Ahmed v. Houk
Filing
156
OPINION and ORDER - The Court ADOPTS and AFFIRMS the Magistrate Judges R&R, ECF No. 88, and OVERRULES Petitioners Corrected Objections, ECF No. 150. The Court DENIES the petition for a writ of habeas corpus and DISMISSES this action WITH PREJUDICE. Signed by Judge Michael H. Watson on 9/21/2020. (jk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
NAWAZ AHMED,
Petitioner,
Case No. 2:07-cv-658
JUDGE WATSON
Magistrate Judge Merz
v.
MARK C. HOUK,
Respondent.
OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending
before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This
matter is before the Court upon the Magistrate Judge’s Report and
Recommendations (“R&R”), ECF No. 88, in which the Magistrate Judge
recommended denying relief on all of Petitioner’s habeas claims. This matter is
also before the Court on Petitioner’s Corrected Objections to the R&R, ECF No.
150, the Warden’s response, ECF No. 151, and Petitioner’s Reply, ECF No. 155.
As required by 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure
Rule 72(b), the Undersigned has made a de novo review of the record in this
case. Upon said review, the Court finds all of Petitioner’s objections to the R&R
to be without merit. The Court OVERRULES Petitioner’s objections and
ADOPTS the R&R. While reaching the same conclusions as the Magistrate
Judge, the Court adds the following analysis.
I.
Factual and Procedural History
In 2001, a jury convicted Petitioner of four counts of Aggravated Murder
and sentenced him to death in Belmont County, Ohio, for the murders of his wife
Lubaina Bhatti Ahmed, Lubaina’s father Abdul Bhatti, Lubaina’s sister Ruhie
Ahmed, and Ruhie Ahmed’s two-year old daughter, Nasira Ahmed. The Ohio
Supreme Court set forth the facts of this case as follows:
In October 1998, Lubaina hired an attorney to end her marriage with
[Ahmed] and to secure custody of their two children, Tariq and Ahsan.
According to Lubaina’s divorce attorney, [Ahmed] did not want a
divorce, and consequently, it was a hostile divorce proceeding. In
early February 1999, shortly after the complaint for divorce had been
filed, Lubaina was awarded temporary custody of the children and
exclusive use of the marital residence. Later that month, the divorce
court issued a restraining order to prevent [Ahmed] from coming near
Lubaina or making harassing phone calls to her.
[Ahmed] had accused Lubaina, a physician, of having an affair with
another physician, and claimed that their oldest son, Tariq, was not
his. A subsequent paternity test showed that claim to be false.
According to Lubaina’s divorce attorney, Grace Hoffman, Lubaina had
been afraid of [Ahmed] and she had called Hoffman three or four times
a week, “scared [and] frustrated * * *. It just kept escalating.” Lubaina
had also confided to Hoffman that [Ahmed] had forced her to have sex
with him during the marriage.
Tahira Kahn, one of Lubaina’s sisters, corroborated that Lubaina had
feared [Ahmed]. She also testified that Lubaina had told her that
[Ahmed] had raped her repeatedly.
The owner of the rental home where Lubaina resided testified that
Lubaina had called him in February 1999 and asked him to change
the locks on the house. He stated that Lubaina had been very upset
and had asked that he change them within the hour.
In March 1999, Lubaina complained to police that [Ahmed] was
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harassing her by telephone, but after the officer explained that the
matter could be handled through criminal or civil proceedings, she
decided to handle it through the ongoing divorce proceedings. The
final divorce hearing was scheduled for Monday, September 13, 1999,
and Lubaina had arranged for her sister Ruhie to fly in from California
the Friday before to testify at the hearing.
On Friday, September 10, 1999, [Ahmed] called Lubaina’s office
several times. But Lubaina had instructed the medical assistants at
her office to reject any phone calls from him. Then, at approximately
4:00 p.m. that day, Lubaina took [Ahmed’s] call. [Ahmed] who worked
and lived in Columbus, wanted Lubaina to bring the children to him for
the weekend two hours earlier than planned. [Ahmed] claimed that he
was planning a surprise birthday party for their youngest son. Lubaina,
however, refused to change her plans and told [Ahmed] that he was
using the birthday party as an excuse to inconvenience her.
Rafi Ahmed, husband of Ruhie and father of two-year-old Nasira,
testified that Ruhie and Nasira had been scheduled to arrive in
Columbus from California at 10:34 p.m. on Friday, September 10.
Ruhie had planned to call Rafi that night when she arrived at
Lubaina’s home near St. Clairsville. However, since he had not heard
from Ruhie, Rafi began calling Lubaina’s home at 1:21 a.m., Saturday,
September 11. Rafi called 20 to 25 times, but he got only Lubaina’s
answering machine. At approximately 3:00 a.m., he called the
Belmont County Sheriff’s Office.
A parking receipt found in Lubaina’s van indicated that the van had
entered a Columbus airport parking lot at 9:30 p.m. and exited at
11:14 p.m. on September 10, 1999.
Around 3:45 a.m. on September 11, in response to Rafi Ahmed’s call,
a sheriff’s detective went to Lubaina’s home and knocked on the doors
and rang the doorbell. She got no answer. The detective also looked
in the windows, but nothing at the home appeared to be disturbed.
Later that day, Belmont County Sheriff’s Department Detective Steve
Forro was assigned to investigate the missing persons. He recognized
Lubaina’s name because he was the officer who had talked to her
regarding [Ahmed’s] harassing phone calls. Forro called [Ahmed’s]
home to see if he had any information. [Ahmed] did not answer, so
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Forro called Columbus police to have them check [Ahmed’s]
apartment. They did and found that he was not home.
Forro went to Lubaina’s home at 2:18 p.m. As he walked around the
outside of the house, he noticed a flicker of a car taillight through a
garage window. Using a flashlight, he looked through the window and
saw a van with its hatch open and luggage inside. He then saw the
body of a man on the floor covered with blood.
Forro called for backup. Deputy Dan Showalter responded and
entered through a side door, which he had found unlocked. He
searched the house and found three more bodies on the basement
floor.
Detective Bart Giesey found [Ahmed’s] MCI WorldCom employee
badge on the basement floor near the bodies. Records from
[Ahmed’s] employer, MCI WorldCom in Hilliard, Ohio, revealed that
[Ahmed’s] badge was last used at 7:19 p.m. on September 10, 1999.
Through several inquiries, police learned that [Ahmed] was scheduled
to depart from JFK [International Airport in New York] for Lahore,
Pakistan, that evening. Earlier that day, [Ahmed], through a travel
agent, had booked a flight leaving for Pakistan that same evening.
[Ahmed] arrived at the agent’s home with both of his sons and asked
if he could leave them with the agent, saying that his wife would pick
them up soon. [Ahmed] wrote on the back of his and Lubaina’s
marriage certificate, which he gave to the agent, that he was leaving
his sons to be handed over to his wife. [Ahmed] also signed his car
over to the agent. The agent then drove [Ahmed] to JFK to catch his
flight to Pakistan.
At 8:10 p.m., Robert Nanni, a police officer stationed at JFK, learned
that [Ahmed] was a murder suspect and that he had checked in for a
flight scheduled to leave for Pakistan at 8:55 p.m. [Ahmed] was
located and arrested. Nanni noticed a large laceration on [Ahmed’s]
right thumb. Nanni read [Ahmed] his rights and called airport
paramedics to attend to [Ahmed’s] thumb. Among the items
confiscated from [Ahmed] was an attaché case containing 15
traveler’s checks totaling $7,500, his will, and $6,954.34 in cash.
On October 7, 1999, a grand jury indicted [Ahmed] on three counts of
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aggravated murder for purposely and with prior calculation and design
killing Lubaina, Ruhie, and Abdul, pursuant to R.C. 2903.01(A), and
one count for the aggravated murder of Nasira, pursuant to R.C.
2903.01(C) (victim younger than 13). All four aggravated murder
counts carried a death-penalty specification alleging a course of
conduct involving the killing of two or more persons.
R.C.
2929.04(A)(5). The aggravated murder count for Nasira carried an
additional death-penalty specification alleging that the victim was
younger than 13 years at the time of the murder. R.C. 2929.04(A)(9).
At trial, Dr. Manuel Villaverde, the Belmont County Coroner, testified
that he had been called to the crime scene on September 11, 1999.
All four victims appeared to have died from blood loss from slashes
on their necks. Based on the condition of the bodies, he determined
that the victims had been killed at approximately 3:00 a.m. that day,
with two to four hours variation either way.
A deputy coroner for Franklin County performed autopsies on all four
victims and concluded that each victim had died from skull fractures
and a large cut on the neck.
Diane Larson, a forensic scientist at the DNA-serology section of the
Bureau of Criminal Identification and Investigation (“BCI”), concluded
that the DNA of blood found in the kitchen of Lubaina’s home matched
[Ahmed’s] DNA profile. The probability of someone else in the
Caucasian population having that same DNA profile is 1 in 7.6
quadrillion, and in the African-American population, the probability is
1 in 65 quadrillion.
State v. Ahmed, 103 Ohio St. 3d 27, 27-30 (2004).
On January 25, 2001, Petitioner was found guilty of the aggravated
murders of Lubaina Bhatti Ahmed, Abdul Bhatti, Ruhie Ahmed, and Nasira
Ahmed, as well as the death penalty specifications. ECF No. 92-4, at PAGEID
# 9185-9190. Following a mitigation hearing, the jury recommended a sentence
of death on each of the four aggravated murder counts. ECF No. 92-5, at
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PAGEID # 9477-78. After independently weighing the aggravating
circumstances and mitigating factors, the trial court imposed a sentence of death.
Id. at PAGEID # 9550-51.
On direct appeal, the Ohio Supreme Court affirmed Petitioner’s convictions
and sentence and overruled each of Petitioner’s nineteen propositions of law.
State v. Ahmed, 103 Ohio St. 3d 27 (2004). Subsequently, the Ohio Supreme
Court denied Petitioner’s application to reopen his direct appeal, along with a
motion to amend the application, because Petitioner failed to comply with the 90day filing deadline. The trial court denied Petitioner’s petition for post-conviction
relief, ECF 90-10, at PAGEID # 5648-5675, and the court of appeals affirmed the
trial court’s denial of the post-conviction petition. State v. Ahmed, No. 05-BE-15,
2006 WL 3849862 (Ohio App. 7th Dist. Dec. 28, 2006).
II.
Standards of Review
This Court reviews de novo those portions of the R&R to which the parties
objected. See, e.g., Chinn v. Warden, 3:02-cv-512, 2020 WL 2781522, *5 (S.D.
Ohio May 29, 2020); Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D. Mich.
2002). In that regard, Fed. R. Civ. P. 72(b)(3) provides:
The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
with instructions.
Fed. R. Civ. P. 72(b)(3).
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Because this is a habeas corpus case, provisions of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) that became effective prior to the filing of
the instant Petition, apply to this case. See Lindh v. Murphy, 521 U.S. 320, 336
(1997). The AEDPA limits the circumstances under which a federal court may
grant a writ of habeas corpus with respect to any claim that was adjudicated on
the merits in a state court proceeding. Specifically, the AEDPA directs us not to
grant a writ unless the state court adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” 28
U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding,” 28 U.S.C.
§ 2254(d)(2). Section 2254(d)(1) circumscribes a federal court’s review of
claimed legal errors, while § 2254(d)(2) places restrictions on a federal court’s
review of claimed factual errors.
Under § 2254(d)(1), “[a] state court’s adjudication of a claim is ‘contrary to’
clearly established federal law ‘if the state court arrives at a conclusion opposite
to that reached by the Supreme Court on a question of law, or if the state court
decides a case differently than the Supreme Court on a set of materially
indistinguishable facts.’” Stojetz v. Ishee, 892 F.3d 175, 192 (6th Cir. 2018)
(quoting Van Tran v. Colson, 764 F.3d 594, 604 (6th Cir. 2014)). A state court
decision involves an “unreasonable application” of Supreme Court precedent if
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the state court identifies the correct legal principle from the decisions of the
Supreme Court but unreasonably applies that principle to the facts of the
petitioner’s case. Id. (citing Henley v. Bell, 487 F.3d 379, 384 (6th Cir. 2007)). A
federal habeas court may not find a state adjudication to be “unreasonable”
simply because the court concludes in its independent judgment that the relevant
state court decision applied clearly established federal law erroneously or
incorrectly. Williams v. Coyle, 260 F.3d 684, 699 (6th Cir. 2001). Rather, for
purposes of 2254(d)(1), “clearly established federal law includes only the
holdings of the Supreme Court, excluding any dicta; and, an application of these
holdings is ‘unreasonable’ only if the petitioner shows that the state court’s ruling
‘was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair-minded
disagreement.’” Stojetz, 892 F.3d at 192-193 (quoting White v. Woodall, 572
U.S. 415 (2014)).
Further, § 2254(d)(2) prohibits a federal court from granting an application
for habeas relief on a claim that the state courts adjudicated on the merits unless
the state court adjudication of the claim “resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(2). In this regard, § 2254(e)(1)
provides that the findings of fact of a state court are presumed to be correct and
that a petitioner bears the burden of rebutting the presumption of correctness by
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clear and convincing evidence. Last, our review is limited to the record that was
before the state court that adjudicated the claim on the merits. Cullen v.
Pinholster, 563 U.S. 170 (2011).
A state prisoner who seeks a writ of habeas corpus in federal court does
not have an automatic right to appeal a district court’s adverse decision unless
the court issues a certificate of appealability (“COA”). 28 U.S.C. § 2253(c).
When a claim has been denied on the merits, a COA may be issued only if the
petitioner “has made a substantial showing of the denial of a constitutional right.”
Id. To make such a showing, a petitioner must demonstrate “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)). Recently, the Sixth Circuit vacated a COA and dismissed an appeal, on
the basis that a district court did not appropriately apply the correct standard for
granting a COA. Moody v. United States, 958 F.3d 485 (6th Cir. 2020). In
Moody, the Sixth Circuit cautioned that “a court should not grant a certificate
without some substantial reason to think that the denial of relief might be
incorrect,” and, “[t]o put it simply, a claim does not merit a certificate unless every
independent reason to deny the claim is reasonably debatable.” Id. at 488
(emphasis in original).
