                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0261n.06
                                                                                             FILED
                                            No. 09-4573
                                                                                        Mar 08, 2012
                           UNITED STATES COURT OF APPEALS                         LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

JEROME HALL,                                          )
                                                      )
       Petitioner-Appellant,                          )       ON APPEAL FROM THE
                                                      )       UNITED STATES DISTRICT
v.                                                    )       COURT FOR THE NORTHERN
                                                      )       DISTRICT OF OHIO
MARGARET BRADSHAW, Warden,                            )
                                                      )
       Respondent-Appellee.                           )
                                                      )



       BEFORE: GIBBONS, GRIFFIN, and DONALD, Circuit Judges.


       PER CURIAM. Jerome Hall, an Ohio prisoner, appeals the district court’s denial of his

petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254. We affirm.

       In 2005, Hall pleaded guilty to selling or offering to sell between 25 and 100 grams of crack

cocaine, in violation of Ohio Rev. Code § 2925.03, with a firearm specification. The plea agreement

provided that Hall would be sentenced to consecutive terms of nine years for the drug conviction and

three years for the firearm specification, for a total of 12 years of imprisonment. Prior to entering

his plea, Hall pleaded guilty in federal court to being a felon in possession of a firearm and was

sentenced to 70 months of imprisonment. At the plea hearing, Hall asked why he could be charged

in state and federal court for multiple offenses arising from possession of the same firearm. The trial

court explained that the offenses were different and that, under the dual sovereignty doctrine,

individuals can be prosecuted by both the state and federal governments for the same offense

conduct. Hall stated that he understood and proceeded to enter his plea.
No. 09-4573
Hall v. Bradshaw

        At the sentencing hearing, Hall’s attorney urged the trial court to make Hall’s 12-year

sentence run concurrent with his federal sentence, noting that Hall was not carrying a firearm at the

time of his arrest and was receiving a much longer sentence than his co-defendant. The state

countered that a consecutive sentence was warranted in light of Hall’s criminal history and offense

conduct. The trial court ordered Hall’s sentence to run consecutively to his federal sentence, citing

Hall’s record and the need to protect the public. At the time that Hall was sentenced, Ohio law

provided that a state prison term should be served concurrently with any other state or federal prison

term, see Ohio Rev. Code § 2929.41(A), but that the trial court could order consecutive sentences

if it made certain findings, including a need to protect the public or punish the offender, see Ohio

Rev. Code § 2929.14(E)(4) (2004).

        On direct appeal, Hall argued, through counsel, that his plea was involuntary because the trial

court failed to fully advise him of the penalties for the firearm specification and of certain facts

concerning post-release control, and that he was entitled to resentencing in light of State v. Foster,

845 N.E.2d 470 (Ohio 2006). In a supplemental pro se brief, Hall argued that his trial counsel was

ineffective for not objecting to the firearm specification, failing to “nail down” in the plea agreement

whether his state sentence would be consecutive to or concurrent with his federal sentence, and

failing to inform him that he would receive a consecutive sentence. The Ohio Court of Appeals

affirmed. State v. Hall, No. 87059, 2007 WL 274372 (Ohio Ct. App. Feb. 1, 2007), appeal denied,

867 N.E.2d 846 (Ohio 2007). Hall then moved to withdraw his plea, arguing that he would not have

pled guilty had he known that the trial court would impose a consecutive sentence and that he was

not properly advised of the consequences of his plea. The trial court denied the motion, the Ohio

Court of Appeals affirmed, and the Ohio Supreme Court denied discretionary review.

