Ahmed v. Houk
| Decision Date | 14 December 2020 |
| Docket Number | Case No. 2:07-cv-658 |
| Parties | NAWAZ AHMED, Petitioner, v. MARC C. HOUK, Warden, Respondent |
| Court | U.S. District Court — Southern District of Ohio |
This capital habeas corpus case is before the Court on Petitioner's Motion to Alter or Amend the Judgment pursuant to Fed.R.Civ.P. 59(e)(ECF No. 160)1 which Respondent opposes (ECF No. 167).
On September 21, 2020, the Court entered its Opinion and Order dismissing all claims and denying a certificate of appealability ("Opinion," ECF No. 156; Judgment, ECF No. 157). As the Opinion notes, the Petition in this case pleads twenty-seven grounds for relief from Petitioner's conviction and sentence of death for the killing of his estranged wife, and his sister-in-law, father-in-law, and niece. The Magistrate Judge recommended that relief be denied on all grounds for relief and that Ahmed be denied a certificate of appealability (Report and Recommendations, ECF No. 88, the "Report"). Petitioner objected only as to Grounds for Relief One, Two, Three, Five, Eight, Thirteen, Nineteen and Twenty-Seven (Corrected Objections, ECF No. 150) and thus has forfeited any objections as to the other nineteen grounds for relief. Thomas v. Arn, 474 U.S. 140 (1985); Alspugh v. Mcconnell, 643 F.3d 162, 166 (6th Cir. 2011). District Judge Watson overruled all of Petitioner's Corrected Objections and denied a certificate of appealability, adopting the result recommended by the Magistrate Judge. The instant Motion followed, challenging the result as to all eight grounds for relief on which objection had been made to the Report.
For a district court to grant relief under Rule 59(e), "there must be '(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.'" Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009) (quoting Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006)).
Gencorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999), accord, Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538, 551-52 (6th Cir. 2011), quoting Leisure Caviar, LLC v. United States Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010).
A motion under Fed. R. Civ. P. 59(e) is not an opportunity to reargue a case. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)(citation omitted). Thus, parties should not use them to raise arguments which could and should have been made before judgment issued. Id. Motions under Rule 59(e) must establish either a manifest error of law or must present newly discovered evidence. Id. In ruling on an Fed.R.Civ.P. 59(e) motion, Bannister v. Davis, 140 S. Ct. 1698, 1703, 207 L.Ed. 2d 58 (2020).
Petitioner's Motion to Amend is measured against this standard.
In his First Ground for Relief, Petitioner claimed he was denied the right to retain counsel of his choice by the way the involved divisions of the Belmont County Court of Common Pleas restricted his ability to spend marital and probate assets. The Report concluded this ground for relief was both procedurally defaulted and without merit. As to procedural default, the Opinionagreed that Ahmed failed to fairly present this claim to the state courts because the Sixth Amendment claims he did present were legally and factually distinct from this claim (ECF No. 156, PageID 10556-64). Even if the claim were not procedurally defaulted, the Opinion found it was without merit because there was no evidence of record from which it could be found the trial court prevented Ahmed from hiring counsel of his choice. Id. at PageID 10564-74. Ahmed objects to both conclusions.
Ahmed asserts four errors of law in the Opinion as to the finding of procedural default on Ground One:
The denial of counsel of choice is intertwined with the issues raised by Ahmed in the Ohio Supreme Court and thus was raised in that court.
Ahmed claims his counsel of choice claim is "inextricably intertwined" with his claim that appointed counsel should have been removed and was therefore fairly presented to the Supreme Court of Ohio (Motion, ECF No. 160, PageID 10632, relying on Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006)). In Dando the Sixth Circuit granted a certificate of appealability on two questions: "(1) whether the sentencing court abused its discretion in denying Dando's motion for an expert witness, and (2) whether trial counsel was ineffective for failing to pursue a duress defense" and found these two questions "inherently intertwined." 461 F.23d at 797. On that basis, the court overruled a fair presentation procedural default defense:
The Dando majority did not engage in a general analysis of "fair presentation" as a habeas prerequisite or attempt to formulate any general rule on the subject. Instead it found, on the particular facts of that case, that the ineffective assistance of trial counsel claim had been fairly presented. Ahmed cites no case in which presenting a claim of ineffective assistance of trial counsel because of conflict of interest or denying a request for self-representation, the two Sixth Amendment claims he expressly made, was held to fairly present a claim of denial of the right to retain counsel of one's choice.
A petitioner fairly presents a federal habeas claim to the state courts only if he "asserted both the factual and legal basis for his claim. Hicks v. Straub, 377 F.3d 538 (6th Cir. 2004), citing McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); and Picard v. Connor, 404 U.S. 270, 276, 277-78 (1971).
If a petitioner's claims in federal habeas rest on different theories than those presented to the state courts, they are procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir. 2002), citing Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); Lott v. Coyle, 261 F.3d 594, 607, 619 (6th Cir. 2001)("relatedness" of a claim will not save it). The Sixth Circuit recently reiterated this "same claim" requirement. Allen v. Mitchell, 953 F.3d 858 (6th Cir. 2020). This Court made no error of law in relying, as it did, on McMeans (Opinion, ECF No. 156, PageID 10561).The issue of the denial of counsel of choice was before the Ohio Supreme Court because it is legally required to review the entire record in capital cases.
Ahmed next argues the Supreme Court of Ohio was required to consider his counsel of choice claim because that court is required to review the "entire record" in capital cases (Motion, ECF No. 157, PageID 10632, citing Ohio Revised Code § 2929.05(A)).
Ahmed cites no decision of the Ohio Supreme Court or the Sixth Circuit which interprets this statute to require the Ohio Supreme Court to raise sua sponte claims that the parties have not presented. Indeed, the statute says the supreme court "shall review the judgment in the case and the sentence of death . . .in the same manner that they review other criminal cases," except that it is to independently consider the evidence for aggravating circumstances and whether the death sentence is proportionate.2 The phrase "entire record" does not appear in Ohio Revised Code § 2929.05(A). The fact (on which Ahmed relies) that the Supreme Court of Ohio recognized that the counsel of choice claim had been an issue in the trial court does not logically imply it was still an issue on appeal.
This Court did not commit legal error in failing to find Ahmed's counsel of choice claimwas before the Supreme Court of Ohio because it was required to review the "entire record."
Ahmed's Claim That He Was Denied Counsel of Choice Was Fairly Presented in his pro se Motion for Reconsideration as well as in Other Motions Ahmed filed in the Ohio Supreme Court.
Ahmed claims he fairly presented his counsel of choice claim in pro se filings that he made in the Supreme Court of Ohio. He claims error in this Court's finding that denial of those filings was procedural rather than on the merits (Motion, ECF No. 160,...
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