OPINION AND ORDER
This mаtter is before the Court on the Magistrate Judge’s Report and Recommendation (doc. 15) and Petitioner’s Objection (doc. 17). For the reasons indicated herein, the Court ADOPTS the Magistrate Judge’s Report and Recommendation and DENIES Petitioner’s Petition for Writ of Habeas Corpus.
I. Background
In 2005, the Hamilton County, Ohio Court of Common Pleas sentenced Petitioner on three counts of aggravated robbery, three counts of robbery, and five counts of felonious assault, each with four firearm specifications (doc. 15). On May 8, 2006, Petitioner pled guilty to three counts of aggravated robbery and three counts of felonious assault, each with one specification (Id.). The remaining charges were dismissed (Id.). Pursuant to the agreed sentence contained in the plea agreement, the trial court sentenced Petitioner to concurrent prison terms of nine years for aggravated robbery and three years for felonious assault with concurrent three year sentences for each specification (Id.).
On August 11, 2006, Petitioner filed a notice of appeal and a motion for leave to file a delayed appeal in the First District Court of Appeals (Id.). The Court of Appeals denied Petitioner leave to appeal because he did not provide a sufficient reason for his failure to perfect a timely appeal and because there was an agreed sentence (Id.).
Petitioner then filed a notice of appeal to the Ohio Supreme Court (Id.). On February 7, 2007, the Ohio Supreme Court denied Petitioner leave to appeal and dismissed the appeal as it failed to include any substantial constitutional question (Id.).
Subsequently, Petitioner filed this instant habeas action setting forth four grounds for relief (Id.). Petitioner alleged that the Court of Appeals denied his “absolute right to procedural due process “by overruling” a motion for leave to appeal in lieu of record evidence that the [Petitioner] waived his right to appeal and his right to court appointed counsel for such appeal” (Id.). Second, Petitioner alleged that the Court of Common Pleas violated his right to trial by jury by sentencing him to a term which exceeded the statutory maximum mandated by the Sixth and Fourteenth Amendments (Id.). Third, Petitioner alleged the Court of Common Pleas violated his rights under the Ex Post Facto Clause of the Constitution by sentencing him to a term which exceeded the maximum available under the statute at the time of the offenses (Id.). Finally, Petitioner alleged that his sentences were void because he was never put on notice that his sentence of six years was to be enhanced at sentencing (Id.). The Magistrate Judge has reviewed Petitioner’s claims and Petitioner has responded such *591 that this matter is now ripe for the Court’s consideration.
II. The Magistrate Judge’s Report and Recommendation
After reviewing Petitioner’s grounds for relief, the Magistrate Judge found all four grounds lacking in merit. As to the first ground for relief, the Magistrate Judge found that Petitioner’s allegation of a due process violation by the Ohio Court of Appeals failed to give rise to a cognizable constitutional claim subject to review in federal habeas proceedings
(Id.).
A federal court may review a state prisoner’s habeas petition only on the ground that the challenged confinement violates the Constitution, laws or treaties of the United States, and not on a perceived error of state law.
Pulley v. Harris,
The Magistrate Judge also found without merit Petitioner’s claims, that he was not informed of his appellate rights and his counsel mistakenly advised him he had no right to appeal his sentence (doc. 15). The Magistrate Judge determined from the record Petitioner was clearly informed and aware of his appellate rights
(Id.).
The Petitioner signed a guilty plea agreement indicating he understood the nature of the charges, was satisfied with his attorney’s advice, counsel and competence, and Petitioner was not under the influence of drugs or alcohol
(Id.).
The plea agreement also showed Petitioner had been advised of his right to appeal and of the time limit for filing an аppeal
(Id.).
Likewise, the Magistrate Judge found Petitioner failed to establish a claim for ineffective assistance of counsel under the two prong test set forth in
Strickland v. Washington,
Under
Strickland,
to satisfy the first prong of the test, Petitioner must show his attorney made such serious errors that the attorney was not functioning as “counsel” as guaranteed by the Sixth Amendment
(Id.
at 687,
Here, the Magistrate Judge determined Petitioner failed to show he was denied effective assistance of counsel (doc. 15). The Magistrate Judge found any prejudice arising out of the original conviction and sentencing for four separate weapons charges was cured when Petitioner was re-sentenced (Id.). The Magistrate Judge also concluded Petitioner’s attorneys had no duty to guarantee his presence at the re-sentencing hearing because the hearing was held for a very limited purpose and Petitioner had already been given an opportunity to be heard at the original sentencing hearing (Id.). Thus, there was no prejudice to Petitioner (Id.). Furthermore, the Magistrate Judge found Pеtitioner failed to satisfy the first prong of the test because counsel’s advice was not *592 objectively unreasonable in the light of the express terms of the parties’ plea agreement (Id.). Due to the fact Petitioner had no right to appeal under Ohio Rev.Code § 2953.08, counsel’s advice to that effect was not objectively unreasonable (Id.).
