Cassano v. Bradshaw

Filing 113

Memorandum Opinion and Order that the Court will defer ruling on Petitioner's motions to withdraw his appeals (Doc. # 106 and 108 ) until the state trial court completes its review of Petitioner's pending motion to stay and abey post-conviction proceedings pending a competency evaluation. Judge John R. Adams on 4/23/12. (K,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

AUGUST CASSANO,
Petitioner,
v.
MARGARET BRADSHAW,
WARDEN,
Respondent.

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CASE NO. 1:03 CV 1206
JUDGE JOHN R. ADAMS

MEMORANDUM OF OPINION
& ORDER

This matter is before the Court upon Petitioner August Cassano’s March 19, 2012 and April
5, 2012 letters to this Court, which were submitted pro se and docketed as Motions to Withdraw
Appeals. (ECF 106, 108). Cassano’s counsel and Respondent filed responses on April 12, 2012.
(ECF 109, 110). For the following reasons, the Court will defer ruling on Cassano’s Motions to
Withdraw Appeals until the state trial court completes its review of Cassano’s pending Motion to
Stay and Abey Post-Conviction Proceedings Pending Competency Evaluation.
I.

Procedural History

On March 2, 2004, Cassano filed a Petition for Writ of Habeas Corpus in this Court pursuant
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to 28 U.S.C. § 2254. (ECF 26). Respondent filed a Return of Writ on April 30, 2004 (ECF 63) and
Cassano thereafter filed a Traverse on June 15, 2004 (ECF 64).
On February 10, 2005, this Court stayed the instant matter in order to permit Cassano to
exhaust certain claims in state court. (ECF 76). Cassano had already initiated post-conviction
proceedings in the Richland County Court of Common Pleas. See State v. Cassano, Richland
Common Pleas Case No. 1998-CR-0171. On March 26, 2007, the state trial court denied Cassano’s
motion to reinstate1 post-conviction proceedings after which Cassano took an appeal to the state
appellate court. That court vacated the trial court’s order and remanded for further proceedings.
State v. Cassano, 2008 WL 638190 (Ohio App. 5th Dist., March 5, 2008).
It appears Cassano’s efforts to secure post-conviction relief are continuing. On February 7,
2012, Cassano’s post-conviction counsel, Michael Benza, filed in the state trial court a Motion to
Stay and Abey Post-Conviction Proceedings pending an assessment of Cassano’s competency. Mr.
Benza also renewed a motion for funds to employ an independent psychologist or psychiatrist in that
regard. Shortly thereafter, on March 12, 2012, Cassano sent a hand-written letter to the state trial
judge, stating he wished to withdraw his post-conviction appeals. (ECF 110 at Exh. 1).
On March 19, 2012, Cassano filed a hand-written letter in this Court, seeking to “withdraw
all my appeals” and have an execution date set as soon as possible. (ECF 106). He filed another
hand-written letter with the Court on April 5, 2012, in which he reiterates his intention to drop all
his appeals and insists that a competency hearing is unnecessary. (ECF 108). These letters were

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After his direct appeal was unsuccessful, Cassano had initially waived postconviction and reopening proceedings. He filed applications for post-conviction relief and to
pursue a Murnahan petition just prior to filing his federal habeas petition. On October 13, 2004,
the Ohio Supreme Court denied Cassano’s Murnahan petition.
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docketed as Motions to Withdraw Appeals.
In an Order dated March 29, 2012 (ECF 107), this Court ordered Cassano’s counsel to submit
a response, addressing the following issues: (1) whether there has been a breakdown in
communications between Petitioner and his habeas counsel; (2) the status of Petitioner’s state court
post-conviction proceeding, including a discussion of the basis for the pending Motion to Stay and
Abey Pending Competency Evaluation filed in that proceeding on March 12, 2012; and (3) habeas
counsel’s position as to whether a competency evaluation should be conducted in these federal
habeas proceedings. The Court also ordered Respondent to file a response, indicating its position
regarding the necessity of a competency evaluation in the above-captioned matter. The parties
submitted their responses on April 12, 2012. (ECF 109, 110).
II.

