                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 15a0799n.06

                                            No. 14-4043                                  FILED
                                                                                   Dec 08, 2015
                           UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


LAVELLE JONES,                                             )
                                                           )
       Petitioner-Appellant,                               )
                                                           )
                                                                  ON APPEAL FROM THE
               v.                                          )
                                                                  UNITED STATES DISTRICT
                                                           )
                                                                  COURT FOR THE SOUTHERN
WARDEN, LEBANON CORRECTIONAL                               )
                                                                  DISTRICT OF OHIO
INSTITUTION,                                               )
                                                           )
       Respondent-Appellee.                                )



BEFORE: GRIFFIN and KETHLEDGE, Circuit Judges; and CLELAND, District Judge.*

       GRIFFIN, Circuit Judge.

       Petitioner Lavelle Jones seeks a writ of habeas corpus, contending that he was denied his

right to the effective assistance of counsel in connection with his decision to plead guilty to first-

degree kidnapping in an Ohio state court. The district court dismissed the petition for failure to

establish that the state appellate court’s determination of petitioner’s claim was an unreasonable

application of federal law. We agree and affirm.

                                                  I.

       Petitioner robbed a tanning salon with a BB-gun. State v. Jones, No. 09AP-700, 2010

WL 866126, at *1 (Ohio Ct. App. Mar. 11, 2010). Police arrested him not long after, and the

State of Ohio charged him with first-degree kidnapping and second- and third-degree robbery,

       *
         The Honorable Robert H. Cleland, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.
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each with a “repeat violent offender” specification. Id. at *1. Defendant pleaded guilty to the

charges. Id. at *1. According to the Ohio Court of Appeals, at the plea hearing,

       [a]fter the state recited the facts of the case, the trial court stated it had a
       “problem” with the kidnapping charge because the facts indicated that the victim
       was released without being harmed, which would reduce the kidnapping offense
       to a second-degree felony pursuant to R.C. 2905.01(C)(1). The prosecutor
       countered that the “safe place unharmed” issue was an affirmative defense to be
       raised at trial and also argued that the victim had suffered psychological harm.
       The court responded that, while appellant could waive the affirmative defense and
       plead guilty, the evidence simply did not show the necessary “elements” for a
       first-degree felony kidnapping offense, and the court did not believe
       psychological harm constituted harm. The state indicated it would proceed with
       the kidnapping offense being a first-degree felony. Appellant’s counsel
       responded he did not feel he could take the current case to trial because another
       case against appellant was outstanding. The trial court responded it still had a
       problem with the kidnapping charge because the state did not meet its burden, and
       the court indicated it would never find the offense to be a first-degree felony.
       However, the trial court accepted the guilty plea, but allowed briefing on the “safe
       place unharmed” issue, stating that, if psychological harm does not constitute
       harm, it would probably reduce the kidnapping offense to a second-degree felony
       on its own motion. Appellant then reiterated that he wished to plead guilty and
       that he understood all of the proceedings and ramifications.

                                          ***

       [At sentencing, t]he trial court and the parties then discussed whether the
       kidnapping offense was a first- or second-degree felony, and the court found that
       the phrase “safe place unharmed” related to physical harm and not psychological
       harm. However, the court found that the guilty plea had been to a first-degree
       felony and that the “safe place unharmed” affirmative defense, which would have
       reduced the offense to a second-degree felony, was waived by the plea. . . .

       The trial court then indicated that it would proceed with sentencing. At that point,
       appellant’s counsel moved to withdraw appellant’s guilty plea, asserting that he
       had been ineffective in his representation of appellant, although counsel admitted
       he would not be seeking withdrawal of the plea if the legal rulings would have
       been in appellant’s favor. The trial court denied the motion, finding that appellant
       should have sought to withdraw his plea before the legal rulings, and there was no
       basis to withdraw a plea based upon a legal determination.
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Id. at *1–2 (paragraph notations omitted). The trial court sentenced petitioner to an aggregate

term of nineteen years in prison. Id. at *2.

       Petitioner appealed his conviction to the Ohio Court of Appeals, claiming that his “guilty

plea was not given knowingly, voluntarily, and intelligently, in that trial counsel rendered

ineffective assistance of counsel in violation of appellant’s rights under the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution . . . .” Id. The state court of appeals

rejected this claim and affirmed his convictions. Id. at *3–4. The Ohio Supreme Court denied

Jones’ motion for a delayed appeal. State v. Jones, 965 N.E.2d 310 (Ohio 2012) (table). Jones

also filed a motion to reopen his appeal, which the Ohio Court of Appeals denied, State v. Jones,

No. 09AP-700 (Ohio Ct. App. Aug. 9, 2012), and the Ohio Supreme Court declined to hear his

appeal, State v. Jones, 978 N.E.2d 911 (Ohio 2012).

