FLOYD HULL v. DOUGLAS FENDER WARDEN (2022)

Pending is pro se Petitioner Floyd J. Hull's Petition for Habeas Corpus under 28 U.S.C. § 2254(d). Following referral for a Magistrate Judge's Report & Recommendation, the Honorable Thomas M. Parker filed his Report & Recommendation on September 19, 2022. (Doc. 15). Magistrate Judge Parker recommended that I deny the Petition and decline to grant a Certificate of Appealability.

On September 30, 2022, the Petitioner filed his Objections to the Magistrate Judge's Report & Recommendation. (Doc. 16). On de novo consideration of the Petitioner's Objections, I find them not well-taken. Accordingly, I adopt the Magistrate Judge's Report & Recommendation, deny and dismiss the Petition, and decline to issue a Certificate of Appealability.

Background

The Petitioner is currently serving a five-year aggregate sentence following his pleas of guilty to one count of trafficking in heroin and one count of trafficking in marijuana.

His conviction and sentence resulted from an April 23, 2015 traffic stop on I-90 near milepost 191. Willoughby Hills, Ohio Police Officer, Anthony Mino, stopped the Petitioner for failure to maintain his lane and for expired tags. Petitioner said he had valid tags (which later proved to be true); he opened the glove box to retrieve proof thereof; and then, without having retrieved anything, immediately slammed the glove box shut.

Officer Mino inspected a pill bottle that had been in the glove box and arrested the Petitioner. A later search of his car resulted in the seizure of various quantities of controlled substances, drug paraphernalia, and over $600.

Seeking to help himself, Petitioner confessed to Officer Mino. He does not contend that his post-custodial statements resulted from interrogation on Officer Mino's part.

Petitioner, before deciding to plead guilty, filed a motion to suppress the evidence found in his car and his inculpatory statement to Officer Mino. In support of his motion, he claimed that: 1) dashcam evidence showed he had remained in his lane; and 2) the Willoughby Hills Police admitted that his tags were, in fact, valid.

With regard to his statements to Officer Mino, Petitioner contended that they were not voluntary, having been coerced by Officer Mino's statement that he could help himself by helping the police. (Doc. 11-1, pgID 133, 137-40). He also contended that his attorney had assured him that he would receive probation if he waived a preliminary hearing (which he did) and worked as a confidential informant (which he did not). His attorney at the time had some initial discussion with the prosecutor, who told the attorney to have the Petitioner contact the Drug Task Force. The attorney neglected to inform the Petitioner about doing so. So he never reached out to the Drug Task Force, obtained a promise of leniency, or worked as an informant.

Sometime after waiving his preliminary hearing and pleading guilty, the Petitioner met with Cleveland Police Department Detectives. They decided not to use him as an informant. The Petitioner claims, without evidentiary substantiation, that the Detectives made this decision after receiving a phone call from Lake County, Ohio authorities.

Contrary to the Petitioner's current assertions, there is no evidence of record that supports his claim that any department, agency, or prosecutor ever made a promise of leniency, including a promise of probation, that would have caused him to waive his preliminary hearing or plead guilty. Thus, to the extent that Petitioner bases his Petition on alleged breaches of such promises, he has provided no evidentiary support for that contention.¹

In the meantime, the trial court's deadline for filing a suppression motion had passed. When the Petitioner's trial attorney filed his motion to suppress, the court refused to allow it to proceed. So the traffic stop, arrest, confession to Office Mino, and car search remained unchallenged. Under the circumstances, Petitioner's trial attorney negotiated a plea agreement, which Petitioner fulfilled with his guilty pleas.

At his sentencing, Petitioner stated his trial attorney had assured him at his preliminary hearing that he could help himself by working as a confidential informant. On the basis of that assurance, he told the sentencing judge, he had, despite his belief that the traffic stop was illegal, waived that hearing, withdrawn trial subpoenas, and withdrawn his replevin motion. He had anticipated helping himself by becoming a confidential informant. But the State never acted upon his information.²

As pertinent here, the Court of Appeals, which affirmed Petitioner's conviction and sentence, also held, inter alia, that Petitioner waived his right to challenge the traffic stop, search of his car, and confession because he pled guilty.

While his direct appeal was pending, Petitioner, represented by counsel, filed a petition for post-conviction relief under O.R.C. § 2953.21. His petition asserted three IAC claims.

The first IAC claim was that trial counsel advised him that he “could not afford to take his case to trial” because the State could use his confession against him at trial. (Doc. 11-1, pgID 322-24).

According to Petitioner, this advice was incorrect because the State has procured his confession through illusory promises of leniency that rendered the confession inadmissible. (Id.).

Petitioner's second post-conviction IAC claim was that trial counsel was ineffective when he failed timely to file and litigate the motion to suppress. (Id., pgID 325). He argued that, but for the untimeliness, the court would have suppressed the confession. (Id., pgID 326).

Petitioner's third post-conviction IAC claim was that trial counsel failed to argue that the traffic stop was illegal because it occurred outside Officer Mino's territorial jurisdiction (Id., pgID 327-29).

The trial court denied the Petitioner's post-conviction petition on the grounds of res judicata. The Court of Appeals disagreed and reversed and remanded.

In support of his post-conviction petition, Petitioner had provided several affidavits. On remand, the trial court rejected the evidentiary value of those affidavits and held that the petition failed to contain sufficient operative facts to sustain relief. (Doc. 11-1, pgID 457-67). The trial court did not just find the affidavits not credible. It also held that the evidence showed that the State had not coerced the Petitioner's plea, in that he had actively participated in the plea discussions and had reached his own decision. (Id.). As to the claim of alleged broken promises, the trial court, in addition to finding the affidavits not credible, held that they did not contain enough information to show what promises the State had made and failed to fulfill. (Id.).

