Opinion
Case No. 1:05CV2012.
February 15, 2006
REPORT AND RECOMMENDATION
This matter is before the magistrate judge pursuant to Local Rule 72.2(b)(2). Before the court are Deltrin Kimbro's ("Kimbro") petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (Docket #1) and his motion for a subpoena requiring respondent to produce laboratory reports (Docket #3). For the reasons given below the magistrate judge recommends that the court dismiss Kimbro's petition with prejudice and overrule his motion for a subpoena as moot.
I
The record establishes the following facts. On August 21, 2002 the July term of the Lorain County Grand Jury indicted Kimbro on three counts of possession of more than 1,000 grams of cocaine or more than 100 grams of crack cocaine (two of the counts with a major drug offender specification), one count of possession of criminal tools, one count of engaging in a pattern of corrupt activity, and two counts of trafficking in drugs (each with a major drug offender specification). On December 10, 2002 the October term of the Lorain County Grand Jury indicted Kimbro on one additional count of possession of between 500 and 1,000 grams of cocaine or between 25 and 100 grams of crack cocaine.
On May 18, 2004 the major drug dealer specifications were dropped and Kimbro pleaded guilty to counts one through seven of the indictment minus the major drug offender specifications. At Kimbro's hearing the court described the charges on which Kimbro had been indicted, asked if he understood them and the charges to which he would be pleading guilty, told Kimbro of the maximum sentence he faced including post-release supervision, described the rights which Kimbro would waive by pleading guilty, and told Kimbro of his right to an appeal. Kimbro stated that he understood what the court had told him. Kimbro also told the court that he had signed the plea form after consulting with his attorney, that no promises or threats other than the agreement to ask for an effective eight-year term of imprisonment had been made for his agreement to plead guilty, and that he was satisfied with his attorney's representation. The court then accepted Kimbo's guilty plea.
The transcript of the plea hearing was not filed until March 24, 2005. Kimbro's change of plea was docketed, however, on May 18, 2004.
On August 30, 2004 the court sentenced Kimbro to eight years' imprisonment on each count of possession of cocaine, one year for possession of criminal tools, eight years on each count of possession of criminal tools, and eight years for engaging in a pattern of criminal activity, all sentences to be served concurrently. The court also told Kimbro that he was eligible for judicial release after five years.
The transcript of the sentencing hearing was not filed until March 24, 2005. Kimbro's sentence was docketed on September 10, 2004.
Kimbro did not timely perfect an appeal of his plea or sentence. On January 26, 2005 Kimbro moved for a delayed appeal. Kimbro argued in his brief in support of his motion that the trial court had erred by failing to inform him of his right to seek leave to appeal, of his right to have counsel appointed by the state without cost to him, of his right to have the documents necessary to perfect an appeal, and of his right to have a timely notice of appeal filed on his behalf. Kimbro also alleged the following errors:
a) The trial court committed error under Ohio Crim. R. 11(2)(a) when Kimbro was misinformed about ths maximum possible penalty when incorrectly advising him that he was subjected to a five (5) year period of post-release control that was contrary to the facts of the case. . . .
b) The trial court committed error under Ohio Crim. R. 11(2)(a) when Kimbro was misinformed of the maximum penalty could be [sic] 61 years in prison when it should have been 90 and one half years. . . .
c) Kimbro should have been afforded a hearing where before he was sentenced, he made an oral protestation of being innocent of engaging in a pattern of corrupt activity. . . .
d) At sentencing, the trial court violated due process of law after agreeing to consider him for judicial release after having previously advising him [sic] that any prison term would be mandatory and defense counsel failed to object on the basis that a mandatory prison term does not legally permit a trial court to consider judicial release.
(Punctuation and emphasis altered; citations omitted). On March 28, 2005 the state appellate court denied Kimbro's motion.
On May 9, 2005 Kimbro filed a notice of appeal to the Ohio Supreme Court. In his memorandum in support of jurisdiction, Kimbro argued that the appellate court had erred in not finding good cause for his delayed appeal, erred in failing to review his affidavit that he had not made a knowing waiver of his right to appeal, and erred in denying him representation before reviewing his motion for a delayed appeal. On August 10, 2005 the Ohio Supreme Court dismissed Kimbro's appeal as not involving any substantial constitutional question.
