Franklin v. Jenkins

• Decision Date: 07 October 2016
• Docket Number: No. 15-3180,15-3180
• Citation: 839 F.3d 465
• Parties: Antonio Franklin, Petitioner–Appellant, v. Charlotte Jenkins, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

839 F.3d 465

Antonio Franklin, Petitioner–Appellant,

v.Charlotte Jenkins, Warden, Respondent–Appellee.

No. 15-3180

United States Court of Appeals, Sixth Circuit.

Argued: January 27, 2016

Decided and Filed: October 7, 2016

Rehearing En Banc Denied November 17, 2016

ARGUED: S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, for Appellant.Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.ON BRIEF: S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, James P. Fleisher, BIESER, GREER & LANDIS, LLP, Dayton, Ohio, for Appellant.Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: COLE, Chief Judge; and BOGGS and GIBBONS, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

More than twelve years ago, Antonio Franklin, an Ohio prisoner sentenced to death, filed a petition for a writ of habeas corpus in federal district court.The district court denied Franklin's petition on the merits and this court affirmed.Five months later, Franklin moved the district court for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b), seeking to avail himself of the Supreme Court's decisions in Martinez v. Ryan , –––U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272(2012), andTrevino v. Thaler , ––– U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044(2013).The district court denied Franklin's motion on the merits and Franklin again appealed.As we explain, Franklin's Rule 60(b) motion is a “second or successive” habeas application that the district court lacked jurisdiction to consider without prior authorization from this court.Because Franklin has not satisfied the gatekeeping requirements applicable to motions for authorization to file a “second or successive” habeas application, he is not entitled to relief.

I

A

As an adolescent, Antonio Franklin moved into the Dayton, Ohio, home of his grandparents and uncle in order to escape his alcoholic mother's physical and verbal abuse.Despite the abuse, Franklin appeared to be a relatively well-adjusted child.As Franklin approached the age of seventeen, however, his behavior began to change.On one occasion, for example, Franklin expressed a fear that extraterrestrials would abduct him.On another, he showed up at his girlfriend's mother's house in the middle of a winter night, appearing to be dazed and confused.Franklin also began to abuse marijuana at around this time, causing a rift between himself and his grandparents.

On April 17, 1997, when Franklin was nineteen years old, his grandparents and uncle informed him that he would soon have to find his own place to live.The discussion apparently upset Franklin.Later that evening, Franklin and his uncle got into an argument about Franklin's use of the family's phone, which his uncle followed by making a joke that implied that Franklin was sexually attracted to men.Franklin responded by picking up a baseball bat and attacking his uncle.Franklin then turned on his grandmother and grandfather.After severely beating all three of the relatives who had taken him in, Franklin seized a gun and shot his grandmother in the head, killing her.Franklin then set fire to the house, leaving his grandfather and uncle to die.With his grandmother's jewelry in his pocket, Franklin fled to Tennessee in his grandfather's vehicle.He was promptly apprehended by Tennessee police and confessed his involvement in the killings, which he said he had committed because his uncle had raped him as a child.

Franklin was eventually returned to Ohio, where he faced six counts of aggravated arson, two counts of aggravated robbery, and six counts of aggravated murder.Franklin pleaded not guilty by reason of insanity to all counts and also claimed that he was incompetent to stand trial.After holding a pretrial competency hearing, however, the trial court found that Franklin was in fact competent and that his case could proceed to trial.During trial, Franklin engaged in various forms of disruptive and inappropriate behavior.In addition to flashing gang signs at the jury, belching loudly, and repeatedly interrupting the judge:

Franklin nodded, stared at the floor, and played shadow puppets in light cast from the screen upon which were displayed slides of his deceased family members and the burned house in which they died.At other times he played shadow games with his tie.Franklin sat alone and stared[,] rarely paying attention to the proceedings.

Appellant'sBr. 15–16(citations omitted).In the face of overwhelming evidence of Franklin's guilt, the jury found Franklin guilty of all fifteen counts and recommended that he receive the death penalty.The trial court agreed with the jury's recommendation and sentenced Franklin to death.

