Franklin v. Warden, Mansfield Correctional Institution

Filing 202

DECISION AND ORDER DENYING COUNSELED MOTION FOR RECONSIDERATION. Signed by Magistrate Judge Michael R Merz on 1/29/2015. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANTONIO SANCHEZ FRANKLIN,
Petitioner,

:

Case No. 3:04-cv-187

- vs Magistrate Judge Michael R. Merz
NORMAN ROBINSON, Warden,
Respondent.

:

DECISION AND ORDER DENYING COUNSELED MOTION FOR
RECONSIDERATION
This habeas corpus case is before the Court on Petitioner Antonio Franklin’s Counseled1
Motion for Reconsideration (Doc. No. 187) of the Court’s earlier Decision and Order Denying
Counseled Motion for Relief from Judgment (“Decision”) (Doc. No. 182). Respondent opposes
Franklin’s motion (Doc. No. 188), and Franklin has replied to Respondent’s arguments (Doc.
No. 193). Oral arguments of the parties were had on December 11, 2014 (Doc. No. 201).

Procedural History
Franklin was indicted for the aggravated murders of his grandmother, grandfather, and
uncle. A Montgomery County trial jury convicted him and recommended the death sentence,
which Judge James Gilvary imposed. The convictions and sentence were affirmed by the Ohio
Supreme Court on direct appeal. State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304 (2002).

1

As distinguished from Franklin’s pro se Motion for Reconsideration (Doc. No. 189), denied at Decision and Order
(Doc. No. 200).
1

Upon notice of his intent to seek habeas relief, this Court appointed counsel who filed the
Petition on June 1, 2004, seeking relief on fifty-one grounds. (Doc. No. 21.) The Court denied
habeas relief, Franklin v. Bradshaw, 2009 WL 649581 (S.D. Ohio Mar. 9, 2009) (copy at Doc.
No. 104). This Court granted a Certificate of Appealability on nine grounds for relief, including
Ground Fourteen, which was the subject of Franklin’s subsequently filed Motion for Relief From
Judgment under Fed. R. Civ. P. 60(b), and the Sixth Circuit Court of Appeals affirmed the
dismissal, Franklin v. Bradshaw, 695 F.3d 439 (6th Cir. 2012).

Franklin now seeks

reconsideration of his 60(b) motion, arguing that his fourteenth claim alleging ineffective
assistance of trial counsel has never been decided on its merits because the post-conviction court
refused to credit the affidavits appended to Franklin’s post-conviction petition. In addition, he
contends that his post-conviction counsel were ineffective in failing to present all available
evidence to support his ineffective assistance of trial counsel claim, citing Trevino v. Thaler, ___
U.S. ___ , 133 S.Ct. 1911 (2013). (Doc. No. 187, PageID 11685.)

Analysis
There is no requirement in Ohio that all ineffective assistance of trial counsel claims be
brought exclusively on direct appeal or exclusively in post-conviction proceedings. Instead, trial
counsel errors that are apparent on the trial court record must be brought on direct appeal, and
trial counsel errors that rely on evidence outside the trial court record must be brought in postconviction. Theoretically, there should be no overlap between the claims brought on direct
appeal and those brought in post-conviction unless new evidence that could not have been
discovered prior to or during the trial is brought to light between the two proceedings. Reality,
however, is not so tidy.

2

In Franklin’s case, his ineffective assistance of trial counsel claim was brought on direct
appeal, and, with additional support in the way of affidavits, in post-conviction as well.2 On
direct appeal, Franklin presented his claim that his trial counsel were ineffective for failing to
request a second competency hearing in the midst of his trial to the Ohio Supreme Court. That
court concluded: “Appellant next contends that his counsel acted ineffectively by failing to
request a second competency hearing. However, we have found in our discussion of appellant’s
third proposition of law that no such hearing was warranted. . . . This argument is not supported
by the record.” State v. Franklin, 97 Ohio St. 3d 1, 11, 2002-Ohio-5304, ¶41 (2002). That is a
merits decision.
Franklin also presented his claim to the state court in the seventh ground for relief in his
post-conviction petition (Doc. No. 185-9, PageID 5037-39), but the trial court addressed the
claim in its discussion of his third ground for relief as follows:
As for any suggestion that counsel was [sic] ineffective for not
requesting another competency hearing, it to [sic] fails. Trial
counsel effectively and properly plead [sic] the theory of not guilty
by reason of insanity. Counsel followed that with a request to
determine whether Franklin was competent to stand trial. After
being found competent to stand trial, Franklin displayed behavior
at trial which has been described as anything from incompetency to
bad manners. This behavior, as well as any other outburst, is noted
on the record. Whether that behavior, in the face of the
observations made by the trial court and the testimony of Dr.
Martin, should have signaled to the trial attorney that another
competency hearing was called for is a matter for appeal. No
2

