United States District Court, S.D. Ohio, Eastern Division
MICHAEL P. JOHNSON, Petitioner,
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.
Magistrate Judge Jolson
OPINION AND ORDER
MICHAEL H. WATSON, JUDGE
January 11, 2018, the Magistrate Judge issued a Report and
Recommendation ("R&R") and Order recommending
that the petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 be denied and that this action be
dismissed, and ordering the unsealing of previously sealed
documents pending supplemental briefing. ECF No. 26.
Respondent filed a Motion in response to the Magistrate
Judge's Order, which proposed alternative courses of
actions to unsealing the documents in question. Mot., ECF No.
31. Petitioner filed an Objection to the Magistrate
Judge's R&R and Order. Obj., ECF No. 32.
to 28 U.S.C. § 636(b), this Court has conducted a de
novo review of the R&R and Order. For the reasons that
follow, Petitioner's Objection, ECF No. 32, is
OVERRULED, and the R&R and Order, ECF
No. 26 is ADOPTED and
AFFIRMED. Petitioner's request for oral
argument is DENIED. Respondent's Motion,
ECF No. 31, is also DENIED. This action is
the Court DENIES Petitioner's request
for a certificate of appealability.
action, Petitioner challenges his October 2013 convictions
after a jury trial in the Franklin County Court of Common
Pleas on one count of engaging in a pattern of corrupt
activity in violation of O.R.C. § 2923.32 and
twenty-five counts of aggravated funding of drug trafficking
in violation of O.R.C. § 2925.05. Petitioner asserts
that he was denied the right to counsel of choice (claim
one); that the evidence is constitutionally insufficient to
sustain his convictions (claim two); that he was denied a
fair trial because the trial court improperly restricted
cross-examination and issued erroneous evidentiary rulings
and defective jury instructions (claim three); that he was
denied the effective assistance of counsel (claim four); and
that the trial court unconstitutionally enhanced his sentence
as punishment for his decision to exercise his right to a
jury trial (claim five). In her R&R, the Magistrate Judge
recommended dismissal of Petitioner's claims as
procedurally defaulted or without merit. The Court now
conducts a de novo review of Petitioner's objections to
Court deals initially with Respondent's Motion in
response to the Magistrate Judge's Order to unseal
certain documents in the record. Mot., ECF No. 31. The
Objection deals only with the R&R's ruling regarding
the unsealing of three specific documents the Court initially
allowed to be filed under seal: the Affidavit of Anthony
Laird, ECF No. 18, the Affidavit of Javier Armengau, ECF No.
19, and the Motion for Evidentiary Hearing, ECF No. 20
(together, the "Sealed Documents").
of background, on September 6, 2017, the Court granted
Petitioner's unopposed motion to expand the record to
include the Sealed Documents and other documents that
supported Petitioner's claim for denial of the right to
counsel of his choosing. Order 1, ECF No. 17. The Magistrate
Judge initially allowed Petitioner to file the Sealed
Documents under seal based on Petitioner's representation
that they were sealed in state court proceedings; however,
the Magistrate Judge ordered the parties to submit additional
briefing on the issue of keeping the Sealed Documents under
seal. Id. 1-2. In response, Petitioner maintained
that he filed the Sealed Documents under seal out of an
abundance of caution to protect the identity of the
Confidential Informant (the "CI"), Anthony Laird,
referenced therein. Petitioner's Resp. to Court Order,
ECF No. 21. Respondent stated it opposed lifting the seal,
emphasizing the need to protect the safety and welfare of the
CI. Respondent's Resp. to Court Order, ECF No. 24. The
Magistrate Judge found Respondent's arguments
unpersuasive, because Respondent neither addressed the fact
that the CI's identity was disclosed in unsealed
documents in the record nor requested the Court to seal those
portions of the unsealed documents in which the CI's
identity appeared. R&R 58-59, ECF No. 26. Therefore, the
Magistrate Judge informed Respondent that it should request
within seven days that the Court seal the relevant unsealed
records, and that the failure to do so would result in the
Court's unsealing of the Sealed Documents on the eighth
Motion presently before the Court, Respondent does not
request sealing of the relevant unsealed documents; instead,
it proposes alternative courses of action. See Mot.,
ECF No. 31. Respondent acknowledges that the information
contained in the Sealed Documents-including the CI's
identity-has been repeatedly disclosed in unsealed documents
that are a part of the record before this Court and the state
courts. Id. at 4. Nevertheless, Respondent avers
that the Sealed Documents must remain sealed so as to protect
the CI's identity, and out of concerns of comity and
federalism. Id. at 4. Respondent notes that
Petitioner initially received the Sealed Documents from the
state trial court with an order from the trial judge that
Petitioner "not disclose the documents to others and
[to] destroy [the] same after [counsel's] representation
of [Petitioner] is concluded". Id. at 4
(quoting ECF No. 24, Ex. 1, PAGEID # 1842). Respondent
therefore proposes that Petitioner be required to request
relief from the state trial judge's protective order
before this Court unseals the Sealed Documents. Id.
