Schleiger v. Warden, Allen Oakwood Correctional Institution

Filing 11

REPORT AND RECOMMENDATIONS - The failure of the Twelfth District to appoint new counsel for Mr. Schleiger once it found plain error was contrary to the decision in Penson. Because Mr. Schleiger was deprived of his right to appellate counsel, it is respectfully recommended that the Court issue a writ of habeas corpus commanding Mr. Schleiger's release unless his appeal is reopened and he is appointed counsel to argue the appeal within ninety days of the date the judgment in this case becomes final. Objections to R&R due by 8/3/2017. Signed by Magistrate Judge Michael R. Merz on 7/20/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CURTIS SCHLEIGER,
Petitioner,

:

- vs -

Case No. 3:15-cv-249
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

ED SHELDON, Warden,
Allen/Oakwood Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the
merits.
Upon review of the Petition (ECF No. 1), the Court ordered the Warden to answer (ECF
No. 2). In due course the Warden filed the state court record (“Record,” ECF No. 6) and a
Return of Writ (ECF No. 7). Mr. Schleiger, who is represented by Assistant Ohio Public
Defender Stephen Hardwick, then filed his Traverse (ECF No. 9), making the case ripe for
decision. The reference was transferred to the undersigned to help balance the Magistrate Judge
workload in the Western Division (ECF No. 10).
Mr. Schleiger pleaded the following grounds for relief:
Ground One: Mr. Schleiger’s rights to counsel, due process, and
equal protection, as guaranteed by the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution, were violated when
he was resentenced without counsel and without a valid waiver of
counsel.
1

Supporting Facts: Petitioner Curtis Schleiger was resentenced
because the trial court had not properly imposed post release
control. He was denied counsel without a valid waiver of counsel
pursuant to Faretta v. California, 422 U.S. 706, 95 S. Ct. 2525. 45
L. Ed. 2d 562 (1975).
Ground Two: Mr. Schleiger’s rights to appellate counsel, due
process, and equal protection, as guaranteed by the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution, were
violated when the state court of appeals permitted his appointed
counsel to withdraw and failed to appoint new counsel even though
his appeal contained at least one non-frivolous issue.
Supporting Facts: Petitioner Curtis Schleiger was convicted by a
jury of felonious assault and carrying a concealed weapon. He was
sentenced to nine years and six months in prison. His appointed
appellate counsel filed a motion to withdraw pursuant to Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493. Mr.
Schleiger filed a pro se brief raising other issues. The court of
appeals found a non-frivolous issue, an error in the imposition of
postrelease control. But instead of appointing new counsel for a
full review of the record, the court of appeals summarily reversed
the trial court’s decision and remanded for resentencing.
(Petition, ECF No. 1, PageID 3-4.)

Procedural History

Curtis Schleiger was indicted in May 2009 on assault and weapons charges arising out of
a bar fight on April 22, 2009, in which Schleiger stabbed Mathew Dillman. A jury found him
guilty of felonious assault and carrying a concealed weapon. The trial judge sentenced him to
eight years on the assault charge and a consecutive eighteen months on the weapons charge.
His appointed counsel on appeal filed an Anders brief. Schleiger himself filed a pro se
brief which raised no claim relating to post-release control. On its own review of the record, the
2

