Musselman v. Warden Chillicothe Correctional Institution

Filing 7

DECISION AND ORDER - This is an action pursuant to 28 U.S.C. §2254 for a writ of habeas corpus. Based on the analysis, the Petition will be dismissed with prejudice. The Clerk will enter judgment to that effect. Signed by Magistrate Judge Michael R Merz on 3/30/2010. (kpf1)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON
MARK MUSSELMAN, : Petitioner, : -vsWARDEN, Chillicothe Correctional Institution, : Respondent. Magistrate Judge Michael R. Merz Case No. 3:09-cv-407

DECISION AND ORDER

This is an action pursuant to 28 U.S.C. §2254 for a writ of habeas corpus (Petition, Doc. No. 1). After review under Rule 4 of the Rules Governing § 2254 Cases, the Court ordered an answer (Order, Doc. No. 3) and the Respondent has filed the required Return of Writ (Doc. No. 5). Although the Court set a date for Petitioner to file a reply, none has been filed. The parties unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) and the case has been referred on that basis (Order of Reference, Doc. No. 6).

Procedural History

Mark Musselman, the Petitioner, and a co-defendant, Mark Edwards, were indicted by the Montgomery County Grand Jury on fifty-nine felony counts in relation to a mortgage fraud scheme. The eleven counts of violation of the Ohio mortgage broker act were dismissed before trial. -1-

Edwards pleaded guilty and testified against Musselman. On April 24, 2007, a jury convicted Musselman of all remaining counts and he was sentenced to an aggregate term of twelve years imprisonment. Musselman appealed to the Montgomery County Court of Appeals, raising the following assignments of error: 1. The convictions should be reversed because the trial court erred in failing to sustain the suppression motion, when the evidence that should have been suppressed contributed significantly to the convictions. 2. The convictions should be reversed because the prosecution failed to provide discovery of evidence that appellant had prepared a false Indiana driver's license and that evidence undercut the defense and thus denied appellant a fair trial as guaranteed by the due process clauses of the State and Federal Constitutions. 3. The convictions should be reversed because the trial court failed to provide an adequate record of the numerous bench conferences that occurred during the trial despite its assurances to defense counsel that the conferences were recorded and that failure has prejudiced. 4. The convictions should be reversed because the trial court erroneously admitted other acts evidence concerning appellant, thereby unfairly prejudicing the jury against him. 5. Appellant's convictions should be reversed because the trial court erred when convicting appellant of several allied offenses, which were of similar import. 6. The conviction for Counts 1 and 3-48 should be reversed because the indictment failed to include each essential element and was therefore fatally defective. 7. Because the defects in Counts 1 and 3-48 permeated the entire indictment and trial, the entire indictment must be declared void. (Return of Writ, Doc. No. 5, Exhibits 10 & 11.) The Court of Appeals affirmed the conviction. State v. Musselman, 2009 Ohio 424, 2009 Ohio app. LEXIS 348 (Ohio app. 2nd Dist. Jan. 30, 2009). -2-

Mr. Musselman then appealed to the Ohio Supreme Court, asserting the following propositions of law: 1. While a spouse may ordinarily consent to the search of property that she ad her husband both occupy, consent is not valid when the police officers should have known that the place or items recovered where the other spouse's property or that other spouse's private area of the house. 2. Due process requires the prosecution to disclose all evidence in discovery that could be useful to the defense, even when the prosecution only intends to use the evidence as part of its rebuttal. 3. When a system enacted by as court fails to record sidebar conferences, and when it is impossible to reconstruct what was said at those conferences, a defendant is denied due process and the right to a jury trial as guaranteed by the State and Federal Constitutions. 4. When a defendant is convicted of a RICO count and other counts that form part of the "pattern" of conduct under RICO, the double jeopardy clause under the State and Federal Constitutions allows for a conviction only of the RICO count. (Return of Writ, Doc. No. 5, Exhibit 25). However, the Ohio Supreme Court declined to take jurisdiction of the case and Petitioner filed this case seeking a writ of habeas corpus ad subjiciendum, presenting three grounds for relief, styled as "branches" of his Petition: Branch I: Mr. Musselman's convictions should be reversed because the State violated Mr. Musselman's rights by the willful nondisclosure of evidence that was vital to his defense A. B. C. Brady violation Prosecutorial Misconduct The prosecutor's misconduct cause [sic] a substantial inability for defense counsel to effectively represent Mr. Musselman

Branch II: Mr. Musselman's convictions should be reversed under the Due Process Clause of the Fourteenth Amendment because the trial court erred when convicting Mr. Musselman of several allied offenses, which were of similar import. -3-

Branch III: The convictions should be reversed because the trial court failed to provide an adequate record of the numerous bench conferences that occurred during the trial despite its assurances to defense counsel that the conferences were recorded and that defense has prejudiced Mr. Musselman. (Petition, Doc. No. 1, at 10, 12, 14, 19, 21, and 29.)