       Jones then filed a petition for a writ of habeas corpus in federal district court, asserting

six grounds for relief, one of which is relevant to this appeal: whether trial counsel’s ineffective

assistance resulted in an invalid guilty plea. The warden filed a motion to dismiss the petition on

statute of limitations grounds. After holding an evidentiary hearing on the circumstances of

petitioner’s untimeliness, the magistrate judge issued a report recommending that petitioner be

entitled to equitable tolling because petitioner’s appellate counsel failed to inform him of the

Ohio Court of Appeals decision affirming his convictions.          The district court adopted the

recommendation over respondent’s objections.

       Respondent then filed an answer, arguing that petitioner’s ineffective assistance of

counsel claim was procedurally defaulted and, alternatively, failed on the merits. Specifically,

respondent contended that petitioner failed to fully exhaust his state court remedies because he

did not file a timely appeal in the Ohio Supreme Court.           Respondent further argued that

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petitioner could not invoke ineffective assistance of appellate counsel as cause for his failure

because he did not exhaust that claim in state court as well. The magistrate judge agreed with

respondent that petitioner failed to “present [his claim] to the Ohio Supreme Court in a timely

fashion,” but concluded that petitioner “arguabl[y]” exhausted his ineffective assistance of

appellate counsel claim by raising it in his motion for delayed appeal in the Ohio Supreme Court.

Noting the “substantial uncertainties” surrounding the exhaustion issue, the magistrate judge

elected to address the merits of petitioner’s claims.

       Regarding the merits, the magistrate judge agreed with respondent and recommended that

the petition be dismissed for failure to demonstrate that the state court’s adjudication was an

unreasonable application of Supreme Court case law or based on an unreasonable determination

of the facts. The district court adopted the magistrate judge’s recommendation and dismissed the

petition. The district court granted petitioner’s request for a certificate of appealability, limited

to the issue “[w]hether counsel provided ineffective representation which resulted in an

involuntary and unknowing plea[.]”        This court denied petitioner’s motion to expand the

certificate. Jones v. Warden, Lebanon Corr. Inst., No. 14-4043 (6th Cir. May 1, 2015).1

                                                 II.

       Standard of Review. “We review the district court’s habeas decision de novo.” Lowe v.

Swanson, 663 F.3d 258, 260 (6th Cir. 2011). We look to the decision of “the last state court to

issue a reasoned opinion on the issue” raised in a habeas petition. Loza v. Mitchell, 766 F.3d

466, 473 (6th Cir. 2014), cert. denied sub nom. Loza v. Jenkins, 135 S. Ct. 2892 (2015)

       1
         Petitioner’s brief on appeal includes a perfunctory claim that his conviction violates his
right to a jury trial under Apprendi v. New Jersey, 530 U.S. 466 (2000). This issue is outside the
scope of the certificate of appealability and is therefore not properly before us. White v.
Mitchell, 431 F.3d 517, 536 (6th Cir. 2005).

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(alteration omitted). In this case, that court is the Ohio Court of Appeals, which addressed and

rejected the claim presented here on the merits. Because the Ohio Supreme Court dismissed

Jones’ appeal with a one-sentence order, we presume that its decision rested on the same

grounds. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one

reasoned state judgment rejecting a federal claim, later unexplained orders upholding that

judgment or rejecting the same claim rest upon the same ground.”).

       Procedural Bars. Respondent contends that petitioner’s claim is barred by the statute of

limitations and the requirement that he exhaust all his federal claims in state court. See 28

U.S.C. §§ 2244(d)(1), 2254(b)(1). This court is not required to address either issue before

reaching and rejecting the petitioner’s appeal on the merits. Mahdi v. Bagley, 522 F.3d 631, 635

(6th Cir. 2008), as amended (July 7, 2008) (“[F]ederal courts are not required to address a

procedural-default issue before deciding against the petitioner on the merits.”) (internal quotation

marks omitted); see also Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004) (stating that

“[§ 2244(d)]’s one-year statute of limitations is not jurisdictional”). This is especially so when

the issues are complicated and unnecessary to the disposition of the case. Mahdi, 522 F.3d at

635; see also Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (“Judicial economy might counsel

giving the [merits] question priority, for example, if it were easily resolvable against the habeas

petitioner, whereas the procedural-bar issue involved complicated issues of state law.”). This

case presents just such an occasion, see ID 741–41 (noting the “substantial uncertainties”

surrounding petitioner’s ineffective assistance of appellate counsel issue).        Therefore, we

proceed to the merits of petitioner’s claim.

