Gerth v. Warden, Allen Oakwood Correctional Institution

Filing 14

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 8/21/2017. Signed by Magistrate Judge Michael R. Merz on 8/7/2017. (kpf)

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

:

- vs -

Case No. 1:16-cv-598
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

JAMES HAVILAND, Warden,
Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought by Petitioner with the assistance of counsel pursuant
to 28 U.S.C. § 2254.

Petitioner seeks relief from his conviction in the Hamilton County

Common Pleas Court and consequent confinement in Respondent’s custody.
Upon initial review of the Petition (ECF No. 1), Magistrate Judge Bowman ordered
Respondent to file an answer (ECF No. 2). The Attorney General then filed the State Court
Record (“SCR”, ECF No. 5) and a Return of Writ (ECF No. 6). Gerth filed a Reply (ECF No.
10) and, with Court permission, Respondent filed a Response to the Reply (ECF No. 12). The
reference was later transferred to the undersigned to help balance the Magistrate Judge workload
in the Western Division (ECF No. 13).

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Factual Context

The First District Court of Appeals on direct appeal provides the factual context for this
case:
[*P1] While fleeing from police in a stolen vehicle at high speeds,
Mark Gerth crashed into a taxicab, killing its driver and passenger.
...
[*P2] Officer Mark McChristian was on routine patrol in Overthe-Rhine, when he saw a red Toyota Rav4. He ran the plates for
the Rav4, and discovered it had been reported stolen two days
earlier. He followed the vehicle, while awaiting additional units to
respond to the area. When he activated his emergency lights, the
driver of the Rav4 pulled over to the curb. As Officer McChristian
stepped out of his cruiser, the Rav4 took off.
[*P3] A high-speed chase ensued. Police in marked cruisers, with

their emergency lights activated, chased the Rav4 at speeds
ranging from 50 to 60 m.p.h. through residential streets with
posted speed limits of 25 to 35 m.p.h. The pursuit lasted several
minutes. During that time, the Rav4 sped through every stop sign
and every red light, crossed left of center, and weaved in and out of
cars.
[*P4] Ultimately, the Rav4, which had accelerated its speed and
was traveling in excess of 75 m.p.h., ran a red light and crashed
into two vehicles at the intersection of Eighth and Sycamore
Streets in downtown [**4] Cincinnati. The Rav4 hit the front end of
the first vehicle before crushing a taxicab. It then hit a parking
meter and caught fire. The driver, later identified as Mr. Gerth,
rolled out of the Rav4 and attempted to flee from police on foot.
But he was quickly apprehended and taken into custody. After
being placed in custody, Mr. Gerth volunteered that his passenger
did not know that the vehicle had been stolen.
[*P5] In the meantime, police had found the cab driver, Mohamed
Ould Mohamed Sidi, who was still wearing his seat-belt, dead
behind the wheel. His passenger, Tonya Hairston, had been ejected
from the cab by the force of the impact. She was lying on the street
underneath the cab. Ms. Hairston was transported from the scene
by ambulance, but she died enroute to the hospital.

2

[*P6] Mr. Gerth's passenger in the Rav4, Donald Evans, was

injured and slumped over in the Rav4. He was pulled out of the
vehicle and transported by ambulance to the hospital. Mr. Evans
sustained fractures to his leg requiring surgery during his eight-day
hospitalization.
[*P7] Mr. Gerth, who had sustained injuries to his forehead, was
also transported to the hospital. A blood test revealed he had
alcohol, marijuana, and cocaine [**5] in his system. A forensic
toxicologist with the Hamilton County Coroner's Office testified
that the amount of cocaine in Mr. Gerth's system would have
affected his ability to drive. He noted that studies had shown that
individuals with cocaine in their systems similar to the amount of
cocaine in Mr. Gerth's system had been linked to high-risk driving
behavior, including speeding, cutting off other drivers, and darting
in and out of traffic.

State v. Gerth, 2013-Ohio-1751, 2013 Ohio App. LEXIS 1645 (1st Dist. May 1, 2013).

