Render v. Warden, Southern Ohio Correctional Facility (889 F. Supp. 2d 1014, 2012)

United States District Court for the Southern District of Ohio 2012-08-22

Citations

Full opinion text

OPINION AND ORDER

S. ARTHUR SPIEGEL, Senior District Judge.

This matter is before the Court on the Magistrate Judge’s June 29, 2011 Report and Recommendation (doc. 25), Respondent’s objections (doc. 32), and Petitioner’s objections (doc. 33). Also before the Court are Petitioner’s Motion to Stay Proceedings Pending Appeal (doc. 34), Petitioner’s Notice of Correction (doc. 35), and Respondent’s Objection to the Motion to Stay (doc. 36). Finally, the Court has also reviewed Petitioner’s Motion to Amend/Correct his Petition (doc. 38), Respondent’s Response in Opposition (doc. 39), and Petitioner’s Reply (doc. 40). For the reasons indicated herein, the Court ADOPTS and AFFIRMS the Magistrate Judge’s Report and Recommendation as to Grounds One to Three and Five to Seven, and thus DENIES Petitioner’s Petition on such grounds WITH PREJUDICE (doc. 5). However, the Court DECLINES to certify to the Ohio Supreme Court the double jeopardy question presented in Ground Four. The Court further DENIES Petitioner’s Motion to Stay (doc. 36), and his Motion to Amend/Correct (doc. 38).

I. BACKGROUND

On July 1, 2005, the Hamilton County, Ohio, Grand Jury returned a four-count indictment charging Petitioner with one count of resisting arrest in violation of Ohio Rev.Code § 2921.33(C)(2), two counts of having weapons while under disability in violation of Ohio Rev.Code § 2923.13(A), and one count of carrying a concealed weapon in violation of Ohio Rev.Code § 2923.12(A) (doc. 25).

The Magistrate Judge provided a thorough review of the facts and the procedural posture of this matter, which the Court incorporates by reference and will not reiterate here. Essentially, after being arrested and indicted, Petitioner entered a plea of no contest to all charges. Upon finding Petitioner had “made a knowing, intelligent and voluntary waiver” of his constitutional rights, the trial court accepted Petitioner’s no-contest plea and found petitioner guilty as charged.

On April 27, 2006, the court sentenced Petitioner to an aggregate prison term of eight years. Specifically, Petitioner was sentenced to concurrent prison terms of eighteen (18) months for resisting arrest, five (5) years for each weapons-under-disability offense, and eighteen (18) months for carrying a concealed weapon; he also was sentenced to a three (3) year prison term on the firearm specification attached to the resisting-arrest count, which was to be served consecutively to the sentence imposed for the underlying offense.

Petitioner appealed his conviction to the First District Court of Appeals claiming the trial court erred to the prejudice of Defendant-Appellant by not granting his motions to suppress, by finding him guilty of resisting arrest, and by sentencing him on both “having weapons under disability” counts.

The Ohio Court of Appeals overruled Petitioner’s assignments of error and affirmed the trial court’s judgment. One judge dissented from the majority concerning petitioner’s separate convictions on two counts of having weapons under disability.

Petitioner filed a pro se notice of appeal to the Ohio Supreme Court asserting the same claims of error that had been presented to the Ohio Court of Appeals. The Ohio Supreme Court denied petitioner leave to appeal. Petitioner’s subsequent attempts to challenge his sentence also eventually all failed.

Petitioner next filed the instant Petition, in September 2010, alleging seven grounds for relief (doc. 1). On June 28, 2011, the Magistrate Judge issued her Report and Recommendation, concluding the Court should certify the question presented in Ground Four to the Ohio Supreme Court, but should deny the Petition on all of the other asserted grounds (doc. 25). Petitioner filed objections to the R & R concerning Grounds One through Three and Five through Seven (doc. 33). Respondent filed objections, and argues that the double jeopardy claim in Ground Four should not be stayed pending certification of a question to the Ohio Supreme Court (doc. 32). Instead, Respondent requests the petition as to such ground be granted and that the Court order Petitioner returned to the State Court so that the two weapon-under-disability convictions can be merged (Id.).

On September 1, 2011, Petitioner moved to stay proceedings pending appeal, claiming he has appealable issues yet to be resolved at the state level (doc. 34). Respondent opposes this motion, explaining that Petitioner does not, however, meet the legal requirements for a stay as his grounds for relief have all been exhausted (doc. 36).

On April 3, 2012, Petitioner moved to amend his habeas petition in order “to conform to the procedural requirements mentioned in the Writ of habeas corpus and add [an evidentiary claim based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)]” to his petition (doc. 38). Respondent opposes this motion, explaining that not only has Petitioner not shown good cause for this proposed amendment, but that the claim Petitioner seeks to add is procedurally defaulted (doc. 39).

This case is now ripe for decision.

II. LEGAL STANDARD

Any dispositive report and recommendation by a magistrate judge is subject to de novo review “of those portions of the report or specified proposed findings or recommendations to which objection is made.” Tuggle v. Seabold, 806 F.2d 87, 92 (6th Cir.1986); 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, the district court shall not grant a petition for a writ of habeas corpus on any claim that was adjudicated on the merits in state court unless the state court’s adjudication of the claim: (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).

Ordinarily, a state prisoner must first exhaust their available state court remedies before seeking habeas relief by fairly presenting all their claims to the state courts. 28 U.S.C. § 2254(b), (c); Rhines v. Weber, 544 U.S. 269, 274, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005); Wilson v. Mitchell, 498 F.3d 491, 498 (6th Cir.2007). Normally, the exhaustion requirement is satisfied after the petitioner fairly presents all his claims to the highest court in the state in which the petitioner fairly presents all his claims to the highest court in the state in which the petitioner was convicted, thus giving the state a full and fair opportunity to rule on the petitioner’s claims before he seeks relief in federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Wilson, 498 F.3d at 498-499; Deitz v. Money, 391 F.3d 804, 808 (6th Cir.2004).

Both the factual and legal basis for the claim must have been presented to the state courts in order to be considered “fairly presented.” Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir.2006). The Sixth Circuit has identified four actions that a petitioner can take which are significant to the determination of whether he has properly asserted both the factual and legal basis for his claim: “(1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law.” Whiting v. Burt, 395 F.3d 602, 613 (6th Cir.2005) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.2000)).