The Magistrate Judge similarly found without merit Petitioner’s second ground for relief, that his sentence was “not authorized by law” under the Sixth and Fourteenth Amendments (Id.). The Magistrate Judge found the record did not reflect that Petitioner’s aggregate twelve year sentence was unauthorized by law because it did not exceed the maximum terms permitted under the statutes of conviction (Id. citing Ohio Rev.Code § 2929.14(A)(1),(2)). Similarly, the Magistrate Judge found Petitioner’s sentences did not exceed the statutory maximum terms for his convictions and Petitioner was not denied his constitutional right of appeal under Ohio Rev.Code § 2953.08(D) (Id.).
The Magistrate Judge also rejected Petitioner’s argument that his sentence was unconstitutional as revised by
State v. Foster,
With regard to Petitioner’s third ground for relief, the Magistrate Judge found meritless Petitioner’s Ex Post Facto claim (Id.). The Magistrate Judge determined Petitioner’s claim was based on the mistaken premise that the sentence was under the post-Foster statutory scheme, when in fact, the sentencing statute as revised by Foster was not applied to Petitioner (Id.). Because there was an agreed sentence that was imрosed by the trial court, there was no impermissible Ex Post Facto effect on Petitioner’s sentence (Id.).
Finally, as to Petitioner’s fourth ground for relief, the Magistrate Judge determined there was sufficient notice for the sentences (Id.). Petitioner was aware of the potential penalties he faced and the elements necessary to convict him of aggravated robbery and felonious assault (Id.). Thus, the Magistrate Judge concluded Petitioner was on notice of his potential non-minimum sentences at the court’s discretion and was aware that non-minimum sentences could be imposed without additional fact finding (Id.).
The Magistrate Judge therefore recommended that this Court deny Petitioner’s petition for writ of habeas corpus. The Magistrate Judge further recommended this Court deny a certificate of appealability, certify that any appeal of this order would not be taken in good faith, and deny Petitioner leave to appeal in forma pauperis (Id.).
*593 III. Petitioner’s Objections
Petitioner objected to the Magistrate Judge’s Report and Recommendation, reiterating his belief that he was denied procedural due process of law (doc. 17). Particularly, Petitiоner argued that the Magistrate Judge failed to address both federal and state court subject matter jurisdiction (Id.). Petitioner also claimed that the aggravated robbery statute he was charged under failed to allege a mens rea element (Id.). As a result, Petitioner claims he was not provided notice as required under the Sixth and Fourteenth Amendments to the United States Constitution (Id.). Finally, Petitioner reiterated his claim that he was not put on notice that his sentence was to be enhanced at sentencing (Id.).
IV. Discussion
The Court reviews this .matter de novo because Plaintiff filed objections to the Magistrate Judge’s Report and Recommendation. Fed.R.Civ.P. 72(b). Rule 72(b) states that “[t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the Magistrate Judge’s disposition to which specific written objection has been made in accordance with this rule” (Id.). The Rule further indicates that “[t]he district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions” (Id.).
The Court rejects Petitioner’s initial objection to the Magistrate Judge’s report, that the state lacked subject matter jurisdiction. As addressed by the Magistrate Judge, because the Ohio Court of Appeals summarily denied Petitioner’s motion for a delayed appeal, and the Supreme Court of Ohio declined jurisdiction, there was no decision to evaluate under 28 U.S.C. § 2254. Therefore, the Magistrate Judge conducted his own deferential review and this Court accepts and adopts his reasoning. The Court thus agrees with Petitioner that there is federal subject matter jurisdiction over this habeas corpus claim.
In regards to Petitioner’s second objection, that the statute failed to allege a
mens rea
element, this Court finds Petitioner’s argument unpersuasive. Petitioner cites
State v. Cimpritz,
However, Petitioner’s case support fails to address the issue on point and is misguided. After the opinion in
State v. Colon (Colon I)
was issued, the court clarified its holding in a subsequent case,
State v. Colon II,
Here, the Court cannot conclude that the outcome of the trial would have been different. The trial testimony and records make clear that there was no question about Petitioner’s
mens rea.
Equally important, Petitioner’s guilty plea is a complete admission of defendant’s guilt. Crim. R. 11(B)(1). In entering a guilty plea, a defendant is not stating that he did discrete acts described in the indictment; he is admitting guilt of a substantive crime.
