Mark Gerth v. WardenMark Gerth v. Warden
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 1:16-cv-00598—Susan J. Dlott, District Judge.
Decided and Filed: September 16, 2019
Before: DONALD, LARSEN, and NALBANDIAN, Circuit Judges.
COUNSEL
ON BRIEF: Kort W. Gatterdam, CARPENTER, LIPPS & LELAND, LLP, Columbus, Ohio, for Appellant. Mary Anne Reese, OFFICE OF THE OHIO ATTORNEY GENERAL, Cincinnati, Ohio, for Appellee.
NALBANDIAN, Circuit Judge. An Ohio jury convicted Mark Gerth of a dozen counts related to his theft of an SUV and high-speed escape from police, which ended when he plowed into a taxicab in downtown Cincinnati and killed its two occupants. Gerth now seeks federal habeas relief, alleging that his appellate counsel failed to argue that the trial court improperly denied his request to proceed pro se. Because Gerth procedurally defaulted his claim, we AFFIRM the district court‘s denial of his habeas petition.
I.
A.
In the early morning of March 16, 2011, a Cincinnati police officer on patrol in the city‘s Over-the-Rhine neighborhood spotted a red Toyota SUV and ran its license plate number, only to discover that it had been reported stolen.1 The SUV stopped
The pursuit ended tragically. Speeding over 75 miles-per-hour, the SUV raced through a red light in downtown Cincinnati before swiping the front end of a vehicle and then slamming into a taxicab. The SUV finally came to rest after hitting a parking meter and catching fire. The SUV‘s driver took off on foot, leaving his passenger, who sustained fractures to his leg, inside the burning vehicle. Rescue workers ultimately freed the passenger from the SUV, and he survived, but the taxicab‘s occupants fared worse. The driver, Mohamed Sidi, died instantly, and his passenger, Tonya Hairston, died on her way to the hospital.
Officers apprehended the SUV‘s driver shortly after he fled on foot and later identified the man as Mark Gerth. Although Gerth suffered only minor injuries, police took him to a hospital, where a toxicology test revealed that he had alcohol, marijuana, and cocaine in his system. At trial, a forensic toxicologist testified that the amount of cocaine in Gerth‘s bloodstream would have undermined Gerth‘s ability to drive.
The State charged Gerth with a dozen counts related to the crash: two counts of felony murder, four counts of aggravated vehicular homicide, one count each of aggravated vehicular assault and of vehicular assault, two counts of leaving the scene of the accident, one count of failure to comply with the order or signal of a police officer, and one count of receiving stolen property.
B.
A half-dozen attorneys have represented Gerth throughout his criminal trial, appeals, and collateral attacks on his conviction and sentence. In August 2011, months before his April 2012 trial date, Gerth moved to replace his first court-appointed attorney. The court granted Gerth‘s motion and appointed new trial counsel, but in October 2011, Gerth moved to replace that attorney too. The court denied Gerth‘s motion, explaining, “we do have to move this case along. It has been delayed and really been delayed by continuances and all that, most of or all of which are at the request of the defendant.” (R. 5-4, Tr. at PageID #482.)
That ruling did not deter Gerth. When the court held a December 2011 evidentiary hearing, Gerth interrupted as soon as the proceeding began and stated, “I would like to fire [his counsel].” (R. 5-5, Tr. at PageID #490.) Despite the court‘s attempts to proceed with the hearing, Gerth continued to interrupt until he “voluntarily absented” himself from the courtroom. (Id. at PageID #493-94.) Gerth then filed another motion to remove his counsel, and things came to a head when the court addressed that motion at a March 12, 2012 hearing. After extensive crosstalk between the court and Gerth, the court denied the motion, explaining that “[w]e‘re not continuing the case.” (R. 5-7, Tr. at PageID #555.) Gerth then responded, “I would rather represent myself than allow this man to represent me.” (Id. at PageID #556.) The court denied that request.
After that hearing adjourned, Gerth filed a motion requesting to proceed pro se. The court permitted Gerth to read aloud the motion on April 2, the day of jury selection, and then denied the motion on two grounds. First, the court described Gerth‘s mental illness, for which Gerth had been hospitalized. (R. 5-8, Tr. at PageID #582-83.) Second, the court explained that Gerth‘s pro se request was untimely and “an attempt . . . to further delay this trial.”
