This is
not the first habeas corpus petition filed by petitioner in
this Court. In Ramirez v. Warden, Case No.
1:14-cv-299 (S.D. Ohio Apr. 10, 2014) (Beckwith, J.; Merz.
M.J.), the Court set forth the following procedural history:
In January 2010, Petitioner Alexis Ramirez, then 14 years
old, was arrested and detained in Butler County on charges of
rape, kidnapping, aggravated burglary, aggravated robbery,
and felonious assault. Proceedings were instituted in
juvenile
court to determine whether Petitioner should be bound over to
the common pleas court to be tried as an adult on the
offenses alleged in the juvenile complaint.
. . .
The juvenile court judge weighed the relevant statutory
factors and determined that jurisdiction over Petitioner
should be relinquished to the common pleas court because he
was not amenable to treatment as a juvenile, and because the
public's safety required that he face adult punishment.
After Petitioner was bound-over, the grand jury returned an
indictment charging him with three counts of rape, two counts
of kidnapping, and one count each of aggravated burglary,
aggravated robbery, felonious assault, and tampering with
evidence.
Petitioner initially pled not guilty by reason of insanity
and moved for a competency evaluation.
. . .
The common pleas judge determined that Petitioner was
competent to stand trial. Petitioner withdrew his not guilty
pleas and pled no contest to the indictment. The trial judge
accepted Petitioner's no contest pleas, found him guilty
on all counts, and sentenced him to a total term of 28 years
of imprisonment.
Petitioner, represented by new counsel on appeal, raised
three assignments of error in his direct appeal: 1) the
juvenile court erred in binding him over to the common pleas
court; 2) the trial court erred in finding he was competent
to stand trial; and 3) the trial court erred in convicting
him of rape and kidnapping when they are allied offenses of
similar import. The court of appeals rejected
Petitioner's first two assignments of error but concluded
the trial court should have merged the kidnapping charge with
the first rape charge. The court remanded the case to the
trial court for further proceedings. State v.
Ramirez, No. CA2010-11-305, 2011 WL 6382537 (Ohio Ct.
App. Dec. 19, 2011). Petitioner did not file an appeal of the
court of appeals' judgment with the Supreme Court of
Ohio. On remand, the trial court merged counts three, six,
and seven and, in a judgment journalized on August 13, 2012,
resentenced Petitioner to 28 years of imprisonment.
Petitioner did not file a notice of appeal from that
judgment. Instead, on August 14, 2013, Petitioner,
represented by his counsel in this case, filed a motion with
the Supreme Court of Ohio pursuant to Supreme Court Practice
Rule 7.01(A)(4) to file a delayed appeal from the court of
appeals' December 2011 judgment. Petitioner's delayed
appeal sought to raise claims of ineffective assistance of
trial and appellate counsel and that his sentence violates
the Eighth Amendment. On October 23, 2013, the Supreme Court
of Ohio entered an order denying Petitioner's motion to
file a delayed appeal.
(Doc. 6, Ex. 26 at PageID 420-22).
Petitioner
filed his first federal habeas petition in this Court on
April 10, 2014. In the petition, petitioner raised the
following two ground for relief:
GROUND
ONE: Ineffective Assistance of Counsel
Supporting
Facts: Alex Ramirez's confinement is in
violation of his right to effective assistance of counsel
under the Sixth Amendment to the U.S. Constitution, as
incorporated into the Due Process Clause of the Fourteenth
Amendment. The representation in this case fell far below the
standard set by Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80L.Ed.2d 674 (1984).
GROUND
TWO: Cruel and Unusual Punishment
Supporting
Facts: Alex Ramirez's sentence violated his
right to be free of cruel and unusual punishment under the
Eighth Amendment of the U.S. Constitution, as incorporated
into the Due Process of the Fourteenth Amendment. As the
United States Supreme Court explained in Miller v.
Alabama, --U.S.--, 132 S.Ct. 2455, 2464, 183 L.Ed.2d.
407 (2012):
Roper and Graham established that children
are constitutionally different from adults for the purposes
of sentencing. Because juveniles have diminished culpability
and greater prospects for reform, we explained, “they
are less deserving of the most severe punishments.”
Graham, 560 U.S. at 68, 130 S.Ct. at 2025, 176
L.Ed.2d 825. Those cases relied on three significant gaps
between juveniles and adults. First children have a
“‘lack of maturity and an underdeveloped sense of
responsibility, '” leading to recklessness,
impulsivity, and heedless risktaking. Roper, 543
U.S., at 569, 125 S.Ct. 1183, 161 L.Ed.2d 1. Second, children
“are more vulnerable. . . to negative influences and
outside pressures, ” including from their family and
peers; they have limited “contro[l] over their own
environment” and lack the ability to extricate
themselves from horrific, crime-producing settings. Ibid. And
third, a child's character is not as “well
formed” as an adults; his traits are “less
fixed” and his actions are less likely to be
“evidence of irretrievabl[e] deprav[ity].”
Id., at 570, 125 S.Ct. 1183, 161 L.Ed.2d 1.
Alex was barely 14 when he was arrested.
(Doc. 6, Ex. 23 at PageID 380-82). On December 4, 2015, the
Court denied the petition, finding that petitioner
procedurally defaulted and waived his grounds for relief.
(Doc. 6, Ex. 26). The Sixth Circuit Court of Appeals denied
petitioner a certificate of appealability on November 22,
2016. (Doc. 6, Ex. 29).
On June
23, 2017, following the denial of his first habeas corpus
petition, petitioner, through counsel, filed a “Motion
to Vacate Plea Under Padilla v. Kentucky” in
the Butler County Court of Common Pleas. (Doc. 6, Ex. 30,
31). The trial court denied the motion on November 30, 2018.
(Doc. 6, Ex. 32).
Petitioner
appealed the decision to the Ohio Court of Appeals. (Doc. 6,
Ex. 33). Petitioner raised two assignments of error:
1. The trial court erred as a matter of law by denying
appellant's emergency motion to vacate guilty plea under
Padilla v. Kentucky.
2. The trial court erred as a matter of law by finding
appellant's emergency motion to vacate plea under
Padilla v. Kentucky barred under the doctrine of
res judicata.
(Doc. 6, Ex. 33 at PageID 493, 502). On July 29, 2019, the
Ohio Court of Appeals affirmed the judgment of the trial
court. (Doc. 6, Ex. 36).
On
October 22, 2019, petitioner, through counsel, filed a notice
of appeal and motion for leave to file a delayed appeal to
the Ohio Supreme Court. (Doc. 6, Ex. 37, 38). On December 17,
2019, the Ohio Supreme Court granted petitioner's motion.
(Doc. 6, Ex. 40). Petitioner raised the following three
propositions of law in his memorandum in support of
jurisdiction:
1. Defense counsel's failure to inform non-citizen
defendant of the clear and unambiguous immigration
consequences of his no contest plea constitutes
ineffective assistance of counsel.
2. A non-citizen defendant is prejudiced by defense
counsel's ineffective assistance if he would not have
entered the no contest plea had he had been aware of and
understood the clear immigration consequences of his
conviction.
3. A defendant, who suffered from diminished capacity, is
prejudiced by defense counsel's failure to meet the
heightened duty to his client.
(Doc. 6, Ex. 44). On July 7, 2020, the Ohio Supreme Court
declined to accept jurisdiction of the appeal. (Doc. 6, Ex.
46).
Petitioner
through counsel, filed the instant habeas petition on May 13,
2021. (Doc. 1).
Petitioner
raises the following two grounds for relief in the petition:
