United States District Court, S.D. Ohio, Western Division, Cincinnati
SIDDIQUE ABDULLA HASAN, Formerly known as Carlos Sanders, Petitioner,
TODD ISHEE, Warden Respondent.
Michael R. Merz Magistrate Judge
DECISION AND ORDER
J. Dlott United States District Judge
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).
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).
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).
of Martinez and Trevino to Ohio Ineffective
Assistance of Trial Counsel Claims
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).
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.
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).
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
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. 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.
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
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.
Actual Innocence Claim
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
[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
(Objections, ECF No. 203, PageID 14095, quoting
Schlup, 513 U.S. at 316).
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.
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.)
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.
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