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III. Petitioner’s Claims
On July 11, 2007, after exhausting his state court remedies, Petitioner filed
motions to proceed in forma pauperis and for the appointment of counsel. ECF
No. 1. On May 14, 2008, Petitioner filed the instant Petition for a Writ of Habeas
Corpus, raising twenty-seven claims for relief. Petition, ECF No. 35. In the R&R,
the Magistrate Judge considered each of Petitioner’s claims for relief and found
none of them—nor any combination of them—to be meritorious. The Magistrate
Judge recommended the Petition be denied and that Ahmed be denied a COA.
On September 4, 2019, Petitioner filed Corrected Objections to the R&R,
ECF No. 150, wherein he challenges the Magistrate Judge’s R&R as to eight
claims only. Specifically, Petitioner objects to the Magistrate Judge’s resolution
of his first, second, third, fifth, eighth, thirteenth, nineteenth, and twenty-seventh
claims for relief. For the reasons that follow, the Court OVERRULES each of
Petitioner’s objections. The Court finds the Magistrate Judge’s R&R to be
thorough, well-supported, and correct. The Court further finds that Petitioner’s
objections fail to raise factual or legal arguments that have not been fully
addressed by the R&R.
First Claim for Relief: Denial of Counsel of Choice
In his first claim for relief, Petitioner argues he was denied his
“fundamental right to his own funds to employ counsel of choice, plan his
defense and employ experts of his choosing.” Petition, ECF No. 35 at PAGEID
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# 173. Specifically, Petitioner contends he was denied his right to counsel of
choice when the trial judge restrained his assets without the legal authority to do
so and required him to proceed to trial with appointed counsel. Corrected Obj.,
ECF No. 150 at PAGEID # 10402. According to Petitioner, “[n]ot being indigent,
petitioner’s equal protection and due process rights were violated when the
criminal trial judge, domestic relations court judge and probate judge of Belmont
County, Ohio coordinated their actions with the prosecutor’s office, sheriff’s
office, the Belmont County public defender and the appointed conservator
Edward Susteric by intentionally engaging in conduct designed to frustrate
petitioner’s efforts to obtain counsel of choice.” Petition, ECF No. 35, at PAGEID
# 173.
Petitioner and his wife, Lubaina Bhatti Ahmed, were involved in divorce
proceedings at the time of her death, and Petitioner’s first claim for relief arises
from a series of orders issued in domestic relations and probate court, as well as
his criminal case, regarding the expenditure and conservation of his funds. The
Magistrate Judge recommended that Petitioner’s first claim for relief be
dismissed as both procedurally defaulted and without merit, R&R, ECF No. 88, at
PAGEID # 2131-6, and Petitioner objects to both determinations.
The Magistrate Judge engaged in a thorough and well-reasoned analysis
of Petitioner’s first claim for relief that spans thirty-two pages of the R&R. In
large part, Petitioner’s Corrected Objections merely rehash the same issues
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addressed by the R&R, without offering targeted discussion of why the
Magistrate Judge’s determinations are wrong. For the following reasons, this
Court OVERRULES Petitioner’s Corrected Objections and ADOPTS the R&R.
Although the Court has adopted the R&R, the Court will address, generally,
Petitioner’s main objections.
A. Procedural Default
The Magistrate Judge concluded that Petitioner failed to raise his denial of
counsel of choice claim during his direct appeal as of right to the Ohio Supreme
Court and failed to offer cause and prejudice to excuse that default. The
Magistrate Judge rejected Petitioner’s argument that he presented this claim to
the Ohio Supreme Court by way of his pro se motion to reconsider, or by way of
a pro se motion to disqualify the Ohio Public Defender and to strike the brief filed
by the Ohio Public Defender. The Magistrate Judge determined those pro se
filings did not preserve the issue, because Ohio law did not permit hybrid
representation. Finally, the Magistrate Judge found that Petitioner’s attempt to
raise a claim of ineffective assistance of appellate counsel for failing to raise the
denial of counsel of choice claim did not preserve for habeas review the
underlying claim of denial of counsel of choice.
In his Corrected Objections, Petitioner argues this Court should reject the
Magistrate Judge’s determination that he procedurally defaulted his counsel of
choice claim. First, Petitioner argues he presented the substance of this claim as
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part of his second and thirteenth propositions of law on direct appeal. Corrected
Obj., ECF No. 150 at PAGEID # 10432-34. Next, Petitioner asserts that Ohio’s
rule against hybrid representation had not been firmly and routinely established
at the time he filed his pro se motions for reconsideration and to strike, and,
therefore, those pro se filings presented the issue to the Ohio Supreme Court.
Finally, Petitioner argues that even if the Magistrate Judge correctly determined
he failed to present this claim to the Ohio Supreme Court, the ineffective
assistance of appellate counsel excuses the default. The Court will address
Petitioner’s arguments in turn.
First, Petitioner argues the “content” of his counsel of choice claim was
presented to the Ohio Supreme Court on direct appeal as part of Propositions of
Law Nos. 2 and 13. According to Petitioner:
In his brief to the Ohio Supreme Court, filed by his appointed counsel,
Ahmed argued in Proposition of Law No. 2 that the trial court refused
to remove appointed counsel and that Ahmed had been forced to
proceed to trial with appointed counsel he did not want. The brief
urged among many factors that those appointed lawyers had a conflict
of interest because, “As they were selected by the court, they served
the court’s and prosecution’s interests rather than his.” Doc. 90-3,
OSC brief, PageID # 3569. During its resolution of the merits of this
claim, the Ohio Supreme Court recognized that “Although appellant
sought to hire attorneys of his own choosing, he was never able to do
so.” Doc. 90-5. OSC Opinion, PageID # 4152. The court also noted
that Ahmed told the trial court he had hired Attorney Carpino to
represent him but that the trial court found that Carpino “could not
serve as Ahmed’s counsel because he was not certified to act as
counsel in capital cases.” Id. Privately retained counsel do not have
to be death penalty certified to represent defendants charged with
capital offenses. Rules for Appointment of Counsel in Capital Cases,
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R. 2.01 (formerly R. 20).
In Proposition of Law No. 13, Ahmed argued that he had been
denied the right to represent himself. Doc. 90-4, OSC brief, PageID
# 3706. He also reported that he had been denied his right to counsel
of choice. Id. During its resolution of the merits of Proposition of Law
No. 13, the Ohio Supreme Court cited in its decision that Ahmed had
signed an entry in the trial court and wrote on the entry: “I have not
been allowed the rights under the Constitution and as given in
Constitution and Crim. R. 10 and 44 to continuance and
representation by selection counsel. . . . .” Doc. 90-5, OSC opinion,
PageID # 4160.
Neither of these propositions of law is captioned as a claim of
denial of counsel of choice but each references that denial and relies
on the Sixth and Fourteenth Amendments. In Carter v. Bell, 218 F.3d
581 (6th Cir. 2000), the court said, “We do not require word-for-word
replication of the state claim in the habeas petition . . . only that the
petitioner ‘fairly present’ . . . his federal constitutional claims.” Id. at
606-607.
Corrected Obj., ECF No. 150, at PAGEID # 10432-33.
The Court has carefully reviewed Propositions of Law 2 and 13, as set
forth in Ahmed’s state appellate brief, and concludes Petitioner did not present
his denial of counsel of choice claim within those propositions of law. Petitioner
admits that “neither of these propositions of law is captioned as a claim of denial
of counsel of choice.” Corrected Obj., ECF No. 150 at PAGEID # 10433. This
Court agrees but also finds that no reasonable read of those claims can support
Petitioner’s argument that his counsel of choice claim was raised within the body
of those propositions of law. Petitioner’s second proposition of law on direct
appeal was titled:
A DEFENDANT IS DENIED HIS RIGHTS TO COUNSEL, A FAIR
TRIAL, AND DUE PROCESS WHEN HE IS FORCED TO
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PROCEED TO TRIAL WITH COUNSEL THAT HAS A CONFLICT
OF INTEREST. SIMILARLY, FORCING A DEFENDANT TO TRIAL
WHERE THERE HAS BEEN A BREAKDOWN IN THE ATTORNEYCLIENT RELATIONSHIP DEPRIVES THE DEFENDANT OF
THOSE SAME RIGHTS. U.S. CONST. AMENDS. VI AND XIV,
OHIO CONST. ART. I, §§ 2, 9, 20.
ECF No. 90-3 at PAGEID # 3567-77. In that proposition, Petitioner argued his
court-appointed counsel “were burdened with a conflict of interest” and there was
“a complete breakdown of the attorney-client relationship.” Id. Petitioner cited
several instances during the pendency of his case in the trial court wherein
Ahmed claimed trial counsel were not working on his case, failed to meet with
him, failed to review evidence, withheld discovery, and did not consult him about
continuances, and Petitioner “did not trust them.” Id. at PAGEID # 3568.
Specifically, Petitioner accused Attorney Hershey of “directing racial and religious
remarks at him,” as well as being in collusion with the prosecution and the police.
Id. Petitioner “believed counsel were involved in a conspiracy to suppress
evidence favorable to him.” Id. at PAGEID # 3569. Attorney Hershey refused to
see Ahmed alone and contended that “Ahmed distorted and twisted what counsel
said and that an atmosphere of distrust had been created.” Id. Ultimately,
Petitioner filed a civil rights lawsuit against his counsel while they were
representing him.
In the “law” section of this proposition of law, Petitioner argued that a
conflict of interest occurred because Ahmed had filed the civil lawsuit against
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counsel, and “[a] defendant’s federal lawsuit against counsel suggests divided
loyalties and gives the attorney a personal interest in the way he conducts the
defense.” Id. at PAGEID # 3570. The appellate brief alleged “[o]nce Ahmed
sued counsel, counsel’s and Ahmed’s interests diverged.” Id. at PAGEID # 3571.
There is only one reference to “new counsel” in this section of Petitioner’s merit
brief, and that reference acknowledges the fact that the trial court would have
permitted new counsel. Specifically, Petitioner argued, “[w]hile the trial court told
Ahmed it would permit substitution of counsel, the court made clear that it would
not provide any extensions or continuances to new counsel.” Id. at PAGEID
# 3576. At the end of that sentence is a footnote acknowledging “[t]he trial court
subsequently withdrew its comments regarding a potential continuance. (See
entry at docket no. 210).” ECF No. 90-3 at PAGEID # 3576. Petitioner does not
allege anywhere in the more than ten pages of briefing dedicated to his second
proposition of law that he was denied counsel of his choosing or that the trial
court—or anyone for that matter—withheld his funds in a manner that prevented
him from hiring new counsel. There is no reasonable argument to be made that
Petitioner fairly presented the factual premise of his denial of counsel of choice
claim as part of his second proposition of law on direct appeal.
Petitioner’s thirteenth proposition of law on direct appeal was titled as
follows:
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WHERE A DEFENDANT MAKES A KNOWING AND INTELLIGENT
WAIVER OF HIS RIGHT TO COUNSEL AND ELECTS TO
PROCEED PRO SE, THE TRIAL COURT’S FAILURE TO HONOR
THAT ELECTION DEPRIVES THE DEFENDANT OF HIS RIGHTS
TO CONDUCT HIS OWN DEFENSE AND TO DUE PROCESS.
U.S. CONST. AMEND. VI AND XIV; OHIO CONST. ART. I §§ 10,
AND 16.
ECF No. 90-4 at PAGEID # 3706-08. This proposition of law, in both its heading
and argument, sets forth a claim alleging the denial of Petitioner’s right to self
representation, which is the subject of Petitioner’s third ground for relief in these
habeas proceedings. Although a claim challenging the denial of counsel of
choice and a claim asserting the denial of the right to self represent both invoke
the Sixth Amendment, the claims are nonetheless factually and legally distinct. A
criminal defendant’s decision to represent himself, once knowingly and
intelligently made, is a relinquishment of the right to counsel. See Hill v. Curtin,
792 F.3d 670, 678 (6th Cir. 2015) (noting that “a self-representation request” is
“in effect, a waiver of the right to counsel”). As such, Petitioner’s thirteenth
proposition of law, asserting the denial of his right to represent himself, did not
fairly present the factual or legal basis of his claim challenging the denial of his
right to counsel of choice.
The concept of procedural default requires a person convicted of a crime in
a state court to present a particular claim to the highest court of the state so the
state has a fair chance to correct any errors made in the course of the trial or the
appeal, before a federal court intervenes in the state criminal process. Fair
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presentment requires the petitioner to present the same claim under the same
legal theory to the state courts before raising it on federal habeas review. See
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (finding federal courts do
not have jurisdiction to entertain a claim in a federal habeas petition that was not
fairly presented to the state court, and “[a] claim may only be considered fairly
presented if the petitioner asserted both the factual and legal basis for his claim
to the state courts”). This Court agrees with and adopts the Magistrate Judge’s
conclusion that Petitioner failed to present his counsel of choice claim to the state
courts.
Next, Petitioner takes issue with the Magistrate Judge’s determination that
Ohio’s rule against hybrid representation was firmly and routinely established at
the time he filed his pro se motions for reconsideration and to strike, and,
therefore, those pro se filings did not sufficiently present the issue to the Ohio
Supreme Court. Petitioner takes further issue with the Magistrate Judge’s finding
that the state courts presumably denied those pro se pleadings on procedural
grounds. The Magistrate Judge determined:
Ahmed argues that the state supreme court’s summary denial of his
pro se motion for reconsideration constituted a decision on the merits
in this post-Harrington v. Richter world. 131 S.Ct. 770 (2011). But
while Harrington does not require written opinions from the state
courts, it does hold that the presumption that state court summary
dispositions are merits decisions may be overcome “when there is
reason to think some other explanation for the state court’s decision
is more likely.” Id. at 785, citing Ylst v. Nunnemaker, 501 U.S. 797,
803 (1991). As has been discussed above, there are at least two
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procedurally based explanations for the Ohio court’s denial of
Ahmed’s motion for reconsideration that are more likely than a merits
decision: (1) it is unlikely the state court would have addressed the
merits of Ahmed’s pro se motion since he was at all times represented
by counsel and therefore not entitled to hybrid representation, and (2)
the state procedural rule allowing motions for reconsideration does
not contemplate new claims being presented to the state court in such
filings. Therefore, this Court does not presume that the Ohio Supreme
Court denied Ahmed’s pro se motion for reconsideration on its merits,
and instead concludes it was denied on both of the procedural
grounds discussed. It also appears that the rule against hybrid
representation is firmly established and regularly followed in the Ohio
courts. See State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio5471
(2004) (paragraph one of the syllabus); State v. Ferguson, 108 Ohio
St. 3d 451, 466, 2006-Ohio-1502 at ¶ 97 (2006); State v. Tenace, 109
Ohio St. 3d 451, 452-53, 2006-Ohio-2987 at ¶ 10 (2006); State v.
