Lanier v. Warden, Noble Correctional Institution

1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
ANDRE LANIER,
Petitioner, : Case No. 2:24-cv-3931
- vs - 	District Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
WARDEN, Noble
Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought by Petitioner Andre Ranier with the assistance of retained
counsel, is before the Court for decision on the merits. 	Relevant pleadings are the Amended
Petition (ECF No. 3), the State Court Record (ECF No. 8), the Return of Writ (ECF No. 9) and
Petitioner’s Reply (ECF No. 10). 	The Magistrate Judge reference in the case was recently
transferred to the undersigned to help balance the Magistrate Judge workload in the District (ECF
No. 11).
Litigation History
On March 5, 2015, the Belmont County grand jury indicted Lanier on one count of
possession of drugs (cocaine) in violation of Ohio Rev. Code § 2925.11(A)(C)(4)(e); one count of
Case: 2:24-cv-03931-EAS-MRM Doc #: 12 Filed: 12/18/25 Page: 1 of 10 PAGEID #: <pageID>

2
trafficking in drugs (cocaine) in violation of Ohio Rev. Code § 2925.03(A)(2)(C)(4)(f); one count
of possession of drugs (Ecstasy) in violation of Ohio Rev. Code § 2925.11(A)(C)(1)(c); and one
count of trafficking in drugs (Ecstasy) in violation of Ohio Rev. Code § 2925.03 (A)(2)(C)(1)(d).
Lanier initially pleaded not guilty and moved to suppress the seized drugs. 	As a result of plea
negotiations, however, he withdrew the motion and pleaded guilty to amended charges.
Lanier then failed to appear for sentencing and it required over five years to execute the
capias. Upon return of Lanier to custody, he was sentenced to an aggregate sentence of eight years
imprisonment. The Seventh District Court of Appeals reversed for a defective plea colloquy and
remanded.
On remand Lanier filed a new motion to suppress which was denied as untimely. After the
indictment was amended, Lanier pled no contest and was sentenced to eleven years imprisonment.
He again appealed to the Seventh District which affirmed. State v. Lanier, 2023-Ohio-3088 (7th
Dist. Aug. 31, 2023). 	The Ohio Supreme Court declined to exercise jurisdiction over a further
appeal. State v. Lanier, 173 Ohio St.3d 1456 (Apr 16, 2024). Lanier then filed his Petition in this
Court, pleading the following grounds for relief:
GROUND 1: The Petitioner was denied effective assistance of
counsel when counsel failed to file a motion to suppress timely.
GROUND 	2: 	Petitioner 	was 	denied 	due 	process 	under 	the
Fourteenth Amendment when the trial court imposed a harsher
sentence following a successful appeal under the holding in North
Carolina v. Pearce.
(Petition, ECF No. 1, Page ID 7, 13).
Analysis
Ground One: Ineffective Assistance of Trial Counsel: Untimely Filing Of
Motion To Dismiss
Case: 2:24-cv-03931-EAS-MRM Doc #: 12 Filed: 12/18/25 Page: 2 of 10 PAGEID #: <pageID>