Twelfth District Court of Appeals found no error prejudicial to Schleiger’s rights except that the
trial court had imposed a five-year term of post-release control when the mandatory term was
three years. It also found the trial judge had failed to explain the consequences of violating postrelease control. State v. Schleiger, 2010-Ohio-4080, 2010 Ohio App. LEXIS 3454 (12th Dist.
Aug. 30, 2010). The court reversed and remanded with instructions to correct the imposition of
post-release control. Habeas counsel then entered the case and appealed to the Ohio Supreme
Court, which declined to accept jurisdiction.
On November 24, 2010, Schleiger moved to reopen his direct appeal pursuant to Ohio R.
App. P. 26(B) on a claim of ineffective assistance of appellate counsel. The Twelfth District
declined relief because it found the Application complained of the remedy provided for the trial
court’s error, rather than asserting ineffective assistance of appellate counsel arising from the
filing of an Anders brief. The Ohio Supreme Court again declined jurisdiction. Schleiger
petitioned the United States Supreme Court to grant certiorari, but the writ was denied.
The trial court recovered jurisdiction with denial of the 26(B) application. It proceeded
on October 20, 2011, to correct the imposition of post-release control to three years with an
advice of consequences of violating. Schleiger again appealed. Over his objection, the Twelfth
District limited the scope of the appeal to the resentencing and held he did not have a right to
counsel at the resentencing hearing because the proceeding was “purely ministerial and a
defendant does not face a substantial risk of prejudice without counsel.” State v. Schleiger, 2013Ohio-1110, *P16, 987 N.E. 2d 754, 758 (12th Dist. 2013).
On Schleiger’s motion, the Twelfth District recognized a conflict between its decision
and that of another Ohio court of appeals and certified the conflict to the Ohio Supreme Court.
3

That court also accepted Schleiger’s delayed appeal on the question whether there was a right to
counsel at a hearing to reimpose post-release control. The Ohio Supreme Court held there was a
right to counsel at such a hearing, but that Schleiger had validly waived that right. State v.
Schleiger, 141 Ohio St. 3d 67 (2014). Schleiger again sought review by certiorari in the United
States Supreme Court, but that court declined to hear the case. Mr. Schleiger then filed his
instant Petition in this Court.

Analysis

In his Traverse, Mr. Schleiger has withdrawn his First Ground for Relief (ECF No. 9,
PageID 1422).

Ground Two: Denial of Right to Appellate Counsel

In his Second Ground for Relief, Mr. Schleiger claims his constitutional rights were
violated when the Twelfth District allowed his appointed counsel to withdraw and failed to
appoint new counsel after finding his appeal contained “at least one nonfrivolous issue.”
The Warden does not assert any procedural defense to this claim, inferentially conceding
it is preserved for merit review in habeas corpus. When a state court decides on the merits a
federal constitutional claim later presented to a federal habeas court, the federal court must defer
to the state court decision unless that decision is contrary to or an objectively unreasonable

4

application of clearly established precedent of the United States Supreme Court. 28 U.S.C. '
2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 785 (2011); Brown v. Payton,
544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor,
529 U.S. 362, 379 (2000).
The text of the relevant portion of the Twelfth District’s decision is as follows:
[*P2] Counsel for defendant-appellant, Curtis D. Schleiger, has
filed a brief with this court pursuant to Anders v. California
(1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493, which (1)
indicates that a careful review of the record from the proceedings
below fails to disclose any errors by the trial court prejudicial to
the rights of appellant upon which an assignment of error may be
predicated; (2) lists three potential errors "that might arguably
support the appeal," Anders at 744, 87 S.Ct. at 1400; (3) requests
that this court review the record independently to determine
whether the proceedings are free from prejudicial error and without
infringement of appellant's constitutional rights; (4) requests
permission to withdraw as counsel for appellant on the basis that
the appeal is wholly frivolous; and (5) certifies that a copy of both
the brief and motion to withdraw have been served upon appellant.
[*P3] Appellant has filed a pro se brief raising assignments of
error pertaining to dismissal of the indictment, denial of a
continuance, failure to find a lesser included offense, ineffective
assistance of counsel, prejudicial use of a prior offense,
intoxication of the victim and new witnesses and statements
regarding the incident. We have accordingly examined the record
and find no error prejudicial to appellant's rights in the proceedings
in the trial court except as set forth below.
[*P4] Appellant was sentenced on September 17, 2009 for one
count of felonious assault, a second-degree felony. As such,
appellant was subject to a mandatory three-year period of
postrelease control. See R.C. 2967.28. At the sentencing hearing,
the trial court informed appellant that "there will be a mandatory
period of postrelease control after his release from the penitentiary
of five years." The sentencing entry states that appellant is subject
to mandatory postrelease control, "up to a maximum of five years."
However, a second degree felony requires a mandatory term of
three years postrelease control. R.C. 2967.28. Moreover, the court
stated at the hearing that there were consequences for violating

