Gerth v. Warden, Allen Oakwood Correctional Institution

Filing 23

DECISION AND ORDER OVERRULING the Objections of both Petitioner and the Respondent. TheClerk will enter judgment dismissing the Petition with prejudice. Petitioner is GRANTED acertificate of appealability on his Faretta claim, but a certificate of appealability is DENIED onall other claims. Petitioner has leave to appeal in forma pauperis.. Signed by Judge Susan J. Dlott on 10/6/17. (wam)

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.

DECISION AND ORDER

This habeas corpus case is before the Court on Petitioner’s Objections (ECF Nos. 17 &
20) and the Warden’s Objections (ECF No. 21) to the Magistrate Judge’s original Report and
Recommendations (ECF No. 14) and Supplemental Report and Recommendations on recommit
(ECF No. 19). Petitioner has responded to the Warden’s Objections (ECF No. 22).
Pursuant to Fed. R. Civ. P. 72(b)(3), the Court has reviewed de novo all portions of the
Reports and Recommendations to which specific objection was made.

Gerth’s “General

Objection” does not qualify as an objection under Fed. R. Civ. P. 72.

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

The Magistrate Judge concluded Gerth’s First Ground for Relief was without merit

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because there is no United States Supreme Court precedent holding, as a matter of due process of
law, that a State must provide a forum to raise a claim of ineffective assistance of appellate
counsel. Gerth’s Objections do not cite any such precedent. Instead, Gerth relies on Evitts v.
Lucey, 469 U.S. 387 (1985), for the proposition that if a State provides an appeal at all, that
appellate process must accord with the Due Process Clause.

That proposition is

unexceptionable. If a State provides a direct appeal process, then the appellant is entitled to
effective assistance of counsel on that appeal. For example, counsel must be appointed on
appeal of right for indigent criminal defendants. Douglas v. California, 372 U.S. 353 (1963);
Anders v. California, 386 U.S. 738 (1967); United States v. Cronic, 466 U.S. 648 (1984). When
it does provide a right to appeal, the State cannot discriminate against the poor by failing to
provide the necessary transcript. Griffin v. Illinois, 351 U.S. 12 (1956). These are all aspects of
due process that the Supreme Court has held are required if a State decides to have direct appeals
at all.
But the Supreme Court has never held that a State must, as a matter of due process,
provide a forum in which to raise a claim of ineffective assistance of appellate counsel, much
less a second opportunity to raise such a claim. Gerth says the Magistrate Judge’s
holding ignores the procedural history in this case because Gerth is
not seeking a second opportunity or second forum to raise
ineffective assistance of his original appellate counsel , but instead
sought an initial opportunity to raise ineffective assistance of
appellate counsel representing him in the reopened appeal.
(Objections, ECF No. 20, PageID 1233.) On the contrary, the Magistrate Judge recognized that
was what Gerth was seeking and held that Ohio law, as enunciated by the First District in this
very case, does not provide a forum to raise that claim (Report, ECF No. 14, PageID 1182;
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Supplemental Report, ECF No. 19, PageID 1221).
Even if this Court believed that the Due Process Clause of the Fourteenth Amendment
required States to provide a forum every time an appellant claims ineffective assistance of
appellate counsel, Mr. Gerth’s First Ground for Relief would be without merit because this Court
is not empowered to set aside a conviction in habeas corpus unless the state court’s decision is
contrary to or an objectively unreasonable application of Supreme Court precedent. 28 U.S.C. §
2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412 (2000). In other words, we cannot declare a
new constitutional right in a habeas case.
Gerth’s Objections as to Ground One are overruled.

Ground Two: Omitted Assignments of Error Two Through Six

The First District Court of Appeals found these five assignments of error barred by res
judicata because they could have been but were not raised previously. Gerth objects that “[i]n
Ohio, the doctrine of res judicata does not always bar relitigation of certain issues, making it an
inadequate ground for denying habeas relief.”

(Objections, ECF No. 20, PageID 1240).

However, the Sixth Circuit has repeatedly held to the contrary 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).

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Ground Two: Omitted Faretta Assignment

Because most of Gerth’s pre-trial complaints about his appointed attorneys were in
support of requests for replacement, rather than to proceed pro se, the Magistrate Judge
concluded his Faretta assignment of error was not so strong as to make it ineffective assistance
of appellate counsel to fail to raise it, but concluded this was a sufficiently close question to
merit a certificate of appealability (Supplemental Report, ECF No. 19). Gerth objects on the
merits and the Warden objects to the grant of a certificate of appealability.
Having reviewed the matter de novo, the Court concludes neither objection is well-taken.
The question on the merits is not whether the trial court conducted an error-free Faretta
determination, but whether the issue was a likely winner on appeal. Because the trial judge
relied in part on a psychiatric determination of Gerth’s competence and in part on his prior
disruption of proceedings, the Magistrate Judge correctly determined that the Faretta issue was
not a likely winner on appeal. Because the question is close, reasonable jurists could disagree on
its resolution. The Warden’s Objection reiterates Respondent’s claims on the merits, but does
not demonstrate that the issue is not at least debatable among reasonable jurists.

Ground Three: Legally Insufficient Evidence

For the reasons given by the Magistrate Judge, this Ground is procedurally defaulted.

Conclusion

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The Court OVERRULES the Objections of both Petitioner and the Respondent. The
Clerk will enter judgment dismissing the Petition with prejudice. Petitioner is GRANTED a
certificate of appealability on his Faretta claim, but a certificate of appealability is DENIED on
all other claims. Petitioner has leave to appeal in forma pauperis.

October 6, 2017.
S/Susan J. Dlott_____________
Susan J. Dlott
United States District Judge

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