3
In his First Ground for Relief, Lanier asserts he received ineffective assistance of trial
counsel when his attorneys failed to file his motion to suppress in a timely manner. 	Lanier
presented this claim as his second assignment of error on direct appeal and the District decided it
as follows:
¶60} Appellant argues that defense counsel provided ineffective
assistance because both his original and post-remand counsel failed
to timely file the motion to dismiss/suppress. A claim of ineffective
assistance 	of 	counsel 	requires 	a 	showing 	of 	both 	deficient
performance and resulting prejudice. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In evaluating
an alleged deficiency in performance, the reviewing court must
determine whether there was “a substantial violation of any of
defense counsel's essential duties to his client.” State v. Bradley, 42
Ohio St.3d 136, 141, 538 N.E.2d 373 (1989). Appellate court review
is highly deferential to defense counsel's decisions as there is a
strong presumption counsel's conduct was within the wide range of
reasonable professional assistance. Id. at 142-143, 538 N.E.2d 373,
(there are “countless ways to provide effective assistance in any
given case”), citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
{¶61} Further, a reviewing court should not second-guess the
strategic decisions of counsel. State v. Carter, 72 Ohio St.3d 545,
558, 651 N.E.2d 965 (1995). Even debatable trial tactics do not
establish ineffective assistance of counsel. State v. Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101 .
{¶62} In order to demonstrate prejudice, counsel's errors must be so
serious that there is a reasonable probability the result of the
proceedings would have been different. Carter, 72 Ohio St.3d at
558, 651 N.E.2d 965 . Lesser tests of prejudice have been rejected:
“It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.” Bradley, 42
Ohio St.3d at 142, fn. 1, 538 N.E.2d 373 , quoting Strickland, 466
U.S. 	at 	693, 	104 	S.Ct. 	2052 . 	Prejudice 	from 	defective
representation 	justifies 	reversal 	only 	where 	the 	results 	were
unreliable or the proceeding was fundamentally unfair due to the
performance of trial counsel. Carter, 72 Ohio St.3d at 558, 651
N.E.2d 965, citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113
S.Ct. 838, 122 L.Ed.2d 180 (1993) .
{¶63} With respect to Attorney Burke, we find the motion clock
expired in 2015. Accordingly, Attorney Burke did not render
Case: 2:24-cv-03931-EAS-MRM Doc #: 12 Filed: 12/18/25 Page: 3 of 10 PAGEID #: <pageID>

4
ineffective assistance of counsel because it was impossible for him
to file a timely motion. It can be argued that Attorney Burke
provided ineffective assistance of counsel when he failed to argue
that the interests of justice required that the second motion to
dismiss/suppress should be considered based on the withdrawal of
the original motion to suppress and dismiss in exchange for
Appellant's original plea. However, the original motion to suppress
and dismiss was also untimely filed and unaccompanied by a motion
for leave.
{¶64} Appellant argues that his original defense counsel was
ineffective based on the merits of the motion to suppress and
dismiss, and contends that defense counsel should have timely filed
the motion. However, the timeliness of the motion became irrelevant
when Appellant withdrew the motion in exchange for his plea.
Appellant received a substantial benefit from his plea. Two counts
in the indictment were dismissed and the remaining two counts were
amended to reduce the degree of the crime charged, which resulted
in a three-year reduction in the maximum sentence for amended
count one and the imposition of concurrent sentences.
{¶65} Further, on remand, the state extended a slightly-modified,
but consequentially-similar plea offer to Appellant. Appellant could
have entered a plea to a felony of the second degree and two felonies
of the third degree. Presumably, two of the convictions would have
merged, and the trial court would have imposed the same maximum
sentences to be served concurrently that were imposed at the original
sentencing hearing. In other words, following remand, the case was
effectively reinstated in precisely the same condition that existed
before the trial court's error at sentencing. Appellant could have
obtained the benefit of original trial counsel's deal with the state in
exchange for his plea. Because Appellant chose instead to enter a
plea of no contest in order to preserve his challenge to the trial
court's decision on the second motion to suppress and dismiss, we
find that original defense counsel did not provide ineffective
assistance.
{¶66} Having reviewed the performance of both of Appellant's
counsel, we conclude that Appellant has failed to demonstrate that
he 	received 	ineffective 	assistance. 	Accordingly, 	his 	second
assignment of error has no merit.
State v. Lanier, supra.
When a state court decides on the merits a federal constitutional claim later presented to a
Case: 2:24-cv-03931-EAS-MRM Doc #: 12 Filed: 12/18/25 Page: 4 of 10 PAGEID #: <pageID>

