White v. Warden, Ross Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

VINCENT D. WHITE, JR.,

Petitioner, : Case No. 2:17-cv-325

- vs - District Judge James L. Graham

Magistrate Judge Michael R. Merz

WARDEN, Ross

Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus, brought by Petitioner under 28 U.S.C. § 2254, is before the Court on

remand from the United States Court of Appeals for the Sixth Circuit. Counsel who represented

Petitioner on appeal has continued the representation in this Court pro bono publico.

Procedural Posture of the Case

The Court dismissed this case on March 12, 2018 (ECF Nos. 23 and 24). Petitioner

appealed and the circuit court reversed. White v. Warden, Ross Corr. Inst., 940 F.3d 270 (6th Cir.

2019)(copy of slip opinion at ECF No. 36). The Supreme Court then denied Respondent’s petition

for writ of certiorari sub nom. Morgan, Warden, v. Vincent D. White, Jr., 140 S. Ct. 2826 (June 2,

2020, slip opinion at ECF No. 40, 41). The Sixth Circuit then issued its Mandate (ECF No. 43),

returning jurisdiction to this Court.

Magistrate Judge Vascura granted Petitioner’s motions to expand the record and for an

evidentiary hearing (ECF No. 54), but on Joint Motion of the parties vacated the order for

evidentiary hearing, accepting the parties’ stipulation instead, and set a briefing schedule (ECF

No. 56). After briefing was complete, the Magistrate Judge reference of the case was transferred

to the undersigned to help balance the Magistrate Judge workload in the District (ECF No. 60).

The parties have stipulated that the Ohio Court of Appeals for the Tenth District found the

following facts on direct appeal:

[*P2] On August 30, 2012, a Grand Jury indicted White and an

alleged coconspirator. The Grand Jury charged White with one

count of aggravated burglary, three counts of aggravated robbery,

four counts of aggravated murder, two counts of attempted murder,

two counts of felonious assault, and one count of possessing a

firearm while under disability. All counts (except the weapon under

disability count) contained specifications for the use of a firearm.

[*P3] The counts in the indictment arose from a single incident. On

July 29, 2012, four men were shot in a house located at 1022 East

17th Avenue in Columbus, Ohio. Keith Paxton (aka "Gutter") and

Albert Thompson (aka "T") were killed in the attack. Juanricus

Kibby and Miquel Williams suffered bullet wounds but recovered.

[*P4] The case went to trial on October 28, 2013. At the trial, both

surviving victims identified White as one of the two shooters. In

addition, another witness, Jeffrey Harris, testified that White had

told him beforehand about White's plan to rob the house and then

afterwards offered Harris a share of the money. Kibby and Williams

both had known White for a long time; yet, neither identified him

the first time they spoke with police following the shooting. Harris,

who was initially suspected of having some involvement in the

crime, went to the police to clear his name, but he did not tell the

police the story he told at trial about White telling him of his plan to

rob the house.

[*P5] White's co-defendant presented an alibi witness, who

claimed that the codefendant was not present during the shooting.

White admitted that he was at the house and shot some of the people

there. However, he claimed that he shot in self-defense because,

when he arrived to buy drugs, the four individuals who were

subsequently deemed to be the victims, made him get on his knees

at gunpoint and were robbing him. Forensic evidence regarding the

direction and angles from which some of the victims were shot

tended to contradict White's version of the events, as did the fact that

White and the other shooter each fired at least six times and the four

victims did not return fire. Thompson was shot as if he were getting

up from a seated position, and Paxton was shot in the back shoulder.

Only two guns were used in the shooting and neither were any of

the guns in the possession of the house occupants.

[*P6] On November 5, 2013, the trial concluded, and the jury

began its deliberations. Two days later, the jury announced its

verdict. The jury found White guilty on all counts. The trial court

also found White guilty of having a weapon while under disability.

The trial court held a sentencing hearing on January 22, 2014 and

sentenced White to life in prison without parole.

(Stipulation, ECF No. 55-1, quoting State v. White, 2015-Ohio-5365 (Ohio App. 10th Dist. Dec.

22, 2015).

The parties have further stipulated:

On or about October 18, 2012, the petitioner, Vincent D. White,

retained defense counsel, Javier H. Armengau. Mr. Armengau

represented the petitioner from that time throughout petitioner's trial

and sentencing and did not represent any other co-defendant

involved in the crimes alleged against the petitioner

On April 4, 2013, Javier H. Armengau, was arrested, and that arrest

led to an indictment on eighteen offenses on May 20, 2013,

including six counts of rape, three counts of kidnapping, five counts

of sexual battery, three counts of sexual imposition, and public

indecency. At the time of the arrest for these offenses, Mr.

