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Cassano v. Bradshaw

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

July 18, 2018

August Cassano, Petitioner,
v.
Margaret Bradshaw, Warden, Respondent.

          MEMORANDUM OF OPINION AND ORDER

          John R. Adams United States District Judge.

         Introduction

         Petitioner August Cassano was convicted and sentenced to death in an Ohio state court for the aggravated murder of fellow inmate Walter Hardy. Cassano has now filed a petition and amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions and sentence. (Docs. 26, 138.) Respondent Warden Margaret Bradshaw has filed a return of writ to the amended petition. (Doc. 141.) And Cassano has filed a traverse. (Doc. 144.) For the reasons below, the Court denies Cassano's amended petition.

         Factual History

         The Ohio Supreme Court set forth the following facts underlying Cassano's convictions:

{¶ 1} On October 17, 1997, inmate Walter Hardy moved into a cell at Mansfield Correctional Institution (“MANCI”) and became the cellmate of appellant August A. Cassano. Despite complaints by Cassano, authorities did not remove Hardy from the cell. On October 21, 1997, at about 2:30 a.m., Cassano killed Hardy by stabbing him approximately seventy-five times with a shank (prison-made knife). A jury convicted Cassano of aggravated murder. Cassano was sentenced to death.
Prior Events
{¶ 2} Cassano was serving time at MANCI because he had been convicted of aggravated murder in Summit County on May 25, 1976.
{¶ 3} On January 31, 1992, five years before he killed Hardy, Cassano stabbed inmate Troy Angelo inside Angelo's locked prison cell. Cassano had tied a shank to his hand with a shoestring and had stabbed Angelo approximately thirty-two times in the face, neck, chest, back, arms, head, and hand. Angelo escaped when a correctional officer opened the cell door. As Cassano was being led away, he looked at Angelo and said, “I hope you die.” On November 6, 1992, Cassano was convicted of felonious assault for stabbing Angelo.
{¶ 4} Inmate Gerald Duggan testified that when Cassano became his cellmate in 1996, Cassano had told him that “if [Duggan] ever snitched on him he'd kill [him].” Duggan also said that Cassano “liked a lot of time in the cell by himself” and that Duggan had requested a night job to accommodate Cassano. Cassano had told Duggan that he didn't fight anymore, he stabbed. On September 18, 1997, Cassano reminded Juanita Murphy, a case manager, that he “had stabbed an inmate in 1992 and that that was why he had been sent to Lucasville.” The Killing
{¶ 5} On the morning of October 17, 1997, Cassano sent a written message to Unit Manager Ted Harris, noting that he did not have a cellmate and that he wanted Alfred Gibson to be his cellmate. Harris denied this request. Cassano had not received Harris's written reply when he stabbed Hardy.
{¶ 6} On the afternoon of October 17, Hardy moved into Cassano's cell. Hardy and others had been in the segregation unit for two days under suspicion of possessing a shank, but Hardy had been exonerated. Inmates described Hardy as weak, even though he became paranoid when he used drugs.
{¶ 7} According to Ollie King, a MANCI sergeant/counselor, Cassano was very upset about having Hardy as his cellmate. On October 17, Cassano told King that “he didn't want that snitching ass faggot in his cell and that we better check [Cassano's] record.” King told him to send a message to Ted Harris, the unit manager. Cassano's friend, inmate Michael Cruz, agreed that Cassano was “very angry” about having Hardy as his cellmate. He also stated that Cassano had told authorities, “You just can't put any type of motherfucker in my cell, * * * check my record.”
{¶ 8} After Hardy moved in, Cruz remarked to Cassano that he had a new cellmate. Cassano replied, “Not for long.” That same day, Cassano told Duggan that when Cassano had been in Lucasville, prison authorities would not assign him a cellmate unless it was absolutely necessary.
{¶ 9} Cassano became very upset when Hardy broke a TV cable outlet. On October 18, Cassano told inmate James Pharner that Hardy “was driving him nuts, that [if] Harris didn't move [Hardy] out [of] the cell, that he would * * * remove him himself.”
{¶ 10} On October 21, 1997, at 2:25 a.m., Donald Oats, a MANCI correctional officer, noted that all was quiet. He recalled that the two inmates in Cassano's cell had been in their bunks doing nothing unusual. Around 2:35 a.m., upon hearing a commotion, Oats hurried to Cassano's cell. He saw two inmates fighting and ordered them to stop. He also signaled a “man down” alarm and went to call for help. Oats heard Hardy yelling, “[Cassano] has a knife and he's * * * trying to kill me.” When Oats looked into the cell, Cassano was standing over Hardy and stabbing him with a shank.
{¶ 11} Oats yelled and banged on the cell door and ordered Cassano to stop. Twice, Cassano looked at the light Oats shined on him and then “went right back to sticking inmate Hardy.” Cassano continued to stab Hardy “hot and heavy, except for the two times that he looked at [Oats] for a second or two.” Cassano never said anything, but Hardy was “pleading for help.” Cruz heard Hardy screaming, “[L]let [sic] me out, * * * he's killing me, he's stabbing me.”
{¶ 12} Corrections officers James Miller and Dwight Ackerman responded to the “man down” alarm within a minute. Ackerman looked into the cell, saw Cassano bent over “assaulting the other inmate, ” and ordered him to stop. Cassano stood up, and Ackerman saw that Cassano had a shank in his right hand. Cassano then continued stabbing Hardy. Miller ordered Cassano to stop, but Cassano “didn't look at [Miller.] He looked down and plunged a weapon into inmate Hardy.”
{¶ 13} Although unarmed, Oats opened the cell door and ordered Cassano to the back of the cell. Cassano obeyed that order; he continued to hold the shank, which was tied to his right hand by a laundry-bag string. Cassano “was trying to untie it” but apparently had difficulty because his hand was covered with blood. Cassano wore a glove on his right hand.
