Cassano v. Shoop

• Citation: 10 F.4th 695 (Mem)
• Decision Date: 26 August 2021
• Docket Number: No. 18-3761,18-3761
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Parties: August CASSANO, Petitioner-Appellant, v. Tim SHOOP, Warden, Respondent-Appellee.

10 F.4th 695 (Mem)

August CASSANO, Petitioner-Appellant,

v.Tim SHOOP, Warden, Respondent-Appellee.

No. 18-3761

United States Court of Appeals, Sixth Circuit.

Decided and Filed: August 26, 2021

ON PETITION FOR REHEARING EN BANC: Charles L. Wille, Benjamin M. Flowers, Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON RESPONSE: Adam M. Rusnak, Erin G. Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellant.

Before: SILER, CLAY, and DONALD, Circuit Judges.

The panel issued an order denying the petition for rehearing en banc. GRIFFIN, J. (pp. 696–99) and THAPAR, J. (pp. 699–704), in which NALBANDIAN, J. joined, delivered separate opinions dissenting from the denial of the petition for rehearing en banc.

ORDER

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court.^* Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied. Judge Siler would grant rehearing for the reasons stated in his dissent.

GRIFFIN, Circuit Judge, dissenting.

DISSENT

Once again, our court has shirked its responsibility to correct a decision of exceptional importance meriting en banc review. Instead, the majority has chosen reversal over duty. Unfortunately, this path is all too familiar. See, e.g. , Davenport v. MacLaren , 975 F.3d 537 (6th Cir. 2020) (denying petition for rehearing en banc), cert. granted sub nom. , Brown v. Davenport , ––– U.S. ––––, 141 S. Ct. 2465, 209 L.Ed.2d 527 (2021) ; see also CNH Industrial N.V. v. Reese , ––– U.S. ––––, 138 S. Ct. 761, 765 n.2, 200 L.Ed.2d 1 (2018).

Because we "have acquired a taste for disregarding" the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 ("AEDPA"), Rapelje v. Blackston , 577 U.S. 1019, 136 S. Ct. 388, 389, 193 L.Ed.2d 449 (2015) (Scalia, J., dissenting from denial of petition for writ of certiorari), the Supreme Court has reversed us twenty-two times for not applying the deference to state-court decisions mandated by AEDPA. See Mays v. Hines , ––– U.S. ––––, 141 S. Ct. 1145, 1149–50, 209 L.Ed.2d 265 (2021) ; Shoop v. Hill , ––– U.S. ––––, 139 S. Ct. 504, 507–09, 202 L.Ed.2d 461 (2019) ; Woods v. Etherton , 578 U.S. 113, 136 S. Ct. 1149, 1152, 194 L.Ed.2d 333 (2016) ; White v. Wheeler , 577 U.S. 73, 79, 136 S.Ct. 456, 193 L.Ed.2d 384 (2015) ; Woods v. Donald , 575 U.S. 312, 317–19, 135 S.Ct. 1372, 191 L.Ed.2d 464 (2015) ; White v. Woodall , 572 U.S. 415, 427, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014) ; Burt v. Titlow , 571 U.S. 12, 22–23, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013) ; Metrish v. Lancaster , 569 U.S. 351, 365–68, 133 S.Ct. 1781, 185 L.Ed.2d 988 (2013) ; Parker v. Matthews , 567 U.S. 37, 38, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012) ; Howes v. Fields , 565 U.S. 499, 505–08, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012) ; Bobby v. Dixon , 565 U.S. 23, 24, 132 S.Ct. 26, 181 L.Ed.2d 328 (2011) ; Bobby v. Mitts , 563 U.S. 395, 399–400, 131 S.Ct. 1762, 179 L.Ed.2d 819 (2011) ; Berghuis v. Thompkins , 560 U.S. 370, 380–91, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) ; Renico v. Lett , 559 U.S. 766, 776–79, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) ; Berghuis v. Smith , 559 U.S. 314, 332–33, 130 S.Ct. 1382, 176 L.Ed.2d 249 (2010) ; Smith v. Spisak , 558 U.S. 139, 148–56, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010) ; Bradshaw v. Richey , 546 U.S. 74, 78, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) ; Bell v. Cone , 543 U.S. 447, 455–60, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005) ; Holland v. Jackson , 542 U.S. 649, 652–53, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) ; Mitchell v. Esparza , 540 U.S. 12, 17–19, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) ; Price v. Vincent , 538 U.S. 634, 638–43, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003) ; Bell v. Cone , 535 U.S. 685, 693–702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

Of those twenty-two rebukes, twelve of our reversals by the Supreme Court were by per curiam decisions on petitions for writs of certiorari. See Mays , 141 S. Ct. at 1145 ; Shoop , 139 S. Ct. at 504 ; Etherton , 136 S. Ct. at 1149 ; Wheeler , 577 U.S. at 73, 136 S.Ct. 456 ; Woods , 575 U.S. at 312, 135 S.Ct. 1372 ; Parker , 567 U.S. at 38, 132 S.Ct. 2148 ; Dixon , 565 U.S. at 24, 132 S.Ct. 26 ; Mitts , 563 U.S. at 399–400, 131 S.Ct. 1762 ; Bradshaw , 546 U.S. at 73, 126 S.Ct. 602 ; Bell , 543 U.S. at 447, 125 S.Ct. 847 ; Holland , 542 U.S. at 649, 124 S.Ct. 2736 ; Mitchell , 540 U.S. at 12, 124 S.Ct. 7. This is a sad record.

