Hill v. Anderson
Filing
159
Memorandum Opinion and Order denying Petitioner's Motion for Authorization for Habeas Counsel to Conduct State Court Litigation. Related document 156 . Judge John R. Adams on 5/15/2014. (R,Sh)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DANNY LEE HILL,
Petitioner,
vs.
CARL ANDERSON, Warden,
Respondent.
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CASE NO. 4:96 CV 00795
JUDGE JOHN R. ADAMS
MEMORANDUM OF OPINION
AND ORDER
This matter is before the Court upon Petitioner Danny Lee Hill’s (“Hill” or “Petitioner”)
Request for Authorization for Habeas Counsel to Conduct State Court Litigation. (ECF No. 156.)
The Respondent, Warden Carl Anderson ("Respondent"), filed an Opposition to Appointment of
Counsel to Conduct State Court Litigation. (ECF No. 157.) Hill filed a Reply to Respondent’s
opposition. (ECF No. 158.) For the following reasons, Hill’s request is denied.
I.
Relevant Procedural History
On February 28, 1986, a three-judge panel sentenced Hill to death for the aggravated
murder of twelve-year-old Raymond Fife (“Fife”). Timothy Combs also was charged and
convicted in a separate trial as a principal offender in Fife’s murder. See State v. Combs, No.
1725, 1988 WL 129449 (Ohio Ct. App. Dec. 2, 1988).
The Ohio Supreme Court summarized the evidence adduced at Hill’s trial as follows:
Among the voluminous testimony from witnesses and the numerous exhibits, the
following evidence was adduced:
Defendant’s brother, Raymond L. Vaughn, testified that he saw defendant
wash his gray pants on the night of the murder as well as on the following two
days. Vaughn identified the pants in court, and testified that it looked like
defendant was washing out “something red. * * * It looked like blood to me * *
*.”
Detective Sergeant William Carnahan of the Warren Police Department
testified that on September 15, 1985 he went with eyewitness Donald Allgood to
the place where Allgood stated he had seen defendant and Combs coming out of
the wooded field, and where he had seen defendant toss “something” into the
woods. Carnahan testified that he returned to the area with workers from the
Warren Parks Department, and that he and Detective James Teeple found a stick
about six feet from the path where Allgood saw defendant and Combs walking.
Dr. Curtis Mertz, a forensic odontologist, stated that: “It’s my professional
opinion, with reasonable degree of medical certainty, that Hill’s teeth, as depicted
by the models and the photographs that I had, made the bite on Fife’s penis.”
The defense called its own forensic odontologist, Dr. Lowell Levine, who
stated that he could not conclude with a reasonable degree of certainty as to who
made the bite marks on the victim’s penis. However, Levine concluded: “What
I’m saying is either Hill or Combs, or both, could have left some of the marks but
the one mark that’s consistent with the particular area most likely was left by
Hill.”
Doctor Howard Adelman, the pathologist who performed the autopsy of
the victim’s body, testified that the size and shape of the point of the stick found
by Detective Carnahan was “very compatible” with the size and shape of the
opening through the victim’s rectum. Adelman described the fit of the stick in the
victim’s rectum as “very similar to a key in a lock.”
State v. Hill, 64 Ohio St. 3d 313, 316, 595 N.E.2d 884, 889 (Ohio 1992).
Hill’s conviction and sentence were left undisturbed on direct appeal. See State v. Hill,
Nos. 3720, 3745, 1989 WL 142761 (Ohio Ct. App. Nov. 27, 1989); State v. Hill, 64 Ohio St. 3d
313, 595 N.E.2d 884 (Ohio 1992), reh’g denied, 65 Ohio St. 3d 1421, 598 N.E.2d 1172 (Ohio
1992); and Hill v. Ohio, 507 U.S. 1007 (1993). Hill also was unsuccessful in state post-
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conviction proceedings. (See App. to Return of Writ, Exs. FF, GG.) See also State v. Hill, No.
94-T-5116, 1995 WL 418683 (Ohio Ct. App. June 16, 1995); State v. Hill, 74 Ohio St. 3d 1456,
656 N.E.2d 951 (Ohio 1995) (Table).
Hill filed a petition for writ of habeas corpus with this Court on November 27, 1996.