The jury convicted Gerth on all twelve counts, and the trial court sentenced him to 582-months to life in prison. A new attorney represented Gerth on appeal and argued that insufficient evidence supported Gerth‘s convictions for felony murder and receiving stolen property. But the Ohio Court of Appeals affirmed Gerth‘s convictions, Gerth, 2013 WL 1820817, at *3, and the Ohio Supreme Court declined to exercise discretionary review of that decision, State v. Gerth, 994 N.E.2d 464 (Ohio 2013) (table). The trial court then denied Gerth‘s untimely pro se petition for post-conviction relief, and the Ohio Court of Appeals affirmed that decision as well.
Gerth then filed his first application to reopen his appeal under
As instructed, Gerth filed a timely brief addressing three assignments of error. The first two assignments related to the third ground for reopening the appeal: Gerth alleged that his first appellate counsel failed to argue that his convictions and sentences for leaving the scene of the accident should have merged. And Gerth identified a new assignment of error that he did not previously address in his Rule 26(B) application, contending that his first appellate counsel failed to make a Confrontation Clause argument. But Gerth‘s brief did not mention Faretta or the trial court‘s denial of his request to proceed pro se.
Although the Ohio Court of Appeals rejected the Confrontation Clause assignment of error, it sustained the first two assignments of error, vacated Gerth‘s sentence, and remanded the matter to the trial court to resentence Gerth on just one count of leaving the scene of the accident. State v. Gerth, No. C-120393, 2014 WL 5306631, at *3 (Ohio Ct. App. Oct. 17, 2014). The trial court then resentenced Gerth to a term of 546-months to life in prison. Gerth appealed his resentencing with a different appellate attorney and alleged that the findings in the record did not support the sentence. That appeal did not succeed.
After his resentencing, Gerth filed another application to reopen his appeal under
The Ohio Court of Appeals denied Gerth‘s second application to reopen his appeal, noting that Ohio law “makes no provision for a successive application” and holding that res judicata barred all of Gerth‘s claims. (R. 5, Ex. 50, Order Den. Appl. to Reopen Appeal at PageID #393.) Gerth appealed the denial to the Ohio Supreme Court, but that court declined to review the appeal. State v. Gerth, 36 N.E.3d 190 (Ohio 2015) (table).
C.
With nowhere to turn in state court, Gerth petitioned for a writ of habeas corpus in federal court under
recommendation, which concluded that although Gerth had preserved the Faretta argument for review, it should be dismissed with prejudice. Nonetheless, the magistrate judge issued a supplemental report recommending that the district court grant a certificate of appealability on Gerth‘s Faretta argument. The district court adopted the recommendations and denied the petition with prejudice while also granting a certificate of appealability on the Faretta argument. Gerth appeals the denial of his petition.
II.
We review de novo the district court‘s denial of a habeas petition. Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). Because the district court neither conducted an evidentiary hearing nor made factual findings of its own, we defer to the state court‘s factual findings and presume that they are correct, absent a showing of clear and convincing evidence to the contrary. Hodgson v. Warren, 622 F.3d 591, 598 (6th Cir. 2010).
Before we reach the merits of a habeas petition, however, we review whether the petitioner has satisfied the state procedural requirements for litigating his federal claim in state court. Bickham v. Winn, 888 F.3d 248, 250-51 (6th Cir. 2018) (citing Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000)). If he has not satisfied those requirements—and procedurally defaulted his claim—he cannot present the claim in federal court. Id. at 251. We review de novo whether the petitioner has procedurally defaulted his claim. Id.
A.
A petitioner seeking a writ of habeas corpus must comply with two procedural requirements, both grounded in the interests of comity and federalism, before a federal court may review the petitioner‘s claim. First, the petitioner must exhaust all available opportunities to pursue his claim in state court before he may litigate that claim in federal court.
The government argues that these doctrines preclude us from reviewing Gerth‘s ineffective assistance of counsel claim. But Gerth argues that the government itself has forfeited these arguments. After Gerth filed his habeas petition alleging several examples of ineffective assistance of appellate counsel, the government filed an answer, in which it argued both that Gerth had procedurally defaulted his Faretta argument and that the argument was meritless. The magistrate judge disagreed with the government‘s procedural default argument, finding that the claim was “preserved for review under
A party may forfeit its ability to raise an issue that the magistrate judge has rejected if the party did not timely object to the magistrate judge‘s findings and recommendations. See
We said it would be “illogical” to require the government to raise an objection in that posture. Id. That same reasoning applies here.
