James v. Brigano

• Decision Date: 30 November 2006
• Docket Number: No. 05-4003.,05-4003.
• Citation: 470 F.3d 636
• Parties: Ahmad JAMES, Petitioner-Appellee, v. Anthony BRIGANO, Warden, Warren Correctional Institution, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

470 F.3d 636

Ahmad JAMES, Petitioner-Appellee, v. Anthony BRIGANO, Warden, Warren Correctional Institution, Respondent-Appellant.

No. 05-4003.

United States Court of Appeals, Sixth Circuit.

Submitted: May 30, 2006.

Decided and Filed: November 30, 2006.

COPYRIGHT MATERIAL OMITTED

ON BRIEF: Diane Mallory, Office of the Attorney General, Corrections Litigation Section, Columbus, Ohio, for Appellant.

Derek A. Farmer, Derek A. Farmer & Associates Co., Columbus, Ohio, for Appellee.

Before: KEITH and BATCHELDER, Circuit Judges; ALDRICH, District Judge.^*

ALDRICH, D.J., delivered the opinion of the court, in which KEITH, J., joined. BATCHELDER, J. (p. 644-45), delivered a separate opinion concurring in the result.

OPINION

ANN ALDRICH, District Judge.

Respondent-appellant Anthony Brigano, Warden of the Warren Correctional Institution (the "Warden"), appeals the district court's grant of habeas corpus relief pursuant to 28 U.S.C. § 2254 to petitioner-appellee Ahmad James ("James") on his claims that (1) the state trial court failed to inquire as to the reasons for James's dissatisfaction with appointed counsel prior to trial, and (2) James's waiver of appointed counsel was not made knowingly and intelligently. Because the district court properly determined that neither of James's claims were procedurally defaulted, that it could order an evidentiary hearing, and that James's waiver of counsel was not made knowingly and intelligently, we affirm the district court's grant of habeas relief.

I.

James was indicted in September 1996 on a number of felony counts, including possession of crack cocaine while carrying a concealed weapon, possession of powder cocaine, carrying a concealed weapon, and having a weapon under disability. Following a trial in June 1997, a jury convicted James of the charge of having a weapon under disability, but hung on the remaining three charges. After the June 1997 trial, the counsel James had retained withdrew, citing James's indigence and inability to pay for their services. James was sentenced to 12 months incarceration for having a weapon under disability.

A public defender was then appointed to represent James after his previous attorneys withdrew, but the public defender did virtually no work and ended up withdrawing in May 1998 prior to James's re-trial on the three remaining charges. After the completion of the 12 month sentence, James was retried on the other three felony charges. The attorney who was appointed to represent James at that trial, his third attorney, was Albert Stewart ("Stewart"). On the day trial was scheduled to begin, June 22, 1998, Stewart met with James and informed him that he was not prepared to go to trial that day, that he had not received discovery from the prosecutor, and that he intended to ask for a continuance.

Stewart then asked the state trial court judge for a continuance. The state trial judge denied Stewart's request because Stewart was already in possession of the transcript from the June 1997 trial, which was, in the judge's opinion, superior to any discovery that could be had from the prosecutor. Following that, twice during the voir dire of prospective jurors, James declared that he wanted to fire Stewart. The judge instructed James not to engage in any further outbursts, lest James be found in contempt, tried in absentia, or gagged. At this point, Stewart again moved to withdraw as counsel, on the grounds that he could not properly represent James and get him a fair trial. While discussing the matter, the prosecutor suggested that James was "play[ing] the same trick" his half-brother had three weeks earlier, by engaging in spontaneous outbursts during jury selection, which led to a mistrial. The trial judge denied Stewart's request to withdraw, asserting that Stewart was ready for trial.

The trial judge then asked James if he wished to represent himself, if he did not wish to be represented by Stewart. The trial judge did not inquire into James's reasons for wanting to fire Stewart, nor did the trial judge explain the risks and dangers of self-representation. The court then permitted James to represent himself, without making a specific finding that James's waiver of counsel was knowing or intelligent. The jury convicted James on the three remaining counts, and he was sentenced to a total of thirteen years' incarceration.

James filed a direct appeal in July 1998 listing five assignments of error, but failing to list the two grounds on which the district court granted habeas relief: (1) the Sixth Amendment required the trial court to inquire into complaints made by an indigent criminal defendant prior to trial regarding appointed counsel's effectiveness; and (2) that his waiver of counsel was not knowingly, intelligently, or voluntarily made. The Ohio Court of Appeals affirmed James's convictions in February 1999. James petitioned for leave to appeal to the Ohio Supreme Court, raising the two grounds on which habeas relief was granted. The Ohio Supreme Court denied leave to appeal in June 1999.