State v. Morgan,
Petitioner’s third objection, that he was not given notice of the charges against him contrary to both the United States Constitution as well as the Ohio Constitution, is similarly without merit. In
Williams v. Haviland,
the court held that in a state prosecution, due process mandates only that the “indictment provide the defendant with fair notice of the charges against him to permit adequate preparation of his defense.”
In the case at hand, the indictment undoubtedly provided Petitioner with fair notice of the charges against him. As discussed in the Magistrate Judge’s Report and Recommendation, Petitioner understood the nature of the charges against him and was clearly aware of his appellate rights. In addition, the guilty plea аnd sentencing transcript confirm that Petitioner read, understood, and discussed the guilty plea (Id.). Thus, the Court rejects Petitioner’s claim that he was not put on notice of the charges against him as merit-less.
In Petitioner’s fourth objection, he claimed he was never put on notice that his sentence could be enhanced at sentencing. However, having reviewed this matter, the Court is satisfied that Petitioner had ample understanding of his sentence and there was no procedural due process defect. In 2005, when the crimes were committed, “the then-applicable provisions of Ohio’s sentencing statute provided sufficient notice to Petitioner that the trial court had discretion to impose non-minimum sentences as long as the court made certain findings consistent with Ohio Rev. Code § 2929.14(B)” (doc. 15). Therefore, Petitioner was on notice that he faced potential non-minimum sentences as long as the sentencing judge made the requisite findings (Id.).
Having reviewed and considered this matter de novo, the Court finds the Magistrate Judge’s Report and Recommendation thorough and well-reasoned. The Court therefore adopts and affirms in all respects the opinions expressed in the Report and Reсommendation (doc. 15), and denies Petitioner’s Objections (doc. 17).
*595 Y. Conclusion
For the aforementioned reasons, this Court ADOPTS the Magistrate Judge’s Report and Recommendation (doc. 15), and DENIES WITH PREJUDICE Petitioner’s Petition for Writ of Habeas Corpus (doc. 3). The Court also DECLINES to issue a certificate of appealability with respect to the petition because Petitioner failed to make a substantial showing of the denial of a constitutional right based on these claims. See 28 U.S.C. § 2253(c), Fed. R.App. P. 22(b). Finally, pursuant to 28 U.S.C. § 1915(a)(3), this Court CERTIFIES that any appeal of this order will not be taken in good faith, and any application to appeal in forma pauperis will be DENIED.
SO ORDERED.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this case pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, This matter is before the Court on the petition (Doc. 3), respondent’s return of writ and exhibits thereto (Doc. 10), and petitioner’s response to the return of writ. (Doc. 14).
I. PROCEDURAL HISTORY 1
The 2005 Term of the Hamilton County Grand Jury indicted Kelley on three counts of aggravated robbery as defined in Ohio Revised Code § 2911.01(A)(1); three counts of robbery as defined in Ohio Revised Code § 2911.02(A)(2); and five counts of felonious assault as defined in Ohio Revised Code § 2903.11(A), each with four firearm specifications. (Doc. 10, Exhibit 1). On May 8, 2006, Kelley pled guilty to three сounts of aggravated robbery (Counts 1, 5 and 8), and three counts of felonious assault, each with one specification (Counts 3, 7 and 10). (Doc. 10, Exhibit 2). The remaining charges were dismissed. (Doc. 10, Exhibit 3). 2 Pursuant to the agreed sentence contained in the plea agreement, the trial court sentenced Kelley to concurrent prison terms of nine years for aggravated robbery and three years for felonious assault. The court further imposed concurrent three year sentences for each specification, to be served consecutively to the nine year prison term. The total sentence was twelve years. (Doc. 10, Exhibits 2, 4 Case No. B051000B). 3
Delayed Direct Appeal
On August 11, 2006, Kelley filed a notice of appeal and a motion for leave to file a delayed appeal in the First District Court of Appeals. (Doc. 10, Exhibit 6). Kelley raised these proposed assignments of error:
1. Defendant-appellant was deprived of his absolute right to procedural due process of law where the trial court failed to impose the mandatory minimum sentence in this case pursuant to Ohio Revised Code 2929.14(B), notwithstanding *596 the dicta opinion of State v. Foster (2006),109 Ohio St.3d 1 ,845 N.E.2d 2740 [470].
2. Defendant-appellant’s sentence is void ab initio where the defendant-appellant was not put on notice that the maximum/minimum sentence mandated by 0.R.C. 2929.14(B) was to be enhanced to a 12 year sentence.