III. ANALYSIS

A. The Fourth Amendment Claim in Ground One is Barred From Federal Habeas Review.

In Ground One of the petition, Petitioner alleges that he is entitled to habeas relief because the trial court erred in refusing to suppress evidence that was seized when he was stopped by the police without “reasonable suspicion or probable cause,” in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. In the return of writ filed in response to the petition, Respondent contends that the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precludes federal habeas review of petitioner’s claim stemming from the denial of his suppression motion and the state court’s adjudication of the Fourth Amendment issues raised in that motion (doc. 14).

In her Report and Recommendation, the Magistrate Judge rejects Petitioner’s claim as to Ground One, concluding it is barred from review under the Supreme Court’s Stone decision. The Magistrate Judge found that federal habeas review of Ground One is prohibited because Petitioner was provided a full and fair opportunity in the state courts to litigate the claim, and the presentation of the claim was not thwarted by any failure of the State’s corrective process (doc. 25).

Having reviewed this claim de novo this Court agrees with the Magistrate Judge’s assessment that Petitioner was provided a full and fair opportunity in the state courts to litigate his Fourth Amendment claim and the presentation of the claim was not thwarted by any failure of the State’s corrective process.

B. The Claim in Ground Two, Alleging that Petitioner’s Statements To The Police Were Obtained in Violation of Petitioner’s Fifth Amendment Rights Lacks Merit.

In Ground Two of the petition, Petitioner alleges that he is entitled to habeas relief because the trial court should have suppressed statements he made to the police “under duress” after he was shot, which were obtained in violation of his Fifth Amendment Rights (doc. 5). The Magistrate Judge explains, that under 28 U.S.C. § 2254(e)(1), Petitioner bears the burden of rebutting the presumption of correctness to be accorded the state court’s factual determinations with clear and convincing evidence (doc. 25). The only evidence that Petitioner has presented to contradict the state court’s findings is his own self-interested contradictory account of his police interrogation (Id.). Such testimony is insufficient to constitute “clear and convincing evidence” rebutting the trial court’s assessment of the witnesses’ credibility in favor of Officer Miller (Id.).

For this reason, this Court accepts the Magistrate Judge’s conclusion and finds that Petitioner is not entitled to habeas relief based on the claim alleged in Ground Two of the petition challenging the denial of his suppression motion on Fifth Amendment grounds.

C. Petitioner Waived the Claim in Ground Three When He Knowingly and Voluntarily Entered a No-Contest Plea.

In Ground Three of the amended petition, Petitioner claims that his conviction and sentence for resisting arrest cannot stand because the evidence is insufficient to support the criminal charge (doc. 5). Respondent argues in the return of writ that Petitioner waived the claim of error when he entered his plea of no contest to the count as charged in the indictment (doc. 14).

This Court agrees with Respondent’s argument. By forfeiting his right to a jury trial as well as his rights to confront adverse witnesses and to present evidence in his defense, Petitioner waived any objection to the sufficiency of the evidence. See Post v. Bradshaw, 621 F.3d 406, 426-427 (6th Cir.2010). This Court affirms the Magistrate Judge’s conclusion regarding Ground Three and finds that Petitioner is not entitled to habeas relief based on the claim alleged in Ground Three of the petition challenging the sufficiency of evidence supporting his conviction for resisting arrest.

D. The Ineffective Assistance of Appellate Counsel Claims Alleged in Grounds Five Through Seven of the Amended Petition Lack Merit.

In Grounds Five through Seven of the amended petition, Petitioner alleges that his appellate counsel was ineffective because she did not assert three ineffective assistance of trial counsel claims as assignments of error on direct appeal (doc. 5). However, a writ of habeas corpus may not issue with respect to petitioner’s ineffective assistance of appellate counsel claims, which were adjudicated on the merits by the state courts, unless the state court’s adjudication “either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law ... or (2) resulted in a decision that was based on an unreasonable determination of facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d).

The state appellate court correctly identified and reasonably applied the clearly established two-part standard of review enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a violation of federal law, petitioner must demonstrate both (1) his attorney on direct appeal made such serious errors that his attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment; and (2) counsel’s deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052.

This Court agrees with the Magistrate Judge’s opinion that: (1) The state appellate court was reasonable in determining both that Petitioner’s trial counsel acted well within the wide range of reasonable professional assistance in counseling Petitioner to enter a no-contest plea to the charges and that his appellate counsel was not deficient in failing to raise a claim on direct appeal challenging trial counsel’s conduct in that matter; and (2) Petitioner has not demonstrated that his trial counsel acted unreasonably in advising him to plead no contest to those charges, or that his appellate counsel was ineffective in failing to raise an ineffective assistance of trial counsel claim on direct appeal based on such conduct. Finally the Court agrees that, (3) Petitioner has not demonstrated that his trial or appellate counsel was ineffective in failing to raise a Blakely/Foster claim challenging the sentence that was imposed (doc. 25).

E. A Conditional Writ of Habeas Corpus in Regards to Ground Four of his Amended Complaint is Granted to Petitioner.

In Ground Four of the petition, Petitioner alleges that he was punished multiple times for the same offense in violation of the Fifth Amendment’s Double Jeopardy Clause when the trial court failed to merge the two weapons-under-disability counts for sentencing purposes in accordance with Ohio’s multiple-count statute.

In the Report and Recommendation, the Magistrate Judge has recommended this issue be certified to the Ohio Supreme Court because:

Ohio Rev.Code § 2941.25, as interpreted by the Ohio Supreme Court in [State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999) ], could be reasonably construed at the time petitioner’s conviction became final in 2007 as permitting a “strict textual comparison” of the elements and a finding that the two weapons-under-disability charges brought against petitioner are of dissimilar import and thus not subject to merger under the allied offense statute; or whether, conversely, at the time petitioner’s conviction became final in 2007, the proper construction of Ohio Rev. Code § 2941.25 required a finding that the two offenses are of similar import in accordance with the subsequent clarification in [State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 181 (Ohio 2008) ] of the Ranee “abstract elements comparison test,” as well as ... ensuing [Ohio Supreme Court] decisions.