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No. 09-4573
Hall v. Bradshaw

        In his habeas petition, Hall raised four claims: 1) his guilty plea was involuntary because the

trial court did not advise him of certain constitutional rights; 2) he was entitled to resentencing under

Foster; 3) his trial counsel was ineffective; and 4) his motion to withdraw his guilty plea should have

been granted. The district court analyzed Hall’s first and fourth claims as a single claim alleging that

his plea was involuntary because he was not properly advised that his state and federal sentences

could be ordered to run consecutively. The district court concluded that relief was not warranted

because there was no evidence that the trial court, the prosecutor, or defense counsel promised Hall

that his sentences would be ordered to run concurrently. For the same reason, the district court

concluded that Hall had failed to establish that his trial counsel was ineffective. Finally, the district

court concluded that Hall’s second claim lacked merit in light of Oregon v. Ice, 555 U.S. 160, 169-

70 (2009), which held that sentencing courts may rely on judicial fact-finding to impose consecutive

sentences. The district court granted a certificate of appealability as to Hall’s first and third grounds

for relief, “to the extent that those claims allege that Hall’s plea was not knowing or voluntary and

that his trial counsel was ineffective because the court and counsel failed to inform and/or misled

Hall regarding whether his state sentence could be imposed consecutively to his federal sentence.”

        In a § 2254 proceeding in which the district court relies on the facts determined in state court,

we review the district court’s decision de novo. See Holder v. Palmer, 588 F.3d 328, 337 (6th

Cir. 2009). A federal court may grant a writ of habeas corpus to a state prisoner with regard to a

claim that the state court adjudicated on the merits only if 1) the state court’s decision 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) the state court’s decision “was based on an unreasonable

determination of the facts in light of the evidence presented” in state court.               28 U.S.C.

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Hall v. Bradshaw

§ 2254(d)(1), (2). State court findings of fact are presumed correct and may be disturbed only if the

petitioner shows by clear and convincing evidence that they are incorrect. 28 U.S.C. § 2254(e)(1).

        A guilty plea is valid if it “represents a voluntary and intelligent choice among the alternative

courses of action open to the defendant.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citation omitted).

The defendant must have a full understanding of the “direct consequences” of pleading guilty,

including the maximum sentence to which he is exposed. Ruelas v. Wolfenbarger, 580 F.3d 403,

408 (6th Cir. 2009) (quoting Brady v. United States, 397 U.S. 742, 755 (1970)).

        Hall argues that his guilty plea was involuntary because the trial court failed to inform him

that his state sentence could be made consecutive to his federal sentence. We have held, however,

that “whether a federal sentence runs consecutive to or concurrent with a state sentence is not

considered a direct consequence of the plea.” United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.

1990); see also Wilson v. McGinnis, 413 F.3d 196, 200 (2d Cir. 2005) (concluding that habeas relief

was not warranted based on the trial court’s failure to inform the defendant that he could receive a

consecutive sentence). Accordingly, the fact that the trial court did not expressly inform Hall that

his state sentence could be made consecutive to his federal sentence did not render his plea

involuntary. The state court’s rejection of this claim was neither contrary to, nor an unreasonable

application of, clearly established federal law.

        Hall also argues that his trial counsel was ineffective for failing to advise him that he could

be subject to consecutive sentences. A defendant claiming ineffective assistance of counsel in

connection with a guilty plea must demonstrate: 1) that his counsel’s performance was deficient,

and 2) “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 57-59. The record does not

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Hall v. Bradshaw

support Hall’s claim that his trial attorney failed to inform him of the possibility that he could receive

consecutive sentences. At sentencing, Hall’s attorney and Hall himself urged the trial court to make

his state sentence concurrent with his federal sentence, indicating that both were aware that the trial

court had the discretion to impose a consecutive or a concurrent sentence. Accordingly, the state

court’s rejection of Hall’s ineffective-assistance-of-counsel claim was reasonable.

        Finally, although Hall challenges the district court’s rejection of his claim that the imposition

of consecutive sentences based on judicial fact-finding violated his Sixth Amendment rights, neither

the district court nor this court granted a certificate of appealability on this claim. Appellate review

is limited to the issues specified in the certificate of appealability. See 28 U.S.C. § 2253(c); Seymour

v. Walker, 224 F.3d 542, 561 (6th Cir. 2000). Moreover, the district court correctly held that relief

on this claim is foreclosed by the Supreme Court’s decision in Ice.

        For these reasons, we affirm the district court’s judgment.




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