Smith v. Warden of Toledo Correctional Institution

Filing 178

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends the Seventh Ground for Relief be denied and the petition dismissed with prejudice. If Petitioner objects to this conclusion, he must include argument for a certificate of appealability in his objections or file a motion for certificate of appealability at the same time. Objections to R&R due by 2/1/2024. Signed by Magistrate Judge Michael R. Merz on 1/18/2024. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
CHRISTOPHER SMITH,
Petitioner,

:

- vs -

Case No. 1:12-cv-425
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

WARDEN, Toledo Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on remand from the United States Court of
Appeals for the Sixth Circuit. Smith v. Warden, Case Nos. 20-3472, 20-3496, 2022 WL 601860
(6th Cir. Mar. 1, 2022)(unpublished; copy at ECF No. 171)(“Smith II”)(Sutton, C.J., with Siler &
Readler)1.
On a prior remand (Smith v. Warden, 780 F. App'x 208, 231 (6th Cir. 2019)(“Smith
I”)(Stranch, J, with Norris & Siler) this Court had granted an unconditional writ of habeas corpus
on Smith’s claim that the State violated his due process rights under Brady v. Maryland, 373
U.S. 83 (1963), by not disclosing the DNA testing notes of Dr. Heinig, a DNA analyst (ECF No.
125). In Smith II, the circuit court reversed that conclusion, holding that the Ohio First District
Court of Appeals decision on the Brady claim was neither contrary to nor an objectively

1

No Fed. Appx. citation is given for Smith II because the West Publishing Company has ceased publication of that
series.

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unreasonable application of Supreme Court precedent and was therefore entitled to deference
under AEDPA. Smith II at *62.
However, the circuit court also noted
The district court did not consider the freestanding ineffective
assistance claim after it granted a writ of habeas corpus on the
Brady claim. Both parties request a remand to the district court to
consider the ineffective assistance claim in the first instance. As a
“court of review, not first view,” we remand to the district court to
consider the claim in the first instance. United States v. Houston,
792 F.3d 663, 669 (6th Cir. 2015).
Smith at *7.
Following remand, each party has filed additional briefing (Respondent’s Brief, ECF No.
176; Petitioner’s Brief, ECF No. 177), making the remanded claim ripe for decision.
Respondent argues this Court has little work to do on remand. The Warden reasons that
because Smith II held the Ohio Court of Appeals reasonably applied Brady v. Maryland, 373
U.S. 83 (1963), in denying Smith’s Ohio R. App. P. 26(B) Application, a fortiori there was no
prejudice in failing to raise that claim and without prejudice there can be no violation of the
ineffective assistance of counsel standard of Strickland v. Washington, 466 U.S. 668 (1984).
Petitioner, however, contends that under the law of the case doctrine, Smith I rather than
Smith II is controlling, and this Court should re-issue the unconditional writ because the state
court’s factual determinations were unreasonable.
Petitioner opens his Brief with a rhetorical appeal to his purported innocence of the
underlying crime: “As recently as January 14, 2022, Smith was offered a deal for time-served—
thereby closing the case and ending the threat of returning to prison—in exchange for a guilty
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“The Ohio Court of Appeals did not unreasonably apply clearly established federal law as determined by the U.S.
Supreme Court.”
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plea. Smith rejected that offer on the basis of his innocence.” (ECF No. 177, PageID 3688).
Counsel offers no record reference to any such offer and the Court cannot consider counsel’s
statement as evidence because it is extra-record. Cullen v. Pinholster, 563 U.S. 170 (2011).

