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Hasan v. Ishee

United States District Court, S.D. Ohio, Western Division, Cincinnati

March 28, 2019

SIDDIQUE ABDULLA HASAN, Formerly known as Carlos Sanders, Petitioner,
v.
TODD ISHEE, Warden Respondent.

          Michael R. Merz Magistrate Judge

          DECISION AND ORDER

          Susan J. Dlott United States District Judge

         This capital habeas corpus case is before the Court on Petitioner's Objections (ECF No. 203) to the Magistrate Judge's Decision and Order (“Decision” ECF No. 190) which denied Petitioner's Motion to Amend, for Additional Discovery, an Evidentiary Hearing, or to Stay and Abeyance of Proceedings to Allow Exhaustion of Newly Discovered Claim (ECF No. 185).

         The Motion at issue was filed by Attorney Lawrence Komp who, on the same day he filed it (August 3, 2017), moved to withdraw as counsel in the case (ECF No. 186). The Objections were filed by newly-appointed counsel Shawn Nolan and, because of extensions of time for briefing, did not become ripe for decision until December 7, 2018 (Reply, ECF No. 207).

         All the matters covered by the Decision are non-dispositive pre-trial matters on which a Magistrate Judge has authority to make an initial decision. Such decisions are reviewed by the assigned District Judge for clear error as to matters of fact and de novo for asserted errors of law. Fed.R.Civ.P. 72(a).

         Applicability of Martinez and Trevino to Ohio Ineffective Assistance of Trial Counsel Claims

         Petitioner's First Objection is that the Magistrate Judge did not apply Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), in deciding the Motion (Objections, ECF No. 203, PageID 14083-94, 14127-30).

         The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Martinez the Supreme Court created an equitable exception to Coleman, holding:

[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit. Cf. Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing standards for certificates of appealability to issue).

566 U.S. at 14. In Trevino, the Court extended Martinez to the Texas system, holding that Texas effectively, albeit not expressly, requires ineffective assistance of trial counsel claims to be brought in post-conviction. 569 U.S. at 429.

         Hasan seeks an evidentiary hearing in this case to show that his post-conviction counsel provided ineffective assistance (ECF No. 185, PageID 13921-22). In fact, in the Objections Hasan argues at length how his post-conviction counsel was ineffective (ECF No. 203, PageID 14090-92). However, that ineffectiveness is material only if Martinez and Trevino apply to the Ohio system of raising ineffective assistance of trial counsel claims. Hasan complains that the Magistrate Judge made no determination of whether post-conviction counsel performed deficiently or whether that deficient performance included not raising a substantial claim of ineffective assistance of trial counsel (Objections, ECF No. 203, PageID 14088).

         While that is true, the Magistrate Judge's reason for not reaching those questions is that the Sixth Circuit has never decided whether Martinez and Trevino apply to the Ohio system. As the Magistrate Judge noted, the Sixth Circuit in Hill v. Mitchell, 842 F.3d 910, 937-38 (6th Cir. 2016), discussed the possible applicability of Martinez/Trevino and expressly declined to decide the question as it had previously refused to do in McGuire v. Warden, 738 F.3d 741 (6th Cir. 2013), and Williams v. Mitchell, 792 F.3d 606, 615 (6th Cir. 2015). After Hill it again declined to decide the question in Moore v. Mitchell, 848 F.3d 774, 777 (6th Cir. 2017), a case in which certiorari was denied only a month before the Magistrate Judge's decision.

         Hasan objects that this Court should not wait for the Sixth Circuit, but has a “duty to determine in the first instance whether Martinez applies in Ohio.” (Objections, ECF No. 203, PageID 14083.) He points to no authority from the Sixth Circuit imposing this duty on the District Courts. Instead, he cites cases arising under 28 U.S.C. § 2255, the habeas-like remedy in federal criminal cases, where the federal appellate courts have spoken of the need to add evidence to the appeal record in those cases.[1] That authority is inapposite here because the federal courts, unlike Ohio, do not require ineffective assistance of trial counsel claims to be raised on direct appeal even if the claim is apparent on the face of the record. Massaro v. United States, 538 U.S. 500 (2003); United States v. Neuhausser, 241 F.3d 460 (6th Cir. 2001); United States v. Fortson, 194 F.3d 730, 736 (6th Cir. 1999). There are also no federalism concerns involved in assigning all federal ineffective assistance of trial counsel claims to § 2255 proceedings.