B.
We turn now to the government‘s argument that Gerth procedurally defaulted his habeas claim. Gerth‘s federal claim is that he received ineffective assistance of counsel because his appellate counsel did not raise the Faretta argument to overturn his state court conviction. But Gerth, of course, has had several appeals and still more attorneys, so to orient ourselves, we review the history of Gerth‘s trial and appeals.
One or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel‘s deficient representation[.]
Gerth filed two applications under
Adopting the magistrate judge‘s recommendations, the district court determined that the Ohio Court of Appeals silently rejected Gerth‘s Faretta argument as a basis for reopening the appeal. The government asks us to draw the same conclusion—and Gerth does not argue otherwise. Although their instincts are correct, their precise conclusion here is not. True, when a party presents a federal claim before a state court and the claim goes unaddressed, we “must presume that the federal claim was adjudicated on the merits.” Ross v. Pineda, 549 F. App‘x 444, 455 (6th Cir. 2013) (quoting Johnson v. Williams, 568 U.S. 289, 301 (2013)). But we do not draw that inference here because the Ohio Court of Appeals was not adjudicating the issues in Gerth‘s
When the Ohio Court of Appeals granted Gerth‘s 26(B) application, it also appointed Gerth new appellate counsel and instructed Gerth to bring any nonfrivolous
After the district court resentenced him, Gerth filed his second
That leaves us with the following question: does Ohio‘s res judicata doctrine act as a procedural bar to our review of Gerth‘s federal claim? To answer that question, we apply the four-part test from Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) and decline to review Gerth‘s claim if: (1) Gerth failed to comply with Ohio‘s res judicata doctrine; (2) Ohio courts enforce that doctrine; (3) res judicata is an adequate and independent state ground for denying review of a constitutional claim; and (4) Gerth cannot show cause and prejudice excusing the default. See Webb v. Mitchell, 586 F.3d 383, 397 (6th Cir. 2009) (citing Maupin, 785 F.2d at 138).
We consider first whether Gerth has complied with Ohio‘s res judicata doctrine. The Ohio Supreme Court has described res judicata as the rule:
[T]hat a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.
State v. Davis, 894 N.E.2d 1221, 1223 (Ohio 2008) (internal quotation marks omitted). That doctrine applies to 26(B) proceedings. Indeed, the Ohio Supreme Court has repeatedly held that “[o]nce ineffective assistance of counsel has been raised and adjudicated, res judicata bars its relitigation.” State v. Twyford, 833 N.E.2d 289, 290 (Ohio 2005) (quoting State v. Williams, 790 N.E.2d 299, 300-01 (Ohio 2003)). When the Ohio Court of Appeals granted Gerth‘s first 26(B) application, appointed Gerth counsel, and reopened Gerth‘s appeal, Gerth could have raised all of the alleged deficiencies in his representation on direct appeal, including that his first appellate counsel rendered ineffective assistance by not raising the Faretta argument. But Gerth‘s second appellate counsel never raised the Faretta argument on the reopened appeal, and that decision precludes Gerth from raising the argument again in state court. That Gerth‘s second appellate counsel may have erred
The second Maupin factor asks us to determine whether Ohio courts enforce res judicata. They do. See Twyford, 833 N.E.2d at 290; Williams, 790 N.E.2d at 300-01; State v. Cheren, 652 N.E.2d 708, 708-09 (Ohio 1995). And under the third Maupin factor, we must consider whether res judicata is an adequate and independent state ground to foreclose our review of Gerth‘s federal claim. We have repeatedly said that it is. See, e.g., Landrum v. Mitchell, 625 F.3d 905, 934 (6th Cir. 2010) (“The Ohio Court of Appeals‘s reliance on res judicata was an adequate and independent state ground to foreclose habeas relief in federal court.“); Fautenberry v. Mitchell, 515 F.3d 614, 633 (6th Cir. 2008); Williams v. Bagley, 380 F.3d 932, 967 (6th Cir. 2004); Martin v. Mitchell, 280 F.3d 594, 604 (6th Cir. 2002).