Martin, 103 Ohio St. 3d 385, 391, 2004-Ohio-5471 at ¶ 32 (2004);
State v. Taylor, 98 Ohio St. 3d 27, 34, 2002-Ohio-7017 at ¶ 43 (2002);
State v. Cassano, 96 Ohio St. 3d 94, 100, 2002-Ohio-3751 at ¶ 37
(2002); State v. Keenan, 81 Ohio St. 3d 133, 138 (1998); State v.
Landrum, 53 Ohio St. 3d 107, 119 (1990); State v. Thompson, 33 Ohio
St. 3d 1, 6-7 (1987); State v. Packer, 188 Ohio App. 3d 162, 168-69,
2010-Ohio-2627 at ¶ 20 (Ohio App. 6th Dist. 2010); State v. Pilgrim,
184 Ohio App. 3d 675, 2009-Ohio-5357 (Ohio App. 10th Dist. 2009)
(paragraph five of the syllabus); State v. Litten, 174 Ohio App. 3d 743,
747, 2008- Ohio-313 at & 19 (Ohio App. 8th Dist. 2008); State v.
Beaver, 119 Ohio App. 3d 385, 401-2 (Ohio App. 11th Dist. 1997);
State v. Day, 72 Ohio App. 3d 82, 86 (Ohio App. 4th Dist. 1991); State
v. Carter, 53 Ohio App. 2d 125, 129 (Ohio App. 4th Dist. 1977).
R&R, ECF No. 88, at PAGEID # 12-13. The Magistrate Judge’s determination is
consistent with the decisions of other federal habeas courts that have addressed
this issue. See, e.g., Whatley v. Warden, No: 2:16-cv-676, 2017 WL 1196168
(S.D. Ohio Mar. 31, 2017) (“Other courts which have considered this question
have concluded that Ohio’s judicially-created rule against hybrid representation is
an adequate and independent state ground which supports the state courts’
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refusal to consider, on their merits, claims raised by a criminal defendant which
have not been advanced by that defendant’s counsel.”); Rojas v. Warden, 2015
WL 631183, *6 (N.D. Ohio Feb. 12, 2015) (finding the petitioner defaulted claims
he sought to raise pro se on direct appeal while represented by counsel because
“[t]he Ohio Supreme Court has held that ‘[a] defendant has no right to a ‘hybrid’
form of representation’” and “the State of Ohio regularly enforces its prohibition
against Petitioners raising claims on appeal while being represented by
counsel.”); Ysreal v. Warden, 2014 WL 7185264, *9 (S.D. Ohio Dec. 16, 2014)
(“Ohio’s rule against hybrid representation is an adequate and independent state
ground sufficient to foreclose habeas review”); Storks v. Sheldon, No. 3:12–cv–
191, 2013 WL 3992592, at *35 (N.D. Ohio Aug.5, 2013) (same). See also
Wallace v. Sexton, No. 13–5331, 2014 WL 2782009, at *8 (6th Cir. 2014) (finding
procedural default of a claim based on the petitioner's presentation of the claim in
a supplemental pro se brief prohibited under Tennessee procedural rule barring
defendants from filing pro se briefs while simultaneously represented by
counsel); Hill v. Carlton, 399 F. App’x 38, 42-45 (6th Cir. 2010) (finding a failure
to fairly present federal habeas corpus claim when Tennessee petitioner violated
similar state procedural rule against hybrid representation). Moreover, the
Magistrate Judge correctly determined that a rule can be firmly established and
regularly followed despite the fact that “a particular trial court and court of
appeals might have disregarded or, in their discretion decided not to enforce the
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rule in a few cases[.]” R&R, ECF No. 88, at PAGEID # 2145. See Ysreal v.
Warden, 2014 WL 7185264, *9 (S.D. Ohio Dec. 16, 2014) (“To be considered
regularly followed, a procedural rule need not be applied in every relevant case,
but rather “[i]n the vast majority of cases.”) (quoting Dugger v. Adams, 489 U.S.
401, 410 n. 6 (1989)).
In an effort to save his first claim for relief from procedural default,
Petitioner argues the ineffective assistance of appellate counsel for failing to
raise this claim on direct appeal establishes cause and prejudice to excuse the
default. Alternatively, Petitioner claims the fundamental miscarriage of justice
exception should apply. Petitioner is wrong on both accounts. Petitioner cannot
establish a claim of appellate counsel ineffectiveness for failing to raise the denial
of counsel of choice claim on direct appeal, because ultimately the denial of
counsel of choice claim lacks merit, and appellate counsel were therefore not
ineffective for failing to raise it. Furthermore, “[t]he narrow exception for
fundamental miscarriage of justice is reserved for the extraordinary case in which
the alleged constitutional error probably resulted in the conviction of one who is
actually innocent of the underlying offense.” Rogers v. Skipper, No. 19-1426,
2020 WL 4219683, *3 (6th Cir. July 23, 2020) (citing Schlup v. Delo, 513 U.S.
298 (1995)). Petitioner has not presented any evidence of actual innocence.
B. Merits Discussion
The Magistrate Judge determined that even if Petitioner had preserved his
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denial of counsel of choice claim for habeas review, the claim lacks merit. The
Magistrate Judge found no evidence of any conspiracy to deny Petitioner use of
his funds to hire counsel. According to the Magistrate Judge, “Ahmed provides a
lengthy chronology of his attempts to hire counsel, but fails to expose any
collaboration, nefarious or otherwise, between the various courts he names, the
prosecutor’s office, the public defender, or conservator intended to deny him his
right to counsel of his choice.” R&R, ECF No. 88, at PAGEID # 2150. The
Magistrate Judge noted that “[w]hat Ahmed thinks, or suspects, or claims is not
evidence upon which this Court may rely in evaluating his counsel-of-choice
ground for relief.” R&R, ECF No. 88, at PAGEID # 2162.
The Magistrate Judge concluded, and Petitioner appears to agree, that the
appropriate standard for reviewing Petitioner’s counsel of choice claim was set
forth in Wheat v. United States, 486 U.S. 153 (1988), which requires Petitioner to
demonstrate both that he was denied the right to hire counsel of choice and that
the fairness of his trial was compromised as a result. In Wheat, the Supreme
Court determined that “while the right to select and be represented by one’s
preferred attorney is comprehended by the Sixth Amendment, the essential aim
of the Amendment is to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will inexorably be represented
by the lawyer whom he prefers.” Id. at 158-59. The Court noted the right to
counsel of choice is not absolute:
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The Sixth Amendment right to choose one’s own counsel is
circumscribed in several important respects. Regardless of his
persuasive powers, an advocate who is not a member of the bar may
not represent clients (other than himself) in court. Similarly, a
defendant may not insist on representation by an attorney he cannot
afford or who for other reasons declines to represent the defendant.
Nor may a defendant insist on the counsel of an attorney who has a
previous or ongoing relationship with an opposing party, even when
the opposing party is the Government.
Id. at 158-59. Subsequently, in 2006, the Supreme Court decided United States
v. Gonzalez-Lopez, 545 U.S. 140, 148 (2006), finding “[w]here the right to be
assisted by counsel of one’s choice is wrongly denied, . . . it is unnecessary to
conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment
violation.” Id. at 148. Gonzalez-Lopez was decided a year after Petitioner’s
convictions became final, see Ahmed v. Ohio, 544 U.S. 952 (2005) (denying
certiorari) and Ahmed v. Ohio, 545 U.S. 1124 (2005), and is not retroactively
applicable to Petitioner’s case. Rodriguez v. Montgomery, 594 F.3d 548, 549
(7th Cir. 2010); Rodriguez v. Chandler, 492 F.3d 863, 866 (7th Cir. 2007); Peters
v. Bell, No. 1:06-cv-880, 2007 WL 3348011, at *1 (W.D. Mich. Nov. 8, 2007).
Because Petitioner’s claim is procedurally defaulted, the state courts were
not given an opportunity to consider the circumstances leading to Petitioner’s
funds being subject to oversight. Petitioner contends the domestic relations court
improperly restrained his funds, and the probate court permitted funds to be
attached to protect a future judgment in the wrongful death action pursued by
Lubaina Bhatti’s estate and also established a conservatorship over his funds.
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Corrected Obj., ECF No. 150, at PAGEID # 10408. Regardless of the various
orders pertaining to Petitioner’s finances, one thing is clear: Petitioner’s funds
were always available for Petitioner to use to hire his own counsel.
Petitioner himself acknowledges “[a]n agreement was reached, whereby
twenty thousand dollars would be attached subject to Ahmed’s need to use the
money to pay for representation in his criminal trial at which time there would be
a hearing on the matter.” ECF No. 150, at PAGEID # 10408 (emphasis added).
Petitioner further acknowledges that the orders to which he complains were lifted
nearly a year before his trial, alleging in his Corrected Objections that his funds
were unavailable “from September 13, 1999 to March 9, 2000,” well ahead of his
January, 2001 trial. Id. at 10427. During a February 7, 2000, status conference,
the trial court made clear to Petitioner “if you are laboring under an illusion that I
am somehow strapping you from hiring someone, you’re mistaken,” and the court
noted it had “waited for four months for someone to appear in this case.” ECF
No. 92-1, at PAGEID # 7408-09. In a March 29, 2000, docket entry, the trial
court stated “defendant is permitted and encouraged to utilize funds for retention
of counsel.” ECF No, 90-1, at PAGEID # 2575.
The trial court’s willingness to accommodate rather than hinder Petitioner’s
quest for private counsel was apparent during an April 27, 2000, on-the-record
discussion between the trial court and Attorney Harry Reinhart. ECF No. 92-1, at
PAGEID # 7432-39. During that hearing, Attorney Reinhart expressed concerns
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that Ahmed did not have enough money to hire private counsel and also fund
other aspects of his defense. The trial court was willing to permit Petitioner to
use his owns funds to hand select counsel, while still availing himself of court
resources:
MR. REINHART: Judge, I’ve been contacted by Mr. Ahmed
who has indicated to me he’s interested in retaining me in this matter
and I told him that I would explore this both with him and with the other
interested parties in this, but I told him that I had to get a few questions
answered before I could even consider agreeing to represent him.
He does not have, based on his representations to me, he does
not have nearly sufficient funds to properly fund the defense of a
capital case. He has – he has enough money that I would consider
accepting that on a flat rate basis for legal services for attorneys fees,
but that’s not the end of the story in this case. I mean, there are costs
and expenses in these cases that can be substantial, and I would not
be doing him a favor, and I would be doing a disservice to the court
and everybody else in this if I agree to enter into the case under
circumstances where essentially my professional services are almost
guaranteed to be constituted [sic] ineffective assistance of counsel.
So I told him the first question I need to get answered, at least
preliminary, would be whether or not the court would entertain an
arrangement whereby he is declared marginally indigent, as that
phrase is used by the State Public Defender’s Office, which means
he’s got some money, but not enough money, and essentially the
State is going to pick up the tab for necessary defense services such
mitigation and investigation and, potentially, expert witness fees.
THE COURT: If he has exhausted his asserts and I have his
statement to that effect and the conservator’s statement to that effect,
I will – the County will pick up necessary defense services of a
reasonable amount. By that I mean, if this – should he select an
investigator that charges $150.00 an hour, that’s not reasonable and
the County will not pick up the tab for that. But if the fees are
consistent with fees charged by other persons performing those
services, the County will be reasonable about it.
MR. REINHART: Assuming we got to that point, what I would
do is submit a proposed litigation budget to you so you could look at
it in advance, and I do that to [sic] both good business practice as a
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courtesy to the court and as protection of myself.
THE COURT: So we know what’s going on down the road, I
think that’s a good idea.
...
MR. REINHART: So he’s a little bit weak even on the flat rate,
but I told him I would consider taking it on a flat rate, but if there’s not
going to be a problem with actually getting the funds from wherever
they are right now, you know, to me, and since the court has, as I
understand it, some of the accounts are tied up by order of this court,
some of the accounts are tied up by order of the other Common Pleas
Court judge, and maybe even the Probate Court, can you tell me –
can you tell me how difficult it’s going to be to actually get access to
the funds?
THE COURT: I don’t have anything tied up in – I get letters
from – he believes I have money tied up. I’m not a judge in any case
but this case, and there is a conservatorship downstairs where I have
advised them to hold on to $10,000 to pay the Belmont County Public
Defender. The Belmont County Public Defender can submit a bill for
their services rendered if they stay in this case.
If you told me today that you were taking this case, and you
needed that money for your retainer, I would vacate my order. Now,
that’s the extent of the funds to which I have access. Now, he has,
you know, it’s a mystery to me, he’s told me he only has $15,000 and
he’s sworn to that, so it’s obvious that everybody’s records are
different.
…
MR. REINHART: I have no problems at all, Judge, with making
an in camera disclosure to you about what resources this individual
has and he proposes to use to retain me because there is no reason
why the court should be asked to authorize a kind of hybrid
representation if you know counsel is getting on the sly $500.00, if he
had that much money he could pay for his entire defense himself. . .