However, in Respondent’s objection, Respondent clearly and accurately explains that justice will be best served in this case by granting a writ of habeas corpus to Petitioner on Ground Four (doc. 32). Because the question “seeks to clarify the application of [Ranee]” and Ranee has since been overruled by the Ohio Supreme Court in 2010, the resolution of the question to be certified would shed no light on the fate of other defendants because of the unique factors in this case (including the timing of the decision).

Here, Respondent is objecting to the R & R only to ask the court grant the writ (doc. 32). Respondent concedes that “conviction and sentencing for both counts ... presents a federal double jeopardy violation” and that Petitioner “should be granted habeas relief on the double-jeopardy question.” Id. This Court accepts Respondent’s position that because the two convictions were to run concurrently the length of Petitioner’s total term of incarceration remains the same. Also, this Court agrees with Respondent that resolution of the question proposed for certification would shed no light on the fate of other Ohio defendants facing the same dilemma as Petitioner because the test in Ranee is no longer used and any analysis given by the Ohio Supreme Court on this issue could only reasonably be used as applied to the facts of this case (Id.). Certifying this question would therefore not be a prudential use of judicial resources, especially considering both Petitioner and Respondent agree a writ should be granted to Petitioner on this issue.

Because of these factors, this Court therefore grants the writ of habeas corpus to the Petitioner and orders this matter returned to the state court so that the two weapon under disability convictions can be merged.

IV.Petitioner’s Objections to the R & R

Petitioner, in his objection to the Report and Recommendation, reiterates his claims, but makes no new legal analysis nor does he proffer any new legal argument based on anything detailed in the Report and Recommendation (doc. 83). As explained by the Magistrate Judge in the Report and Recommendation, the inquiry is “not meant to be a case by case review of state court determinations,” but rather “is a review of whether the state provided an adequate mechanism to address Petitioner’s, claims.” (doc. 25). This Court finds that the state provided an adequate mechanism in addressing Petitioner’s claims, that did not result in a decision that was contrary to, or involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; nor that (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. Therefore this Court overrules Petitioner’s objections to the Report and Recommendation concerning Grounds One through Three and Five through Seven.

V. MOTION TO STAY PROCEEDINGS

On September 1, 2011, Petitioner moved to stay proceedings pending appeal (doc. 34). However, as Respondent accurately explains in its opposition to the motion, stays are “limited to unexhausted — yet potentially meritorious — claims.” (doc. 36).

Petitioner has not submitted any unexhausted claims, and the R & R did not find any of Petitioner’s claims relevant to the petition unexhausted (doc. 25, doc. 36). Therefore this Court DENIES the Petitioner’s motion to stay proceedings pending appeal.

VI. MOTION TO AMEND

On April 3, 2012, Petitioner moved for leave to amend his petition (doc. 38). Respondent opposes this motion because Petitioner has proeedurally defaulted on the Brady claim he wished to add to his petition, and that “although [Petitioner] bears the burden of doing so, [he] has shown neither cause and prejudice nor a miscarriage of justice as would excuse the procedural default” (doc. 39).

This Court finds that Petitioner provides no viable reason justifying amendment of his petition at this time and has given no justification why the claim he seeks to add should not be proeedurally defaulted.

VII. CONCLUSION

Having reviewed this matter de novo the Court finds the Magistrate Judge’s Report and Recommendation as to Grounds One through Three and Five through Seven thorough, well-reasoned, and correct. Accordingly the Court ADOPTS and AFFIRMS such Report and Recommendation (doc. 25) as to such grounds. As such, the petition for writ of habeas corpus filed by Petitioner pursuant to 28 U.S.C. § 2254, as amended (docs. 5, 18), is DENIED with prejudice, except for Ground Four of the Petition (doc. 5). The Court GRANTS a conditional writ of habeas corpus as to Ground Four and DIRECTS the Clerk to remand this matter to the Hamilton County, Ohio, Court of Common Pleas for further proceedings consistent with this decision. The Court further DENIES. Petitioner’s Motion to Stay (doc. 36), and his Motion to Amend/Correct (doc. 38).

The Court DECLINES to issue a certificate of appealability with respect to the claims alleged in Grounds One through Three of the petition and Grounds Five through Seven of the amended petition, as there is an absence of a substantial showing that Petitioner has stated a “viable claim of the denial of a constitutional right” or that the issues presented are “adequate to deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473, 475, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)); see also 28 U.S.C. § 2253(c); Fed.R.App. P. 22(b).

With respect to any application by Petitioner to proceed on appeal informa pauperis, this Court CERTIFIES pursuant to 28 U.S.C. § 1915(a)(3) that any appeal of this order adopting the Report and Recommendation to deny with prejudice any claims for relief, except Ground Four, would not be taken in “good faith,” and therefore, this Court DENIES petitioner leave to appeal in forma pauperis with respect to those claims upon any showing of financial necessity. See Fed.R.App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir.1997).

SO ORDERED.

REPORT AND RECOMMENDATION

STEPHANIE K. BOWMAN, United States Magistrate Judge.

Petitioner, who is currently incarcerated at the Southern Ohio Correctional Facility in Lucasville, Ohio, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition, which the undersigned has allowed petitioner to amend by separate Order issued this date (Docs. 5, 18); respondent’s return of writ with exhibits (Doe. 14); and petitioner’s reply to the return of writ (Doc. 23).

I. PROCEDURAL HISTORY

State Trial Proceedings

On July 1, 2005, the Hamilton County, Ohio, grand jury returned a four-count indictment charging petitioner with one count of resisting arrest in violation of Ohio Rev.Code § 2921.33(C)(2), two counts of having weapons while under disability in violation of Ohio Rev.Code § 2923.13(A), and one count of carrying a concealed weapon in violation of Ohio Rev.Code § 2923.12(A); firearm specifications were attached to the resisting-arrest and weapons-under-disability charges. (Doc. 14, Ex. 2). In its direct appeal decision, the Ohio Court of Appeals, First Appellate District, provided the following summary of the facts that led to petitioner’s indictment based on evidence introduced at a pretrial suppression hearing:

____[Ojfficers working with the regional Drug Abuse Reduction Team (“DART”) were monitoring an apartment for drug and drug-related activity when two men were seen leaving. The apartment was located in “a high drug trafficking area.” The DART officers radioed Corey H[a]ll, a uniformed Forest Park police officer. They gave a description of the two men and asked Officer H[a]ll to approach them and obtain identification. As Officer H[a]ll approached, but before speaking to the men, he noticed that they smelled of alcohol and burnt marijuana. He also noticed that the men had beer on their persons. When Officer H[a]ll reached the men, he asked them for identification. Render refused to produce it and began making furtive movements toward his waist. He became verbally abusive and profane toward the officer. He then fled to the other side of Officer H[a]ll’s cruiser. Render’s hands were not visible, and the officer was concerned that Render might be armed. Officer H[a]ll pursued Render around his cruiser several times, ordering him to stop.

