Ward v. Gray

• Docket Number: 1:19-CV-02448-JRK
• Decision Date: 01 November 2021
• Parties: DONZELL WARD, Plaintiff, v. WARDEN DAVID W. GRAY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

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DONZELL WARD, Plaintiff, v. WARDEN DAVID W. GRAY, Defendant.

No. 1:19-CV-02448-JRK

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

November 1, 2021

James R. Knepp, II United States District Judge

REPORT & RECOMMENDATION

Jonathan D. Greenberg, United States Magistrate Judge

This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the Petition of Donzell Ward (“Ward” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Ward is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Ward, Cuyahoga County Court of Common Pleas Case No. CR-17-619429-A. For the following reasons, the undersigned recommends that the Petition be DISMISSED IN PART AND DENIED IN PART.

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 Ward's conviction as follows:

{¶3} On August 1, 2017, a Cuyahoga County Grand Jury indicted Ward for one count of rape with one- and three-year firearm specifications and a sexually violent predator specification, one count of gross sexual imposition with one-and three-year firearm specifications, and one count of kidnapping with one-and three-year firearm specifications, a sexual motivation specification, and a sexually violent predator specification. The charges stemmed from an incident that occurred in 2000. According to the police report, which was included as part of the presentence investigation report, the victim was waiting at a bus stop on her way to work when Ward approached her, pointed a gun at her head, and told her to get into his car. He then drove the victim to a parking lot and raped her.

{¶4} In January 2018, Ward agreed to plead guilty to rape with a one-year firearm specification and kidnapping with a sexual motivation specification. In exchange, the state dismissed the count for gross sexual imposition and deleted the remaining specifications for the rape and kidnapping counts.

{¶5} In February 2018, the trial court sentenced Ward to nine years for rape, which was to be served consecutively to a one-year sentence for the firearm specification. As to the kidnapping count, the trial court sentenced Ward to nine years, which was to be served consecutive to the sentences for rape and the firearm specification, giving Ward an aggregate sentence of19 years and a mandatory 5 years of postrelease control.

{¶6} The trial court then held a sexual offender classification hearing pursuant to H.B. 180 and classified Ward as a sexual predator, requiring Ward to personally register every 90 days for life. The trial court explained that as part of the registration, Ward had to periodically verify his home address, employment, and education and also explained the consequences of failing to properly register or verify those details.

{¶7} It is from these judgments that Ward now appeals.

State v. Ward, 2018-Ohio-5354, 2018 WL 6921883, at *1 (Ohio Ct. App. Dec. 27, 2018).

II. Procedural History

A. Trial Court Proceedings

On August 1, 2017, the Cuyahoga County Grand Jury indicted Ward on the following charges: (1) one count of rape, in violation of O.R.C. § 2907.02(A)(2), including two firearm specifications and a sexually violent predator specification; (2) one count of gross sexual imposition, in violation of O.R.C. § 2907.05(A)(1), with two firearm specifications and a sexually violent predator specification; and (3) one count of kidnapping, in violation of O.R.C. § 2905.01(A)(4), with two firearm specifications, a sexual motivation specification, and a sexually violent predator specification. (Doc. No. 6-1, Ex. 1.) Ward entered pleas of not guilty to all charges. (See Doc. No. 6-1, Ex. 2.)

On January 10, 2018, Ward withdrew his not guilty pleas. (Doc. No. 6-1, Ex. 2.) On the prosecutor's recommendation, the trial court amended Count One to remove the three-year firearm specification and sexual violent predator specification and amended Count Three to remove the one-year and three-year firearm specifications and sexual violent predator specification. (Id.) Count Two was nolled. (Id.) Ward pled guilty to Counts One and Three as amended. (Id.) The trial court accepted Ward's pleas and found him guilty. (Id.) The trial court scheduled a sentencing hearing along with an HB 180 hearing since the case fell under Megan's Law. (Id.)

On February 7, 2018, the trial court held a sentencing hearing. (Doc. No. 6-1, Ex. 3.) Ward was sentenced to serve an aggregate term of 19 years' incarceration. (Id.) In addition, after the HB 180 hearing, the trial court classified Ward as a sexual predator. (Id.) Appellate counsel was appointed for the purposes of the HB 180 hearing only. (Id.)

B. Direct Appeal

On March 7, 2018, Ward, through counsel, filed a timely notice of appeal to the Eighth District Court of Appeals. (Doc. No. 6-1, Ex. 4.)

