Gerth v. Warden, Allen Oakwood Correctional Institution

Filing 19

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is again 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 except as to his Faretta claim. He should be permitted to proceed in forma pauperis on appeal. Objections to R&R due by 9/28/2017. Signed by Magistrate Judge Michael R. Merz on 9/14/2017. (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.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought by Petitioner with the assistance of counsel pursuant
to 28 U.S.C. § 2254. The case is before the Court on Petitioner’s Objections (ECF No. 17) to the
Magistrate Judge’s Report and Recommendations (“Report,” ECF No. 14) which recommended
dismissal with prejudice. District Judge Dlott has recommitted the matter to the Magistrate
Judge for reconsideration in light of the Objections (ECF No. 18). The Warden had the right
under Fed. R. Civ. P. 72(b)(2) to respond to the Objections by September 11, 2017, but has filed
no response.

General Objection

Petitioner begins with a General Objection which reads in its entirety “Gerth objects to
each and every finding of fact and conclusion of law in the Order [sic] and Report and
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Recommendation which is adverse to Gerth’s claims for relief.” (ECF No. 17, PageID 1197.)
This general objection should be ignored by the Court. Only specific objections are preserved
for appellate review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987).
The district court need not provide de novo review where objections to a magistrate judge's
report and recommendations are frivolous, conclusive, or general.

Parties have a duty to

pinpoint portions of the report that the Court should consider. Mira v. Marshall, 806 F.2d 636
(6th Cir. 1986). If a party files a general objection and incorporates other papers by reference and
that approach undermines the purposes of the Magistrate’s Act, that party will have waived the
right to appeal. Neuman v. Rivers, 125 F.3d 315 (6th Cir. 1997).

Ground One

Petitioner’s First Ground for Relief reads:
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 defendant, the defendant is
constitutionally entitled to the effective assistance of new appellate
counsel.
(Petition, ECF No. 1, PageID 2.) In the Report, the Magistrate Judge wrote that this abstract
proposition of law was correct. Indeed, Respondent did not contest it (Report, ECF No. 14,
PageID 1180).
The difficulty with Petitioner’s position is he alleges Ohio violated his right to the
effective assistance of appellate counsel when it did not give him a forum in which to raise
ineffective assistance of appellate counsel claims as to his second appellate attorney.

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After his first direct appeal was unsuccessful, he filed an application for reopening under
Ohio R. App. P. 26(B) which was granted.

His new attorney then did not raise all the

assignments of error he believes should have been raised on the reopened appeal. To raise
claims of ineffective assistance of appellate counsel regarding his second attorney on his first
appeal, he filed a second 26(B) application which the appellate court refused to consider, holding
that “App. R. 26(B) makes no provision for a successive application.” State v. Gerth, Case No.
C-120392 (1st Dist. Apr. 13, 2015)(unreported, copy at State Court record ECF No. 5, PageID
393-94), citing State v. Twyford, 106 Ohio St. 3d 176 ((2005), and State v. Peeples, 73 Ohio St.
3d 149 (1995).
The question of whether or not Ohio law provides a litigant with a second opportunity to
raise ineffective assistance of appellate counsel claims is just that – a question of Ohio law, not
federal law. In the Petition, Gerth’s counsel spend considerable effort distinguishing the Ohio
Supreme Court cases on which the First District relied (ECF No. 1, PageID 22-23). But whether
the First District was right or wrong in its application of Ohio precedent is a matter of Ohio law.
A federal habeas court is bound by state court decisions on questions of state law, even if they
are made in the very case in which relief is sought. "[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); Railey v.
Webb, 540 F.3d 393 (6th Cir. 2008), quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005)(“We
have repeatedly held that a state court’s interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”);
Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 2005); Vroman v. Brigano, 346 F.3d 598 (6th Cir.
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2003); Caldwell v. Russell, 181 F.3d 731, 735-36 (6th Cir. 1999); Duffel v. Dutton, 785 F.2d 131,
133 (6th Cir. 1986).
It is unquestionably true that a criminal defendant has the right to effective assistance of
counsel on his or her first direct appeal of right. But Gerth’s argument goes further to assert
Ohio was obliged to provide him with a forum in which to raise that right (Petition, ECF No. 1,
PageID 24, citing Evitts v. Lucey, 469 U.S. 387 (1985)). That is not the holding of Evitts. As the
Report notes, Petitioner has failed to cite any clearly established Supreme Court precedent that
holds a State must provide a forum in which to raise ineffective assistance of appellate counsel
claims at all, much less a second opportunity to raise such claims (ECF No. 14, PageID 1182).
In fact, the Supreme Court has repeatedly held that the States need not provide even for direct
appeal at all. 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). “Due
process does not require a State to provide appellate process at all.” Goeke v. Branch, 514 U.S.
115, 120 (1995).
The fact that Gerth is without a state forum to raise his ineffective assistance of appellate
counsel claims does not mean he is without a remedy. Federal habeas corpus remains available
to any prisoner who is deprived of his or her liberty pursuant to a conviction infected with
constitutional error, including ineffective assistance of appellate counsel. Indeed, when the state
courts refuse to entertain such claims, the habeas court considers them de novo.
Gerth’s Objections point to no clearly established Supreme Court precedent that would
compel a State to provide a forum for ineffective assistance of appellate counsel claims, even a
first opportunity. In response to the Report’s claim that Gerth’s unheard ineffective assistance of
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appellate counsel claims can be raised in habeas, Gerth notes that the Report recommends
dismissing Ground Two on omitted assignments of error Two through Six as procedurally
defaulted (Objections, ECF No. 17, PageID 1202). But the Report did not suggest that those
claims were not cognizable in habeas or that this Court’s review would not be de novo. The fact
that a litigant has an available forum does not eliminate affirmative defenses to claims raised in
that forum.
It is therefore again respectfully recommended that the First Ground for Relief be
dismissed for failure to state a claim upon which habeas corpus relief can be granted.