3. Defendant-appellant’s sentence must be reduced to the shortest prison term mandated under O.R.C. 2929.14(B), notwithstanding the dicta opinion of State v. Foster (2006),109 Ohio St.3d 1 ,845 N.E.2d 740 [470] to avoid violating the ex post facto and double jeopardy causes of the Ohio and United States Constitution.
4. Defendant-appellant was deprived of the effective assistance of trial counsel.
(Doc. 10, Exhibit 7). As cause for his delay, Kelley argued that his trial counsel had incorrectly advised him that his agreed sentence was not appealable and the trial court failed to advise him of his right to appeal his sentence. (Id.). The State opposed the motion for delayed appeal. (Doc. 10, Exhibit 8). On September 7, 2006, the Court of Appeals denied Kelley leave to appeal because he did not provide sufficient reasons for his failure to perfect a timely appeal. As an additional reason for denying the motion, the Court noted that there was an agreed sentence, citing Ohio Rev.Code § 2953.08(D). (Doc. 10, Exhibit 9, Case No. C-060678).
On October 16, 2006, Kelley filed a notice of appeal in the Ohio Supreme Court. (Doc. 10, Exhibit 10). In his memorandum in support of jurisdiction, Kelley raised the following propositions of law:
1. It is a denial of the absolute right to procedural due process of law for the court of appeals to overrule a motion for leave to appeal in lieu of record evidence that the defendant waived his right to appeal and his right to court appointed counsel for such appeal. Douglas v. California,372 U.S. 353 ,83 S.Ct. 814 [9 L.Ed.2d 811 ] (1963); State v. Sims (1971),27 Ohio St.2d 79 ,272 N.E.2d 87 , applied.
2. The court of common pleas violated appellant’s right to trial by jury by sentencing appellant to a term of incarceration which exceeded the statutory maximum mandated by the Sixth and Fourteenth Amendments. The decision rendered by this Ohio Supreme Court in State v. Foster (2006),109 Ohio St.3d 1 [845 N.E.2d 470 ], which purports to authorize sentences in excess of the statutory maximum, is incompatible with the controlling precedent of the United States Supreme Court and must be rejected.
3. The court of common pleas violated appellant’s rights under the ex post facto clause of the federal constitution by sentencing appellant to a term of inсarceration which exceeds the maximum available under the statutory framework at the time of the offenses. The decision rendered by this Ohio Supreme Court in State v. Foster (2006),109 Ohio St.3d 1 [845 N.E.2d 470 ], which purports to authorize the sentence rendered against appellant, is incompatible with the controlling precedent of the United States Supreme Court and violates his absolute right to procedural due process of law.
4. Defendant-appellant’s sentences are void because he was never put on notice that his maximum/minimum sentence of six years was to be enhanced at sentencing in this case a structural constitutional defect in violation of his absolute right to procedural due process of law.
(Doc. 10, Exhibit 11). On February 7, 2007, the Ohio Supreme Court denied Kelley leave to appeal and dismissed the ap *597 peal as not involving any substantial constitutional question. (Doc. 10, Exhibit 12, Case No.2006-1922).
Federal Habeas Corpus
Kelley filed the instant Petition for Writ of Habeas Corpus setting forth the following grounds for relief:
GROUND ONE: The courts denied petitioner’s absolute right to procedural due process.
Supporting Facts: It is a denial of the absolute right to procedural due process of law for the court of appeals to overrule a motion for leave to appeal in lieu of record evidence that the petitioner waived his right to appeal and his right to court appointed counsel for such appeal.
GROUND TWO: Violation of petitioner’s right to trial by jury.
Supporting Facts: The court of common pleas violated petitioner’s right to trial by jury by sentencing petitioner to a term of incarceration which exceeded the statutory maximum mandated by the Sixth and Fourteenth Amendments.
GROUND THREE: Violation of petitioner’s right under the ex post facto clause of the federal constitution.
Supporting Facts: The court of common pleas violated petitioner’s rights under the ex post facto clause of the federal constitution by sentencing petitioner to a term of incarceration which exceeds the maximum available under the statutory framework at the time of the offenses.
GROUND FOUR: Petitioner’s sentences are void.
Supporting Facts: Sentences are void because he was never put on notice that his maximum/minimum sentence of six years was to be enhanced at sentencing, in this case a structural constitutional defect in violation of his absolute right to procedural due proсess of law.
(Doc. 3).
II. STANDARD OF REVIEW
On federal habeas review, the factual findings of the state appellate court are entitled to a presumption of correctness in the absence of clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1).
See McAdoo v. Elo,
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (“AEDPA”), a writ of habeas corpus may not issue with respect to any claim adjudicated on the merits in state court unless the adjudication either:
1. 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
2. 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.