at 5. Alternatively, Petitioner proposes that the relevant
unsealed documents containing information identifying the CI
be withdrawn and substituted with redacted copies.
Id. The Court rejects both of these proposed courses
despite Respondent's suggestion to the contrary, the
trial judge's protective order over the Sealed Documents
does not automatically require that they be sealed in court
filings. A court's issuance of protective orders is
circumscribed by long-established legal tradition which
values public access to court proceedings. Procter &
Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th
Cir. 1996) (citing Brown & Williamson Tobacco Corp.
v. FTC, 710 F.2d 1165, 1177 (6th Cir. 1983)). "The
fact that information is subject to a protective order is not
sufficient justification, in and of itself, to make a filing
under seal." Exeter Fin. Corp. v. Fleet & Rental
Liquidators, Inc., No. 3-14-1221, 2015 WL 13158326, at
*1 (M.D. Tenn. April 30, 2015). "Specifically, the
filing party must 'provide an adequate and specific
explanation as to why the [filing] should be sealed and
apprise the court of the specific harm that will occur if the
[filing] is not sealed.'" Id. (citing
United States v. Woods, 533 Fed.Appx. 594 (6th Cir.
Apr. 26, 2013); Elliott Co. v. Liberty Mut. Ins.
Co., No. 08-3419, 2009 WL 750780, *10 (6th Cir. Mar. 23,
2009) (explaining that there is a "strong presumption in
favor of public access to judicial proceedings" (citing
EEOC v. National Children's Ctr., Inc., 98 F.3d
1406, 1409 (5th Cir. 1996)). Here, Respondent does not
identify, and the record does not reflect, any specific harm
that would be caused at this juncture by the unsealing of
documents, the contents of which have long been disclosed and
available to the public and to the defendant and the
co-defendants in this case.
also fails to convince the Court why the CI's identity
should remain undisclosed and, therefore, why unsealed
documents referencing the CI should be withdrawn and refiled
as redacted copies. The government's privilege to
withhold from disclosure the identity of a confidential
informant, or the "informant's privilege, "
applies in civil and criminal proceedings. See Smith v.
City of Detroit, 212 F.R.D. 507, 508-09 (E.D. Mich. Jan.
7, 2003) (citing Roviaro v. United States, 353 U.S.
53, 59 (1957); Holman v. Cayce, 873 F.2d 944, 946
(6th Cir. 1989) (other citations omitted)). The purpose of
the privilege is to further and protect the public interest
in effective law enforcement. Roviaro, 353 U.S. at
59. "The privilege recognizes the obligation of citizens
to communicate their knowledge of the commission of crimes to
law-enforcement officials and, by preserving their anonymity,
encourages them to perform that obligation."