Procedural History

Gerth was indicted by a Hamilton County grand jury on March 24, 2011, on two counts
of murder, four counts of aggravated vehicular homicide, one count of aggravated vehicular
assault, one count of vehicular assault, one count of failure to comply with an order or signal of a
police officer, two counts of failure to stop and identify after an accident, and one count of
receiving stolen property (Indictment, SCR, ECF No. 5, PageID 53). Gerth was appointed
counsel twice. On March 22, 2012, he moved to discharge successor counsel and proceed pro se
at trial, but the motion was denied. The jury found Gerth guilty on all charges and he was
sentenced to a term of 48.5 years to life imprisonment.
Gerth’s conviction was affirmed on direct appeal. State v. Gerth, 2013-Ohio-1751 (1st
Dist. May 1, 2013), appellate jurisdiction declined, 136 Ohio St. 3d 1494 (2013). Gerth filed a
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pro se petition for post-conviction relief under Ohio Revised Code § 2953.21, raising a claim of
ineffective assistance of trial counsel with a number of sub-claims. The trial court denied relief
and Gerth appealed. The First District found the trial court was without jurisdiction to entertain
the post-conviction petition and dismissed the appeal. State v. Gerth, Case No. C-130062 (1st
Dist. Feb. 19, 2014)(unreported, copy at SCR, ECF No. 5, PageID 221 et seq.). Gerth did not
appeal to the Ohio Supreme Court.
Gerth filed a pro se application to reopen his direct appeal on July 25, 2013. The First
District granted the application and appointed counsel who filed a brief on reopening on June 27,
2014, raising three assignments of error. The First District sustained the first two and rejected
the third, remanding the case for resentencing. State v. Gerth, 2014-Ohio-4569, 2014 WL
4306631 (1st Dist. Oct. 17, 2014). Neither party appealed. On resentencing the trial court
imposed a sentence of 45.5 years. Gerth appealed, the First District affirmed, and Gerth did not
appeal further to the Ohio Supreme Court.
On January 13, 2015, through counsel who represents him in these habeas proceedings,
Gerth filed a second application to reopen his direct appeal. The First District denied reopening
(SCR, ECF No. 5, PageID 393 et seq.) and the Ohio Supreme Court declined jurisdiction. State
v. Gerth, 143 Ohio St. 3d 1443 (2015).
Gerth filed his instant habeas petition on May 31, 2016, raising the following Grounds for
Relief:
FIRST GROUND FOR RELIEF: When an Ohio Court of
Appeals reopens a direct appeal pursuant to Ohio App. R. 26(B)(5)
and proceeds pursuant to Ohio App. R. 26(B)(7) as on an initial
appeal with new appellate counsel representing the criminal

4

defendant, the defendant is constitutionally entitled to the effective
assistance of new appellate counsel.
SECOND GROUND FOR RELIEF: Petitioner was denied the
effective assistance of appellate counsel in violation of Petitioner‘s
rights under the Fifth, Sixth, and Fourteenth Amendments to the
Constitution.
I. The trial court erred, contrary to the Sixth and Fourteenth
Amendments to the United States Constitution, in refusing to
permit Petitioner to represent himself and in failing to conduct any
inquiry as required under Faretta v. California, 422 U.S. 806
(1975).
II. The trial court erred in refusing to replace counsel contrary to
Petitioner‘s rights to counsel and to due process of law as
guaranteed by the Ohio and United States Constitutions.
III. The trial court improperly instructed the jury on causation in
violation of Petitioner‘s due process rights guaranteed by the
United States and Ohio Constitutions.
IV. Petitioner was denied the effective assistance of counsel during
plea negotiations contrary to the Sixth and Fourteenth
Amendments to the United States Constitution and corresponding
rights under the Ohio Constitution.
V. The trial court erred in introducing statements and evidence that
were obtained without a warrant and were not obtained knowingly,
voluntarily, and intelligently contrary to the United States and
Ohio Constitutions.
VI. Petitioner was deprived of the effective assistance of trial
counsel in violation of Petitioner‘s rights under the Fifth, Sixth,
and Fourteenth Amendments to the United States Constitution, and
Section 10 and 16, Article I of the Ohio Constitution.
THIRD GROUND FOR RELIEF: The convictions against
Petitioner constitute a denial of due process because they are based
on legally insufficient evidence.
(Petition, ECF No. 1.)