28 U.S.C. § 2254(d).
The phrases “contrary to” and “unreasonable application” have independent meanings: A federal habeas court may issue the writ under the ‘cоntrary to’ clause if the state court applies a rule different from the law set forth in ... [Supreme Court] cases, or if it decides a case differently that we have done on a set of materially indistinguishable facts. The court may grant relief under the ‘unreasonable application’ clause if the *598 state court correctly identifies the governing legal principle from ... [the Supreme Court’s] decisions but unreasonably applies it to the facts of a particular case. The focus on the latter inquiry is whether the state court’s application of clearly established federal law is objectively unreasonable ... and an unreasonable application is different from an incorrect one.
Bell v. Cone,
However, if a state court does not articulate the reasoning behind its decision or fails to address the constitutional issues, the federal court must look at the state court’s decision and conduct an independent inquiry into whether the state court reached a decision contrary to clearly established federal law or based its decision on an unreasonable determination of the facts in light of the evidence presented.
Schoenberger v. Russell,
III. GROUNDS ONE AND TWO OF THE PETITION ARE WITHOUT MERIT
Ground One of the petition asserts that petitioner was denied due process when the Ohio Court of Appeals denied his motion for leave to appeal in the absence of record evidence that petitioner waived his right to appeal and his right to court appointed counsel for such appeal. In his motion for leave to file a delayed appeal, petitioner alleged the trial court failed to advise him of his right to appeal his sentence in accordance with Ohio Criminal Rule 32(A) and that his trial counsel incorrectly advised him that his agreed sentence was not appealable. (Doc. 10, Exhibit 7 at 2-3).
To the extent petitioner argues his rights were violated when the trial court failed to advise him of his appeal rights pursuant to Ohio Crim. R. 32,
4
this allegation of error fails to give rise to a cognizable constitutional claim subject to review in this federal habeas proceeding. A federal court may review a state prisoner’s habeas petition only on the ground that the challenged confinement violates the Constitution, laws or treaties of the United States, and not “on the basis of a perceived error of state law.” 28 U.S.C. § 2254(a);
Pulley v. Harris,
Likewise, to the extent petitioner claims that the Ohio Court of Appeals improperly denied his motion for delayed appeal under Ohio Appellate Rule 5(A),
*599
such a claim addresses a collateral matter that is unrelated to petitioner’s detention.
Korbel v. Jeffreys,
Nor does petitioner’s claim implicate federal constitutional concerns under the Due Process Clause. The decision to grant or deny a motion for leave to file a delayed appeal under Ohio App. Rule 5(A) is solely within the discretion of the Ohio Court of Appeals.
Granger v. Hurt,
In addition, the claims that petitioner was denied due process because he was not informed of his appeal rights and counsel mistakenly advised him he had no right to appeal his sentence are without merit. Although the Constitution does not require states to grant appeals as of right to criminal defendants seeking review of alleged trial errors, once a state does provide the right to appeal following a criminal conviction, the appeal process must comport with the Fourteenth Amendment’s guarantees of due process and equal protection.
Evitts v. Lucey,
In the instant case, petitioner argues that he was not informed of his appeal rights. He contends that the record does not reveal whether his attorney reviewed the elements of the charges against him and plea form with him and whether the court reviewed his psychological examination records to determine his mental ability to understand or comprehend the hearing. (Doc. 14 at 2).
Contrary to petitioner’s contention, the record reveals that petitioner signed a guilty plea agreement indicating he understood the nature of the charges against him, was satisfied with his attorney’s advice, counsel and competence, and was not under the influence of drugs or alcohol. (Doc. 10, Exhibit 2 at 2). The plea agreement also shows that petitioner had been advised of his right to appeal and of the time limit for filing an appeal:
I understand that my plea of guilty is a complete admission of my guilt of the charge(s) against me. I know the judge may either sentence me today or refer my case for a presentence report. I understand my right to appeal a maximum sentence; my other limited appellate rights, and that any appeal must be filed within SO days of my sentence.
(Doc. 10, Exhibit 2 at 2) (emphasis added). In addition, the guilty plea and sentencing transcript confirms that petitioner read, understood, and discussed with his counsel the guilty plea entry cited above. (Doc. 10, Exhibit 2, Exhibit 16 at 4, 8). Based on the above, it is clear that petitioner was informed and aware of his appellate rights.
See Warren v. Warden,
No. 1:06-cv-534,
Although petitioner suggests there were psychological or mental health reasons that his waiver was not knowing or voluntary, he fails to allege any facts whatsoever or present any evidence supporting this contention. His conclusory allegation to the contrary cannot support a claim for habeas corpus relief.