Analysis

The Supreme Court has considered a federal court’s obligations when a death row inmate
seeks to withdraw his habeas action. In Rees v. Peyton, 384 U.S. 312 (1966), a habeas petitioner
facing death row petitioned the Supreme Court for a writ of certiorari after the lower federal courts
denied his petition. After filing the petition for writ of certiorari, however, Rees directed his counsel
to withdraw the petition and forego any further legal proceedings. The Supreme Court explained that
“[w]hether or not [the petitioner] shall be allowed in these circumstances to withdraw his certiorari
petition is a question which it is ultimately the responsibility of this Court to determine, in the
resolution of which Rees’ mental competence is of prime importance. “ Id. at 313. The Court
ordered the district court to “make a judicial determination as to Rees’ mental competence and
render a report on the matter” in order to “aid . ..the proper exercise of th[e] Court’s certiorari
jurisdiction.” Id. at 313-14. Specifically, the Court directed the district court to “determine Rees’
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mental competence in the present posture of things, that is, whether he has capacity to appreciate his
position and make a rational choice to continuing or abandoning further litigation or on the other
hand whether he is suffering from a mental disease, disorder, or defect which may substantially
affect his capacity in the premises.” Id. at 314.
The Sixth Circuit has relied on Rees to find that federal habeas courts may conduct
preliminary hearings to determine whether there is “reasonable cause to believe that the defendant
may presently be suffering from a mental disease or defect rendering him mentally incompetent to
waive his right to further appeals.” Harper v. Parker, 177 F.3d 567, 571 (6th Cir. 1999). See also
Awkal v. Mitchell, 2006 WL 559370 (6th Cir. March 8, 2006) (where capital habeas petitioner sought
to withdraw appeal of district court’s denial of petition, Sixth Circuit remanded to district court for
a limited evidentiary hearing to determine competence in accordance with Rees); Carter v.
Bradshaw, 644 F.3d 329, 334 (6th Cir. 2011) (noting that “[a]nytime a capital habeas petitioner
affirmatively seeks to forego his habeas petition, whether by action or inaction, Rees and Harper
hold that a district court may” hold a preliminary hearing regarding competence).2
In their response to Cassano’s Motions to Withdraw Appeals, Cassano’s counsel request that
this Court defer ruling on these Motions in order to allow the state trial court to assess Cassano’s
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The Supreme Court recently granted certiorari in Carter. See Tibbals v. Carter,
2012 WL 895971 (U.S. March 19, 2012). The questions presented to the Supreme Court in that
case are (1) whether capital prisoners posses a “right to competence” in federal habeas
proceedings under Rees, supra; and (2) whether a federal district court can order an indefinite
stay of a federal habeas proceeding under Rees. See Tibbals v. Carter, 2011 WL 3706735 (U.S.
Aug. 17, 2011) (Petition for Writ of Certiorari). The Supreme Court also granted certiorari in a
similar case, Ryan v. Gonzales, Case No. 10-930, to consider the issue of whether a federal court
should indefinitely stay federal habeas proceedings involving a capital prisoner pending the
possible restoration of competency. See Ryan v. Gonzales, 2011 WL 178714 (U.S. Jan. 18,
2011) (Petition for Writ of Certiorari). These cases will be argued before the Supreme Court in
its next term, beginning in October 2012.
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competency to abandon his state post-conviction proceedings. Counsel states Cassano has a “long
history of mental health problems” for which he has received psychiatric treatment and medication.
They assert Cassano’s mental state has deteriorated significantly since he was transferred from
Mansfield Correctional Institution (MANCI) to Chillicothe Correctional Institution (CCI) in January
2012.3 Specifically, counsel states Cassano has engaged in “bizarre” behavior since this transfer,
including threatening his state post-conviction counsel and “twice injuring himself . . . in what
appear to be have been instances of suicidal behavior.” (ECF 110 at 5). Counsel suggests this is
because one or more of Cassano’s psychiatric medications may have been discontinued once he was
transferred to CCI.
Pending a psychological assessment, counsel indicate they “cannot say” whether they do or
do not believe Cassano is incompetent. They believe, however, that “with proper medications he
will probably be restored to competence and that his return to competence will cause him, after
further reflection, to withdraw his request.” (ECF 110 at 6). If Cassano does not withdraw his
request, counsel maintains that both the state and federal courts are required to conduct independent
Rees inquiries into his competence. In light of the fact that this matter is stayed and the Supreme
Court may revisit its ruling in Rees in the pending Tibbals v. Carter, No. 11-218 and Ryan v.
Gonzales, No. 10-930 cases, counsel suggests this Court allow the state court to conduct its
competency assessment first. If the state court finds Cassano to be competent, counsel argues that
“then it would become appropriate for this Court to bring Cassano into the district court and convene