Then, in May 1999, James filed in the Ohio Court of Appeals an application to reopen his appeal, listing the two grounds on which habeas relief was eventually granted. The Ohio Court of Appeals denied James's request in August 1999, finding that "waiver of counsel" was not an issue in James's trial, due to his dilatory tactics, and otherwise finding James's arguments without merit. James filed for leave to appeal that decision to the Ohio Supreme Court in September 1999, but the Ohio Supreme Court denied leave in November 1999.

James then filed the instant habeas action in the United States District Court for the Southern District of Ohio in September 2000, pressing four claims for relief. Magistrate Judge Michael Merz filed a Report & Recommendation ("R & R"), recommending that the petition be dismissed. Judge Walter Rice adopted that R & R in part and rejected it in part, remanding the matter for an evidentiary hearing on the two claims for habeas relief which would eventually be granted. In so doing, Judge Rice held that the success of James's second claim for relief, the failure of the state trial judge to inquire into the reasons for James's dissatisfaction with appointed counsel depended on the success of James's third claim for relief—that James's waiver of counsel was not knowingly and intelligently made. The case was then transferred to Judge Thomas Rose and Magistrate Judge Sharon Ovington.

Following the evidentiary hearing, Magistrate Judge Ovington filed an R & R recommending that James's petition for habeas relief be granted on his second and third claims for relief. Judge Rose adopted that R & R in its entirety in June 2005, overruling the Warden's objections, prompting the Warden's appeal to this court.

II.

Before addressing the merits of James's respective claims for habeas relief, we must first address two procedural matters. First, the Warden argues that James's claims for relief are barred by procedural default, and that such default may not be excused in this case. Second, the Warden argues that James failed to develop the factual basis for his habeas claims, such that the district court erroneously ordered the evidentiary hearing that led to the grant of habeas relief.

A.

On the question of procedural default, the court applies the familiar four-part Maupin test. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). Under Maupin, the court must determine: (1) if there is a state procedural rule that applies and petitioner failed to comply with that rule; (2) if the state court actually enforced the state procedural sanction; (3) if the state procedure ground is an "independent and adequate" ground to refuse review; and (4) if there is no cause and prejudice to excuse the default. Id. "[A] state rule is independent if the state court actually relies on it to preclude a merits review." Biros v. Bagley, 422 F.3d 379, 387 (6th Cir.2005) (emphasis added) (citing Abela v. Martin, 380 F.3d 915, 921 (6th Cir.2004)).

In this case, the question is whether, in denying James's motion to reopen his direct appeal, the Ohio Court of Appeals "actually relie[d]" on a state procedural rule to "preclude a merits review." The procedural rule in question is OHIO APP. R. 26(B), which governs applications by a criminal defendant to reopen an appeal "based on a claim of ineffective assistance of appellate counsel." OHIO APP. R. 26(B)(1). That procedure, created by the Ohio Supreme Court in State v. Murnahan, ensured that defendants could raise constitutional claims, but prevented state trial courts from "second-guess[ing] superior appellate courts." 584 N.E.2d 1204, 1208, 63 Ohio St.3d 60, 65 (1992). As codified in OHIO APP. R. 26(B), a motion to reopen "shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." OHIO APP. R. 26(B)(5). As the Ohio Supreme Court put it in Murnahan, the defendant must "put forth a colorable claim of ineffective assistance of appellate counsel." 584 N.E.2d at 1209, 63 Ohio St.3d at 66. If the court of appeals denies the motion to reopen, it must "state in the entry the reasons for denial." OHIO APP. R. 26(B)(6).

In this case, Magistrate Judge Ovington's R & R found that the Ohio Court of Appeals did not, in fact, enforce the state procedural sanction. James failed to present the two claims for habeas relief at issue in his direct appeal, but he did submit the claims in his application to reopen his appeal. While the Ohio Court of Appeals rejected that application, it did review both of James's claims on the merits instead of rejecting them on procedural grounds. The Warden argues, however, that claims reviewed in an application to reopen an appeal are never actually presented before a state court for the purposes of avoiding procedural default, citing Lott v. Coyle, 261 F.3d 594 (6th Cir.2001).

In Lott, the Sixth Circuit held that a...