Analysis

Branch One: Failure to Disclose Evidence

Mr. Musselman's defense at trial was that, although he was in business with Mark Edwards, he was unaware of Edwards' criminal acts and had no intention of participating in them or profiting from them. To combat this defense, the prosecution presented testimony from Edwards that Musselman intended to accumulate a large sum of money from the scheme, then leave town and change his identity. Musselman testified in his own defense. On cross-examination the prosecutor asked him if he had obtained an Indiana driver's license in the name of Kenneth Hagland. When he denied it, he was confronted with an Indiana document with his picture and the name Kenneth Hagland. A defense motion for mistrial on the grounds the document should have been disclosed earlier was denied. In Branch I of his Petition, Mr. Musselman asserts that this late disclosure violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), constituted unconstitutional prosecutorial misconduct, and caused his counsel to be unable to provide effective assistance. Each of these subclaims will be analyzed in turn.

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Sub-claim One: Violation of Brady v. Maryland

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the State has a duty to produce exculpatory evidence in a criminal case. If the State withholds evidence and it is material, the conviction must be reversed. As Petitioner notes, the Constitution requires disclosure of both exculpatory and impeachment evidence. Kyles v. Whitley, 514 U.S. 419 (1995). Respondent asserts Petitioner's Brady claim should be denied because it is procedurally defaulted and the Indiana document is not Brady material because it is neither exculpatory nor unknown to Mr. Musselman. 1. Procedural Default: The procedural default defense in habeas corpus is described by the Supreme Court as follows: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749 (1991); see also Simpson v. Jones, 238 F. 3rd 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107 (1982). Absent cause and prejudice, a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review.

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Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963). Failure to raise a constitutional issue at all on direct appeal is subject to the cause and prejudice standard of Wainwright v. Sykes, 433 U. S. 72 (1977). Murray v. Carrier, 477 U.S. 478, 485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985). Failure to present an issue to the state supreme court on discretionary review constitutes procedural default. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). "Even if the state court failed to reject a claim on a procedural ground, the petitioner is also in procedural default `by failing to raise a claim in state court, and pursue that claim through the state's ordinary appellate procedures.'" Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). On direct appeal, Petitioner complained of the delayed disclosure of the fake Indiana document. However, he argued that claim solely in terms of an asserted violation of Ohio R. Crim. P. 16, Ohio's criminal discovery rule. In his Brief, his argument is that a mistrial should have been granted because the prosecutor violated Rule 16. The sole reference to federal law is a parenthetical note: "(See also, United States v. Bagley (1985) 473 U.S. 667,105 S. Ct. 3375. 87 L. Ed.2d 481. which holds that the Brady [v Maryland, (1963) 373 U.S. 83, 83 S. CI. 194, 10 L Ed.2d 215] rule requiring that the prosecution disclose all exculpatory material to the defense should apply also to impeachment evidence that could be used during the cross·examination of government witnesses.)" (Appellant's Brief, Ex. 10 to Return of Writ, at 15). The Court of Appeals understood that Petitioner was raising and it was deciding only an Ohio criminal rule question. State v. Musselman, 2009 Ohio

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424, at ¶¶ 9-17 (Ohio App. 2nd Dist. Jan. 30, 2009)("On appeal, Musselman contends the State violated Crim. R. 16 . . . " ¶ 11.) Because Petitioner failed to raise a Brady claim in the state courts, he has procedurally defaulted on that claim and is barred from federal habeas review on the merits. 2. The Indiana document is not Brady material. Respondent also asserts that even if this claim were not procedurally defaulted, it would fail on the merits because the fake Indiana document was not exculpatory and its existence was known to Mr. Musselman before it was disclosed at trial (Return of Writ, Doc. No. 5, at 11-12.) There are three essential components of a true Brady violation: the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued. Strickler v. Greene, 527 U.S. 263 (1999). The fake Indiana document at issue here is plainly not Brady material because it was not in any way favorable to Mr. Musselman. Indeed, his whole complaint is that it was devastating to his credibility when he was the only defense witness at trial. Respondent is correct that information already known to a defendant cannot be Brady material. See, e.g., Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007) ("Where, like here, 'the factual basis for a claim is 'reasonably available to' the petitioner or his counsel from another source, the government is under no duty to supply that information to the defense.") (citation omitted); Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998) (There is no Brady violation where information is available to the defense "because in such cases there is really nothing for the government to disclose.") Bell v. Bell, 512 F.3d 223(6th Cir. 2008)(en banc) (Matthews applied even when the