Petitioner also argues that even though his responsеs to the questions posed by the court during the plea hearing “appear[] to negate his allegations in the habeas petition” (Doc. 14 at 2), under the totality of the circumstances he did not voluntarily and knowingly waive his right to appeal. Petitioner cites to the “ritualistic litany of court questions” and his simple “yes” and “no” responses as somehow suggesting his waiver of his rights was not knowing and voluntary. Id.
As the Sixth Circuit has recognized under similar circumstances:
If we were to rely on [petitioner’s] alleged subjective impression rather than the record, we would be rendering the plea colloquy process meaningless, for any convict who alleges that he believed the plea bargain was different from that outlined in the record could withdraw his plea, despite his own statements during the plea colloquy (which he now argues were untruthful) indicating the opposite. This we will not do, for the plea colloquy process exists in part to prevent petitioners such as Ramos from making the precise claim that is today *601 before us. “[W]here the court has scrupulously followed the required procedure, the defendant is bound by his statements in response to that court’s inquiry.”
Ramos v. Rogers,
Petitioner also contends that he was denied the right to appeal by counsel’s ineffectiveness. Petitioner states that when he informed counsel of his view that the sentence was disproportionate and excessive, counsel mistakenly advised him that his sentence was not appealable under Ohio Rev.Code § 2953.08(D), Petitioner contends counsel failed to inform him an appeal could be taken under §§ 2953.08(A)(4) and (B) 6 if the sentence was “contrary to law.” (Doc. 10, Exhibit 7 at 2).
To establish a claim of ineffective assistance of counsel, petitioner must show: (1) his counsel made such serious errors that he was not functioning as the counsel guaranteed by the Sixth Amendment; and (2) his counsel’s deficient performance prеjudiced the defense by undermining the reliability of the result.
Strickland v. Washington,
Under the first prong of the
Strickland
test, petitioner must demonstrate that his counsel’s representation fell below an objective standard of reasonableness based on all the circumstances surrounding the case.
Id.
at 688,
Petitioner fails to establish the first prong of the Strickland test. Counsel’s advice that petitioner’s sentence was not appealable under Ohio Rev.Code § 2953.08(D) was not objectively unreasonable under the circumstances of this case because under Ohio law petitioner had no right to appeal a sentence that was imposed in accordance with the express terms of the parties’ plea agreement.
Under Ohio law, a sentence which is agreed to by both the prosecution and the defendant, authorized by law, and actually imposed by the sentencing judge is not subject to appellate review.
State v. Mathis,
In this case, the record does not reflect that petitioner’s aggregate 12 year sentence was unauthorized by law since it did not exceed the maximum terms permitted under the statutes of conviction. Petitioner’s sentences did not exceed the statutory maximum terms for his aggravated robbery and felonious assault convictions.
8
Thus, petitioner was not denied his constitutional right of appeal because Ohio Rev.Code § 2953.08(D) expressly precluded review of the agreed-to sentence authorized by Ohio law and imposed by the trial judge in this case.
See Chatman v. Wolfe,
No. 1:06-cv-280,
To the extent petitioner alleges his sentence was not “authorized by law” within the meaning of Ohio Rev.Code § 2953.08(D) because the trial court imposed non-minimum sentences in violation of his right to trial by jury under the Sixth and Fourteenth Amendments as asserted in Ground Two of the рetition (Doc. 3;
see also
Doc. 10, Exh. 11 at 4-10), this contention is likewise without merit. Petitioner argues that the Ohio Supreme Court’s decision in
State v. Foster,
In
State v. Foster,
the Supreme Court of Ohio held that several provisions of Ohio’s felony sentencing statute were unconstitutional pursuant to the Supreme Court’s decision in
Blakely v. Washington,
The reasoning of
Blakely
was extended by the Supreme Court to the United States Sentencing Guidelines in
United States v. Booker,
On February 27, 2006, the Ohio Sm preme Court in
State v. Foster,
When petitioner was sentenced in May of 2006,
Foster
had already been decided and was applicable to his sentencing. Thus, the trial judge had full discretion to impose non-minimum prison terms without the necessity of judicial fact-finding when he sentenced petitioner.
Foster,
Finally, petitioner argues that even if the trial court advised him of his appeal rights, his counsel still had a duty to inquire whether petitioner wanted him to file a timely appeal. (Doc. 14 at 2). Petitioner asserts he was denied the effective assistance of trial counsel because counsel failed to consult with him about an available appeal. To the extent that petitioner contends he is entitled to relief because his trial counsel failed to either consult with him about his appeal options or file a timely appeal on his behalf, his allegations are insufficient to give rise to an actionable claim in this habeas corpus proceeding.
