Griffin v. Warden, CASE NO. 2:14-CV-00857

CALVIN GRIFFIN, Petitioner, v. WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:14-CV-00857

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

February 1, 2017

JUDGE ALGENON L. MARBLEY

Magistrate Judge Elizabeth P. Deavers

OPINION AND ORDER

Through counsel, Petitioner has filed a motion to expand the record to include affidavits he has attached in support of his claim that he was denied his right to counsel. See Second Motion to Expand the Record (ECF No. 17.) For the reasons that follow, Petitioner's motion to expand the record (ECF No. 17) is GRANTED.

Petitioner asserts that he was denied his right to counsel, because on the first day of trial, he expressed dissatisfaction with his retained counsel, but the trial court refused to permit him to obtain a new attorney without conducting an adequate inquiry into his complaint. Petitioner has filed a motion to expand the record pursuant to Rule 7 of the Rules Governing Section 2254 Cases¹ in support of this claim to include an affidavit from his father, Murray Griffin; anaffidavit from one Deandra Taylor; and Petitioner's own affidavit. Second Motion to Expand Record (ECF No. 17, PageID# 678-685.)

Petitioner indicates that he had retained Attorney Nancy Wonnell to represent him for a fee of $3,500.00. In March 2012, she entered a notice of appearance as counsel of record. Affidavit of Calvin Griffin (ECF No. 17-1, PageID# 678.) Around that time, Attorney Wonnell visited the Petitioner at the jail and informed him she would be back to discuss the case. They did not discuss the charges against him. He had no further contact with her until July 23, 2012, the morning of trial. (PageID# 679.) He had no telephone contact with his attorney and they did not exchange any correspondence. On the morning of the first day of trial, she informed him that the government had extended a plea offer of six years "take it or leave it." (Id.) He had contacted and hoped to retain another defense attorney prior to the first day of trial, but never reached a financial agreement. He had absolutely no communication with his Attorney Wonnell prior to the morning of the first day of trial. (PageID# 680.)

In March 2012, Murray Griffin, Petitioner's father, paid Attorney Wonnell a sum of $3,500.00 to represent Petitioner in this case. Affidavit of Murry Griffin (ECF No. 17-2, PageID# 682.)

Sometime prior to the first day of trial, Deandra Taylor contacted Attorney Janet Grubb on Petitioner's behalf, due to his dissatisfaction with his retained counsel. Affidavit of Deandra Taylor (ECF No. 17-3, PageID# 684.) Attorney Grubb required a retainer of "$5,00 [sic] to $7,000.00." (Id.) It was Taylor's understanding that Petitioner's family was in the process of attempting to obtain the money to privately retain new counsel. (PageID# 685.)

Respondent opposes Petitioner's request to expand the record with the foregoing affidavits. Referring to Cullen v. Pinholster, 536 U.S.170, 180 (2011), Respondent argues that the Court must limit its review to the record that was before the state appellate court that adjudicated Petitioner's claim on the merits. Response in Opposition to Second Motion to Expand Record (ECF No. 20.)

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal habeas court cannot grant relief unless the Petitioner establishes that the state court decision contravened or unreasonably applied clearly established federal law, as determined by the United States Supreme Court, or based its decision on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(1), (2); see Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006).

A state court's decision is "contrary to" Supreme Court precedent if (1) "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law[,]" or (2) "the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision is an "unreasonable application" under 28 U.S.C. § 2254(d)(1) if it "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case" or either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389.

Coley, 706 F.3d at 748-49. The burden of satisfying the standards set forth in § 2254 rests with the petitioner. Pinholster, 563 U.S. at 180.

