McKnight v. Warden, Ohio State Penitentiary

Filing 305

DECISION AND ORDER DENYING PETITIONER'S MOTION FOR AUTHORIZATION TO APPEAR IN ANCILLARY STATE COURT LITIGATION 287 . Signed by Magistrate Judge Michael R. Merz on 8/28/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
GREGORY McKNIGHT
:
Petitioner,

Case No. 2:09-cv-059
:

District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

-vsDAVID BOBBY, Warden,
:
Respondent.

DECISION AND ORDER DENYING PETITIONER’S MOTION FOR
AUTHORIZATION TO APPEAR IN ANCILLARY STATE COURT
LITIGATION
This capital habeas corpus case is before the Court on Petitioner’s Motion for Authorization
to Appear in Ancillary State Court Litigation (ECF No. 287). The Warden opposes the Motion
(ECF No. 288) and Petitioner has filed a Reply in Support (ECF No. 296).
Petitioner wishes to exhaust in state court his claims that racial bias infected jury
deliberations in both phases of his capital trial. To do so, he intends to file a motion for new trial
under Ohio R. Crim. P. 33, citing both newly discovered evidence under Ohio R. Crim. P. 33(A)(6)
and “various legal errors” under Ohio R. Crim. P. 33(A)(1) through (A)(5) (Motion, ECF No. 287,
PageID 17612). What these asserted legal errors might be, Petitioner has not disclosed to this
Court. Presumably the newly discovered evidence would consist at least in part of the evidence
of juror bias presented to this Court in support of McKnight’s Motion to Amend (ECF No. 271;
redacted version at ECF No. 300).
At the outset of this case, the Court appointed Assistant Federal Public Defenders David

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Stebbins and Sharon Hicks to represent McKnight pursuant to 18 U.S.C. §§ 3006A and 3599 and
the Court’s Criminal Justice Act Plan (ECF No. 4, PageID 19 and notation order granting). In
seeking expansion of that appointment, McKnight relies on the Supreme Court’s interpretation of
§ 3599 in Harbison v. Bell, 556 U.S. 180 (2009). The Warden’s opposition does not discuss
Harbison and Petitioner’s Reply adds nothing on the scope of appointment question.
18 U.S.C. § 3599(e) provides:
(e) Unless replaced by similarly qualified counsel upon the
attorney's own motion or upon motion of the defendant, each
attorney so appointed shall represent the defendant throughout every
subsequent stage of available judicial proceedings, including pretrial
proceedings, trial, sentencing, motions for new trial, appeals,
applications for writ of certiorari to the Supreme Court of the United
States, and all available post-conviction process, together with
applications for stays of execution and other appropriate motions
and procedures, and shall also represent the defendant in such
competency proceedings and proceedings for executive or other
clemency as may be available to the defendant.
In Harbison the Supreme Court confirmed what the plain text says: an appointment extends to
state clemency proceedings. Chief Justice Roberts was able to concur in the judgment because
“the best reading of the statute avoids the problem: Section 3599(e)'s reference to "subsequent
stage[s] of available judicial proceedings" does not include state judicial proceedings after federal
habeas, because those are more properly regarded as new judicial proceedings.” McKnight’s new
trial motion will not be a clemency application, but it will also not be “after” federal habeas.
In Irick v. Bell, 636 F.3d 289 (6th Cir. 2011), a capital habeas petitioner sought expansion
of the scope of representation to include competency-to-be-executed proceedings and the
reopening of his state post-conviction proceedings. As to the first branch of the request, the circuit
court found it barred by § 3599(a)(2) which provided for appointment only when the state declined
to appoint. As to the second branch, the proposed reopening was on state grounds only and not to
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exhaust a federal habeas claim. The parties have not discussed the application of Irick or other
precedent from Sixth Circuit courts interpreting § 3599(e).
In Hill v. Mitchell, Case No. 1:98-cv-452, 2009 U.S. Dist. LEXIS 87542 (S.D. Ohio Sept.
4, 2009), cited approvingly in Irick, Judge Sargus of this Court held that § 3599(e) did not authorize
appointment in an Atkins post-conviction proceeding in Ohio under Ohio Revised Code § 2953.21
because Ohio Revised Code § 2953.21(I) required appointment of counsel in such a case. The
undersigned followed Hill in denying expansion of the scope of appointment for a successive postconviction petition in Conway v. Houk, Case No. 3:07-cv-345 (ECF No. 139, Dec. 21, 2011).
However, in Gapen v. Bobby, Case No. 3:08-cv-280, 2013 U.S. Dist. LEXIS 145415 (S.D. Ohio
Oct. 8, 2013)(Merz, M.J.), the Court held the scope could be expanded to a motion for new trial
because Ohio law did not provide for appointment of counsel in such cases, citing State v. Clumm,
Case No. 08CA32, 2010 WL 364460 (Ohio App. 4th Dist. Jan. 28, 2010). In Jackson v. Bradshaw,
Case No 2:03-cv-983, 2017 U.S. Dist. LEXIS 69910 at *2-3 (S.D. Ohio May 8, 2017), Judge Smith
of this Court refused to expand representation to state proceedings to “exhaust an actual innocence
claim developed by federal clemency counsel as well as new claims pursuant to Hurst v. Florida,
136 S.Ct. 616, 131 L.Ed.2d 504).” In Jackson, final judgment had been entered six years earlier;
the nature of the state proceedings were “successor postconviction proceedings.”
The precedent does not supply clear guidance. It does not appear McKnight is entitled to
appointment of counsel by the state court, which weighs in favor of expansion. These habeas
proceedings are not complete, which also weighs in favor. On the other hand, McKnight does not
seek to exhaust a claim pleaded in this case because there are no unexhausted claims. While the
Ohio courts are not prohibited by the Constitution from giving Peña-Rodriguez v. Colorado,
___U.S. ___, 137 S.Ct. 855 (2017), the retroactive effect this Court has denied, Petitioner cites no

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Ohio case that has yet done so. His proposed new trial motion in the state courts is more in the
nature of a new judicial proceeding than a subsequent stage of this one.
The Motion for Authorization is accordingly DENIED.

August 28, 2018.
s/ Michael R. Merz
United States Magistrate Judge

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