Workman v. Tate

Decision Date02 March 1992
Docket Number91-3092,Nos. 91-3057,s. 91-3057
Citation957 F.2d 1339
PartiesDaniel WORKMAN, Appellee, v. Arthur TATE, Appellant. (WORKMAN I).
CourtU.S. Court of Appeals — Sixth Circuit

Paul Mancino, Jr., Cleveland, Ohio (argued), for appellee Workman.

Suzanne E. Mohr, Office of the Atty. Gen. of Ohio, Columbus, Ohio (argued), for appellant State of Ohio.

Before KEITH, RYAN and TIMBERS, * Circuit Judges.

TIMBERS, Circuit Judge.

Appellant Arthur Tate (State of Ohio or the state) appeals from an order entered December 6, 1990, in the Northern District of Ohio, Alvin I. Krenzler, District Judge, granting appellee Daniel Workman's petition for a writ of habeas corpus with respect to his convictions in the Court of Common Pleas for Cuyahoga County, Ohio on charges of felonious assault and having a weapon while under a disability.

The state asserts that the district court erred (1) in addressing the merits of Workman's petition because he had not exhausted his state remedies; and (2) in applying the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for determining whether a person is entitled to habeas relief because of the ineffective assistance of counsel.

For the reasons that follow, we affirm in part and reverse in part.

I.

We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. Our summary will be more comprehensive and detailed than usual for the reason that we are not insensitive to the delicate state-federal relations when a federal court exercises its statutory duty to review the conviction of a state prisoner pursuant to a petition for a writ of habeas corpus.

Workman was convicted in the state court for the offenses of felonious assault and having a weapon while under a disability. He was convicted chiefly as the result of testimony of several policemen who described the events that occurred outside Mike's Hide-Away Tavern in Cleveland, Ohio on March 8, 1986 at approximately 3:00 a.m.

Detective Candelaria testified that he, Detective Sieniawski, Captain Morales, and another detective were patrolling in unmarked police cars. They were investigating bars for the after-hours sale of liquor. They were dressed in plain clothes. Candelaria and Sieniawski saw three individuals leave Mike's Hide-Away Tavern and enter a pick-up truck parked in front of the building. Since they previously had received complaints for after-hours violations at this tavern, Sieniawski entered the bar while Candelaria remained outside peering in through the window. Sieniawski requested a drink, but he was refused service. Sieniawski then rejoined Candelaria outside the tavern, where they continued looking in through a window. Workman, step-brother of the tavern's owner, approached them from behind, pulled out a 38-caliber revolver, put it to the stomach of Sieniawski, and said, "Don't do it friend." Sieniawski grabbed the gun. A scuffle ensued. With the help of Candelaria and the other two officers, who had parked down the street, Workman was subdued. The police officers then brought Workman, who had a bleeding nose and swollen eyes, into the tavern where he was handcuffed. His rights were read to him. Workman later was taken to a hospital for treatment of the injuries he sustained while being arrested.

Sieniawski's testimony was corroborated by that of Candelaria and Morales. Candelaria added that the owner of the bar, Michael Gunnoe, had appeared at the door during the scuffle and that the police officers had told him to go inside.

Gunnoe, a step-brother of Workman, also testified at Workman's trial. He said that he had given Workman his gun along with the day's receipts, which were to be taken home. Workman left the bar shortly after 3:00 a.m. with the bar owner's nephew and a woman. Gunnoe referred to the woman as "his wife", but in fact she, Sherry Ervin Wilkerson, was not married to Workman. Workman, however, was living with Wilkerson, and continued to do so until the time of his trial.

About 15 to 20 seconds after they left the bar, there was a commotion outside. Gunnoe went outside to investigate. One of the police officers put a gun to his head and told him to go back inside. Shortly thereafter, the police brought Workman into the bar and handcuffed him. Gunnoe testified that only one of the police officers, Morales, initially identified himself as such. Gunnoe said that they remained in the bar for 20 to 25 minutes. One of the officers said, "We got to do something now. Let's cite him [Gunnoe]."

The bar owner's testimony was corroborated by that of two patrons who had been sitting at the bar during the events in question.