Kimbro filed in this court a petition for a federal writ of habeas corpus on August 18, 2005. Kimbro asserts five grounds for relief:
A. Ground one: Petitioner was denied his right to counsel during the guilty plea in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
B. Ground two: Petitioner was denied his right to counsel who failed to present evidence in his possession of petitioner's factual innocence of count three of the indictment.
C. Ground three: Petitioner was denied counsel at the plea when counsel failed to investigate the facts and circumstances surrounding count four of the indictment.
D. Ground four: Petitioner was denied counsel at the sentencing hearing in violation of his right under the Sixth and Fourteenth Amendments.
E. Ground five: Counsel was ineffective for failing to move for a hearing when during sentencing petitioner denied participation in the corrupt activity count or count 7 of the indictment.
(Punctuation altered from the original). Respondent filed an answer on January 23, 2006 (Docket #10). Petitioner filed a traverse on February 8, 2006 (Docket #13). Thus, the petition is ready for decision.
II A. Jurisdiction
Petitioner is in the custody of the State of Ohio at the Marion Correctional Institution in Marion, Ohio. Petitioner filed his writ of habeas corpus in the Northern District of Ohio and raises claims regarding the constitutionality of his incarceration under 28 U.S.C. § 2254.
Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. . . . Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application.28 U.S.C. § 2254(a) (d). This court has jurisdiction over Kimbro's petition.
B. Evidentiary hearing
The habeas corpus statute authorizes an evidentiary hearing in limited circumstances when the factual basis of a claim has not been adequately developed in state court proceedings. 28 U.S.C. § 2254(e)(2). There is no need for an evidentiary hearing in the instant case. All of Kimbro's claims involve legal issues which can be independently resolved without additional factual inquiry. The magistrate judge recommends, therefore, that the court overrule Kimbro's motion for a subpoena requiring respondent to produce laboratory reports.
C. Exhaustion of state remedies
A state prisoner must exhaust all available state remedies or have no remaining state remedies available prior to seeking review of a conviction via federal habeas corpus. 28 U.S.C. § 2254(b) and (c); Castillo v. Peoples, 489 U.S. 346, 349 (1989); Riggins v. Macklin, 936 F.2d 790, 793 (6th Cir. 1991). If any state procedures for relief remain available, the petitioner has not exhausted state remedies. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
A petitioner must fairly present any claims to the state courts in a constitutional context properly to exhaust state remedies. Anderson v. Harless, 489 U.S. 4 (1982); Picard v. Connor, 404 U.S. 270 (1971); Shoultes v. Laidlaw, 886 F.2d 114, 117 (6th Cir. 1989). "[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied." Picard, 404 U.S. at 275; see also Harris v. Reeves, 794 F.2d 1168. 1174 (6th Cir. 1986). The exhaustion requirement is properly satisfied when the highest court in the state in which petitioner was convicted has been given a full and fair opportunity to rule on all the petitioner's claims. Manning v. Alexander, 912 F.2d 878, 881-83 (6th Cir. 1990).
Because Kimbro has no remaining state remedies available, his claims have been exhausted.
D. Procedural default
Procedural default occurs when a petitioner fails to present fairly his constitutional claims to the highest state court in a federal constitutional context. Anderson, 489 U.S. 4; Picard, 404 U.S. 270. Reasons of federalism and comity generally bar federal habeas corpus review of "contentions of federal law . . . not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure." Wainwright v. Sykes, 433 U.S. 72, 87 (1977). When a petitioner
has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for 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).
