ERNEST MOON v. CLARK SCOTT (2017)

ORDER

Ernest Moon, a pro se Ohio prisoner, appeals the order of the district court dismissing his 28 U.S.C. § 2254 habeas corpus petition. Moon has filed an application for a certificate of appealability (“COA”) in this court. See Fed. R. App. P. 22(b)(1). He also moves to proceed in forma pauperis on appeal. See Fed. R. App. P. 24(a)(5).

In 2013, Moon pleaded guilty to three counts of kidnapping, three counts of rape with a sexually violent predator specification, and three counts of gross sexual imposition. The trial court merged the gross sexual impositions counts into the rape counts for purposes of sentencing and imposed ten years for each kidnapping count and ten years to life for each of the rape counts. The trial court ordered all of the sentences to run consecutively, for a total of sixty years of imprisonment. Moon appealed, arguing that the trial court did not make the findings necessary to impose consecutive sentences. The Ohio Court of Appeals found no error and affirmed. State v. Moon, No. 99748, 2014 WL 495111 (Ohio Ct. App. Feb. 6, 2014).

While his direct appeal was pending, Moon filed a motion to withdraw his guilty plea under Ohio Rule of Criminal Procedure 32.1. He claimed that, at the time of his plea, he did not understand the nature of the charges, the effect of the plea, or his rights. He also alleged that counsel was ineffective. The trial court denied the motion, finding that Moon was afforded a full plea colloquy, and many of his issues were barred because he failed to raise them on direct appeal. The trial court also concluded that the time for filing a motion for post-conviction relief had expired, and Moon did not offer a substantial reason for reopening the matter.

In July 2014, after his direct appeal had concluded, Moon filed a second Rule 32.1 motion. In it, he argued that the trial court mistakenly treated his first motion as a petition for post-conviction relief, citing the court's declaration that his motion was untimely and that the issues should have been raised on direct appeal. With respect to his plea, he claimed that it was not knowing and voluntary because he was told by the prosecutor and his counsel that he would receive a sentence of three to five years if he pleaded guilty. The trial court also denied this motion. The Ohio Court of Appeals affirmed. State v. Moon, No. 101930, 2015 WL 1962892, at *2 (Ohio Ct. App. Apr. 30, 2015). The Ohio Supreme Court denied leave to appeal.

Moon filed this habeas petition in the district court in September 2015. He raised three grounds for relief: (1) the trial court abused its discretion and violated due process when it did not grant his Rule 32.1 motion to withdraw his guilty plea; (2) the trial court abused its discretion when it denied his first Rule 32.1 motion as untimely, resulting in a violation of due process; and (3) the Ohio Court of Appeals abused its discretion and violated due process when it allowed the state to submit reasons for denying Moon's appeal that were different from those on record. The state filed a return of writ, asserting that Moon's plea colloquy demonstrated that his plea was knowing and voluntary and the trial court did not err in denying his motion to withdraw the plea. The state further argued that Moon's second and third habeas claims were errors of state law that were not cognizable on habeas review. Moon filed a reply, acknowledging that he understood all of the possible sentencing consequences of his plea, but he still believed he would receive a maximum sentence of five years based on his conversation with his counsel.

The magistrate judge determined that Moon's first claim did not warrant relief because the plea colloquy established that Moon entered his plea knowingly and voluntarily. The magistrate judge further concluded that Moon's remaining claims—which did not directly attack the validity of his plea but Ohio's post-conviction procedures—were not cognizable on habeas review because they concerned issues of state law only. The magistrate judge therefore recommended that Moon's first claim be denied and that his remaining claims be dismissed. Over Moon's objections, the district court adopted the magistrate judge's report, denied Moon's petition, and declined to issue a COA.

To obtain a COA, a petitioner must show that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “[A] COA does not require a showing that the appeal will succeed,” id. at 337; it is sufficient for a petitioner to demonstrate that “the issues presented are adequate to deserve encouragement to proceed further.” Id. at 327 (citing Slack, 529 U.S. at 484).