         Hasan also cites cases from other circuits holding Martinez and Trevino apply to other state systems for litigating ineffective assistance of trial counsel claims. (ECF No. 203, PageID 14084, citing Fowler v. Joyner, 753 F.3d 446, 462-63 (4th Cir. 2014) (North Carolina); Brown v. Brown, 847 F.3d 502, 506, 508-11 (7th Cir. 2017) (Indiana); and Lafferty v. Crowther, No. 2:07-CV-322, 2016 WL 5848000, *2 (D. Utah 2016). Of course, the United States Court of Appeals for the Sixth Circuit has itself held the Martinez/Trevino exception applies in Kentucky, Woolbright v. Crews, 791 F.3d 628 (6th Cir. 2015), and in Tennessee, Sutton v. Carpenter, 745 F.3d 787, 789 (6th Cir. 2014). But Hasan cites no case where any court has applied Martinez and Trevino to the Ohio system, and indeed, the Sixth Circuit has expressed doubt that such application would be appropriate. See Henness v. Bagley, 766 F.3d 550, 557 (6th Cir. 2014), citing Moore v. Mitchell, 708 F.3d 760, 785 (6th Cir. 2013) (“this court has concluded that Martinez does not apply in Ohio because Ohio permits ineffective-assistance-of-counsel claims on direct appeal.”).

         The Court is persuaded that application of Martinez and Trevino to Ohio must await a decision of the Sixth Circuit. Given that the appellate court has had the question presented many times and eluded it on each occasion, this Court should not proceed until the circuit court decides. To do so would involve this Court in conducting extensive proceedings in this and many other habeas corpus cases which might well be held for naught. The Magistrate Judge's refusal to apply Martinez and Trevino in this case is not contrary to law.

         Hasan's Actual Innocence Claim

         The Magistrate Judge declined to allow an evidentiary hearing for the presentation of Hasan's claim of actual innocence on the ground that the new evidence he had submitted was not of the quality required by Schlup v. Delo, 513 U.S. 298 (1986) (Decision, ECF No. 190, PageID 14025-26). Hasan objects that

[The Magistrate Judge's] application of Schlup was unduly narrow and restrictive. . The evidence of actual innocence before the Magistrate Judge meets the probabilistic Schlup standard because it raises “sufficient doubt about [Petitioner's] guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.”

(Objections, ECF No. 203, PageID 14095, quoting Schlup, 513 U.S. at 316).

         A habeas petitioner's burden at the Schlup gateway stage “is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 538 (2006). Petitioner objects that on occasion in the Decision the Magistrate Judge, in stating the actual innocence standard, omitted the “more likely than not” language.

         On examination, the Court finds the Magistrate Judge twice stated the standard in full in correcting Hasan's misstatement of the standard. Two pages later the Magistrate Judge omitted the “more likely than not” language twice in the same paragraph. (Decision ECF No. 190, PageID 13984, 13986). Petitioner calls this omission “repeated” and infers from it that the Magistrate Judge required Hasan to prove his innocence “not by a preponderance standard, but to an absolute certainty.” (Objections, ECF No. 203, PageID 14098.)

         The Court is not persuaded the Magistrate Judge applied the wrong standard. Under Schlup, the new evidence offered to show actual innocence must be considered together with the evidence presented at trial. Schlup, 513 U.S. at 330-32. That is exactly what the Decision says it will do: “the Court will summarize the testimony of each witness who testified at Hasan's trial along with any new evidence he has presented that challenges the witnesses' testimony or credibility.” (ECF No. 190, PageID 13988). The Decision then continues for more than twenty-five pages summarizing the evidence both at trial and submitted after trial on the issue of Hasan's guilt or innocence. Id. at PageID 13988-14015.

         Having summarized the evidence, the Decision proceeds to evaluate it (ECF No. 190, PageID 14015, et seq.) The Magistrate Judge notes that some of the new evidence consists of affidavits recanting trial testimony and notes that courts treat such affidavits with great caution. Some of the new evidence is the results of polygraph examinations; the Decision notes that the Sixth Circuit has repeatedly ...


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