       The Merits. A federal court’s authority to issue a writ of habeas corpus with respect to a

state prisoner is governed by 28 U.S.C. § 2254. That statute prevents a federal court from

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granting habeas corpus relief based on any claim “adjudicated on the merits” in state court,

subject to the exceptions in § 2254(d)(1) and (2). Relevant here is § 2254(d)(1)’s exception for

claims adjudicated in state court that “involved an unreasonable application of . . . clearly

established Federal law, as determined by the Supreme Court of the United States[.]” Id.

§ 2254(d)(1); see also Mitchell v. Mason, 325 F.3d 732, 738 (6th Cir. 2003) (stating that we

apply the “unreasonable application” prong of § 2254(d)(1) to ineffective assistance of counsel

claims).

       Under the “unreasonable application” clause of § 2254(d)(1), habeas relief is available if

“the state court identifies the correct governing legal principle from the Supreme Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Hill v.

Curtin, 792 F.3d 670, 676 (6th Cir. 2015) (en banc) (alteration omitted). “In order for a federal

court to find a state court’s application of Supreme Court precedent ‘unreasonable,’ the state

court’s decision must have been more than incorrect or erroneous,” but rather must have been

“so lacking in justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Id. (alteration omitted).

       The federal law at issue in this case is the standard first announced in Strickland v.

Washington, 466 U.S. 668 (1984), for determining whether a criminal defendant received

constitutionally ineffective assistance of counsel. Under Strickland’s two-prong test, a person

challenging his counsel’s representation must show (1) deficient performance, i.e., that

“counsel’s representation fell below an objective standard of reasonableness” and (2) prejudice.

See id. at 687–88, 691–92. To establish prejudice, a challenger must demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694. In the context of conviction by guilty plea, “the defendant must

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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). Put differently, a defendant challenging his attorney’s conduct during a plea bargaining

“must show that his lawyer’s deficiency was a decisive factor in his decision to plead guilty.”

Pough v. United States, 442 F.3d 959, 966 (6th Cir. 2006) (internal quotation marks omitted).

       To obtain habeas relief on an ineffective assistance of counsel claim, a petitioner must

establish that the state court’s decision constitutes an unreasonable application of both Strickland

prongs. Cullen v. Pinholster, 563 U.S. 170, 190 (2011). As a corollary, “if it is easier to dispose

of an ineffectiveness claim on the ground of lack of sufficient prejudice,” we need not analyze

the performance prong. Baze v. Parker, 371 F.3d 310, 321 (6th Cir. 2004) (alteration omitted)

(citing Strickland, 466 U.S. at 697). Here, it is unnecessary to address the performance prong

because Jones falls short of establishing that the state appellate court’s prejudice determination

involved an unreasonable application of federal law.

       The Ohio Court of Appeals addressed Strickland’s prejudice prong as follows:

       Here, we cannot find that the result would have been different had appellant’s trial
       counsel halted the change of plea hearing when a question was raised regarding
       the first-degree kidnapping count and the RVO specifications. Trial counsel
       candidly admitted at the change of plea hearing that he was “stuck” with pleading
       to what he “probably” believed was wrong, but he did not have any other option
       because he felt he could not take the case to trial. In discussing his weak
       bargaining power with the state, appellant’s counsel stated, “[w]e all know why,
       because there’s another case circling this case.” The other case was what was
       “driving” the present case, counsel stated, and there were “other forces” that put
       him in a “bind.” Appellant also told the court at the hearing that he considered a
       trial, but it was “not a fight I want to, I want to pick.” The difficulty of
       appellant’s situation was also compounded by the state’s persistent refusal to
       voluntarily amend the charges and strike a plea based upon the same issues
       discussed by the trial court. Appellant’s counsel stated at the change of plea
       hearing “I would love to do a lot of things, but the State of Ohio has said no to

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       virtually everything.” Counsel stated, “I have asked to resolve it. The State of
       Ohio has blanket said, no, forget it. Here are your choices. Trial, which presents
       significant problems and exposure for my client in front of twelve people, or
       plea.” The state reiterated at the hearing that it wished to proceed according to the
       charges in the indictment despite the questions surrounding the kidnapping charge
       and the RVO specifications. It was clear that appellant’s counsel and appellant
       both agreed that taking these charges to trial was not a viable option. Given these
       circumstances, we cannot find that the outcome would have been any different
       even if appellant’s counsel would have halted the change of plea hearing.
       Appellant would likely have entered a guilty plea because of the other pending
       case. . . .