(ECF No. 18.) He asserted twenty-eight grounds for relief in his petition. In his third ground for
relief, Hill argued that because of his “mental deficiencies,” he was “incompetent” to waive his
Miranda rights and a jury trial, violating his rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments. (Id. at 10-11.) Hill also asserted three claims that referenced the bite mark found
on Fife. Specifically, in his eighth ground for relief, Hill alleged that photographs of the bite
marks that were delivered by the State to him at the time of trial, should have been produced by
the State during pre-trial discovery. (Id. at 15-16.) In his tenth ground, he alleged the prosecutor
improperly stated during closing arguments that the bite mark was Hill’s “calling card.” (Id. at
18.) And in his twenty-sixth ground, Hill alleged that the state post-conviction court should have
granted his request for appointment of a new expert to reexamine the bite-mark evidence that was
litigated during the trial. (Id. at 36-37.) Another judge on this Court denied Hill’s petition on
September 29, 1999, but granted a certificate of appealability as to several of Hill’s claims,
including his third, eighth, and twenty-sixth grounds for relief. (ECF No. 54.)
Hill appealed this Court’s decision denying the writ to the Sixth Circuit Court of Appeals.
While his appeal was pending, the United States Supreme Court decided Atkins v. Virginia, 536
U.S. 304 (2002), which held that the execution of mentally retarded offenders violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. Less than two months later, on
August 13, 2002, the Sixth Circuit returned Hill’s case to this Court with instructions that it
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“remand Hill’s Atkins claim to a state court and stay his remaining claims pending resolution of
the retardation issue.” Hill v. Anderson, 300 F.3d 679, 680 (6th Cir. 2002). The court explained
that it did not dismiss Hill’s “mixed petition” containing exhausted claims along with the
unexhausted Atkins claim, as it was authorized to do under § 2254(b)(2) of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), because the issue of Hill’s Eighth Amendment
mental retardation claim had not been exhausted or conceded, and Ohio should have the
opportunity to develop its own procedures for determining whether a particular claimant is
retarded and ineligible for death. Id. at 682. It also found that Hill’s mental status raised “a
serious question” regarding the voluntariness of his confession to police. Id. at 682-83. The
court emphasized the limited nature of its remand, however, stating:
In Zarvela v. Artuz, the Second Circuit faced a similar mixed petition
problem. See 254 F.3d 374, 380 (2001), cert. denied, 534 U.S. 1015, 122 S.Ct.
506, 151 L.Ed.2d 415 (2001). Crafting a solution consistent with the purposes of
the Antiterrorism Act, the court remanded to the district court with instructions to
dismiss the unexhausted claim and stay the exhausted claims, but conditioned the
stay on the petitioner promptly seeking state remedies and, when the state
remedies were exhausted, promptly returning to federal court. See id. at 381.
Zarvela has been cited with approval by this Court. See Palmer v. Carlton, 276
F.3d 777, 778 (6th Cir.2002).
Here we adopt Zarvela’s approach and remand Hill’s case to district court
with instructions to dismiss his Atkins claim to be considered by state court and to
stay his remaining claims pending exhaustion of state court remedies. To ensure
that Hill does not draw out his state court proceedings, we instruct the district
court to condition the stay on Hill’s seeking relief from a state court on his Atkins
claim within 90 days of the date the mandate issues from this Court.
Id. at 683.
In accordance with the Sixth Circuit’s remand instructions, this Court dismissed Hill’s
Atkins claim on August 20, 2002, and stayed his remaining claims pending exhaustion of his
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state-court remedies. (ECF No. 60.) Hill then filed a petition to vacate his death sentence with
the state trial court on November 27, 2002, and an amended petition to vacate on January 17,
2003. (Supp. App., Disc 1, 31-32.) Hill, assisted by appointed counsel and two appointed
experts, conducted substantial briefing and discovery regarding his claims. (See id. at 1-33.) The
trial court, in accordance with the procedures established by the Ohio Supreme Court in State v.
Lott, 97 Ohio St. 3d 303, 779 N.E.2d 1011 (Ohio 2002), held a twelve-day hearing, at which Hill
submitted more than 500 pages of evidence. (See Supp. App., Disc 1, 486-1013.) At its
conclusion, the trial court issued an 84-page opinion, which thoroughly examined the evidence
and explained its decision. (See id. at 3399-3483.) Hill then was provided with appointed
counsel to appeal the decision. (See id. at 3496-4517.) The Ohio court of appeals affirmed the
trial court’s decision on July 11, 2008. State v. Hill, 177 Ohio App. 3d 171, 894 N.E.2d 108
(Ohio Ct. App. 2008). The Ohio Supreme Court declined to review the case on August 26, 2009,
with two justices dissenting. State v. Hill, 122 Ohio St. 3d 1502, 912 N.E.2d 107 (Ohio 2009)
(Table).