Id. However, the privilege is subject to "close
scrutiny." Smith, 212 F.R.D. at 510. Where the
disclosure of an informant's identity or contents of his
communication is relevant and helpful to the defense or
essential to a fair determination of a cause, the privilege
must give way to disclosure. Roviaro, 353 U.S. at
60. Moreover, "[a] court should be mindful of 'the
public interest in protecting the flow of information, '
but also be 'aware of the need to maintain the integrity
of and confidence in the criminal justice system.'"
Smith, 212 F.R.D. at 510 (citing Roviaro,
353 U.S. at 62; Bergman v. United States, 565
F.Supp. 1353, 1364 (W.D.Mich. 1983)).
Supreme Court stated in Roviaro that, generally
speaking, "once the identity of the informer has been
disclosed to those who would have cause to resent the
communication, " the privilege no longer applies.
Roviaro, 353 U.S. at 60 (footnote omitted). However,
the government does not necessarily waive the informant's
privilege by the mere disclosure of the informant's
identity. United States v. Sierra-Villegas, 774 F.3d
1093, 1098 (6th Cir. 2014). Even under those circumstances, a
Court must "determine the actual nature of the
government's interest in maintaining whatever remains of
the informant's anonymity in order to balance the factors
at stake accurately." Id. (citing United
States v. Evans, 941 F.2d267, 272 (5th Cir. 1991)).
of these factors weighs in favor of disclosure here. As
discussed, the identity of the CI and content of all of the
documents currently filed under seal have long been public.
For example, the state appellate court refers to the content
of the affidavits at issue in its April 2013 decision
affirming the trial court's removal of Attorney Armengau
based on his potential conflict of interest; and the CI's
identity likewise was revealed in Petitioner's September
2014 state appellate brief. ECF No. 6-1, PAGEID ## 253, 397.
The CI testified against Petitioner at trial and is
identified by name in the trial transcript. ECF No. 6-5,
PAGEID ## 1293, 1327. Under these circumstances, there no
longer appears to be a sound basis for the Sealed Documents
to remain sealed in these proceedings. Further, this Court
must consider the content of the Sealed Documents in order to
resolve Petitioner's claim that the state courts
improperly denied him the right to his counsel of choice.
of the foregoing, Respondent's Motion, ECF No. 31, is
DENIED. The Court ORDERS
the Clerk to unseal the Affidavit of Anthony Laird (the CI),
ECF No. 18, the Affidavit of Javier Armengau, ECF No. 19, and
the Motion for Evidentiary Hearing, ECF No. 20.
Court now turns to the merits of Petitioner's objections.
Claim One: Disqualification of Counsel of Choice
brings a Sixth Amendment claim, asserting that the
prosecutors manufactured a sham conflict of interest in order
to disqualify his privately retained attorney, Javier
Armengau, and deprive him of his right to counsel of choice.
Mr. Armengau had previously represented the CI who testified
at Petitioner's trial, and it was on this basis that
prosecutors moved for Mr. Armengau's disqualification as
Petitioner's counsel. Petitioner argues that prosecutors
manufactured a conflict of interest by making it appear as if
the CI had personal knowledge of incriminating facts against
the Petitioner when he in fact did not. Petitioner avers that
the trial transcript demonstrates that the CI's knowledge
of incriminating facts was based on hearsay and that the CI
offered little in the State's case against Petitioner.
Therefore, Petitioner argues, the state appellate court
unreasonably applied Wheat v. United States, 486
U.S. 153 (1988) when it upheld the trial court's decision
to disqualify Mr. Armengau as Petitioner's trial attorney
based on a conflict of interest. Petitioner also avers that
the state appellate court based its disqualification decision
on an unreasonable determination of the facts in light of the
evidence presented. Petitioner maintains that the trial
transcript reflects overwhelming evidence that there was no
"actual conflict" of interest, which therefore
indicates that the prosecution manufactured the conflict of
interest in order to deprive Petitioner of his trial counsel
of choice. Obj. 4-5, ECF No. 32. Petitioner thus objects to
the Magistrate Judge's recommendation that the Court
dismiss his Sixth Amendment claim on the
merits. Petitioner's objection is not well
Sixth Amendment right to counsel grants criminal defendants a
"qualified right" to counsel of their choosing.