If the state argues that a petitioner has procedurally defaulted, the court must conduct a four-step analysis to determine whether the petitioner has indeed defaulted and, if so, whether the procedural default may be excused:
First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule. . . . Second, the court must decide whether the state courts actually enforced the state procedural sanction. . . . Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim. . . . This question generally will involve an examination of the legitimate state interests behind the procedural rule in light of the federal interest in considering federal claims. . . . [Fourth, if] the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate . . . that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). A default will also be excused if petitioner demonstrates that not excusing the default "will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
A petitioner who has pleaded guilty is limited in the grounds for relief which may be asserted on collateral appeal. "A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment." Boykin v. Alabama, 395 U.S. 238, 242 (1969). Moreover, a voluntary and knowing plea of guilty generally forecloses any later attempt to challenge the conviction:
[W]hen the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.United States v. Broce, 488 U.S. 563, 570 (1989). Because the consequences of a guilty plea are so serious, a guilty plea must be voluntary and made "with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748 (1970). For a plea to be knowing, the defendant must be informed of the rights that will be waived by a plea of guilty and of the sentence to which the plea exposes the defendant, including the maximum possible sentence and any mandatory minimum sentence that may be applicable. United States v. Stubbs, 279 F.3d 402, 412 (6th Cir. 2002); King v. Dutton, 17 F.3d 151, 153-54 (6th Cir. 1994). A guilty plea may be challenged on collateral review on the grounds that the defendant was not afforded effective assistance of counsel at his plea hearing. Hill v. Lockhart, 474 U.S. 52 (1985); Baker v. United States, 781 F.2d 85, 91 (1986).
Kimbro's petition asserts five claims for relief, each of which asserts ineffective assistance of counsel before or during the plea colloquy or sentencing hearing. Respondent argues that Kimbro has procedurally defaulted all his claims for relief. Kimbro has, indeed, repeatedly defaulted his claims of ineffective assistance of counsel. He failed timely to assert his claims by way of direct appeal; he failed to assert his claims by way of a motion to withdraw his guilty plea; and he failed to raise ineffective assistance of counsel as a ground for relief in his application for a delayed appeal.
Kimbro responds that the state procedural rule governing delayed appeals was not an independent and adequate state ground to bar habeas relief, that the alleged ineffective assistance of counsel claim could serve as cause to excuse a procedural default, and that further efforts to exhaust his ineffective assistance claim would have been futile. Kimbro also contends that he is actually innocent of the charges in counts one, two, and three to which he pleaded guilty and that failure to waive his procedural defaults would result in a fundamental miscarriage of justice. The court will examine each of these contentions.
1. Adequate and independent state ground and the procedural defaults
Kimbro cites Deitz v. Money, 391 F.3d 804 (6th Cir. 2004), for the proposition that Ohio App. R. 5(A), which permits a delayed appeal upon a showing of sufficient cause for failing timely to file a direct appeal, is not an adequate and independent ground to bar federal habeas relief. In Deitz, the Sixth Circuit found the following:
[W]e conclude that the state court's refusal to allow [Deitz] to file a delayed appeal under Rule 5(A) does not constitute an "adequate" ground to bar habeas review. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (holding that a procedural forfeiture must be based on an "adequate and independent" ground on which the state can rely to foreclose review of a federal constitutional claim). The district court denied Deitz's motion because he "failed to set forth sufficient reasons for having failed to perfect a timely appeal." But Rule 5(A) does not specify the criteria the courts should use in determining *811 whether to grant a delayed appeal. Instead, it simply requires that the defendant set forth the reasons for the failure to perfect an appeal of right.
The decision to grant or deny a motion for leave to appeal pursuant to rule 5(A) is therefore solely within the discretion of the appellate court. State v. Fisher, 35 Ohio St. 3d 22, 517 N.E.2d 911, 914 (1988). A rule that grants such discretion to the courts is not "firmly established and regularly followed" so as to be adequate within the meaning of Maupin. See Hutchison v. Bell, 303 F.3d 720, 738 (6th Cir. 2002) (ruling that a Tennessee procedure was adequate for purposes of enforcing a procedural bar because "Tennessee's due process exception does not grant unfettered discretion to state courts in applying procedural default rules.").Deitz, 391 F.3d at 810-11.
But Deitz is not applicable to Kimbro's case. The state appellate court denied his delayed appeal not by exercise of its discretion but because Ohio law did not allow it to hear the appeal. The state appellate court wrote as follows:
Appellant states that he did not file a timely notice of appeal because the trial court failed to advise him of his appellate rights.
Crim.R. 32(B) provides that a trial court must advise a defendant of "the defendant's right, where applicable, to appeal or to seek leave to appeal the sentence imposed." (Emphasis added.) R.C. 2953.08(D), however, precludes appellate review of sentences under certain circumstances: "A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by the sentencing judge."