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prosecutor denied the existence of some of the material.) Respondent argues that the fake Indiana identification card is not Brady material because "Musselman would have known that he had obtained [it]." (Return of Writ, Doc. No. 5, at 12.) However, there is no conclusive proof on that point. When questioned about the fake ID, Musselman "surmised that Mark Edwards must have created it." (Petition, Doc. No. 1, at 11, citing Trial Transcript at 1868-1869.) Thus the prosecution neither obtained an admission from

Musselman that he knew of the document nor provided independent proof to that effect. This Court cannot conclude the State has proved Musselman knew about this piece of evidence before he was confronted with it. However, based on the first two points ­ procedural default and the document is not exculpatory ­ the Brady sub-claim of Branch I must be dismissed on the merits.

Sub-claim Two: Prosecutorial Misconduct

Petitioner also asserts that the failure of the prosecutor to disclose this evidence prior to confronting Mr. Musselman with it constituted prosecutorial misconduct (Petition, Doc. No. 1, at 14-19). Respondent argues that this is not a claim of constitutional error, but merely a claim that the prosecutor failed to comply with the Ohio rule of criminal discovery, Ohio R. Crim. P. 16 (Return of Writ, Doc. No. 5, at 8-9). Respondent also notes that there is no general federal constitutional right to discovery in a criminal case. Id. , citing Lorraine v. Coyle, 291 F.3d 416, 441 (6th Cir. 2002). As noted above, Petitioner has made no response to these arguments. Prosecutorial misconduct does violate the Constitution if it "so infected the trial with

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unfairness as to make the resulting conviction a denial of due process, Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Darden v. Wainwright, 477 U.S. 168 (1986); Bates v. Bell, 402 F.3d 635, 640-41 (6th Cir. 2005); Kincade v. Sparkman, 175 F.3d 444 (6th Cir. 1999) or whether it was "so egregious as to render the entire trial fundamentally unfair." Cook v. Bordenkircher, 602 F.2d 117 (6th Cir. 1979); accord Summitt v. Bordenkircher, 608 F.2d 247 (6th Cir. 1979), aff'd sub nom, Watkins v. Sowders, 449 U.S. 341 (1981); Stumbo v. Seabold, 704 F.2d 910 (6th Cir. 1983). In support of his argument for a constitutional violation here, Petitioner cites United States v. Pascual, 606 F.2d 561(5th Cir. 1979). However, that case was decided purely as a matter of interpretation of Fed. R. Crim. P. 16; no citation to the United States Constitution was made at all. Petitioner also relies on State v. Moore, 40 Ohio St. 3d 63, 531 N.E. 2d 691 (1988), but that case was also decided as an application of Ohio R. Crim. P. 16, not as a constitutional case. Petitioner is undoubtedly correct that at least one of the purposes of Ohio R. Crim. P. 16 was to prevent surprise and somewhat level the playing field between the State and the individual defendant. And indeed on appeal here the Second District Court of Appeals found the prosecutor had violated Rule 16 by failing to provide this document to the defendant. State v. Musselman, 2009 Ohio 424 at ¶ 15. But it did not decide, and was not asked to decide, whether the prosecutor's failure to disclose rose to the level of unconstitutional prosecutorial misconduct. Because this claim was not presented to the state courts as a constitutional claim, Respondent could have raised the defense of procedural default as it did with respect to the Brady sub-claim. Although a federal habeas court may raise procedural default sua sponte, in this instance the Court will not do so, but will decide this sub-claim on the merits. To decide a claim of prosecutorial misconduct, the court must first decide whether the

