Smith v. Warden, Toledo Corr. Inst.
| Jurisdiction | United States,Federal |
| Parties | CHRISTOPHER SMITH, Petitioner, v. WARDEN, Toledo Correctional Institution, Respondent. |
| Decision Date | 18 January 2024 |
| Court | U.S. District Court — Southern District of Ohio |
| Docket Number | 1:12-cv-425 |
REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on remand from the United States Court of Appeals for the Sixth Circuit. Smith v. Warden, Case Nos. 20-3472, 20-3496, 2022 WL 601860 (6th Cir. Mar. 1, 2022)(unpublished; copy at ECF No. 171)(“Smith II”)(Sutton C.J., with Siler & Readler)[1].
On a prior remand (Smith v. Warden, 780 Fed.Appx. 208 231 (6th Cir. 2019)(“Smith I”) (Stranch, J, with Norris & Siler) this Court had granted an unconditional writ of habeas corpus on Smith's claim that the State violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing the DNA testing notes of Dr. Heinig, a DNA analyst (ECF No. 125). In Smith II, the circuit court reversed that conclusion, holding that the Ohio First District Court of Appeals decision on the Brady claim was neither contrary to nor an objectively unreasonable application of Supreme Court precedent and was therefore entitled to deference under AEDPA. Smith II at *6[2].
Following remand, each party has filed additional briefing (Respondent's Brief, ECF No. 176; Petitioner's Brief, ECF No. 177), making the remanded claim ripe for decision.
Respondent argues this Court has little work to do on remand. The Warden reasons that because Smith II held the Ohio Court of Appeals reasonably applied Brady v. Maryland, 373 U.S. 83 (1963), in denying Smith's Ohio R. App. P. 26(B) Application, a fortiori there was no prejudice in failing to raise that claim and without prejudice there can be no violation of the ineffective assistance of counsel standard of Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner, however, contends that under the law of the case doctrine, Smith I rather than Smith II is controlling, and this Court should re-issue the unconditional writ because the state court's factual determinations were unreasonable.
Petitioner opens his Brief with a rhetorical appeal to his purported innocence of the underlying crime: (ECF No. 177, PageID 3688). Counsel offers no record reference to any such offer and the Court cannot consider counsel's statement as evidence because it is extra-record. Cullen v. Pinholster, 563 U.S. 170 (2011).
Smith argues that under the law of the case doctrine, this Court must follow Smith I rather than Smith II. (Petitioner's Brief, ECF No. 177, PageID 3695, citing Scott v. Churchill, 377 F.3d 565, 569-70 (6th Cir. 2004); United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990); Edmonds v. Smith, 922 F.3d 737, 739 (6th Cir. 2019); “Wright & Miller §3867 Law of the Case for Remand”; and the undersigned's prior Report and Recommendations in this case (ECF No. 115; PageID 3291-94)).
The Wright & Miller citation is inapposite as that section of the treatise deals only with multi-district litigation. In Edmunds, the court declined to apply law of the case doctrine across two habeas (§ 2255) cases arising out of the same conviction. Edmunds is also inapposite to our situation here.
In Scott the Sixth Circuit was considering the application of law of the case doctrine on a second appeal the situation in this case. Judge Moore wrote for the Court:
The law-of-the-case doctrine “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, *570 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). However, the doctrine merely “directs a court's discretion, it does not limit the tribunal's power.” Id.; see also Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589-90 (6th Cir.1995). “In essence, the mandate rule is a specific application of the law-of-the-case doctrine.” United States v. Campbell, 168 F.3d 263, 265 (6th Cir.1999). “The basic tenet of the mandate rule is that a district court is bound to the scope of the remand issued by the court of appeals.” Id. The scope of a remand is determined by examining the entire order or opinion, to determine whether and how the court of appeals intended to limit a remand. Id. at 266-68. In the instant case, our opinion in Scott I had already determined that Scott's retaliation claim against Bair could survive summary judgment under the Thaddeus-X standard; had the panel of our court meant in Scott II to hold that the Thaddeus-X standard was the appropriate one to be used in gauging qualified immunity, our panel presumably would have remanded with instructions to deny Bair's motion and proceed to trial. Instead, the opinion as a whole makes clear that the district court is to reconsider Bair's motion “[i]n light of Bell.” Scott II, 55 Fed.Appx. 268. “The issue presented by Scott [the appellant in Scott II ], and resolved in Bell, is the applicability of the ‘shocks the conscience' standard to prisoner First Amendment retaliation claims alleging conduct in 1995.” Id. at 269. Given the discretionary nature of the law-of-the-case doctrine, the clear misstatement of Bell's holding by Scott II, and the failure of Bair's qualified immunity claim under Bell's actual holding, as detailed below, we decline to consider Scott II's statement as binding upon the district court below or on this court now.
Scott, 377 F.3d at 569-70. Applying Scott here, the circuit panel in Smith II was not bound by Smith I and neither is this Court; application of the mandate rule requires us to follow Smith II rather than Smith I.
Petitioner asserts that the law of the case doctrine as set forth in Trimble v. Bobby, 804 F.3d 767 (6th Cir. 2015), requires this Court to follow Smith I rather than Smith II (ECF No. 177, PageID 3698). In fact, Petitioner purports to quote Trimble as saying [“]Both rulings cannot be right, as they look in opposite directions. To resolve this Janus-like dilemma, we look to the oldest decision on point.[3]” The quotation cannot be accurate because the phrases “opposite direction” and “Janus-like” do not appear anywhere in Trimble. In fact, Petitioner's heavy reliance on Trimble is puzzling because the opinion does not discuss law of the case doctrine at all.
The mandate rule is a specific application of the law-of-the-case doctrine. The basic tenet of the mandate rule is that a district court is bound to the scope of the remand issued by the court of appeals. United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999). The mandate rule is a distinct concept which preserves the hierarchy of the court system. Scott, 377 F.3d at 570.
Pursuant to the law of the case doctrine, and the complementary "mandate rule," upon remand the trial court is bound to "proceed in accordance with the mandate and law of the case as established by the appellate court." Id. (quoting Petition of U.S. Steel Corp., 479 F.2d 489, 493 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973)). The trial court is required to "implement both the letter and the spirit" of the appellate court's mandate, "taking into account the appellate court's opinion and the circumstances it embraces." Brunet v. City of Columbus, 58 F.3d 251, 254 (6th Cir. 1995).
Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006).
The remand in Smith II requires this Court to decide the free-standing ineffective assistance of appellate counsel claim we bypassed before the appeal, having decided it was moot because we granted more fulsome relief on the Brady claim than was available on the ineffective assistance of appellate counsel claim, to wit, a new trial as opposed to a new direct appeal.
(Petition, ECF No. 1-1, PageID 50). Only that portion of Ground Seven which claims ineffective assistance of appellate counsel for failure to raise the Brady claim remains viable (See ECF No. 115, PageID 3294).
The governing standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes...
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