{¶ 14} When Miller pulled Hardy out of the cell, Hardy told him, “I am not going to make it.” Within three to five minutes of the alarm, MANCI nurses arrived and began to treat Hardy. Then Hardy was taken to a hospital, where he was pronounced dead at 3:37 a.m.
{¶ 15} Dr. Keith Norton, a pathologist, concluded that Hardy bled to death and that his collapsed lungs contributed to his death. Dr. Norton found approximately seventy-five knife wounds, including eight wounds to the head, nine to the neck, twenty-four to the back, fifteen to the chest, and various other wounds to the abdomen, hips, legs, arms, and hands. Any one of ten specific wounds could have caused Hardy's death, including several to the lungs and one that pierced the heart. Dr. Norton also found abrasions and scratches on Hardy's body. A toxicologist found cocaine residue in Hardy's urine but not the blood, which indicated use within the last twenty-four to forty-eight hours.
{¶ 16} In Cassano's cell, investigators found many bloodstains, including some on the top bunk sheets where Hardy slept. They also found a bloody right-hand glove on the floor and the unsoiled left-hand mate of that glove in a closed desk drawer that belonged to Cassano.
{¶ 17} Throughout that morning, Cassano made various unsolicited comments. As Cassano walked by Hardy after the attack, he asked, “Is he dead?” While in the TV room, Cassano told Miller, “[t]hey're going to have to check [Hardy] for internal injuries.” At the clinic, Cassano asked if Captain Ben Rachel remembered him as “the one that had stabbed a guy thirty times” several years before.
{¶ 18} At 3:50 a.m., Wanda Haught, a nurse, examined Cassano at the MANCI clinic and found no injuries except red marks caused by handcuffs. Cassano stated that he was not injured but that his shoulder was tired. At 5:15 a.m., Haught noticed a superficial scratch on Cassano's left side that had not been present at 3:50 a.m.
{¶ 19} Cassano's pants, T-shirt, and tennis shoes had blood on them. Cassano asked investigators prior to his giving a blood sample, “What do you need my blood for, that's all his blood?” Cassano's blood tested negative for drugs and alcohol.
Events After The Killing
{¶ 20} In the spring of 1998, Cassano talked to inmate Pharner about Hardy's death. Cassano said that he had acted in self-defense but blacked out after stabbing Hardy eight times. Cassano stated that “Hardy was smoking crack and * * * jumping up and down on the bunk and it drove [Cassano] nuts and he just went off on him.” Cassano said that he had received the shank from an inmate named Carpenter.
{¶ 21} In April 1998, Cassano asked Duggan “to testify that [Duggan] had seen Hardy with the knife that was used to kill him so that [Cassano] could plead self-defense.” Duggan had never seen Hardy with a shank.
{¶ 22} At his trial, Cassano testified that he has been in prison since 1976 and that he preferred being quiet and alone in his cell. Cassano had no particular problems with Hardy as his cellmate, except when Hardy was irritable and paranoid because of drug use.
{¶ 23} According to Cassano, he and Hardy watched TV and showed each other family photographs on the evening before Hardy was killed. Hardy had smoked crack cocaine that evening. Around 2:30 a.m., when Hardy briefly got up, he showed Cassano a knife and asked him what he thought about it. In response, Cassano “snatched it out of his hand” and told him the knife was “going out the window.” Cassano stated that Hardy then grabbed him by the left shoulder, hit him in the face, and kneed him in the groin.
{¶ 24} Cassano stated that Hardy retrieved the knife and said, “This is for you.” Cassano reclaimed the knife from Hardy, stabbed him once, and told him to settle down. However, according to Cassano, Hardy kept coming at him, and Cassano “stabbed him approximately four times.” Cassano testified that he believed that he was in danger as long as Hardy kept attacking him. Hardy also tried to hit Cassano with a chair. According to Cassano, “after the last time that [Hardy] attacked * * *, [Cassano] totally * * * lost it.” Cassano said that when the guard opened the cell door, he dropped the knife. Cassano denied that the knife had been tied to his wrist, that he had worn a glove on his right hand, that he had “sneak-attacked” Hardy, or that he had planned to kill Hardy. Cassano denied that he had continued to stab Hardy when the corrections officers arrived outside the cell. Cassano also denied that he had made some of the statements that other inmates or prison officials had attributed to him related to Hardy.
{¶ 25} During cross-examination, Cassano stated that while in prison, he had been in over one hundred fights and that he had stabbed four people. Cassano admitted writing various letters to his family, including one letter stating that he would never “have to worry about having a cellmate ever again.”
{¶ 26} Inmate Charles Pool testified for the defense and claimed that he sold the murder weapon to Hardy and another inmate in May or June 1997. Inmate Howard Watson testified that Hardy once held an ice pick to his throat and threatened him when Hardy discovered Watson in his cell.
{¶ 27} Mary Hardy, the victim's mother, testified that she had sent her son $7, 100 in money orders during his four years in prison and that they had talked on the phone every day. She stated that Hardy was up for parole in November 1997 and had been trying to behave himself. Sally Glover, the unit manager at MANCI, had moved Hardy into Cassano's unit for safety reasons. In his year at MANCI, Hardy had made sixteen cell moves and a total of forty-nine in the previous four years.
{¶ 28} In rebuttal, the state presented testimony from two MANCI officials, Juanita Murphy and Joseph Henderson. Murphy claimed that Cassano asserted that he had “blacked out” but had killed Hardy in self-defense. According to Murphy, Cassano also claimed that Hardy died because nurses had failed to cover the puncture wounds in his lungs. Henderson, the food service manager at MANCI, had tried, at Hardy's urging, to get Hardy moved out of Cassano's cell.