In its Decision, this Court construed Franklin’s appellate counsel’s presentation of the claim to the state supreme
court on direct appeal as a “represent[ation] to that court that the claim could be decided on the appellate record.”
(Doc. No. 182, PageID 2696.) The Court regrets that characterization of Franklin’s presenting his ineffective
assistance of trial counsel claim on direct appeal, but it has no impact on the ultimate outcome of Franklin’s claim.
The Court further stated that Franklin first presented his ineffective assistance of trial counsel claim on direct
appeal and then, having lost there, presented it to the post-conviction court. (Doc. No. 182, PageID 2694.)
Actually, Franklin filed his post-conviction petition on August 9, 1999, and only later filed his direct appeal on
October 27, 1999. Furthermore, the post-conviction petition was denied on August 23, 2001, before the direct
appeal was decided against Franklin on October 16, 2002. Thus, instead of having two consecutive bites at the
apple, Franklin’s were more or less simultaneous, removing from the Court’s earlier statement any implication that
Franklin might have been gaming the system.
3

evidence outside the record is admitted which supports a claim that
counsel had a duty to request a new competency hearing, much
less that counsel breached that duty to the prejudice of his [sic]
client.
(Decision, Order, and Entry Sustaining Plaintiff-Respondent’s Motion for Summary Judgment,
Doc. No. 185-13, PageID 6219-20.)

By observing that Franklin’s peculiar behavior was

contained within the trial record and stating that the claim was a matter for appeal, the postconviction court was, without using the Latin words, invoking the doctrine of res judicata. Thus,
the post-conviction trial court found the claim procedurally defaulted. Furthermore and with less
discussion, the post-conviction trial court found the majority of Franklin’s seventh ground for
relief, including his claim that his trial counsel were ineffective for not requesting a second
competency hearing, barred by the doctrine of res judicata. (Doc. No. 185-13, PageID 6213.)
On appeal to the state court of appeals, Franklin claimed the post-conviction trial court’s
decision respecting his ineffective assistance of trial counsel claim was error, but the state court
denied the claim as follows:
Franklin also argues that his trial counsel were ineffective in
failing to request a new competency hearing during the trial. We
evaluate ineffective assistance of counsel arguments in light of the
two prong analysis set forth in Strickland v. Washington (1984),
466 U.S. 668. Trial counsel is entitled to a strong presumption that
his conduct falls within the wide range of reasonable assistance.
See id. at 2064-65. To reverse a conviction based on ineffective
assistance of counsel, it must be demonstrated that trial counsel's
conduct fell below an objective standard of reasonableness and that
his errors were serious enough to create a reasonable probability
that, but for the errors, the result of the trial would have been
different. See id. at 2064. Hindsight is not permitted to distort the
assessment of what was reasonable in light of counsel's perspective
at the time, and a debatable decision concerning trial strategy
cannot form the basis of a finding of ineffective assistance of
counsel. See id. at 2065.
We cannot find that Franklin's attorneys fell below an objective
standard of reasonableness in not requesting a new competency
4