After Hill exhausted his Atkins claims in state court, both parties promptly moved this
Court to “reopen” Hill’s habeas action. (ECF Nos. 63, 65.) The Court granted the motions on
October 1, 2009, declaring Hill’s habeas case “REOPENED” and ordering Hill to file a
“supplement” to his petition that “shall contain only those new claims generated by the state court
Atkins proceedings and shall not re-state the claims contained in the initial petition in this
matter.” (ECF No. 68.) On March 15, 2010, Hill filed an amended habeas petition in this Court,
asserting his Atkins and Atkins-related claims. (ECF No. 94.) Respondent filed a supplemental
return of writ on April 30, 2010. (ECF No. 98.) Hill filed his traverse on August 2, 2010. (ECF
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No. 102.) Hill then requested, and was granted permission to conduct limited discovery, which
he completed on April 13, 2011. (See ECF Nos. 132, 135.) Hill requested additional discovery
on May 23, 2012, which this Court denied on July 10, 2012. (ECF No. 148.) Hill’s Atkins
petition currently is pending before this Court.
On March 31, 2014, Hill filed a motion in the Sixth Circuit requesting that it authorize his
federally appointed and funded counsel who currently represent him in his habeas case to
represent him in state-court litigation. Specifically, he wants his habeas counsel to assist him in
obtaining a new trial in state court based on newly obtained evidence, a report from a forensic
dental consultant who opines that the bite mark found on Fife “is not a human bitemark [sic].”
(ECF No. 156, 1-2.) Hill filed a motion with this Court that same day, requesting permission to
file his motion with the Sixth Circuit under seal. (ECF No. 150.) The Court granted Hill’s
motion on April 3, 2014, and Hill filed the sealed document with this Court that day. (ECF Nos.
151, 152, respectively.)
On April 18, 2014, the Sixth Circuit ordered Hill to file his motion with this Court,
because, it stated, “[r]uling on Hill’s motion would require [the court] to admit and consider new
evidence, and [the court does] not generally allow a party to supplement the record with evidence
not put before the district court in the first instance.” (ECF No. 155, 2 (citations omitted).) Hill
complied by filing his request with this Court on April 21, 2014. (ECF No. 156.) Respondent
opposed the motion, and Hill replied to Respondent’s opposition. (ECF Nos. 157, 158,
respectively.)
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II.
Analysis
A.
§ 3599 and Harbison v. Bell
An indigent federal habeas corpus petitioner is entitled to the appointment of “one or
more attorneys” and additional services that are “reasonably necessary” for “adequate
representation” pursuant to18 U.S.C. § 3599(a)(2). Subsection (e) of § 3599 outlines the scope of
that representation. It provides:
each attorney so appointed shall represent the defendant throughout every
subsequent stage of available judicial proceedings, including pretrial proceedings,
trial, sentencing, motions for new trial, appeals, applications for writ of certiorari
to the Supreme Court of the United States, and all available post-conviction
process, together with applications for stays of execution and other appropriate
motions and procedures . . . .
18 U.S.C. § 3599(e) (emphasis added).
The Supreme Court interpreted § 3599 in Harbison v. Bell, 556 U.S. 180 (2009), holding
that the statute “authorizes federally appointed counsel to represent their clients in state clemency
proceedings and entitles them to compensation for that representation.” Id. at 194. The Supreme
Court explained, “[u]nder a straightforward reading of the statute, subsection (a)(2) triggers the
appointment of counsel for habeas petitioners, and subsection (e) governs the scope of appointed
counsel’s duties.” Id. at 185. The Court noted, however, that appointed counsel is not expected
to provide each of the many services enumerated in section (e) for every client. Rather,
“counsel’s representation includes only those judicial proceedings transpiring ‘subsequent’ to her
appointment.” Id. at 188. Thus, “[i]t is the sequential organization of the statute and the term
‘subsequent’ that circumscribe counsel’s representation, not a strict division between federal and
state proceedings.” Id.