5
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);
Cunningham v. Shoop, 23 F.4th 636, 650 (6th Cir. 2022); Brown v. Payton, 544 U.S. 133, 140
(2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379
(2000); Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). 	Deference is also due under 28
U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings.
In this case the Seventh District decided Lanier’s ineffective assistance of trial counsel
claim on the merits, applying Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides:
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. 	First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. 	Second, the defendant must show that the
deficient 	performance 	prejudiced 	the 	defense. 	This 	requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. 	Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. 	Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
To prevail on an ineffective-assistance-of-counsel claim, a movant must establish that (1)
counsel’s performance was deficient and (2) the deficiency resulted in prejudice, meaning that
there is a reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different. Shimel v. Warren, 838 F.3d 685, 696 (6th Cir. 2016).
Case: 2:24-cv-03931-EAS-MRM Doc #: 12 Filed: 12/18/25 Page: 5 of 10 PAGEID #: <pageID>

6
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial 	scrutiny 	of 	counsel's 	performance 	must 	be 	highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. 	Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; 	that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.
466 U.S. at 694. 	See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6 th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of
a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,
379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been 	established 	if 	counsel 	acted 	differently. 	See 	Wong 	v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
Case: 2:24-cv-03931-EAS-MRM Doc #: 12 Filed: 12/18/25 Page: 6 of 10 PAGEID #: <pageID>

7
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood 	of 	a 	different 	result 	must 	be 	substantial, 	not 	just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
To prevail on his First Ground for Relief, Lanier must show that the Seventh District’s
decision 	was 	contrary 	to 	or 	an 	objectively 	unreasonable 	application 	of 	Strickland. 	He
acknowledges this burden and argues he has met it because the motion to suppress had clear merit
and it was withdrawn without Lanier’s consent.
As Respondent points out, Lanier provides no record reference to show he objected to the
withdrawal and he accepted the plea deal which included withdrawal of the motion to suppress.
Petitioners claim that the motion to suppress had clear merit is completely speculative. 	As the
Seventh District found, he did not provide that court with an opportunity to consider the merits of
the motion to suppress. 	The court held: 	“Of equal import, the search warrant and affidavit at
issue in the suppression motions is not a part of the record, and as a consequence, we cannot
undertake a merits analysis.” Lanier at ¶ 55. In other words appeal on the ineffective assistance
of trial counsel claim focused entirely on the deficient performance prong of Strickland.
The Seventh District’s decision of Lanier’s ineffective assistance of trial counsel claim is
not an objectively unreasonable application of Strickland. 	His First Ground for Relief should
therefore be dismissed.
Ground Two: Vindictive Sentencing on Remand
In his Second Ground for Relief, Lanier claims he was vindictively sentenced to a long
term of imprisonment after he successfully appealed his first sentence. 	This result is said to be
Case: 2:24-cv-03931-EAS-MRM Doc #: 12 Filed: 12/18/25 Page: 7 of 10 PAGEID #: <pageID>

8
contrary to the decision in North Carolina v. Pearce, 395 U.S. 711 (1969), where the Supreme
Court held:
In 	order 	to 	assure 	the 	absence 	of 	such 	a 	motivation 	[of
vindictiveness], we have concluded that whenever a judge imposes
a more severe sentence upon a defendant after a new trial, the
reasons for his doing so must affirmatively appear. These reasons
must be based upon objective information concerning identifiable
conduct on the part of the defendant occurring after the time of the
original sentence.
395 U.S. at 726. See also United States v. Goodwin, 457 U.S. 368 (1982). A defendant who does
not have the benefit of the presumption can still prevail if he can show actual vindictiveness.
Craycraft v. Cook, 634 Fed. Appx. 490 (6th Cir. 2015); United States v. Jackson, 181 F. 3d 740,
744 (6th Cir. 1999); Rahab v. Buchanan, 2018 U.S. Dist. LEXIS, 2018 WL 2764454 (S.D. Ohio
June 8, 2018).
Lanier raised this claim as his third assignment of error on direct appeal and the Seventh
District decided it as follows:
{¶67} 	Appellant 	argues 	that 	his 	post-remand 	sentence 	is
unconstitutional, as his sentence increased following remand and
there was no new information in the PSI or presented to the court
supporting the increased sentence. In North Carolina v. Pearce,
395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d. 656 (1969) , the United
States Supreme Court held when a trial court imposes a longer
sentence after a successful appeal there exists a presumption of
vindictiveness that impacts the defendant's constitutional right to
appeal. In order to overcome the presumption, the increase must be
justified by events that transpired subsequent to the first trial. Id. at
723-724. Twenty years later, in Alabama v. Smith, 490 U.S. 794,
109 S.Ct. 2201, 104 L.Ed.2d. 865 (1989), the Supreme Court
significantly narrowed the presumption, holding the presumption
only exists when there is a reasonable likelihood that an unexplained
increase in a defendant's sentence following remand is the product
of actual vindictiveness on the part of the sentencing court. Where
there is no such reasonable likelihood, the defendant has the burden
of proving actual vindictiveness.
Case: 2:24-cv-03931-EAS-MRM Doc #: 12 Filed: 12/18/25 Page: 8 of 10 PAGEID #: <pageID>

