                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0048n.06
                             Filed: January 18, 2005

                                           No. 03-4305

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


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



        Before: MERRITT, GIBBONS, and ROGERS, Circuit Judges.
        JULIA SMITH GIBBONS, Circuit Judge. Petitioner Elmer Ahart appeals from the

district court’s decision denying his petition for a writ of habeas corpus. He asserts the following:

(1) his habeas petition was timely; (2) he was denied the effective assistance of counsel when his

attorney filed an untimely notice of appeal; and (3) his right to a jury trial and right to plead not

guilty were violated by the trial court. For the following reasons, we affirm the judgment of the

district court.

                                                 I.

        In 1992, a grand jury indicted Ahart on three counts of aggravated murder and one count of

attempted aggravated murder. Each count carried a specification of the aggravating circumstances

that the offense involved the purposeful killing of two or more persons and a firearm specification.
Ahart v. Bradshaw, No. 03-4305

       Although Ahart initially pleaded not guilty to all counts, he later withdrew his not guilty plea

and entered a guilty plea as to all counts. The State of Ohio agreed not to pursue the death penalty

and to merge the firearm specifications into one specification. The capital specifications were not

deleted. A judge subsequently sentenced Ahart to twenty years to life on each of the three counts

of aggravated murder, ten to twenty-five years imprisonment for attempted aggravated murder, and

three years of actual incarceration for the firearm specification.

       On October 18, 1993, Ahart filed a notice of appeal to the Ohio Court of Appeals. The Ohio

Court of Appeals dismissed the appeal as untimely, because Ahart did not file the notice of appeal

within thirty days of judgment. Ahart did not appeal this decision. On November 24, 1993, Ahart

filed a motion for reconsideration. The Ohio Court of Appeals denied this motion.

       Ahart, proceeding pro se, moved to withdraw his guilty plea on August 20, 1999. The judge

denied this motion, and Ahart did not appeal from this decision.

       On October 26, 1999, Ahart, again proceeding pro se, filed a petition to reopen the appeal

with the Ohio Court of Appeals pursuant to Ohio Rule of Appellate Procedure 26(B). The appellate

court granted Ahart’s motion and, in doing so, vacated its previous order dismissing the case and

reopened the appeal. It also assigned a public defender to Ahart’s case.

       Ahart filed a brief raising three separate issues. They were: (1) whether the trial court erred

by convicting and sentencing Ahart for aggravated murder with capital specifications without

empaneling two additional judges pursuant to Ohio Criminal Rule 11(C) and Ohio Rev. Code §

2945.06; (2) whether the trial court violated Ahart’s liberty interest when it accepted the guilty plea

and sentenced Ahart without empaneling two additional judges; and (3) whether the trial court erred



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Ahart v. Bradshaw, No. 03-4305

when it convicted and sentenced Ahart even though he had not made a knowing, intelligent and

voluntary waiver of his right to a jury trial and right to plead not guilty. Thereafter, Ahart,

proceeding pro se, filed a motion to supplement his brief and raised two additional claims: there was

no waiver of a jury trial form, and he did not plead guilty to the crimes for which he was sentenced.

The Ohio Court of Appeals granted his motion to supplement.

       After hearing oral arguments, the Ohio Court of Appeals permitted the parties to file

supplemental briefs on the issue of jurisdiction. Ahart filed a brief setting forth two alternative

grounds for jurisdiction; first, Ahart argued that the appellate court properly used Ohio Appellate

Rule 26(B) to reopen his case, and alternatively, he argued that the appellate court implicitly granted

his request for a delayed appeal under Ohio Appellate Rule 5(A). The state filed a supplemental

brief arguing that there was no jurisdiction because Ahart did not file a timely notice of appeal.

