ELIZABETH A. PRESTON DEAVERS, Magistrate Judge.
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
Petitioner's request for an evidentiary hearing is
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:
State v. Griffin, No. 12AP-798, 2013 WL 6506888, at *1 (Ohio App. 10th Dist. Dec. 10, 2013). On April 23, 2014, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Griffin, 138 Ohio St.3d 1470. Thereafter, Petitioner timely filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that the trial court improperly refused to appoint new counsel (claim one); that he was denied the effective assistance of counsel because his attorney failed to file a motion to suppress evidence (claim two); and that he was denied a fair trial (claim three). It is the position of the Respondent that Petitioner's claims lack merit or are procedurally defaulted.
Petitioner seeks habeas relief under 28 U.S.C. § 2254. The Antiterrorism and Effective Death Penalty Act ("AEDPA") sets forth standards governing this Court's review of state-court determinations. The United State Supreme Court recently described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the `extreme malfunction' for which federal habeas relief is the remedy." Burt v. Titlow, ___ U.S. ____, ____, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) ("AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and demands that state court decisions be given the benefit of the doubt." (internal quotation marks, citations, and footnote omitted)).
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 2254(e) (1) provides:
"Under AEDPA, a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts." Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)); 28 U.S.C. § 2254(d)(1) (a petitioner must show that the state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law"); 28 U.S.C. § 2254(d)(2) (a petitioner must show that the state court relied on an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding"). The United States Court of Appeals for the Sixth Circuit recently explained these standards as follows:
Coley, 706 F.3d at 748-49. The burden of satisfying the standards set forth in § 2254 rests with the petitioner. Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
"In order for a federal court to find a state court's application of [Supreme Court precedent] unreasonable, . . . [t]he state court's application must have been objectively unreasonable," not merely "incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520-21, (2003) (internal quotation marks omitted) (citing Williams v. Taylor, 529. U.S. at 409 and Lockyer v. Andrade, 538 U.S. 63, 76 (2003)); see also Harrington v. Richter, 562 U.S. at 101 ("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." (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In considering a claim of "unreasonable application" under § 2254(d)(1), courts must focus on the reasonableness of the result, not on the reasonableness of the state court's analysis. Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ("`[O]ur focus on the `unreasonable application' test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and not whether the state court considered and discussed every angle of the evidence.'" (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc))); see also Nicely v. Mills, 521 F. App'x 398, 403 (6th Cir. 2013) (considering evidence in the state court record that was "not expressly considered by the state court in its opinion" to evaluate the reasonableness of state court's decision). Relatedly, in evaluating the reasonableness of a state court's ultimate legal conclusion under § 2254(d)(1), a court must review the state court's decision based solely on the record that was before it at the time it rendered its decision. Pinholster, 563 U.S. at 180. Put simply, "review under § 2254(d)(1) focuses on what a state court knew and did." Id. at 1399.
In claim one, Petitioner asserts that he was denied his right to counsel of choice and that the trial court improperly refused to conduct a hearing on his request for the appointment of new counsel. The state appellate court rejected Petitioner's claim as follows:
[A]ppellant asserts the trial court erred in refusing his request to obtain new counsel. By way of background, on the morning of the first day of trial, prior to the jury being impaneled, defense counsel informed the trial court that she believed appellant no longer wanted her representation. Appellant cites the following portion of the trial transcript involving a colloquy between defense counsel, the trial court, and appellant:
State v. Griffin, 2013 WL 6506888, at *1-4.
