Cassano v. Shoop

Citation1 F.4th 458
Decision Date17 June 2021
Docket NumberNo. 18-3761,18-3761
Parties August CASSANO, Petitioner-Appellant, v. Tim SHOOP, Warden, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED: Adam M. Rusnak, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Adam M. Rusnak, Erin G. Barnhart, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

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

CLAY, J., delivered the opinion of the court in which DONALD, J., joined. SILER, J. (pp. 479–80), delivered a separate dissenting opinion.

CLAY, Circuit Judge.

Petitioner August Cassano, an Ohio prisoner under a death sentence, appeals from the district court's denial of his second Amended Petition for a Writ of Habeas Corpus filed under 28 U.S.C. § 2254. The district court granted Cassano a Certificate of Appealability on five of his requested grounds for relief, and we granted an expansion of the Certificate of Appealability to include two additional claims. For the reasons set forth below, Cassano is entitled to relief on his claim that his constitutional rights under Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), were violated. Accordingly, we REVERSE the judgment of the district court and CONDITIONALLY GRANT Cassano's federal habeas petition, unless the State retries him within six months.

I. Factual Background

In October 1997, Cassano was serving a prison sentence at Mansfield Correctional Institution ("MANCI") for a 1976 conviction of aggravated murder. On October 17, 1997, Walter Hardy was moved into Cassano's cell. Hardy had previously been assigned to the segregation unit based on suspicion of possessing a shank, but he had been exonerated. Cassano was extremely upset about having Hardy as his cellmate. Cassano told one MANCI sergeant/counselor that "he didn't want that snitching ass faggot in his cell and that we better check [Cassano's] record." State v. Cassano , 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 7. He also told authorities, "You just can't put any type of motherfucker in my cell, * * * check my record." Id. When another inmate mentioned that Cassano had a new cellmate, Cassano responded, "Not for long." Id. at ¶ 8. After Hardy broke a TV cable outlet, Cassano told a different inmate that Hardy "was driving him nuts," and that if Hardy was not removed from his cell, "he would * * * remove him himself." Id. at ¶ 9. Despite Cassano's complaints, Hardy was not removed from the cell.

In the early morning on October 21, 1997, upon hearing a commotion, Donald Oats, a MANCI correctional officer, rushed to Cassano's cell. When he arrived, he saw Cassano and Hardy fighting and ordered them to stop. While he went to call for help, Oats heard Hardy yell, "[Cassano] has a knife and he's * * * trying to kill me." Id. at ¶ 10. Oats then looked into the cell and saw Cassano standing over Hardy and stabbing him with a shank. Oats ordered Cassano to stop, but Cassano looked at him twice and then "went right back to sticking inmate Hardy." Id. at ¶ 11.

Two more correctional officers, James Miller and Dwight Ackerman, then arrived on the scene. Ackerman saw Cassano "assaulting the other inmate" and ordered him to stop. Id. at ¶ 12. In response, Cassano stood up, revealing a shank in his right hand, but then continued stabbing Hardy. Miller then tried ordering Cassano to stop, but Cassano "didn't look at [Miller.] He looked down and plunged a weapon into inmate Hardy." Id. Eventually, Oats entered the cell and Cassano finally ended the attack. Hardy was taken to a hospital, but, about an hour later, he was pronounced dead from his approximately seventy-five stab wounds.

II. Procedural Background

In March 1998, a Grand Jury indicted Cassano for aggravated murder with two death specifications: one alleged that "the offense was committed while [Cassano] was a prisoner in a detention facility," and the other alleged that "prior to the offense" in the indictment, Cassano was convicted of aggravated murder. (R. 134-1 at PageID# 841.) At his arraignment, through his court appointed counsel, Robert H. Whitney and Bernard R. Davis, Cassano entered a plea of not guilty.

On May 14, 1998, Cassano filed a pro se Waiver of Counsel explaining that "he would rather control the organization and content of his defense, be able to file motions, argue points of laws, call favorable witnesses, cross-examine any adverse witnesses and be allowed to conduct his defense in a manner considered fundamental to the fair administration of American justice." (R. 134-1 at PageID# 863.) On the same day, Cassano also filed a pro se Motion for Appointment of Substitute Counsel asserting that Whitney and Davis were ineffective. In this motion, Cassano explained that his counsel rarely visited him, failed to provide him with updates on the case, and frequently lied to him. He therefore requested that Kort Gatterdam be appointed counsel.