Our analysis turns on the fourth Maupin factor: whether Gerth can show cause and prejudice to excuse his default. In Murray v. Carrier, the Supreme Court explained that a petitioner seeking to show cause must identify “some objective factor external to the defense [that] impeded counsel‘s efforts to comply with the State‘s procedural rule.” 477 U.S. 478, 488 (1986). One such example is “attorney error rising to the level of ineffective assistance of counsel.” Hargrave-Thomas v. Yukins, 374 F.3d 383, 388 (6th Cir. 2004); see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray, 477 U.S. at 488-89).
Gerth argues that his second appellate counsel rendered ineffective assistance by not raising the Faretta argument on the reopened appeal—and that the deficient representation serves as cause for his procedural default. Gerth‘s argument has merit only if his attorney‘s ineffectiveness amounted to a constitutional violation. Coleman, 501 U.S. at 754. And that turns on whether Gerth had a constitutional right to counsel on the reopened appeal: there can be no constitutional violation if Gerth had no constitutional right to counsel at the stage of the proceeding allegedly tainted by ineffective assistance. See Carter v. Mitchell, 693 F.3d 555, 565 (6th Cir. 2012). So we must determine whether Gerth had a constitutional right to counsel after the Ohio Court of Appeals granted his first
There is no dispute that Gerth had a constitutional right to counsel on direct appeal. See, e.g., Evitts v. Lucey, 469 U.S. 387, 393-94 (1985); Douglas v. California, 372 U.S. 353 (1963). But it is equally well-settled that Gerth did not have a constitutional right to counsel when he applied to reopen his appeal before the Ohio Court of Appeals. The Supreme Court has explained that a defendant has “no constitutional right to an attorney in state post-conviction proceedings” and therefore “cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Coleman, 501 U.S. at 752. And sitting en banc, we concluded that the 26(B) application is “part of the collateral, postconviction process rather than direct review” and held that a defendant who applies to reopen his appeal under
Our conclusion that a reopened appeal is a collateral proceeding matches the Ohio Supreme Court‘s precedents. In Morgan v. Eads, the Ohio Supreme Court described
As always, there is an exception to the rule. Although the Supreme Court held in Coleman that ineffective assistance of counsel in a postconviction proceeding cannot qualify as cause to excuse the petitioner‘s procedural default, 501 U.S. at 752, the Court has since identified a “narrow exception” to that general rule. Martinez v. Ryan, 566 U.S. 1, 9 (2012). In Martinez, the Court considered whether a petitioner could show cause to excuse his procedural default in a post-conviction proceeding where—critically—that proceeding presented his first opportunity to allege ineffective assistance of trial counsel. Id. at 5. The Court remarked that because Arizona prohibited criminal defendants from raising ineffective assistance of trial counsel arguments on direct appeal, the post-conviction proceeding “is in many ways the equivalent of a prisoner‘s direct appeal as to the ineffective-assistance claim.” Id. at 11. Finding it “necessary to modify the unqualified statement in Coleman that an attorney‘s ignorance or inadvertence in a postconviction proceeding does not qualify as a cause to excuse a procedural default,” the Court announced a “narrow exception” to Coleman: “Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner‘s procedural default of a claim of ineffective assistance at trial.” Id. at 9.
The Court‘s holding in Martinez does not, however, dictate a similar outcome here. Indeed, the Court‘s recent decision in Davila forecloses any support that Martinez may have offered to excuse Gerth‘s procedural default. In Davila, the petitioner argued that his state-appointed postconviction counsel failed to raise his ineffective assistance of appellate counsel claim in his state habeas petition—and that the error provided cause to excuse his procedural default. 137 S. Ct. at 2063. Much like the petitioner in Martinez, the petitioner in Davila could not raise his ineffective assistance of appellate counsel claim until the postconviction, state habeas proceeding. The Court, however, distinguished Martinez, which “was principally concerned about trial errors—in particular, claims of ineffective assistance of trial counsel“—from the “distinct context of ineffective assistance of appellate counsel.” Id. at 2066-67. So out of “respect [for] that judgment,” the Court declined to expand Martinez to procedurally defaulted claims of ineffective assistance of appellate counsel. Id.
Because Gerth had no constitutional right to counsel on the reopened appeal, he cannot excuse his procedural default. See Coleman, 501 U.S. at 752.
III.
For these reasons, we AFFIRM the district court‘s denial of Gerth‘s petition for habeas corpus.