The Sixth Amendment right to effective assistance of counsel includes the "right of a defendant who does not require appointed counsel to choose who will represent him." United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (citing Wheat v. United States, 486 U.S. 153, 159 (1988); Powell v. Alabama, 287 U.S. 45, 53 (1932)). "[A] denial of this Sixth Amendment right is a structural error not subject to harmless error analysis, but only when the denial is unjustifiable." Dixon v. Warden, S. Oh. Corr. Facility, 940 F.Supp.2d 614, 625 (S.D. Ohio Feb.11, 2013) (citing Gonzalez-Lopez, 548 U.S. at 148). However, a criminal defendant's right to the attorney of his choice is "circumscribed in several important respects." Gonzalez-Lopez, 548 U.S. at 144 (quoting Wheat v. United States, 486 U.S. at 159). Significantly, "the right to counsel of choice does not extend to defendants who require counsel to be appointed for them." Gonzalez-Lopez, 548 U.S. at 151-52 (citations omitted).
In Morris v. Slappy, 461 U.S. 1 (1983), the Supreme Court held that Constitution does not guarantee a criminal defendant's right to a "meaningful attorney-client relationship." Id. at 13. Slappy's appointed attorney fell ill shortly before trial, and the trial court appointed new counsel on Slappy's behalf six days prior to the scheduled trial date. After the trial commenced, Slappy expressed dissatisfaction with his new attorney, and requested a continuance until his previously appointed counsel would be available to represent him. Defense counsel, however, indicated that he was ready to proceed, and the court denied Slappy's request. The Supreme Court rejected Slappy's claim that the trial court had unconstitutionally denied his request for a continuance:
Id. at 11. The Supreme Court further noted that Slappy's belated requests may not have been made in good faith, but as a "transparent ploy for delay." Id. at 13.
The United States Court of Appeals for the Sixth Circuit has held that an indigent defendant "must show good cause, such as a `conflict of interest, a complete breakdown in communication or an irreconcilable conflict with his attorney'" to substitute counsel during trial. Henness v. Bagley, 644 F.3d 308, 321 (6th Cir. 2011) (quoting Sullivan, 431 F.3d at 979-80). "A complete breakdown in communication occurs when there is a severe and pervasive conflict between the defendant and his attorney, or evidence of minimal contact with the attorney rendering meaningful communication impossible." Smith v. Bonner, 104 F.Supp.3d 1252, 1272 (D. Colo. 2015) (citing United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)). The Court considers four factors when reviewing a trial court's denial of a motion to substitute counsel:
United States v. Vasquez, 560 F.3d 461, 466 (6th Cir. 2009) (quoting United States v. Mach, 258 F.3d 548, 556 (6th Cir. 2001)). "If the defendant's motion would `necessitate a last-minute continuance, the trial judge's actions are entitled to extraordinary deference.'" Henness, 644 F.3d at 2011 (citing Vasquez, at 467). In Henness, the Sixth Circuit rejected Henness's claim that the trial court had unreasonably applied constitutional law in denying counsel's motion to withdraw, noting that the request did not occur until the guilt phase of the trial, the trial court inquired into the matter, and most of the difficulty resulted from Henness's own refusal to cooperate with counsel. Id. at 321-22.
In United States v. Illes, 906 F.2d 1122 (6th Cir. 1990),
Id. at 1130 (footnotes omitted). The Sixth Circuit rejected Iles' claim, however, because he had failed to make his dissatisfaction with counsel known to the court. Id. at 1131.
The Sixth Circuit again addressed the issue in Benitez v. United States, 521 F.3d 625 (6th Cir. 2008). Benitez filed a motion to vacate under 28 U.S.C. § 2255, claiming, inter alia, that he had been denied his right to counsel of choice in violation of the Sixth Amendment because the court failed to inquire into his expressed dissatisfaction with counsel. Id. at 630-31. The Sixth Circuit held that where a criminal defendant alerts the court that he desires a substitution of counsel, the "court is obligated to inquire into the defendant's complaint and determine whether there is good cause for the substitution," balancing "`the accused's right to counsel of his choice and the public's interest in the prompt and efficient administration of justice.'" Id. at 632 (quoting Illes, at 1131; United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996)). "Appellate courts reviewing the denial of such a motion `generally consider the timeliness of the motion; the adequacy of the court's inquiry into the defendant's complaint; and whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense.'" Id. (quoting Iles, 906 F.2d at 1130 n.8). The Sixth Circuit concluded that the district court's failure to inquire into the source and nature of Benitez's dissatisfaction with counsel violated his Sixth Amendment right to counsel. Id. at 635-36. Benitez, however, was represented by privately retained counsel. Id. at 631. This case presents a different issue.