The officer testified at the suppression hearing that he had attempted to use his Taser to stop Render, but the record is unclear whether the Taser prongs struck Render. The record does indicate that Render went down at this point. But immediately after the officer had turned the comer of the cmiser to apprehend Render, he saw Render pointing a loaded revolver at the officer’s head. Officer H[a]ll retreated to the rear of the cruiser, and Render moved to the front. Officer H[a]ll continued to order Render to stop and to show his hands. Render then ran from the cruiser.

As the pursuit continued, the officer continued to order Render to stop. Render yelled back, “Fuck you, I’m not going to jail.” At this point, Render’s hands were still not visible. When Render spun to face the officer, the officer fired. Render was struck and fell.

Even after he had fallen, Render’s hands were not visible. When Officer H[a]ll approached him, he refused to remove his hands from his pockets. Render was eventually subdued and arrested. The officer discovered that the item Render was grabbing in his pocket was a cellular phone. The gun Render had pointed at the officer was found under the cruiser. H[a]ll testified that the entire incident had occurred in under one minute.

(Doc. 14, Ex. 12, pp. 2-3).

With the assistance of his trial counsel, petitioner filed a pretrial motion “to suppress all evidence resulting from the seizure of the Defendant” on the ground that “the seizure was warrantless and not supported by probable cause to believe that the Defendant was engaged in the commission of any criminal offense.” (Doc. 14, Ex. 3). Counsel later filed an amended suppression motion to include an additional request for suppression of “any and all statements attributed to the Defendant, including but not limited to audio-taped statements, during his interrogation by police officers and other agents of the State” on the ground that the “statements were obtained in violation of Mr. Render’s right to counsel and were not voluntarily made.” (Doc. 14, Ex. 4).

A hearing was held on April 10, 2006 on the suppression motions. At that hearing, Corey Hall testified on behalf of the State, and the defense called the following witnesses to testify on petitioner’s behalf: petitioner; Darlene Miller, a Forest Park detective who participated in petitioner’s interrogation after his arrest; and Kelly McGuire, petitioner’s companion who witnessed the altercation between petitioner and Officer Hall. (Doc. 14, April 10, 2006 Hearing Tr.). After hearing the witnesses’ testimony and counsels’ arguments, the trial court denied the “motion to suppress in its entirety both with regard to any of the evidence, the stop, as well as the statements that were made.” (Doc. 14, Tr. 110).

Later that same day, petitioner entered a plea of no contest to all charges. (Doc. 14, Ex. 7 & Tr. 112, 114-16). Before accepting the no-contest plea, the court engaged in a colloquy with petitioner to ensure that petitioner understood the nature of the charges; the effect of his plea; the maximum penalties that could be imposed; and the rights that he was giving up, including the right to a jury trial where “the prosecutor would have to prove [petitioner] guilty beyond a reasonable doubt of every element of the crime with which [he was] charged.” (Doc. 14, Tr. 116-30). Upon finding petitioner had “made a knowing, intelligent and voluntary waiver” of his constitutional rights, the trial court accepted petitioner’s no-contest plea and found petitioner guilty as charged. (Doc. 14, Tr. 130-32).

On April 27, 2006, petitioner was sentenced to an aggregate prison term of eight (8) years. (Doc. 14, Ex. 8). Specifically, petitioner was sentenced to concurrent prison terms of eighteen (18) months for resisting arrest, five (5) years for each weapons-under-disability offense, and eighteen (18) months for carrying a concealed weapon; he also was sentenced to a three (3) year prison term on the firearm specification attached to the resisting-arrest count, which was to be served consecutively to the sentence imposed for the underlying offense. (Doc. 14, Ex. 8).

State Direct Appeal Proceedings

With the assistance of new counsel for appeal purposes, petitioner timely appealed to the Ohio Court of Appeals, First Appellate District, raising the following assignments of error:

1. The trial court erred to the prejudice of Defendant-Appellant by not granting his motion to suppress [on the ground that the initial stop and continuing detention of Defendant-Appellant was illegal, and all evidence seized should have been suppressed].

2. The trial court erred to the prejudice of Defendant-Appellant by not granting his motion to suppress [on the ground that DefendanU-Appellant’s statement should have been suppressed, as it was illegally obtained].

3. The trial court erred to the prejudice of Defendant-Appellant by finding him guilty of resisting arrest.

4. The trial court erred to the prejudice of Defendant-Appellant by sentencing him on both having weapons under disability counts.

(Doc. 14, Exs.9-10).

On April 6, 2007, 2007 WL 1029201, the Ohio Court of Appeals issued an Opinion overruling petitioner’s assignments of error and affirming the trial court’s judgment. (Doc. 14, Ex. 12). One of the judges on the three-judge appellate panel wrote a separate opinion concurring in part, but dissenting from the majority’s decision to overrule the fourth assignment of error and uphold petitioner’s separate convictions on two counts of having weapons under disability when petitioner only “had one gun.” (Doc. 14, Ex. 12, pp. 10-11).

Petitioner filed a pro se notice of appeal to the Ohio Supreme Court. (Doc. 14, Ex. 13). In his memorandum in support of jurisdiction, petitioner asserted the same claims of error that had been presented to the Ohio Court of Appeals. (Doc. 14, Ex. 14). On September 26, 2007, 115 Ohio St.3d 1411, 873 N.E.2d 1316 (2007), the Ohio Supreme Court denied petitioner leave to appeal and summarily dismissed the appeal “as not involving any substantial constitutional question.” (Doc. 14, Ex. 15).

