State v. AbdulState v. Abdul
JUDGMENT: APPLICATION DENIED
RELEASE DATE: December 1, 2009
Jamill Shabazz Abdul, pro se
Inmate No. 541-031
T.O.C.I. A3W9
2001 E. Central Ave.
Toledo, Ohio 43608
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: T. Allan Regas
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, A.J.:
{¶ 1} On May 7, 2009, the applicant, Jamill Shabazz Abdul,1 pursuant to
The evidence at trial showed that Abdul discharged a pistol into the victim‘s head at point-blank range. The issue at trial was whether this was an intentional act, an accident, or the result of Abdul‘s mistakenly thinking that the gun contained only blanks.
{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel‘s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, cert. denied (1990), 497 U.S. 1011, 110 S.Ct. 3258.
{¶ 3} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an attorney‘s work must be highly deferential. The Court noted that it is all too tempting for a defendant to second-guess his lawyer after conviction and that it would be all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that a particular act or omission was deficient. Therefore,
{¶ 4} Specifically, in regard to claims of ineffective assistance of appellate counsel, the United States Supreme Court has upheld the appellate advocate‘s prerogative to decide strategy and tactics by selecting what he thinks are the most promising arguments out of all possible contentions. The court noted: “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue, if possible, or at most on a few key issues.” Jones v. Barnes (1983), 463 U.S. 745, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987. Indeed, including weaker arguments might lessen the impact of the stronger ones. Accordingly, the Court ruled that judges should not second-guess reasonable professional judgments and impose on appellate counsel the duty to raise every “colorable” issue. Such rules would disserve the goal of vigorous and effective advocacy. The Ohio Supreme Court reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
{¶ 5} Moreover, even if a petitioner establishes that an error by his lawyer was professionally unreasonable under all the circumstances of the case, the petitioner must further establish prejudice: but for the unreasonable error there is
{¶ 6} Additionally, appellate review is strictly limited to the record. The Warder, Bushnell & Glessner Co. v. Jacobs (1898), 58 Ohio St. 77, 50 N.E. 97; Carran v. Soline Co. (1928), 7 Ohio Law Abs. 5 and Republic Steel Corp. v. Sontag (1935), 21 Ohio Law Abs. 358. “Clearly, declining to raise claims without record support cannot constitute ineffective assistance of appellate counsel.” State v. Burke, 97 Ohio St.3d 55, 2002-Ohio-5310, ¶ 10.
{¶ 7} Abdul first claims that his trial counsel were ineffective because they did not subpoena and present various witnesses. This argument is unpersuasive because Abdul does not establish prejudice. He does not establish with references to the record who these witnesses are and, more importantly, how their testimony would have exonerated him. Without that, this court can only speculate, and speculation does not establish prejudice. State v. Spencer (June 17, 1996), Cuyahoga App. No. 69490, reopening disallowed 2003-Ohio-5064 and State v. Thompson, Cuyahoga App. No. 79334, 2002-Ohio-5957, reopening disallowed 2003-Ohio-79334. Abdul has attached to his supplemental brief the first page of an investigator‘s report concerning
{¶ 8} Abdul complains that his counsel did not share discovery with him. He seems particularly aggrieved because the witness statements were not provided to him. However, under
{¶ 9} Abdul also complains that his defense counsel did not impeach one of the State‘s chief witnesses, William Green, with his extensive criminal record. Instead, defense counsel impeached Green with multiple inconsistencies between his trial testimony and the statement he gave to the police. Defense counsel also showed that Green had a bias, that he wanted justice for his friend, the victim. Given the supreme court‘s admonitions concerning an attorney‘s strategy and tactics, it is understandable that appellate counsel, in the exercise of
{¶ 10} Appellate counsel did argue that trial counsel was ineffective for failing “to inquire concerning prospective jurors bias toward members of the Muslim faith.” However, because Abdul‘s arguments were not well-founded, appellate counsel in the exercise of professional judgment properly decided not to include them in his assignment of error.
{¶ 11} Abdul‘s second proposed assignment of error is that the trial court erred in not granting his motion to appoint new counsel. Approximately two months before trial at a hearing to waive speedy trial rights, Abdul orally moved the trial court to change lawyers. Abdul said that he had a conflict of interest with one of his attorneys, because he thought that attorney did not have his “best interest at heart.” (Tr. 9.) When the judge asked Abdul to specify the lawyer‘s deficiencies, Abdul replied that his rights under
{¶ 12} In order to obtain substitute counsel, a defendant must show good cause, such as a conflict of interest, a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant‘s right to effective assistance of counsel, or an irreconcilable conflict that would lead to an unjust result. Disagreements between the attorney and the defendant over strategy and tactics do not warrant a substitution of counsel. Moreover, the trial judge should conduct a hearing on the motion. The judge‘s decision is reviewed under an abuse of discretion standard. State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48; State v Jones, 91 Ohio St.3d 335, 2001-Ohio-57, 744 N.E.2d 1163; and State v. Blankenship (1995), 102 Ohio App.3d 534, 657 N.E.2d 559.
{¶ 13} In the instant case, the trial judge conducted a hearing on Abdul‘s motion for new counsel. Abdul expressed dissatisfaction but did not show a complete breakdown between himself and counsel. The trial judge noted counsel‘s experience and competence and how Abdul‘s complaints were not ripe. It is understandable why appellate counsel in the exercise of professional judgment would decline to argue an abuse of discretion regarding this issue.
{¶ 14} Accordingly, this court denies the application to reopen.
COLLEEN CONWAY COONEY, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
MARY J. BOYLE, J., CONCUR