       On September 28, 2001, the Ohio Court of Appeals affirmed the judgment of conviction and

sentence. It found that Ahart “failed to demonstrate that his prior appellate counsel was ineffective

for having failed to raise the” assignments of error. Ahart filed a motion to reconsider, which was

denied. Ahart also filed a notice of appeal and a memorandum in support of jurisdiction in the Ohio

Supreme Court. The Ohio Supreme Court denied leave to appeal, because it did not “involv[e] any

substantial constitutional question.”

       Ahart requested leave to appeal the appellate court’s denial of his motion to reconsider to

the Ohio Supreme Court; the Ohio Supreme Court denied the request. He then filed a motion for

reconsideration with the Ohio Supreme Court, which was denied. Ahart also petitioned for a writ

of certiorari in the United States Supreme Court; the petition was denied on October 7, 2002.



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       On September 6, 2002, Ahart, proceeding pro se, filed for a writ of habeas corpus in the

Northern District of Ohio. He raised the following claims for relief: (1) he was denied the right to

effective assistance of counsel when his counsel failed to file a timely notice of appeal; and (2) his

right to a jury trial and right to plead not guilty were violated when the trial court failed to hold an

Alford inquiry after he stated that he was not guilty.

       The case was referred to United States Magistrate Judge George Limbert for report and

recommendation pursuant to 28 U.S.C. § 636. He found that Ahart’s limitation period for filing a

habeas petition expired on April 24, 1997, and thus, because his petition was not filed until 2002,

it was barred as untimely. Even assuming that Ahart could overcome this, Magistrate Judge Limbert

found that neither of his grounds for relief had merit. He also determined that Ahart’s second

asserted ground for relief, the right to a jury trial and right to plead not guilty, were procedurally

defaulted because they were not advanced in the state courts.

       United States District Judge Peter Economus adopted the report and recommendation. He

additionally declined to issue a certificate of appealability.

       On April 20, 2004, this court granted a certificate of appealability as to three issues: (1)

whether the habeas petition was timely; (2) whether Ahart was denied the right to effective

assistance of counsel; and (3) whether Ahart’s right to a jury trial and right to plead not guilty were

violated when the trial court failed to hold an Alford inquiry.

                                                  II.

       In reviewing habeas corpus proceedings, this court reviews the district court’s disposition

de novo and the findings of fact for clear error. Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002).



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Ahart v. Bradshaw, No. 03-4305

Under AEDPA, an application for writ of habeas corpus should not be granted unless the previous

state court adjudication resulted in a decision that (1) “was contrary to . . . clearly established

Federal law, as determined by the Supreme Court of United States,” or (2) involved an

“unreasonable application of . . . clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d). The “contrary to” clause allows a federal habeas

court to grant the writ if the state court arrives at a conclusion opposite to that reached by the

Supreme Court on a question of law or facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

Under the “unreasonable application” clause, “a federal habeas court may grant the writ 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.” Id. at 413.

       Under AEDPA, a “1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. §

2244(d)(1). This limitation period begins to run from the “date on which the judgment became final

by the conclusion of direct review or the expiration of the time for seeking such review.” Id. A

person in custody can toll the limitations period with a “properly filed application for State post-

conviction or other collateral review.” Id. § 2244(d)(2). However, once the one-year period has

expired, state collateral review proceedings cannot “restart the clock” on this period. Vroman v.

Brigano, 346 F.3d 598, 602 (6th Cir. 2003) (quoting Rashid v. Khulmann, 991 F. Supp. 254, 259

(S.D.N.Y. 1998)).

       Ahart contends that his petition was timely because the Ohio Court of Appeals vacated its

1993 entry dismissing his appeal, and thus his “direct appeal was pending continuously from



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Ahart v. Bradshaw, No. 03-4305

October 18, 1993, when he filed the notice of appeal of his conviction and sentence, through October

7, 2002, when” the petition for a writ of certiorari to consider Ahart’s reopened appeal was denied

by the Supreme Court. Under Ahart’s interpretation, his habeas petition, filed on September 6,

2002, was timely. In contrast, the government asserts that Ahart’s conviction became final in 1993,

after the Ohio Court of Appeals denied reconsideration of the dismissal of his untimely appeal.