. I don’t think I – in fact, I think I have a responsibility to be forthcoming
to the court in that regard. But as I understand what you’re telling me,
if I show you a signed fee contract where I have agreed contractually
to represent him –
THE COURT: If I see the check going to you, the money that
we have set aside for attorney fees should go to you. I don’t have a
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problem with that. I would love to see the case move and I have put
off appointing another public defender because I’ve been told for a
month that the hiring of an attorney is about to happen and if – should
it happen, no one would be more pleased than me.
ECF No. 92-1, at PAGEID # 7434-38. Additionally, during a January 2, 2001,
hearing, Judge Sargus noted that she was “mindful of the great role played by
one in his selection of counsel” and reiterated that she had agreed to “not only
turn over all funds which were retained by the court, but we would supplement
those funds for you so that you could have a defense.” ECF No. 92-1, at
PAGEID # 7574. During a January 8, 2001, hearing, the trial court remarked “we
have all advised every attorney who expressed an interest in the case that any
funds that we had would be released.” ECF No. 92-1, at PAGEID # 7627. Those
on-the-record discussions completely negate the allegations contained in
Petitioner’s First Claim for Relief.
The state-court record reflects that Ahmed was at all times represented by
appointed counsel, beginning at his arraignment, and for nearly sixteen months,
Ahmed unsuccessfully attempted to hire private counsel. The Magistrate Judge
found no evidence that any of the attorneys Petitioner sought to hire declined
representation because the trial court refused to release funds. In so finding, the
Magistrate Judge engaged in a detailed thirteen-page recitation of Petitioner’s
attempts to obtain private counsel, as well as the trial court’s willingness to
release funds to counsel if counsel entered an appearance in the case. That
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discussion, ECF No. 88, at PAGEID # 2150-63, is adopted by the Court. As
revealed by that discussion, there is little evidence to suggest Petitioner’s inability
to hire private counsel had anything to do with the trial court’s orders. To the
contrary, much evidence suggests Petitioner was unable to hire counsel because
of his own terms and conditions regarding new counsel’s representation. The
record establishes that Petitioner sought to hire an impressive list of criminal
defense attorneys. That list includes Dennis McNamara, Sam Shamansky and
William Meeks, Harry Reinhart, Brian Rigg and Donald Schumacher, Terry
Sherman and Debra Gorrell, Robert Suhr, and Richard Cline and David Young.
No agreements were reached with any of these attorneys in large part because
Petitioner refused to waive his speedy trial rights to allow new counsel a
reasonable time to prepare to defend this quadruple homicide death penalty
case. The record reflects the trial judge attempted to facilitate Petitioner’s hiring
of counsel by agreeing to permit reasonable continuances to accommodate
defense preparation, by agreeing to release the funds that had been earmarked
for reimbursement of appointed counsel, and by agreeing to authorize additional
county funds to pay for reasonably necessary defense services if Petitioner
depleted his own funds. See, e.g., ECF No. 92-1, at PAGEID # 7434-38. The
Magistrate Judge concluded:
Although attorney McNamara mentioned that it would take time
for Ahmed’s funds to be released, he also stated that he could not
take Ahmed’s case because he did not have time to prepare for
Case No. 2:07-cv-658
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Ahmed’s trial, and Ahmed refused to waive his speedy trial right.
Attorneys Shamansky, Meeks, and Thomas were apparently willing to
take Ahmed’s case and sent him forms to complete that would give
them access to Ahmed’s account with T. Rowe Price, apparently one
of the accounts not in the control of the conservator. The record does
not indicate what became of those forms, whether Ahmed executed
them or not, but because Ahmed had not provided the court with a
financial statement from which the court could determine his indigency
status, Ahmed was prohibited by a court order from using any of his
money for any purpose. Thus, it was Ahmed’s failure to cooperate with
the court’s assessment of his ability to pay for his own counsel that
prevented Shamansky, et. al. from receiving payment from Ahmed’s
funds. When attorney Reinhart discussed taking Ahmed’s case with
Judge Sargus, she assured him there was no barrier to his receiving
payment from Ahmed’s funds, and this Court has not found within the
record any explanation as to why Reinhart ultimately decided not to
take Ahmed’s case. Although attorneys Rigg and Schumacher initially
declined to represent Ahmed in part because of the financial
restrictions, they later expressed an interest in taking his case. When
they informed Ahmed that he would need to waive his right to a
speedy trial if they decided to represent him, he refused to sign either
a waiver or the retainer agreement they had presented to him. Ahmed,
then, was the one to reject representation by Rigg and Schumacher.
The only evidence that attorneys Sherman and Gorrell were
interested in representing Ahmed is their retainer agreement, signed
by both of them, but not by Ahmed. The Court cannot presume
anything from that document other than that an agreement was not
reached. The reasons for that outcome are unknown. Attorney Suhr
was apparently under the impression that Ahmed did not have
counsel at the time he expressed an interest in representing him, and
when he found out otherwise, he determined that having a
conversation with Ahmed, who was represented by appointed
counsel, would be “premature.” That does not establish that Suhr was
worried about the availability of Ahmed’s funds to pay him should he
become Ahmed’s lawyer. If this Court were to assume anything about
the failure of attorneys Cline and Young to represent Ahmed, it would
be that Ahmed altered the “Scope of Work” portion of the retainer
agreement to terms that would be unacceptable to most, if not all,
attorneys. There is nothing in the record suggesting that they were
afraid they would not be paid if they took Ahmed’s case. And as for
Carpino, it is evident that Ahmed himself had doubts about Carpino’s
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ability to competently represent him, and those doubts were
warranted, as evidenced by Carpino’s filings and conduct in Ahmed’s
case, by Carpino’s conduct in other cases around that same time, and
by his mental illness suspension from the practice of law a couple of
years later. None of these attorneys ever filed a notice of appearance
in Ahmed’s case, which the trial court had repeatedly stated was
necessary before Ahmed’s funds would be released. Under the
circumstances present in Ahmed’s case, it was not unreasonable for
Judge Sargus to require such a filing before disbursing Ahmed’s funds
to any attorney.
R&R, ECF No. 88, at PAGEID 2159-61. It is relevant to note that although
Petitioner claimed he had hired Attorney Carpino as his private counsel, it is clear
Carpino wanted to be paid by the court and was hesitant to take on the full role
as Petitioner’s only trial counsel. This is evidenced by Carpino’s requests to be
permitted to assist Attorneys Olivito and Hershey, or to appear as “a friend of the
court.” ECF No. 92-1, at PAGEID # 7575. Carpino inquired as to whether
“Belmont County would pay the difference” if Petitioner ran out of funds to pay
him. The trial court denied this request, because Attorney Carpino was not
certified to serve as appointed counsel in death penalty cases. Id. at 7697-7702.
This Court agrees with the recommendation of the Magistrate Judge.
Petitioner has presented no evidence of a conspiracy to deny him counsel of
choice or any attempt to impede the expenditure of his funds to hire counsel. A
much more likely explanation for Petitioner’s failure to obtain his own counsel
was offered during Petitioner’s sentencing hearing, wherein appointed counsel
Olivito remarked “no other counsel from any other part of the State of Ohio
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wished to become involved in this case after they found out exactly what they
had to deal with.” ECF No. 92-5, at PAGEID 9548. Petitioner’s First Claim for
Relief lacks merit.
Having determined Petitioner’s First Claim for Relief should be denied as
both procedurally defaulted and without merit, the Court must determine whether
a COA should issue as to this claim. To warrant a COA, a petitioner must make a
substantial showing that he was denied a constitutional right. 28 U.S.C.
§ 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1983); Lyons v.
Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir. 1997). “Where a
district court has rejected the constitutional claims on the merits, the showing
required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000). Recently, in Moody v. United States, 958 F.3d 485 (6th Cir. 2020),
the Sixth Circuit dismissed an appeal and expressly cautioned against issuing a
COA in cases where alternate grounds for denying relief exist, finding “a claim
does not merit a certificate unless every independent reason to deny the claim is
reasonably debatable.” Id. at 488 (emphasis in original). Here, two independent
grounds exist to dismiss Petitioner’s first ground for relief, and this Court cannot
conclude that reasonable jurists would find the Court’s resolution of this claim on
either basis to be debatable or wrong. The Court denies Petitioner a COA as to
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his first claim for relief.
Second Claim for Relief: Conflict/Breakdown in Attorney-Client
Relationship
In his second claim for relief, Petitioner argues he was denied his rights to
counsel, a fair trial, and due process when he was forced to proceed to trial with
appointed counsel who had a conflict of interest and when there was a complete
breakdown in the attorney-client relationship. Petition, ECF No. 35 at PAGEID
# 198. The record reflects that in the time leading up to and during his trial,
Petitioner aired a near constant stream of perceived grievances regarding his
court-appointed counsel. Petitioner’s complaints were the subject of several
hearings before the trial court, as well as a civil rights lawsuit filed by Petitioner.
The Magistrate Judge recommended denying relief on this claim, and Petitioner
objects to that recommendation.
The Magistrate Judge determined that Petitioner’s second claim for relief
was properly before the court, having been raised on direct appeal before the
Ohio Supreme Court as Petitioner’s second proposition of law. In rejecting the
merits of this claim on direct appeal, the Ohio Supreme Court held:
In his second proposition of law, appellant asserts that the trial court
erred in failing to remove defense counsel, since a conflict of interest
occurred when he filed a lawsuit against counsel in federal court.
Alternatively, appellant contends that there was a total breakdown of
the attorney-client relationship that required counsel’s removal.
Appellant submits that the trial court’s inquiry into the difficulties
between him and counsel was insufficient.
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Appellant complained about his counsel on numerous occasions.
Appellant was first represented by appointed public defenders at his
arraignment. Appellant claimed that counsel had not met with him or
answered his questions, but counsel disputed appellant’s allegations.
Due to conflicts with appellant, both attorneys later withdrew, and by
June 2000, the trial court had appointed attorneys Peter Olivito and
Adrian Hershey to represent appellant. Although appellant sought to
hire attorneys of his own choosing, he was never able to do so.
Soon after Olivito and Hershey were appointed, appellant began
complaining that their representation was ineffective. At a September
6, 2000 hearing, appellant claimed that counsel had neither met nor
consulted with him prior to seeking a continuance. At a November 9,
2000 hearing, appellant complained that Hershey had laughed at and
humiliated him in front of a detective, had made racial slurs, and had
been hostile toward him. Hershey disputed appellant’s complaints,
and the court advised appellant to let his counsel help him.
At a January 2, 2001 hearing, appellant told the court that he had hired
attorney Joseph Carpino to represent him and that he had filed a civil
rights lawsuit against Olivito and Hershey in federal court and wanted
to discharge them.
On January 8, 2001, the trial court held a hearing on appellant’s
motion to discharge counsel. Appellant indicated again that he was
suing counsel in federal court. He also claimed that he had given his
attorneys a list of witnesses, but that in 16 months, neither his first
attorneys nor his new attorneys had contacted them and that his new
attorneys had “refused to contact them.” Olivito explained that many
of the witnesses that appellant had named were in Pakistan and that
appellant had not provided phone numbers to contact them. Both
attorneys told the trial court of their efforts to obtain witnesses and
comply with requests by appellant. The trial court concluded that
counsel was representing appellant diligently and therefore overruled
appellant’s motion to discharge them.
Also at the January 8, 2001 hearing, the court found that Carpino
could not serve as appellant’s counsel because he was not certified
to act as counsel in capital cases. The court overruled Carpino’s
motion to become appellant’s trial counsel.
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Appellant reiterated his dissatisfaction with counsel at a January 11,
2001 suppression hearing. He also complained about counsel at the
outset of voir dire, as well as at the mitigation and sentencing
hearings.
Appellant relies on Smith v. Lockhart (C.A.8, 1991), 923 F.2d 1314,
1321, citing Douglas v. United States (D.C.App.1985), 488 A.2d 121,
136, in claiming that his federal lawsuit against appointed counsel
reflected a conflict between his interests and counsel’s. Appellant
contends that once he raised the issue of a conflict of interest, the trial
court was required to allow him to demonstrate that the conflict
“impermissibly imperil[ed] his right to a fair trial.” See Cuyler v.
Sullivan (1980), 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333.
There are strong indications that appellant filed his federal lawsuit
simply to get his court-appointed attorneys discharged. Prior to trial,
the trial court held hearings regarding appellant’s complaints about
counsel on November 9, 2000, and January 8, 2001. Upon
considering the statements of appellant and counsel, the trial court
found no reason to replace counsel. At the conclusion of the
November 9 hearing, the trial court urged appellant to let his counsel
help him. At the conclusion of the January 8 hearing, the court stated:
“The court is comfortable that counsel has represented Mr. Ahmed *
* * diligently; that the difficulties which have arisen in this case stem
from what Mr. Ahmed himself pinpointed when he said that he does
not understand. And the allegations do not have firm footing in law or
in fact. The motion to discharge is overruled.” Nor did the trial court
find any conflict of interest that adversely affected counsel’s
performance. See Mickens v. Taylor (2002), 535 U.S. 162, 171–172,
122 S.Ct. 1237, 152 L.Ed.2d 291. Under these circumstances, we will
defer to the trial judge, “who see[s] and hear[s] what goes on in the
courtroom.” State v. Cowans (1999), 87 Ohio St.3d 68, 84, 717
N.E.2d 298.
We further note that courts “must be wary of defendants who employ
complaints about counsel as dilatory tactics or for another invidious
motive.” Smith v. Lockhart, 923 F.2d at 1321, fn. 11, citing United
States v. Welty (C.A.3, 1982), 674 F.2d 185, 193–194.
Appellant continually complained about counsel. The trial court took
appellant’s complaints seriously and listened to all sides before it
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determined that his complaints were not valid and that counsel should
remain as appellant’s attorneys. The federal lawsuit appears to have
been filed in an attempt to create a conflict so that his counsel would
be removed from the case, not a genuine grievance causing a true
conflict of interest. Moreover, after the trial court conducted thorough
inquiries into the difficulties between appellant and counsel, it found
that appellant’s complaints against counsel were not substantiated.
Nothing offered by appellant compels us to disturb that ruling. See
State v. Deal (1969), 17 Ohio St.2d 17.