Ground Two

First Objection: Omitted Assignments of Error Two through Six

In his Second Ground for Relief, Gerth asserts he received ineffective assistance of
appellate counsel when his second appellate attorney failed to raise “six meritorious assignments
of error.” (Petition, ECF No. 1, PageID 24.) The Report found that merits review of omitted
assignments of error two through six was barred by Gerth’s failure to present them to the First
District in his first 26(B) application (Report, ECF No. 14, PageID 1184).
Gerth objects by again distinguishing the Ohio Supreme Court precedent on which the
First District relied in dismissing the second 26(B) application (Objections, ECF No. 17, PageID
1205-07). He notes that in Ohio res judicata does not always bar relitigation of issues. Id. at
PageID 1206-07, citing Ohio case law, largely unpublished. Again, the question of whether
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Ohio res judicata law applies to assignments of error raised for the first time in a second 26(B)
application is a question of Ohio law, not federal law. If the First District was wrong that Ohio
res judicata law applied here, Gerth was free to raise that claim on appeal to the Ohio Supreme
Court or indeed to the First District on a request for reconsideration.
The Report found omitted assignments of error two through six procedurally defaulted by
a straightforward application of the analysis required by the Sixth Circuit:
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). Ohio has a
relevant procedural rule, the res judicata doctrine established by State v. Perry, 10 Ohio St. 2d
175 (1967). The res judicata rule was enforced by the First District on Gerth in this case, and
has been repeatedly upheld as an adequate and independent state ground of decision by the Sixth
Circuit. 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,
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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). Although a procedural default
can be excused by showing cause and prejudice, Gerth has made no such showing, In particular,
he cannot excuse his failure to include these omitted assignments of error in his first 26(B)
application by claiming ineffective assistance of appellate counsel since he was not entitled to
the assistance of counsel in preparing that application.

