Mills v. Anderson, C-1-96-423.

• Decision Date: 12 February 1997
• Docket Number: No. C-1-96-423.,C-1-96-423.
• Citation: 961 F.Supp. 198
• Parties: James Ethan MILLS, Petitioner, v. Carl S. ANDERSON, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

Page 198

961 F.Supp. 198

James Ethan MILLS, Petitioner, v. Carl S. ANDERSON, Warden, Respondent.

No. C-1-96-423.

United States District Court, S.D. Ohio, Western Division.

February 12, 1997.

Glenn Virgil Whitaker, Vorys, Sater, Seymour & Pease, Cincinnati, OH, Randall Lee Porter, State Public Defender Office, Fed. Death Penalty Resource Center, Columbus, OH, Dale Andrew Baich, Asst. Fed. Public Defender, Pheonix, AZ, for Petitioner.

James Ethan Mills, Mansfield Correctional Inst., Mansfield, OH, pro se.

Carl W. Anderson, Mansfield Correctional Inst., Mansfield, OH, pro se.

Stuart W. Harris, Ohio Atty. Gen., Capital Crimes Section, Columbus, OH, Michael Louis Bachman, Ohio Atty. Gen., Capital Crimes Section, Cincinnati, OH, for Respondent.

ORDER DENYING IN PART RESPONDENT'S MOTION TO APPLY THE ANTITERRORISM & EFFECTIVE DEATH PENALTY ACT OF 1996

DLOTT, District Judge.

This matter is before the Court for determination of whether Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996 applies to this case. For reasons set forth more fully below, the Court finds that Chapter 154 does not apply and hereby DENIES in part Respondent's Motion to Find the Antiterrorism and Effective Death Penalty Act of 1996 Applicable (doc. # 11).

I. BACKGROUND

On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (hereinafter "the Act") which amends portions of 28 U.S.C. §§ 2241 et seq., governing habeas corpus proceedings in federal courts. The Act not only amended the existing habeas corpus provisions contained in Chapter 153 of Title 28, but also promulgated a series of new provisions applicable to death penalty habeas corpus cases, codified at Chapter 154 of Title 28 (28 U.S.C. §§ 2261-2266). On June 24, 1996, this Court issued an order directing the parties to submit briefs regarding the applicability of Chapter 154 to the instant case.¹

Petitioner, a state prisoner who has been convicted of aggravated murder and sentenced to death by the State of Ohio, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court first received notice of Mills' "intent to file habeas corpus petition" on April 18, 1996 (doc. # 3). The President signed the Act into law on April 24, 1996. The Act does not contain an express statement of a generally applicable effective date, however, an uncodified section (§ 107(c)) provides that: "Chapter 154 of title 28, United States Code (as added by subsection (a)) shall apply to cases pending on or after the date of enactment of this Act." Since this case was pending on the relevant date (April 24, 1996), Mills' petition is subject to Chapter 154 of the Act.

II. DISCUSSION

A. Chapter 154 "Opt-in" Requirements

The Court has found that Mills is subject to the provisions of Chapter 154. In order for Chapter 154 to become operative, however, the State must comply with Title 28 U.S.C. § 2261(b) and (c), which imposes requirements for appointment of counsel for petitioners seeking post-conviction review of their capital sentences in the State court system. When Chapter 154 is applicable, capital cases covered by it are subject to an expedited 180-day review procedure. States can "opt-in" to this expedited review procedure by meeting the terms of § 2261. These provisions of the Act are intended to address the issues of delay and abuse in federal habeas filings. The designers of the Act sought to encourage states to provide competent counsel in state collateral review in exchange for a mechanism which ensures expedited and final review of federal habeas corpus petitions. House Comm. on the Judiciary, Effective Death Penalty Act of 1995, H.R.Rep. No. 23, 104th Cong., 1st Sess., 1995 WL 56412 (1995) at *16 ("House Report").² This arrangement was clearly intended as a "quid pro quo." Id. Therefore, the expedited review procedures of Chapter 154 are available to a state only if it has a capital case process in conformity with 28 U.S.C. § 2261, which provides in pertinent part:

(a) This chapter shall apply to cases arising under section 2254 brought by prisoners in State Custody who are subject to a capital sentence. It shall apply only if the provisions of subsections (b) and (c) are satisfied.