Application To Reopen The Appeal

On July 6, 2007, during the pendency of his appeal to the Ohio Supreme Court from the Ohio Court of Appeals’ direct appeal decision, petitioner filed a timely pro se application to reopen the appeal with the Ohio Court of Appeals, First Appellate District. (Doc. 14, Ex. 16). In the application filed pursuant to Ohio R. App. P. 26(B), petitioner alleged that his appellate counsel “rendered constitutionally ineffective assistance” because she did not argue on appeal that his trial attorney was ineffective in inducing him to enter no-contest pleas to charges that were not supported by sufficient evidence and in failing to challenge the constitutionality of his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (Ohio 2006). (Doc. 14, Ex. 16).

The Ohio Court of Appeals initially overruled petitioner’s reopening application on the ground that it was barred from review by res judicata because the claims could have been raised to the Ohio Supreme Court in the direct review proceedings. (Doc. 14, Ex. 18). However, on further appeal to the Ohio Supreme Court, the state’s highest court reversed the appellate court’s judgment on the authority of State v. Davis, 119 Ohio St.3d 422, 894 N.E.2d 1221 (Ohio 2008), and remanded the matter to the court of appeals “for further proceedings consistent with State v. Davis.” (See Doc. 14, Exs. 18, 22).

On April 28, 2009, the Ohio Court of Appeals issued a second decision upon reconsideration of petitioner’s reopening application in light of Davis. The court again overruled the application, but on the ground that petitioner had “failed to sustain his burden of demonstrating a genuine issue as to whether he had a colorable claim of ineffective assistance of appellate counsel.” (Doc. 14, Ex. 23). Petitioner timely appealed that decision to the Ohio Supreme Court, which summarily dismissed the appeal “as not involving any substantial constitutional question” on August 26, 2009. (Doc. 14, Ex. 26).

Additional State Post-Conviction Proceedings

On May 24, 2010, approximately nine months after the reopening proceedings concluded, petitioner filed a petition for post-conviction relief with the trial court, claiming that he was denied due process by the- State’s failure to disclose police reports. (Doc. 14, Ex. 27). Upon review of the Hamilton County Clerk’s online docket records pertaining to petitioner’s case (found at www.courtclerk.org, under Case No. B0506298), it appears that the trial court overruled the post-conviction petition on July 26, 2010, and that the Ohio Court of Appeals dismissed petitioner’s appeal from that ruling on December 29, 2010. The docket further reflects that petitioner filed a notice of appeal and motion for delayed appeal on March 4, 2011. Although the delayed appeal motion still appears to be pending in the state courts, 'petitioner does not pursue relief in this federal habeas proceeding based on any claim raised in his state post-conviction petition or delayed appeal motion, but rather on claims that were exhausted in the state direct appeal and reopening proceedings.

Federal Habeas Corpus

Petitioner commenced the instant habeas corpus action in September 2010. He alleges the following grounds for relief in the petition, as amended:

Ground One: Motion to suppress. The State did not have a reasonable suspicion or probable cause to stop Defendant.

Ground Two: Statement by Defendant was in violation of United States Fifth Amendment where Defendant was under duress from being shot by police.

Ground Three: Defendant should not have been convicted of resisting arrest in violation of the Due Process and Equal Protection Clauses of the U.S. where charge was insufficient.

Ground Four: The two weapons under disability counts should have been merged for sentencing.

Ground Five: Appellate counsel renders constitutionally ineffective assistance of counsel on appeal where the attorney fails to cite trial counsel’s deficient performance in inducing appellant to plead no contest to the charge of resisting arrest where he could not have been convicted at trial by bench or jury.

Ground Six: The ineffective assistance of appellate counsel is manifest where such counsel failed to cite trial counsel’s ineffectiveness by inducing appellant to plead no contest to the weapons under disability offenses where the indictment and evidence [were] insufficient to establish that appellant was the same person named in the prior convictions.

Ground Seven: Appellate counsel as a matter of law is ineffective where [s]he failed to assign as error in the court of appeals trial counsel’s failure to allocate appellant’s sentence but rather allowed the trial court to make and use judicial factfinding to impose both maximum and consecutive sentences in this case contrary to the form and substance of [Foster ] and [Blakely ].

(Doc. 5, pp. 5, 6, 8, 9; Doc. 18, “Petitioner’s Second Amended Petition”).

II. OPINION

A. The Fourth Amendment Claim In Ground One Is Barred From Federal Habeas Review

In Ground One of the petition, petitioner alleges that he is entitled to habeas relief because the trial court erred in refusing to suppress evidence that was seized when he was stopped by the police without “reasonable suspicion or probable cause,” in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. (See Doc. 5, p. 5). In the return of writ filed in response to the petition, respondent contends that the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precludes federal habeas review of petitioner’s claim stemming from the denial of his suppression motion and the state courts’ adjudication of the Fourth Amendment issues raised in that motion. (Doc. 14, Brief, pp. 8-10).

As respondent has argued, the Supreme Court held in Stone that federal habeas courts are prohibited from addressing the merits of Fourth Amendment claims brought by state prisoners if the prisoner had a full and fair opportunity to litigate such a claim in the state courts and the presentation of the claim was not thwarted by any failure of the State’s corrective process. Stone, 428 U.S. at 494-95, 96 S.Ct. 3037. The Sixth Circuit has developed a two-step inquiry in assessing whether Stone applies to preclude federal habeas review of Fourth Amendment claims. Riley v. Gray, 674 F.2d 522, 526 (6th Cir.1982); see also Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir.2000). Under that inquiry, the federal habeas corpus court must determine (1) whether the State has provided a procedural mechanism through which, in the abstract, the petitioner could raise a Fourth Amendment claim, and (2) whether the petitioner’s presentation of the Fourth Amendment claim was in fact frustrated because of a failure of that mechanism. Id.

In Riley, the Sixth Circuit held that by providing for the filing of a pretrial motion to suppress and the opportunity to directly appeal any ruling denying a suppression motion, Ohio has a mechanism in place for the resolution of Fourth Amendment claims, which “is, in the abstract, clearly adequate.” Riley, 674 F.2d at 526; see also Loza v. Mitchell, 705 F.Supp.2d 773, 860 (S.D.Ohio 2010). Therefore, the determination whether Stone applies turns solely on the resolution of the second Riley inquiry. See Hillman v. Beightler, No. 5:09cv2538, 2010 WL 2232635, at *5 (N.D.Ohio May 26, 2010) (O’Malley, J.).