In this case, the trial judge conducted virtually no inquiry. At the time of trial, Petitioner had retained his attorney. On appeal, the Government offered a post hac rationale for the lack of inquiry by pointing out that the Petitioner was in fact indigent and was therefore not entitled to the attorney of his choice. (See State's Brief to Court of Appeals, PAGEID # 162.) The state appellate court concluded that "the record does not indicate the trial court denied appellant the right to retained counsel of his choice; rather, in responding to [Petitioner's] claimed dissatisfaction with trial counsel, the court in essence was addressing a request for new appointed counsel." State v. Griffin, 2013 WL 6506888 at *3.
Under the terms of 28 U.S.C. § 2254(d)(1), this Court may only grant federal habeas corpus relief where the decision of the state appellate court contravened or unreasonably applied clearly established federal law of the United States Supreme Court. The issue thus becomes whether the Supreme Court requires trial courts to inquire of indigent defendants before determining whether to grant or deny a request for new counsel. Clearly established federal law refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. at 412). Other courts to address the issue have held that a trial court's failure to inquire into an indigent defendant's request for substitution of counsel does not warrant relief under 28 U.S.C. § 2254(d)(1) because the United States Supreme Court has not held that a trial court has the duty to make such inquiry.
Brooks v. Lafler, 454 F. App'x 449, unpublished, 2012 WL 10923, at *3 (6th Cir. Jan. 4, 2012) (declining to grant habeas relief on Petitioner's claim that the trial court violated his violated his Sixth Amendment right to counsel when it denied his request for new counsel without a sufficient inquiry into good cause); see also Peterson v. Smith, 510 F. App'x 356, unpublished, 2013 WL 49565, at *10 (6th Cir. 2013) (trial court's failure to conduct inquiry into defendant's request for substitution of counsel does not provide basis for relief under § 2254(d)(1), because no such inquiry is required by clearly established Supreme Court precedent) (citing Brooks v. Lafler, 454 F. App'x 449, 452 (6th Cir.2012) (per curiam); James v. Brigano, 470 F.3d 636, 643 (6th Cir. 2006) (reversing a grant of relief because the inquiry requirement did not constitute clearly established Federal law); Smith v. Bonner, 104 F.Supp.3d 1252, 1271 (D. Co. May 12, 2015) ("To date, the Supreme Court has not articulated a standard for deciding a Sixth Amendment claim based on a habeas petitioner's allegation the trial court denied his request for substitute counsel.") (citing Peterson v. Smith, 510 F. App'x 356, 2013 WL 49565, at *10 (6th Cir. Jan. 3, 2013)); Cantoni v. Leclair, No. 12 Civ 4353, 2015 WL 518226, at *2 (S.D. N.Y. Feb. 9, 2015) ("[D]efendants who rely on court-appointed counsel are entitled to effective counsel, but they `do not have a veto over who is appointed to defend them, provided that appointed counsel's representation is adequate.'") (citing Felder v. Goord, 564 F.Supp.2d 201, 220 (S.D.N.Y. 2008); Soltero v. Kuhlman, No. 99CV10765, 2000 WL 1781657, at *3 (S.D. N.Y. Dec. 4, 2000) ("Absent a claim of ineffective assistance, the state court's decision to deny petitioner's motion to substitute counsel conflicts neither with any particular Supreme Court decision nor with any general principle of Supreme Court jurisprudence.").
James v. Lafler, No. 2:09-cv-10929, 2010 WL 3702629, at *16 (E.D. Mich. Aug. 3, 2010).