Serra v. Michigan Dept. of Corrections, 4 F.3d 1348,
1351 (6th Cir. 1993) (citing Wheat, 486 U.S. at
164). A "trial court 'must recognize a presumption
in favor of [a defendant's] counsel of choice, but that
presumption may be overcome not only by a demonstration of
actual conflict but by a showing of a serious potential for
conflict.'" Id. (quoting Wheat,
486 U.S. at 164). "The evaluation of the facts and
circumstances of each case under this standard must be left
primarily to the informed judgment of the trial court."
Id. (quoting Wheat, 486 U.S. at 164). The
trial court's "independent interest in ensuring that
criminal trials are conducted within the ethical standards of
the profession and that legal proceedings appear fair to all
who observe them, " United States v.
Gonzalez-Lopez, 548 U.S. 140, 151-52 (2006) (citing
Wheat, 486 U.S. at 160), means it has
"'substantial latitude' to disqualify counsel
when 'a potential for conflict exists which may or may
not burgeon into an actual conflict as the trial
progresses.'" Kennedy v. Stewart, 567
Fed.Appx. 433, 435 (6th Cir. 2014) (citing Wheat,
486 U.S. at 158). While the Sixth Amendment protects a
criminal defendant's right to hire an attorney of his own
choosing, "the essential aim of the Amendment is to
guarantee an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably be
represented by the lawyer whom he prefers."
Wheat, 486 U.S. at 159 (citing Morris v.
Slappy, 461 U.S. 1, 13-14 (1983); Jones v.
Barnes, 463 U.S. 745 (1983))
determination whether a conflict exists is not always an easy
one for the trial court to make. Thus, as the Supreme Court
explained in Wheat:
Unfortunately for all concerned, a [trial] court must pass on
the issue whether or not to allow a waiver of a conflict of
interest by a criminal defendant not with the wisdom of
hindsight after the trial has taken place, but in the murkier
pre-trial context when relationships between parties are seen
through a glass, darkly. The likelihood and dimensions of
nascent conflicts of interest are notoriously hard to
predict, even for those thoroughly familiar with criminal
486 U.S. at 162. And as the Magistrate Judge emphasized,
"[i]n situations like this-where the court has
significant 'leeway' in reaching an outcome, it
follows that it is 'less likely' that a state
court's application of the rule will be
['Junreasonable' under AEDPA." R&R 20, ECF
No. 26 (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)).
this standard, and after review of the CI's detailed
affidavit regarding the expected contents of his testimony,
the state trial court found that a serious potential for a
conflict of interest warranted disqualification of Mr.
Armengau as Petitioner's trial counsel. The CI's
affidavit indicated that the CI "would be testifying
against the interests of [Petitioner]" with information
that Petitioner was at the top of the hierarchy of the drug
organization and was funding all of the trips made by other
individuals to illegally obtain prescription pills. Sealed
Affidavit, ECF No. 18, PAGED ## 1820-21. That information,
the CI contended, was based on his personal observations of
Petitioner and from information obtained from Sparks (one of
Petitioner's alleged co-conspirators) and other alleged
co-conspirators in Petitioner's case. See id.
asserts that the state appellate court both unreasonably
determined the facts in light of the record and also
unreasonably applied clearly established federal law. When a
petitioner challenges a state appellate court's
application of federal law, the Court "may only grant
relief 'where there is no possibility that fairminded
jurists could disagree that the state court's decision
conflicts" with the decisions of the Supreme Court.
Weaver v. Pfister, No. 12-C-10100, 2016 WL 930550,
at *4 (N.D. III. March 11, 2016) (quoting Harrington v.
Richter, 562 U.S. 86, 102 (2011)). Under the deferential
standard of review imposed by the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), the question
is not whether this Court agrees with the state appellate
court's application of Wheat, but "whether
that court's decision was 'so lacking in
justification' that it presents 'an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.'"