Law of the Case Doctrine

Smith argues that under the law of the case doctrine, this Court must follow Smith I rather
than Smith II. (Petitioner’s Brief, ECF No. 177, PageID 3695, citing Scott v. Churchill, 377 F.3d
565, 569-70 (6th Cir. 2004); United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990); Edmonds
v. Smith, 922 F.3d 737, 739 (6th Cir. 2019); “Wright & Miller §3867 Law of the Case for
Remand”; and the undersigned’s prior Report and Recommendations in this case (ECF No. 115;
PageID 3291-94)).
The Wright & Miller citation is inapposite as that section of the treatise deals only with
multi-district litigation. In Edmunds, the court declined to apply law of the case doctrine across
two habeas (§ 2255) cases arising out of the same conviction. Edmunds is also inapposite to our
situation here.
In Scott the Sixth Circuit was considering the application of law of the case doctrine on a
second appeal, the situation in this case. Judge Moore wrote for the Court:
The law-of-the-case doctrine “posits that when a court decides
upon a rule of law, that decision should continue to govern the
same issues in subsequent stages in the same case.” Arizona v.
California, *570 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d
318 (1983). However, the doctrine merely “directs a court's
discretion, it does not limit the tribunal's power.” Id.; see also
Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586, 589–90
(6th Cir.1995). “In essence, the mandate rule is a specific
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application of the law-of-the-case doctrine.” United States v.
Campbell, 168 F.3d 263, 265 (6th Cir.1999). “The basic tenet of
the mandate rule is that a district court is bound to the scope of the
remand issued by the court of appeals.” Id. The scope of a remand
is determined by examining the entire order or opinion, to
determine whether and how the court of appeals intended to limit a
remand. Id. at 266–68. In the instant case, our opinion in Scott I
had already determined that Scott's retaliation claim against Bair
could survive summary judgment under the Thaddeus–X standard;
had the panel of our court meant in Scott II to hold that the
Thaddeus–X standard was the appropriate one to be used in
gauging qualified immunity, our panel presumably would have
remanded with instructions to deny Bair's motion and proceed to
trial. Instead, the opinion as a whole makes clear that the district
court is to reconsider Bair's motion “[i]n light of Bell.” Scott II, 55
Fed.Appx. 268. “The issue presented by Scott [the appellant in
Scott II ], and resolved in Bell, is the applicability of the ‘shocks
the conscience’ standard to prisoner First Amendment retaliation
claims alleging conduct in 1995.” Id. at 269. Given the
discretionary nature of the law-of-the-case doctrine, the clear
misstatement of Bell's holding by Scott II, and the failure of Bair's
qualified immunity claim under Bell's actual holding, as detailed
below, we decline to consider Scott II's statement as binding upon
the district court below or on this court now.
Scott, 377 F.3d at 569–70. Applying Scott here, the circuit panel in Smith II was not bound by
Smith I and neither is this Court; application of the mandate rule requires us to follow Smith II
rather than Smith I.
Petitioner asserts that the law of the case doctrine as set forth in Trimble v. Bobby, 804
F.3d 767 (6th Cir. 2015), requires this Court to follow Smith I rather than Smith II (ECF No. 177,
PageID 3698). In fact, Petitioner purports to quote Trimble as saying [“]Both rulings cannot be
right, as they look in opposite directions. To resolve this Janus-like dilemma, we look to the
oldest decision on point.3” The quotation cannot be accurate because the phrases “opposite

3

The first quotation mark here is supplied by the undersigned; the second quotation mark appears in the text at
PageID 3698. Counsel does not give the quotation mark that presumably should appear at the beginning of this
sentence.

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direction” and “Janus-like” do not appear anywhere in Trimble. In fact, Petitioner’s heavy
reliance on Trimble is puzzling because the opinion does not discuss law of the case doctrine at
all.
The mandate rule is a specific application of the law-of-the-case doctrine. The basic
tenet of the mandate rule is that a district court is bound to the scope of the remand issued by the
court of appeals. United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999). The mandate
rule is a distinct concept which preserves the hierarchy of the court system. Scott, 377 F.3d at
570.
Pursuant to the law of the case doctrine, and the complementary
"mandate rule," upon remand the trial court is bound to "proceed in
accordance with the mandate and law of the case as established by
the appellate court." Id. (quoting Petition of U.S. Steel Corp., 479
F.2d 489, 493 (6th Cir.), cert. denied, 414 U.S. 859, 94 S. Ct. 71,
38 L. Ed. 2d 110 (1973)). The trial court is required to "implement
both the letter and the spirit" of the appellate court's mandate,
"taking into account the appellate court's opinion and the
circumstances it embraces." Brunet v. City of Columbus, 58 F.3d
251, 254 (6th Cir. 1995).
Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006).
The remand in Smith II requires this Court to decide the free-standing ineffective
assistance of appellate counsel claim we bypassed before the appeal, having decided it was moot
because we granted more fulsome relief on the Brady claim than was available on the ineffective
assistance of appellate counsel claim, to wit, a new trial as opposed to a new direct appeal.
The ineffective assistance of appellate counsel claim made in the Petition is
Ground Seven: Appellate counsel rendered ineffective assistance
in violation of Smith’s Sixth Amendment right by failing to
properly raise and exhaust the First, Second, Third, Fifth, and Sixth
Grounds for Relief presented in this petition.
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(Petition, ECF No. 1-1, PageID 50). Only that portion of Ground Seven which claims ineffective
assistance of appellate counsel for failure to raise the Brady claim remains viable (See ECF No.
115, PageID 3294).
The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
has two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:

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Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within a wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood
of a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d
372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but
the difference between Strickland's prejudice standard and a moreprobable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
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likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285
(2000); Burger v. Kemp, 483 U.S. 776 (1987). To evaluate a claim of ineffective assistance of
appellate counsel, then, the court must assess the strength of the claim that counsel failed to
raise. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682,
707 (6th Cir. 2008). Counsel's failure to raise an issue on appeal amounts to ineffective assistance
only if a reasonable probability exists that inclusion of the issue would have changed the result of
the appeal. Id., citing Wilson. If a reasonable probability exists that the defendant would have
prevailed had the claim been raised on appeal, the court still must consider whether the claim's
merit was so compelling that the failure to raise it amounted to ineffective assistance of appellate
counsel. Id., citing Wilson. The attorney need not advance every argument, regardless of merit,
urged by the appellant. Jones v. Barnes, 463 U.S. 745, 751-752 (1983)("Experienced advocates
since time beyond memory have emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if possible, or at most on a few key
issues." 463 U.S. 751-52). Effective appellate advocacy is rarely characterized by presenting
every non-frivolous argument which can be made. Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir.
2003). Williams v. Bagley, 380 F.3d 932, 971 (6th Cir. 2004), cert. denied, 544 U.S. 1003 (2005);
see Smith v. Murray, 477 U.S. 527 (1986). “Only when ignored issues are clearly stronger than
those presented will the presumption of effective assistance of [appellate] counsel be overcome.”
Dufresne v. Palmer, 876 F.3d 248 (6th Cir. 2017), quoting Fautenberry v. Mitchell, 515 F.3d 614,
642 (6th Cir. 2008).

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Failing to raise meritless claims is neither deficient nor prejudicial. Moody v. United
States, 958 F.3d 485, 492 (6th Cir. 2020), citing Bennett v. Brewer, 940 F.3d 279, 286-87 (6th
Cir. 2019); Sutton v. Bell, 645 F.3d 752, 755 (6th Cir. 2011). Tackett v. Trierweiler, 956 F.3d 358,
375 (6th Cir. 2020) (“The failure to raise a meritless claim does not constitute ineffective assistance
of counsel.”).
As Respondent argues, the Sixth Circuit in Smith II determined the Court of Appeals decision
of the Brady claim was entitled to AEDPA deference because it was a reasonable application of
Brady and its progeny. Smith II at *7. That does not mean, however, that a different evaluation of
the Brady claim would have been unreasonable. The analysis of the Brady claim announced by the
Sixth Circuit in Smith I was also reasonable and would have been entitled to AEDPA deference if the
Court of Appeals had come out differently. In other words, the Brady claim is arguable: it is not so
plainly meritorious or meritless that “any damned fool4” could have accurately predicted the result.
In those circumstances, the appellate attorney who chooses not to raise a particular assignment of
error is entitled to a presumption that she or he provided effective assistance and Petitioner has not
overcome that presumption.

Conclusion

The Magistrate Judge respectfully recommends the Seventh Ground for Relief be denied and
the petition dismissed with prejudice. If Petitioner objects to this conclusion, he must include
argument for a certificate of appealability in his objections or file a motion for certificate of
4

Paul Freund, a noted constitutional scholar of the mid-20th century, used this phrase to describe Supreme Court
opinions where the structure of the argument essentially accused the uncomprehending reader of stupidity. He
memorably used the phrase to describe Chief Justice Warren’s opinion in Reynolds v. Sims, 377 U.S. 533 (1964).

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appealability at the same time.

January 18, 2024.

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may
respond to another party’s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal.
s/ Michael R. Merz
United States Magistrate Judge

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