Courts have consistently held that the “relevant inquiry” in resolving the second question posed in Riley is whether the “habeas petitioner had an opportunity to litigate his claims, not whether he in fact did so or even whether the Fourth Amendment claim was correctly decided” by the state courts. Wynne v. Renico, 279 F.Supp.2d 866, 892 (E.D.Mich.2003) (citing Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir.1996)).

As long as a state prisoner has had an opportunity to litigate his Fourth Amendment claims by means of procedures that are “suitably crafted” to test for possible Fourth Amendment violations, a federal habeas court does not have the power, under Stone, to “second-guess the accuracy of the state courts’ resolution of those claims.” ... Thus, a “mistaken outcome” of a suppression hearing that has been conducted in a state trial court, standing alone, does not deny a habeas petitioner’s opportunity to fully and fairly litigate his Fourth Amendment claims.... Thus, even “potentially meritorious Fourth Amendment claims” are barred by Stone on habeas review if the petitioner had a full and fair opportunity to litigate his claims in the state courts.

Id. (quoting Sanna v. Dipaolo, 265 F.3d 1, 8-9 (1st Cir.2001), and Deputy v. Taylor, 19 F.3d 1485, 1491 (3rd Cir.1994)); see also Hillman, supra, 2010 WL 2232635, at *5 (quoting Cabrera v. Hinsley, 324 F.3d 527, 531-32 (7th Cir.2003)) (“Absent a subversion of the hearing process, we will not examine whether the judge got the decision right.... ‘[F]ull and fair’ guarantees the right to present one’s case, but it does not guarantee a correct result.”); Brown v. Berghuis, 638 F.Supp.2d 795, 812 (E.D.Mich.2009) (and cases cited therein) (“Under Stone, ... the correctness of the state courts’ conclusions is simply irrelevant.”).

The Sixth Circuit has stated that the second Riley inquiry is “not meant to be a case by case review of state court determinations,” but rather “is a review of whether the state provided an adequate mechanism to address Petitioner’s Fourth Amendment claims.” Abdul-Mateen v. Hofbauer, No. 98-2323, 2000 WL 687653, at *3 (6th Cir. May 19, 2000). In AbdulMateen, the court recognized that an exception was carved out in Riley for “egregious error in the application of fourth amendment principles” amounting to a refusal by the state courts to consider or apply controlling Supreme Court precedents. See id. (quoting Riley, 674 F.2d at 526, in turn citing Gamble v. Oklahoma, 583 F.2d 1161 (10th Cir.1978)). In Riley, the Sixth Circuit explained that when an “egregious error” of such “magnitude and nature” is present, as it was in Gamble, “a federal habeas court might be justified in concluding that an opportunity for a full and fair hearing had not been afforded the petitioner.” Riley, 674 F.2d at 526 (emphasis added). In a subsequent decision, the Sixth Circuit rejected a petitioner’s argument that an egregious misapplication of a controlling Supreme Court precedent also could justify such a conclusion. Gilbert v. Parke, 763 F.2d 821, 824 (6th Cir.1985). The court reasoned: “This court in Riley declined to adopt the portion of Gamble permitting federal review of egregious substantive errors committed by state courts on Fourth Amendment claims.... Since the [state] courts provided Gilbert a full and fair opportunity to litigate his Fourth Amendment claims, second-guessing the [state] Supreme Court on the merits would be inconsistent with Stone.” Id.

Here, as in Gilbert, the record does not reflect the magnitude or type of “egregious error” referred to in Riley as possibly justifying a finding that the opportunity for a full and fair hearing was thwarted. Cf. Bergholz v. McMackin, No. 89-3740, 1990 WL 223036, at *3 (6th Cir. Dec. 27, 1990) (per curiam) (in ruling that Stone foreclosed the petitioner’s Fourth Amendment claim, the Sixth Circuit pointed out that “even if the state courts were in error in applying substantive law regarding ‘seizures’ under the Fourth Amendment, the state courts did not refuse to follow applicable precedent”). Indeed, on the contrary, it appears clear from the record that petitioner was able to fully and fairly litigate his claim of a Fourth Amendment violation in the state courts.

First, petitioner was able to present his claim to the trial court by way of a suppression motion, which he was allowed to amend and supplement. (See Doc. 14, Exs. 3-5). Before ruling on the motion, the trial court held a hearing where defense counsel was provided the opportunity to cross-examine the State’s witness, to present witnesses on petitioner’s behalf, and to assert arguments in support of the suppression motion. (Doc. 14, April 10, 2006 Hearing Tr. 12-105).

Second, after the trial court denied the suppression motion and petitioner entered his no-contest plea, petitioner was able to challenge the trial court’s decision on direct appeal to the Ohio Court of Appeals and Ohio Supreme Court. Specifically, on appeal, petitioner argued that the evidence seized during the “investigatory stop” should have been suppressed because the police officer lacked “probable cause” or “any reasonable, articulable suspicion” to stop and detain him. (Doc. 14, Ex. 10, pp. 2-3; Ex. 14, pp. 7-12). The Ohio Court of Appeals carefully considered and rejected this argument, finding that (1) Officer Hall “did not need probable cause or reasonable suspicion” when he initially approached petitioner and asked for his identification; (2) the “ensuing encounter and chase did not amount to a Fourth Amendment violation” because petitioner “never submitted to the authority of Officer H[a]ll prior to abandoning the gun;” and (3) even if the Fourth Amendment was implicated when Hall “deployed his Taser,” the officer had “reasonable suspicion to justify a ‘stop’” given that petitioner “had just left a building being investigated for drug-related activity ... in a ‘high drug activity area’ ” and “immediately became hostile and uncooperative, made suspicious movements around his waist area, and fled.” (Doc. 14, Ex. 12, pp. 5-7). Although the Ohio Supreme Court denied petitioner leave to appeal and summarily dismissed the appeal that followed the state appellate court’s decision, it did so apparently because it was not persuaded by petitioner’s memorandum in support of jurisdiction that the claim merited further consideration. (Doc. 14, Ex. 15).