The United States Supreme Court held in Pinholster that a federal court, when determining under 28 U.S.C. § 2254(d) whether a state court decision adjudicating a claim on the merits was contrary to or involved an unreasonable determination of clearly established federallaw as determined by the United States Supreme Court or involved an unreasonable determination of the facts based on the evidence presented, must limit its review to the record that the state court considered when it rendered its adjudication. See Lynch v. Hudson, No. 2:07-cv-948, 2011 WL 4537890, at *4 (S.D. Ohio Sept. 28, 2011) (citing Pinholster, 563 U.S. at 180-81). "In conducting the § 2254(d) inquiry, the Court is limited to the record that was before the state courts." Torres v. MacLaren, 184 F.Supp.3d 587, 591 (E.D. Mich. 2016) (citing Pinholster, 563 U.S. at 181). If, however, a petitioner clears the § 2254(d) hurdle, the Court may then evaluate the claim de novo. Id. (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007) ("When a state court's adjudication of a claim is dependent on an antecedent unreasonable application of federal law, the requirement set forth in § 2254(d)(1) is satisfied. A federal court must then resolve the claim without the deference AEDPA otherwise requires."). Such are the circumstances here.

A state court unreasonably determines the facts of a case if it fails to consider key aspects of the record, Miller-El v. Cockrell, 537 U.S. 322, 340, 346-47, 123 S. Ct. 1029, 154 L.Ed.2d 931 (2003), if the record does not support its determination, Taylor v. Maddox, 366 F.3d 992, 1008 (9th Cir. 2004), if it makes an unreasonable credibility determination, Miller-El, 537 U.S. at 340, 123 S.Ct. 1029, or if it relies on the testimony of an individual who lacked personal knowledge of the facts, Bui v. Haley, 321 F.3d 1304, 1315-16 (11th Cir.2003). A habeas court "may no more uphold such a factual determination than [it] may set aside a reasonable state-court fact-finding." Taylor, 366 F.3d at 1008.

Carlson v. Jess, 507 F. Supp. 2d 968, 978 (E.D. Wisc. 2007). Under 28 U.S.C. § 2254(d)(2), 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.'" Brumfield v. Cain, -- U.S. --, 135 S .Ct. 2269, 2277 (2015) (citing Wood v. Allen, 558 U.S. 290, 301 (2010)). "[H]owever, '[e]ven in the context of federal habeas, deference does not implyabandonment or abdication of judicial review,' and 'does not by definition preclude relief.'" Id. (quoting Miller-El v. Cockrell, 537 U.S. at 340).

This Court has previously determined that the state appellate court's decision rejecting Petitioner's claim constituted an unreasonable determination of the facts in light of the evidence presented under 28 U.S.C. § 2254(d)(2). Order and Report and Recommendation (ECF No. 8.) Respondent does not object to that determination. See Objection (ECF No. 9.)

As discussed, the state appellate court rejected Petitioner's claim, in part, by finding that he untimely expressed his dissatisfaction with counsel on the morning of the first day of trial, in general terms lacking sufficient specificity to warrant any further inquiry, and nothing in the record suggested such a break down in the attorney-client relationship that Petitioner had not received adequate representation. The state appellate court referred to State v. Gordon, 149 Ohio App.3d 237, 241 (Ohio App. 1st Dist. 2002), in support of its conclusion, noting that "mere hostility, tension and personal conflicts between attorney and client do not constitute a total breakdown in communication if those problems do not interfere with the preparation and presentation of a defense." See State v. Griffin, No. 12AP-798, 2013 WL 6506888, at *1-4 (Ohio App. 10^th Dist. Dec. 10, 2013).

However, the record does not support these factual findings. Petitioner complained on the morning of the first day of trial that he had not seen his attorney prior to that time. The nature of this complaint, i.e., that he had been unable to communicate with his attorney prior to the first day of trial, suggests the strongest type of breakdown in communication that would prohibit adequate representation. This case does not present an an issue involving hostility, tension, or a personal conflict between Petitioner and his defense counsel. Clearly, had he been unable to community with his attorney prior to the first day of trial, Petitioner could not have hadany meaningful or adequate opportunity to discuss the charges against him, develop a defense, or decide whether he should enter a guilty plea. Petitioner's complaint, therefore, necessarily raised an issue regarding a complete breakdown in communication that would have resulted in inadequate representation. Further, 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.

Moreover, the trial transcripts indicate that defense counsel repeatedly referred to Petitioner during trial by the wrong name. See Transcript (ECF No. 6-2...