Id. (quoting Harrington, 562 U.S. at
102-03). And as to the state court's factual findings,
under 28 U.S.C. § 2254(e)(1), it is the petitioner's
burden to rebut "by clear and convincing evidence"
the presumption that the state appellate court's factual
findings are correct. See Johnson v. Alabama, 256
F.3d 1156, 1169 (11th Cir. 2001) (state court's factual
findings may be ignored only if the petitioner shows by clear
and convincing evidence that the state court's
determination was not "fairly supported by the
record.") (citations omitted).
this deferential standard of review of the law and facts as
applied to his case, Petitioner has not established that
relief is warranted.
Court finds unpersuasive Petitioner's contention that the
state appellate court unreasonably applied clearly
established federal law when it upheld the trial court's
disqualification of Petitioner's attorney of choice. When
reviewing the state trial court's disqualification
ruling, the state appellate court explained:
As noted, following the hearing on the motion to disqualify,
the trial court granted the state's motion on the basis
that attorney Armengau's representation of the CI, who
the state intended to call as a witness in appellant's
trial, created a serious potential for conflict. In this
court's decision affirming the trial court's granting
of the state's motion to disqualify,  we found merit
with the trial court's analysis. Specifically, this court
noted that, in the event "the CI is placed on the
witness stand and testifies while Armengau represents
Johnson, an un-resolvable conflict exists. Armengau cannot
damage his former client's credibility through use of
privileged information. At the same time, Armengau must
diligently represent Johnson's interests by damaging the
CI's credibility." Johnson at ¶ 5.
This court further noted that "ethical problems have
already arisen in the case" based upon Armengau's
admission that "he has already had a meeting with the CI
since Armengau was retained by [appellant]."
Here, at the time of the motion, the state cited a valid
concern regarding a clear potential for conflict. Courts have
recognized the "obvious" potential for conflict
where defense counsel "is under a duty to represent
zealously the defendant, while on the other hand, he has a
duty of confidentiality to his former client, the government
witness." United States v. Falzone, 766 F.Supp.
1265, 1271 (W.D.N.Y. 1991). In this respect, "numerous
cases have recognized" that an attorney's duty of
loyalty to a client "requires disqualification when a
former client seeks to cooperate with the government and
testify against the present client." United States
v. Alvarez, S.D. Fla. No. 10-20547-CR, 2010 WL 4774649
(Nov. 16, 2010). The potential for conflict arises especially
in the context of cross-examination, as defense counsel's
"most important function" during a criminal trial
is to "vigorously cross-examine the government's
witness." Falzone at 1271. See also United
States v. Moscony, 927 F.2d 742, 750 (3d Cir. 1991)
("Conflicts of interest arise whenever an attorney's
loyalties are divided . . . and an attorney who
cross-examines former clients inherently encounters divided
loyalties."). Further, "there need not be a
'substantial relationship' between the subject matter
of the prior representation and the issues in the present
case before disqualification is warranted."
Falzone at 1275. Rather, "[a]ll that is
required is that the interest of the defendant potentially
conflicts with the interest of the former client."
State v. Johnson, 40 N.E.3d 628, 647-51 (Ohio Ct.
App. 2015). This decision is not an unreasonable application
as to the factual finding challenged here-that the CI's
testimony was based on personal knowledge and therefore
admissible-Petitioner fails to show that the state appellate
court unreasonably determined the facts in light of the
record. On review of the trial court's decision to
disqualify Mr. Armengau, the state appellate court
"found unpersuasive [Petitioner's] contention that
the CI had no first-hand information to offer[ or] that the
CI's sole source of information was from Sparks."
State v. Johnson, 40 N.E.3d 628, 649, 651 (Ohio Ct.
found that the prosecution did not attempt to manufacture a
conflict of interest in order to have Mr. Armengau
disqualified by falsely representing that the CI (Mr.
Armengau's former client) would offer admissible
testimony against ...