State v. Cassano, 96 Ohio St.3d 94, 94-98 (Ohio 2002).

         Procedural Background

         A. State-Court Proceedings

         1. Trial Court

         In March 1998, the Richland County Grand Jury indicted Cassano for the aggravated murder of Walter Hardy under Ohio Rev. Code § 2903.01. The aggravated-murder count carried two death specifications: one pursuant to Ohio Rev. Code § 2929.04(A)(4) (defendant was a prisoner) and the other pursuant to Ohio Rev. Code § 2929.04(A)(6) (prior aggravated murder conviction). (Doc. 134-1 at 70.) Cassano, represented by Robert Whitney and Bernard Davis, entered pleas of not guilty to all charges. (Doc. 134-1 at 76.)

         On May 14, 1998, Cassano filed two pro se motions with the trial court regarding his representation. He filed a “Waiver of Counsel, ” stating that he “would rather control the organization and content of his defense . . . .” (Doc. 134-1 at 92.) And he filed a “Motion for Appointment of Substitute Counsel, ” requesting “an order dismissing Attorney Bob Whitney and Bernard Davis, and . . . appointment of Mr. Kort Gatterdam . . . .” (Doc. Id. at 93-98.) On May 20, 1998, Attorneys Whitney and Davis moved to withdraw as Cassano's counsel because of “a lack of trust and cooperation” between them and their client. (Id. at 99.) Later that month, the trial court granted Attorney Whitney and Davis's motion to withdraw, and appointed David Bodiker of the Ohio Public Defender's Office and Douglas Sexton to represent Cassano. (Doc. 134-2 at 1, 3, 4.) On June 5, 1998, the Ohio Public Defender's Office filed an appearance designating Kort Gatterdam and Andrew Love as lead defense counsel. (Id. at 41.)

         On September 25, 1998, Cassano filed a pro se “Motion for Appointment of Co-Counsel, ” requesting Attorney Gatterdam to serve “as co-counsel on his behalf.” (Doc. 134-3 at 97.) At a pretrial hearing held that day, the trial court denied the motion. (Doc. 135-1 at 3-4.) At a pretrial hearing conducted on April 23, 1999, Cassano asked the court if “there [was] any possibility [he] could represent [him]self?” (Doc. 135-4 at 93.) The court again denied the request. (Id. at 93-94.) Cassano did not ask to represent himself again.

         Cassano's trial began on April 26, 1999. (See Doc. 135-5 at 20.) He was represented by Attorneys Love, Gatterdam, and Sexton. (See id. at 2.) On May 13, 1999, the jury convicted Cassano of the aggravated murder charge and both specifications. (Doc. 134-4 at 358-59.) The mitigation phase of the trial began on May 17, 1999, and concluded the next day. (Id. at 371.) The jury recommended that Cassano be sentenced to death. (Id.) The trial court accepted the jury's recommendation and imposed a death sentence. (Id.)