Ohio courts have uniformly held that a sentence is "authorized by law" for purposes of R.C. 2953.08(D) as long as the prison term imposed does not exceed the statutory maximum term for the offense. See State v. Rhodes, 7th Dist. No. 2000 CO 60, 2002-Ohio-3056, ¶ 13, and cases cited therein. Where each sentence imposed by the court is within the permissible statutory range for the count on which the defendant is sentenced, an aggregate sentence is "authorized by law" pursuant to R.C. 2953.08(D). See State v. Johnson, 2d Dist. No. 2000-CA-46, 2001-Ohio-7023, at 8.
In the instant case, appellant's sentence was within the maximum term allowed by statute. Moreover, the transcripts of the proceedings indicate that appellant's sentence was recommended jointly by appellant and the prosecution. Appellant's counsel stated for instance: "We've also entered into, your Honor, an agreed eight-year sentence concurrent in this matter." (Tr. of Plea Hearing, p. 2) Furthermore, when the trial court judge asked appellant if it were true that they had "worked upon an agreement of eight years in the state penitentiary," appellant answered affirmatively. (Tr. of Plea Hearing, p. 7)
Finally, it is beyond dispute that appellant's sentence was imposed by the sentencing judge. Accordingly, R.C. 2953.08(D) precludes this court from reviewing the sentence imposed upon appellant, and the trial court was, therefore, not required to advise appellant of any right to appeal or to seek leave to appeal his sentence pursuant to Crim.R. 32(B). Consequently, appellant has failed to set forth sufficient reasons for the failure of the appellant to perfect an appeal as of right.
Journal entry, Answer, Exh. H, pp. 1-2 (emphasis added). The court held that Ohio Rev. Code § 2953.08(D) prevented it from hearing Kimbro's delayed appeal. Kimbro fails to show that Ohio Rev. Code § 2953.08(D) is not an adequate and independent state ground which would foreclose federal habeas relief.
2. Ineffective assistance of counsel as excusing the procedural defaults
Kimbro's claim that the alleged ineffective assistance of counsel could serve as cause to excuse a procedural default is equally without merit. "Demonstrating cause requires showing that an `objective factor external to the defense impeded [petitioner]'s efforts to comply' with the state procedural rule." Franklin v. Anderson, 434 F.3d 412 (6th Cir. 2006) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). All of Kimbro's claims of ineffective assistance of counsel involve counsel's performance before and during the plea colloquy and sentencing hearing. Kimbro does not explain how ineffective assistance of his counsel before or during the plea colloquy and sentencing hearing prevented him from filing timely his direct appeal. Ineffective assistance of appellate counsel may be cause for failure to file timely a direct appeal, not ineffective assistance of trial counsel.
3. Futility as excusing the procedural defaults
Kimbro's claim that further attempts to appeal would have been futile is not well taken. Under some circumstances futility may excuse a petitioner's failure to pursue legally available means by which his claims might be brought before state courts. See Turner v. Bagley, 401 F.3d 718 (6th Cir. 2005). But the default of legally-available procedures is not excused by the subsequent futility of attempting to do what the law does not permit. Kimbro's assertion that further attempts to raise in state courts his claims of ineffective assistance of counsel would have been futile is correct only in the sense that Ohio law provided him no further avenues for pursuing his claims. This is not the sort of futility that might excuse a procedural default.
4. Actual innocence/miscarriage of justice as excusing the procedural defaults
Kimbro also asserts his procedural default of grounds one, two, and three should be excused because he was actually innocent of one of the counts of possession and both counts of trafficking. To excuse a procedural default, a petitioner claiming actual innocence must show that in light of all the evidence it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Allen v. Yukins, 366 F.3d 396, 406 (6h Cir. 2004). The magistrate judge will examine Kimbro's arguments and evidence regarding his innocence with respect to counts one, three, and four of the indictment.
Kimbro also asserts that the court violated the holding in Blakely v. Washington, 542 U.S. 296 (2004), because a jury did not determine the amount of cocaine which was found to be in his possession. See Traverse, p. 5. Blakely is not applicable in Kimbro's case, however, because unlike Blakely Kimbro pleaded guilty to all facts necessary to justify the sentences imposed on him. The transcript of Kimbro's plea colloquy reveals that Kimbro pleaded "guilty to Counts 1 through 7 as indicated by the State of Ohio, minus the MDO specifications." Transcript of Proceedings, May 18, 2004 (Docket #11), p. 1. As has been shown, each count specified the amount of cocaine or crack cocaine that Kimbro was accused of possessing or trafficking. By pleading guilty not just to possession or trafficking generally but to "Counts 1 through 7 as indicated by the State of Ohio," Kimbro pleaded guilty to possessing or trafficking those amounts specified in the indictment. Thus, there was no need for judicial factfinding of the sort found to be unconstitutional in Blakely. Blakely is not applicable, therefore, to Kimbro's case.
