Williams v. Arn

• Decision Date: 13 June 1986
• Docket Number: No. C85-500A.,C85-500A.
• Citation: 654 F. Supp. 226
• Parties: Carmen WILLIAMS, Petitioner, v. Dorothy ARN, Supt., Respondent.
• Court: U.S. District Court — Northern District of Ohio

654 F. Supp. 226

Carmen WILLIAMS, Petitioner, v. Dorothy ARN, Supt., Respondent.

No. C85-500A.

United States District Court, N.D. Ohio, E.D.

June 13, 1986.

Dean Carro, Appellate Review Office, School of Law, University of Akron, Akron, Ohio, for petitioner.

Christine Manuelian, Asst. Atty. Gen., Columbus, Ohio, for respondent.

MEMORANDUM OPINION

DOWD, District Judge.

PROCEDURAL HISTORY

The petitioner, Carmen Williams, aided by her counsel James Burdon, filed this action seeking habeas corpus relief pursuant to Title 28 United States Code § 2254 on February 12, 1984. The case was assigned to United States District Judge Sam H. Bell who referred the case to Magistrate Charles R. Laurie on February 12, 1985 for supervision and for the preparation of a report containing a recommended disposition. The Magistrate conducted an evidentiary hearing on May 29, 1985 and thereafter, on June 24, 1985, he filed a report and recommendation with Judge Bell recommending that petitioner's case be dismissed. On July 2, 1985, Judge Bell disqualified himself from further conduct on this case and this matter was assigned to this Court. On July 2, 1985, petitioner's counsel James L. Burdon filed a motion seeking to withdraw as attorney of record for the petitioner. On August 26, 1985, this Court denied Mr. Burdon's motion to withdraw as counsel of record and granted the petitioner until the 19th of September, 1985, to file objections to the report. On September 19, 1985, Mr. Burdon filed the objections of the petitioner to the report and recommendation. On October 21, 1985, J. Dean Carro entered an appearance as counsel for the petitioner, replacing Mr. Burdon who subsequently testified in an evidentiary hearing before the Court in support of one of petitioner's claims. The Court, after examining the report and recommendation of Magistrate Laurie, scheduled an oral hearing on November 11, 1985 for December 4, 1985. Counsel were directed to appear at the hearing and respond to the following questions:

1. What circumstances if any does the failure of the defendant's lawyer to communicate to the defendant a bona fide offer by the government to accept a plea of guilty to reduce charges constitute the denial of effective assistance of counsel.

2. Has the petitioner exhausted state remedies on the issues respecting the alleged communication of the offer to accept the plea of guilty to aggravated robbery in return for a promise to dismiss the aggravated murder charge.

3. Under what set of circumstances, if any, must a court conduct an evidentiary hearing in this case with respect to the issue of whether the alleged offer was communicated by Kirkwood (an assistant Summit County prosecuting attorney) to petitioner's trial counsel?

On December 20, 1985, the Court concluded that the petitioner had exhausted her state remedies, opined that a failure of defendant's attorney to communicate to the defendant a bona fide offer by the government to accept a plea of guilty to reduced charges constitutes the denial of effective assistance of counsel citing United States ex rel Caruso v. Zelinsky, 689 F.2d 435, 438 (3rd Cir.1982), and declared that, in the exercise of its discretion, and in order to discharge its duty to conduct a de novo review of the Magistrate's report would hold an evidentiary hearing to review the petitioner's allegation that her retained trial counsel's failure to inform her of the government's willingness to accept a guilty plea to reduce charges constituted ineffective assistance of counsel.

On February 12, 1986, an evidentiary hearing was conducted before the Court for a period of seven hours. Subsequently, a transcript of the evidentiary hearing and post-evidentiary hearing briefs were filed as requested by the Court.

A recital of the lengthy state proceedings are set forth in the Magistrate's report and recommendation from pages 2 through 7. The Magistrate's report and recommendation indicates that the jury returned a verdict of guilty on January 2, 1975.¹ Petitioner was one of four persons charged in the October, 1974 robbery and homicide of an Akron taxicab driver, Robert Hartley. The factual background for the petitioner's conviction is set forth by the Ohio Court of Appeals.