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Analysis

Respondent asserts that all of Gerth’s Grounds for Relief are procedurally defaulted for
various reasons (Return, ECF No. 6, PageID 1090-1105).
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); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a
federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433
U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391
(1963). Coleman, 501 U.S. at 724.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First,
a claim is procedurally defaulted where state-court remedies have been exhausted within the

6

meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the
remedies are no longer available at the time the federal petition is filed because of a state
procedural rule. Id.
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.
2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347,
357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).

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First Ground for Relief: Right to a State Court Remedy for Ineffective Assistance of
Counsel on a Reopened Appeal

Petitioner’s First Ground for Relief states only an abstract proposition of law, to wit, that
the constitutional right to effective assistance of appellate counsel on a first appeal of right
extends to the situation under Ohio law where a first appeal has been reopened. The Court does
not understand Respondent to disagree with that proposition and the Court accepts it. The
question is whether that right was violated.
On direct appeal, represented by attorney Bruce Hust, Gerth raised only one assignment
of error – insufficiency of the evidence – with two sub-claims: (1) the evidence was insufficient
to show Gerth acted knowingly as to his conviction for felonious assault and (2) the evidence
was insufficient to convict Gerth of receiving stolen property when there was no evidence as to
how he came to possess the vehicle in question (Appellant’s Brief, SCR ECF No. 5, PageID
127).
In his Application to Reopen the direct appeal, Gerth asserted that Attorney Hust
provided ineffective assistance of appellate counsel when he omitted three assignments of error:
(1) Trial court denial of the right of self-representation in violation of Faretta v. California, 422
U.S. 806, 812-13 (1975); (2) ineffective assistance of trial counsel in several respects, including
“failure to oppose the imposition of consecutive sentences for offenses of similar import
resulting from a single animus”; (3) trial court error in failing to “merge all offenses resulting
from a single incident with a single animus” in violation of Ohio Revised Code § 2941.25 and
Gerth’s constitutional right not to be placed twice in jeopardy for the same offense.
(Application, SCR, ECF No. 5, PageID 241, et seq.)

8

In its Entry Granting Application to Reopen Direct Appeal, the First District held that, on
omitted assignment of error three, “Gerth has sustained his burden of demonstrating a genuine
issue as to whether he has a colorable claim of ineffective assistance of appellate counsel.”
(Entry, SCR ECF No. 5, PageID 262.) The First District then reopened the direct appeal,
appointed Attorney J. Thomas Hodges as counsel, and ordered briefing on (1) “the claim that
prior appellate counsel’s representation was prejudicially deficient,” (2) “an assignment of error
concerning the matter identified here as a ground for reopening,” (3) “any other nonfrivolous
assignment of error or argument not previously considered.” Id. at PageID 263.
When Attorney Hodges filed Gerth’s brief, he did not include the first two omitted
assignments, i.e., the self-representation assignment or the ineffective assistance of trial counsel
for failure to raise the similar import claim. Instead, he raised assignments of error (1) regarding
the failure to merge issue (the assignment the First District had found colorable), (2) regarding
consecutive sentencing, and (3) regarding denial of the right of confrontation (Brief, SCR, ECF
No. 5, PageID 265-67)(the “First Set of Omitted Assignments of Error”). The First District
sustained the first two assignments of error and overruled the third. State v. Gerth, 2014-Ohio4569, 2014 WL 5306631 (1st Dist. Oct. 17, 2014).
Still believing that his first two omitted assignments of error had been omitted as the
result of ineffective assistance of appellate counsel, Gerth filed a second Application to Reopen
accusing Attorney Hodges of providing ineffective assistance of appellate counsel in omitting six
assignments of error in the reopened appeal: (1) the Faretta issue, (2) trial court refusal to
replace one of his trial attorneys, (3) improper jury instruction on causation, (4) ineffective
assistance of trial counsel in plea negotiations, (5) admission of unconstitutionally obtained
evidence, and (6) ineffective assistance of trial counsel in twelve different ways, but not

