Van Tielen v. Robinson

• Decision Date: 10 September 2014
• Docket Number: Case No. 1:13-cv-642
• Parties: JOHN VAN TIELEN, Petitioner, v. NORM ROBINSON, Warden, Chillicothe Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JOHN VAN TIELEN, Petitioner, v. NORM ROBINSON, Warden, Chillicothe Correctional Institution, Respondent.

Case No. 1:13-cv-642

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

September 10, 2014

Chief Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS; DECISION AND ORDER DENYING MOTION TO EXPAND THE RECORD

This is a habeas corpus case brought pro se by Petitioner John Van Tielen to obtain relief from his conviction in the Brown County Court of Common Pleas on four counts of pandering sexually-oriented material involving a minor. On each count he was sentenced to six years imprisonment and the sentences were run consecutive to each other for a total term of twenty-four years.

Van Tielen pleads the following grounds for relief:

Ground One: The trial court abused its discretion in overruling appellant's motion to withdraw pleas in violation of his Sixth and Fourteenth amendment rights under the United States Constitution.

Supporting Facts: On March 13, 2012, I submitted a motion to withdraw plea, based solely on the fact that the plea was not knowingly, intelligently, or voluntarily entered into. My specific plea was for an element of "receiving" which was not part of the charging instrument. This fact was presented by counsel, and repeated by the trial court. On several points in the hearing it was clear that I pled to only receiving the material, which was clearly a lesser offense, in the statute. When the prosecutor gave a statement

of the facts, it was read that I completed the offense as it is read in the charging instrument. At no time was this confusion made clear by counsel, the State, or the trial court. When defense counsel stated that I simply received the photos there was no objection from the prosecution. It was at this point the State started adding the word received to all the remaining counts. I was denied due process by the court's failure to clarify what exactly I was pleading.

Ground Two: The trial court's misstatement of State law, upon which the appellant relied in entering the plea, created a manifest miscarriage of justice that rendered the pleas void.

Supporting Facts: When the trial court recited the charging offenses and allowed the addition of an element, it created the manifest miscarriage of justice. The confusion as to what specifically I pled to without clarification led me to believe that I plead to simply receiving the photos. I would not have plead to reproduction because the prosecution never set forth where the photos were found, on the thumb drive or the hard drive. There is no possible way I could have made an intelligent plea to the charge as written in the charging instrument if I make a clear statement that I only received the photos. The judge himself stated is there any comment as to the facts other than your maintaining that you received. This statement gave me the false sense of knowing that I was pleading to receiving, which is a lesser felony offense, under the same statute. When the trial court addressed me directly, I was asked if I understood that admitting to receiving it amounted to guilty, but was not clear as to which statute I was pleading guilty.

Ground Three: The trial court erred in relating inaccurate information to the appellant upon which the appellant relied, rendering his pleas void, as not being knowingly, intelligently, or voluntarily made in violation of the United States Constitution and Ohio Constitution.

Supporting Facts: The trial court at the sentencing gave effect and used words when defining the statute added elements that were not part of the charging instrument. My understanding is that the word receiving is not appear in the charging offense. When asked by the court if I was pleading to the offense as discussed in Court. I stated I was. This created the confusion that had me thinking I was entering a plea to receiving photos as my attorney and I had previously stated during the hearing. The court had the obligation to make sure my plea was knowingly and intelligently entered into.

Ground Four: The doctrine of res judicata, a rule of fundamental and substantial justice, is not to be applied so rigidly as to offend that the ends of justice or so as to work an injustice, which violated the appellant's constitutional rights.

Supporting Facts: At the time of sentencing, the trial court specifically told me that I had no right to appeal any issue outside of the sentence. It was not until this appeal that the prosecution argued res judicata to bar me from raising this claim on appeal. I firmly believe that I could not waive my rights for those issues if I was never informed about my right to appeal. The record is clear from the first appeal that I only addressed sentence issues.

(Petition, Doc. 6.)¹

Procedural History

Petitioner was indicted on ten counts of pandering sexually-oriented material involving a minor in violation of Ohio Revised Code § 2907.322(A)(1). After plea negotiations, Van Tielen pled guilty to four of those counts and the other six were dismissed. After being sentenced to the term of imprisonment he is now serving, Van Tielen appealed, raising only an assignment of error respecting the sentence. The Twelfth District Court of Appeals affirmed on March 7, 2011. The Ohio Supreme Court declined to exercise jurisdiction over an additional appeal on July 6, 2011.

On March 13, 2012, about twenty-one months after sentencing, Van Tielen moved to withdraw his guilty plea on the ground it was not knowingly, intelligently, and voluntarily entered. The trial court denied the motion. Van Tielen then again appealed to the Twelfth District Court of Appeals with the assistance of counsel. The court overruled the assignment oferror as barred by res judicata and alternatively found there was no manifest injustice in denying the withdrawal because the record made at the plea hearing supported a finding of guilty of pandering as opposed to mere receipt. State v. Van Tielen, 2013-Ohio-446, 2013 Ohio App. LEXIS 367 (12^th Dist. Feb. 11, 2013). The Ohio Supreme Court again declined jurisdiction over an appeal. Van Tielen has also unsuccessfully sought resentencing in the trial court and reopening in the court of appeals.

Van Tielen filed his Petition pro se in this Court on November 4, 2013 (Doc. No. 6). On Judge Bowman's Order, the Respondent filed a Return of Writ (Doc. No. 9) and Van Tielen has filed a Reply (Doc. No. 13). The case is thus before the Court ripe for decision on the merits.

Also ripe is Petitioner's Motion to Complete, Expand the Record (Doc. No. 14) which the Warden opposes (Doc. No. 16).

Petitioner asserts that:

Respondent did not complete the states [sic] record pertaining to this proceeding in that it did not include the complete discovery and evidence as well as the alleged statement that the Petitioner made and that the State included in the Bill of Particulars and their memorandum of oppositions [sic] which is paramount to the Petitioner's argument and coincides with his response.

(Doc. No. 14, PageID 375.) He concludes that "it is vital that the state produce the evidence that it has asserted [all] along but never produced in it's [sic] arguments." Id. at PageID 376. For reasons which will be explained in the course of this Report, the Motion to Complete or Expand the Record (Doc. No. 14) is DENIED.

Analysis

Procedural Default

The Warden asserts that Van Tielen's Second and Third Grounds for Relief are procedurally defaulted because under Ohio law they should have been presented on direct appeal, but were not (Return, Doc. No. 9, PageID 65).

The procedural default defense in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6^th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6^th Cir. 2000)(citation omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963). Coleman, 501 U.S. at 724.

"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d 283, 295 (6^th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6^th Cir. 2006). First,a claim is procedurally defaulted where state-court remedies have been exhausted within the meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits because of a petitioner's failure to comply with a state procedural rule. Id. Second, 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. Id.

Failure to raise a constitutional issue at all on direct appeal is subject to the cause and prejudice standard of Wainwright. Murray, 477 U.S. at 485; Mapes v. Coyle, 171 F.3d 408, 413 (6^th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6^th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6^th Cir.), cert denied, 474 U.S. 831 (1985). Failure to present an issue to the state supreme court...