a. Count one: Possession of more than 100 grams of crack cocaine
Kimbro claims that the evidence in the bill of particulars fails to support an indictment for possession of more than 100 grams of crack cocaine because it shows that Kimbro was in possession of only 28 grams of crack cocaine. He is correct. The bill of particulars provided in response to Kimbro's motion asserts as the conduct supporting count one that 28 grams of crack cocaine was found in the utility closet of his residence. See Bill of Particulars ("Bill"), Petition, Exh. D, p. 1. This does not support a violation of Ohio Rev. Code § 2925.11(f), possession of cocaine with major drug offender specifications, as stated in the indictment, and no reasonable jury could have found Kimbro guilty of such a charge. For this reason the magistrate judge recommends that the court excuse the procedural default of Kimbro's first ground for relief.
b. Counts three and four: Trafficking in drugs
Kimbro also claims that the evidence in the bill of particulars does not support counts three and four of the indictment for trafficking pursuant to Ohio Rev. Code § 2925.03(A) ("§ 2925.03(A)") because it does not assert that Kimbro sold or offered to sell cocaine. While Kimbro is correct that the bill of particulars does not support an indictment for a violation of § 2925.03(A)(1), selling or offering to sell a controlled substance, it might support an indictment for a violation of § 2925.03(A)(2), preparing a controlled substance for shipment or distribution. The bill of particulars alleges that on July 1, 2002 Henry Smith, Jr. transferred an unknown quantity of cocaine to Kimbro and retrieved the cocaine sometime in the next fifteen days. Bill at 5. It also alleges that Kimbro was in possession of 28 grams of crack cocaine on July 23, 2002 and that Kimbro met two other times with individuals alleged to be part of the drug trafficking enterprise. Id. at 1, 3.
The bill of particulars and the motion requesting it are both undated, although the service form attached to the motion gives the year as 2002. See Motion for a Bill of Particulars, Petition, Exh. C. Whether any evidence regarding the cocaine in Kimbro's possession during July 2002 beyond that recited in the bill of particulars was available to the state at the time of Kimbro's guilty plea is not known. What is certain, however, is that the evidence in the record is not sufficient to demonstrate that it is more likely than not, in light of all the evidence, no reasonable juror would have found him guilty of violating § 2925.03(A)(2) by preparing a controlled substance for distribution. Thus, Kimbro's assertion that he was actually innocent of two counts of trafficking in violation of § 2925.03(A) is not well taken. For this reason the magistrate judge recommends that the court not excuse Kimbro's procedural default of grounds for relief two and three.
For the reasons given above the magistrate judge recommends that the court find that Kimbro has procedurally defaulted all of his grounds for relief but that the default of ground one should be excused to avoid a fundamental miscarriage of justice.
III
The Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") altered the standard of review that a federal court must apply when deciding whether to grant a writ of habeas corpus. As amended, 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Under the current deferential standard of review, a writ of habeas corpus may issue only if the state court's decision is contrary to clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence. Williams v. Taylor, 529 U.S. 362, 379-90 (2000); Miller v. Francis, 269 F.3d 609, 613-14 (6th Cir. 2001). Law is "clearly established" only by holdings of the Supreme Court, not its dicta, and the law must be clearly established at the time of the petitioner's conviction. Harris v. Stovall, 212 F.3d 940, 943-44 (6th Cir. 2000).
Courts must give independent meaning to the phrases "contrary to" and "unreasonable application of" in § 2254(d)(1):
Section 2254(d)(1) defines two categories of cases in which a state prisoner may obtain federal habeas relief with respect to a claim adjudicated on the merits in state court. Under the statute, a federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) " contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) " involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States."Williams, 529 U.S. at 405 (emphasis added by the quoting court). A decision is "contrary to" clearly established federal law if it reaches a conclusion opposite to that reached by Supreme Court holdings on a question of law or if it faces a set of facts materially indistinguishable from relevant Supreme Court precedent and still arrives at an opposite result. Id. "A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases." Id. A decision involves an unreasonable application of federal law only if the deciding court correctly identifies the legal principle at issue and unreasonably applies it to the facts of the case at hand. Doan v. Brigano, 237 F.3d 722, 729-31 (2001). If a court fails to identify the correct legal principal at issue, the "unreasonable application of" clause does not apply. Id. at 730.