Here, the state appellate court found that Petitioner was indigent, and unable to retain his own attorney. The appellate court also found that the record did not indicate that counsel was unprepared or that Petitioner received inadequate representation. Petitioner has failed to rebut the presumption of correctness of these factual findings. 28 U.S.C. § 2254(e). While the Court finds it troubling that the trial court failed to further inquire into Petitioner's complaint that he had not communicated with his attorney prior to his first appearance in court, in view of the lack of authority from the Supreme Court mandating such inquiry upon an indigent's request for substitution of counsel, this Court's authority to grant relief is constrained under the dictates of 28 U.S.C. § 2254(d)(1).
Habeas relief also may be warranted under 28 U.S.C. § 2254(d)(2), however, where the state appellate court's decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Woods v. Allen, 558 U.S. 290, 301 (2010) (citing Williams v. Taylor, 529 U.S. at 411). "[E]ven if `[r]easonable minds reviewing the record might disagree' about the finding in question, `on habeas review that does not suffice to supersede the trial court's . . . determination.'" Id. (citing Rice v. Collins, 546 U.S. 333, 341-42 (2005)).
McMullan v. Booker, 761 F.3d 662, 670 (6th Cir. 2014) (declining to resolve the issue) (footnote omitted).
Brumfield v. Cain, ___ U.S. ___, ___, 135 S.Ct. 2269. 2277 (2015).
Here, the record reflects that on the morning of the first day of trial, prior to the jury being impaneled, defense counsel informed the trial court that she believed that the petitioner no longer wanted her representation. Petitioner stated that he had seen his attorney for the first time on that date. He wanted an attorney appointed who would work on his behalf. Nonetheless, on these facts, the appellate court denied relief, in part, by concluding that Petitioner had failed to state his complaint with sufficient specificity to warrant further investigation, and the record did not suggest a breakdown in the attorney-client relationship such that Petitioner could not have received adequate representation. In making this determination, the state appellate court only recounted Petitioner's statements that "I don't think she's working on my behalf," and "I don't see anything she's doing for me." Griffin, 2013 WL 6506888, at *3. The court did not address Petitioner's assertions that there had been a total lack of communication, his attorney had never come to see him at the jail, and that the first day of trial was the first day he had ever seen her.
This Court concludes that these factual determinations are not reasonable in light of the evidence presented. The Petitioner appears to have alerted the trial court to his concern with appointed counsel — and his inability to communicate with her — at the earliest opportunity he had to do so, that being when he was brought before the trial court. Further, the nature of Petitioner's complaint, namely that he had been unable to consult with his attorney prior to the first day of trial, suggests the strongest type of breakdown in communication that would prohibit adequate representation.
The Magistrate Judge therefore
In claim two, Petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to file a motion to suppress evidence. The state appellate court denied this claim as follows:
State v. Griffin, 2013 WL 650888, at *4-5.