hearing during trial.
They had already argued Franklin's
incompetency to the trial court and lost. With no reason to believe
they would be successful on a second attempt, it was a reasonable
tactical decision to refrain from requesting a new hearing.
Furthermore, as we have no reason to believe that the result would
have been different had they done so, Franklin has failed to
establish that he was prejudiced. Therefore, we find that the trial
court did not err in dismissing this claim without a hearing.
State v. Franklin, 2002-Ohio-2370, 2002 WL 1000415, ¶¶ 19-20 (Ohio Ct. App. 2nd Dist. May
17, 2002). That is a decision on the merits of Franklin’s ineffective assistance of trial counsel
claim. As noted above, the post-conviction trial court found the claim procedurally defaulted,
but the court of appeals eschewed the procedural findings of the lower court and ruled on the
claim’s merits. Accordingly, the trial court’s finding of procedural default has no impact on the
final outcome of the claim here as this Court must look to the last reasoned opinion in
considering whether a claim has been procedurally defaulted. Ylst v. Nunnemaker, 501 U.S. 797,
801 (1991). In addressing the claim’s merits, the state appellate court resurrected Franklin’s
claim from procedural default. The Ohio Supreme court declined further appeal. State v.
Franklin, 98 Ohio St. 3d 1422 (2003).
Franklin then brought his claim to the federal court. This Court, in denying his claim
found as follows:
In his fourteenth ground for relief, Franklin argues that his counsel
were ineffective when they failed to request a second competency
hearing in response to his peculiar behavior during his trial.
(Petition, Doc. No. 21 at 25.) This Court addressed and denied the
underlying claim which Franklin raised in his second ground for
relief, supra. There being no merit to the underlying claim, there
can be none to the claim of ineffective assistance of trial counsel,
either. Accordingly, Franklin’s fourteenth ground for relief is
denied.
(Decision and Order, Doc. No. 104 at PageID 1560-61.) Franklin’s claim was decided on the
merits, with no mention of procedural default.
5

Finally, the Sixth Circuit Court of Appeals also considered Franklin’s claim. It held as
follows:
Franklin argues that trial counsel were ineffective in the guilt phase
in failing to request another competency hearing. The district
court denied this claim because, there being no merit to the
underlying claim (trial-court error in not sua sponte ordering
another hearing), there could be no merit to this claim either. We
agree.
To establish trial counsel's ineffectiveness, petitioner must show:
(1) that counsel's performance was deficient, i.e., objectively
unreasonable under prevailing professional norms; and (2) that this
deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687–88 (1984). Prejudice exists if there is a reasonable
probability that, but for counsel's unprofessional errors, the result
of the proceedings would have been different. Id. at 694.
Because this claim was raised on direct appeal and Franklin
abandoned the post-conviction version of the claim, see Robinson
v. Jones, 142 F.3d 905, 906 (6th Cir.1998),[3] he can only rely on
the record evidence that was before the Ohio Supreme Court on
direct appeal. Based on this evidence and the presumptions
attendant to the state supreme court's findings, Franklin was
competent. There was no reason to hold a second competency
hearing. It causes no prejudice not to raise an argument that would
have lost anyway. Hence, counsel caused Franklin no prejudice
when they did not request another competency hearing. The Ohio
Supreme Court's rejection of this claim was neither contrary to, nor
an unreasonable application of, clearly established Supreme Court
precedent, was not based on an unreasonable determination of the
facts in light of the evidence presented, and was not clearly
erroneous. Franklin fails to demonstrate prejudice.
Franklin v. Bradshaw, 695 F.3d 439, 451-52 (6th Cir. 2012). Once again, the decision was on the
merits of Franklin’s claim. This Court concluded as much in its initial response to Franklin’s
motion for reconsideration. (Doc. No. 182 at PageID 2689.)
3

The Sixth Circuit’s use of the word “abandoned” and its citation to Robinson v. Jones, 142 F.3d 905, 906 (6th Cir.
1998) (observing that “[i]ssues which were raised in the district court, yet not raised on appeal, are considered
abandoned and not reviewable on appeal, citing Eneertech Elec., Inc. v. Mahoning County Comm’rs, 85 F.3d 257,
259 (6th Cir. 1996), is somewhat perplexing since Franklin presented the claim in the post-conviction trial court and
the intermediate court of appeals, as noted above.. In any case, the Sixth Circuit did not find the claim procedurally
defaulted and rendered its decision on the merits of the claim, just as had the state court of appeals on direct appeal
and in post-conviction.
6

