Swoveland v. Turner

• Decision Date: 19 February 2021
• Docket Number: CASE NO. 3:19CV1561
• Parties: DAN J. SWOVELAND Petitioner, v. NEIL TURNER, Warden Respondent.
• Court: U.S. District Court — Northern District of Ohio

DAN J. SWOVELAND Petitioner, v. NEIL TURNER, Warden Respondent.

CASE NO. 3:19CV1561

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

February 19, 2021

JUDGE JAMES G. CARR

MAGISTRATE JUDGE JONATHAN D. GREENBERG

REPORT & RECOMMENDATION

This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the Petition of Dan J. Swoveland ("Swoveland" or "Petitioner"), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Swoveland is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Swoveland, Ohio Third Appellate District No. 15-17-14. For the following reasons, the undersigned recommends that the Petition be DISMISSED as procedurally barred.

I. Summary of Facts

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 are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the facts underlying Swoveland's conviction as follows:

[*P2] On May 4, 2017, the Van Wert County Grand Jury indicted Swoveland on five counts: Counts One and Two of illegal manufacture of drugs in violation of R.C. 2925.04(A), (C)(3)(b), first-degree felonies; Count Three of illegal assembly or possession of chemicals for the manufacture of drugs in violation of R.C. 2925.041(A), (C), a second-degree felony; Count Four of aggravated funding of drug trafficking in violation of R.C. 2925.05(A)(1), a first-degree felony; and Count Five of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), (B)(1). (Doc. No. 3).

[*P3] On May 10, 2017, Swoveland appeared for arraignment and pled not guilty to the counts of the indictment. (Doc. No. 11).

[*P4] On October 11, 2017, Swoveland withdrew his pleas of not guilty and entered guilty pleas, under a written plea agreement, to Counts One and Three. (Doc. No. 26). In exchange for his change of pleas, the State agreed to dismiss Counts Two, Four, and Five of the indictment and recommend that Swoveland serve a seven-year prison sentence. (Id.). The trial court accepted Swoveland's guilty pleas, found him guilty on Counts One and Three, and ordered a presentence investigation. (Doc. No. 27).

[*P5] On December 4, 2017, the trial court sentenced Swoveland to 7 years in prison on Count One and 5 years in prison on Count Three and ordered that Swoveland serve the terms consecutively for an aggregate term of 12 years. (Doc. No. 31).

(Doc. No. 8-1, Ex. 10; State v. Swoveland, No. 15-17-14, 2018 WL 3528713 at ¶¶2-5 (Ohio Ct. App. July 23, 2018).)

II. Procedural History

A. Trial Court Proceedings

On May 4, 2017, the Van Wert County Grand Jury indicted Swoveland on the following charges:

• two counts of illegal manufacture of drugs,

• one count of illegal assembly or possession of chemicals for the manufacture of drugs,

• one count of aggravated funding of drug trafficking, and

• engaging in a pattern of corrupt activity.

(Doc. No. 8-1, Ex 1.) Swoveland entered pleas of not guilty to all charges.

On October 11, 2017, Swoveland, through counsel, withdrew his original plea of not guilty and entered a plea of guilty to one count of illegal manufacture of drugs (Count 1) and one count of illegal assembly or possession of chemicals for the manufacture of drugs (Count 3). (Doc. No. 8-1, Ex. 3.) The State withdrew the remaining counts. (Doc. No. 8-1, Ex. 4.)

The trial court accepted Swoveland's pleas and found Swoveland guilty of illegal manufacture of drugs and illegal assembly or possession of chemicals for the manufacture of drugs. (Doc. No. 8-1, Ex. 5.) On December 4, 2017, the trial court made a judgment entry which ordered Swoveland to serve an aggregate sentence of twelve years. (Doc. No. 8-1, Ex. 6.) In addition, the court notified Swoveland of the imposition of five years of post-release control upon his release from prison. Id.

B. Direct Appeal

Swoveland, through new counsel, filed a timely notice of appeal to the Third District Courtof Appeals, Van Wert County, Ohio. (Doc. No. 8-1, Ex. 7.) In his appellate brief, he raised the following assignments of error:

I. Appellant's guilty pleas were involuntary and should be vacated due to appellant's in-court statements.

Issue Presented for Review: Whether appellant's guilty pleas were voluntary when the appellant averred his innocence at his sentencing?