On the evening of October 16, 1974, Jeremiah Caldwell, Johnny Roper, Anita Small, and the defendant, Carmen Williams, left the defendant's home after planning to commit a robbery. They first walked to a bar in the neighborhood where they called a cab. In response to their call Robert Hartley picked them up in a G.I. cab, drove them to Crosby Street, and stopped. As the four were getting out, Johnny Roper pulled a pistol on Hartley and forced him to get out of the cab. The four robbers took nine dollars from him. They all got back in the cab and made Hartley drive them to Putnam Street. Hartley parked the cab and all the occupants got out. The four robbers rummaged through the cab and found the coin changer which they threw away. Hartley was then placed in the trunk and Johnny Roper drove the cab to Perkins Woods. The four robbers again got out of the cab. Johnny Roper and Anita Small took the driver out of the trunk and walked out into a field with him. The four shot him five times in the head and upper torso. These shots killed Hartley. The four then fled the scene on foot.

The defendant, Carmen Williams, was charged with aggravated murder, a violation of R.C. 2903.01(B) with two specifications. The specifications were under R.C. 2929.04(A)(2), (aggravated murder committed for the purpose of escaping detection, apprehension, trial or punishment for aggravated robbery) and R.C. 2929.04(A)(7) (aggravated murder committed while the defendant was committing aggravated robbery). She was also charged with aggravated robbery, a violation of R.C. 2911.01(A)(1) or (2).

In a pre-trial statement and later on the stand as a witness, the defendant claimed that she was unaware of any of the criminal intentions of her friends, got out of the cab as it went up the innerbelt, was not present during the robbery or murder, and took no part in either crime. The State's main evidence is the testimony of two of the four participants, Anita Small and Jeremiah Caldwell. The record also contains a considerable amount of supporting evidence.

A jury found the defendant guilty of both crimes and the two specifications. A mitigation hearing was held and on April 10, 1975, the trial court found that "the offense was primarily the product of the offender's psychosis or mental deficiency, though such condition is insufficient to establish the defense of insanity." The defendant was sentenced to life imprisonment for the murder and 7 to 25 years for the robbery with the sentences to run consecutively.²

Magistrate's Report and Recommendation, pp. 8-9. The petitioner was found guilty of aggravated murder and two aggravating circumstances in violation of Ohio R.C. § 2903.01 as it was then constituted in 1974. As a consequence, following the petitioner's conviction, the trial court under then existing Ohio statutory law had the obligation to conduct a mitigation hearing and determine whether there was a mitigating circumstance that would save the petitioner from a death sentence. During the mitigation hearing, the trial court found the performance of petitioner's trial counsel to be such that petitioner was being denied the effective assistance of counsel and thus petitioner's retained trial counsel³ was removed from further proceedings in the mitigation hearing.⁴ Attorney James Burdon was appointed to represent the defendant during the mitigation hearing and as a consequence of the completed hearing, the trial court found a mitigating circumstance to exist and sentenced the petitioner to a life sentence.⁵

This case presents two issues. Each involves the petitioner's sixth amendment right to the effective assistance of counsel. The first issue relates to the petitioner's claim that her retained counsel denied her the effective assistance of counsel by both his pre-trial and trial performance as to the issue of her guilt or innocence. The second issue, independent of the issue of petitioner's counsel's trial performance, relates to the additional charge of a denial of the effective assistance of counsel because petitioner's trial counsel allegedly received prior to trial from the prosecuting attorney a proposed guilty plea agreement which was not communicated to the petitioner. The alleged proposal called for the petitioner's plea of guilty to the charge of aggravated robbery in return for a nolle of the aggravated murder charge.

INEFFECTIVE ASSISTANCE OF COUNSEL DURING TRIAL PROCEEDINGS

The petitioner was represented by a retained counsel secured by her family. The petitioner was 18 years of age at the time of the offense. Her family hired Gerald Smith of Avon Lake to represent the petitioner. Alex Jesensky was associated with Gerald Smith in the practice of law. Smith referred the case to Jesensky and eventually Jesensky was the only person to participate in the trial as defense counsel for the petitioner. Jesensky had not previously participated as a defense counsel in a felony jury trial.

Petitioner alleges that Jesensky provided ineffective assistance of counsel prior to and during the trial in the following particulars:

1. Jesensky failed to file a motion to suppress the petitioner's pre-trial statement.

2. Jesensky failed to file a notice of alibi.⁶

3. Jesensky introduced the petitioner's juvenile arrest record while conducting the direct examination of the petitioner during the presentation of her defense.

4. Jesensky failed to engage in any substantive cross-examination of Anita Small and Jeremiah Caldwell.

Mindful of the mandate in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) that a successful challenge to one's conviction based upon an allegation of the denial of effective assistance of counsel requires a showing...