Accordingly, in sum, the undersigned concludes that the claim alleged in Ground One of the petition, challenging the denial of petitioner’s motion to suppress evidence seized in violation of the Fourth Amendment, is barred from review under the Supreme Court’s Stone decision. Federal habeas review of Ground One is prohibited because petitioner was provided a full and fair opportunity in the state courts to litigate the claim, and the presentation of the claim was not thwarted by any failure of the State’s corrective process. Cf. Stone, 428 U.S. at 494-95, 96 S.Ct. 3037.

B. Petitioner Waived The Claim In Ground Three Challenging The Sufficiency Of Evidence Supporting His Conviction For Resisting Arrest When He Knowingly And Voluntarily Entered A No-Contest Plea To The Offense Charged In The Indictment

In Ground Three of the petition, petitioner claims that his conviction and sentence for resisting arrest cannot stand because the evidence is insufficient to support the criminal charge. (Doc. 5, p. 8). Respondent argues in the return of writ that petitioner waived the claim of error when he entered his plea of no contest to the count as charged in the indictment. (Doc. 14, Brief, pp. 10-12). Respondent’s argument has merit.

A guilty or no-contest plea involves a waiver of many substantial constitutional rights, including the right to a trial by jury where the State has the burden of proving the defendant’s guilt beyond a reasonable doubt, the right to confront adverse witnesses, and the right to present evidence in one’s defense. Fautenberry v. Mitchell, 515 F.3d 614, 636 (6th Cir.2008) (citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). The undersigned has reviewed the transcript of petitioner’s plea hearing held on April 10, 2006, which plainly reveals that petitioner knowingly and voluntarily waived all these rights when he entered his plea of no contest to all charges in the indictment. (See Doc. 14, April 10, 2006 Hearing Tr. 116-30).

By forfeiting his right to a jury trial, as well as his rights to confront adverse witnesses and to present evidence in his defense, petitioner waived any objection to the sufficiency of the evidence. See Post v. Bradshaw, 621 F.3d 406, 426-27 (6th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 2902, 179 L.Ed.2d 1249 (2011). The Ohio Court of Appeals, which was the only state court to address the merits of petitioner’s claim challenging his conviction for resisting arrest, also concluded that petitioner’s no-contest plea precluded relief. The court reasoned in relevant part:

... .While a no-contest plea is not an admission of guilt, it is “an admission of the truth of the facts alleged in the indictment.” The Supreme Court of Ohio has held that, upon receipt of a no-contest plea, a trial court must find a defendant guilty of the charged offense if the indictment alleges sufficient facts to state a felony offense. This court has also held that “where * * * an indictment contains sufficient allegations to state a felony offense and a court accepts an intelligent and voluntary plea of no-contest, it must find the defendant guilty of the offense charged.”

The indictment in this case mirrored the language of R.C. 2921.33(B). Render pled no-contest to the offense as stated in the indictment. He did not, and has not, raised an issue regarding the validity of his plea. Therefore, Render admitted to the trial court that he had “recklessly resisted lawful arrest of himself,” and that “during the course of the resistance, [he had] brandished a deadly weapon.” Upon the authority of our decisions in [the above-cited cases], the trial court properly found Render guilty based on those admissions.

(Doc. 14, Ex. 12, p. 8) (footnote citations omitted) (emphasis in original).

The undersigned is persuaded by both the Sixth Circuit precedents and the state cases relied on by the Ohio Court of Appeals in overruling petitioner’s assignment of error that petitioner’s plea of no-contest forecloses relief on his claim challenging the sufficiency of evidence supporting the charge of resisting arrest. Accordingly, petitioner is not entitled to habeas relief based on the claim alleged in Ground Three of the petition.

C. The Claim In Ground Two, Alleging that Petitioner’s Statements To The Police Were Obtained In Violation Of Petitioner’s Fifth Amendment Rights, Lacks Merit

In Ground Two of the petition, petitioner alleges that he is entitled to habeas relief because the trial court should have suppressed statements he made to the police “under duress” after he was shot, which were obtained in violation of his Fifth Amendment rights. (Doc. 5, p. 6). Petitioner has not set forth any facts supporting this claim in the petition. However, on appeal in the state courts, he contended that his statements should have been suppressed because he was not advised of his Fifth Amendment rights, as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); he also argued that “[a]ny statement taken” after he was shot “was under duress and was illegally obtained,” because he was “subjected to coerced interrogation without the presence of counsel” while “requiring responsive treatment for his serious injury the entire time.” (Doc. 14, Ex. 10, pp. 3-4; Ex. 14, pp. 12-13).

At the suppression hearing held on April 10, 2006, defense counsel called Darlene Miller, the police detective who interviewed petitioner, as a witness. Miller testified that her initial contact with petitioner took place at the Forest Park police station after petitioner’s release from a medical facility where he had received treatment for his gunshot wound. (Doc. 14, April 10, 2006 Hearing Tr. 41-42). Miller stated that petitioner “had a bandage on his side” and “appeared fine, just injured.” (Doc. 14, Tr. 42). Miller identified herself to petitioner and told him she “needed to speak with him about what had occurred.” (Doc. 14, Tr. 43). Apparently, petitioner informed Miller at the beginning of their conversation that he thought he needed additional medical treatment because he “was leaking from his body.” (Doc. 14, Tr. 43, 46-47). Miller testified that she “called our medic, our squad. They responded to the station, checked Mr. Render out. He refused to be transported at that time, said he was fine, signed a medical release, and I continued with my interview.” (Doc. 14, Tr. 43-44). Miller later testified that she was not involved in obtaining petitioner’s medical release signature, and that it was the medics who gave petitioner the “refusal to treat form” to sign. (Doc. 14, Tr. 47).

Miller stated that before she asked any questions, she advised petitioner “of all his Miranda” rights after ascertaining that petitioner was “conscious,” “coherent” and “lucid,” and that his “injuries were [not] interfering with his ability to communicate or understand.” (Doc. 14, Tr. 49-51). Miller provided petitioner with only one form — the Miranda rights waiver form, which she “went through” with petitioner “line by line.” (Doc. 14, Tr. 49-52). Miller testified that petitioner indicated to her that he was unable to sign the form because of his injury. (Doc. 14, Tr. 52). Therefore, Miller asked petitioner “to do something, the best he could to show that he in fact had had that form reviewed,” and petitioner responded by writing his initials on the form. (Doc. 14, Tr. 52-53).