The validity of a plea is determined from the “totality of the circumstances.” Abdus-Samad v. Bell, 420 F.3d 614, 631 (6th Cir. 2005). A plea-proceeding transcript that suggests that a plea was made voluntarily and intelligently creates a “heavy burden” for a petitioner seeking to overturn his plea. Garcia v. Johnson, 991 F.2d 324, 326-28 (6th Cir. 1993). “[I]t is well-settled that post-sentencing ‘buyer's remorse’ is not a valid basis on which to dissolve a plea agreement and ‘the fact that a defendant finds himself faced with a stiffer sentence than he had anticipated is not a fair and just reason for abandoning a guilty plea.’ ” See Moreno–Espada v. United States, 666 F.3d 60, 67 (1st Cir. 2012) (quoting United States v. Mercedes-Mercedes, 428 F.3d 355, 359 (1st Cir. 2005)). There is no independent federal constitutional right to withdraw a guilty plea that was knowingly and voluntarily entered. See Carwile v. Smith, 874 F.2d 382, 385-86 (6th Cir. 1989).

Reasonable jurists would not debate the district court's denial of Moon's first claim. The district court thoroughly reviewed the transcript of Moon's plea hearing and found no evidence that he was unaware of all of the potential consequences of his plea. In particular, at the hearing, the trial court reviewed how each count of the indictment would be affected by the plea. Moon confirmed to the court that no one had made any promises to him, aside from the plea agreement, in order to get him to plead guilty. The trial court explained the potential sentences for each count, some of which carried the possibility of ten years to life imprisonment. The court informed Moon that “there [wa]s no agreement,” nor was the court bound to run his sentences concurrently, which meant that the court could order the sentences to run consecutively. The trial court continued, stating that it could “run three to ten, three to ten, consecutive back to back” and asked Moon if that affected his decision to enter guilty pleas “in any way”; Moon stated “no.” Trial counsel noted that, had the case gone to trial and Moon not prevailed, the outcome could have been life without the possibility of parole. The trial court confirmed that fact, informing Moon that his “exposure ha[d] been dramatically reduced by the agreements worked out, and there [wa]s a possibility of [him] one day walking out of prison.”

These portions of Moon's plea colloquy demonstrate that Moon understood the sentencing consequences of his plea. Moreover, the prosecutor never mentioned an agreed-upon sentence, and trial counsel never stated that the agreement was conditioned on any specific term of imprisonment. Moon's explanation that all of the facts supporting his claim are “off the record” is simply insufficient to warrant habeas relief. Moon has not provided an affidavit by counsel that the plea agreement was conditioned upon the imposition of a total sentence of five years, and the state has denied that such a term was ever promised. Rather, the record reflects that Moon's plea agreement contained no provision regarding any specific sentence, and Moon stated to the court, under oath, that he was not promised anything—other than what was contained in the plea agreement—to induce his plea. Accordingly, this claim does not deserve encouragement to proceed further.

In his second and third claims, Moon argued that the trial court abused its discretion when it treated his first Rule 32.1 motion as a post-conviction petition and found it untimely, resulting in a violation of due process; and that the Ohio Court of Appeals abused its discretion and violated due process when it allowed the state to argue on appeal that Moon did not demonstrate “manifest injustice,” when manifest injustice was not a reason for the trial court's dismissal of his motion. Reasonable jurists would not debate that these claims were not cognizable on habeas review. “[F]ederal habeas corpus relief does not lie for errors of state law ․” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). We have long held that errors committed during state post-conviction proceedings cannot provide a basis for federal habeas relief. Alley v. Bell, 307 F.3d 380, 387 (6th Cir. 2002) (citing Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986)). These claims do not deserve encouragement to proceed further.

Moon's application for a COA is DENIED. His motion to proceed in forma pauperis is DENIED as moot.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk