The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANJUAN HENRY,
Petitioner, : Case No. 3:19-cv-207
- vs - District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
NORM ROBINSON, Warden,
London Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus action brought pro se by Petitioner Anjuan Henry to obtain relief
from his convictions in the Common Pleas Court of Clark County on charges of drug possession
and trafficking (Petition, ECF No. 1, PageID 1.) On this Court’s Order (ECF No. 3), Respondent
has filed the State Court Record (ECF No. 14) and a Return of Writ (ECF No. 15). Petitioner has
filed a timely Reply (ECF No. 17), making the case ripe for decision.
Litigation History
On June 14, 1999, the Clark County, Ohio, Grand Jury indicted Henry on one count of
Fleeing and Eluding in violation of Ohio Revised Code § 2921.331(B)) (Count 1); one count of
Receiving Stolen Property in violation of Ohio Revised Code § 2913.51) (Count 2), and one count
of Possession of Crack Cocaine (exceeding 100 grams) in violation of Ohio Revised Code §
2925.11 with a Major Drug Offender specification (Count 3). (Indictment in Case No. 99-CR-296,
State Court Record, ECF No. 14, Exhibit 1, PageID 89). On November 1, 1999, the Clark County
Grand Jury indicted Henry on two counts of Trafficking in Drugs in violation of Ohio Revised
Code § 2925.03 (Counts 1-2). (Indictment in Case No. 99-CR-584, State Court Record ECF No.
14, Exhibit 2, PageID 91).
The cases were consolidated (Entry, State Court Record, ECF No. 14 Exhibit 4, PageID
97), and tried on May 15, 2000, with the parties agreeing that only the possession of cocaine charge
from Case No. 296 and the trafficking charges from Case No. 584 would be tried. Henry was
convicted on all three counts and sentenced to nineteen years in prison in Case 296 and four years
each on the trafficking charges in Case 584, all to be served consecutively, for an aggregated
sentence of twenty-seven years (Judgment Entry, State Court Record, ECF No. 14, Exhibit 7,
PageID 102-04).
Henry took a direct appeal to the Ohio Second District Court of Appeals, which reversed
and remanded. State v. Henry, Case No. 2000-CA-80, 2002-Ohio-391 (Ohio App. 2nd Dist. Feb.
1, 2002) (“Henry I”). On remand, Henry was convicted of possession of crack cocaine with a major
drug offender specification and sentenced to seventeen years, consecutive to any sentence that
might be imposed in Case 594. In that case, Henry then pleaded no contest to the two trafficking
counts with an agreed sentence of five years each, but to be concurrent with the Case 296 sentence
(Judgment Entry, State Court Record, ECF No. 14, Exhibit 10, PageID 118). The court of appeals
affirmed. State v. Henry, Case Nos. 2003-CA-47, 2003-CA-88, 2005-Ohio-4512 (Ohio App. 2nd
Dist. Aug. 19, 2005) (“Henry II”). Henry did not appeal to the Supreme Court of Ohio.
After several other filings not relevant to the instant habeas corpus petition, on April 5,
2016, Henry filed a Motion for Leave to File a Delayed Motion for New Trial in Case 296 (State
Court Record, ECF No. 14, Ex. 24, PageID 189 et seq.). In it he claimed he had learned in February
2016 that his trial attorney, Daniel L. O’Brien, had “before and during defendant’s June 2003 jury
trial,” been having a “romantic affair” with Erica Bibbs, described in the Motion as Henry’s ex-
fiancee and the mother of Henry’s two children. Id. at PageID 190. He alleged this created a
conflict of interest which deprived him of his Sixth Amendment right to effective assistance of
counsel. The trial court denied the Motion and Henry appealed (State Court Record, ECF No. 14,
Exhibits 29-30, PageID 208-11). The Second District remanded for a hearing on whether Henry
should be permitted to file a delayed motion for new trial. State v. Henry, 2017-Ohio-7426, 96
N.E.3d 1123 (Ohio App. 2nd Dist. 2017) (“Henry III”).
In parallel with the new trial proceedings in Case 296, Henry filed on April 5, 2016, a
“Delayed Petition to Vacate a No Contest Plea and Set Aside Judgment of Conviction” in Case
584, making the same allegations about the affair. The trial court denied the petition and Henry
appealed. Eventually the Second District ordered the trial court to treat the matter as a petition for
post-conviction relief under Ohio Revised Code § 2953.21. Henry III, 2017-Ohio-7426, ¶¶ 19, 24.
In the possession case (Case No. 296), the trial court held the ordered evidentiary hearing
on February 15, 2018, at which the sole witness was Erica Bibbs. The trial court then allowed the
delayed motion for new trial to be filed and held a hearing on that motion April 23, 2018, at which
no witnesses were presented. The trial court thereafter denied the delayed motion for new trial on
May 29, 2018 (Entry, State Court Record, ECF No. 14, Ex. 72). Meanwhile in the trafficking case
(Case No. 584), the trial court denied post-conviction relief on June 19, 2018. Id. at Ex. 74.
Henry appealed both decisions. After consolidation, the Second District affirmed. State
v. Henry, 2019-Ohio-1256, 134 N.E.3d 843 (Ohio App. 2nd Dist. 2019) (“Henry IV”). The
Supreme Court of Ohio declined to exercise appellate jurisdiction. State v. Henry, 2019-Ohio-
2261 (2019).
Henry then filed the instant habeas corpus petition, pleading the following grounds for
relief:
GROUND ONE: The State trial court violated Petitioner’s Fifth
and Fourteenth Amendment rights to due process when it sua sponte
reconsidered a Defense witness’s previously favorable credibility
determination (in connection with new trial proceedings).
Facts in Support: On February 20, 2018 (subsequent to February
2018 new trial proceedings) the State trial court judged that
Petitioner credibly demonstrated, by clear and convincing proof,
that he was unavoidably prevented from discovering the evidence of
an affair between his then-fiancée and trial counsel (during
representation). On May 29, 2018, (in a separate entry), the State
trial court sua sponte determined that the same affidavits and
testimony that were the basis of his February judgment lacked
credibility.
GROUND TWO: The State trial court violated Petitioner’s Fifth
and Fourteenth Amendment right to due process when it overruled
Petitioner’s new trial motion, which showed that trial counsel
labored under an actual conflict of interest, and also showed that trial
counsel’s representation was adversely affected.
Facts in Support: In Petitioner’s new trial motion he demonstrated
that an actual conflict of interest resulting from an affair between
trial counsel and then-fiancée adversely affected trial counsel’s
representation. Specifically, Petitioner showed that trial counsel’s
failure to move for a new trial based on the affair amounted to
adverse performance. Parenthetically, neither the State trial court,
nor state appellate court, addressed Petitioner’s argument that said
failure on the part of trial counsel established adverse performance.
GROUND THREE: The State trial court violated the Petitioner’s
Fifth and Fourteenth Amendment right to due process when it
overruled Petitioner’s petition for post-conviction relief, which
showed that trial counsel’s non-disclosure of an affair with
petitioner’s then-fiancée infected the voluntary nature of his no-
contest plea.
Facts in Support: Petitioner’s post-conviction petition showed (via
credible affidavits and testimony) that his no contest plea was
involuntary due to an actual and undisclosed conflict of interest that
petitioner’s trial counsel labored under.
(Petition, ECF No. 1, PageID 15-16).
Analysis
Failure to State a Claim on which Habeas Corpus Relief Can Be Granted
With respect to all three of Henry’s Grounds for Relief, Respondent asserts that they do
not state a claim upon which habeas corpus relief can be granted because they do not claim a
violation of the United States Constitution which has been recognized by the federal courts
(Return, ECF No. 15, PageID 775-77).
Petitioner begins his Reply asserting that the Second District’s April 5, 2019, decision “was
based on an unreasonable determination in light of the evidence presented in the state court
proceedings,” thus invoking the standard for reviewing a state court decision enacted in 28 U.S.C.
§ 2254(d)(2) (ECF No. 17, PageID 797). He then proceeds to argue the merits of his new trial
motion. Id. at PageID 797-807. He then turns to Respondent’s arguments on cognizability.
As to Ground One, Henry does not assert that it states a federal constitutional claim (Reply,
ECF No. 17, PageID 808. As to Ground Two, he asserts that denial of a new trial motion can be
so egregious as to deny a defendant a fair trial which states a claim under the Sixth and Fourteenth
Amendments. Id. at PageID 809-12. As to Ground Three, he asserts it is not procedurally
defaulted and that he is entitled to relief on the merits. Id. at PageID 812-14.
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780
(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). “[I]t is
not the province of a federal habeas court to reexamine state court determinations on state law
questions. In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62,
67-68 (1991); accord: Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825) (Marshall C. J.);
Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018) (Thapar, J., concurring)).
Habeas relief may be available where a violation of state law “amounts to a fundamental
miscarriage of justice or a violation of the right to due process in violation of the United States
Constitution.” Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008). “State law errors may warrant
habeas relief if the errors ‘rise for some other reason to the level of a denial of rights protected by
the United States Constitution.’” Hoffner v. Bradshaw, 622 F.3d 487, 495 (2010), quoting Barclay
v. Florida, 463 U.S. 939, 957-58 (1983).
State law issues are not subject to habeas review, and this Court can
review the denial of [Petitioner’s] motion for new trial only for
constitutional error. To establish a constitutional due process claim,
[Petitioner] must demonstrate that the trial court's denial of his
motion for new trial was “so egregious” that it violated his right to
a fundamentally fair trial. See)
Pudelski v. Wilson, 576 F.3d 595, 611 (6th Cir. 2009), citing Estelle, 502 U.S. at 67-68; Fleming v.
Metrish, 556 F.3d 520, 535 (6th Cir. 2009); Baze v. Parker, 371 F.3d 310, 324 (6th Cir. 2004).
The Magistrate Judge concurs with Respondent’s position as to Ground One. There is no
federal constitutional rule prohibiting a state trial judge from sua sponte reconsidering a witness’s
credibility (assuming arguendo that accurately characterizes what happened here), particularly
when the testimony is being evaluated for different purposes in different contexts.
The only authority to the contrary that Henry cites are State v. Raber, 134 Ohio St. 3d 350,
2012-Ohio-5636, and Forest Grove School Dist., v. T.A., 638 F. 3d 1234 (9th Cir. 2011) (Graber,
J., dissenting) (Reply, ECF No. 17, PageID 808).
In Raber the Supreme Court of Ohio held “A trial court lacks authority to reconsider a final
judgment in a criminal case.” 2012-Ohio-5636, paragraph 1 of the syllabus, citing State ex rel.
White v. Junkin, 80 Ohio St.3d 335, 338 (1997), and State ex rel. Hansen v. Reed, 63 Ohio St.3d
597 (1992) (as followed). But the trial judge’s decision here to allow Henry to file a delayed
motion for new trial was not embodied in a final judgment; it was clearly interlocutory. The
portion of the Forest Grove decision cited by Henry is Judge Graber’s dissent; the dispute between
her and the majority is about the law of the case doctrine as it binds a lower court on remand. 638
F.3d at 1242. Forest Grove is not applicable here because the trial judge’s decision did not relate
to any credibility finding by the Second District before remand which would have become part of
the law of the case.
Based on this analysis, Ground One does not state a claim under the United States
Constitution and should be dismissed on that basis.
Grounds Two and Three, however, do purport to state claims under the Constitution, to
wit, denial of due process of law in not granting a new trial on the basis of the evidence submitted.
See Fleming, Baze, and Pudelski, supra. Grounds Two and Three should not be dismissed for
failure to state a claim cognizable in habeas corpus.
Procedural Default
In Ground Three Henry asserts he received ineffective assistance of trial counsel in that his
trial attorney did not advise him of the affair with Ms. Bibbs and this rendered his two no contest
pleas in Case 584 voidable.
Respondent asserts Ground Three is procedurally defaulted because it was not properly
presented to the Ohio courts (Return, ECF No. 15, PageID 791-93). Henry responds that he raised
this claim in his petition for post-conviction relief (Reply, ECF No. 17, PageID 812-13). In his
Motion to Amend Petition to Include Supplemental Argument, he asserted the legal proposition
that “[i]neffective assistance of trial counsel is found to have affected the validity of a no contest
plea when it precluded a defendant from entering his plea knowingly and voluntarily.” (State
Court Record, ECF No. 14, Ex. 45, PageID 317, citing State v. McQueen, No. 08 MA 24, 2008-
Ohio-6589 (Ohio App. 7th Dist. Dec. 12, 2008)). He then made the factual assertion that on
November 12, 2003, attorney O’Brien concealed from his client and the trial court an “Owen
violation.” Id. (emphasis in original), citing Disciplinary Counsel v. Owen, 143 Ohio St. 3d 323,
2014-Ohio-4597.
Henry’s post-conviction petition was summarily denied on November 8, 2016 (Entry, State
Court Record, ECF No. 14, PageID 318). Henry raised only one assignment of error on appeal, to
wit, “The trial court violated Appellant’s 14th Amendment right to equal protection of the law when
it classified Appellant’s 2953.21 petition as a Criminal Rule 32.1 motion and failed to issue
findings of fact and conclusions of law.” Henry III, 2017-Ohio-7427, ¶ 14. After remand, Henry
again moved to add an additional argument to his petition, essentially again raising the failure of
O’Brien to disclose the affair. (Motion for Leave to Amend Petition to Include Additional
Argument, State Court Record, ECF No. 14, Ex. 73, PageID 445-46, relying on State v. Gilliard,
68 Ohio St. 3d 304.1). Without ever formally ruling on the motion to amend, the trial court
considered it when entering judgment denying his petition for post-conviction relief (Entry, State
Court Record, ECF No. 14, Ex. 74, PageID 447-49). At the very end of its ultimate decision on
1 No such decision appears at the cited volume and page. The relevant case appears to be State v. Gillard, 78 Ohio St.
3d 548 (1997).
appeal, the Second District wrote:
Finally, Henry argues near the end of his appellate brief that we
should declare his no-contest plea in the drug-trafficking case
“involuntary” and that we should dismiss both of the cases discussed
above for “want of jurisdiction.” Henry provides no factual or legal
basis for these requests, and we see none.
Henry IV, 2019-Ohio-2261, ¶ 52.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010) (en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th
Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an “adequate and independent” state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138 (“the Maupin test”); accord: Hartman v. Bagley, 492 F.3d 347, 357 (6th
Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Ohio R.App.P. 16 requires that issues on which appellant seeks a ruling from the court of
appeals must be embodied in assignments of error. Henry presented no assignment of error
regarding the trial court’s ruling on his claim that his no contest pleas were rendered voidable by
O’Brien’s conflict of interest. The Second District enforced that rule against him by declining to
rule on the merits of that claim. The rule is an adequate and independent state ground of decision:
Ohio has an obvious judicial economy interest in requiring the appropriate structuring of appeals
to focus on the issues actually being raised. Indeed, the practice of the Sixth Circuit is parallel; it
also will not consider on the merits a claim that has not been properly pleaded and briefed. Finally,
Henry has not shown excusing cause and prejudice, or even attempted to do so in the portion of
his Reply devoted to procedural default (ECF No. 17, PageID 812-13). Ground Three should
therefore be dismissed as procedurally defaulted.
The Merits of Henry’s Ineffective Assistance of Trial Counsel Claim
Henry’s Second Ground for Relief claims his trial attorney labored under an actual conflict
of interest by virtue of his affair with Erica Bibbs and that conflict adversely affected his
performance. The last reasoned state court decision on that issue is Henry IV.2 In deciding Henry’s
first and third assignments of error, Judge Hall wrote for the court:
{¶ 21} In his first assignment of error, Henry challenges the trial
court's denial of his new-trial motion.
2 A habeas court is to review the last reasoned state court decision on any federal constitutional issue in a given case.
Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
{¶ 22} “A trial court's decision on a Crim.R. 33 motion for new trial
will not be reversed absent an abuse of discretion.” State v. Gillispie,
2d Dist. Montgomery No. 24456, 2012-Ohio-1656, ¶ 31, citing State
v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990), paragraph one
of the syllabus; State v. Matthews, 81 Ohio St.3d 375, 378, 1998-
Ohio 433, 691 N.E.2d 1041 (1998). “‘Abuse of discretion’ has been
defined as an attitude that is unreasonable, arbitrary or
unconscionable.” (Citation omitted.) AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161,
553 N.E.2d 597 (1990).” State v. DeVaughns, 2018-Ohio-1421, ¶
15, 110 N.E.3d 922 (2d Dist.).
{¶ 23} In support of his motion for leave to file a motion for a new
trial, Henry submitted his own affidavit and his own supplemental
affidavit, which essentially stated his “ex-fiancée” Erica Bibbs
informed him in 2016 that she had an affair with his trial attorney
“leading up to and during my June 2003 jury trial.” He also
submitted an affidavit from Erica Bibbs which stated: “I Erica
Bibbs, aver and attest to the following * * * before and during my
ex fiancé and my children's father, (Anjuan Henry), June 2003 jury
trial, I was engaged in a romantic relationship with his attorney.”
{¶ 24} On remand, the trial court conducted a hearing on February
15, 2018 confined to the issue of whether Henry had been
unavoidably prevented from discovering the facts upon which his
motion for a new trial was based, and therefore whether he should
be granted leave to file the new trial motion. Erica Bibbs was the
only witness Henry called at that hearing. She testified that she had
a romantic, intimate relationship with Henry’s 2003 trial counsel,
Daniel L. O'Brien, before and during the 2003 trial. (Transcript,
February 15, 2018, at 12.) She said she was engaged to Henry at the
time. Id. She was engaged to Henry twice, the first time in 1999
during Henry's first trial and then “we lost contact for a while” and
then got reengaged “while he was locked up again.” (Id. at 16). The
reengagement was "probably 2002 maybe, give or take," while he
was in prison. (Id.) Bibbs said that he did not give her a ring for the
reengagement but “we talked about it over the phone.” (Id. at 17).
(For context, as previously noted, Henry has continuously been in
prison, except when transported in custody for various court
appearances, since September 2000.) Before that he was “on the
run.” (Id. at 18).
{¶ 25} Bibbs also testified that the relationship with the attorney
started in the “middle of 2000,” (Id. at 17), “like August or
something like that of 2000.” (Id. at 28). This was about the time
that Henry was on the run, then he was caught and then went to
prison. Bibbs could not put a number on the times she and the
attorney saw each other stating “20,30,40,50” times. (Id. at 19).
They went to restaurants and hotels but she could only name one
restaurant, where she met the attorney’s brother, and one hotel
where they went in 2000. (Id. 20-21). She recalled: “From 2000 to
2005 we were together about, I don't know endless amounts of
time.” (Id. at 20).
{¶ 26} Henry is the father of two of Bibbs’ children, a boy born in
1998 and a girl born in 1999. (Id. at 28). Bibbs said they first became
engaged in 1999. (Id. at 27). When asked when this engagement
ended, she said, “I wasn't sure. We still were communicating.” (Id.).
And when asked if she believed the engagement was over when the
relationship with the attorney began, she said, “Honestly, I didn't
think about it.” (Id. at 29).
{¶ 27} During the time Henry was in prison, Bibbs also had
romantic relationships with two other men. The first began around
the “end of 2003, 2004” and was “on and off.” (Id. at 43). She had a
child from that relationship in early August 2004. (Id. at 44). That
relationship lasted until 2008. (Id. at 43). The second other
relationship was from 2009 until 2012. (Id. at 44).
{¶ 28} During all the time Henry was in prison, Bibbs never went to
visit him. (Id. at 36). She never took the children to visit him. (Id.).
She would provide him with commissary money, books, and
pictures of the children. (Id. at 35). Their communication was by
mail for about the first half of his sentence and then some phone
calls. (Id. at 36-37).
{¶ 29} Finally, she said that the attorney would sometimes state that
he needed more money for Henry’s representation, but he never got
any more money. (Id. at 38-39). The attorney never said why he was
still representing Henry without getting more money. (Id.). When
asked if she thought that was because she was continuing in a
relationship with the attorney, she said, “Honestly, I didn't think
about it.” (Id.).
{¶ 30} Bibbs did not offer any testimony about the attorney’s
conduct that might have related to representation or deficiency
during the June 2003 trial, or for that matter, related to the
November 2003 pleas in the trafficking case.
{¶ 31} We observe that if Bibbs’ testimony is taken at face value,
she was engaged to Henry in 1999, “lost contact” and was reengaged
in 2002. The relationship with the attorney, beginning about August
2000, was therefore ongoing before Bibbs was reengaged in 2002.
There was no testimony that Bibbs informed the attorney that she
had become reengaged.
{¶ 32} Henry argues he has shown that the attorney had a conflict
of interest during the 2003 trial because his attorney was in a
romantic relationship with Bibbs and that prejudice is presumed so
he does not have to prove the conflict negatively affected the
attorney's representation. We disagree.
{¶ 33} As to the romantic relationship with Bibbs, the only evidence
about the alleged affair was at the February 15, 2018 hearing when
Bibbs was the only witness. At the beginning of that hearing, it was
made explicitly clear that the hearing was to address Henry’s motion
for leave to file a motion for a new trial and whether Henry was
unavoidably delayed in the discovery of the evidence that he would
use to support the motion for a new trial. It was not a merits hearing
on the motion for a new trial. At the conclusion of the hearing, the
trial court ruled that leave to file a motion for a new trial was
granted. The April 23, 2018 proceeding was the hearing on the
motion for a new trial. Henry did not present any evidence,
apparently because he believed, and he now argues, that an
attorney's affair with his client’s wife during the representation is
necessarily a conflict of interest and prejudicial per se.
{¶ 34} Despite the fact that Henry introduced no evidence at the
merits hearing, the trial court nonetheless considered the testimony
of Bibbs and the affidavits that had been filed. It reasoned: “Having
reviewed the affidavits and the testimony of Ms. Bibbs and
considering the lack of any further testimony at the hearing on the
merits of the defendant's motion for a new trial, the Court finds a
lack of credibility in regards to the affidavits and the testimony.”
(Case No. 99-CR-296, Doc. #17 at 3). The trial court also indicated
that it was unclear whether Bibbs was Henry's fiancée at the time of
the 2003 trial and that her assertion that she had always been his
fiancée was contradicted by her affidavit referring to herself as an
ex-fiancée. (Id.). The court concluded that the defendant had failed
to meet his burden to show that there was an irregularity by way of
conflict of interest at his trial. (Id. at 3).
{¶ 35} The trial court’s preceding conclusion was not unreasonable
and was supported by the record. Henry had been in prison since
November 2000. Bibbs said she had been engaged to him in 1999
but “lost contact,” and claimed that they got re-engaged over the
phone sometime in 2002. As of that time, Henry was in prison and
would have remained in prison for at least four more years on the
unrelated possession conviction regardless of what happened in the
two cases now on appeal. As of her 2018 testimony, Bibbs had never
visited Henry in prison. Henry did not testify to corroborate any of
her testimony. It is apparent that the trial court doubted her
credibility. Accordingly, we determine the trial court did not abuse
its discretion by determining Henry had not demonstrated a conflict
of interest, and this determination alone is enough for us to conclude
that the trial court did not err by overruling the motion for a new
trial.
{¶ 36} It is Henry’s contention that a clandestine affair by his
attorney with his fiancée during his trial automatically constituted a
conflict of interest and that conflict of interest automatically
constituted prejudice. He relies principally on Disciplinary Counsel
v. Owen, 142 Ohio St. 3d 323, 2014-Ohio-4597, 30 N.E.3d 910.
Attorney Owen represented Robert Caulley after Caulley confessed
to killing his parents. Caulley was charged with two counts of
aggravated murder with death-penalty specifications and other
charges. Caulley’s wife began working on the case in Owen’s office.
Owen and Caulley’s wife began a sexual relationship shortly before
and during the trial. The relationship lasted for about a year.
Disciplinary Counsel v. Owen was a disciplinary case against Owen
in which the Supreme Court said that “a lawyer’s sexual relationship
with the spouse of a current client creates an inherent conflict of
interest.” Id. at ¶ 29. As a result, Owen was found to have violated
several disciplinary rules and was suspended from the practice of
law for two years.
{¶ 37} Because Owen was a disciplinary case, it did not deal with
the viability of the client's conviction and the impact, if any, the
attorney's relationship with his client’ wife had on the trial. And
although the Owen court said that a sexual relationship with a
client's wife violated the client's right to effective assistance of
counsel, id. at ¶ 32, that expression was unnecessary and irrelevant
to the disciplinary question of whether Owen violated disciplinary
rules by his actions. Therefore, the sentence is dicta. Furthermore,
no matter how unethical or repugnant we may view the attorney’s
alleged conduct, the viability of the client’s verdict in the Owen case
was correctly analyzed in the underlying case regarding Caulley’s
motion for a new trial, State v. Caulley, 10th Dist. Franklin No.
12AP-100, 2012-Ohio-2649, ¶ 19, aff'd, 136 Ohio St. 3d 325, 2013-
Ohio-3673, 995 N.E.2d 227. In Caulley, the Tenth District found an
actual conflict of interest where a defendant's attorney had an affair
with the defendant's wife while representing the defendant at trial.
However, the Tenth District proceeded to consider whether the
conflict had adversely affected counsel’s performance. Id. at ¶ 22-
24. “In order to satisfy a claim of ineffective assistance of counsel
based on a conflict of interest, a criminal defendant must
demonstrate that an actual conflict of interest adversely affected trial
counsel's performance. State v. Alexander, 10th Dist. No. 05AP-
192, 2006-Ohio-1298, ¶ 20, citing State v. Keith, 79 Ohio St.3d 514,
535, 1997- Ohio 367, 684 N.E.2d 47 (1997).” Id. Ultimately, the
Tenth District found no abuse of discretion in the trial court’s
determination that counsel’s division of loyalties did adversely
affect counsel’s performance, and that was the basis upon which the
new trial was granted. Id. In particular though, the Tenth District
cited “significant testimony indicating that trial counsel spent
substantial time with [the defendant’s wife] during the trial when he
should have been preparing for trial.” Id. at ¶ 24.
{¶ 38} In light of the persuasive authority of Caulley, we agree that
an attorney’s sexual relationship with his client's wife during the
representation presents an actual conflict of interest, but we also
agree that to obtain a new trial a defendant must further demonstrate
that the conflict adversely affected trial counsel’s performance.
Henry's evidence fails on both fronts. No matter how the on-and-off
connection between Henry and Bibbs is construed, and whenever it
took place, on this record we fail to see how the described liaison
between Bibbs, who for 18 years has never visited Henry in prison
and who had multiple intimate partners during the interim, is in the
same position as the defendant’s wife in Caulley with whom his
lawyer was having an intimate relationship. So, in addition to the
trial court finding Henry did not prove an actual conflict of interest,
we determine that the relationship here is insufficient to
automatically impose an actual conflict of interest as recognized in
Caulley. In addition, there is no evidence whatsoever that any
relationship between Bibbs and Henry’s trial counsel adversely
affected trial counsel’s performance.
{¶ 39} In his brief, Henry also complains that the trial court's
decision overruling the motion for a new trial referred to the
evaluation factors set forth in State v. Calhoun, 86 Ohio St.3d 279,
1999- Ohio 102, 714 N.E.2d 905 (1999). Henry argues that the
“Calhoun factors do not apply to live testimony.” (Brief at 6). But
the materials before the court included previously submitted
affidavits, testimony from Erica Bibbs presented only at the hearing
on the motion for leave to file the new trial, and legal arguments.
The trial court stated that “[i]n assessing the credibility of the
affidavits, the court considered the factors set forth in State v.
Calhoun.” (Emphasis added). The court also evaluated the
credibility of Erica Bibbs' live testimony but did not suggest that
evaluation was based on the Calhoun factors. We need not address
whether some or all of the Calhoun factors are also valuable tools to
assess live testimony because that is not what happened here.
Henry’s Calhoun argument raises no error.
{¶ 40} Henry also complains that the trial court stated in its
Calhoun-factor evaluation portion of the decision that “[t]his judge
is the same judge who presided over the trial and the plea.” Henry
says that “Judge Parrott of Union County presided over the trial, not
Judge O'Neill.” (Brief at 6). Henry has not caused those historical
portions of the record to be transmitted for our review. Nevertheless,
assuming that Judge Parrott did preside over the July 2003 trial, that
does not mean that Judge O’Neill did not preside over the May 2000
jury trial, the November 2003 pleas, or the February 2000 jury trial
where Henry was jointly tried with his accomplice, Terrance Martin,
which resulted in a hung jury. State v. Martin, 2d Dist. Clark No.
2000 CA 77, 2002-Ohio-3301. We do not doubt that Judge O’Neill
is thoroughly familiar with the circumstances of this case from the
multitude of pleadings, trials, pleas, and appeals spanning almost 20
years. If Judge O'Neil’s recollection of the 2003 trial is mistaken,
Henry points to no error that resulted from this misstatement.
{¶ 41} The first assignment of error is overruled.
{¶ 42} In his third assignment of error, Henry contends the trial
court erred in denying his petition for post-conviction relief in the
drug-trafficking case. He argues that his trial counsel should have
informed the trial court of a conflict of interest created by the alleged
affair. He also asserts that the conflict of interest could not be
“waived,” that affidavits he submitted were credible, and that his no-
contest plea to drug trafficking was invalid because it was tainted by
his attorney’s conflict of interest.
{¶ 43} Upon review, we find Henry's third assignment of error to be
without merit. As a threshold matter, the record does not reflect that
the trial court held an evidentiary hearing on Henry's petition for
post-conviction relief. The February 15, 2018 and April 23, 2018
transcripts in the record pertained only to the new-trial motion and
were filed in the drug-possession case. In its entry denying post-
conviction relief, the trial court did briefly mention Bibbs’ testimony
in connection with the new-trial motion. The fact remains, however,
that the trial court’s docket does not reflect a hearing on Henry's
petition for post-conviction relief. Therefore, we are not confronted
with the issue discussed above regarding the Crowder notice to the
public defender, and Henry makes no such argument. See State v.
Simons, 2d Dist. Champaign No. 2013 CA 5, 2013-Ohio-3654, ¶ 35
(recognizing that “the trial court is not required to notify the public
defender of an indigent petitioner's post-conviction proceedings
unless it first concludes that the petitioner is entitled to an
evidentiary hearing”).
{¶ 44} As for Henry’s claims about the credibility of the affidavits
he submitted, we see no error in the trial court's ruling even if we
assume, arguendo, that Henry's attorney did have an affair with his
fiancée while representing him. When addressing the alleged affair
and possible ineffective assistance of counsel, the trial court noted
that counsel had negotiated a plea resulting in an aggregate ten-year
sentence to be served concurrently with a longer sentence in the
drug-possession case. The result was that Henry would serve no
additional prison time as a result of his trafficking convictions, and
that sentence has now expired. In light of this relatively favorable
outcome, the trial court held that Henry had failed to make a
sufficient showing of a denial or infringement of his rights so as to
render his conviction void or voidable under the Ohio or United
States Constitution.
{¶ 45} We review a trial court's denial of a post-conviction relief
petition without a hearing for an abuse of discretion. Simons at ¶ 13.
A trial court may dismiss a petition for post-conviction relief
without a hearing “where the petition, the supporting affidavits, the
documentary evidence, the files, and the records do not demonstrate
that petitioner set forth sufficient operative facts to establish
substantive grounds for relief.” Calhoun, 86 Ohio St.3d 279, 1999-
Ohio 102, 714 N.E.2d 905, at paragraph two of the syllabus. When
a petition alleges ineffective assistance of counsel, the petitioner
typically bears the burden to submit documentary evidence
containing sufficient operative facts to show deficient performance
and prejudice. State v. Cox, 2d Dist. Montgomery No. 26136, 2015-
Ohio-894, ¶ 8. In the context of an ineffective-assistance claim,
ordinarily prejudice exists where “there is a reasonable probability
that, but for counsel’s deficient performance, the outcome would
have been different.” State v. Wayne, 2d Dist. Montgomery No.
25243, 2013-Ohio-5060, ¶ 22. Where a defendant does not
demonstrate how he was prejudiced by counsel’s performance, he
fails to establish substantive grounds for relief and his petition for
post-conviction relief may be denied without a hearing. State v.
Pianowski, 2d Dist. Montgomery No. 25369, 2013-Ohio-2764, ¶ 31.
{¶ 46} When an ineffective-assistance claim involves an alleged
conflict of interest, the foregoing standards are slightly different.
Prejudice will be presumed if an appellant establishes an “actual
conflict of interest” provided that it “adversely affected his lawyer's
performance.” State v. Keith, 79 Ohio St.3d 514, 535, 1997- Ohio
367, 684 N.E.2d 47 (1997), citing Cuyler v. Sullivan, 446 U.S. 335,
348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) and State v. Manross,
40 Ohio St.3d 180, 182, 532 N.E.2d 735 (1988). In essence, an
actual conflict of interest which causes deficient performance results
in the prejudice prong of ineffective assistance being satisfied. The
United States Supreme Court addressed this issue in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
as follows:
An 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. Cf. United States v.
Morrison, 449 U.S. 361, 364-365, 101 S.Ct. 665,
667-668, 66 L.Ed.2d 564 (1981). The purpose of the
Sixth Amendment guarantee of counsel is to ensure
that a defendant has the assistance necessary to
justify reliance on the outcome of the proceeding.
Accordingly, any deficiencies in counsel's
performance must be prejudicial to the defense in
order to constitute ineffective assistance under the
Constitution.
In certain Sixth Amendment contexts, prejudice is
presumed. Actual or constructive denial of the
assistance of counsel altogether is legally presumed
to result in prejudice. So are various kinds of state
interference with counsel’s assistance. See United
States v. Cronic, 466 U.S., at 659, and n. 25, 104
S.Ct., at 2046-2047, and n. 25. Prejudice in these
circumstances is so likely that case-by-case inquiry
into prejudice is not worth the cost. 466 U.S., at 658,
104 S.Ct., at 2046. Moreover, such circumstances
involve impairments of the Sixth Amendment right
that are easy to identify and, for that reason and
because the prosecution is directly responsible, easy
for the government to prevent.
One type of actual ineffectiveness claim warrants a
similar, though more limited, presumption of
prejudice. In Cuyler v. Sullivan, 446 U.S., at 345-
350, 100 S.Ct., at 1716-1719, the Court held that
prejudice is presumed when counsel is burdened by
an actual conflict of interest. In those circumstances,
counsel breaches the duty of loyalty, perhaps the
most basic of counsel’s duties. Moreover, it is
difficult to measure the precise effect on the defense
of representation corrupted by conflicting interests.
Given the obligation of counsel to avoid conflicts of
interest and the ability of trial courts to make early
inquiry in certain situations likely to give rise to
conflicts, see, e.g., Fed.Rule Crim.Proc. 44(c), it is
reasonable for the criminal justice system to maintain
a fairly rigid rule of presumed prejudice for conflicts
of interest. Even so, the rule is not quite the per se
rule of prejudice that exists for the Sixth Amendment
claims mentioned above. Prejudice is presumed only
if the defendant demonstrates that counsel “actively
represented conflicting interests” and that “an actual
conflict of interest adversely affected his lawyer's
performance.” Cuyler v. Sullivan, supra, 446 U.S., at
350, 348, 100 S.Ct., at 1719, 1718 (footnote
omitted).
(Emphasis added.) Id. at 691-92.
{¶ 47} Here Henry makes no effort to show actual prejudice
resulting from trial counsel’s performance in connection with his
no-contest pleas. He argues that his attorney failed to reveal the
alleged affair at the time of his plea, that an actual conflict of interest
resulting from the affair could not be waived, and that prejudice was
not required to be shown because it is presumed. We disagree.
{¶ 48} We refer again to State v. Caulley, as analyzed above.
Although the Tenth District found an actual conflict of interest, it
necessarily, consistent with Cuyler v. Sullivan, still proceeded to
consider whether the conflict had adversely affected counsel's
performance. Caulley at ¶ 22-24. The Cuyler and Caulley
requirement that an adverse effect on performance must be
demonstrated applies to Henry’s petition for post-conviction relief
just as the requirement applied to the motion for a new trial. Because
there is nothing in Henry’s petition and attachments that suggests an
adverse effect on counsel’s performance, Henry has failed to
demonstrate prejudice and his petition was correctly denied without
a hearing.
{¶ 49} We also reiterate the distinction that Bibbs was not Henry’s
wife and, whatever she was to Bibbs, we conclude the record does
not demonstrate an automatic conflict of interest. And if there was a
conflict of interest, it did not automatically result in prejudice. See,
e.g., Barentine v. United States, 728 F. Supp. 1241, 1252
(W.D.N.C.), aff’d, 908 F.2d 968 (4th Cir.1990) (finding “the
potential for a conflict of interest” where an attorney had an affair
with his client's fiancée or girlfriend while representing the client).
{¶ 50} We further observe that Henry pled no-contest rather than
going to trial, and he cites no evidence to suggest that the alleged
affair adversely affected his attorney’s performance in connection
with his plea and sentencing. Therefore, we see no basis for a finding
of presumed prejudice even if we were to accept that an actual
conflict of interest existed. That being so, the trial court did not err
in finding that Henry failed to establish substantive grounds for
relief.
{¶51} The third assignment of error is overruled.
Henry IV, 2019-Ohio-1256.
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 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). Deference is also due under 28
U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceedings.
Henry’s argument is that the quoted decision of the Second District is “based on an
unreasonable determination of the facts in light of the evidence presented in the state court
proceedings.” (Reply, ECF No. 17, PageID 797). He sets forth his argument under five headings,
each of which will be discussed separately.
Timeline of the Affair Between Ms. Bibbs and Trial Counsel
Henry takes issue with the Second District’s finding that Bibbs’ affair with O’Brien began
“about August 2000.” Henry, 2019-Ohio-1256, ¶ 31. The actual testimony was as follows
Q. (By Clark County Assistant Prosecutor Farley) Okay. And how
did your relationship with Mr. O'Brien start?
A. It started in, like, the middle of 2000. He began complimenting
me often, asking me out on dates, saying he wished he had someone
in his corner like I was in Mr. Henry's corner.
* * *
Q. And when did you -- in 2000 was after Mr. Henry had been
sentenced to prison the first time.
A. I'm not sure. I don’t remember.
Q. You don’t remember.
A. He went to court a bunch of times around that time.
Q. And you don't recall in relation to when he was sentenced to
prison as to when this relationship allegedly began.
A. He did go to prison because he was on the run, and then they
caught him and he did go to prison.
* * *
Q. So it was after he went to prison that this communication began
with Mr. O'Brien.
A. No, it was before he went to prison.
Q. When?
A. It was in 2000.
Q. Somewhere in those 12 months?
A. No, it was around the middle of 2000.
(Hearing Tr., State Court Record 14-2, PageID 708-10.)
Later in the hearing Judge O’Neill questioned Ms. Bibbs:
THE COURT: So was there any relationship between you and Mr.
O'Brien during the first trial in ’99?
THE WITNESS: No, our relationship started the middle of, maybe,
like August or something like that of 2000.
THE COURT: After the Defendant went to prison the first time?
THE WITNESS: I don't really remember when he went -- no,
actually, it started before he went to prison. And I know this because
-- and I’m positive because he was on the run. And I won’t
incriminate myself, but I remember he got mad because I went to go
visit him.
THE COURT: Who got mad?
THE WITNESS: Mr. O’Brien got mad because I went to visit
Anjuan.
THE COURT: When was that?
THE WITNESS: When Anjuan was on the run. So that's how I know
it was before.
THE COURT: So you started seeing Mr. O’Brien in 2000.
THE WITNESS: Yes.
THE COURT: Around August of 2000?
THE WITNESS: Give or take, yes.
THE COURT: Was this while Mr. Henry was on the run or before
he went on the run?
THE WITNESS: It was before he went on the run.
THE COURT: And you saw Mr. Henry while he was on the run.
THE WITNESS: Yes.
THE COURT: Mr. O'Brien was upset at you about that?
THE WITNESS: He was.
THE COURT: You didn’t tell Mr. Henry about Mr. O’Brien at that
time?
THE WITNESS: No, I didn’t. He had no idea.
THE COURT: When you started seeing Mr. O’Brien, were you
under the impression that your engagement relationship was over?
THE WITNESS: Honestly, I didn't think about it.
THE COURT: You didn't think about it.
* * *
THE COURT: So after you got back from seeing the Defendant, you
went out with Mr. O’Brien.
THE WITNESS: Correct. He came over to my stepmom’s to pick
me up.
THE COURT: And you started seeing Mr. O’Brien around August
of 2000. Is that correct?
THE WITNESS: (Nods head.)
THE COURT: You weren’t sure of the exact month.
THE WITNESS: Correct. Yeah, my daughter, she wasn’t even 1 yet;
and she was born in December, so that's how I know it was towards
the end.
THE COURT: Towards the end of the year.
(Hearing Tr., State Court Record, ECF 14-2, PageID 719-22).
From this testimony, the Magistrate Judge concludes the Second District’s finding that the
affair started “around August” is not an unreasonable determination of the facts based on the
evidence presented.
Purpose of the February [2018] Hearing
Henry objects to the Second District’s conclusion that the sole purpose of the February
2018 hearing was “to determine whether Henry had been prevented from discovering the evidence
supporting his new trial motion sooner” than April 2016 (Reply, ECF No. 17, PageID 801). The
objected-to holding is
On remand, the trial court conducted a hearing on February 15, 2018
confined to the issue of whether Henry had been unavoidably
prevented from discovering the facts upon which his motion for a
new trial was based, and therefore whether he should be granted
leave to file the new trial motion.
Henry IV, 2019-Ohio-1256, ¶ 24. Henry argues instead, “that the February hearing was dual-
purpose; and that in addition to the issue of unavoidable prevention, the issue of credibility was
also up for resolution.” (Reply, ECF No. 17, PageID 801).
When a defendant fails to file a motion for new trial within fourteen days of the verdict, he
or she must first obtain leave of court to file such a motion. Ohio R.Crim.P. 33(B). To obtain
leave, the defendant must show “by clear and convincing proof that the defendant was unavoidably
prevented from filing his motion for a new trial[.]” Id.
Of course, any time a court holds a hearing in which it considers evidence, and particularly
oral testimony, it must determine the credibility of the evidence. In this case, the trial court had
denied the Henry’s motion for leave to file a delayed motion for new trial without a hearing. The
Second District remanded for a hearing on whether Henry should be permitted to file a delayed
motion for new trial.
Therefore, based on the record before us, we conclude that the trial
court abused its discretion in overruling Henry's motion for leave
without a hearing. A remand is necessary for the trial court to
consider, in the first instance, whether the affidavits submitted by
Henry in support of his motion for leave credibly establish, by clear
and convincing proof, that he was unavoidably prevented from
discovering the evidence of the affair between his trial counsel and
his ex-fiancé.
Henry III, 2017-Ohio-7426, ¶ 20.
Having read the testimony at the February 2018 hearing, the Magistrate Judge notes that
there was no evidence before Judge O’Neill contradicting Ms. Bibbs’ testimony that she first told
Henry in April 2016 about the affair. While there may exist evidence somewhere contradicting
that testimony, it was not presented in that hearing. Thus the outcome – that Henry should be
allowed to file his delayed motion for new trial – seems clear. But Judge O’Neill was not tasked
at that hearing with deciding any other question, e.g., whether anything else to which Erica Bibbs
was credible or not. If I tell you my name is X and I present photographic identification, you will
probably find my self-identification credible. If I go on to testify the moon is made of green
cheese, you would not likely find that testimony credible.
Henry cites certain Second District decisions in which trial courts made findings about the
credibility of the new evidence as well as whether its discovery had been unavoidably prevented
(Reply, ECF No. 17, PageID 802-03).
In State v. Risdan, No. 25234, 2013-Ohio-1823 (Ohio App. 2nd Dist., May 9, 2013), the
court upheld denial of a motion for leave to file a delayed motion for new trial without a hearing
because the newly-discovered evidence was itself not credible and appellant had not in any case
proven that he was unavoidably prevented from obtaining it. Id. at ¶ 25. Risdan does not suggest
that it is improper to bifurcate the two questions.
In State v. Mackey, 2018-Ohio-516, 108 N.E.3d 241 (Ohio App. 2nd Dist. 2018), the court
was concerned not with a delayed motion for new trial, but with whether a defendant could file a
late petition for post-conviction relief under Ohio Revised Code § 2953.21 and 2953.23. The latter
statute permits a late filing of a post-conviction petition upon proof similar to that required for a
delayed motion for new trial – proof of unavoidable prevention of timely discovery. As to
credibility, the court held:
The trial court appears to have also disbelieved the substance of the
recantations in the affidavits. Although the narrow issue before the
trial court was whether Mackey had been unavoidably prevented
from obtaining the affidavits from Peterson and Buggs, we see no
reason why the trial court also could not consider their recantations
to the extent as it reflects on the credibility of the hearing testimony.
This is not a case where the trial court ruled based solely on paper
affidavits. Rather, the trial court held an evidentiary hearing during
which it heard Peterson and Buggs explain what led them to recant
their trial testimony. On this record, we cannot say that the trial
court’s conclusion, that Mackey failed to prove that he was
unavoidably prevented from obtaining the evidence on which he
relies, was unreasonable.
Mackey, 2018-Ohio-516, ¶ 11 (footnote omitted).
Mackey in fact supports what happened here. In that case the trial judge, having heard the
witnesses live, found them not credible for both purposes. Here Judge O’Neill heard Ms. Bibbs
and found her credible as to when she told Henry about the affair, but not credible as to the
substantive portions of her testimony, e.g., when she was engaged to Henry.
In the midst of this argument in his Reply, Henry asserts he had a due process right “to
establish the credibility of his newly discovered evidence at the February hearing[.]” (ECF No.
17, PageID 803). There is no such due process right. The United States Constitution does not
regulate the state court process for deciding whether to grant a criminal defendant a new trial,
much less require that all relevant questions be dealt with in one hearing.3
3 Henry also asserts he had a right to have admitted in evidence the photographs Ms. Bibbs provided which purportedly
documented her affair with O’Brien. Henry’s Petition does not include a claim to this effect and new claims cannot
be added in a reply. Jalowiec v. Bradshaw, 657 F.3d 293 (6th Cir. 2011), citing Tyler v. Mitchell, 416 F.3d 500, 504
(6th Cir. 2005).
Credibility
In this section of the Reply, Henry begins by arguing that Judge O’Neill’s decision on the
new trial motion is not entitled to deference because he previously found Ms. Bibbs’ testimony
credible (ECF No. 17, PageID 803-04). It is, of course, the Second District’s decision affirming
Judge O’Neill which is being directly reviewed here and, as pointed out by that Court and above,
the questions at issue in the two hearings were different.
Henry objects to the Second District’s conclusion that it was not unreasonable for the trial
court to question the credibility of Bibbs’ claim to have been engaged to Henry during the 2003
trial. Bibbs’ actual testimony was that she and Henry got engaged in 1999, “lost contact,” then
became re-engaged over the telephone in 2002 and remained engaged although they never married,
she never visited him in prison, she had an sexual relationship with O’Brien from 2000 to 2005
which included “numerous” “meetings,” and she had “relationships” with two or three other men
during that time, with one of whom she had a child. It is completely reasonable for a court to
doubt, on this testimony, whether anything like an “engagement to be married” was in place
between these two people.
Contrary to Henry’s argument (Reply, ECF No. 17, PageID 805), Ms. Bibbs’ asserted
inability to name hotels and restaurants where she went with O’Brien and her asserted inability to
remember the exact number of times she and O’Brien were together is immaterial. Neither of state
courts seemed to question that there was a sexual relationship between Bibbs and O’Brien during
the relevant time period. The question rather is the nature of the relationship between Bibbs and
Henry.
Sufficiency of Ms. Bibbs and Petitioner’s Relationship to Qualify As an Actual Conflict
Henry objects to what he claims was the Second District’s determination that “the
relationship here [between Ms. Bibbs and Petitioner] is insufficient to automatically impose an
actual conflict of interest as recognized in Caulley.” (Reply, ECF No. 17, PageID 807 (brackets
in original). Here, as in other places in his Reply, Petitioner is loose with his use of quotation
marks. What the Second District actually said was:
It is Henry’s contention that a clandestine affair by his attorney with
his fiancée during his trial automatically constituted a conflict of
interest and that conflict of interest automatically constituted
prejudice. He relies principally on Disciplinary Counsel v. Owen,
142 Ohio St. 3d 323, 2014-Ohio-4597, 30 N.E.3d 910.
Henry IV, 2019-Ohio-1256, ¶ 36. The Second District then went on to discuss the fact that
Attorney Owen’s sexual relationship during representation of Caulley did not lead automatically
to voiding his capital conviction for ineffective assistance of trial counsel; further nproof of
prejudicial effect was required and found. Thus, Caulley does not stand for the proposition that
whenever a trial attorney has a sexual relationship with a client’s wife during representation, there
is automatically prejudice satisfying the ineffective assistance of trial counsel standard. Id. at ¶¶
37-38. And Bibbs was never Henry’s wife.
Adverse Performance on the Part of Trial Counsel in Connection with the Affair
Henry objects to the Second District’s conclusion that “there is no evidence whatsoever
that any relationship between Bibbs and Henry’s trial counsel adversely affected trial counsel's
performance.” Henry IV, 2019-Ohio-1256, ¶ 38. Henry asserts he will refer to such evidence in
his Ground Two argument. (Reply, ECF No. 17, PageID 807.) At the referenced point in the
Reply, he begins by discussing the trial judge’s exclusion of photographs at the February hearing.
Id. at PageID 809-10. Then as examples of adverse effect, he cites his claim that O’Brien “never
had the drug evidence independently tested.” Id. at PageID 810. However, he does not explain
how the affair had any impact on not having the drugs independently tested.
Henry then claims O’Brien had a duty to disclose the affair to the trial court and move for
a new trial on that basis. Id. at PageID 811, relying on Gunner v. Welch, 749 F.3d 511 (6th Cir.
2014). Gunner is completely inapposite; it held an appellate attorney has a duty to advise a client
of filing deadlines for a petition for post-conviction relief. 749 F.3d at 519. The balance of the
argument turns the question of prejudice on its head, assuming Henry would have been entitled to
a new trial based on evidence of the affair, without any proof the affair adversely affected
O’Brien’s performance. But the Second District rejected, as had the Tenth District in Caulley, the
proposition that prejudice from such an affair is conclusively presumed.
Henry’s claim that he is entitled to a new trial and that the Second District’s conclusion to
the contrary is not entitled to deference is without merit.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
February 1, 2020.
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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6. 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. 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.