Appellant argues alternatively that even if there was no conflict of
interest, there was at least a total breakdown in the attorney-client
relationship that necessitated counsel’s removal. The trial court,
however, addressed appellant’s complaints concerning counsel’s
representation of him at two hearings as stated above. Upon
considering appellant’s motion for a new trial and his complaints about
counsel and claims of counsel’s ineffectiveness throughout trial, the
trial court held that “[h]ours of testimony [concerning appellant’s
disagreements with counsel] established that the grounds alleged
were not cogent or reliable.” In addition, the record reflects many
instances where appellant continued to confer with counsel
throughout the proceedings, thus belying his claim that there was a
total breakdown in the attorney-client relationship.
Since appellant did not substantiate his claims of a conflict of interest
and of a total breakdown of the attorney-client relationship, we
overrule his second proposition.
State v. Ahmed, 103 Ohio St. 3d 27 (2004). Because the Ohio Supreme Court
considered and rejected this claim on the merits, this Court’s review is limited by
the AEDPA.
The Magistrate Judge criticized Petitioner for “repeating verbatim the
arguments he presented in the state court” and not attempting “in any serious
manner” to satisfy the requirements of the AEDPA. R&R, ECF No, 88, at
PAGEID # 2167. The Magistrate Judge observed:
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The issue before the habeas court is not the same as the issue
presented to the state court. The question before the state court was
whether there was a conflict of interest or a total breakdown of
communication between Ahmed and his trial counsel requiring
reversal of his convictions. Here, the question is whether the state
court’s decision that there was not a conflict is either contrary to or an
unreasonable application of federal law as determined by the United
States Supreme Court, or whether the state court’s decision was
based upon an unreasonable determination of the facts, given the
evidence before that court at the time of Ahmed’s trial, starkly different
inquiries than the one before the state court in the first instance.
Basically cutting and pasting the claim as it was presented to the state
court into a habeas petition is consequently ill advised as it does not
address the question this Court must consider in habeas review.
R&R, ECF No. 88, at PAGEID # 2166-67.
As noted by the Magistrate Judge, “a claim that counsel labored under a
conflict of interest is at base a claim of ineffective assistance of counsel governed
by Strickland v. Washington, 466 U.S. 668 (1984).” R&R, ECF No. 88, at
PAGEID # 2168. Under Strickland, the Court must ask whether counsel’s
performance “fell below an objective standard of reasonableness” and whether
there is “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
The standard for reviewing claims of ineffective assistance of counsel on habeas
review is highly deferential:
The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s
standard. Were that the inquiry, the analysis would be no different
than if, for example, this Court were adjudicating a Strickland claim on
direct review of a criminal conviction in a United States district court.
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Under [the] AEDPA, though, it is a necessary premise that the two
questions are different. . . . A state court must be granted a deference
and latitude that are not in operation when the case involves review
under the Strickland standard itself.
Harrington v. Richter, 562 U.S. 86, 101 (2011).
Applying that deferential standard, the Magistrate Judge concluded that
Petitioner fell short of demonstrating that the state court’s decision was contrary
to federal law or was based on an unreasonable determination of the facts. In
reaching that conclusion, the Magistrate Judge opined:
Ahmed’s claim as it was presented in the state court and in this Court
is filled with statements that begin with “Ahmed accused . . .,” “Ahmed
claimed . . .,” “Ahmed asserted . . .,” “Ahmed believed . . .,” and the
like (Appendix, Vol. 3 at 287-97; Petition, Doc. No. 35 at PageID 199207), but the Court notes that Ahmed’s belief or claim or assertion of
something does not establish it as fact upon which the state court may
act, or this Court rely.
That Ahmed lodged numerous and far-fetched accusations against
his trial counsel reflects more on his own inability to cooperate with
counsel than on counsel’s ability to represent him adequately.
Ahmed’s filing of the lawsuit against his trial counsel in federal court
was determined by the state court to likely have been for the very
purpose of creating a conflict of interest in hopes of having them
removed from his case, and Ahmed does not explain how that
determination was unreasonable under federal law or based upon an
unreasonable determination of the facts as they existed at the time of
the state court’s decision.
R&R, ECF No. 88, at PAGEID # 2169.
In his Corrected Objections, Petitioner seeks to introduce a new factual
basis for his second ground for relief. Petitioner argues “[e]very lawyer appointed
to represent Ahmed had at least a financial conflict that weighed against pursuing
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Ahmed’s right to hire counsel of his own choosing.” ECF No. 150, at PAGEID
# 10455. According to Petitioner:
Ahmed’s appointed counsel were conflicted due to the financial
detriment they faced if they pursued their own replacement with
counsel of Ahmed’s choice. In addition, they were conflicted because
they believed that their replacement was likely, and thus were not [ ]
actively pursuing Ahmed’s other trial interests. Moreover, by
accepting appointment in the face of Ahmed’s clear and repeated
statements that he did not want appointed counsel, they entered the
case, not as his agents, but as state actors working in opposition to
his desire to hire his own counsel and to insist[] on his speedy trial
rights. The fact that Ahmed filed a lawsuit alleging that the appointed
lawyers were violating his civil rights was to be expected under the
circumstances. Ahmed had nowhere to turn except to another court.
Judge Sargus, although she was fully aware that Ahmed was not
indigent, withheld and controlled his funds despite his multiple
attempts to access and use them to hire counsel. His lawyers were
not representing his interest in hiring other counsel.
Corrected Obj., ECF No. 150, at PAGEID 10456. The Court notes that this new
argument was not set forth in the Petition as part of the second claim for relief,
was not included on direct appeal as part of Petitioner’s second proposition of
law, and was not addressed by the Magistrate Judge in connection with this
claim for relief in the R&R. On direct appeal, the factual basis underlying his
conflict of interest claim was that Petitioner did not trust his appointed counsel
and felt they were not working on his case. Petitioner alleged that counsel failed
to meet with him, withheld discovery, failed to review evidence, and did not
consult him about continuances.
Respondent characterizes Petitioner’s new argument regarding a financial
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conflict of interest as an attempt “to transform his conflict of interest claim into the
choice of counsel claim that he did not fairly present to the Ohio Supreme Court.”
Response, ECF No. 151, at PAGEID # 10516. This Court is inclined to agree.
To the extent Petitioner argues his appointed counsel operated under a financial
conflict of interest with an agenda to maintain their appointment, this factual basis
is procedurally defaulted because it was not presented to the state courts.
Furthermore, Petitioner’s argument is conclusory, speculative and not supported
by facts of record. Petitioner points to nothing in the record to support his broad
assertion that his counsel labored under a constitutionally infirm conflict of
interest simply because they did not want their “employment as court appointed
counsel” to be terminated by the trial court. Corrected Obj, ECF No. 150 at
PAGEID # 10402. In fact, the state-court record contradicts Petitioner’s claim.
During a January 8, 2001 hearing, Attorney Hershey stated:
MR. HERSHEY: Early in this case, it occurred to Mr. Olivito
and I that Mr. Ahmed did have a right to hire his own attorney. I
redrafted his pro se motions, obtained his signature which he at first
refused to sign, filed them in Judge Solovan’s court, filed them in this
court, filed them in the juvenile court and obtained clear court orders
his money was to be released. He immediately appealed Judge
Solovan for doing that, became extremely angry at me and informed
Mr. Olivito and I that we had absolutely no business interfering in his
affairs in these other matters. And from that point on, it’s been up to
Mr. Ahmed. We have had nothing more to do with the issue.
ECF No. 92-1, at PAGEID # 7628.
With respect to the conflict of interest allegations Petitioner actually
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presented to the state court, the Ohio Supreme Court found Petitioner’s
arguments unpersuasive. The Ohio Supreme Court determined that the trial
court carefully considered Petitioner’s complaints regarding counsel and found
them to be unfounded. Petitioner has not established that this determination was
unreasonable under federal law or based on an unreasonable determination of
the facts. As such, the Court OVERRULES Petitioner’s Corrected Objections,
ECF No. 150, ADOPTS the R&R of the Magistrate Judge, ECF No. 88, and
hereby DENIES Petitioner’s second claim for relief. The Court also declines to
issue a COA, because reasonable jurists would not find the Court’s resolution of
this claim debatable or wrong. Petitioner’s Second Claim for Relief is not
deserving of further review on appeal.
Third Claim for Relief: Denial of the Right to Self-Representation
In his Third Claim for Relief, Petitioner argues he was denied his Sixth and
Fourteenth Amendment rights to represent himself at trial. Petition, ECF No. 351, at PAGEID # 214. As an initial matter, the Court notes that in this claim,
Petitioner asserts the trial court violated his right to self-representation not only
during the penalty phase of his trial but during the pre-trial proceedings and guilt
phase as well. Petition, ECF No. 35-1, at PAGEID # 214. In the R&R, the
Magistrate Judge observed that on direct appeal to the Ohio Supreme Court,
Petitioner’s allegations regarding the denial of his right to self-representation
concerned only the penalty phase. Petitioner never presented the state courts
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with any arguments or claims asserting the denial of his right to selfrepresentation in connection with the pre-trial proceedings or the guilt phase of
his trial. The Magistrate Judge opined:
Respondent acknowledges the claim has been properly preserved for
habeas corpus review, but argues it is nevertheless meritless. (ROW,
Doc. No. 61 at PageID 977-980.) . . . .
Respondent is only partially correct in stating that Ahmed raised the
instant claim on direct appeal in the state court. There, Ahmed’s claim
that he was denied his right to proceed pro se was explicitly limited to
the mitigation phase of his trial (Appendix, Vol. 3 at 426-28), whereas
here, the claim has expanded to include both phases of the trial
(Petition, Doc. No. 35 at PageID 214-17). Although a colorable
argument could be made that Ahmed procedurally defaulted the part
of the instant claim relating to the guilt phase of his trial, Respondent
has not suggested that any part of Ahmed’s claim has been defaulted.
Generally, procedural default is an affirmative defense that must be
asserted by a respondent at the earliest opportunity or it will be
waived. Trest v. Cain, 522 U.S. 87, 89 (1997). While a federal court
is not required to sua sponte invoke procedural default when a
respondent has failed to do so, there is no prohibition against doing
so, either. Id. at 89-90; Sowell v. Bradshaw, 372 F.3d 821, 830 (6th
Cir. 2004); Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000).
This Court has been reluctant to raise the defense sua sponte except
in cases where an expressly defederalized claim was presented to the
state courts. See Sheppard v. Bagley, 604 F.Supp.2d 1003, 10081013 (S.D. Ohio 2009). That is not the situation here, and because of
the seriousness of the penalty Ahmed faces, the Court will exercise
its discretion not to raise the procedural defense sua sponte.
Where a respondent does not advance a procedural default defense
respecting a habeas claim never presented to the state court, a
federal court has an opportunity to address the claim de novo. “If
deference to the state court is inapplicable . . ., we ‘exercise our
independent judgment’ and review the claim de novo.” McKenzie v.
Smith, 326 F.3d 721, 727 (6th Cir. 2003), quoting Hain v. Gibson, 287
F.3d 1224, 1229 (10th Cir. 2002). Accordingly, to the extent Ahmed
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argues that he was denied his right to represent himself in the guilt
phase of his capital trial, this Court will address his claim de novo.
That part of his claim relating to the mitigation phase of his trial, of
course, will be considered under the familiar standard set forth in the
AEDPA.
R&R, ECF No. 88, at PAGEID # 2171-72. Accordingly, the Magistrate Judge
reviewed the portion of Petitioner’s third ground for relief asserting the denial of
his right to self representation during the pre-trial proceedings and guilt phase de
novo and the allegations concerning the mitigation phase through the deferential
lens required by the AEDPA.
The right to self-representation is firmly rooted in the Sixth and Fourteenth
Amendments to the United States Constitution:
It is undeniable that, in most criminal prosecutions defendants could
better defend with counsel’s guidance than by their own unskilled
efforts. But where the defendant will not voluntarily accept
representation by counsel, the potential advantage of a lawyer’s
training and experience can be realized, if at all, only imperfectly. To
force a lawyer on a defendant can only lead him to believe that the
law contrives against him. Moreover, it is not inconceivable that in
some rare instances, the defendant might in fact present his case
more effectively by conducting his own defense. Personal liberties are
not rooted in the law of averages. The right to defend is personal. The
defendant, and not his lawyer or the State, will bear the personal
consequences of a conviction. It is the defendant, therefore, who must
be free personally to decide whether in his particular case counsel is
to his advantage. And although he may conduct his own defense
ultimately to his own detriment, his choice must be honored out of ‘that
respect for the individual which is the lifeblood of the law.’
Faretta v. California, 422 U.S. 806, 834 (1975) (citing Illinois v. Allen, 397 U.S.
337, 250-51 (1970)). Although the right to self representation exists where a
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defendant has voluntarily and intelligently elected to do so, the right is not
absolute. As the Magistrate Judge noted:
Criminal defendants may not use the courtroom to engage in
“deliberate disruption . . . [or] serious and obstructionist misconduct,”
id. at 834 n.46, and must be “able and willing abide [sic] by the rules
of procedure and courtroom protocol,” McKaskle v. Wiggins, 465 U.S.
168, 173 (1984). “[T]he 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.” Martinez v. Court of Appeal of California,
Fourth Appellate Dist., 528 U.S. 152, 162 (2000), see also Sell v.
United States, 539 U.S. 166, 180 (2003) (observing that “the
Government has a concomitant, constitutionally essential interest in
assuring that the defendant’s trial is a fair one”). Furthermore, any
waiver of the right to counsel, for that is what the decision to represent
one’s self is, must be knowing, intelligent, and unequivocal. Faretta,
422 U.S. at 835. When the right to proceed pro se is properly invoked
and a trial court denies the request, the denial is per se reversible
error. McKaskle, 465 U.S. at 177 n.6.
R&R, ECF No. 88, at PAGEID # 2178-79.
