Lordi v. Ishee

• Decision Date: 10 September 2004
• Docket Number: No. 02-4273.,02-4273.
• Citation: 384 F.3d 189
• Parties: Frank LORDI, Petitioner-Appellant, v. Todd ISHEE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

384 F.3d 189

Frank LORDI, Petitioner-Appellant, v. Todd ISHEE, Warden, Respondent-Appellee.

No. 02-4273.

United States Court of Appeals, Sixth Circuit.

Argued: June 10, 2004.

Decided and Filed: September 10, 2004.

Appeal from the United States District Court for the Northern District of Ohio, Donald C. Nugent, J Max Kravitz (briefed), Kort W. Gatterdam (argued and briefed), Kravitz & Kravitz, Columbus, OH.

Stuart A. Cole (argued and briefed), Asst. General Corrections Litigation Section, Columbus, OH, for Respondent.

Before: SILER, MOORE, and BALDOCK, Circuit Judges.^*

SILER, J., delivered the opinion of the court, in which BALDOCK, J., joined. MOORE, J. (pp. 195-99), delivered a separate opinion dissenting in part.

OPINION

SILER, Circuit Judge.

Frank Lordi appeals the district court's denial of his petition for a writ of habeas corpus from his convictions in state court under 28 U.S.C. § 2254. In the district court, Lordi claimed various constitutional deficiencies in his convictions. However, this court granted Lordi a certificate of appealability solely on the issues of whether his trial counsel was constitutionally ineffective due to a conflict of interest, and whether Lordi was constitutionally deprived of an impartial jury due to the trial court's decision not to investigate an allegation of a juror's bias. For the reasons stated hereafter, the district court is AFFIRMED.

BACKGROUND

In April 1998, Lordi was indicted on eighteen criminal counts, variously stemming from his position as a county commissioner in Mahoning County, Ohio. Lordi hired attorney Lou D'Apolito (D'Apolito) to defend against the charges. D'Apolito's law partner, David D'Apolito, had previously represented one of the government's material witnesses against Lordi, Joseph Veneroso. This representation had been in a previous unrelated criminal case involving a felony charge of bribery. Veneroso had worked in the county's building inspection office and had offered to pay his supervisor $6,000 for the answers to a required certification test. In 1996, in exchange for Veneroso's guilty plea, the charge was reduced to a misdemeanor of falsification. At Lordi's trial, the government intended to have Veneroso testify in regard to how Lordi would direct Veneroso to engage in personal (e.g., maintenance on Lordi's rental houses) and political (e.g., gathering petitions) chores while he was being paid by the county.

D'Apolito initially questioned his ability to defend Lordi due to his partner's prior representation of Veneroso, and informed Lordi that he had a potential conflict of interest. However, after conducting some research into the conflict issue, D'Apolito concluded that he would be able to defend Lordi. D'Apolito shared this research and his conclusion with both the original prosecutor and the replacement prosecutor, who initially warned D'Apolito that he thought it was necessary to seek his removal from the case due to the potential conflict until D'Apolito shared his research with him. Off the record before trial, D'Apolito and the prosecutor, without Lordi present, brought the prior representation of Veneroso to the attention of the trial court, which was dismissive of the entire issue. The parties and court intended to put the issue on the record when a court reporter was available, but never did.

During cross-examination of Veneroso at trial, D'Apolito brought out Veneroso's conviction for falsification, but otherwise did not go into any details of the offense. The cross-examination was relatively friendly with D'Apolito accepting several re-characterizations of his questions by Veneroso. Ultimately, on February 24, 1999, Lordi was convicted on four counts, including theft in office (O.R.C. § 2921.42(A)(2)), unlawful interest in a public contract (O.R.C. & sect; 2921.42(A)(1)), and two misdemeanor counts of having a conflict of interest (O.R.C. § 102.03(E)). All the counts on which Lordi was convicted either did not rely on Veneroso's testimony, or had other witnesses who corroborated Veneroso's testimony.