Ahart therefore had one year from the enactment of AEDPA, or until April 24, 1997, to file for a

writ of habeas corpus. Brown v. O’Dea, 187 F.3d 572, 577 (6th Cir. 1999), vacated on other

grounds, 530 U.S. 1257 (2000) (establishing that a “one-year grace period from the effective date

of AEDPA is applicable”).

       We need not resolve this dispute over the timeliness of Ahart’s petition. Assuming without

deciding that it was timely, Ahart’s petition fails on the merits.

                                                 A.

       Ahart argues that he was denied the effective assistance of counsel when his attorney failed

to file a timely notice of appeal from his conviction.

       Under the Sixth Amendment, criminal defendants have a right to effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). The Strickland test applies in

situations such as Ahart’s when there is a claim that “counsel was constitutionally ineffective for

failing to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). Thus, to succeed

on an ineffective assistance claim, a defendant must show that his counsel’s performance was

deficient and that it prejudiced his defense. Strickland, 466 U.S. at 687. A counsel’s performance

was deficient if it was objectively unreasonable under the circumstances. Id. at 688. It was



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prejudicial if “there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. For the purpose of ineffective

assistance claims, “[a] reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. In order to grant a habeas petition, the state court’s application of Strickland must

be objectively unreasonable. See 28 U.S.C. § 2254(d).

        Ahart argues that his counsel’s failure to file any appeal at all constituted ineffective

assistance. As a preliminary matter, it is not entirely clear that this issue was raised in the state

court. Ahart’s Rule 26(B) brief raised particular assignments of error, but did not specifically assert

that his counsel was ineffective for failing to file a timely appeal. Thus, it could be argued that

Ahart has not totally exhausted all his claims in the state court. See Rose v. Lundy, 455 U.S. 509,

518-20 (1982) (petition must be dismissed for lack of exhaustion if it contains an issue not presented

to state courts).

        However, Ahart did file a supplemental brief in support of the Ohio Court of Appeals’

jurisdiction in which he argued that the court could reopen his case because his “counsel’s

ineffectiveness caused the notice of appeal to be untimely.” Ahart therefore did present in some

form the idea that his counsel was ineffective for simply failing to file the timely appeal. The Ohio

Court of Appeals never addressed this issue, however, instead proceeding to an evaluation of

whether Ahart’s assignments of error constituted ineffective assistance of counsel.

        Because Ahart’s contention that his counsel was ineffective for not filing a timely appeal was

not addressed on the merits (assuming that he did fairly present it in the state court), we conduct a

de novo review of the issue. Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003).



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Ahart v. Bradshaw, No. 03-4305

        In Roe v. Flores-Ortega, the Supreme Court held that Strickland’s prejudice/performance

analysis applied to claims “that counsel was constitutionally ineffective for failing to file a notice

of appeal.” 528 U.S. at 477. The Court bifurcated the performance prong into two inquiries. First,

has the defendant instructed the attorney to file an appeal; if so, “[c]ounsel performs in a

professionally unreasonable manner only by failing to follow the defendant’s express instructions

with respect to an appeal.” Id. at 478. If the defendant and attorney have not consulted regarding

an appeal, counsel

        has a constitutionally imposed duty to consult with the defendant about an appeal
        when there is reason to think either (1) that a rational defendant would want to
        appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that
        this particular defendant reasonably demonstrated to counsel that he was interested
        in appealing.

Id. at 480.

        In Ahart’s brief, he argues that “[f]ailing to properly file a notice of appeal is, by itself,

deficient performance.” Roe expressly refutes this argument, and Ahart does not present any facts

suggesting that his counsel’s performance was deficient under the test laid out by the Supreme

Court. He does not allege that he expressly instructed counsel to file an appeal. Rather, the record

reflects that, in one of Ahart’s petitions to the Ohio Court of Appeals, he states that his attorney filed

the untimely notice of appeal “without ever bothering to notify his client in any way.” This suggests

that Ahart did not expressly instruct his attorney to file an appeal, and thus it was not per se

professionally unreasonable for his counsel not to file the appeal.