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complained-of conduct was in fact improper. Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003), citing United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001). Here the Ohio Court of Appeals decided that it was improper ­ a violation of the prosecutor's duty ­ to fail to disclose this evidence before using it. A four-factor test is then applicable to any conduct the Court finds inappropriate: "(1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and whether the evidence against the defendant was strong." Id. The court must decide whether the prosecutor's statement or other conduct likely had a bearing on the outcome of the trial in light of the strength of the competent proof of guilt. Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982). The court must examine the fairness of the trial, not the culpability of the prosecutor. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993)(quoting Smith v. Phillips, 455 U.S. 209, 219 (1982). In Serra, the Sixth Circuit identified factors to be weighed in considering prosecutorial misconduct: In every case, we consider the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused. Id., at 1355-56 (quoting Angel, 682 F.2d at 608). The misconduct must be so gross as probably to prejudice the defendant. Prichett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997), cert. denied, 118 S. Ct. 572 (1997); United States v. Ashworth, 836 F.2d 260, 267 (6th Cir. 1988). Here there was one instance of inappropriate conduct. It did not consist of making misleading comments to the jury, as is so often the case with prosecutorial misconduct claims. The -10-

Court of Appeals also effectively decided the misconduct was intentional in that the prosecutor knew he was going to use this document in cross. Musselman, 2009 Ohio 424, at ¶ 15. The fact that the document hurt Mr. Musselman's credibility does not mean that it was "prejudicial," however. Prejudicial evidence suggests to a jury that it decide on a basis other than the relevant facts. (See, e.g., Depew v. Anderson, 104 F. Supp. 2d 879 (S.D. Ohio 2000), aff'd, 311 F.3d 742 (6th Cir. 2002)(prosecutor in a capital trial shows a jury during closing a photograph of defendant with a marijuana plant, a "fact" completely unconnected with the arson and triple homicide being tried). Here the Indiana document was completely relevant to corroborate Edwards' testimony about Musselman's involvement and rebut Musselman's denial of his intent to change identity and leave town. Musselman does not claim that if he had known in advance about the fake Indiana document, he would have been prepared to show Edwards had created it. Indeed, when it was introduced he did not ask for a continuance to be able to meet the evidence, but instead moved for a mistrial. In his Petition, he claims he would not have taken the stand if he had known what powerful evidence the prosecutor has to attack his credibility. (Petition, Doc. No. 1, at 18-19.) The Court of Appeals also found the other evidence against Musselman was strong: [*P17] In any event, we hold that the error in the State's failure to disclose the evidence immediately was harmless beyond a reasonable doubt. Musselman contends that his credibility was critical to his defense and that evidence linking him to a phony identification card ruined his credibility. We note, however, that prior to Musselman's testimony the State presented evidence of a driver's license bearing Musselman's picture and the name Richard Dembsky being found in a briefcase he left in his motel room. Thus, if the existence of evidence linking Musselman to false identification ruined his credibility, it was tarnished even before he took the stand. The fact that there were two identification cards bearing Musselman's likeness and another person's name instead of just one adds little to the harm. In addition, the jury heard that evidence about how to change a person's identity was found on a computer disk among Musselman's -11-

belongings in his office. Despite this evidence, Musselman insisted during his testimony that he never had tried to change his identity. He maintained this position even after being shown the Indiana state identification card. Moreover, to the extent Musselman's credibility was an issue, it was undermined by a wealth of evidence showing that he had engaged in a pattern of fraud, forged numerous documents, and stolen hundreds of thousands of dollars. Finally, Musselman's credibility was tainted by his refusal to admit on cross examination that an obvious suicide note he sent to his wife was, in fact, a suicide note. In short, having reviewed the record, we are convinced that any violation of Crim.R. 16 by the State was harmless beyond a reasonable doubt. State v. Musselman, 2009 Ohio 424, at ¶ 17. The Court concludes Petitioner has failed to establish his claim of unconstitutional prosecutorial misconduct.

Sub-claim Three: Ineffective Assistance of Counsel

In his third sub-claim on Branch I, Petitioner asserts the withholding of the Indiana ID caused his attorneys to provide ineffective assistance of trial counsel. This claim is procedurally defaulted in that it has never been presented to the Ohio courts, either on direct appeal or in a petition for post-conviction relief.

Branch II: Allied Offenses of Similar Import

In his second ground for relief, Petitioner contends his conviction should be set aside because he has been convicted of allied offenses of similar import (Petition, Doc. No. 1, at 21-29.) Petitioner's entire argument in this portion of his Petition is that his conviction violates Ohio Rev. -12-