In rejecting the pre-trial and guilt phase portion of Petitioner’s third ground
for relief, the Magistrate Judge concluded that Petitioner had not attempted to
represent himself but had instead vacillated between wanting appointed counsel
discharged and replaced and seeking hybrid representation. With respect to the
pre-trial proceedings, Petitioner asserts that his intent to waive his right to
counsel was evident during a January 2, 2001, hearing. In the R&R, the
Magistrate Judge determined that no such request was made:
[Petitioner] cites to pages eight through eighteen of the transcript of a
January 2, 2001, hearing as supporting his claim, but those pages
reveal that what Ahmed was actually seeking is discharge of his
appointed counsel, Hershey and Olivito, because he had retained
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private counsel, Carpino. (Trial Tr., Vol. 3 at 8-18.) Carpino
incongruously stated that he wanted to be appointed as a third
counsel in addition to Hershey and Olivito and that he wanted to be
appointed as a friend of the court. Id. at 8. Ahmed suggested that he
could represent himself pro se as well as having Carpino retained as
his counsel, in other words, he requested hybrid representation, which
the court denied. Id. at 11-12. Requesting hybrid representation is
not the same as requesting to represent one’s self, and Ahmed’s
argument that he requested pro se status within the pages of the
transcripts he cited is disingenuous.
R&R, ECF No. 88, at PAGEID # 2173. Regarding a September 6, 2000, hearing,
the Magistrate Judge concluded that although Petitioner sought to submit his
own motion addressing a litany of issues including, but not limited to, voir dire,
the exclusion of photographs, and his request to view the crime scene before it
was cleaned, Petitioner made no request to proceed pro se. Id. at PAGEID
# 2174. As to the January 8, 2001, hearing, the Magistrate Judge opined that
Petitioner had sought to discharge his court-appointed attorneys but did not
request to proceed pro se.
In his Corrected Objections, Petitioner does not attempt to refute the
Magistrate Judge’s de novo findings regarding whether he sought to definitively
assert his right to self representation at the pre-trial and guilt phases. Instead,
Petitioner reiterates previous arguments and asserts that he attempted to
proceed pro se by filing several pro se motions, wherein he “sought to represent
himself in these motions for limited purposes in order to be able to hire his
counsel of choice and to preserve objections his trial lawyers were not making.”
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Corrected Obj., ECF No. 150, at PAGEID # 10458-59. Petitioner contends that
“[a]lthough he asked to be able to self-represent for these specific purposes, he
still wanted to hire counsel of choice once he vindicated his right to counsel of
choice and to a speedy trial by representing himself in the specified matters.” Id.
The Court finds that each of the additional instances highlighted by Petitioner in
the Corrected Objections evidence an intention by Petitioner to engage in hybrid
representation, not to knowingly, intelligently and unequivocally waive his right to
counsel. See, e.g., Hearing of January 2, 2001, ECF No. 92-1, at PAGEID
# 7577-78. Because there is no constitutional right to hybrid representation,
Petitioner cannot establish that he is entitled to relief on this part of his third
ground for relief. See McKaskle v. Wiggins, 465 U.S. 168 (1984) (“Faretta does
not require a trial judge to permit ‘hybrid’ representation” and “[a] defendant does
not have a constitutional right to choreograph special appearances by counsel”);
United States v. Cromer, 389 F.3d 662, 682-83 (6th Cir. 2004) (“Because the
assertion of the right to self-representation necessarily involves a waiver of the
constitutional right to counsel, and given the importance of the right to counsel,
we think the wisest course is to require a clear and unequivocal assertion of a
defendant’s right to self-representation before his right to counsel may be
deemed waived.”); Cassano v. Bradshaw, 1:03 CV 1206, 2018 WL 3455531, at
*25 (N.D. Ohio July 18, 2018) (“The Ohio Supreme Court, therefore, reasonably
found that Cassano’s initial demands regarding representation ‘focused
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on hybrid representation,’ to which he had no constitutional right”); Rojas v.
Warden, No. 3:13cv2521, 2015 WL 631183, *7 (N.D. Ohio Feb. 12, 2015) (“A
defendant has a constitutional right to be represented by counsel or to represent
himself during his criminal proceedings, but not both.” (citing United States v.
Mosley, 810 F.2d 93, 98 (6th Cir. 1987))); Randolph v. Cain, 412 F. App’x 654
(5th Cir. 2010) (“Requests that vacillate between self-representation and
representation by counsel are equivocal.”).
With respect to the mitigation phase of trial, the Magistrate Judge
summarized Petitioner’s attempt to represent himself as follows:
At the outset of the mitigation phase of Ahmed’s trial, he repeatedly
requested to waive his right to appointed counsel and to represent
himself for the remainder of his trial. (Trial Tr., Vol. 9 at 10, 33, 34,
35.) The trial judge advised him that he would be required to follow
the same procedural rules as attorneys, that she would not grant a
continuance, and that he would not have a lot of time to talk with the
mitigation witnesses. Id. at 11. She also warned Ahmed that he does
not possess the same knowledge as do his attorneys respecting the
available penalties, the mitigating factors, the aggravating
circumstances, or the weighing process. Id. at 12. She reminded
Ahmed that he had already been found in contempt of court several
times during his trial, and she cautioned that if he engaged in
disorderly or contemptuous conduct, she would remove him from his
own case. Id. at 11. As the judge reviewed the proposed jury
instructions with Ahmed, he rustled papers, and interrupted the judge
to question whether the court composed the proposed instructions or
if the prosecutor had done so. Id. at 23-25. The trial court advised him
that he cannot question the court and that if it was his intent to
represent himself and thwart the rules of procedure, she would not
permit him to proceed pro se. Id. at 25. Ahmed then asked about the
author of the jury instructions again, to which the court responded that
if Ahmed were to ask another question contrary to the rules, she would
hold him in contempt of court. Id. Ahmed continued to interrupt the
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judge and objected to Hershey and Olivito’s continued presence in the
courtroom since he had decided to represent himself. Id. at 29, 33.
The judge asked Ahmed again if he wanted his appointed counsel
discharged and to represent himself, to which Ahmed responded by
repeating his persistent complaint of having been denied his right to
hire counsel of his choice. Id. at 34. The court then overruled Ahmed’s
motion, stating it was false and that the issue of Ahmed’s
dissatisfaction with his appointed counsel had been dealt with
previously. Id. at 35. The court continued to explain selfrepresentation to Ahmed, however, and responded to his complaint
about Hershey and Olivito remaining in the courtroom by saying that
they would be there for Ahmed to consult should he wish to do so. Id.
at 33, 36-37. Finally, the trial court indicated to Ahmed that if he
wanted to proceed pro se, he had to sign a form acknowledging his
rights by a time certain that day. Id. at 37. That time came and went
without Ahmed’s signing the form acknowledging his rights. Id. at 38.
Instead, Ahmed composed a written addendum to the form
contending he was denied his constitutional rights to a continuance
and to self-representation without the presence of his previously
appointed counsel. Id. at 38, 41. When the trial court questioned
Ahmed as to whether he agreed that he was advised of his rights to
self-representation, Ahmed argued that advisement means nothing
when the rights are not given. Id. The court found that Ahmed had not
effectively signed the acknowledgement of rights form and overruled
his motion to proceed pro se. Id. at 43
R&R, ECF No. 88, at PAGEID # 2176-77. See also Trans., ECF No. 92-5, at
PAGEID # 9298-9331.
The Magistrate Judge concluded that this claim was raised on direct
appeal to the Ohio Supreme Court as Petitioner’s thirteenth proposition of law,
and the Ohio Supreme Court rejected the claim on the merits. Specifically, the
Ohio Supreme Court determined:
In his 13th proposition of law, appellant submits that the trial court
deprived him of due process and the right to conduct his own defense
when the court declined to accept his waiver of counsel at the
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beginning of the penalty phase. Appellant contends that Faretta v.
California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562,
guarantees him the right to waive assistance of counsel and proceed
pro se.
If a trial court denies the right of self-representation, when properly
invoked, the denial is per se reversible error. State v. Reed (1996), 74
Ohio St.3d 534, 535, 660 N.E.2d 456, citing McKaskle v.
Wiggins (1984), 465 U.S. 168, 177, 104 S.Ct. 944, 79 L.Ed.2d 122.
However, in this case, the right of self-representation was not properly
invoked. See State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193,
790 N.E.2d 303, ¶ 49–53.
At the beginning of the penalty phase, appellant gave the trial court a
pro se motion “to exercise his right to self representation under the
circumstances and thus hereby discharge the appointed counsels.”
The court explained to appellant the right that he was waiving and
what representing himself would entail. The court then gave appellant
a docket entry to sign that stated: “Being fully advised of my rights, I
hereby elect to represent myself.” Appellant signed the form but also
wrote on the docket entry: “I have not been allowed the rights under
Constitution and as given in Constitution and Crim.R. 10 and 44 to
continuance and representation by selection counsel and even to
represent myself alone without the presence of court appointed
counsels to whom I have sued in the civil case C2–001–0013 in
Federal Court. There has been no defense, no defense witnesses and
almost no investigation to justify 16 months of delay or period before
trial and—.”
The trial court then addressed appellant and repeatedly asked him
whether he understood his rights and wanted to waive them. Appellant
did not give a clear answer. The court then held: “When I read the
comments that you have written on the docket entry, I find that you
have failed to effectively sign the entry that was prepared by the court;
that the soliloquy [sic] has failed and that you have not, in fact, elected
to undertake self representation. We will proceed. Counsel will
represent you.”
The trial court correctly found that appellant did not unequivocally and
explicitly invoke his right to self-representation. See State v.
Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 37–
38. “The constitutional right of self-representation is waived if it is not
timely and unequivocally asserted.” Jackson v. Ylst (C.A.9, 1990),
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921 F.2d 882, 888; see, also, United States v. Frazier–El (C.A.4,
2000), 204 F.3d 553, 558 (assertion of the right of self-representation
“must be * * * clear and unequivocal”).
Given these circumstances, appellant's 13th proposition is not well
taken.
State v. Ahmed, 103 Ohio St. 3d 27, 44-45 (2004).
The Magistrate Judge concluded that the decision of the Ohio Supreme
Court that Petitioner did not unequivocally invoke his right to self-representation
during the penalty phase was entitled to deference under the AEDPA.
Additionally, the Magistrate Judge determined that Petitioner’s unwillingness to
adhere to the rules of court and to conduct himself within the parameters of
courtroom protocols constituted an additional reason to deny his request to self
represent. The Magistrate Judge opined:
Ahmed also argues that the trial court improperly required his waiver
to be in writing. (Traverse, Doc. No. 71 at PageID 1701.) But what the
trial court did is not the primary focus of this Court. Instead, it is how
the Ohio Supreme Court decided the constitutional propriety of the
trial court’s handling of the matter that is at issue. Harrington v.
Richter, 131 S.Ct. 770, 785 (2011). That court merely concluded that
the trial court correctly found Ahmed had not equivocally and explicitly
invoked his right to represent himself in the mitigation phase of his
trial. Ahmed, 103 Ohio St. 3d at 45, 2004-Ohio-4190 at ¶ 107.
Significantly, the state supreme court acknowledged that Ahmed
actually signed the written request to proceed pro se, Ahmed, 103
Ohio St. 3d at 44, 2004-Ohio-4190 at ¶ 105, contrary to the trial court’s
statement on the record that he had not (Trial Tr., Vol. 9 at 38).
In habeas corpus, the petitioner’s burden “must be met by showing
there was no reasonable basis for the state court to deny relief.”
Harrington v. Richter, 131 S.Ct. 770, 784 (2011). Both the trial court
and the Ohio Supreme Court concluded that Ahmed had not
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effectively invoked his right to self representation, presumably
because of his handwritten addendum to the form provided to Ahmed
by the trial court. This Court need not agree with the state court on
that question to deny Ahmed’s claim for habeas corpus relief,
however. “[A]n unreasonable application of federal law is different
from an incorrect application of federal law.” Williams v. Taylor, 529
U.S. 362, 410 (2000). “A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.”
Harrington, 131 S.Ct. at 786, quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004). This Court does not disagree with the state
court’s decision, but even if it were to do so, Ahmed has not
demonstrated that only an unreasonable jurist would agree with the
decision. In addition, another basis for denying Ahmed’s request to
proceed pro se, perhaps even stronger than the first, is apparent in
the record.
As noted above, 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 selfrepresentation 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 cannot
move forward, it is within the trial judge’s discretion to require the
defendant to be represented by counsel”). Ahmed had already been
cited for contempt of court before he requested to proceed pro se in
the mitigation phase of his trial. In numerous hearings, Ahmed
repeatedly interrupted the trial judge, answered questions directed to
others, refused to move on in his argument when instructed to do so
by the court, and used contemptuous language directed at his
attorneys and the court (Hearing of January 2, 2001, Trial Tr., Vol. 3
at 18, 19; Hearing of January 8, 2001, Trial Tr., Vol. 4 at 11, 20, 27,
30-31, 33, 37, 42, 43, 45, 46, 48, 49, 52, 54, 57, 59, 73-74; Hearing
of January 11, 2001, id. at 86, 87; Hearing of February 1, 2001, Trial
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Tr., Vol. 9 at 11), demonstrating a persistent inability or unwillingness
to adhere to the rules of procedure and courtroom protocol. As the
trial judge observed, she had been “heroically patient” with Ahmed
and his numerous and repeated complaints about them, providing him
with multiple opportunities at hearings to air his grievances about his
appointed attorneys, his treatment at the jail, and the trial judge
herself. (Hearing of January 11, 2001, Trial Tr., Vol. 4 at 85.) Still, she
found it necessary to hold Ahmed in contempt of court. (Hearing of
February 1, 2001, Trial Tr., Vol. 9 at 11.) In addition, in presenting his
request to proceed pro se, Ahmed again breached protocol by arguing
about the judge’s decision that appointed counsel would become
stand-by counsel should Ahmed represent himself, challenging the
judge on the origin of the proposed jury instructions to the point of
being threatened with being held in contempt of court again,
interrupting the judge, and arguing with the judge about the difference
between being advised of his rights and being given his rights.