        The next question under Roe is whether Ahart’s attorney had a constitutionally imposed duty

to consult with Ahart about an appeal. There is nothing in the record to indicate that Ahart wanted



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Ahart v. Bradshaw, No. 03-4305

to appeal his guilty plea and sentence at that time. (Ahart now contends that he did want an appeal

filed; however, this does not bear on the current inquiry as it is not clear that he expressed this desire

in 1993.) The Supreme Court reasoned that

        a highly relevant factor in this inquiry 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. Even in cases when the defendant pleads guilty, the
        court must consider such factors as whether the defendant received the sentence
        bargained for as part of the plea and whether the plea expressly reserved or waived
        some or all appeal rights.

Id. In Ahart’s case, he entered into a plea agreement, which Roe suggests weighs against finding

a constitutionally imposed to duty to consult regarding the appropriateness of an appeal. As part of

that plea agreement, Ahart indicated that he understood the possible sentences to be life sentences

with the possibility of parole after twenty years on each of the three aggravated murder charges or

thirty full years of imprisonment on each count, three years of actual incarceration on the firearm

specifications, and ten to twenty-five years of imprisonment on the attempted murder charge, along

with various fines. Ahart received a sentence commensurate with what was indicated in the plea

agreement. The judge sentenced him to twenty years to life on each of the three counts of

aggravated murder, ten to twenty-five years of imprisonment for attempted aggravated murder, and

three years of actual incarceration for the firearm specification. Thus, he received the sentence for

which he bargained, a factor which weighs against finding that his counsel had a duty to consult with

him regarding an appeal. The plea agreement, however, did preserve Ahart’s right to appeal any

judgment of the court. Looking at the plea agreement in its entirety, we conclude that it was not

unreasonable for counsel not to consult with him about an appeal given that Ahart did receive what



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Ahart v. Bradshaw, No. 03-4305

he expected to receive by entering into the plea agreement.

       Also weighing in favor of finding that counsel’s performance was not deficient is the fact

that there were no nonfrivolous grounds for appeal. Ahart submitted three claims to the Ohio Court

of Appeals in his Rule 26(B) application that presumably he would have submitted had his notice

of direct appeal been timely. The first two claims asserted that the trial court erred by convicting

and sentencing him for aggravated murder with capital specifications without the two additional

judges necessary for the three-judge panel required under Ohio law. At the time Ahart entered into

the plea agreement, this was not the state of the law. Rather, State v. Griffin, 597 N.E.2d 1178, 1183

(Ohio. App. 1992), established that when a defendant agreed to forgo his right to a jury trial in

exchange for the prosecution’s agreement not to pursue the death penalty, the case could be heard

by a single judge. Griffin was not overruled until the Ohio Supreme Court issued its decision in

State v. Parker, 769 N.E.2d 846 (Ohio 2002). Thus, at the time Ahart would have appealed his

sentence, the law did not require that his case be heard by a three-judge panel. The fact that the law

may have changed in 2002 does not mean that Ahart had a nonfrivolous ground for appeal in 1993.



       Ahart’s third claim in arguing his reopened appeal was that the trial court erred when it

convicted and sentenced him even though he had not made a knowing, intelligent and voluntary

waiver of his right to a jury trial. The record shows that Ahart entered into his plea agreement in

a knowing and voluntary fashion; he signed the plea agreement and represented to the judge “that

this plea is freely and voluntarily made and not in any way coerced or induced.” Thus, this did not

constitute a nonfrivolous ground for appeal.