In
Roe v. Flores-Ortega,
Petitioner has not demonstrated that his counsel’s conduct was ineffective to the extent counsel consulted with petitioner about an appeal. Petitioner has never indicated that he expressly instructed his trial attorneys to appeal his sentence as required under Roe. Indeed, although it is clear from the record that petitioner was informed of his right of appeal to be exercised within 30 days of sentencing, there is *605 no evidence in the record even remotely suggesting that petitioner ever conveyed to his counsel or the trial court his desire to exercise that right. Therefore, petitioner is unable to demonstrate that his trial counsel provided ineffective assistance by failing to file a timely appeal on his behalf.
In addition, petitioner has not shown that his counsel failed to consult him about an appeal where there is reason to think that a rational defendant would want to appeal. In deciding whether a rational defendant would want to appeal, a “highly relevant factor ... will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings.”
Roe,
Here, by virtue of the agreed-to sentence imposed by the trial court and the operation of Ohio Rev.Code § 2953.08(D), petitioner had no right to appeal a sentence authorized by law as explained above. Accоrdingly, it was not constitutionally ineffective assistance of counsel to conclude that a rational defendant in petitioner’s situation would not want to appeal an agree-to consecutive sentence under the circumstances of this case.
Finally, the record does not show that petitioner reasonably demonstrated his interest in appealing his conviction or sentence. Petitioner chose to enter a guilty plea to reduced charges in exchange for the imposition of an agreed-to 12 year prison term and the dismissal of other criminal charges. Although petitioner was informed of his right of appeal, there is no indication in the record that he ever expressed an interest in pursuing an appeal. Thus, petitioner has failed to show he reasonably demonstrated to trial counsel that he was interested in appealing.
Roe,
In the absence of any evidence indicating a rational defendant in petitioner’s circumstances would have wanted to appeal his conviction or sentence, petitioner has not demonstrated (1) that his counsel acted unreasonably to the extent he may not have consulted with petitioner about his appeal “options,” or (2) that he was “prejudiced” by such conduct to the extent no “reasonable probability [exists] that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed” his conviction or agreed-to sentence.
Cf. Roe,
Accordingly, the claims alleged in Grounds One and Two of the petition should be denied.
IV. GROUNDS THREE AND FOUR ARE WITHOUT MERIT.
In his third ground for relief, petitioner contends that his sentence violates the Ex Post Facto Clause “[b]ecause the judicial severance of Foster changes the actual terms of the statutes.... Because the Ex Post Facto Clause prohibits the State of Ohio from retroactively increasing these criminal penalties, [petitioner’s] sentence *606 must be reduced to thе lowest common denominator of six (6) years.” (Doc. 10, Exhibit 11 at 11-12). Petitioner’s fourth ground for relief asserts that he was deprived of due process of law based on the state’s failure to put him on notice that his sentence would be enhanced.
Petitioner’s ex post facto claim is without merit because it relies on the mistaken premise that petitioner was sentenced under the post-Fosier statutory scheme. As explained above, Ohio’s sentencing statute as revised by
Foster
was not applied to petitioner because there was an agreed sentence that was actually imposed by the trial court. Under these circumstances, there was no impermissible ex post facto effect on petitioner’s sentence.
Cf. Johnson v. Moore,
No. 1:07-cv-258,
In any event, petitioner cannot prevail on an ex post facto challenge to the
Foster
decision. Under the Ex Post Facto Clause оf the United States Constitution, a state is prohibited from passing a law that (1) “makes an action done before the passing of the law, and which was innocent when done, criminal;” (2) “aggravates a crime, or makes it greater than it was, when committed;” (3) “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed;” and (4) “alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of -the commission of the offense, in order to convict the offender.”
Rogers v. Tennessee,
Nevertheless, the Fourteenth Amendment’s Due Process Clause does limit
ex post facto
judicial decision-making.
Rogers,
Here, petitioner is unable to prevail on any claim that he lacked sufficient notice or “fair warning” because
Blakely, Booker,
and
Foster
did not change the elements necessary to convict petitioner of the aggravated robbery and felonious assault charges, and petitioner was aware of the potential penalties he faced on such charges both before and after
Foster.
*607
McGhee, supra,
Prior to Foster, the trial court made additional findings of fact consistent with Ohio Revised Code § 2929.14(C) and sentenced Petitioner to the maximum sentence available under Ohio Revised Code § 2929.14(A)(1): ten years. Under constitutional law as Ohio courts interpreted it at the time, Petitioner was not entitled to ... proof beyond a reasonable doubt as to the additional findings of fact required by Ohio Revised Code § 2929.14(C).