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Of particular relevance here, the Harbison Court addressed the Government’s concern
that under the Court’s interpretation of § 3599, federally appointed counsel would be required to
represent their clients in state retrial or state habeas proceedings that occur after counsel’s
appointment because such proceedings are also “available post-conviction process.” The Court
explained that § 3599(e) does not apply to either of those proceedings because they are not
“properly understood as a ‘subsequent stage’ of judicial proceedings but rather as the
commencement of new judicial proceedings.” Id. at 189. As to state habeas proceedings in
particular, the Court noted,
State habeas is not a stage “subsequent” to federal habeas. Just the opposite:
Petitioners must exhaust their claims in state court before seeking federal habeas
relief. See § 2254(b)(1). That state postconviction litigation sometimes follows
the initiation of federal habeas because a petitioner has failed to exhaust does not
change the order of proceedings contemplated by the statute.
Id. at 189-90. It added in a footnote,
Pursuant to § 3599(e)’s provision that counsel may represent her client “in other
appropriate motions and procedures,” a district court may determine on a case-bycase basis that it is appropriate for federal counsel to exhaust a claim in the course
of her federal habeas representation. This is not the same as classifying state
habeas proceedings as “available post-conviction process” within the meaning of
the statute.
Id. at 190 n.7. The Court further explained that § 3499(a)(2) “provides for counsel only when a
state petitioner is unable to obtain adequate representation,” and that appointed counsel is
constitutionally required for state indigent defendants on retrial. Id. at 189.
The Sixth Circuit interpreted Harbison in Irick v. Bell, 636 F.3d 289 (6th Cir. 2011). The
court affirmed a Tennessee district court’s ruling granting a habeas petitioner’s authorization for
funding pursuant to § 3599 for his federally appointed counsel to represent him in clemency
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proceedings, but denying it for the reopening of his state post-conviction and competency-to-beexecuted proceedings. Id. at 291. It noted that in Harbison, the Supreme Court interpreted
§ 3599 to “provide[] for counsel only when a state petitioner is unable to obtain adequate
representation,” and concluded that “[a]bsent clear direction from the United States Supreme
Court or Congress, we decline to obligate the federal government to pay for counsel in state
proceedings where the state itself has assumed that obligation.” Id. The court then held that
because Tennessee law authorized appointed counsel in state competency and post-conviction
proceedings, Irick’s attorneys were not entitled to compensation for services related to those
proceedings under § 3599. Id. at 291-92. The court further found that the state post-conviction
proceedings at issue fell outside the scope of § 3599(e) because they were “the commencement of
new judicial proceedings,” rather than a stage “subsequent to federal habeas,” and Irick was “not
attempting to exhaust a claim in the state courts for the purpose of later presenting it in federal
court; rather, he [was] re-opening a state judgment on state-law grounds.” Id. at 292.
In this case, Hill argues that his habeas counsel’s appointment is appropriate under the
plain language and broad scope of § 3599 as a “subsequent stage of available judicial
proceedings[,]” “available post-conviction process” and/or “other appropriate motions and
procedures” referenced in § 3599(e). (ECF No. 156, 3-6.) Hill further contends the appointment
is authorized by the Supreme Court’s dicta in Harbison regarding federal funding of counsel for
state habeas proceedings, because the state-court proceedings for which Hill seeks representation
“are being litigated in the context of the habeas case to comply with the state exhaustion
requirements of the AEDPA.” (Id. at 3, 6-8.) Finally, Hill asserts that Ohio law does not provide
for the appointment of counsel for the proceedings at issue. (Id. at 8-10.)
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Respondent counters that Hill has no “pending” habeas action from which to seek
appointment of counsel under § 3599, because his first habeas petition has been denied and
reduced to judgment and the claim he wishes to present to state court is not related to his second,
Atkins habeas action. (ECF No. 157, 1.) He argues that, as in Irick, Hill seeks to re-open his state
judgment on state-law grounds, under which circumstances he is not entitled to federally funded
counsel, rather than exhaust a claim in state court for the purpose of later presenting it in this
habeas action in this Court. (Id. at 1-2.) This is apparent, he maintains, because the evidence at
issue will not support a viable or cognizable federal habeas claim: the expert report is merely a
new opinion on a fully litigated topic and therefore does not qualify as “newly discovered
evidence”; the Supreme Court has not recognized a freestanding “actual innocence” claim in
habeas; and Hill has not identified how such a claim could be used in his habeas case as a
gateway to excuse an untimely petition or a procedurally defaulted claim. (Id. at 11-12.)