9
{¶68} Contrary to Appellant's assertion, there was no “unexplained”
increase in Appellant's sentence here. At the hearing, the trial court
recognized 	Appellant's 	original 	sentence 	was 	the 	result 	of 	a
negotiated plea. In exchange for Appellant's guilty plea, the state
dismissed two charges and amended the remaining two charges
from a felony one and two to a felony two and three.
{¶69} Appellant contends that no new facts were introduced upon
which the trial court could rely to increase Appellant's sentence.
However, post-remand, Appellant entered a plea of guilty to
possessing and distributing a larger quantity of drugs than at the
original sentencing hearing. Accordingly, we find the increase in the
quantity of drugs possessed and trafficked constitutes a new fact,
therefore, no presumption of vindictiveness arises in this case. The
record reflects the trial court imposed the maximum sentences to be
served concurrently at both sentencing hearings.
{¶70} We further find there is no evidence of actual vindictiveness
in the record. Appellant contends that the trial court gave undue
deference 	to 	the 	recommendation 	of 	the 	state 	regarding 	the
imposition of the maximum sentences at the sentencing hearing.
While it is true that the trial court requested the state's response to
defense 	counsel's 	argument 	regarding 	the 	presumption 	of
vindictiveness, and sought the state's recommended sentence, there
is no evidence in the record that the trial court abdicated its ultimate
authority on sentencing to the state.
{¶71} Based on the charges to which Appellant entered his plea of
no contest, we find no “unexplained” increase in Appellant's
sentence and no evidence of actual vindictiveness. Accordingly, we
find Appellant's third assignment of error has no merit.
Lanier, supra.
As the record makes clear, this was not a re-sentencing upon the original convictions, but
rather an initial sentencing on convictions resulting from the new plea bargain. We do not know
the course of negotiations after Lanier’s recapture, but it is evident the prosecutor was unwilling
to make the same plea deal again, perhaps reflecting Lanier’s absconding for more than five years.
Lanier pleaded guilty voluntarily to the amended charges. He has not claimed his second guilty
plea was other than knowing, intelligent, and voluntary. 	And such a plea waives any prior
Case: 2:24-cv-03931-EAS-MRM Doc #: 12 Filed: 12/18/25 Page: 9 of 10 PAGEID #: <pageID>

10
constitutional violations. 	United States v. Lalonde, 509 F.3d 750, 757 (6th Cir. 2007); see also
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Lanier has not shown the Seventh District’s application of Pearce is objectively
unreasonable. His second ground for relief should therefore be dismissed.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed on the merits. 	Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
December 18, 2025.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may respond
to another party’s objections within fourteen days after being served with a copy thereof. Failure
to make objections in accordance with this procedure may forfeit rights on appeal.
Case: 2:24-cv-03931-EAS-MRM Doc #: 12 Filed: 12/18/25 Page: 10 of 10 PAGEID #: <pageID>