Code § 2941.25. Throughout his argument, he makes no constitutional analysis at all, instead relying on Ohio decisions interpreting the allied import statute.1 Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. §2254(a); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). We cannot consider whether the Ohio Court of Appeals was correct or incorrect in its interpretation of Ohio Rev. Code § 2941.25. "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62 (1991). A federal reviewing court is generally bound by state court interpretations of state law. Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), quoting Bradshaw v. Richey, 546 U.S. 74, 76 (2005)("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."), Maldonado v. Wilson, 416 F.3d 470 (6th Cir. 2005); Vroman v. Brigano, 346 F.3d 598, (6th Cir. 2003); Caldwell v. Russell, 181 F.3d 731, 735-36, (6th Cir. 1999); Duffel v. Dutton, 785 F.2d 131, 133 (6th Cir. 1986). Even if the Court of Appeals were wrong on the meaning of Ohio Rev. Code § 2941.25, failure to abide by state law is not itself a constitutional violation. Roberts v. City of Troy, 773 F.2d 720 (6th Cir. 1985). Violation by a State of its own procedural rules does not necessarily constitute a violation of due process. Bates v. Sponberg, 547 F.2d 325 (6th Cir. 1976); Ryan v. Aurora City Bd.

The only federal citation offered (Petition at 21) is Cone v. Bell, 129 S. Ct. 1769 (2009), for the proposition that the Fourteenth Amendment requires States to ensure justice in criminal prosecutions. The case dealt with the procedural default defense, not the propriety of conviction on multiple related counts. -13-

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of Educ., 540 F.2d 222, 228 (6th Cir. 1976). "A state cannot be said to have a federal due process obligation to follow all of its procedures; such a system would result on the constitutionalizing of every state rule, and would not be administrable." Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir.1993). Petitioner's second ground for relief is without merit.

Branch III: Failure to Provide an Adequate Record

In his third ground for relief, Mr. Musselman claims that the recording system in the Montgomery County Common Pleas Court does not provide an adequate record of proceedings, evidenced in this case by its failure to record any of the sidebar conferences among counsel and the court, of which there were many. Petitioner certainly did not raise this claim as a federal constitutional claim in the state courts. Indeed, he abandoned the claim before the appeal became ripe on the merits. The Court of Appeals held: [*P18] In his third assignment of error, Musselman asserts that the trial court erred in failing to provide an adequate record of the numerous bench conferences that occurred during trial. In response, the State points out that we previously remanded this case to the trial court for correction of the record to reflect the content of the bench conferences. In a September 24, 2008 memorandum, Musselman acknowledged that "the issue of the bench conferences has been determined and no new issues were raised by the contents of those conferences * * *." Accordingly, we overrule the third assignment of error as moot. State v. Musselman, 2009 Ohio 424, at ¶ 18. Apparently the electronic recording equipment in the trial court did fail to function properly, a fact which became clear when the record was prepared for -14-

the appeals court. As Respondent notes, On January 3, 2008, Musselman filed a motion asking the appellate court to remand the case to the trial court to correct or supplement the record with records of bench conferences (sidebars) that were not transcribed or transmitted on appeal. (Exhibit 14) The Court of Appeals granted Musselman's motion for remand. (Exhibit 15) On July 16, 2008, the trial court submitted a decision on correction of the record. The decision indicated that the recordings of the sidebars were inaudible and that the matter was set for a hearing at which time Musselman's counsel requested that the determination of what was contained in the record be left up to the trial court. The trial court spent over six hours listening to CD-Rom recordings of the sidebars and an additional two to three hours reviewing the transcript to note the context in which the objections were made. The court indicated it was able to understand the nature of the objection or conversation and what the ruling was. The court then described or summarized all 32 sidebars. (Exhibit 16) There is no indication that Musselman objected to or was dissatisfied with the trial court's determination of the sidebars. (Return of Writ, Doc. No. 5, at 5.) There is no federal constitutional right to appeal criminal verdicts for error review. McKane v. Durston, 153 U.S. 684 (1894), cited as still good law in Lopez v. Wilson, 426 F.3d 339, 355 (6th Cir. 2005). "Due process does not require a State to provide appellate process at all." Goeke v. Branch, 514 U.S. 115, 120 (1995). Of course when it does provide a right to appeal, the State cannot discriminate against the poor by failing to provide the necessary transcript. Griffin v. Illinois, 351 U.S. 12 (1956). Counsel must be appointed on appeal of right for indigent criminal defendants. Douglas v. California, 372 U.S. 353 (1963). In this case there was no question of discrimination or denial of equal protection: according to Petitioner's counsel, the recording equipment is inadequate for rich and poor alike. But there is no federal constitutional right to an error-free record on appeal. Petitioner's third ground for relief is therefore without merit.

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Conclusion

Based on the foregoing analysis, the Petition will be dismissed with prejudice. The Clerk will enter judgment to that effect. March 30, 2010.
s/ Michael R. Merz United States Magistrate Judge

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