         2. Direct Appeal

         On July 8, 1999, Cassano, represented by new counsel David Doughten and John Parker, timely appealed his convictions and sentence to the Ohio Supreme Court. (Doc. 134-6 at 4.) In his appellate brief, he raised fourteen propositions of law, stated as follows:

1. A criminal defendant enjoys a right to self-representation as guaranteed by the Sixth Amendment of the United States Constitution.
2. In a capital trial, other acts evidence should be proscribed where the admission of such evidence would cause unfair prejudice not only in the guilt-innocence phase, but also where the prejudice would carry over to the penalty phase.
3. The trial court abuses its discretion by having a defendant shackled throughout the trial and by failing to make findings or conduct an evidentiary hearing concerning the necessity of having the appellant shackled throughout the trial.
4. The trial court's refusal to dismiss biased jurors from the panel deprives the defendant of his protections under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
5. A trial court may not deny a defendant his right to a public trial as guaranteed by the Sixth Amendment of the United States Constitution and Sections 10 and 16, Article I, Ohio Constitution.
6. The trial court's denial of the appellant's right to be present at the jury view violated [Ohio Rev. Code §] 2945.16 and the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution.
7. An inmates [sic] cell is his home for the purposes of the affirmative defense of self-defense. Therefore, a defendant has no duty to retreat from the threat of imminent deadly force when attached in his cell.
8. Evidence of a near instantaneous decision to purposely kill another is insufficient to sustain a conviction of prior calculation and design.
9. Erroneous penalty phase instructions regarding the jury's deliberation process and their rile in the ultimate sentence is violative of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
10. A prosecutor may not diminish the severity of a life option by arguing that the law or policy may change which would allow the defendant to be released at an earlier date than would presently be permitted.
11. A sentence of death is inappropriate where the aggravating factors proven at trial do not outweigh the mitigation beyond a reasonable doubt.
12. The failure of trial counsel to ensure the trial remains public and object to erroneous jury instructions constitutes ineffective assistance of counsel.
13. The prosecutor may not dismiss jurors merely because of that juror's hesitation to invoke the death penalty.
14. The death penalty is unconstitutional as presently administered in Ohio.

(Doc. 134-6 at 29-38.) The State filed a responsive brief. (Docs. 134-9 - 134-12.)

         Cassano filed three pro se pleadings in the Ohio Supreme Court requesting to withdraw his appeal. (Doc. 134-6 at 1-2, 26; Doc. 134-8 at 16-17; Doc. 134-13 at 25.) The State and Cassano's counsel filed briefs on the matter. (Doc. 134-8 at 18-43.) The court denied the motions on July 12, 2000. (Doc. 134-13 at 26.)

         The Ohio Supreme Court affirmed Cassano's convictions and sentence on August 7, 2002. Cassano, 96 Ohio St.3d at 98. Cassano moved for a rehearing (Doc. 134-14 at 44), which the court denied on September 25, 2002 (id. at 77).

         Cassano filed a timely petition for writ of certiorari in the United States Supreme Court. (Id. at 104.) The Court denied the petition on March 3, 2003. (Id. at 105.)

         3. Post-Conviction Proceedings

         While Cassano's direct appeal was pending, the trial court, in a journal entry dated July 19, 1999, noted that Cassano had “indicated” he intended to pursue post-conviction relief, and it therefore appointed counsel to represent him, George Ford, III. (Doc. 134-5 at 7.) On August 26, 1999, Cassano filed a pro se “Motion for Appointment of Substitute Counsel, ” arguing that Attorney Ford was ineffective and requesting Adele Shank of the Ohio Public Defender's Office to represent him. (Id. at 8-11.) The court denied the motion on September 8, 1999. (Id. at 12.) Attorney Ford moved to withdraw from the case on September 22, 1999. (Id. at 15-18.) He submitted to the court a letter from Cassano to him stating that he was “fired” and that Cassano would proceed pro se or waive the proceedings altogether. (Id. at 17-18.) Attorney Ford suggested that the court conduct a hearing to determine whether Cassano was knowingly, intelligently, and voluntarily rejecting court-appointed counsel. (Id. at 15.) The court granted Attorney Ford's motion and appointed John Juhasz, Jr., as new counsel. (Id. at 21.)

         On December 9, 1999, Cassano filed in the state trial court a pro se motion to waive post-conviction relief. (Id. at 36.) The court granted the motion. (Id. at 43-44.)