(b) This chapter is applicable if a State establishes by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal to the court of last resort in the State or have otherwise become final for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel.

(c) Any mechanism for the appointment, compensation and reimbursement of counsel as provided in subsection (b) must offer counsel to all state prisoners under capital sentence and must provide for the entry of an order by a court of record —

(1) appointing one or more counsel to represent the prisoner upon a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject the offer;

(2) finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences:

or

(3) denying the appointment of counsel upon a finding that the prisoner is not indigent.

(d) No counsel appointed pursuant to subsections (b) and (c) to represent a State prisoner under capital sentence shall have previously represented the prisoner at trial or on direct appeal in the case for which the appointment is made unless the prisoner and counsel expressly request continued representation.

Ohio must comply with the terms of § 2261 in order to "opt-in" to the expedited review procedures of Chapter 154.

B. Analysis

1. Appointment of Counsel

Ohio law does not include a mechanism that provides counsel for all indigent capital prisoners in state post-conviction proceedings in accordance with the terms of § 2261. The Ohio Public Defender Act, codified in the Revised Code [R.C.], Chapter 120, does not meet the requirements of § 2261. Although R.C. § 120.16(A)(1) requires that the county public defender provide representation to indigent prisoners in state post-conviction proceedings, § 120.16(D) provides that "the county public defender shall not be required to prosecute any appeal, post-conviction remedy, or other proceeding, unless he is first satisfied there is arguable merit to the proceeding" (emphasis added).³ Thus this statutory right to representation does not attach unless the public defender finds that the claim has arguable merit.

In State v. Crowder, 60 Ohio St.3d 151, 573 N.E.2d 652 (1991), the Supreme Court of Ohio affirmed this interpretation, finding that although a post-conviction petitioner has a statutory right to representation, "[t]he General Assembly has provided the public defender with the authority and discretion to refuse to represent an indigent prisoner seeking post-conviction relief, if the public defender, after examining the issues raised by the petitioner, concludes that the issues do not have arguable merit." Id. at 152-53, 573 N.E.2d 652 (emphasis added). Since neither the Ohio Public Defender, nor the county public defenders are required by statute to accept a case which they deem lacks arguable merit, an indigent prisoner is not guaranteed post-conviction representation. Therefore, Ohio is not complying with the requirements of the Act.⁴

The Respondent's argument that the Public Defender Commission has never refused representation in a capital case on the basis of no arguable merit, and that every death-sentenced defendant who has initiated a post-conviction petition in Ohio has been represented by counsel — even assuming these factual assertions to be correct — is to no avail. For states to "opt-in" to the expedited review procedures of Chapter 154, they are required to offer counsel, by statute, to "all State prisoners under capital sentence." 28 U.S.C. § 2261(c) (emphasis added). The provisions of § 2261 are drafted with mandatory language and neither substantial compliance nor de facto compliance is sufficient.

The Respondent also argues that recent amendments to the Ohio Revised Code qualify Ohio as an opt-in state.⁵ In an apparent attempt to preclude a finding that these amendments may not be considered because they occurred after the initiation of petitioner's habeas case, Respondent argues that these amendments amount to a declaration of existing practice in death penalty cases as opposed to a change in existing procedures.

First, the Court notes that it is unpersuaded that these amendments are merely a "declaration of existing practice." If these amendments do amount to a change in the law from prior practice at the time petitioner's case was initiated, then it would seem inappropriate to interpret them as making Ohio an opt-in state for purposes of the instant case.

However, even if the Court accepts petitioner's argument that the amendments merely clarify existing practice, the Respondent's argument that Ohio is an opt-in state still fails. The amendments make no change in the discretion accorded to public defenders to reject cases which lack arguable merit, and the amendments do not bring Ohio into compliance with the entry of court order, reasonable compensation, or other requirements of § 2261 to be discussed below. Therefore, regardless of the applicability of the amendments to the Revised Code, Ohio does not qualify as an opt-in state.

2. Entry of Court Order

The method for appointment of counsel in Ohio does not provide for the "entry of an order by a court of record" reflecting that the offer of counsel was made, along with a finding of...