Perez v. Sheldon

• Decision Date: 03 November 2022
• Docket Number: 3:19-CV-01013-JRA
• Parties: ORLANDO PEREZ, JR. Plaintiff, v. WARDEN ED SHELDON, Defendant,
• Court: U.S. District Court — Northern District of Ohio

ORLANDO PEREZ, JR. Plaintiff, v. WARDEN ED SHELDON, Defendant,

No. 3:19-CV-01013-JRA

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

November 3, 2022

JOHN R. ADAMS, JUDGE

REPORT & RECOMMENDATION

Jennifer Dowdell Armstrong, United States Magistrate Judge

I. INTRODUCTION

Petitioner Orlando Perez, Jr. (“Perez”) seeks a writ of habeas corpus under 28 U.S.C. § 2254. (ECF Docs. 1, 6). Perez, an Ohio inmate, is currently serving an aggregate prison term of 14 years for: (1) Trafficking in Cocaine in violation of O.R.C. § 2925.03(A)(1),(C)(4)(f); and (2) Trafficking in Cocaine in violation of O.R.C. § 2925.03(A)(1), (C)(4)(g). Perez asserts one ground for relief. (ECF Docs. 1,6). Respondent Warden Ed Sheldon (“Respondent”) filed a return of writ. (ECF Doc 15). Perez filed a traverse. (ECF Doc. 18).

The matter is before me by an automatic order of reference under Local Rule 72.2 for preparation of a report and recommendation on Perez's petition or other case-dispositive motions.^[1] For the reasons set forth in detail below, I RECOMMEND that the Court DISMISS and/or DENY Perez's petition because his claim is non-cognizable, procedurally defaulted, and/or meritless.

II. RELEVANT FACTUAL BACKGROUND

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1); see also Spagnola v. Horton, No. 17-1462, 2017 WL 8948745, at *2 (6th Cir. 2017). The Ohio Court of Appeals for the Third District set forth the following facts on direct appeal:

{¶1} Defendant-appellant, Orlando Perez, Jr. (“Perez”), appeals the January 24, 2017 judgment entry of the Defiance County Common Pleas Court imposing consecutive sentences after he pled guilty to two counts of trafficking in cocaine. For the reasons set forth below, we affirm the judgment of the trial court.

{¶2} On July 21, 2016, Perez was indicted on four criminal charges in Defiance County: Count One, Trafficking in Cocaine, in violation of R.C. 2925.03(A)(1)(C)(4)(f), a felony of the first degree; Count Two, Trafficking in Cocaine, in violation of R.C. 2925.03(A)(1)(C)(4)(g), a felony of the first degree; Count Three, Trafficking in Cocaine, in violation of R.C. 2925.03(A)(1)(C)(4)(g), a felony of the first degree; and Count Four, Engaging in a Pattern of Corrupt Activity, in violation of R.C. 2923.32(A)(1)(B)(1), a felony of the first degree. Major Drug Offender (“MDO”) Specifications, in violation of R.C. 2941.1410(A) were contained in Counts Two and Three. Count Three also contained Forfeiture Specifications (of money in a drug case and automobile in a drug case), in violation of R.C. 2941.1417(A). (Doc 2).

{¶3} At his arraignment on January 26, 2016, Perez entered a plea of not guilty on all charges. (Doc. 9). On November 23, 2016 the trial court conducted a change of plea hearing. At the hearing, Perez entered pleas of guilty to Counts One and Three of the indictment, with the State dismissing the MDO specification in both counts. (Doc. 16). Perez also pled guilty to the Forfeiture Specification in Count Three. (Id.) However, the record is silent as to the dismissal of Count Two and Four. The trial court accepted Perez's guilty pleas and ordered a Pre-Sentence Investigation. Id. A sentencing hearing was held in the trial court on January 23, 2017 wherein Perez was sentenced to a seven-year prison term for each count (one and three), with the terms to be served consecutive, for an aggregate prison term of fourteen years. (Doc. 17). Perez filed a motion for leave to file delayed notice of appeal on July 31, 2017 and we granted that request on September 8, 2017. Perez appeals the sentencing entry of the trial court, filed January 24, 2017, raising the following sole assignment of error.

State v. Perez, Third District Defiance No. 16 CR 12613, 2018-Ohio-635, ¶¶1-3. (ECF Doc. 15-2, PageID#260-61).

III. RELEVANT STATE PROCEDURAL HISTORY

A. Trial Court Proceedings

On July 21, 2016, a Defiance County Grand Jury indicted Perez, charging him as follows:

Count

Charge

Ohio Rev. Code

Offense Date

Trafficking in Cocaine - F1

§2925.03(A)(1)(C)(4)(f)

On or about 2/4/16

Trafficking in Cocaine - F1

§2925.03(A)(1)(C)(4)(g)

On or about 4/30/16

Trafficking in Cocaine - F1

§2925.03(A)(1)(C)(4)(g)

On or about 7/16/16

Engaging in a Pattern of Corrupt Activity - F1

§2923.32(A)(1)(b)(1)

On or about 2/4/16 to 7/16/16

(ECF Doc. 15-2, PageID#126-30). Counts Two and Three also contained Major Drug Offender Specifications, in violation of O.R.C. § 2941.1410(A). (See id. at 127-28). Count Three also contained money and automobile forfeiture specifications in violation of O.R.C. § 2941.1417(A). (See id. at 128).