         On January 17, 2001, Cassano filed a pro se “Motion to Reinstate Post Conviction.” (Id. at 46.) On February 26, 2004, Cassano, through new counsel Jeffry Kelleher and Kirk Migdal, filed a “Motion to Vacate Order of Feb. 14, 2000 and Reinstate Petition for Post-Conviction Relief under R.C. 2953.21.” (Id. at 75-136.)

         On June 9, 2004, Cassano, through counsel, filed a motion for funds to retain an investigator, mitigation specialist, and psychologist for assistance in the post-conviction proceedings and a motion for leave to conduct discovery. (Id. at 144-49, 152-65.) The State opposed both motions. (Id. at 166-99.) Cassano's counsel also wrote a letter to the trial-court judge requesting, among other things, records from Mansfield Correctional Institution (“ManCI”) that the prosecutor may have submitted to him relating to trial security matters, and records relating to the judge's involvement with ManCI. (Id. at 200-02.) The trial court denied Cassano's request for funds for trial specialists. (Id. at 204.) In the same judgment entry, the court responded to Cassano's counsel's letter, denying it possessed any records relating to Cassano and his trial, but ordering the prosecutor, ManCI, the Ohio Public Defender's Office, the Ohio State Patrol, and the Ohio Department of Rehabilitation and Corrections to produce responsive documents regarding Cassano and security threats at his trial. (Id. at 203-06.) Cassano then filed a supplemental motion for leave to conduct discovery, which the State opposed. (Id. at 207-12.) The trial court denied Cassano's motion for discovery. (Id. at 213.)

         On February 28, 2007, Cassano, through counsel, filed a notice in the trial court that he wished to withdraw his prior motion to withdraw his appeals and asked the court to rule on his motion to reinstate his post-conviction proceedings. (Id. at 215-20.) The State filed a brief in opposition. (Id. at 221-28.) On March 26, 2007, the trial court denied Cassano's request to reinstate his post-conviction petition. (Id. at 229-30.)

         Cassano appealed the trial court's judgment denying his motion to reinstate his post-conviction proceedings. (Doc. 134-17 at 4-8.) In his appellate brief, he raised the following assignments of error:

1. The trial court erred when it denied Appellant's motion to reinstate his petition for post-conviction relief because a hearing was never held to determine whether Appellant's waiver of his right to post[-]conviction proceeding[s] was knowingly and intelligently made.
2. The trial court misapplied R.C. § 2953.21 in its denial of Appellant's motion to reinstate his post[-]conviction petition.

(Id. at 36, 42 (capitalization altered).) The State responded. (Id. at 57-101.)

         On March 6, 2008, the state appellate court granted both assignments of error, vacated the trial court's judgment, and remanded the matter to the trial court. (Id. at 119-28.) On July 9, 2008, the trial court issued a judgment entry stating that Cassano no longer wished to waive his right to post-conviction relief, rendering a competency determination unnecessary, and permitting Cassano to file a post-conviction petition. (Doc. 134-5 at 237-38.)

         On May 6, 2009, Cassano, still represented by Attorneys Kelleher and Migdal, filed a petition for post-conviction relief with the trial court. (Doc. 134-18 at 39-83.) He asserted two claims, stating:

1. Over objection, Mr. Cassano was compelled to wear both shackles and a stun belt during both the guilt-innocence and penalty phases of his trial. Everyone in the court, including the entire jury, saw and was fully aware of the shackles throughout both phases of trial. This violated Mr. Cassano's rights under the Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States.
2. Mr. Cassano was denied his right to self-representation as guaranteed by the Sixth Amendment of the United States Constitution.

(Id. at 49, 59.) The State opposed the petition. (Id. at 90-117; Doc. 134-19 at 1-23.)

         On June 3, 2009, Cassano filed a pro se motion for new counsel. (Doc. 134-18 at 84.) The court denied the motion. (Id. at 88-89.) On July 1, 2009, Cassano, again acting pro se, filed an “Emergency Motion To asign [sic] New Postconviction counsel.” (Doc. 134-19 at 24.) This time, the court appointed new counsel for Cassano, Michael Benza. (Id. at 32.)

         Cassano, through his new counsel, filed a motion for funds to employ investigators, which the State opposed. (Id. at 33-70.) The court denied the motion. (Doc. 134-20 at 36-41.) Cassano then moved for funds to employ an independent psychologist or psychiatrist, which the State also opposed. (Id. at 42-50; Doc. 134-22 at 17-21.)

         On April 5, 2011, Cassano, through counsel, filed a motion to recuse the trial-court judge, Judge James Henson. (Doc. 134-19 at 74-79; Doc. 134-20 at 1-33.)