On the advice of counsel, Workman did not testify at his trial. The two people that Workman was with when he left the bar on the night in question, Sherry Wilkerson and Timothy Osborne, also did not testify at Workman's trial, although they traveled from West Virginia to Cleveland, Ohio specifically for that purpose. Workman contends that he informed his attorney that he had left the bar with Wilkerson and Osborne, and that they were present when the police officers in plain clothes arrested him. He also contends that he told his attorney where they could be reached. Although unaddressed and unmailed subpoenas were issued in the names of Wilkerson and Osborne, Workman's attorney never contacted either of them. He made no attempt to investigate what their testimony might have been. Instead, he simply told Workman to have them show up at trial if he wanted them to testify. At the request of Workman, both Wilkerson and Osborne traveled to the place of trial to testify on behalf of Workman. They arrived at the courthouse at approximately mid-morning on February 27, 1987, the second and final day of the trial. Gunnoe and Workman's brother, Steve Workman, informed them that the court already had finished receiving testimony at the trial. Workman's attorney never spoke to them. Moreover, he made no attempt to obtain a continuance or otherwise delay completion of the trial so that Wilkerson and Osborne could testify. At approximately 11:30 a.m. on February 27, the jury returned a verdict of guilty on the charges of felonious assault and having a weapon under the disability of a prior felony conviction.

Workman was sentenced to a term of eleven to fifteen years on the felonious assault charge, and to a term of one and a half to five years on the charge of having a weapon while under a disability.

Workman took a direct appeal to the Ohio Court of Appeals for the Eighth District on May 26, 1987. He asserted an ineffective assistance of counsel claim, as well as several other claims of error. His ineffective assistance of counsel claim was based primarily on his counsel's failure to obtain the testimony of Sherry Wilkerson and Timothy Osborne. He submitted affidavits of Wilkerson and Osborne to support his claim. The Ohio Court of Appeals held that the affidavits were not part of the record on appeal and therefore could not be considered by that court. The court stated, however, that, since it was unable to consider the issue, res judicata would not apply to Workman's ineffective assistance of counsel claim. The court indicated that Workman's claim could best be asserted in a proceeding for post-conviction relief. The court overruled Workman's other claims of error and affirmed his conviction.

On April 8, 1988, Workman sought to appeal to the Ohio Supreme Court, but that court, finding that there were no substantial constitutional questions presented, denied Workman's motion for leave to appeal.

Meanwhile, in July 1987, Workman filed a timely petition for post-conviction relief in the Court of Common Pleas for Cuyahoga County. He again asserted his claim that he was denied effective assistance of counsel. The court dismissed his petition in a one-sentence order, without conducting a hearing and without making findings of fact or conclusions of law.

Workman then appealed to the Ohio Court of Appeals for the Eighth District. That court, in April 1988, remanded the case to the Court of Common Pleas to make findings of fact and conclusions of law. More than two years have elapsed, however, during which the Court of Common Pleas has never made the required findings of fact and conclusions of law, ostensibly due to the "turnover of judges and dispersement of caseloads."

On August 19, 1988, Workman filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio pursuant to 28 U.S.C. § 2254 (1988). As in his direct appeal to the Ohio Court of Appeals, Workman asserted several grounds for relief, including, inter alia, that there was insufficient evidence presented at trial to convict him of the crimes charged; that he was denied a fair trial and due process because of references made in the prosecution's case to his prior armed robbery conviction, which was more than fifteen years old; that he was denied his right to testify at trial; and that the court instructed the jury outside the presence of Workman and his counsel. Workman's primary claim, however, and that which is the subject of the instant appeal, was that he was denied effective assistance of counsel. The state answered Workman's petition, asserting that Workman's claims lacked merit. The case was referred to a federal magistrate who ordered an evidentiary hearing. Prior to the hearing, the state for the first time contended that Workman's petition should be denied because he had not exhausted his state remedies. At the evidentiary hearing, Workman, Wilkerson and Osborne testified about the events that took place outside Mike's Hide-Away Tavern at approximately 3:00 a.m. on the night of March 8, 1986.

Workman testified that he left the bar with the day's receipts and a gun that his step-brother had given him. Wilkerson and Osborne were with...

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