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In October 2011, the Ohio Department of Rehabilitation & Correction announced
that the majority of Ohio’s male death row prisoners would be moved to CCI from the Ohio State
Penitentiary (OSP) in Youngstown and MANCI in Mansfield. The transfer was completed in
January 2012. Cassano was apparently one of the death row inmates who was transferred to CCI.
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its own inquiry under Rees or the holdings in Carter and/or Gonzales, as the case may be, after the
latter are decided.” (ECF 110 at 8).
Respondent states that it “takes no position” on the merits of Cassano’s motion. (ECF 109
at 5). It notes, however, that Cassano has a history in both this Court and state court of attempting
to withdraw his appeals and then changing his mind.4 Respondent also notes that, in connection with
Cassano’s previous attempt to withdraw his appeals, Cassano’s counsel indicated they had “no good
faith basis in which to request a competency evaluation on behalf of Petitioner.” (ECF 109 at 3,
quoting ECF 90). Respondent also directs this Court’s attention to a 1973 psychiatric assessment
of Cassano, which concluded that Cassano was not psychotic “but rather is immature, impulsive in
conjunction with a personality disorder” and that “repetitive antisocial behavior can be expected,
including impulsive, angry, self-inflicted injuries as in the past.” (ECF 109 at p. 5 and Exh. A). In
conclusion, Respondent requests that this Court “continue to stay Cassano’s federal habeas corpus
case as the issue of Cassano’s competency is presently before the state court,” and the state court’s
findings “will likely be instructive” on the issue of Cassano’s competency to waive his habeas
appeals. (ECF 109 at 5-6).
In light of the above, the Court will defer ruling on Cassano’s motions to withdraw appeals
until the state court completes its review regarding the issue of Cassano’s competency. It is possible
the state court will order a competency evaluation of Cassano and perhaps conduct a Rees inquiry
into his capacity to withdraw his post-conviction appeals. If this occurs, it will most likely shed light

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Cassano has repeatedly complained about his representation in this Court, and
filed a motion to withdraw appeals because of his dissatisfaction with his attorneys in December
2006. See ECF 77, 78, 81, 82, 84, 85, 86. He subsequently had a change of heart, and withdrew
his motion to withdraw appeals. See ECF 89, 95.
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on Cassano’s mental state and provide additional information for this Court to consider in resolving
Cassano’s motions to withdraw his habeas case. In addition, Cassano’s counsel suggests there is a
possibility Cassano’s psychiatric medications will be adjusted or re-started, which may lead him to
withdraw his motions to withdraw. Moreover, Cassano’s counsel and Respondent are in agreement
that this Court should defer ruling on Cassano’s motions to withdraw until such time as the Richland
County Court of Common Pleas rules on Cassano’s pending motion to stay his post-conviction
proceedings pending a competency evaluation.
To assist this Court in its review of this matter, however, the Court orders Cassano’s counsel
to keep this Court apprised of the state court’s rulings on this issue and, further, to provide this Court
with copies of any rulings the state court issues relative to Cassano’s competence.
IT IS SO ORDERED.

Dated: April 23, 2012

/s/ John R. Adams
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE

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