         On May 3, 2011, Cassano filed a “Petition for Postconviction Relief Pursuant to O.R.C. § 2953.21, ” which was treated as an amended, rather than successive, petition for post-conviction relief. (Doc. 134-20 at 51-85; Doc. 134-21 at 1-75; Doc. 134-22 at 1-10.) It raised seven claims for relief, stated as follows:

1. Cassano was denied a fair trial before a fair and impartial judge.
2. Cassano's conviction and sentence are void as he was deprived of the effective assistance of counsel.
3. Prosecutorial misconduct permeated Cassano's trial and deprived him of a fair trial.
4. During the course of the trial the jurors engaged in at least two instances of improper conduct.
5. Ohio's capital punishment scheme fails to comply with Eighth Amendment mandates to protect against arbitrary and capricious death sentences.
6. Post-conviction is a fraud.
7. The trial court denied Cassano his constitutional right to self- representation.

(Doc. 134-20 at 54, 59, 65, 70, 72, 79, 81 (capitalization altered).)

         Also on May 3, 2011, the State opposed Cassano's motion to recuse Judge Henson. (Doc. 134-22 at 17-21.) On August 9, 2011, Cassano, through counsel, filed an application for disqualification of Judge Henson in the Ohio Supreme Court. (Id. at 56-58.) On August 31, 2011, the Ohio Supreme Court issued an order stating that Judge Henson had decided to step aside from further proceedings in Cassano's case and dismissed the affidavit of disqualification as moot. (Id. at 70.)

         Cassano then filed motions to stay and abey pending a competency evaluation, for funds to employ an independent psychologist or psychiatrist, and for funds to employ investigators. (Doc. 134-23 at 1-32, 70.)[1] The State opposed each of these motions. (Id. at 35-52.)

         On June 18, 2012, the trial court dismissed Cassano's post-conviction petition and denied his motions to stay and abey and motions for funds to employ experts and investigators. (Id. at 70-80.)

         Cassano, still represented by Attorney Benza, timely appealed the trial court's judgment to the court of appeals. (Id. at 81.) In his appellate brief, he raised the following assignments of error, stated as:

1. The trial court erred by dismissing Appellant's post-conviction petition, where he presented sufficient operative facts and supporting exhibits to merit an evidentiary hearing and discovery.
2. The trial court erred in not providing resources to Cassano to determining [sic] Cassano's competency, failing to evaluat[e] Cassano's competency, and to render an opinion as to Cassano's competency to proceed in post-conviction.
3. The trial court erred in dismissing Cassano's claim that Judge Henson deprived Cassano of his right to a fair trial due to his bias and prejudice.
4. The trial court erred in denying relief on the basis of ineffective assistance of counsel.
5. The trial court erred in denying relief on the basis of prosecutorial misconduct.
6. The trial court erred in denying relief on the basis of juror misconduct.
7. The trial court erred in denying relief, or even reviewing the merits of Cassano's challenge to the ongoing Eighth Amendment viability of Ohio's death penalty scheme.
8. The trial court erred in denying relief on the denial of Cassano's right of self-representation.

(Doc. 134-24 at 36-37 (capitalization altered).) The State filed a responsive brief. (Doc. 134-25 at 1-37.)

         The appellate court affirmed the trial court's judgment on April 11, 2013. (Id. at 60-81.)

         Cassano filed a timely appeal of the court of appeals' decision with the Ohio Supreme Court. (Doc. 134-26 at 2-24.) In his memorandum in support of jurisdiction, he raised eight propositions of law, stated as:

1. In an action for post-conviction relief, a petition that presentes sufficient operative facts supported by evidence de hors the record meets the required pleading standard and must not be summarily dismissed without discovery and an evidentiary hearing.
2. A capital post-conviction petitioner is entitled to be competent while pursing [sic] post-conviction relief.
3. When a petitioner submits evidence demonstrating that the trial judge was meeting with, and discussing, the case before and during the trial with witnesses and the state[, ] the post-conviction court must permit discovery and hold a hearing, and ultimately grant relief.
4. When a petitioner submits evidence demonstrating deficient performance of counsel the post-conviction court must permit factual development and hold an evidentiary hearing and cannot simply assume that decisions were strategic decision[s].
5. A trial court facing evidence of juror misconduct conduct [sic] a Remmer hearing in post-conviction proceedings where no such hearing was held at the trial?
6. A post-conviction court facing evidence of juror misconduct conduct [sic] must conduct a Remmer hearing where no such hearing was held at the trial.
7. A post-conviction court, facing evidence of systemic failures of Ohio's death penalty scheme[, ] must conduct an independent inquiry including evidence de hors the record.
8. A post-conviction court, facing evidence that an earlier judicial decision was predicated on a clearly incorrect factual assertion[, ] must review the claim on the merits of the new evidence.

(Id. at 26-27 (capitalization altered).) The State opposed the memorandum. (Id. at 99-141.)

         On July 22, 2013, Cassano filed a pro se “Emergency Motion to Remove Michael J. Benza.” (Id. at 142-43 (capitalization altered).)