Hill replies that his habeas Atkins petition is in fact pending before this Court, and that his
request falls within the scope of § 3599(e) because he must move for a new trial based on this
evidence “for purposes of exhaustion in anticipation of federal habeas litigation, regardless of
how it is subsequently fashioned.” (ECF No. 158, 5.) He states that his new claim is “grounded
in federal due process concerns.” (Id. at 2-3.) Hill further argues that Ohio law does not provide
“guaranteed” state-appointed counsel for the proceedings at issue. (Id. at 3-4.)
B.
Exhaustion of Federal Habeas Claims vs. Commencement of New Judicial
Proceedings
The Court agrees with Respondent that Hill’s request is not authorized by § 3599 because
Hill seeks to initiate new state-court proceedings based on new, potentially exculpatory evidence,
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rather than exhaust a federal claim related to his pending habeas petition. Although the majority
in Harbison stated in dicta that district courts “may determine on a case-by-case basis that it is
appropriate for federal counsel to exhaust a claim in the course of her federal habeas
representation,” it expressly noted that “[t]his is not the same as classifying state habeas
proceedings as ‘available post-conviction process’ within the meaning of the statute.” Harbison,
556 U.S. at 190 n.7 (emphasis added). In fact, the Court was clear that the opposite is true:
“State habeas is not a stage ‘subsequent’ to federal habeas,” and therefore does not fall within the
scope of § 3599. Id. at 189. The Sixth Circuit emphasized this point in Irick when it noted that
the petitioner was “not attempting to exhaust a claim in the state courts for the purpose of later
presenting it in federal court; rather, he [was] re-opening a state judgment on state-law grounds.”
Irick, 636 F.3d at 292.
Here, Hill requests federal funding of habeas counsel for the “commencement of new
judicial proceedings” in order to attack his state-court conviction and sentence, placing this case
squarely within Irick. All that is currently pending in this Court is Hill’s amended habeas petition
regarding his Eighth Amendment mental retardation claims. The Sixth Circuit was explicit in its
limited remand to this Court: it instructed the Court to remand only Hill’s Atkins claim to state
court and to stay his remaining claims pending resolution of that issue alone. Hill, 300 F.3d at
680. This Court also has been clear about the limits of Hill’s reopened habeas action. Once Hill
completed his state-court Atkins proceedings, this Court ordered that Hill’s supplemental habeas
petition should “contain only those new claims generated by the state court Atkins proceedings
and . . . not re-state the claims contained in the initial petition in this matter.” (ECF No. 68.)
Hill’s alleged “newly discovered evidence” is completely unrelated to Hill’s Atkins claims, and
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any claims founded on that evidence would not be related to, or necessary for, the full disposition
of Hill’s pending petition. Although that evidence may relate to certain claims in Hill’s initial
habeas petition, the Court has ruled on those claims and that petition is no longer within this
Court’s jurisdiction.
The procedural posture of Hill’s case is different than a habeas case in which the district
court stays proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (2005), to allow a petitioner to
return to state court to exhaust certain claims asserted in a pending federal habeas petition. See,
e.g., Conway v. Houk, No. 3:07 CV 345, 2013 WL 6170601, at *3 (S.D. Ohio Nov. 22, 2013);
Gapen v. Bobby, No. 3:08 CV 280, 2013 WL 5539557, **4-5 (S.D. Ohio Oct. 8, 2013) (both
finding it appropriate for federal habeas counsel to represent petitioner in state court to exhaust
pending federal habeas claims). The Eleventh Circuit case, Gary v. Warden, Georgia Diagnostic
Prison, 686 F.3d 1261 (11th Cir. 2012), is instructive. In Gary, a federal habeas petitioner sought
federal funding under § 3599 for, among other things, an expert to assist appointed counsel in
pursuing DNA testing, the results of which might serve as the basis for a motion for new trial.
The court of appeals affirmed the district court’s denial of funding. It explained,
As the language of § 3599(e) and the Court’s opinion in Harbison indicate,
federally-funded counsel is available only for certain subsequent proceedings. A
state court motion for DNA testing does not ordinarily follow the commencement
of a federal habeas action and is, therefore, not a subsequent proceeding
contemplated by § 3599(e), even when filed after the prisoner’s federal habeas
case has concluded.
Id. at 1274-75 (emphasis original). The court distinguished the petitioner’s request from the
scenario contemplated in the Harbison footnote regarding habeas petitioners’ efforts to exhaust
certain claims in a mixed petition. It noted that “[i]t is quite another matter, however, for an
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indigent prisoner to expect federally-funded counsel to initiate an entirely new state court
proceedings to obtain relief from a conviction and death sentence on a state law ground – in
Gary’s case, on the ground of newly discovered evidence.” Id. at 1277 (emphasis original).