Additionally, after jury selection but before trial, D'Apolito received an anonymous telephone call from a female who claimed to have been a member of the venire. The caller alleged that she overheard an impaneled juror make the statement "that guy is guilty" while looking over at Lordi. The caller refused to identify herself, but claimed that another member of the venire, whom she named, had also overheard the comment as they had discussed it between themselves. D'Apolito brought this to the immediate attention of the trial court and requested that the court inquire into the truth or falsity of the allegation. The state opposed this inquiry on the basis that there was no indicia of reliability as to the accusation and it had the potential of tilting the accused juror into a pro-defense mode to compensate against the accusation that he was biased against Lordi. The trial court refused to conduct additional inquiry, citing the fact that the call was anonymous and that the court had no reason to suspect that anyone sitting in the venire would have heard it. Additionally, the court speculated that the comment could have been made in jest, and agreed with the prosecution that an inquiry would potentially tilt the juror into a pro-defense mode.

On May 26, 1999, Lordi filed a motion for a new trial on the basis of newly discovered evidence, citing his "discovery" of a conflict of interest in his trial counsel. After an evidentiary hearing, the motion was denied. The appeal of the motion's denial and Lordi's direct appeal were consolidated by the Ohio Court of Appeals, which affirmed the denial and Lordi's conviction in 2000. The Ohio appellate court ruled as to the conflict issue that "[t]here [was] nothing in the record to demonstrate that [Lordi's] counsel had an actual conflict of interest which prevented him from effectively representing" Lordi. Ohio v. Lordi, 140 Ohio App.3d 561, 748 N.E.2d 566, 573 (Ohio Ct.App.2000). On May 23, 2001, the Ohio Supreme Court denied Lordi leave to appeal. A subsequent motion for reconsideration was denied. While pursuing the appeal to the Ohio Supreme Court, Lordi filed other applications for relief in the Ohio courts, which were variously denied and for which he was ultimately denied leave to appeal by the Ohio Supreme Court on May 23, 2001.

On January 4, 2001, Lordi filed a motion to reopen his appeal with the Court of Appeals, alleging various claims that his appellate counsel was ineffective, including the failure of his appellant counsel to raise the issue of the trial court's failure to inquire into the juror bias issue. In February 2001, the motion was denied with the appellate court ruling in regard to the juror misconduct issue that "[t]he only evidence of such misconduct before the court was an anonymous call. As the record does not support a claim of juror misconduct other than this anonymous phone call, appellant has not demonstrated a reasonable likelihood that had appellate counsel raised this assignment of error, it would have been sustained." Lordi appealed this decision to the Ohio Supreme Court, which also denied this claim in its consolidated denial of Lordi's petition on May 23, 2001.

On July 17, 2001, Lordi filed for a writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. The district court dismissed the petition and denied a certificate of appealability (COA). This court later granted a certificate of appealability on two issues: first, whether Lordi received constitutionally ineffective assistance of counsel due to a conflict of interest by his trial counsel; and second, whether he was denied his Sixth Amendment right to an impartial jury.

ANALYSIS

Standard of Review.

A district court's denial of a habeas corpus writ is reviewed de novo. Gonzales v. Elo, 233 F.3d 348, 352 (6th Cir.2000). Because Lordi's convictions occurred in 1999, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, factual findings made by a state court are presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). For Lordi to receive relief, this court must find that the Ohio court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or was based on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) & (2). Lordi has not raised issues in regard to the factual determinations of the Ohio courts, but focuses his arguments upon whether the Ohio courts made a determination that was contrary to federal law, or was an unreasonable application of that law.

A. Conflict of Interest. Lordi's conflict of interest claim relates to a successive (previous unrelated representation of a co-defendant and/or trial witness) rather than a joint (simultaneous trial of co-defendants) or a multiple (co-defendants at severed trials) representation. The presumed prejudice standard for ineffectiveness claims based on a conflict of interest detailed in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), is inapplicable to cases of successive representations. See McFarland v. Yukins, 356 F.3d 688, 701(6th Cir.2004); Kohn v. U.S., 323 F.3d 445, 460-61 (6th Cir.2003). Therefore, Lordi's argument that the Ohio courts acted contrary to federal law by dismissing the ineffectiveness claim due to his failure to demonstrate any prejudice is not correct. Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is the controlling authority for an ineffectiveness claim based on a conflict of interest for a successive representation, which was the legal standard the Ohio courts identified.

Not only did the Ohio courts...