The highest state courts to consider Franklin’s ineffective assistance of trial counsel claim
decided it on the merits both on direct appeal and in his post-conviction proceedings. So if postconviction counsel were ineffective in not presenting all available evidence to the state court, and
the Court is not saying they were, there is no procedural default of the underlying ineffective
assistance of trial counsel claim to excuse via Martinez and Trevino, assuming they even apply in
Ohio. See McGuire v. Warden, 738 F.3d 741, 752 (6th Cir. 2013)(stating that “the application of
Trevino to Ohio ineffective-assistance claims is neither obvious nor inevitable”). Franklin is left
with a simple claim that his post-conviction counsel were ineffective in failing to present all
available evidence to support his ineffective assistance of trial counsel claim in his postconviction proceedings, which is a claim that is not cognizable in habeas corpus. There is no
constitutional right to an attorney in post-conviction proceedings, and therefore no right to
effective assistance of counsel in such proceedings. Gulertekin v. Tinnelman-Cooper, 340 F.3d
415, 425 (6th Cir. 2003), citing Coleman v. Thompson, 501 U.S. 722, 752-53 (1991). Neither
Martinez nor Trevino changed that. Martinez, ___ U.S. ___, ___, 132 S.Ct. at 1315 (2012);
Trevino, ___ U.S. ___, ___, 133 S.Ct. at 1918. And with no procedural default of the underlying
ineffective assistance of trial counsel claim to excuse, the effectiveness or ineffectiveness of
Franklin’s post-conviction counsel becomes irrelevant in his federal habeas corpus proceedings.
Franklin contends his ineffective assistance of trial counsel claim was never “fully
litigated” because when it was presented to the state courts, it lacked all the evidence necessary
for a meaningful review of the claim. (Doc. No. 187 at PageID 11686.) Franklin appended
certain documents to his state post-conviction petition to support his claim that trial counsel were
ineffective for not requesting a second competency hearing. Those documents consisted of the
following:

7

1. The affidavit of attorney Joann Jolstad (Doc. No. 185-9, PageID 5090-91), who
averred that Franklin’s trial counsel should have requested a second competency
hearing, relying on Item 2, below;
2. The affidavit of Dr. Sharon Pearson (Doc. No. 185-9, PageID 5100-23), a
psychologist who performed a psychological evaluation of Franklin in preparation for
post-conviction;
3. The affidavit of attorney Lawrence Henke (Doc. No. 185-9, PageID 5161-63),
Franklin’s trial counsel; and
4. The affidavit of attorney John Cumming (Doc. No. 185-11, PageID 5528-30), cocounsel at Franklin’s trial.
The state court of appeals in post-conviction, unlike the trial court before, did not discount or
express an intention to disregard the affidavits Franklin submitted to support his claim. Nothing
in that court’s decision suggests that the court did so, nor has Franklin provided any reason to
think the court ignored the affidavits. “Martinez does not apply to claims that were fully
adjudicated on the merits by the state . . . [post-conviction] court because those claims are, by
definition, not procedurally defaulted.” Escamilla v. Stephens, 749 F.3d 380, 394 (5th Cir. 2014),
citing Moore v. Mitchell, 708 F.3d 760, 784-85 (6th Cir. 2013). Thus, Franklin’s argument that
his claim was never “fully litigated” because no court had considered all the evidence is
unavailing.
In the course of Franklin’s habeas corpus proceedings here, a two-day evidentiary
hearing was held, in which the following witnesses were called to testify on Franklin’s behalf:
1. Psychologist Dr. Eugene Cherry,
2. Clinical psychologist Dr. Sharon Pearson,
3. Franklin’s trial counsel Larry Henke, and
4. Franklin’s trial co-counsel John Cumming.
(Doc. No. 86.) At that time, Franklin’s current counsel presumably presented all the evidence of
Franklin’s incompetence at trial he contends his post-conviction counsel should have included in
8