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Ahart v. Bradshaw, No. 03-4305

       Although “in the vast majority of cases . . . counsel ha[s] a duty to consult with the defendant

about an appeal,” Roe, 528 U.S. at 481, we conclude that it was not unreasonable for counsel not

to have consulted with Ahart about an appeal and not to have filed a timely notice of appeal. Ahart

entered into a plea agreement and received the sentence for which he bargained, and there were no

nonfrivolous grounds for appeal. Further, there is no indication that Ahart asked his attorney to file

an appeal. Counsel’s performance was therefore not deficient under the considerations outlined in

Roe, and Ahart’s claim that he received ineffective assistance of counsel fails.

                                                 B.

       Ahart also alleges that he was denied his rights to a jury trial and to plead not guilty when

the state trial court failed to conduct an Alford inquiry after he initially pleaded not guilty. The

magistrate judge, whose report and recommendations were adopted in full by Judge Economus,

concluded that Ahart never presented this “as a substantive claim in the state courts” and the claim

was procedurally defaulted because “it [did] not rest on the same theory as previously asserted in

the state courts.” Further, even if the claim had not been procedurally defaulted, the magistrate

judge concluded that Ahart entered his guilty plea in a knowing and voluntary fashion.

       “Under Ohio law, the failure to raise on appeal a claim that appears on the face of the record

constitutes a procedural default under the State’s doctrine of res judicata.” Wong v. Money, 142 F.3d

313, 322 (6th Cir. 1998). A claim must be “presented to the state courts under the same theory in

which it is later presented in federal court.” Id. A review of Ahart’s brief to the Ohio Court of

Appeals reveals that Ahart specifically asserted that (1) “the trial court erred when it convicted and

sentenced Mr. Ahart even though he had not made a knowing, intelligent and voluntary waiver of



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Ahart v. Bradshaw, No. 03-4305

his right to a jury trial and his right to plead not guilty”; and (2) “when a capital defendant states that

he is ‘not guilty,’ must the trial court conduct an Alford inquiry before accepting a guilty plea.”

Ahart argued that “[b]ecause the trial court failed to conduct an Alford inquiry, Mr. Ahart did not

waive of his Fifth, Sixth and Fourteenth Amendment rights to a [sic] plead not guilty and to have

a jury trial.” It therefore appears that Ahart did present this issue to the state court under the same

theory (violation of his federal constitutional rights) that he is currently advancing in his habeas

petition. The magistrate judge erred in finding procedural default.

        However, Ahart’s claim fails on the merits. The Ohio Court of Appeals concluded that

Ahart’s “argument that his plea was not voluntary in this regard is without merit” and that he “never

protested his innocence,” rendering an Alford plea unnecessary. These conclusions were neither

contrary to clearly established federal law, nor did they involve an unreasonable application of

federal law. See 28 U.S.C. § 2254(d). Alford applies to situations in which the defendant enters a

guilty plea but “is unwilling or unable to admit his participation in the acts constituting the crime.”

North Carolina v. Alford, 400 U.S. 25, 37 (1970). In Ahart’s case, he did not protest his innocence

as did the defendant in Alford; therefore, the Ohio Court of Appeals correctly concluded that the trial

court did not need to conduct an Alford inquiry. With regard to the validity of plea agreements, the

Supreme Court has held that they are valid if they are entered into voluntarily and intelligently.

Brady v. United States, 397 U.S. 742, 747 (1970). The voluntariness of a plea is measured by

“considering all of the relevant circumstances surrounding it.” Id. at 749. In this case, Ahart signed

a plea agreement indicating that he understood that he was waiving certain rights, that he could

receive certain sentences based on the plea, and that the plea was freely and voluntarily made. In



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Ahart v. Bradshaw, No. 03-4305

court, Ahart agreed with the judge “that this plea is freely and voluntarily made and not in any way

coerced or induced.” He sets forth no evidence that the government coerced his plea or obtained it

through threats. See id. at 750. Thus, the Ohio Court of Appeals correctly concluded that, under

governing law, his plea was voluntarily made.

                                                III.

       For the foregoing reasons, we affirm the district court’s denial of Ahart’s petition for a writ

of habeas corpus.




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