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Johnson v. Warden, Ross Correctional Institution

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

June 20, 2018


          Magistrate Judge Jolson



         On 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.

         Pursuant 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 hereby DISMISSED.

         Finally, the Court DENIES Petitioner's request for a certificate of appealability.

         In this 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 the R&R.


         The 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").

         By way 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 day. Id.

         In the 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 of action.

         First, 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.[1]

         Respondent 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)).

         The 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)).

         Consideration 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.

         In view 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.

         The Court now turns to the merits of Petitioner's objections.


         A. Claim One: Disqualification of Counsel of Choice

         Petitioner 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.[2] Petitioner's objection is not well taken.

         The 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))

         The 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 trials... .

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)).

         Applying 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.

         Petitioner 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).

         Under this deferential standard of review of the law and facts as applied to his case, Petitioner has not established that relief is warranted.

         The 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, [3] 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]." Id.¶6.
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." Id.

State v. Johnson, 40 N.E.3d 628, 647-51 (Ohio Ct. App. 2015). This decision is not an unreasonable application of Wheat.

         Similarly, 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. App. 2015).

         It thus 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 ...

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