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including omitted assignment of error two (Application for Reopening, SCR, ECF No. 5, PageID
323, et seq.)(the “Second Set of Omitted Assignments of Error”).
The First District refused to entertain this second Application, holding
[T]his is Gerth’s second App. R. 26(B) application to reopen this
appeal. But App.R. 26(B) makes no provision for a successive
application. State v. Twyford, 106 Ohio St.3d 176, 2005-Ohio4380, 833 N.E.2d 289, ¶ 6; State v. Peeples, 73 Ohio St.3d 149,
150, 652 N.E.2d 717 (1995). Moreover, the challenges that Gerth
advances here to his appellate counsel's effectiveness in
prosecuting his appeal either were or could have been raised in his
first application. Therefore, the doctrine of res judicata bars him
from presenting these challenges in this successive application.
Twyford at ¶ 6; State v. Cheren, 73 Ohio St.:1d 137, 138, 652
N.E.2d 707 (1995).
State v. Gerth, Case No. C-120392 (1st Dist. Apr. 13, 2015)(unreported; copy at SCR, ECF No.
5, PageID 393-94.) Gerth appealed to the Ohio Supreme Court, asserting as his first proposed
Proposition of Law the claim he makes in Ground One, to wit, that he was entitled to effective
assistance of counsel on his reopened appeal. His second proposed Proposition of Law asserted
the First District erred when it refused to reopen the direct appeal on his second application
(Memorandum in Support of Jurisdiction, SCR, ECF No. 5, PageID 398).
In his First Ground for Relief Gerth argues he was constitutionally entitled to a state court
decision on the merits of his second Application to Reopen. The Court agrees with Petitioner
that this claim is not procedurally defaulted. It was raised at the first opportunity Gerth had to
raise it, when he filed his second Application. He then pursued it to the Ohio Supreme Court as
detailed above.
However, the claim is without merit. Gerth points to no clearly established Supreme
Court precedent which mandates that States provide criminal defendants with a second
opportunity to raise ineffective assistance of appellate counsel claims. He relies generally on

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Evitts v. Lucey, 469 U.S. 387 (1985)(Reply, ECF No. 10, PageID 1131), but Evitts contains no
such holding. Rather, Evitts holds that an indigent criminal defendant is entitled to appointed
counsel who must provide effective assistance. But one cannot infer from that holding that a
defendant is entitled to a second state forum to raise ineffective assistance of appellate counsel
claims. Indeed, the Supreme Court has held since Evitts that post-conviction state collateral
review is not a constitutional right, even in capital cases. Murray v. Giarratano, 492 U.S. 1
(1989); Pennsylvania v. Finley, 481 U.S. 551 (1987). Indeed, the Court has held that there is no
federal constitutional right to appeal criminal verdicts for error review. McKane v. Durston, 153
U.S. 684 (1894), cited as still good law in Lopez v. Wilson, 426 F.3d 339, 355 (6th Cir. 2005);
Halbert v. Michigan, 545 U.S. 605 (2005). Gerth concludes that he “must have a remedy to
vindicate his constitutional rights.” (Reply, ECF No. 10, PageID 1131, emphasis sic.) That
remedy in this case is a petition for habeas corpus relief in federal court. Because habeas corpus
is available only to correct federal constitutional violations, 28 U.S.C. § 2254(a); Wilson v.
Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455
U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939 (1983), and a second bite at the ineffective
assistance of appellate counsel claim in state court is not constitutionally mandated, this subclaim is without merit.

Ground Two: Ineffective Assistance of Appellate Counsel

In his Second Ground for Relief, Gerth claims he received ineffective assistance of
appellate counsel when his second appellate attorney, Mr. Hodge, did not raise all of the Second
Set of Omitted Assignments of Error in the reopened direct appeal.