On direct appeal, Franklin argued that his trial attorneys were ineffective for failing to request a new competency hearing in the middle of the trial.In particular, Franklin argued that his “behavior during trial should have prompted defense counsel to request another competency determination to decide if he was competent to continue at the trial and penalty phases,” noting that “during the sentencing portion of Appellant Franklin's trial, defense counsel informed the trial court that Appellant Franklin was unable to assist them because of his mental state during the trial.”In another section of his appellate brief, in which Franklin argued that the trial court should have ordered a midtrial competency hearing sua sponte, Franklin also noted that Dr. Eugene Cherry, a psychologist whom Franklin called as an expert witness at trial, “consistently testified that Appellant Franklin suffered from ... paranoid schizophrenia.”

The Ohio Supreme Court affirmed, holding that a midtrial competency hearing was not warranted.SeeState v. Franklin , 97 Ohio St.3d 1, 776 N.E.2d 26, 35(2002).The court held that Dr. Cherry's testimony concerning Franklin's schizophrenia “did not need to be reconsidered [by the trial court] because similar testimony had been presented at [Franklin's] pretrial competency hearing.”Ibid.The court noted that although Franklin's courtroom actions “did indeed constitute strange behavior, they illustrated a pattern of rudeness rather than incompetency to stand trial.”Ibid.For this reason, the Ohio Supreme Court concluded that “the evidence ... does not shed any new light on [Franklin's] ability to understand the proceedings, to interact with his counsel, or to assist in his defense.”Ibid.After determining that “no [competency] hearing was warranted,”id. at 40, the court held that counsel could not be ineffective for failing to request a second competency hearing, id. at 39–40.The United States Supreme Court denied certiorari.Franklin v. Ohio , 539 U.S. 905, 905, 123 S.Ct. 2249, 156 L.Ed.2d 115(2003)(mem.).

While his direct appeal was still pending in the Ohio Supreme Court, Franklin, who was still represented by counsel, filed a petition for postconviction relief in state trial court in which he repeated his direct-appeal claim that his trial attorneys were ineffective for failing to request a midtrial competency hearing.Ohio has a bifurcated system for processing constitutional claims arising out of a criminal trial.If an alleged constitutional error can be raised and fully litigated on direct appeal, res judicata generally bars the relitigation of that alleged error in a state postconviction proceeding.See, e.g. , State v. Sowell , 73 Ohio App.3d 672, 598 N.E.2d 136, 141–42(1991).But if the claim of constitutional error is supported by sufficient extra-record evidence, res judicata does not prohibit a prisoner from raising the alleged error again on state collateral review.State v. Cole , 2 Ohio St.3d 112, 443 N.E.2d 169, 171(1982).As the district court explained below, “an Ohio defendant may raise an ineffective assistance of trial counsel claim on direct appeal and get a decision on the merits of that claim, based on the evidence of record, and then get more evidence that was not in the record and re-file the claim in post-conviction.”

Unlike his direct-appeal ineffective-assistance-of-trial-counsel claim, which relied wholly on evidence in the record, Franklin supported his state postconviction claim with new evidence, namely, an affidavit from a new psychologist, Dr. Sharon Pearson, who stated that based on her review of the record, including a video recording of trial, Franklin was not competent during his trial; an affidavit from Suzanne Wynn, who assisted defense counsel and observed strange behavior from Franklin; and an affidavit from his lead trial counsel, who stated that Franklin was unable to assist in his own defense.The state trial court, however, rejected Franklin's petition without a hearing, explaining that his ineffective-assistance-of-trial-counsel claim did not include extra-record evidence.Since it was not so raised, it was barred by res judicata because it could be raised only on direct appeal.

The Ohio Court of Appeals affirmed the trial-court decision, addressing Franklin's ineffective-assistance-of-trial-counsel argument on the merits.The court explained that because Franklin's attorneys “had already argued Franklin's incompetency to the trial court and lost,”they had “no reason to believe [that]they would be successful on a second attempt, [and] it was a reasonable tactical decision to refrain from requesting a new hearing.”State v. Franklin , No. 19041, 2002 WL 1000415, at *4(Ohio Ct. App.May 17, 2002).The court further explained that “Franklin has [also] failed to establish that he was prejudiced.”Ibid.The Ohio Supreme Court denied Franklin's petition for review.State v. Franklin , 108 Ohio St.3d 1475, 842 N.E.2d 1054, 1054(2006)(mem.).

B

Having exhausted state-court remedies, Franklin timely filed an application for a writ of habeas corpus in the United States District Court for the Southern District of Ohio.In addition to arguing that the trial court erred by failing...