Miller testified further that she did not make any promises or threats to induce petitioner to talk. (Doc. 14, Tr. 54). She also said that “based on [her] contact with the defendant,” she believed petitioner understood his Miranda rights and that he “was waiving those rights and was making a ... voluntary statement to [her] about what had occurred.” (Doc. 14, Tr. 54). Miller testified in relevant part as follows regarding the substance of the statement that petitioner gave after waiving his Miranda rights:

Mr. Render informed me that he had been visiting with a friend at the Winton House.... He left that apartment with his friend Kelly McGuire. They were walking back to Mr. Render’s apartment off of Pennington Court. He told me that as they were cutting through the back side, they observed what they believed was undercover police officers, one sitting in a car, the other outside the building.

He said that they were still walking when Officer Hall approached them and asked them for identification. He told me that he asked Officer Hall why he was stopping him and he chose not to cooperate with Officer Hall.

He told me the reason he chose not to cooperate was because he had a firearm on him and did not wish to go back to prison for having possession of a firearm.

He stated at the time he started running from Officer Hall, running around the cruiser in an attempt to hide the firearm before Officer Hall could see it. He said Officer Hall tased him and he fell, removed the taser from him and continued on before he was shot. At that time he stopped.

(Doc. 14, Tr. 45-46).

Petitioner provided testimony at the suppression hearing, which contradicted Officer Miller’s version of events. He testified that he told Miller that he would not give a statement, and that when he informed her he needed medical attention, she refused to get him help unless he cooperated. (Doe. 14, Tr. 78). Petitioner stated: “She also told me if I cooperated with her that she would let me see my wife. And wasn’t nobody there trying to help me so I complied with her. I told her what happened.” (Doc. 14, Tr. 79). Petitioner testified further that Miller never advised him of his Miranda rights; that he did not initial any Miranda rights waiver form; that he did not waive his right to talk to an attorney; and that Miller called in a paramedic to treat him only after he agreed to give an oral statement. (Doc. 14, Tr. 78-79, 95).

After hearing the witnesses’ testimony and counsel’s arguments, the trial court denied petitioner’s suppression motion. The court stated on the record the reasons for its decision:

The burden is on the State to prove by a preponderance of the evidence that the defendant waived his Miranda Rights and made the statements voluntarily.

The Court must consider the totality of the circumstances including such things as police methods of interrogation, age or mentality of the defendant, the condition of the defendant, and the atmosphere of the interrogation. If any promises, threats or misstatements of law were made to the defendant by the police in order to induce the defendant to speak.

In the present case, ... the discrepancy as far as what happened, much conflicting evidence has been presented. The Court does find that the testimony of the police officer is more credible and the evidence shows that the defendant knowingly, intelligently and voluntarily waived his Miranda Rights and voluntarily made statements to the police.

Accordingly, the statements were not illegally obtained....

The Court also notes for the record that it appears that statements by both the defendant and the defendant’s witness, Mr. McGuire, seem to acknowledge that there was a gun and that Mr. Render discarded it, and so for that matter, I’m not sure that the statements are really that big a factor at this stage, but nevertheless the statements are admissible.

(Doc. 14, Tr. 109-11).

The trial court’s ruling was affirmed on direct appeal. The Ohio Court of Appeals, which was the last state court to issue a reasoned decision addressing petitioner’s Fifth Amendment claim, held that petitioner’s statement was properly admitted. (Doc. 14, Ex. 12, p. 7). Without citing any legal standards, the court explained that the trial court’s finding that “the detective was more credible” than petitioner “was purely a factual determination, and based on the record, ... was not an abuse of discretion.” (Doc. 14, Ex. 12, p. 7).

Generally, in a case such as this where the constitutional claim was adjudicated on the merits by the state courts, the standard of review to apply is set forth in 28 U.S.C. § 2254(d). Under that provision, a writ of habeas corpus may not issue unless the state courts’ adjudication of the constitutional issue either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; 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 provision applies even in cases where the state courts summarily reject a claim or issue a ruling “unaccompanied by an opinion explaining the reasons relief has been denied.” Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011).

Here, however, no legal issue is presented to call into question whether the state courts’ adjudication of petitioner’s Fifth Amendment claim was contrary to or involved an unreasonable application of controlling Supreme Court precedents. The parties have not disputed that the Fifth Amendment privilege against self-incrimination, applicable to the States through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), forbids the State’s use of statements, “whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination;” these procedural safeguards require that the accused be informed of his right to remain silent and to the assistance of counsel, either retained or appointed, during the custodial interrogation, and that anything he says can be used against him in a court of law. Miranda v. Arizona, 384 U.S. 436, 444, 478-79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The parties also do not dispute that a defendant can waive his Miranda rights as long as the waiver is voluntary, knowing, and intelligent. See id. at 444, 86 S.Ct. 1602.

Finally, it is undisputed that the admission of a coerced confession, where the conduct of law enforcement officials was such as to overbear the accused’s will to resist, thus bringing about a confession not freely self-determined, violates due process. See, e.g., Beckwith v. United States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (citing Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961)); see also Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Conversely, it is well-settled that “[a]ny statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence.” Mason v. Mitchell, 320 F.3d 604, 632 (6th Cir.2003) (quoting Miranda, 384 U.S. at 478, 86 S.Ct. 1602). As the trial court understood in addressing whether petitioner’s statements to the police should be suppressed, courts must consider the totality of the circumstances in determining the voluntariness of an accused’s confession to law enforcement officials, including: (1) whether there was police coercion; (2) the length of the interrogation; (3) the location of the interrogation; (4) the continuity of the interrogation; (5) the suspect’s maturity; (6) the suspect’s education; (7) the suspect’s physical condition and mental health; and, (8) whether the suspect was advised of his Miranda rights. Withrow v. Williams, 507 U.S. 680, 693-94, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993) (internal citations omitted).

In this case, the Court’s review is limited because the state courts’ resolution of petitioner’s Fifth Amendment claim turned solely on a credibility determination in resolving the conflic