Whitney and Davis then filed a motion to withdraw, which the trial court granted.

The trial court also appointed the Ohio Public Defender's Office to represent Cassano, as well as Douglas R. Sexton as local counsel. Andrew Love and Gatterdam later entered appearances on behalf of the Ohio Public Defender to represent Cassano. Love was the only member of the trio certified as lead counsel under Ohio rules for representing an indigent defendant charged with a capital offense. No explicit ruling was made on Cassano's Waiver of Counsel.

On September 25, 1998, Cassano filed a Motion for Appointment of Co-Counsel requesting that the trial court appoint Gatterdam as his own co-counsel in the case. That same day, at a pretrial hearing, the trial court explained that Cassano "has filed a motion to appoint co-counsel to represent him while he represents himself," and denied the motion on the grounds that Cassano "not being trained in the law, is not capable, in my estimation, to represent himself." (R. 135-1 at PageID# 4242.) The court then informed Cassano that "you're not going to represent yourself in this matter. If you wish to say a word on the record about that, you can. But thereafter you won't be speaking in the courtroom. I'm in charge of the courtroom, not you. You will never be in charge of this courtroom." (Id. at PageID# 4243.)

The issue of Cassano's representation next arose during an April 23, 1999 pretrial hearing. At the hearing, Cassano raised as a "concern" that his "lead counsel, which is Andy Love, he's not going to be prepared for my trial, because he's still at this other one, and I would like my lead counsel to be here and be prepared when my trial starts." (R. 135-4 at PageID## 4562–63.) The trial court responded that, even though "[t]he trial is scheduled to start Monday," because Love was not participating in voir dire , he would have enough time to prepare for Cassano's trial. (Id. at PageID# 4563.) Gatterdam then jumped in and asserted that Love had "not looked at anything on the Cassano matter since some time in February of 1999." (Id. at PageID## 4562–63.)

After Gatterdam finished explaining Love's lack of preparation for Cassano's trial due to his other capital trial, Cassano inquired, "[i]s there any possibility I could represent myself? I'd like that to go on record." (Id. at PageID# 4564.). The court responded, "[w]e've talked about it before. I think I'd be doing you a disservice by allowing that. You have very competent and very engaging attorneys and I believe they should be representing you. It would be in your best interest not to represent yourself. I wouldn't be representing myself if I were charged." (Id. at PageID## 4564–65.) The issue of Cassano's trial representation was not addressed again.

Three days later, on April 26, 1999, represented by Love, Gatterdam, and Sexton, Cassano's trial began. At trial, Cassano testified that he had acted in self-defense after Hardy sought to attack him with the shank. But on May 13, 1999, the jury returned a verdict of guilty on the aggravated murder charge and both specifications.

The mitigation phase of the capital trial began four days later, and lasted two days. On May 18, 1999, the jury returned its sentencing verdict for a death sentence. After performing the statutorily required independent weighing of the aggravating circumstances and mitigating factors, the trial court sentenced Cassano to death.

Represented by new counsel, Cassano timely appealed his convictions and sentence to the Ohio Supreme Court. The Ohio Supreme Court affirmed the trial court's judgment after reviewing Cassano's fourteen propositions of law and determining that none justified reversing his convictions or sentence. See Cassano , 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, at ¶ 30. Cassano then moved the Ohio Supreme Court to rehear Proposition of Law I, an argument that the trial court erred in refusing his requests to represent himself. On September 25, 2002, the court denied the motion without opinion. On March 3, 2003, the United States Supreme Court denied Cassano's petition for a writ of certiorari. See Cassano v. Ohio , 537 U.S. 1235, 123 S.Ct. 1359, 155 L.Ed.2d 201 (2003).

Because Cassano had indicated an intent to pursue postconviction relief, while his direct appeal proceedings were ongoing, the trial court appointed counsel for Cassano's postconviction proceedings. After substitute counsel was appointed upon Cassano's request, on December 9, 1999, Cassano filed a pro se motion to waive postconviction relief. On February 15, 2000, the trial court granted Cassano's motion. Almost a year later, on January 17, 2001, in another pro se motion, Cassano changed his position and sought to reinstate his postconviction proceedings. No...

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