir.

Q. Okay. Then to Count 2, amended Count 2, which is aggravated possession of drugs, a violation of Revised Code 2925.11(A) of the Revised Code, a felony of the first degree, how are you pleading to that count?

A. Guilty.

(Emphasis added.)

{¶ 14} The trial court then accepted Mitchem's guilty plea.

At the sentencing hearing the state recommended that the trial court impose an eight-year mandatory sentence on Mitchem for his aggravated drug-possession conviction because of the seriousness of the offense. The state referred to the large amount of drugs confiscated and Mitchem's clear indication to conceal his drug activity based on the vehicle's hidden compartment. Mitchem's trial counsel argued that the mandatory sentence should be three or four years because Mitchem had taken responsibility for his actions by pleading guilty and he had been a law-abiding citizen for most of his life. He also stated that the hidden compartment was only big enough to put a wallet in it, and not large enough to transport a large amount of drugs.

{¶ 15} Mitchem stated that he did not use the hidden compartment in the car to hide the drugs he was transporting. He claimed that he used it to hide money and credit cards he carried with him when he stayed at hotels for his asbestos-removal job, to prevent hotel "women" and "their boyfriends" from stealing from him if he placed his money and credit cards in the hotel safe. He also claimed that he only had the drugs with him because he had accepted them as payment for a debt owed him by a drug-dealing friend. He said he was transporting the drugs to his mother-in-law's house for Easter to figure out what to do with them.

{¶ 16} The trial court sentenced him to a mandatory prison term of eight years on his aggravated drug possession conviction and a five-year term of community control thereafter on his conviction for operating a vehicle with a hidden compartment used to transport a controlled substance.

{¶ 17} We granted Mitchem's

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