(Hearing of February 1, 2001, Trial Tr., Vol. 9 at 12, 25, 33, 36, 3839.) Thus, even if the state court’s finding that Ahmed had not
effectively invoked his right to self representation were objectively
unreasonable, Ahmed’s demonstrated unwillingness to adhere to the
rules of court and to conduct himself within the parameters of
courtroom protocol would provide a solid ground upon which to deny
his right to represent himself in the mitigation phase of his trial.
R&R, ECF No. 88, at PAGEID # 2179-80.
This Court agrees with the findings of the Magistrate Judge. The decision
of the state courts on this issue is entitled to deference. Furthermore, Ahmed’s
disruptive behavior was an additional reason to deny his request to represent
himself. A review of the hearing discussing his request demonstrates his inability
to accept the rules of court. It is also apparent from that hearing that Petitioner
sought to represent himself in part just so he could call his appointed counsel as
witnesses and subject them to cross-examination. Petitioner’s third claim for
relief lacks merit, and this Court hereby ADOPTS the R&R, OVERRULES
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Petitioner’s Corrected Objections, and declines to issue a COA. Reasonable
jurists would not find the Court’s resolution of Petitioner’s third claim for relief to
be debatable or wrong.
Fifth Claim for Relief: Ineffective Assistance of Appellate Counsel
In his fifth claim for relief, Petitioner argues he was “denied the effective
assistance of appellate counsel when his lawyers failed to raise in his first appeal
of right preserved, constitutional issues, apparent on the face of the record
including the denial of the right to speedy trial, the right to self-representation, the
right to counsel of choice, and trial before a biased or apparently biased judge.”
Corrected Obj., ECF No. 150 at PAGEID # 10403. These claims were raised
before the Ohio Supreme Court in Petitioner’s application to reopen his direct
appeal, however his application for reopening was dismissed as untimely
because Petitioner’s appointed counsel failed to comply with the 90-day filing
deadline. ECF No. 90-6, PAGEID # 4323. The Magistrate Judge concluded that
this procedural rule was not firmly established and regularly followed at the time it
was enforced against Petitioner. R&R, ECF No. 88, at PAGEID # 2189-2191.
As such, the Magistrate Judge reviewed Petitioner’s claims of ineffective
assistance of appellate counsel de novo and determined that sub-claims one
through nine lacked merit and sub-claims ten through thirteen were procedurally
defaulted because they were not raised in the application to reopen. Id. at
PAGEID # 2191-2218.
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In his Corrected Objections, Petitioner contends the Magistrate Judge was
correct in the assessment of the procedural issues but incorrect in the de novo
review of certain sub-parts of his fifth claim for relief. Specifically, Petitioner
objects to the Magistrate Judge’s resolution of the sub-parts challenging
appellate counsel’s failure to raise the denial of counsel of choice (Corrected
Obj., ECF No. 150, at PAGEID # 10470-76), the speedy trial violation (Id. at
PAGEID # 10476-79), the denial of his right to self-representation (Id. at PAGEID
# 10479-80), and his claim that the trial judge was biased (Id. at PAGEID #
10481-82).
It is well settled that appellate counsel’s failure to raise an issue on direct
appeal amounts to the ineffective assistance of counsel “only if a reasonable
probability exists that the inclusion of the issue would have changed the result of
the appeal.” Henness v. Bagley, 644 F.3d 308, 317 (6th Cir. 2011) (citing Wilson
v. Parker, 515 F.3d 682, 707 (6th Cir. 2008)). “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. In
other sections of this Opinion and Order, the Court has considered and rejected
each of the underlying claims that Petitioner argues appellate counsel should
have raised. Because none of the underlying claims have merit, Petitioner
cannot prevail on his claim of ineffective assistance of appellate counsel for
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failing to raise those issues on appeal. The Court ADOPTS the Magistrate
Judge’s R&R as it relates to Petitioner’s fifth claim for relief, R&R ECF No. 88, at
PAGEID # 2186-2218, and hereby DISMISSES this claim in its entirety.
Furthermore, the Court finds that reasonable jurists would not disagree with the
Court’s resolution of the claim and concludes that no COA should issue.
Eighth Claim for Relief: Biased Judge
In his Eighth Claim for Relief, Petitioner argues the trial judge was biased
against him throughout his trial. Petition, ECF No. 35, at PAGEID # 273-77.
Specifically, Petitioner contends he was “tried before a judge who took control of
his funds through defunct divorce proceedings and continued to control his funds
making him unable to hire his own counsel. The judge was intolerant of
Petitioner’s speaking style and accent and created the appearance (and belief in
him) that she was biased against him by cutting him off, telling him to be quiet
and to ‘shut up.’” Corrected Obj., ECF No. 150 at PAGEID # 10403.
The Magistrate Judge concluded that Petitioner’s Eighth Claim for Relief is
procedurally defaulted and that the ineffective assistance of appellate counsel for
failing to raise the claim on direct appeal could not serve as cause and prejudice
to excuse that default. The Magistrate Judge concluded that because the
underlying claim of judicial bias lacks merit, appellate counsel were not
ineffective for failing to raise and preserve the claim on direct appeal. The Court
ADOPTS the Magistrate Judge’s discussion of both the procedural default of this
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claim, R&R, ECF No. 88, at PAGEID # 2228-30, and what amounts to a merits
discussion of the claim in connection with Petitioner’s allegations of ineffective
assistance of appellate counsel, id. at PAGEID # 2201-03. In sum, although
Petitioner alleged bias and sought to disqualify the trial judge through various pro
se documents and complaints, he failed to fairly present this claim to the state
courts on appellate review.
The Court also finds that even if Petitioner had properly raised the claim on
direct appeal, the claim is without merit. In connection with Ahmed’s First Claim
for Relief, this Court adopted the Magistrate Judge’s determination that the trial
judge did not deny Petitioner access to his funds or impede his ability to hire
counsel of choice. Moreover, although Ahmed complains that the trial judge
continuously attempted to silence him, the record reflects that Judge Sargus
exuded patience in her handling of this case and liberally permitted Petitioner to
be heard throughout the proceedings. Hundreds of pages of the transcript reveal
the wide latitude Petitioner had to air his grievances regarding appointed
counsel, his treatment at the jail, and his belief that jail officials were surveilling
his meetings with counsel through ceiling tiles, baseboards, and air vents. See,
e.g., Hearing of Nov. 9, 2000, ECF No. 92-1, at PAGEID # 7498-7554; Hearing of
Jan. 2, 2001, ECF No. 92-1, at PAGEID # 7568-87; Hearing of Jan. 8, 2001, ECF
No. 92-1, at PAGEID # 7588-7705. With respect to the reasonable limits
imposed by the trial court, the Magistrate Judge correctly concluded:
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Judge Sargus’ refusal to permit Ahmed limitless opportunities to
complain about his attorneys, his treatment at the jail, and the bias he
perceived on the judge’s part toward him was understandable and
completely appropriate to maintain some semblance of order in the
court in the face of Ahmed’s obstreperous behavior. That being the
case, Ahmed’s appellate counsel were not derelict in failing to raise a
losing judicial bias claim as error on direct appeal.
R&R, ECF No. 88, at PAGEID # 2203. The Magistrate Judge’s recommendation
is a fair and correct assessment of Petitioner’s claim, and Petitioner has failed to
raise any convincing arguments to the contrary in his objections. The Court
hereby OVERRULES Petitioner’s objections and DISMISSES Petitioner’s Eighth
Claim for Relief as both procedurally defaulted and without merit.
The Magistrate Judge recommended against granting a COA on this issue.
A district court “should not grant a certificate without some substantial reason to
think that the denial of relief might be incorrect.” Moody v. United States, 958
F.3d 485 (6th Cir. 2020). Here, two equally strong reasons exist to deny relief on
this claim, as it is both defaulted and utterly lacking in merit. A COA is not
warranted.
Thirteenth Claim for Relief: Gruesome Photographs
In his Thirteenth Claim for Relief, Petitioner argues that the State
“introduced particularly gory and gruesome photographs that were, at best, of
cumulative probative value and were so likely to induce prejudice against the
accused that he was denied Due Process of Law.” Corrected Obj., ECF No. 150
at PAGEID # 10403. Specifically, Petitioner challenges the admission of a
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videotape and numerous crime scene and autopsy photographs. Petition, ECF
No. 35 at PAGEID # 323-24.
In the R&R, the Magistrate Judge determined that Petitioner properly
presented his gruesome photographs claim to the Ohio Supreme Court, but that
court “did not acknowledge that Ahmed had included his federal claim in his
proposition of law before that court, nor did it rely on any federal law or use any
language in its opinion that might suggest it had considered Ahmed’s due
process arguments.” R&R, ECF No. 88 at PAGEID # 2264. The Magistrate
Judge concluded that the Ohio Supreme Court relied exclusively on state law,
and specifically Ohio R. Evid. 403, in finding that “most of the photographs and
slides and the crime-scene videotape admitted were relevant to prove the killer’s
intent, illustrate witnesses’ testimonies, or give the jury an appreciation of the
nature and circumstances of the crimes.” Id. Because the Ohio Supreme Court
did not address the federal claim Petitioner presented in his direct appeal, the
Magistrate Judge reviewed Petitioner’s Thirteenth Claim for Relief de novo,
rather than deferentially. Id.
The Magistrate Judge cited the Ohio Supreme Court’s description of the
materials at issue, a description Petitioner does not challenge:
Eight crime scene photos were admitted over appellant’s objections,
and they are gruesome. State’s Exhibit 6 depicts the body of Abdul
Bhatti on the garage floor. State’s Exhibit 15 shows the doorway area
between the basement and garage where the bodies of Ruhie and
Abdul can partially be seen. State’s Exhibit 16 depicts the bodies of
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Lubaina, Ruhie, and Nasira on the basement floor. . . . State’s
Exhibits 17, 18, 19, and 20 are individual close-up photos of the heads
of the four murder victims. State’s Exhibit 21 is a crime-scene
videotape, and portions of it are repetitive of the crime-scene photos.
...
Appellant also claims that he was prejudiced by the admission of the
autopsy slides of the four victims. . . .
Many of the autopsy slides are gruesome.
State v. Ahmed, 103 Ohio St. 3d at 42-43.
In rejecting Petitioner’s claim, the Magistrate Judge compiled and cited a
laundry list of federal cases rejecting due process claims involving the admission
of gruesome evidence:
The Sixth Circuit Court of Appeals has rejected claims that the
admission of gruesome or repetitive evidence is a violation of a
defendant's right to due process on numerous occasions. Franklin v.
Bradshaw, 695 F.3d 439, 456–57 (6th Cir. 2012) (rejecting claim that
autopsy photographs of charred, disfigured, and gory remains of
victims denied petitioner the fundamental right to a fair trial); Biros v.
Bagley, 422 F.3d 379, 391 (6th Cir. 2005) (holding admittedly
gruesome photographs of victim's severed head, severed breast, and
torso depicting pre-and post-mortem injuries demonstrated
defendant's intent to kill and mutilate, and that court's limiting
instruction was sufficient to guarantee fundamentally fair trial); Cooey
v. Coyle, 289 F.3d 882, 893–94 (6th Cir. 2002) (finding gruesome and
duplicative photographs were highly probative and did not “raise the
spectre of fundamental fairness such as to violate federal due process
of law”). Many other circuit courts of appeals have done so as
well. Lyons v. Brady, 666 F.3d 51, 54–56 (1st Cir. 2012); Wilson v.
Sirmons, 536 F.3d 1064, 1114–16 (10th Cir. 2008); Rousan v.
Roper, 436 F.3d 951, 958–59 (8th Cir. 2006); Woods v. Johnson, 75
F.3d 1017, 1038–39 (5th Cir. 1996); Gomez v. Ahitow, 29 F.3d 1128,
1139–40 (7th Cir. 1994); Batchelor v. Cupp, 693 F.2d 859, 865 (9th
Cir. 982).
R&R, ECF No. 88 at PAGEID # 2267. In the time since the Magistrate Judge
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issued the R&R, the law has not become more favorable to Petitioner.
The Magistrate Judge determined that although the crime scene
photographs and videotape were gruesome, many of the photographs were no
more gruesome than photographs introduced by the defense, which also
portrayed all three bodies, and “in fact appear to be if not identical, then nearly so
to some of the challenged photographs (Defense Exhibits 10, 18, Appendix, Vol.
13 at 11, 19).” R&R, ECF No. 88, at PAGEID # 2267. The Magistrate Judge
noted that while the close-up photographs of the heads of the four victims are
quite gruesome, State's Exhibits 17–20; Appendix, Vol. 12 at 139–42, the photos
“were used at trial to identify the victims and to establish the state of the crime
scene at the time it was discovered. (Trial Tr., Vol. 7 at 218–20, 239–47.).” R&R,
ECF No. 88, at PAGEID 2268. Additionally, the Magistrate Judge determined the
photos “show the positions of the victims' bodies relative to each other, and
establish the nature and extent of the injuries to them.” Id. The Magistrate
Judge concluded:
As for the crime scene videotape, it too is gruesome in parts.
(State's Exhibit 21, Appendix, Vol. 12, following index, immediately
before page 1.) It was offered by the State for the purpose of more
fully illustrating the bodies' spatial relationship to each other and
various other objects of evidentiary value, such as Ahmed Bhatti's
eyeglasses on the garage floor, blood droplets throughout the scene
and in the kitchen of the house, and bloody footprints found at the
scene and their location relative to the bodies and other
evidence. Id. The videotape does not linger unnecessarily over the
bodies, the copious quantities of the victims’ blood, or the slashed
throats of the four victims. Id. The videotape, too, was used in
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conjunction with testimony from the detective who was one of the first
to enter the crime scene. (Trial Tr., Vol. 7 at 247–52.)
Id. at PAGEID # 2268.