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Omitted assignments of error two through six were pleaded as having been omitted as the
result of ineffective assistance of appellate counsel in the second Application for Reopening.
(SCR, ECF No. 5, PageID 323, et seq.) The First District did not reach the merits of the second
application because it found Ohio law does not provide for a second application for reopening.
Gerth argued to the First District as he argues here that this is a misinterpretation of Ohio App.
R. 26(B) which nowhere “specifically bar[s] the filing of an application to reopen based on a
claim of ineffective assistance of new appellate counsel in a previously reopened appeal.”
However, the interpretation of a state rule of procedure is purely a matter of state law and the
state courts’ interpretation is binding on the federal courts. "[I]t is not the province of a federal
habeas court to reexamine state court determinations on state law questions. In conducting
habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). Even state law announced in the decision being reviewed is binding. Bradshaw v.
Richey, 546 U.S. 74 (2005). Here the First District relied on case authority from the Ohio
Supreme Court. Ohio App. R. 26(B) makes no provision for successive applications. State v.
Richardson, 74 Ohio St. 3d 235 (1996). Indeed, “there is no right to file successive applications
for reopening” under App. R. 26(B). State v. Twyford, 106 Ohio St. 3d 176 (2005), quoting State
v. Williams, 89 Ohio St. 3d 179, ¶ 12. Once the issue of ineffective assistance has been raised
and adjudicated, res judicata bars its relitigation. State v. Cheren, 73 Ohio St. 3d 137 (1995),
following State v. Perry, 10 Ohio St. 2d 175 (1967).
Omitted Assignments of Error Two through Six were not raised in the first 26(B)
application although they were available to be raised at that time. Ohio has an applicable
procedural rule and that rule was enforced against Gerth. Ohio’s doctrine of res judicata in

12

criminal cases, enunciated in State v. Perry, 10 Ohio St. 2d 175 (1967), is an adequate and
independent state ground. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell,
274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins,
209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation
omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001).
Gerth claims (Reply, ECF No. 10, PageID 1140) that the Sixth Assignment of Error was
raised in the first 26(B) application. However, that claim is close to disingenuous. In the first
application Gerth asserted his trial attorney provided ineffective assistance of trial counsel by not
objecting to the failure to merge the hit-skip counts. In his second application, he claimed he
received ineffective assistance of trial counsel in twelve different ways, none of which relates to
the failure to merge.
Therefore Gerth’s Second Ground for Relief is procedurally defaulted as it relates to
Omitted Assignments Two through Six.

Omitted Assignment of Error One: The Faretta Issue

Gerth claims that he was unconstitutionally denied his right of self-representation at trial
and his right to effective assistance of appellate counsel when his first appellate attorney omitted
this assignment of error. This sub-claim was, of course, presented in the first 26(B) application.
Gerth claims he never received a decision on the merits of this claim, but this Court reads the
First District’s decision on the first 26(B) application differently. All three omitted assignments
of error were plainly presented to the First District under a standard that asked them to decide if
they were colorable claims of ineffective assistance of appellate counsel. The First District only