The Federal Rules of Appellate Procedure provide an important and necessary remedy for courts of appeals to correct their conflicts and errors of exceptional importance. While en banc hearings or rehearings are not favored, they are authorized when:

(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or

(2) the proceeding involves a question of exceptional importance.

Fed. R. App. P. 35(a).

The majority appears to recognize that the precedentially binding panel decision at issue is clearly incorrect. Nevertheless, it allows it to stand because it concludes that this case is not of exceptional importance. I strongly disagree.

First, this is a death penalty case in which our court conditionally granted a repeat convicted murderer's petition for a writ of habeas corpus, unless the State of Ohio retries him within six months.

Second, the Supreme Court has specifically "advise[d]" this court time and time again "that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty." Wheeler , 577 U.S. at 81, 136 S.Ct. 456. Yet, the panel majority refused to afford the Ohio Supreme Court decision the deference the law requires. AEDPA commands our federal courts to leave state court decisions undisturbed "so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision." Harrington v. Richter , 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Here, the panel opinion improperly "treated the unreasonableness question as a test of its confidence in the result it would [have] reach[ed] under de novo review." Id. (emphasis omitted).

Consider Cassano's May 14, 1998 waiver-of-counsel motion. Clearly established law as determined by the Supreme Court requires that a request for self-representation be clear and unequivocal. Faretta v. California , 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). But here, the potential invocation of the right to self-representation was unclear and equivocal because Cassano signed a substitution-of-counsel motion the same day, the state trial court received both motions at nearly the same time, and neither motion referenced the other. Fairminded jurists could disagree on whether Cassano's simultaneous request for a different attorney meant that his motion to represent himself was not a "clear[ ] and unequivocal[ ] declar[ation] to the trial judge that he wanted to represent himself and did not want counsel." Id.

Moreover, the panel's holding that AEDPA did not apply to Cassano's May 14, 1998 Faretta claim conflicts with Johnson v. Williams , 568 U.S. 289, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013). "When a state court rejects a federal claim without expressly addressing that claim," we nevertheless "must presume that the federal claim was adjudicated on the merits." Johnson , 568 U.S. at 301, 133 S.Ct. 1088. When, however, "evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court," a petitioner can overcome that presumption and secure "an unencumbered opportunity to" have a federal court review his claim de novo. Id. at 303, 133 S.Ct. 1088. The panel majority concluded that Cassano overcame the presumption because—in its view—the Ohio State Supreme Court "inadvertently overlooked" his waiver-of-counsel motion. The evidence of an inadvertent overlook, however, was not "very clear." The majority opinion reasoned that because the Ohio Supreme Court did not characterize or analyze the 1998 waiver-of-counsel motion as a potential invocation of his right to self-representation, the state court must have inadvertently overlooked the claim. The state court, however, acknowledged the motion and again, the panel majority opinion's analysis does not rule out a plausible alternative explanation: the state court "simply regard[ed] [the] claim as too insubstantial to merit discussion." Id. at 299, 133 S.Ct. 1088. With no "very clear" evidence to counter that plausible alternative explanation, the panel majority ran afoul of Johnson and its directive for how to determine when a petitioner has rebutted the presumption that the state court adjudicated a federal claim on the merits.

Cassano's other relevant Faretta claim centers on a question he posed at the April 23, 1999 pretrial hearing—three days before the trial was set to begin—where he asked, "Is there any possibility I could represent myself?" Although the Ohio Supreme Court held "that Cassano's request was untimely because it was made only three days before the trial was to start," State v. Cassano , 96 Ohio St.3d 94, 772 N.E.2d 81, 91 (2002), the panel majority held "that the Ohio Supreme Court both ‘base[d] its decision on an unreasonable determination of the facts’ and ‘unreasonably applie[d] the law.’ " Cassano v. Shoop , 1 F.4th 458, 474 (6th Cir. 2021) (citation omitted). Both of the panel majority's rulings failed to apply the deference required by AEDPA. See generally Hill v. Curtin , 792 F.3d 670, 677–79 (6th Cir. 2015) (en banc).

The panel opinion also held that given the question's words and context, "it was objectively unreasonable for the Ohio Supreme Court to hold that Cassano's request was anything but a clear and unequivocal invocation of his Sixth Amendment right to...