As to the post-conviction petition's third claim, the trial court held that the Petitioner had failed to show that the stop and arrest had, in fact, occurred outside Officer Mino's jurisdiction. (Id.).

The Court of Appeals affirmed. Even if the affidavits were credible (and not, as the Court also found, conclusory), they failed to show Petitioner was entitled to relief. (Id., pgID 587). The court also rejected Petitioner's claim that the State had forced him into pleading guilty, and that in doing so, he had relied on unmet promises of leniency. The court pointed out that the State had withdrawn any such “promises” before Petitioner plead guilty. In sum, the court found no basis for Petitioner's claim that his plea was involuntary. It also concluded that Petitioner's attorney had not coerced him into pleading or otherwise failed to provide adequate representation. (Id., pgID 587-94). Bottom line, as the Magistrate Judge concluded: 1) Petitioner's plea was not based on his attorney's poor advice; and 2) the alleged plea-inducing promises were a mere possibility that never came to fruition for which the State was not responsible.

The Court also concluded that, even if counsel had filed a motion to suppress, it would not have been successful. With regard to Petitioner's claim that his arrest occurred outside Officer Mino's jurisdiction, a suppression motion would have failed for want of proof as to that contention. (Id., pgID 593).

Discussion

Under the Antiterrorism and Effective Death Penalty Act (AEPAA), 28 U.S.C. § 2254(d) a federal court can only grant habeas relief where the State court adjudication of a Petitioner's claims either: 1) was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court; or 2) was based on an unreasonable determination of the facts in light of the record before the State court.

Under Strickland v. Washington, 466 U.S. 668, 687 (1984), Petitioner, to prevail on his habeas IAC claims, must show that: 1) counsel behaved unreasonably; and 2) counsel's unreasonable performance prejudiced the defense.

“Prejudice” here means that Petitioner “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 v. Lockhart, 474 U.S. 52, 59 (1985).

The Magistrate Judge concluded that the Court of Appeals’ denial as to Petitioner's Ground One claim was neither contrary to, nor an unreasonable application of, clearly established law. Fair-minded jurists could not disagree with the appellate court's reasoning or result. (Doc. 15, pgID 769).

In any event, also as to Ground One, the Magistrate Judge endorsed the appellate court's finding that counsel's explanation that, because Petitioner's preliminary hearing counsel never told him to contact the Drug Task Force, the alleged offer of leniency did not reach fruition. (Id.).

Petitioner is not entitled to habeas relief on Ground One.

As to Grounds Two and Three, the Magistrate Judge likewise concluded that the appellate court's decision to deny post-conviction relief was neither contrary to nor an unreasonable application of Strickland. (Id. pgID 771). I agree. As noted above, the appellate court correctly found that the Petitioner's motion to suppress lacked adequate evidentiary support. This was an accurate and not unreasonable factual finding. There being no admissible proof that Officer Mino was outside his jurisdiction, the trial court, had it disregarded the motion's untimeliness, indubitably would have denied the motion to suppress. Thus, the fact that it denied the motion due to untimeliness was not prejudicial.

Accordingly, the appellate court's decision was not contrary to or an unreasonable application of Strickland's prejudice prong. Fair-minded jurists could not rationally disagree with that court's rationale or result.

On that basis, the Magistrate Judge correctly recommended denial of Grounds Two and Three.

I additionally find no merit whatsoever in Petitioner's Objections to the Magistrate Judge's Report & Recommendation. Petitioner argues that the Eleventh District Court of Appeals issued a split decision on his petition for post-conviction relief, and therefore, fair-minded jurists could disagree as to its merits. However, the split decision to which Petitioner refers was not the final decision on his petition. The Eleventh District Court of Appeals remanded his case to the trial court in a split decision. State v. Hull, 2019-Ohio-23. When Petitioner appealed the trial court's decision after remand, the Court of Appeals affirmed it unanimously. State v. Hull, 2020-Ohio-2895. That unanimous decision is the operative one for purposes of this opinion.

Otherwise, my reading of the Petitioner's Objections makes clear that he simply rephrases the arguments that he made in support of his Petition. That being so, he has presented no arguments that would in any way justify declining to adopt the Magistrate Judge's Report & Recommendation to deny and dismiss his Petition and deny a Certificate of Appealability.

Conclusion

On de novo review, I find that the Magistrate Judge's Report & Recommendation and its reasoning and conclusions are well-taken in all respects. Accordingly, it is hereby

ORDERED THAT:

1. The Petitioner's Objections to the Magistrate Judge's Report & Recommendation (Doc. 16) be, and the same hereby are overruled;

2. The Magistrate Judge's Report & Recommendation (Doc. 15) be, and the same hereby is, adopted as this Court's Order; and

3. The Petition for Habeas Corpus (Doc. 1) be, and the same hereby is, denied and dismissed, with prejudice.

4. Jurists of reason could not rationally dispute either the rationale for or result of this decision. I decline, therefore, to issue a Certificate of Appealability.

So ordered.

FOOTNOTES

1.   Petitioner faults his attorney at the preliminary proceedings for not having, as the attorney acknowledges, told him to get in touch with the DEA. Had that attorney done so, perhaps things might have worked out better for the Petitioner. But none of Petitioner's three claims in this proceeding assert IAC as to that attorney.

2.   As noted, supra note 1, there is no evidence, except for the Petitioner's unsupported say-so, that any representative of the State ever offered leniency, including a sentence of probation, if the Petitioner provided useful information or became a confidential informant.

James G. Carr Sr. U.S. District Judge