"[A] determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The petitioner, however, may rebut "the presumption of correctness by clear and convincing evidence." Id. The court considers Kimbro's remaining claim under the deferential standard of review accorded the state court's determination of a prisoner's constitutional claims.
In his first ground for relief Kimbro contends that he was denied effective assistance of counsel at his plea colloquy because counsel "failed to provide real notice of the charges under count one of the indictment in violation of the Sixth and Fourteenth Amendments to the United States Constitution." Petition at 11 (punctuation altered). Kimbro contends that because counsel failed to point out to him that the property report from the Elyria Police Department gave the amount of crack cocaine found at his residence as 28 grams, he was not provided "real notice of the nature of the charge against him under Smith v. O'Grady, 312 U.S. 329 [(1941)]." Id. at 12.
The test for effective assistance of counsel when a petitioner has pleaded guilty is the test described in Strickland v. Washington, 466 U.S. 668 (1984):
In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson[,411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) (affirming that the test for ineffective assistance of counsel in the context of a guilty plea is whether counsel's advice fell within the range of competence demanded of attorneys in criminal cases).] . . . The second, or "prejudice," requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.Hill, 474 U.S. at 58-59.
Kimbro's assertion that he was not provided notice of the nature of the charge against him in violation of Smith is erroneous. In Smith, a habeas petitioner alleged that he had been tricked into pleading guilty without having been provided a copy of the charges pending against him. Smith stands for the proposition that a criminal defendant must be informed of the nature of the offenses with which he is charged, not for the proposition that he must be informed of all relevant facts which might support those charges. Thus, Kimbro's assertion that counsel's explanation of the offense with which he was charged violated Smith and constituted ineffective assistance of counsel because it was "inconsistent with the factual circumstances in the police property report and answer to the bill of particulars," Petition at 12, is simply wrong.
Moreover, even if Kimbro were correct that counsel's failure to point out that the evidence was inadequate to support the charge against him fell outside the range of required competence, Kimbro would not win relief on this ground. Kimbro cannot show that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial. The facts alleged by the state were sufficient to support an indictment for a violation of Ohio Rev. Code § 2925(C)(4)(e) ("§ 2925(C)(4)(e)"), possession of more than 25 grams of crack cocaine but fewer than 100 grams. A conviction for a violation of § 2925(e) carries a mandatory prison term for a felony of the first degree, although it does not incur the major drug offender specification which is incurred by a violation of § 2925(C)(4)(f), possession of more than 100 grams of crack cocaine. But count one of Kimbro's indictment did not include a major drug offender specification as it could have if possession of more than 100 grams of crack cocaine is alleged. Thus, amending the indictment to conform to the evidence merely would have changed the indictment to allege possession of between 25 and 100 grams of crack cocaine in violation of § 2925(C)(4)(e), a felony of the first degree under Ohio law. This carries the same penalty as an alleged violation of § 2925(C)(4)(f) without a major drug penalty specification. Because the penalty for the amended indictment would have been the same as the penalty for count one of Kimbro's indictment as issued, Kimbro cannot show that he would not have pleaded guilty absent his attorney's alleged ineffective assistance. In either case, the plea deal would have been the same.
Prior to seating a jury Ohio courts may amend the indictment to conform with the evidence without damaging the case against an accused. See Ohio Crim. R. 7(D).
Because Kimbro's argument contending that his counsel's assistance was ineffective is without merit and because he is unable to show that he was prejudiced by the alleged ineffective assistance, the magistrate judge recommends that the court overrule Kimbro's first ground for relief.
III
For the reasons given above the magistrate judge recommends that the court overrule Kimbro's motion for a subpoena requiring respondent to produce laboratory reports as moot and dismiss Kimbro's petition for a writ of habeas corpus with prejudice.
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of Courts within ten (10) days of receipt of this notice. Failure to file objections within the specified time waives the right to appeal the District Court's order. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986).