Wolke v. Shoop
| Decision Date | 23 November 2020 |
| Docket Number | Case No. 1:19-cv-966 |
| Parties | NICHOLAS WOLKE, Petitioner, v. TIM SHOOP, Warden, Chillicothe Correctional Institution, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
This habeas corpus case, brought pro se by Petitioner Nicholas Wolke under 28 U.S.C. § 2254, is before the Court for decision on the merits. The relevant pleadings are the Petition (ECF No. 1 and 2), the State Court Record (ECF No. 7), the Return of Writ (ECF No. 8), and Petitioner's Reply (ECF No. 10).
The Magistrate Judge reference in the case has recently been transferred to the undersigned to help balance the Magistrate Judge workload in the Southern District.
On March 5, 2008, the Adams County, Ohio, grand jury indicted Wolke on two counts of murder, each with a firearm specification, in connection with the shooting deaths of Denise Blanton and Jonathan Gilkison (Indictment, State Court Record, ECF No. 7, Ex. 1). On December 12, 2008, Wolke, with the assistance of counsel, pleaded guilty to both counts in return for dismissal of the firearm specifications and was sentenced to an aggregate term of imprisonment of thirty years to life. Id. at Ex. 3. Wolke did not take a direct appeal.
Instead, more than six years later on February 17, 2015, Wolke moved to merge the two counts of the indictment under Ohio Revised Code § 2941.25, arguing that conviction on both counts violated the Double Jeopardy Clause of the United States Constitution. Id. at Ex. 6. The trial court denied the motion and Wolke did not appeal.
On April 9, 2015, Wolke moved the trial court to re-sentence him, claiming the original judgment was void because the trial judge had not advised him that failure to pay court costs, restitution, and the costs of prosecution could result in his being ordered to perform community service. Id. at Ex. 8. The trial court denied the motion, Wolke appealed, and the Ohio Court of Appeals for the Fourth District affirmed the trial court's decision. State v. Wolke, 2016-Ohio-1134 (Ohio App. 4th Dist. Mar. 11, 2016). Wolke did not timely appeal to the Supreme Court of Ohio and his motion for delayed appeal was denied. State v. Wolke, 146 Ohio St. 3d 1489 (2016).
On February 2, 2017, Wolke moved the Ohio Fourth District Court of Appeals to allow a delayed appeal from his conviction (Motion, State Court Record, ECF No. 7, Ex. 29). That court denied the motion, finding that Wolke had not shown justification for waiting more than nine years to seek to appeal. Id. at Ex. 31. Wolke did not appeal to the Supreme Court of Ohio. Wolke's subsequent motion to correct sentence failed in the trial court and the Fourth District. Again he did not appeal to the Supreme Court of Ohio.
On June 7, 2018, Wolke again moved to set aside his plea and the resulting judgment. Id. at Ex. 40. The trial court denied relief and Wolke appealed to the Fourth District. That court treated the motion as a petition for post-conviction relief under Ohio Revised Code § 2953.21.State v. Wolke, 2019-Ohio-1491, ¶ 8 (Ohio App. 4th Dist. Apr. 15, 2019), appellate review declined, 2019-Ohio-4003. It concluded Wolke's First Assignment of Error regarding his claim that his guilty plea was involuntary was barred by Ohio's criminal res judicata doctrine. Id. at ¶¶ 11-13. In his Second Assignment of Error, Wolke argued that imposition of post-release control was improper for these murder convictions. The State agreed and the Fourth District remanded for correction of the December 2008 judgment entry. Id. at ¶¶ 16-20. On February 12, 2020, the trial court entered an Amended Judgment which excluded post-release control (State Court Record, ECF No. 7, Ex. 61). At that time, Wolke had already filed his Petition in this case which pleads the following grounds for relief:
(Petition, ECF No. 1, PageID 6-8).
Because Wolke is proceeding pro se, he is entitled to a liberal construction of his pleadings. Haines v. Kerner, 404 U.S. 519 (1972); Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). The Magistrate Judge will therefore attempt to discern every constitutional claim Wolke makes under the rubric of "Due Process and Equal Protection" and analyze it without respect to the formality of its presentation.
First claim: Involuntary Plea Because of the Influence of Drugs
Wolke's first claim is that his guilty plea was involuntary and therefore voidable because he was under the influence of "state-prescribed medications" at the time of his plea. He first made this claim in his June 2018 Motion to Set Aside Judgment and Plea (State Court Record, ECF No. 7, Ex. 40). The Motion is not supported by any evidence, by way of affidavit or otherwise, that claims Wolke was under the influence of drugs; it merely alleges without support that the plea was drug-induced. Id. at PageID 318. Although Wolke has repeated the allegation continuously since this first mention, he has never provided any supporting evidence, even to the point of enumerating the drugs.
The Fourth District Court of Appeals treated this motion as a petition for post-conviction relief under Ohio Revised Code § 2953.21 and affirmed its denial based on the Ohio criminal doctrine of res judicata. Wolke, 2019-Ohio-1481, ¶ 13, citing State v. Perry, 10 Ohio St. 2d 175(1967). Par. 9 of the syllabus in Perry states:
9. Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction or on an appeal from that judgment.
Since its announcement in Perry, the Ohio courts have consistently enforced the rule. State v. Cole, 2 Ohio St. 3d 112 (1982); State v. Ishmail, 67 Ohio St. 2d 16 (1981).
The Sixth Circuit has repeatedly held that the Perry res judicata doctrine is an adequate and independent state ground of decision. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001).
While "presentation of competent, relevant, and material evidence dehors [outside] the record may defeat the application of res judicata." State v. Lawson, 103 Ohio App. 3d 307 (12th Dist. 1995), Wolke has never presented such evidence. He cannot do so now because the statute of limitations for filing a petition for post-conviction relief in which such evidence could be presented expired July 17, 2009, 180 days after his time to take a direct appeal expired. Ohio Revised Code § 2953.21(A)(2)1.
Even if Wolke attempted to file a delayed petition for post-conviction relief, his claim that his plead was drug-induced is directly contradicted by the record. At the time of his plea he represented to the trial judge both orally and in writing that he was not under the influence of any medications that would have affected the voluntariness of the plea .
As to all of Wolke's claims, Respondent has raised the defense of procedural default. The procedural default doctrine 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 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim 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 (6th Cir. 2000), quoting Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were procedurally defaulted in state court—that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important "corollary" to the exhaustion requirement. Dretke v. Haley, 541 U.S....
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