13

discussed the third omitted assignment and found it to be colorable. It did not discuss omitted
assignments one and two, but that does not mean it did not decide that they did not meet the
standard for reopening, i.e., that they were not colorable.
When a federal claim is fairly presented but not addressed, “a federal habeas court must
presume that the federal claim was adjudicated on the merits. . .” Ross v. Pineda, 2013 U.S.
App. LEXIS 25481 (6th Cir. 2013), quoting Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013).
“A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as “fair-minded jurists could disagree”
on the correctness of the state court decision,” Harrington v.
Richter, 562 U.S. 86, 101 (2011)(quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). The state court decision must be “so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” White v. Woodall, 572 U.S. ___, ___
(2014), slip op. at 4.
When the claim at issue is one for ineffective assistance of counsel,
moreover, AEDPA review is “doubly deferential,” Cullen v.
Pinholster, 563 U.S. 170, 190 (2011), because counsel is “strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment,” Burt v. Titlow, 571 U.S. ___, ___ (2013), slip op. at
9)(quoting Strickland v, Washington, 466 U.S. 668, 690 (1984);
internal quotation marks omitted). In such circumstances, federal
courts are to afford “both the state court and the defense attorney
the benefit of the doubt.” at ___ (slip op. at 1).
Woods v. Etherton, 578 U.S. ___, 136 S. Ct. 1149 (2016)(per curiam).
In arguing the merits of the Faretta claim, Gerth points first to his November 2, 2011,
Motion to Dismiss his second court-appointed counsel, Norm Aubin (SCR, ECF No. 5, PageID
104). At no place in that document does he mention self-representation; instead, he asks for
appointment of a third attorney. He moved again on December 14, 2011, to remove Aubin and
again appoint new counsel. Id. at PageID 108, et seq. The first place at which he claims he
requested self-representation is during a hearing on March 12, 2012. Gerth states he does not
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want Aubin any longer, but “will be glad to take a public defender, Tim Cutcher or Daniel
Burke.” (SCR, ECF No. 5-7, PageID 551.) He repeats that request at PageID 552. Judge Nadel
makes it clear that Gerth’s issues with counsel have been discussed before. He noted that the last
time there had been a hearing, Gerth had to be ejected from the courtroom for being disorderly.
Id. at PageID 555. Only then does Gerth say “I would like to fire him and waive my right to
counsel.” Id. at PageID 555-56. At that time the case was set for trial on April 2, 2012, or about
ten days later.
On the morning of trial after a jury was selected, Gerth said orally he wanted to exercise
his “right under US versus Farretta to proceed pro se.” Id. at PageID 564. However, Gerth
proceeded to read a motion for evidentiary hearing and made it clear he was not prepared to
proceed to trial at that time. (E.g., “this case, though ripe for an impartial evidentiary hearing, it
not nearly ready for trial in the interests of justice.” Id. at PageID 571. ) He argued that because
Judge Nadel would not replace Mr. Aubin, “the Judge Nadel leaves the defendant no alternative
except to exercise defendant’s constitutional right to voluntarily, knowingly and intelligently
elect to proceed pro se.” Id. at PageID 579.
Judge Nadel then proceeded to recite that the incident in suit had occurred over a year
before. Id. at PageID 580. He noted that Mr. Aubin had replaced Attorney Bernard Mundy and
was an extremely competent attorney who had handled capital cases. He noted that the case had
been set for trial a number of times, including December 2011 and February 2012. Id. at PageID
581. He noted that self-representation would require a further continuance. Commenting on the
Court Clinic’s report, he noted that Gerth had been found to be paranoid, to have occasional
hallucinations, and to have an anti-social personality disorder. He displayed poor impulse
control and had a history of dyslexia and psychiatric hospitalizations. Id. at PageID 583. Gerth

15

had a history of substance abuse addiction and appeared to be “overly focused on the potential
conspiracies in the court system.” Judge Nadel found the request was not timely made and was
“an attempt by the defendant to further delay this trial. . . . He has been disruptive in the past
hearings.” [At this point, Gerth attempted to interrupt.] The judge again noted the request was
not timely made and found the defendant was not competent to waive counsel. Id. at PageID 585.
A criminal defendant is entitled to effective assistance of counsel on appeal as well as at
trial, counsel who acts as an advocate rather than merely as a friend of the court. Evitts v. Lucey,
469 U.S. 387 (1985); Penson v. Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d 631, 636
(6th Cir. 2008). 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.") 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.

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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).
The question facing this habeas corpus court on the Faretta issue is not whether Attorney
Hodges provided ineffective assistance of appellate counsel by not raising it, but whether the
First District’s rejection of the claim is so erroneous as to be beyond disagreement among fairminded jurists. Harrington, supra.
The right to self-representatdion is not absolute. Martinez v. Ct. of Appeal of Cal., Fourth
App. Dist., 528 U.S. 152, 161 (2000). The right can be forfeited by attempting to exercise it on
the morning of trial because the state court found the request was untimely and granting it would
have disrupted, unduly inconvenienced, and burdened the administration of the court’s business.
Hill v. Curtin, 792 F.3d 670 (6th Cir. 2015)(en banc). In this case the trial date was already well
past Ohio’s presumptive speedy trial limit of nine months and a jury had already been selected.
In his current pleadings, Gerth does not dispute Judge Nadel’s observation that allowing Aubin
to withdraw would have required yet another continuance.
Secondly, Gerth had already shown himself to be disruptive and likely to act on impulse;
indeed, he even interrupted Judge Nadel’s ruling on his motion.
[A] defendant wishing to represent himself may not use the right
for the purpose of disrupting the proceedings, and must be willing
to follow courtroom procedure and protocol. Faretta, 422 U.S. at
834 n.46; United States v. Lopez-Osuna, 232 F.3d 657, 665 (9th
Cir. 2000) (holding defendant's request to represent himself may
be denied when he is unable or unwilling to adhere to rules of
procedure and courtroom protocol); United States v. Frazier-El,
204 F.3d 553, 559 (4th Cir. 2000) (stating that "the Faretta right to
self-representation is not absolute, and the government's interest in
ensuring the integrity and efficiency of the trial at times outweighs
the defendant's interest in acting as his own lawyer"); United States
v. Brock, 159 F.3d 1077, 1079 (7th Cir. 1998) (finding that "when
a defendant's obstreperous behavior is so disruptive that the trial

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cannot move forward, it is within the trial judge's discretion to
require the defendant to be represented by counsel").