Second Objection: Omitted Assignment of Error One

In his First Omitted Assignment of Error which was raised in his first 26(B) application,
Gerth asserts trial court error in denying him the right to self-representation and ineffective
assistance of appellate counsel for failing to present this claim on direct appeal. In his Petition,
Gerth claimed he never received a decision on this claim on the merits. The Report disagreed,
reasoning that the claim had been plainly presented to the First District and that Supreme Court
precedent required us to read the First District’s silence on the claim as having rejected it
(Report, ECF No. 14, PageID 1186). The Report then analyzed the merits of Gerth’s Faretta
claim and concluded it was not so strong as to have been a sure winner and therefore the First
District’s silent denial of Gerth’s claim of ineffective assistance of appellate counsel for failure
to raise the Faretta claim was not an objectively unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984). Id. at PageID 1189-90.
In his Objections, Gerth emphasizes the many ways in which he expressed his
dissatisfaction with his appointed trial attorney and his desire to have him replaced. But it was
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only in close proximity to trial that Gerth coupled that with a request to represent himself. The
Report observed that granting the self-representation request would have required a trial
continuance when the case had already been pending long past the Ohio statutory speedy trial
limit. Gerth objects that he would not have objected to a trial continuance (Objections, ECF No.
17, PageID 1212). That is what he says now, but there is no record reference to his having said
that at the time. He also objects to Judge Nadel’s having relied on one incident of disruptive
behavior and claims he did not act disruptively at the March 12, 2012, hearing. Id. If a trial
judge is face with disruption at one short hearing and non-disruption at another short hearing,
which should he project is likely at a trial where it is likely witnesses will say things the
defendant will find upsetting?
The Report also noted that Judge Nadel had some information regarding Gerth’s
psychiatric condition on which he relied to find Gerth was not competent to waive representation
(ECF No. 14, PageID 1190). The Objections argue that Judge Nadel’s reasoning on this point is
misleading. The Objections also fault Judge Nadel for not conducting a proper Faretta hearing
and the Report for not taking this into account (ECF No. 17, PageID 1213).
The question before this Court is not whether Judge Nadel conducted a flawless Faretta
proceeding. Instead, the question is whether an appellate victory on this issue was so likely that
failure to include it constituted ineffective assistance of appellate counsel. In the Magistrate
Judge’s opinion, it did not. What the trial judge experienced was a last-minute demand for selfrepresentation made by a person who had been volatile and disruptive in the courtroom. Under
these circumstances, it seems very unlikely the First District would have reversed for failure to
ask the formulaic questions suggested for a Faretta inquiry. This question is sufficiently close,
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however, that Gerth should be granted a certificate of appealability on it.
In sum, it is again respectfully recommended that the Second Ground for Relief be
dismissed with prejudice, but that Gerth be granted a certificate of appealablity on his Faretta
claim.

Ground Three: Insufficient Evidence

In his Third Ground for Relief, Gerth claims he was convicted on constitutionally
insufficient evidence. The Report notes that the asserted factual bases of this claim were failure
to prove essential elements of several of the crimes of which Gerth was convicted.
An allegation that a verdict was entered upon insufficient evidence states a claim under
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc).
In order for a conviction to be constitutionally sound, every element of the crime must be proved
beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United
States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). To put it another way, there

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must be sufficient evidence on every element of the offense of conviction; absence of sufficient
evidence on even one element of the crime will defeat the conviction.
In his Petition, Gerth asserted the absence of sufficient evidence on particular elements of
the crimes of conviction. For example, Gerth was convicted of receiving stolen property because
the SUV he was driving when the fatal accident occurred was not his. He claimed in this Ground
for Relief there was no proof the SUV was stolen. The Report concluded this sub-claim was
procedurally defaulted because it was never raised anywhere in the state courts. Gerth concedes
on this sub-claim (Reply, ECF No. 10, PageID 1155); (Objections, ECF No. 17, PageID 1214).
Gerth had argued in the First District that he could not have been convicted of knowingly
acting during the course of his criminal conduct because he was intoxicated. The First District
ruled against him on this claim and the Report found he did not pursue it in the Ohio Supreme
Court, meaning this sub-claim was procedurally defaulted. In his Reply, Gerth had responded to
the procedural default defense by claiming he preserved this claim (that he did not act
knowingly) by asserting in the Ohio Supreme Court that the victims would not have been killed
but for (1) the mechanical failure(s) of the SUV and (2) the improper police chase. The Report
rejected this argument, reasoning that presenting a claim of lack of causation is not the same
presenting a claim that one did not act knowingly (Report, ECF No. 14, PageID 1191-92).
Gerth objects by quoting at length from his Memorandum in Support of Jurisdiction in
the Ohio Supreme Court:
In this case, it is not the actions of the Appellant alone which
caused the victim’s deaths. If it had not been but for the
mechanical failure resulting from the improper Police chase, no
deaths would have occurred. . . .

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Imagine a picture in which all the participants of this case were
lined up at the edge of a cliff, the victims at the edge, the Appellant
in the middle, and the Toyota Motor Corporation and Cincinnati
Police at the rear. What has occurred in this case is tantamount to
the Police and Toyota pushing this Appellant into the Victims, who
then fell to their deaths.
(Objections, ECF No. 17, PageID 1215, quoting Memorandum in Support of Jurisdiction, State
Court Record, ECF No. 5, Ex. 24, PageID 164-66.) This is an argument about lack of proof of
causation, not lack of proof of the element of acting knowingly. Arguing to the Ohio Supreme
Court on the causation element does not preserve the claim of lack of proof of acting knowingly.
It is therefore again respectfully recommended that the Third Ground for Relief be
dismissed with prejudice.

Conclusion

Based on the foregoing analysis, it is again 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 except as to his Faretta
claim. He should be permitted to proceed in forma pauperis on appeal.

September 14, 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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