In the Corrected Objections, Petitioner rehashes previous arguments
concerning the gruesome nature of the photographs and argues it was error for
the trial court to re-admit certain photos during the sentencing phase. None of
his arguments merit further discussion by this Court, with the exception of the
autopsy photos. The Magistrate Judge noted in the R&R that the autopsy slides
were unavailable for review, and no photographic reproductions of those images
had been provided. Those images have since been provided to the Court. On
August 19, 2019, the Warden-Respondent manually filed one compact disc
containing the autopsy photos that were admitted at trial as State’s Exhibits 163
through 166. ECF No. 143. State’s Exhibit 163 is a slide containing thirteen
photographs taken as part of the autopsy of Abdul Bhatti. Exhibit 164 is a slide
containing seventeen photographs from the autopsy of Ruhie Ahmed. Exhibit
165 is a slide containing ten photographs from the autopsy of Nasira Ahmed.
Finally, Exhibit 166 is a slide containing fourteen photographs from the autopsy
of Lubaina Bhatti Ahmed.
The Court has reviewed each set of photographs and finds Petitioner’s
objections lack merit. Dr. Keith Norton, the forensic pathologist who conducted
the four autopsies, testified regarding the extensive and numerous injuries
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inflicted upon each of the four decedents. Tr. Trans., ECF No. 92-4, at PAGEID
# 8957-9009. Dr. Norton testified the photographs were helpful to illustrate his
findings. Id. at PAGEID # 8966. During his testimony, Dr. Norton utilized the
photographs when describing the vast number of injuries as well as the nature
and extent of the wounds. The photographs illustrated the fatal wounds, the
manner of death, and the presence of defensive wounds on all but Nasira.
Furthermore, the photographs were probative of Petitioner’s intent. For example,
the photographs illustrated Dr. Norton’s testimony that Lubaina Ahmed received
what could be characterized as a disproportionate number of injuries in relation
to the other deceased victims. Additionally, the photographs illustrated the
severity of her neck injury, which was described by Dr. Norton as a ten and onehalf inch long, two and one-half inch deep incised wound or sharp-instrument
wound, “which cut across the voice box, both jugular veins, both carotid arteries,
and then there was a – actually a mark into the spinal column, the back bone
from the front.” ECF No. 92-4 at PAGEID # 8986. The photographs illustrated
additional injuries to Lubaina Ahmed, including eleven defensive wounds and
thirty-three scalp lacerations associated with blunt force trauma. ECF No. 92-4,
at PAGEID # 8990-97. Likewise, the photographs illustrated Petitioner’s intent
and the nature of the injuries to Ruhie Ahmed, which included twenty-six scalp
lacerations, at least seven of which were lethal, as well as a significant incised
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half inches deep, that injured the voice box, carotid artery and jugular vein. ECF
No. 92-4, at PAGEID # 8977-85.
In sum, the Court ADOPTS the R&R of the Magistrate Judge with respect
to Petitioner’s gruesome photographs claim. Habeas relief is not available for a
state court’s evidentiary ruling unless the ruling was “so egregious that it resulted
in a denial of fundamental fairness.” Giles v. Schotten, 449 F.3d 698, 704 (6th
Cir. 2006); see also Estelle v. McGuire, 502 U.S. 62, 68 (1991). Here, Petitioner
has not established that the trial court’s evidentiary rulings with respect to the
photographs or videotape were egregious, or even incorrect. The photographs
were probative of Petitioner’s intent to kill and mutilate the four victims, and they
illustrated the testimony of the pathologist regarding the nature and number of
injuries. Likewise, the crime scene photographs and videotape discussed in
detail by the Magistrate Judge were indicative of the spacial relationship of the
bodies at the crime scene, both in relation to each other and to other objects of
evidentiary value, such as bloody footprints and blood droplets. That evidence
also helped to illustrate the testimony of the first officers on the scene.
The Court hereby DENIES Petitioner’s Thirteenth Claim for Relief as
without merit and further finds that this issue is not deserving of further attention
on appeal. The Court declines to issue a COA.
Nineteenth Claim for Relief: Speedy Trial
In his Nineteenth Claim for Relief, Petitioner argues the trial court,
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prosecutor, and his trial counsel violated his right to a speedy trial. Petition, ECF
No. 35 at PAGEID # 371-78. According to Petitioner, he was “denied his right to
a speedy trial because the trial judge took control of his funds and made it
impossible for him to hire his counsel of choice and appointed counsel against
Petitioner’s wishes who failed to investigate and conduct his defense as he
wished, who failed to safeguard his right to a speedy trial, and who failed to
pursue his right to counsel of choice.” Corrected Obj., ECF No. 150 at PAGEID
# 10404.
The Magistrate Judge determined Petitioner procedurally defaulted his
Nineteenth Claim for Relief by failing to raise it on direct appeal and that the
ineffective assistance of appellate counsel could not serve as cause and
prejudice sufficient to excuse that default. R&R, ECF No. 88, at PAGEID # 2295.
In so finding, the Magistrate Judge considered the merits of Petitioner’s
underlying speedy trial claim to the extent necessary to determine whether
appellate counsel were ineffective for failing to raise the matter as error on direct
appeal. The Magistrate Judge concluded the claim, had it been raised, was
meritless, which in turn means that appellate counsel were not ineffective for
omitting the claim on direct appeal. R&R, ECF No. 88, at PAGEID # 2295.
In considering the underlying merits of Petitioner’s speedy trial claim as it
related to whether appellate counsel were ineffective for failing to raise the issue,
the Magistrate Judge applied the Supreme Court’s flexible four-part balancing
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test for examining whether a defendant’s federal constitutional right to a speedy
trial has been violated: (1) the length of the delay; (2) the reasons for the delay;
(3) whether the defendant asserted his right to a speedy trial; and (4) whether
prejudice occurred. Barker v. Wingo, 407 U.S. 514, 530 (1972). “No one factor
is dispositive. Rather, they are related factors that must be considered together
with any other relevant circumstances.” Brown v. Romanowski, 845 F.3d 703,
712 (6th Cir. 2017) (citing Barker, 407 U.S. at 533). Furthermore, “[e]ven if all
four Barker factors are satisfied, a court is not required to conclude that a
defendant’s speedy trial right has been violated.” Rice v. Warden, 786 F. App’x
32, 35 (6th Cir. 2019).
Here, the Magistrate Judge noted that the length of delay in this case was
approximately sixteen months, calculated from the date of Petitioner’s September
11, 1999, arrest until voir dire began on January 16, 2001. A delay that
approaches one year triggers a court’s consideration of the rest of the Barker
factors. With respect to the second factor, the Magistrate Judge determined that
none of the continuances were requested by the prosecution. Instead, each
continuance was requested by defense counsel, and “because ‘the attorney is
the [defendant’s] agent when acting, or failing to act, in furtherance of the
litigation,’ delay caused by the defendant’s counsel is also charged against the
defendant, whether counsel is retained or appointed.” R&R, ECF No. 88, at
PAGEID # 2197 (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)).
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Specifically, the Magistrate Judge concluded:
None of defense counsel’s requests for continuances was
unreasonable. Approximately one month of delay was requested and
granted because defense counsel stated it was impracticable to
defend a defendant charged with four aggravated murders and facing
the death penalty three months after the crimes. That is indubitably
an accurate assessment and implies conscientiousness rather than
needless delay. One year of the delays can be attributed to the time
necessary for the defense to complete DNA testing. On day of the
delay was attributable to the federal holiday marking the birth of Dr.
Martin Luther King, Jr. Although Ahmed at times expressed
opposition to the continuances, none of counsel’s requests were
unreasonable and nothing in the record suggests that counsel had
any nefarious or ulterior motive in requesting them. Even if the
reasons given by counsel had not fully explained why any particular
continuance was required, Ahmed himself caused his attorneys to
expend significant pre-trial time on collateral matters, such as
Ahmed’s repeated attempts to substitute counsel, which were
sometimes effective; his lawsuits naming everyone involved in his
legal matters (including those whose connection was solely
tangential) as either defendants or witnesses; his seeking to have the
trial judge removed from his case; his constant complaining about
having been deprived of access to his own money; and his insistence
that extraordinary measures be taken to assure the confidentiality of
his conversations with counsel at the jail. “Just as a State’s ‘deliberate
attempt to delay the trial in order to hamper the defense should be
weighted heavily against the [State],’ so too should a defendant’s
deliberate attempt to disrupt proceedings be weighed heavily against
the defendant.” Vermont, 556 U.S. at 93, quoting Barker, 407 U.S. at
531. Thus, any delay unaccounted for by counsel’s need to
adequately prepare for trial would be taxed to Ahmed’s contumacy
and his attempts to derail his trial. The second Barker factor weighs
heavily against Ahmed.
R&R, ECF No. 88, at PAGEID # 2197-98. With respect to the remaining factors,
the Magistrate Judge concluded the third factor weighed in favor of Petitioner,
because he objected to continuance requests. As to the last factor—prejudice—
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the Magistrate Judge noted “Ahmed failed to demonstrate, as opposed to
alleging, prejudice from the delays.” Id. at PAGEID # 2200.
In his Corrected Objections, Petitioner argues that in the context of a
speedy trial violation, the prejudice is “personal” and “not always readily
identifiable.” Corrected Obj., ECF No. 150, at PAGEID # 10505. Specifically,
Petitioner asserts he suffered oppressive pre-trial incarceration, was assaulted
while in jail awaiting trial, was denied food at the conclusion of a religious fast,
and lost his apartment while waiting in jail for sixteen months before trial. Id. at
PAGEID # 10507. The Court does not find Petitioner’s arguments persuasive.
The Supreme Court has identified three relevant forms of prejudice in
speedy trial cases: (1) “oppressive pretrial incarceration”; (2) “anxiety and
concern of the accused”; and (3) “‘the possibility that [the accused's] defense will
be impaired’ by dimming memories and loss of exculpatory evidence.” Doggett v.
United States, 505 U.S. 647, 654 (1992) (quoting Barker, 407 U.S. at 532). “Of
these, the most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.” Barker,
407 U.S. at 532. See also United States v. Howard, 218 F.3d 556, 564 (6th Cir.
2000) (“a defendant who cannot demonstrate how his defense was prejudiced
with specificity will not make out a speedy trial claim no matter how great the
ensuing delay.”). In the instant case, Petitioner does not allege the third form of
prejudice and fails to assert how the pretrial delay impaired his defense or
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resulted in the loss of exculpatory evidence. Petitioner’s claimed prejudice,
particularly the loss of his apartment, is less than substantial.
Here, the reasons for the delay in trial were largely due to the conduct of
Petitioner himself or Petitioner’s counsel—not dilatory conduct by the state.
Counsel sought reasonable continuance requests to prepare to defend a case of
mass murder involving the death penalty. While attempting to remain focused on
the defense of Petitioner, counsel were continually forced to address peripheral
matters including Petitioner’s unfounded and hostile allegations towards them,
Petitioner’s attempts to sue them, Petitioner’s constant complaints of
conspiracies, and his overall disruption of the proceedings. The Court finds
Petitioner’s pre-trial delay was not unreasonable, Petitioner did not suffer
prejudice as a result, and the Court rejects any claim that Petitioner was denied
his constitutional right to a speedy trial.
In sum, Petitioner procedurally defaulted his speedy trial claim by failing to
raise it on direct appeal. Petitioner cannot establish the ineffective assistance of
appellate counsel as cause and prejudice to excuse that default because the
claim would not have been successful on the merits had appellate counsel raised
it. The Court hereby ADOPTS the R&R of the Magistrate Judge, set forth at ECF
No. 88 at PAGEID # 2194-2200, 2294-95, and OVERRULES Petitioner’s
objections. The Court finds that reasonable jurists would not find the Court’s
resolution of Petitioner’s Nineteenth Claim for relief to be debatable or wrong,
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and Petitioner is not entitled to a COA.
Twenty-Seventh Claim for Relief: Cumulative Error
In his Twenty-Seventh Claim for Relief, Petitioner argues “[t]he cumulative
prejudice from the errors at his trial denied Petitioner a fair trial and Due Process
of law.” Corrected Obj., ECF No. 150 at PAGEID # 10404. The Magistrate
Judge summarily denied this claim, finding cumulative error is not a basis for
habeas corpus relief, even in a capital case. R&R, ECF No. 88, at PAGEID
# 2317. The Magistrate Judge’s decision is supported by binding Sixth Circuit
precedent. See Webster v. Horton, 795 F. App’x 322, 327-28 (6th Cir. 2019)
(“Webster argued that the trial court’s cumulative errors entitled him to habeas
relief. As stated by the district court, such claims of cumulated trial errors are not
cognizable under § 2254.”). See also Moreland v. Bradshaw, 699 F.3d 908, 931
(6th Cir. 2012) (“‘[P]ost-AEDPA, not even constitutional errors that would not
individually support habeas relief can be cumulated to support habeas relief.’”)
(quoting Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir. 2010)); Sheppard v.
Bagley, 657 F.3d 338, 348 (6th Cir. 2011) (“Finally, Sheppard argues that the
cumulative effect of these errors rendered his trial fundamentally unfair. PostAEDPA, that claim is not cognizable.”); Moore v. Parker, 425 F.3d 250, 256 (6th
Cir. 2005) (“Because Moore can cite no Supreme Court precedent obligating the
state court to consider the alleged trial errors cumulatively, we cannot grant relief
on this ground.”); Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002) (death
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penalty case noting “[t]he Supreme Court has not held that distinct constitutional
claims can be cumulated to grant habeas relief.”). Furthermore, there is no error
to cumulate as each of Petitioner’s claims for relief lack merit. Petitioner’s
objection to the decision of the Magistrate Judge is OVERRULED, and because
reasonable jurists would not find this decision debatable or wrong, the Court will
not issue a COA as to Petitioner’s Twenty-Seventh Claim for Relief.
IV.
CONCLUSION
For the foregoing reasons, the Court ADOPTS and AFFIRMS the
Magistrate Judge’s R&R, ECF No. 88, and OVERRULES Petitioner’s Corrected
Objections, ECF No. 150. The Court DENIES the petition for a writ of habeas
corpus and DISMISSES this action WITH PREJUDICE.
Furthermore, the Court DENIES Petitioner a certificate of appealability and
hereby CERTIFIES that any appeal in this matter would be objectively frivolous.
IT IS SO ORDERED.
s/Michael H. Watson
__________________________________
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
Case No. 2:07-cv-658
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