Ahmed v. Houk, 2014 U.S. Dist. LEXIS 81971, *101-102 (S.D. Ohio 2014).
Third, Judge Nadel had psychiatric evidence supporting his conclusion that Gerth was not
competent to waive counsel. In his Reply, Gerth mentions other evidence which cuts in the
opposite direction, e.g., his GED in 1992 and the finding that he was competent to stand trial.
However, a person competent to be tried is not necessarily competent to represent himself.
United States v. Carradine, 621 F.3d 575, 578 (6th Cir. 2010), citing Indiana v. Edwards, 554
U.S. 164 (2008).
Considering all of these factors, competent appellate counsel could readily have decided
that the Faretta issue was not a likely winner. The First District in viewing the same record
could quite reasonably have decided the Faretta issue was not a colorable claim of ineffective
assistance of appellate counsel.
Therefore the Faretta claim, although preserved for review under 28 U.S.C. § 2254(d)(1),
is without merit and should be dismissed.

Ground Three: Insufficient Evidence

In his Third Ground for Relief, Gerth claims he was convicted on legally insufficient
evidence. The factual basis of this Ground for Relief is stated in the Petition as follows:
In this case, charges resulted from a single accident in which two
people died. Four eyewitnesses described Gerth, who is white, to
police as a black man. Evidence of Gerth purportedly being under
the influence would have meant he could not knowingly appreciate
the possible consequences of his conduct. Further, had it not been
for an improper police chase, no accident would have occurred.
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Additionally, the SUV owner could only assume that her vehicle
was stolen, and there was no evidence explaining how Gerth
obtained the SUV. To conclude that the SUV was stolen and that
Gerth somehow knew or should have known that when coming
upon it requires believing an inference upon an inference. This was
too great of a leap under the reasonable doubt standard.
(Petition, ECF No. 1, PageID 35.)
The Warden asserts this entire Third Ground for Relief is procedurally defaulted, noting
that the only insufficient evidence claim made in the First District was that Gerth did not act
knowingly so as to commit felony murder because he was intoxicated. That claim was rejected
by the First District and not pursued in the Ohio Supreme Court where instead he blamed the
crash on vehicle malfunction and an improper police chase (Return, ECF No. 6, PageID 110003). The second insufficient evidence claim is argued to be procedurally defaulted because
Gerth argued in the First District that there was no evidence of how he came into possession of
the vehicle.
Gerth admits that his second insufficient evidence claim is defaulted because it was never
presented to the Ohio Supreme Court (Reply, ECF No. 10, PageID 1155).
On the other hand, Gerth argues his first insufficiency of the evidence claim was
preserved in the Ohio Supreme Court by the argument he made there that it was not his actions
alone that cause the deaths of the victims, but a combination of mechanical failure to the stolen
vehicle and the improper high speed police chase that cause the malfunction (Reply, ECF No. 10,
PageID 1156).
The Magistrate Judge disagrees. In the First District, he argued he did not act knowingly
in committing these crimes because he was intoxicated. That is a long way from claiming the
victims would not have been killed but for the fault of others, to wit, the vehicle designer and the

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police.
Gerth attempts to excuse this procedural default by pointing out that the attorney who
presented the intoxication claim was later found to have provided ineffective assistance of
appellate counsel. While that is true, he was never found to have provided ineffective assistance
in the way he pleaded the insufficiency of the evidence claim. Indeed, that was not alleged as a
deficiency in his performance in either the first or the second 26(B) application. In order for
ineffective assistance of appellate counsel to act as excusing cause for a procedural default, it
must first be properly presented to a state court which can adjudicate that claim. Edwards v.
Carpenter, 529 U.S. 446 (2000).

Conclusion

In accordance with the foregoing analysis, it is respectfully recommended that the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.

August 7, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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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. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. 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. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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