5

postrelease control, but did not explain those consequences to
appellant. See R.C. 2929.19(B)(3)(e).
[*P5] Accordingly, postrelease control was not properly imposed
in this case. The Ohio Supreme Court has held that in cases where
a defendant is sentenced after July 11, 2006, R.C. 2929.191
provides a mechanism for a trial court to correct the improper
imposition of postrelease control. State v. Singleton, 124 Ohio
St.3d 173, 2009 Ohio 6434, 920 N.E.2d 958.
[*P6] Therefore, it is the order of this court that the motion of
counsel for appellant requesting to withdraw as counsel is granted.
This cause is reversed and the matter remanded with instructions to
the trial court to correct the improper imposition of postrelease
control pursuant to the procedures outlined in R.C. 2929.191.
State v. Schleiger, 2010-Ohio-4080 (12th Dist. Aug. 30, 2010).
Schleiger contends that the decision of the Twelfth District is contrary to or an
objectively unreasonable application of Penson v. Ohio, 488 U.S. 75 (1988).
In the Return of Writ, the Attorney General lays out correctly the basic law regarding
indigent appeals. There is no federal constitutional right to appeal a criminal judgment. 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); Halbert v. Michigan, 545 U.S. 605 (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).
When counsel is appointed for appeal but concludes there are no nonfrivolous issues for
appeal, he or she may file a so-called Anders brief, following the process described in Anders v.
California, 386 U.S. 738 (1967). Although the Anders process is not constitutionally mandated,

6

(Smith v. Robbins, 528 U.S. 259 (2000)(approving California alternative)), Schleiger asserts and
the Warden agrees that Ohio courts have adopted the Anders process.
In this case the Twelfth District followed that process.

It concluded that neither

appointed appellate counsel nor Mr. Schleiger in his pro se brief had raised any non-frivolous
issue. It sua sponte found an error on its own review, to wit, improper imposition of post-release
control as noted above. It allowed appointed counsel Roger Hurley to withdraw and reversed the
judgment and remanded “to correct the imposition of postrelease control pursuant to the
procedures outlined in R.C. [Ohio Revised Code §] 2929.191.” It is at this point that Schleiger
argues the Twelfth District acted contrary to Penson by not appointing a new appellate attorney.
Penson arose out of the Second Ohio Appellate District as opposed to the Twelfth, its
neighbor to the west and south. Penson was convicted of felonious assault in the Montgomery
County Court of Common Pleas. He was appointed new counsel for appeal, but that attorney
certified to the Second District that he could find no reversible error. Justice Stevens’ majority
opinion describes what happened next:
[*79] In due course, and without the assistance of any advocacy for
petitioner, the Court of Appeals made its own examination of the
record to determine whether petitioner received "a fair trial and
whether any grave or prejudicial errors occurred therein." Id., at
40. As an initial matter, the court noted that counsel's certification
that the appeal was meritless was "highly questionable." Ibid. In
reviewing the record and the briefs filed by counsel on behalf of
petitioner's codefendants, the court found "several arguable
claims." Id., at 41. Indeed, the court concluded that plain error had
been committed in the jury instructions concerning one count.
[FN1 Petitioner was charged in counts 5 and 6 of the indictment
with felonious assault. App. 6-7; see Ohio Rev. Code Ann. §
2903.11(A)(2) (1987). In examining the record, the Court of
Appeals discovered that the trial court neglected to instruct the jury
concerning an element of this crime. Applying the State's plainerror doctrine, which requires a showing of substantial prejudice,
the Court of Appeals reversed petitioner's conviction under count 6
of the indictment, but let stand his conviction under count 5. App.
7