II. Appellant's guilty pleas were involuntary and should be vacated due to the appellant's incompetency and the trial court committed plain error by failing to sua sponte order a competency evaluation of appellant prior to accepting the guilty plea.

Issue Presented for Review: Whether appellant's guilty pleas were voluntary when his own attorney admitted at appellant's sentencing that Defendant does not process information the same as normal people do?

III. Defendant was denied the effective assistance of counsel as required by the Sixth Amendment to the U.S. Constitution.

Issue Presented for Review: Whether Defendant was denied the effective assistance of counsel when his attorney failed to request a competency hearing?

(Doc. No. 8-1, Ex. 8.) The State filed a brief in response. (Doc. No. 8-1, Ex. 9.)

On July 23, 2018, the state appellate court affirmed Swoveland's convictions. (Doc. No. 8-1, Ex. 10; State v. Swoveland, No. 15-17-14, 2018 WL 3528713 (Ohio Ct. App. July 23, 2018).)

On December 17, 2018, Swoveland, proceeding pro se, filed a Notice of Appeal and a Motion for Delayed Appeal with the Supreme Court of Ohio. (Doc. No. 8-1, Ex. 12 & 13.) On February 6, 2019, the Ohio Supreme Court denied the motion for delayed appeal. (Doc. No. 8-1, Ex. 14.)

C. Federal Habeas Petition

On July 9, 2019,¹ Swoveland filed a Petition for Writ of Habeas Corpus in this Court and asserted the following grounds for relief:

GROUND ONE: That I was never given a competency hearing.

Supporting Facts: I realize I took a plea bargain and thought I would receive 4 years in prison. I pled guilty and then at sentencing I pled not guilty and then after a recess, I pled guilty. I didn't understand what was going on and I told my lawyer at sentencing I did not know how to answer the judge. The court also felt it was unsafe to leave me alone when I was on house arrest. I feel the court and my lawyer ignored their concerns and sentenced me anyway.

GROUND TWO: I was denied the effective assistance of counsel.

Supporting Facts: I feel my lawyer did me an injustice by never ordering a competency hearing. He told the judge several times "I was a difficult client" and not because of hostility but that I do not process information the same way as others do. I also believed my lawyer when I signed a plea bargain that I would only receive four years in prison and then I ended up getting twelve years in prison.

(Doc. 1.)

On May 21, 2020, Warden Neil Turner ("Respondent") filed his Return of Writ. (Doc. No. 8.) Swoveland did not file a Traverse or otherwise respond to the Return of Writ.

III. Exhaustion and Procedural Default

A. Legal Standard

Petitioners must exhaust their state remedies prior to raising claims in federal habeas corpus proceedings. See 28 U.S.C. § 2254(b), (c). This requirement is satisfied "when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner's claims." Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).

Federal courts will not consider the merits of procedurally defaulted claims, unless the petitioner demonstrates cause for the default and prejudice resulting therefrom, or where failure to review the claim would result in a fundamental miscarriage of justice. See Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). A claim may become procedurally defaulted in two ways. Id. First, a petitioner may procedurally default a claim by failing to comply with state procedural rules in presenting his claim to the appropriate state court. Id.; see also Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). If, due to petitioner's failure to comply with the procedural rule, the state court declines to reach the merits of the issue, and the state procedural rule is an independent and adequate grounds for precluding relief, the claim is procedurally defaulted.² Id.

Second, a petitioner may also procedurally default a claim by failing to raise and pursue that claim through the state's "ordinary appellate review procedures." O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). If, at the time of the federal habeas petition, state law no longer allows the petitioner to raise the claim, it is procedurally defaulted. Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); see also Coleman v. Thompson, 501 U.S. 722, 731 32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Lovins, 712 F.3d 283, 295 (6th Cir. 2013) ("a claim is procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the federal petition is filed because of a state procedural rule.") This second type of procedural default is often confused with exhaustion. Exhaustion and procedural default, however, are distinct concepts. AEDPA's exhaustion requirement only "refers to remedies still available at the time of the federal petition." Engle, 456 U.S. at 125 n.28. Where state court remedies are no longer available to a petitioner because he failed to use them within the required time period, procedural default and not exhaustion bars federal court review. Id. In Ohio, a petitioner is not entitled to raise claims in post-conviction proceedings where those claims could have been...