the appendix to his state petition. This Court denied Franklin’s petition for habeas corpus relief
on March 9, 2009 (Doc. No. 104), well before the Supreme Court handed down Cullen v.
Pinholster, ___ U.S. ___, 131 S. Ct. 1388 (2011)4(generally limiting the evidence a federal
habeas court may consider pursuant to 28 U.S.C. § 2254(d)(1) to the evidence that was before
the state court at the time it rendered its decision). Given that fact, this Court considered all the
evidence gleaned from the state court record (direct appeal and post-conviction) as well as the
evidence presented at the evidentiary hearing in these proceedings when rendering its decision
on Franklin’s claim that he was incompetent to stand trial, that he should have had a second
competency hearing, and that his trial counsel were ineffective for not requesting a second
hearing. (See Decision and Order Granting in Part and Denying in Part Petitioner’s Motion to
Expand the Record, Doc. No. 88, Page ID 1352 (stating that “the Court allowed the evidentiary
hearing with all the testimony Petitioner sought to introduce)).
In oral argument, Franklin acknowledged that he “has new facts to offer . . . [n]ot new
facts that weren’t around at the time that he filed his habeas petition, but new facts that you and
the Sixth Circuit weren’t able to consider at the time of the petition” because of Pinholster.
(Transcript, Doc. No. 201, PageID 11822). It is true that the Sixth Circuit was limited to the
record before the state court on those matters since its opinion was rendered more than a year
after Pinholster had been decided in the Supreme Court.5 Nevertheless, it is also a fact that this
Court, pre-Pinholster, considered the evidence Franklin argues is a game changer respecting his
claim of ineffective assistance of trial counsel, and found it lacking under Strickland v.
Washington, 466 U.S. 668 (1984).

Therefore, even if his claim of ineffectiveness were

procedurally defaulted and the Court were to assume that Martinez and Trevino apply in Ohio,

4
5

Pinholster was decided on April 4, 2011.
The Sixth Circuit’s opinion in Franklin’s case was filed on September 19, 2012.
9

Franklin’s claim would still fail.
In oral argument on Franklin’s motion for reconsideration, his current counsel contended
that should he prevail on his motion, a return to the state court to present the evidence already
presented in his evidentiary hearing here would be unnecessary. (Transcript, Doc. No. 201,
PageID 11812-13.) Instead, counsel argued, Martinez is effectively an exception to the rule of
Pinholster, citing a concurrence in a denial of certiorari in Gallow v. Cooper, 133 S.Ct. 2730-31
(2013). In that case, the petitioner’s trial counsel admitted that he was suffering from panic
attacks and was related to the victim in the case, and acknowledged that he provided ineffective
assistance to Gallow at trial.6 His post-conviction counsel failed to submit evidence subject to
cross-examination to support the ineffective assistance of trial counsel claim. Id.; Gallow v.
Cooper, 505 Fed. Appx. 285, 291 (5th Cir. 2012)(per curiam).7 Justice Breyer, joined by Justice
Sotomayor, wrote to express his belief that the lower court’s finding that Gallow received a
merits decision on his claim in the state court was questionable, and likened an insufficiently
supported claim to “no claim at all.” Gallow, 133 S.Ct. at 2731. Justice Breyer offered that
under such circumstances, there might be “a strong argument that the state habeas counsel’s
ineffective assistance results in a procedural default of that claim,” and suggested that “the Fifth
Circuit should not necessarily have found that it could not consider the affidavit and testimony
supporting Gallow’s claim because of Cullen v. Pinholster, 563 U.S. ___, ___, 131 S.Ct. 1388
(2011).” Id. (parallel citations omitted). The Supreme Court “has rigorously insisted that [a
denial of certiorari] carries with it no implication whatever regarding the Court’s views on the
merits of a case which it has declined to review.” Maryland v. Baltimore Radio Show, 338 U.S.

