NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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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No. 09-4573
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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No. 09-4573
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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