The right to counsel guaranteed by the Sixth Amendment to the U.S. Constitution is the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a complaint of ineffective assistance of counsel, a defendant must meet the twoprong Strickland test:
Id. at 687. The Supreme Court emphasized that "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. Put plainly, "[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." Id. Moreover, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 692. Rather, a defendant must demonstrate prejudice to prevail on a claim of ineffective assistance of counsel. Id. at 693. To do so, a defendant must establish that a reasonable probability exists that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Because a defendant must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel, should the court determine that he or she has failed to satisfy one prong, it need not consider the other. Id. at 697. Where the petitioner asserts that his attorney performed in a constitutionally ineffective manner in failing to litigate a Fourth Amendment claim, he must establish that his "`Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.'" Henness v. Bagley, 644 F.3d 308, 317-18 (6th Cir. 2011) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
"It is settled law that the police may conduct an inventory search of an automobile that is being impounded without running afoul of the Fourth Amendment." United States v. Jackson, 682 F.3d 448, 455 (6th Cir. 2012) (citing United States v. Smith, 510 F.3d 641, 650 (6th Cir. 2007)). "Vehicle inventory searches are an exception to the Fourth Amendment's probable cause requirement and are valid if conducted in accordance with standard police procedures." United States v. Ballard, 432 F. App'x 553, 556 (6th Cir. 2011) (citing Colorado v. Bertine, 479 U.S. at at 371-72; United States v. Harvey, 16 F.3d 109, 112 (6th Cir. 1994)). Inventory searches "`serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.'" United States v. Smith, 510 F.3d 641, 650-51 (6th Cir. 2007) (quoting United States v. Lumpkin, 159 F.3d 983, 987 (6th Cir. 1998) (citing Bertine)). "An inventory search must proceed pursuant to `standardized criteria' or `established routine' in order to protect against the use of inventory searches as `a ruse for a general rummaging in order to discover incriminating evidence.'" United States v. Thompson-Bey, No. 3:09-cr-64, 2010 WL 2711105, at *9 (E.D. Tenn. Jan. 12, 2010) (citing Florida v. Wells, 495 U.S. 1, 4 (1990)). The "procedures may be written, but established unwritten procedures are also sufficient." United States v. Agofsky, 20 F.3d 866, 873 (8th Cir. 1994) (citing United States v. Lowe, 9 F.ed 43, 46 (1993) (cert. denied, 510 U.S. 1181 (1994). An officer's suspicion of contraband will not defeat an otherwise proper inventory search. United States v. Smith, 510 F.3d at 651 (6th Cir. 2007); Lumpkin, 159 F.3d at 987. Police may exercise their discretion so long as it is exercised according to standard criteria and not on suspicion of evidence of criminal activity. Hockenberry, 730 F.3d at 658 (citing Jackson, 682 F.3d at 454 (citations omitted) (internal quotation marks omitted); United States v. Kimes, 246 F.3d 800, 805 (6th Cir. 2001).
Here, the state appellate court found that police impounded the vehicle based upon Petitioner's valid arrest and because nobody else was available to drive the vehicle. They thereafter conducted an inventory search of the vehicle pursuant to standard established procedure. Petitioner does not dispute these findings, nor has he rebutted the presumption of correctness afforded to the factual findings of the state appellate court. 28 U.S.C. § 2254(e). Under these circumstances, a motion to suppress evidence obtained by police pursuant to a valid inventory search of the vehicle for its impoundment could not have succeeded.
Petitioner has failed to establish the denial of the effective assistance of counsel based on his attorney's failure to file a motion to suppress evidence.
In claim three, Petitioner asserts generally that he was denied a "fundamentally fair trial," in violation of his "right to due process and equal protection of law as guaranteed him in the 4th, 5th, 6th, and 14th Amendments to the U.S. Constitution." (ECF No. 1, PageID# 8.) Petitioner fails to provide any further basis for such claim, aside from indicating that it "occurred after appeal process completed." (PageID# 9.) This Court is unable to determine the nature of this claim.
Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts provides that the Petitioner must specify the nature of his grounds for relief and state the facts in support of each ground. Dismissal under Habeas Rule 2(c) is appropriate in cases where it is impossible to determine from the petitioner's pleadings the exact errors of fact or law raised for adjudication. See Rice v. Warden, No. 1:14-cv-732, 2015 WL 5299421, at *4 (S.D. Ohio Sept. 9, 2015) (dismissal under Rule 2(c) appropriate where pleadings contain unintelligible and conclusory allegations and statements) (citations omitted); Accord v. Warden, Lebanon Corr. Inst., No. 2:12-cv-355, 2013 WL 228027, at *3 (S.D. Ohio Jan. 22, 2013) (while the court liberally construes a pro se prisoner's pleadings, it is not required to "conjure allegations" on the petitioner's behalf) (citations omitted)).
Therefore, the Magistrate Judge
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b) (1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