Similarly, here, Hill does not seek to exhaust a federal habeas claim currently pending
before this Court. Instead, he requests funding for counsel to initiate an entirely new state-court
proceeding by filing a motion for a new trial based on newly discovered evidence–wholly outside
the context of his pending habeas case and clearly outside the scope of § 3599(e).
C.
Available State-Funded Representation
Furthermore, even if Hill’s request for federally funded counsel were appropriate and
authorized by § 3599, it would be precluded under Harbison because Hill has not demonstrated
that Ohio does not provide “adequate representation” for him in his efforts to obtain a new trial.
Indigent criminal defendants have a right to appointed counsel under the United States and Ohio
Constitutions, which “extends to the first appeal of right, and no further.” Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987); State v. Crowder, 60 Ohio St. 3d 151, 573 N.E.2d 652,
syllabus ¶ 1 (Ohio 1991) (“an indigent petitioner does not have a state or a federal constitutional
right to representation by an attorney in a postconviction proceeding”). Accordingly, Ohio Rule
of Criminal Procedure 44(A) requires the appointment of counsel for indigent defendants “from
[a defendant’s] initial appearance before a court through [the defendant’s] appeal as of right . . .
.” Ohio R. Crim. P. 44(A). And Ohio Rev. Code § 2953.21(I) provides for the appointment of
counsel for indigent capital petitioners in a first post-conviction proceeding. But Ohio courts of
appeals have held that § 2953.21(I) does not allow for appointment of counsel in successive postconviction proceedings, including motions for a new trial. See State v. Conway, No. 12AP-412,
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2013 WL 4679318, at *13 (Ohio Ct. App. Aug. 29, 2013) (“appointment of counsel is required
[under § 2953.21(I)] only in the case of a timely-filed first petition for post-conviction relief”);
State v. Clumm, No. 08 CA 32, 2010 WL 364460, at *2 (Ohio Ct. App. Jan. 28, 2010) (finding no
right to appointed counsel to file motion for new trial twenty-eight years after court decided
defendant’s first appeal).
Nevertheless, Hill may be able to obtain state-funded representation under Ohio’s Public
Defender Act. The Act provides:
(A)(1) The county public defender shall provide legal representation to indigent
adults and juveniles who are charged with the commission of an offense or act that
is a violation of a state statute and for which the penalty or any possible
adjudication includes the potential loss of liberty and in postconviction
proceedings as defined in this section.
Ohio Rev. Code § 120.16(A)(1). As Hill notes, this representation is not guaranteed. The Act
also states:
(D) The county public defender shall not be required to prosecute any appeal,
postconviction remedy, or other proceeding, unless the county public defender is
first satisfied there is arguable merit to the proceeding.
Ohio Rev. Code § 120.16(D). See also Crowder, 60 Ohio St. 3d at 153, 573 N.E.2d at 654
(recognizing that in post-conviction proceedings, “the petitioner, pursuant to R.C. 120.16(A)(1)
and (D), is entitled to representation by a public defender at such a proceeding if the public
defender concludes that the issues raised by the petitioner have arguable merit”). Still, as long as
Ohio law affords Hill with an opportunity for “adequate representation” in his state-court
proceedings, federally funded counsel is not permitted under Harbison. See Harbison, 556 U.S.
at 189 (“[§ 3599(a)(2)] provides for counsel only when a state petitioner is unable to obtain
adequate representation”).
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Hill argues that the Ohio Public Defender’s Office cannot represent him because the
Trumbell County branch and the post-conviction unit of the office represented him during his
state Atkins proceedings and are currently the subject of ineffective-assistance and other claims in
his habeas action. (ECF No. 156, 10.) He also cites the difficulty in finding qualified counsel
and the potential delay caused by the involvement of new counsel in his case as reasons
supporting his current habeas counsel’s appointment. (Id. at 10-11.) The Court notes again,
however, that Hill’s Atkins claims are separate and distinct from the claims Hill now wishes to
pursue in state court. The Court is not convinced that the Ohio Public Defender cannot provide
Hill with effective and efficient representation.
III.
Conclusion
Accordingly, Hill’s request that the Court authorize his federally appointed and funded
counsel who currently represent him in his habeas case in this Court to represent him in statecourt litigation is denied.
IT IS SO ORDERED.
/s/ John R. Adams
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE
May 15, 2014
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