6

Gallow’s attorney was later disbarred. 133 S.Ct. 2731.
The Fifth Circuit concluded in Gallow’s case that his claim had been decided on the merits and that there was no
need for the court to address Gallow’s arguments based on Martinez as there was no default of his ineffective
assistance of trial counsel claim in the state court. 505 Fed. Appx. 285, 291.
7

10

912, 919 (1950). Similarly, brief comments from two justices musing over the denial of a
petition for writ of certiorari is nugatory, as well. Franklin’s further reliance on Detrich v. Ryan,
740 F.3d 1237 (9th Cir. 2013) (Transcript, Doc. No. 201, PageID 11814), adds little to the
conversation, as the court there relied upon Justice Breyer’s Gallow statement, too. Id. at 1246.
Argument similar to that put forth by Franklin here was also made by a petitioner seeking
a certificate of appealability in the Fifth Circuit Court of Appeals. In Newbury v. Stephens, 756
F.3d 850 (2014), the court summarized the relevant part of the petitioner’s argument as follows:
In his reply brief, Newbury argues that because the state court did
not have all of the evidence before it when it ruled on his IATC
claim, due to ineffective state habeas counsel, he has not had a full
and fair determination of the merits of his claim in state court, and
that is why Martinez applies. He contends that the equitable rule
created by Martinez and Trevino affords relief from the legal ruling
in Pinholster.
Id. at 870. The Fifth Circuit reasoned as follows:
Under Martinez, in order for the federal court to consider the
evidence Newbury presented for the first time in federal court,
Newbury must show that (1) his state habeas counsel was
ineffective in failing to present that evidence to the state habeas
court, and (2) his underlying claims of ineffective assistance of
trial counsel are “substantial,” meaning that he “must demonstrate
that the claim[s] ha[ve] some merit.” Martinez, 132 S.Ct. at 1318.
To establish ineffective assistance of state habeas counsel,
Newbury must show both that habeas counsel’s performance – in
failing to present to the state habeas court the evidence that he
presented for the first time in federal court – was deficient and that
he was prejudiced by the deficient performance – that is , that there
is a reasonable probability that he would have been granted state
habeas relief had the evidence been presented in the state habeas
proceedings. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Martinez, 132 S.Ct. at 1318 (suggesting that the Strickland
standard applies in assessing whether habeas counsel was
ineffective).
Even if a petitioner makes both of the showings required under
Martinez, that “does not entitle [him] to habeas relief. It merely
allows a federal court to consider the merits of a claim that
11

otherwise would have been procedurally defaulted.” Martinez, 132
S.Ct. at 1320. As we have set out in detail in this opinion, the
district court thoroughly and carefully considered all of the
evidence that Newbury presented, including the evidence presented
for the first time in federal court, and held that Newbury’s IATC
claim lacks merit because he can demonstrate neither deficient
performance nor prejudice under Strickland. Because Newbury
has already received all of the relief available to him under the
authority of Martinez and Trevino, that is, review of the merits by
the federal court, it is not necessary for us to remand the case for
the district court to determine whether Newbury’s state habeas
counsel was ineffective or whether his IATC claim has “some
merit” under Martinez.
Newbury, 756 F.3d at 872-73 (parallel citations omitted).
Like Newbury, Franklin has already received all of the relief available to him under the
authority of Martinez and Trevino, that is, review of the merits by this Court, again assuming
without deciding that the holdings of those cases apply to Ohio’s post-conviction scheme.

Conclusion
This Court has reviewed the memoranda from the parties respecting Franklin’s claim that
the procedural default of his ineffective assistance of his trial counsel for not requesting a second
competency hearing can be excused by his post-conviction counsel’s deficient performance
pursuant to Martinez and Trevino. The Court has also considered the oral arguments of the
parties. Having found no procedural default of his ineffective assistance of trial counsel claim,
however, there is no default to excuse, and consequently Martinez and Trevino have no
applicability in Franklin’s case. Even if his ineffective assistance of trial counsel claim had been
procedurally defaulted, this Court, prior to Pinholster, considered all the evidence presented by
Franklin on that claim in his petition for writ of habeas corpus and the evidentiary hearing he
was granted, and found the claim meritless, so even if Martinez and Trevino did apply in this

12

case, the underlying claim of ineffective assistance of trial counsel would fail.
Franklin’s counseled Motion for Reconsideration is DENIED.

January 29, 2015.
s/ Michael R. Merz
United States Magistrate Judge

13