Upkins v. Robinson
Decision Date | 10 July 2019 |
Docket Number | Case No. 3:19-cv-088 |
Parties | LAMONE UPKINS, Petitioner, v. NORMAN ROBINSON, Warden, London Correctional Institution Respondent. |
Court | U.S. District Court — Southern District of Ohio |
Lamone Upkins brings this Petition for Habeas Corpus pro se pursuant to 28 U.S.C. § 2254 (ECF No. 1). He seeks relief from his conviction in the Common Pleas Court of Shelby County, Ohio, on drug trafficking charges. Upon initial review, the Magistrate Judge ordered Respondent to file the State Court Record (ECF No. 4), and a Return of Writ (ECF No. 5), which has been done. Upkins has now filed his Reply to the Return of Writ (ECF No. 10), making the case ripe for decision.
On October 1, 2015, a Shelby County, Ohio, grand jury indicted Upkins on four fifth-degree felony Ohio Revised Code § 2925.03(A)(1) Trafficking in Drugs charges, seven fourth-degree felony Ohio Revised Code § 2925.03(A)(1) Trafficking in Drugs charges, and one third-degree felony Ohio Revised Code § 2925.03(A)(1) Trafficking in Drugs charge (State Court Record, ECF No. 4, Ex. 1, PageID 29-31). In a plea agreement negotiated with the assistance of counsel, Upkins agreed to plead guilty to two fifth-degree felony Trafficking in Drugs charges, two fourth-degree felony Trafficking in Drugs charges, and one third-degree felony Trafficking in Drugs charge. The parties jointly recommended an aggregate four-year prison sentence. Id. at Ex. 3, PageID 33-41. Instead, the trial court sentenced Upkins to an aggregate 11 months in prison for the two fifth-degree felony Trafficking in Drugs convictions, an aggregate 17 consecutive months in prison for the two fourth-degree Trafficking in Drugs convictions, and 30 consecutive months in prison for the third-degree felony Trafficking in Drugs convictions, resulting in an aggregate 58 months in prison. Id. at Ex. 6, PageID 60.
On direct appeal, the Ohio Third District Court of Appeals found no arguable issues and dismissed the appeal as frivolous after counsel filed an Anders brief. State v. Upkins, Case No. 17-16-04 (3rd Dist. Shelby Oct. 13, 2016) . Although it initially accepted jurisdiction, State v. Upkins, 149 Ohio St. 3d 1405, 2017-Ohio-2822, the Supreme Court of Ohio later dismissed the appeal as having been improvidently granted, without ruling on the merits. 154 Ohio St. 3d 30, 2018-Ohio-1812.
Claiming ineffective assistance of appellate counsel, Upkins filed an Application to Reopen the direct appeal under Ohio R. App. P. 26(B) (State Court Record, ECF No. 4, Ex. 26, PageID 330-90), which the Third District ultimately denied on the merits. State v. Upkins, Case No. 17-16-04 (3rd Dist. Feb. 21, 2017) (unreported; copy at State Court Record, ECF No. 4, Ex. 29, PageID 402-03). The Supreme Court of Ohio declined to exercise further appellate jurisdiction. State v. Upkins, 149 Ohio St. 3d 1435, 2017-Ohio-4396.
In his Petition here, Upkins pleads the following grounds for relief:
(Petition, ECF No. 1, PageID 6-12.)
In his First Ground for Relief1, Petitioner argues the plea agreement in this case is not permitted by Ohio R. Crim. P. 11(F) which does not contemplate that punishment will be subject to plea bargaining. He reasons that because the plea agreement is invalid, his guilty plea is also. He also claims that the prosecutor's promise to recommend a sentence of four years was unfulfillable, thereby rendering the plea agreement a nullity.
The plea agreement in this case is memorialized in what appears to be a form document of the Shelby County Court of Common Pleas. ¶ 6 provides in typescript "I understand that there isan underlying agreement upon this plea is based and it is as follows:" On the spaces below this typed language there appears in handwriting "plea to Count X; Count I, Count II; Count III, Count IV; joint recommendation at sentencing of four (4) years." (State Court Record, ECF No. 4, PageID 34). Other handwritten portions of the form include a request that the court accept a plea of guilty to Counts I, II, III, IV, and X and a recitation of the maximum penalties for each of those counts. Id. at PageID 35. Petitioner also acknowledged that the maximum sentence could be ninety-six months. Id. at PageID 35-36. In printed language, the form declares that no one had made any promise of a lighter sentence in exchange for the guilty plea and Id. at PageID 37.
No part of this Rule forbids the prosecutor from agreeing to make a recommendation on sentence, nor has Petitioner cited any Ohio case authority to that effect. All the rule on its face requires is that, whatever the agreement is must be stated on the record in open court. That was accomplished by having the plea agreement be in a filed court document and also by the manner in which the trial judge discussed the plea agreement in the plea colloquy.
Just as there is nothing in Criminal Rule 11(F) that prohibits a plea agreement from including a sentence recommendation promise, there is also nothing known to this Court in Ohio law apart from the Rule which forbids a prosecutor from making such a promise. On its face, then, the plea agreement does not violate Ohio R. Crim P. 11(F) and the prosecutor's promise, reflected in the plea agreement, is not unfulfillable.
In addition to these points, to the extent Upkins is claiming that the trial judge did not follow Ohio law (Petition, ECF No. 1, PageID 7), he has not stated a claim for relief in habeas corpus. On questions of state law, a habeas court is bound by state court interpretations. Bradshaw v. Richey, 546 U.S. 74, 76 (2005). And even if there were a violation of Ohio R....
To continue reading
Request your trial