Jones, 2010 WL 866126, at *4. Petitioner’s sole challenge to this application of Strickland’s

prejudice prong is that the court ignored the Supreme Court’s holding in United States v.

Dominguez Benitez, 542 U.S. 74, 80 (2004), that when reviewing the voluntariness of the plea,

“a reviewing court must look to the entire record, not to the plea proceedings alone[.]”

Petitioner’s argument is unconvincing for several reasons.

       First, it was not an unreasonable application of federal law to give more weight to

petitioner’s contemporaneous expressions of unwillingness to proceed to trial—in the context of

the trial court inquiring whether he wished to pursue a trial on the affirmative defense, no less—

than a subsequent repudiation made after an adverse ruling and an opportunity to second-guess

the decision. See McGowan v. Burt, 788 F.3d 510, 517 (6th Cir. 2015), cert. denied 2015 WL

5176490 (Nov. 2, 2015) (mem.) (“[C]onsonant with Strickland’s cautionary note about a

defendant’s natural tendency to second-guess his attorney’s assistance after an adverse judgment,

the state court scrutinized [the petitioner’s] asserted misunderstanding in light of what was said

at the time he rejected the plea offer without the distorting effects of hindsight.”) (internal

quotation marks omitted); see also Hodges v. Colson, 727 F.3d 517, 539 (6th Cir. 2013) (“A self-

serving statement . . . filed as a required part of [the petitioner’s] verified petition for post-


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conviction relief, cannot establish a reasonable probability that [he] would have pled not guilty

but for the advice of counsel, where all objective evidence points unequivocally to the

contrary.”).

       Second, Dominguez Benitez is of little help to petitioner because a holistic review of the

record in this case shows that the Ohio Court of Appeals reasonably concluded that petitioner

failed to establish a reasonable probability that he would have rejected the plea and proceeded to

trial. In addition to trial counsel’s statements on the record regarding petitioner’s aversion to

trial (documented by Ohio Court of Appeals above), petitioner made the following statements on

the subject:

       THE COURT: Now, by pleading guilty you are waiving, you are giving up all of
       those very, very important rights. In effect what you are saying is, Judge, I do not
       want a trial. I do not want to contest these . . . charges. I don’t want to force [the
       prosecutor] to prove me guilty because I’m willing to admit my guilt. Is that what
       you want to do?
       THE DEFENDANT: Yes.
       THE COURT: You’ve got to be sure.
       THE DEFENDANT: I’ve thought about it, it’s not a fight I want to, I want to
       pick.
                                               ***
       THE COURT: Very good. All right. Is it your desire to enter a plea of guilty
       today, give up all your rights, including your right to have a jury trial on these
       issues?
       THE DEFENDANT: Yes, sir. I thought about having a trial before you, but it’s
       not a fight I want to take.
                                               ***
       THE COURT: Very well. Now, anybody forced you to plead guilty here?
       THE DEFENDANT: Really didn’t have a choice, Your Honor.
       THE COURT: Oh, you always have a choice.


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       THE DEFENDANT: No, I didn’t have a choice. I had–
       THE COURT: If you don’t have a choice, I’m not taking your plea.
       THE DEFENDANT: Let me put it to you this way. I don’t want to go to trial, so
       yes, this is my voluntary action.
       Even taking into account the sentencing hearing—which petitioner faults the Ohio Court

of Appeals for failing to consider—the only evidence petitioner cites is his counsel’s statement

that “I talked to [Jones] and, you know, he agreed based on my advice to plead to the

indictment.” However, the transcript of the plea hearing shows that counsel’s advice was to

plead guilty to something he “probably believe[d] [was] wrong”—i.e., to plead to first-degree

kidnapping despite knowing he could make a case for second-degree kidnapping at trial—

because of the extenuating circumstances petitioner faced at that time. Counsel never indicated

at the sentencing hearing that Jones pleaded guilty based on a misunderstanding of the “safe

place unharmed” concept. Thus, the evidence petitioner cites does not demonstrate a reasonable

probability that, but for counsel’s erroneous advice regarding the potential affirmative defense,

“he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at

59.

       Given petitioner’s repeated assurances on the record that he considered going to trial but

decided it was “not a fight [he] want[ed] to take,” we cannot conclude that the Ohio Court of

Appeals’ determination that petitioner failed to established prejudice was “so lacking in

justification that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Hill, 792 F.3d at 676.

       We affirm.




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