On November 23, 2016, Perez pled guilty to Counts One and Three pursuant to a plea agreement. In exchange for guilty pleas to Counts One and Three, the State asked that the remaining counts and the Major Drug Offender Specifications be dismissed. (Id. at 131-32). Significantly, this plea agreement did not contain a recommended sentence. (Id.). The trial court ordered a Presentence Investigation Report. (id. at 133). On January 24, 2017, the trial court imposed mandatory seven-year prison terms on Count One and Count 3, to be served consecutively for an aggregate prison term of 14 years. (id. at 135-38).

B. Delayed Direct Appeal

On July 31, 2017, Perez, through counsel, sought a delayed appeal in the Ohio Court of Appeals, which the court allowed. (id. at 144, 154). Perez raised the following assignment of error:

1. The trial court erred in imposing consecutive seven-year prison terms for an aggregate term of fourteen years.

(id. at 163). Within this assignment of error, Perez argued that the trial court failed to make all the findings necessary to support consecutive sentences under O.R.C. § 2929.14. (See id. at 16367). Specifically, he asserted that the trial court failed to find that the consecutive sentences were “not disproportionate to the seriousness of the offender's conduct and to the danger [Perez] pose[d] to the public” pursuant to O.R.C. § 2929.14(C)(4). (id. at 164). The State opposed the motion (id. at 204-17), and Perez filed a reply brief (id. at 250-55).

On February 20, 2018, the Ohio Court of Appeals for the Third District affirmed the trial court's judgment in a written opinion. State v. Perez, Third District Defiance No. 16 CR 12613, 2018-Ohio-635. (ECF Doc. 15-2, PageID#259-65).

C. Ohio Supreme Court

On March 29, 2018, Perez, through counsel, appealed the Ohio Court of Appeals' decision to the Ohio Supreme Court. (Id. at 141-42). He asserted the following proposition of law:

1. A trial court must specifically address the proportionality of consecutive sentences to the seriousness of a defendant's conduct and the danger he poses to the public at the sentencing hearing before consecutive sentences can be imposed under R.C. 2929.14(C)(4).

(id. at 273-78). On June 27, 2018, the Ohio Supreme Court declined jurisdiction. (Id. at 287).

D. Post-Conviction Petition

On October 25, 2018, Perez filed a petition to vacate or set aside judgment of conviction or sentence. (Id. at 288-292). In support of this petition, he asserted the following claims: (1) trial counsel was constitutionally ineffective for assuring Perez and a family member that he would receive a “single digit” prison term; and (2) trial counsel was constitutionally ineffective where he failed to object, correct, and rebut inaccuracies regarding Perez's past criminal convictions that were contained in the Presentence Investigation Report. (See id. at 289-91). The State moved to dismiss or deny the petition, (id. at 298-304), and Perez filed a reply. (Id. at 305-311). The trial court subsequently denied Perez's petition on the basis that it was untimely and barred by the doctrine of res judicata. (Id. at 313-14). The Ohio Court of Appeals rejected Perez's untimely attempts to seek appellate review of the trial court's ruling. (Id. at 320-21, 330-31).

E. Mandamus

On February 10, 20202, Perez filed a petition for a writ of mandamus in the Ohio Supreme Court against the trial court. (Id. at 332-37). Perez asked the Ohio Supreme Court to order the trial court to correct the trial court finding on the record that Perez pled guilty. (Id. at 337). He insisted that he did not actually plead guilty, but only responded “yes” to the charges. (Id.). On April 22, 2020, the Ohio Supreme Court denied the writ of mandamus on the basis that Perez had an adequate remedy at law. (Id. at 363).

IV. FEDERAL HABEAS CORPUS PETITION

On May 6, 2019, Perez, pro se, filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF Doc. 1). In his petition, Perez asserts a single ground for relief and supporting facts:

GROUND 1: Trial Court violated Petitioner's right to Due Process and Equal Protection of the 5th, 6th, and 14th Amendments of the U.S. Constitution when it failed to determine that consecutive sentences are not disproportionate to the seriousness of the Petitioner's conduct and to the danger the offender poses to the public.

Supporting Facts: The Ohio sentencing statutes contain two different kinds of proportionality review. The first is a general proportionality review under Ohio Rev. Code Ann. § 2929.11(B), which states that a sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders. The second kind of proportionality review is conducted when the court imposes consecutive

...