On May 3, 2018, the appellate court struck Ward's brief, as it exceeded the scope of appellate counsel's appointment by addressing issues beyond Ward's sexual offender classification. (Doc. No. 6-1, Ex. 5.) The appellate court directed counsel to file an amended appellant's brief. (Id.) The appellate court explained retained counsel could not include a supplemental brief as to Ward's plea and sentence because the trial court's appointment of appellate counsel was limited to the H.B. 180 sexual offender classification. (Id.) Therefore, Ward needed to file a motion for delayed appeal if he wished to appeal the plea and sentencing hearing. (Id.)

On May 7, 2018, Ward filed a motion for leave to file a delayed appeal to challenge his entire plea and sentence, which the appellate court granted. (Doc. No. 6-1, Ex. 9-10.) The appellate court consolidated the appeals for purposes of hearing and disposition, although the appeals were to be briefed separately. (Doc. No. 6-1, Ex. 10.)

On May 9, 2018, in his amended appellate brief by appointed appellate counsel, Ward raised the following assignments of error:

I. THE COURT ERRED IN CLASSIFYING DONZELL WARD A SEXUAL PREDATOR.

(Doc. No. 6-1, Ex. 6.) The State filed a brief in response. (Doc. No. 6-1, Ex. 7.)

On August 31, 2018, retained counsel filed Ward's corrected appellate brief and raised the following assignments of error:

I. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT GAVE CONFLICTING ADVICE CONCERNING WHETHER THE OFFENSE WAS NON-PROBATIONABLE[.]

II. DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHTS WHEN HIS SENTENCE WAS BASED UPON JUDICIAL FACTFINDING.

III. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT.

(Doc. No. 6-1, Ex. 11.) The State filed a brief in response. (Doc. No. 6-1, Ex. 12.)

On December 27, 2018, the state appellate court affirmed Ward's convictions. (Doc. No. 6-1, Ex. 13.) See also State v. Ward, 2018-Ohio-5354, 2018 WL 6921883, at *1.

On February 8, 2019, Ward, proceeding pro se, filed a Notice of Appeal with the Supreme Court of Ohio. (Doc. No. 6-1, Ex. 14.) In his Memorandum in Support of Jurisdiction, Ward raised the following Propositions of Law:

I. When a trial court attempts to comply with Ohio Revised Code 2929.11 and 2929.12, in imposing sentence goes beyond the dictates of that statute and enters into judicial factfinding, more like those of the former R.C. 2929.14, does this violate a defendant's Sixth Amendment guarantees of the United States Constitution?

II. Does a plea and subsequent sentence become invalid when the trial court violates the Due Process Clause by misleading a criminal defendant prior to entering a plea by stating and elucidating to the fact that the statute provides that the offense is probationable, which is contradicted by the statute?

III. The Appellant was denied Effective Assistance of Trial Counsel in violation of the Sixth Amendment guaranteed by the United States Constitution for multiple failures. Should Appellate Courts consider all grounds raised as it relates to ineffective assistance of counsel even when an Appellant accepts a plea to preserve justice and fairness of the representation of counsel?

IV. Should trial courts be required to make findings to comply with Megan's Law for those offenders who are subject to the classification system for sexual-offenders, as it would otherwise violate the Due Process Clause and guarantees protected by the United States Constitution?

(Doc. No. 6-1, Ex. 15.) The State did not file a response.

On May 1, 2019, the Supreme Court of Ohio declined to accept jurisdiction of the appeal pursuant to S.Ct. Prac.R. 7.08(B)(4). (Doc. No. 6-1, Ex. 16.)

C. Federal Habeas Petition

On October 4, 2019, ^[1] Ward filed a Petition for Writ of Habeas Corpus in this Court and asserted the following grounds for relief:

GROUND ONE: THE TRIAL COURT DID NOT COMPLY WITH OHIO REVISED CODE 2929.11 AND 2929.12, IN IMPOSING SENTENCE THAT WENT BEYOND THE DICTATES OF THOSE STATUTES AND ENTERED INTO JUDICIAL FACTFINDING, MORE LIKE THE FORMER OHIO REVISED CODE 2929.14 IN VIOLATION OF THE GUARANTEES OF THE UNITED STATES CONSTITUTION, SIXTH AMENDMENT AND DUE PROCESS.

GROUND TWO: AS PETITIONER'S GUILTY PLEA WAS NOT KNOWINGLY AND VOLUNTARILY MADE UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. [SIC] THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AS THE TRIAL COURT VIOLATED THE DUE PROCESS CLAUSE BY MISLEADING PETITIONER PRIOR TO ENTERING THE PLEA BY STATING THAT THE

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