41-43.] The court therefore reversed petitioner's conviction and
sentence on that count but affirmed the convictions and sentences
on the remaining counts. It concluded that petitioner "suffered no
prejudice" as a result of "counsel's failure to give a more
conscientious examination of the record" because the court had
thoroughly examined the record and had received the benefit of
arguments advanced by counsel for petitioner's two codefendants.
Ibid. Petitioner appealed the judgment of the Court of Appeals to
the Ohio Supreme Court, which dismissed the appeal. Id., at 45.
We granted certiorari, 484 U.S. 1059 (1988), and now reverse.
1
488 U.S. at 79. The Supreme Court found that the Second District had not complied with
Anders, particularly in “fail[ing] to appoint new counsel after finding the record supported
several arguably meritorious grounds for reversal of petitioner’s conviction and modification of
his sentence.” Id. at 81.
In Penson the Second District had also found the petitioner suffered no prejudice from
the failure to appoint new counsel. The Supreme Court disagreed:
The State nonetheless maintains that even if the Court of Appeals
erred in granting the motion to withdraw and in failing to appoint
new counsel, the court's conclusion that petitioner suffered "no
prejudice" indicates both that petitioner has failed to show
prejudice under Strickland v. Washington, 466 U.S. 668 (1984),
and also that any error was harmless under Chapman v. California,
386 U.S. 18 (1967). In either event, in the State's view, the Court
of Appeals' affirmance of petitioner's conviction should stand. We
disagree.
The primary difficulty with the State's argument is that it proves
too much. No one disputes that the Ohio Court of Appeals
concluded that the record below supported a number of arguable
claims. Thus, in finding that petitioner suffered no prejudice, the
court was simply asserting that, based on its review of the case, it
was ultimately unconvinced that petitioner's conviction -- with the
exception of one count -- should be reversed. Finding harmless
error or a lack of Strickland prejudice in cases such as this,
however, would leave indigent criminal appellants without any of
the protections afforded by Anders. Under the State's theory, if on
reviewing the bare appellate record a court would ultimately
8

conclude that the conviction should not be reversed, then the
indigent criminal appellant suffers no prejudice by being denied
his right to counsel. Similarly, however, if on reviewing the record
the court would find a basis for reversal, then the criminal
defendant also suffers no prejudice. In either event, the criminal
appellant is not harmed and thus has no basis for complaint. Thus,
adopting the State's view would render meaningless the protections
afforded by Douglas and Anders.
Penson at 85-86.
The Warden distinguishes this case from Penson by pointing out, correctly, that (1) the
appellate attorney in Penson had not filed a proper Anders brief, (2) the motion to withdraw had
been granted before the appellate court conducted its own independent review of the record, and
(3) the Second District had found “several arguable claims” in Penson. In this case, the Anders
brief complied with Anders, the motion to withdraw was not granted until after the independent
review, and the Twelfth District found no arguable issues, although it sua sponte found plain
error with respect to the imposition of post-release control.
The distinctions are not persuasive because the command in Penson is unequivocal. The
State essentially argues that a new attorney would have had no advocatory role to play because
the Twelfth District had already granted all the possible relief which an attorney could have
obtained. To the contrary, Petitioner’s counsel recites a number of nonfrivolous arguments
which a new attorney could have made about the remedy for improper imposition of post-release
control (Traverse, ECF No. 9, PageID 1424-26).1 Given the much-controverted state of the law
in Ohio concerning remedies for improper imposition of post-release control, it is inappropriate
for this Court to speculate how the Twelfth District would have evaluated those arguments. But
under Penson Mr. Schleiger is entitled to have the assistance of an attorney in making those
arguments.
1

The Court notes that the State has not made a harmless error argument here.

9

Conclusion

The failure of the Twelfth District to appoint new counsel for Mr. Schleiger once it found
plain error was contrary to the decision in Penson. Because Mr. Schleiger was deprived of his
right to appellate counsel, it is respectfully recommended that the Court issue a writ of habeas
corpus commanding Mr. Schleiger’s release unless his appeal is reopened and he is appointed
counsel to argue the appeal within ninety days of the date the judgment in this case becomes
final.

July 20, 2017.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

10