Now, Petitioner alleges that his due process rights were violated because he has a right to ... proof beyond a reasonable doubt under the new law arising from Foster. After Foster, the elements of the crime for which Petitioner was charged were unaffected.... Further, Petitioner’s claim of a right to ... trial by jury regarding sentencing factors lacks merit because, following Foster, the trial judge maintains discretion under Ohio Revised Code § 2929.14(A)(1) to impose a sentence in the range of three to ten years for a first degree felony based upon facts admitted by the defendant or found by a jury. Therefore, the statutory maximum for Apprendi purposes is ten years, as Petitioner believed it was before Foster.
Since the Foster decision does not change the elements necessary to convict Petitioner or the potential maximum sentence that Petitioner faced for a first degree felony, Foster does not raise an ex post /acio-type due process violation. Moreover, the trial judge’s application of Foster to Petitioner’s case did not violate Apprendi because he did not sentence Petitioner beyond the statutory maximum.
McGhee, supra,
The Court notes that both the federal district courts and Ohio courts have rejected
ex post facto
challenges to the Foster decision.
See, e.g., Rettig v. Jefferys,
Because this Court recommends that petitioner’s third and fourth grounds for relief be denied on the merits, the Court declines to address respondent’s contention that such claims are procedurally defaulted and waived.
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 3) be DENIED with prejudice.
2. A certificate of appealability should not issue with respect to the petition because petitioner has failed to make a substantial showing of the denial of a constitutional right based on these claims. See 28 U.S.C. § 2253(c); Fed. R.App. P. 22(b).
3. With respect to any application by petitioner to proceed on appeal
in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in “good faith,” and therefore DENY petitioner leave to appeal
in forma pauperis
upon a showing of financial necessity.
See
Fed. R.App. P. 24(a);
Kincade v. Sparkman,
Date: 2/24/09
Notes
. Petitioner concurs with the procedural history set forth in the return of writ. (Doc. 14 at 1). Therefore, the Court adopts that history and includes it herein verbatim.
. According to the entry of dismissal, Kelley was convicted on specifications three and four to counts 1, 3, 5, 7, 8 and 10. (Doc. 10, Exh. 3). At the plea proceeding, the court found Kellеy guilty of specification four to those charges. (Doc. 10, Exh. 16, Tr. 16). The latter finding was consistent with the judgment of entry. (Doc. 10, Exh. 4).
.Under case number B-0511137, Kelley pled guilty to and was convicted of one count of possession of drugs in the Hamilton County Common Pleas Court. (Doc. 10, Exhibit 5). Kelley was sentenced to six months incarceration to be served concurrent to the sentence in case number B-0510000-B. (Id., Case No. B-0511137).
. Rule 32 provides in relevant part, “After imposing sentence in a serious offense, the court shall advise the defendant of the defendant’s right, where applicable, to appeal or to seek leave to appeal the sentence imposed.” Ohio Crim. R. 32(B)(2).
. Ohio App. Rule 5 states in pertinent part that "[a] motion for leave to appeal shall be filed with the court of appeals and shall set forth the reasons for the failure of the appellant to perfect an appeal as of right....”
. Section 2953.08(A)(4) provides: “In addition to any other right to appeal and except as provided in division (D) of this section, a defendant who is convicted of or pleads guilty to a felony may appeal as a matter of right the sentencе imposed upon the defendant on one of the following grounds ... The sentence is contrary to law.”
Section 2953.08(B) provides for a right of appeal to a prosecuting attorney or similar chief legal officer and is inapplicable in petitioner’s case.
. Ohio Revised Code § 2953.08 provides in pertinent part:
*602 (D) 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 a sentencing judge.
. The aggravated robbery conviction carried a potential sentence of 3 to 10 years; petitioner was sentenced to 9 years. See Ohio Rev.Code § 2929.14(A)(1) ("For a felony of the first degree, the prison term shall be three, four, five, six, seven, eight, nine, or ten years.”) The felonious assault conviction carried a potential sentence of 2 to 8 years; petitioner was sentenced to 3 years. See Ohio Rev.Code § 2929.14(A)(2) ("For a felony of the second degree, the prison term shall be two, three, four, five, six, seven, or eight years.”).
. The undersigned acknowledges there is a contrary decision from the Columbus Division of this Court.
Sea Friley v. Wolfe,
. The circuit courts have uniformly rejected
ex post facto
challenges to the application of advisory sentencing guidelines to federal criminal defendants who committed crimes prior to
Booker. See, e.g., United States v. Barton,