         On June 24, 2015, the court declined to accept jurisdiction of the appeal. (Id. at 145.) Five days later, it denied Cassano's motion to remove his counsel as moot. (Id. at 144.)

         4. Application to Reopen Direct Appeal

         Meanwhile, on February 27, 2004, Attorneys Benza and Kelleher filed on Cassano's behalf in the Ohio Supreme Court a motion for appointment of counsel to apply to reopen Cassano's direct appeal. (Doc. 134-15 at 16-20.) The Ohio Supreme Court's practice rules permit capital defendants to request to reopen their direct appeal to present claims of ineffective assistance of appellate counsel within ninety days from issuance of the court's direct-appeal mandate, or later for “good cause.” See Ohio S.Ct. Prac. R. 11.06(A) (this rule was designated as Ohio S.Ct. Prac. R. XI, § 5 when Cassano filed his application); see also State v. Murnahan, 63 Ohio St.3d 60 (Ohio 1992). The court granted the motion on March 15, 2004, and remanded the matter to the trial court for appointment of counsel. (Doc. 134-15 at 21.) The trial court appointed Attorneys Benza and Kelleher to represent Cassano in the reopening proceedings. (Id. at 36-37.)

         Cassano filed his reopening application in the Ohio Supreme Court on July 21, 2004. (Id. at 40-82.) In his application, he asserted that he was denied the effective assistance of appellate counsel for failing to raise on direct appeal the following assignments of error:

1. The prosecutors' misconduct tainted the entire proceedings and deprived Mr. Cassano of a fair and impartial trial.
A. Used peremptory challenges to exclude women from jury.
B. Improper bolstering of witnesses.
C. Intentionally violated Mr. Cassano's Fifth Amendment rights.
D. Withheld exculpatory, impeachment, or mitigation evidence.
E. Improper ex parte contact with jurors.
F. Improper use of victim impact evidence.
G. Improper closing argument: trial phase.
H. Improper closing argument: mitigation phase.
2. The trial court committed numerous errors presiding over Mr. Cassano's trial.
A. Failed to recuse itself from the case after reviewing ex parte materials and conducting an independent investigation of various matters.
B. Improperly deprived Mr. Cassano of grand jury transcripts.
C. Improperly conducted voir dire.
D. Improperly limited Mr. Cassano's opening statement.
E. Improperly prevented the jury from taking notes.
F. Improperly weighed both aggravating circumstances cumulatively against the mitigation evidence.
G. Improperly considered victim impact evidence.
3. The jury instructions denied Mr. Cassano a fair trial and due process . . . . [when] the trial court improperly instructed the jury in the following manner:
A. that purpose and intent are the same thing.
B. that its sentencing decision turned on whether the aggravating circumstances outweighed the mitigating factors. This is a misstatement of law and improperly shifted the burden of proof and persuasion to Mr. Cassano.
C. to weigh both aggravating circumstances against the mitigating factors. This is incorrect as the jury must individually and separately weigh each aggravating circumstance against all the mitigating factors.
D. that Mr. Cassano had the burden of proof under the voluntary manslaughter charge.
E. that all decisions, including rejecting a charge and the sentencing decision of life, had to be unanimous.
F. improperly instructed the jury that it must acquit of aggravated murder before it could consider the lesser included charge of murder. . . .
G. improperly instructed the jury that it must acquit of murder before it could consider the lesser included charge of voluntary manslaughter.
4. The jury was improperly instructed to consider plural aggravating circumstances.
5. The jury committed numerous acts of misconduct.
6. Mr. Cassano was denied the effective assistance of counsel at trial . . . by failing to:
A. object to the prosecutors' misconduct identified in Proposition of Law No. 1, infra.
B. object to the trial court's misconduct and errors identified in Propositions of Law No. 2 and 3, infra.
C. object to, and in fact contributed to, the improper argument of plural aggravating circumstances identified in Proposition of Law No.4, infra.
D. conduct a proper voir dire and to challenge biased jurors for cause.
E. move for the recusal and disqualification of the trial judge. See Proposition of Law No.2.
F. prepare Mr. Cassano for trial.
G. [A]ttorney Love, one of the two Ru1e 20 certified trial counsel was unavailable to prepare for trial.
H. adequately and properly investigate and prepare for the mitigation phase of the case.
I. ensure that a complete and accurate record was made of the trial proceedings.
7. Mr. Cassano was denied the effective assistance of counsel on appeal.

(Id. at 40-50 (capitalization altered).) The State filed a memorandum in opposition. (Doc. 134-16 at 1-33.)

         On October 13, 2004, the Ohio Supreme Court denied the application as untimely. (Id. at 34.)

         B. Federal Habeas Proceedings

         Cassano filed a notice of intent to initiate this habeas action on June 16, 2003. (Doc. 1.) He requested appointment of counsel and leave to proceed in forma pauperis that same day. (Docs. 6, 8.) This Court granted both motions and appointed John Parker and David Doughten to represent him. (Docs. 10, 11.) At Cassano's request, the Court removed Attorneys Parker and Doughten and appointed new counsel, Attorneys Migdal and Kelleher, in November 2003. (Doc. 22.)

         After requesting and receiving additional time, Cassano filed his petition for writ of habeas corpus on March 2, 2004. (Doc. 26.) On March 5, 2004, Cassano filed a motion to stay the proceedings and hold them in abeyance pending exhaustion of state-court remedies and a motion for leave to amend the petition. (Docs. 28, 29.) Respondent, Warden Margaret Bradshaw, [2] opposed both motions. (Docs. 30, 31.) The Court denied Cassano's motions without prejudice. (Docs. 34, 68.)

         Respondent filed a return of writ on April 30, 2004. (Doc. 63.) Cassano filed a traverse on June 15, 2004. (Doc. 64.) Respondent replied to the traverse on June 30, 2004. (Doc. 67.)

         On December 7, 2004, Cassano, through counsel, filed a second motion to stay the federal habeas proceedings pending exhaustion of state-court remedies. (Doc. 73.) Respondent opposed the motion. (Doc. 74.) The Court granted the motion on February 10, 2005. (Doc. 76.)

         In 2005 and 2006, Cassano filed numerous pro se motions in this Court to obtain substitute counsel and/or withdraw his petition. In June 2005, acting pro se, he filed and then promptly withdrew a motion for substitute counsel. (Docs. 77, 78.) He filed two more pro se motions for new counsel in September and October 2006 (Docs. 81, 82), which the Court denied (Doc. 83).

         In December 2006, after Cassano filed yet another pro se motion to withdraw counsel or in the alternative to “withdraw [his] appeals” (Doc. 84), followed shortly by a pro se motion to “withdraw any and all appeals” and have his “sentence . . . carried out as soon as possible” (Doc. 85), the Court ordered Cassano's counsel to file a motion requesting that Cassano undergo a competency evaluation to determine whether he was competent to make a pro se request to remove counsel and withdraw this action and any future appeals (Doc. 87). Cassano, through counsel, opposed the Court's order after determining that they had no good-faith basis to request a competency evaluation of Cassano but did not object to the Court ordering one. (Doc. 90.) That same day, Cassano filed a letter with the Court withdrawing his previous request to terminate all appeals, and his counsel filed a supplemental pleading stating a competency evaluation was no longer required because Cassano had withdrawn his request to waive his appeals. (Docs. 89, 92.) Respondent responded by requesting the Court conduct a colloquy with Cassano on the record to verify his intention to withdraw his waiver. (Doc. 92.) On March 2, 2007, the Court conducted a video conference with Cassano and counsel for both parties regarding Cassano's pro se motions (Doc. 94), after which the Court denied Cassano's motions as moot (Doc. 95).

         On September 17, 2007, Cassano filed a pro se motion challenging Ohio's “[u]nfair [s]treamline[d] [a]ppeals.” (Doc. 97.) The Court, after addressing and rejecting Cassano's concerns, denied the motion. (Doc. 98.)

         In March and April 2012, Cassano again filed pro se motions to withdraw his appeals and have an execution date set “as soon as possible.” (Docs. 106, 108.) Upon the Court's order (Doc. 107), Respondent and Cassano's counsel filed responses to Cassano's filings, stating their positions regarding the need for a competency evaluation (Docs. 109, 110). On April 25, 2012, the Court deferred ruling on the motions until the state trial court had completed its review of Cassano's pending motion in that court to stay his state post-conviction proceedings pending a competency evaluation. (Doc. 113.) On August 10, 2012, Cassano wrote to the Court notifying it that he now wished to continue with his appeals. (Doc. 114.) The Court then denied his motions to withdraw his appeals as moot. (Docs. 115, 116.)

         On March 17, 2016, the Court lifted the stay of these proceedings as Cassano's state-court proceedings were complete. (Doc. 121.) On June 24, 2016, Cassano moved to amend his petition and filed the amended petition. (Docs. 122, 123.) Respondent, without waiving any statute-of-limitations defenses to Cassano's claims, did not oppose the motion to amend. (See Doc. 124.) The Court granted it. (Doc. 125.)

         On October 20, 2016, the Court granted Attorneys Kelleher and Migdal's oral request to withdraw from representing Cassano and appointed Attorneys John Lewis and Jon Oebker as new counsel. (Doc. 131.)

         On April 3, 2017, Cassano filed a second amended petition. (Doc. 138.) Respondent filed a return of writ on May 8, 2017. (Doc. 141.) And Cassano ...


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