Armengau was licensed to practice law in Ohio; the women who

accused him of sexual misconduct were clients or relatives of

clients. Two of the accusers also worked in Mr. Armengau's law

offices. Mr. Armengau was convicted of one count of rape, one

count of kidnapping, four counts of sexual battery, two counts of

gross sexual imposition, and a count of public indecency on July 7,

2014. The trial court, on August 28, 2014, sentenced Mr. Armengau

to a total of 13 years confinement. These facts were determined by

the Ohio Court of Appeals in State v. Armengau, Tenth App. Dist.

No. 14AP-679, 2017 Ohio App. LEXIS 2501, 2017 Ohio 4452 (June

22, 2017).

Mr. Armengau disclosed to the petitioner, Vincent D. White, that he

(Armengau) had been indicted and was pending prosecution in the

same jurisdiction where White was being prosecuted. Mr.

Armengau made this disclosure at or around the time of his

(Armengau's) indictment during the time period May-June 2013.

The petitioner, Vincent D. White, understood that his defense

counsel was being prosecuted in the same jurisdiction where he

(White) was being prosecuted. Mr. White kept the attorney-client

relationship with Mr. Armengau because Mr. Armengau was an

aggressive defense counsel and because Mr. Armengau's fee had

already been paid. Mr. Armengau did not advise Mr. White that

Armengau's pending charges could arguably constitute a conflict of

interest. Mr. White did not consult any other attorney at any time

during his (White's) trial and sentencing. Mr. White was sentenced

prior to Mr. Armengau's trial.

Mr. White's new attorney on direct appeal advised Mr. White that

Mr. Armengau's pending charges could arguably have constituted a

conflict of interest. Counsel on direct appeal presented that

argument to the Ohio Court of Appeals.

(Stipulation, ECF No. 55-1, PageID 1751-52).

As indicated, White raised the conflict of interest issue on direct appeal and the Tenth

District dealt with it as follows:

A. First Assignment of Error — Whether White was Deprived

of the Right to Conflict-Free Counsel in Violation of the

Sixth Amendment

[*P9] White asserts that, at the time of the trial, his trial attorney,

Javier Armengau, was under indictment in Franklin County and

facing very grave challenges to his own freedom, finances, and

license to practice law. White argues that this situation created a

conflict of interest. That is, White suggests that Armengau would

have been conflicted over whether to devote time to preparing his

own defense or that of his client; Armengau might have chosen to

take a greater percentage of White's financial resources in fees to

help finance his own defense rather than hire an investigator in

White's case; and Armengau would have been reluctant to

vigorously represent White for fear of angering the same

prosecutor's office that was prosecuting him, or even, conversely,

might have failed to engage in any plea-bargaining efforts in White's

case out of an indignant or vengeful desire to gain a victory over the

prosecutor's office.

[*P10] White argues that there is nothing in the record to show that

he was properly advised of the potential conflict of interest or that

he waived this potential for conflict on the record or in writing.

Plaintiff-appellee, State of Ohio, argues that there is no information

in the record of this case regarding Armengau's indictment,

conviction, or disciplinary proceedings. No. 14AP-160 5

[*P11] "'A reviewing court cannot add matter to the record before

it, which was not a part of the trial court's proceedings, and then

decide the appeal on the basis of the new matter.'" Morgan v. Eads,

104 Ohio St.3d 142, 2004-Ohio-6110, P 13, 818 N.E.2d 1157,

quoting State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978),

paragraph one of the syllabus. Though White's brief asserts facts

about Armengau's difficulties, the record in this direct appeal

contains no evidence or information whatsoever about Armengau's

particular situation. Although White refers to the caption of

Armengau's criminal case and the caption of his disciplinary case

before the Supreme Court of Ohio, he does not expressly request

that we take judicial notice of the same. Nevertheless, even if we

were to take judicial notice of the fact that Armengau was indicted

for a number of serious criminal offenses before White's trial and

was convicted and imprisoned for them after White's trial, the record

would still be devoid of any factual details regarding Armengau's

licensure issues. Furthermore, there is nothing in the record of this

direct appeal indicating White was unaware of Armengau's

situation. In short, while we understand White's argument, that his

counsel may have been distracted and conflicted by the fact that he

was suffering severe legal and personal difficulties at the same time

that he was engaged in litigating White's murder trial, we lack the

necessary facts to fully consider such a matter in a direct appeal. A

direct appeal, where the record is limited and where the record

contains no mention of any of the relevant facts at issue, is not the

vehicle to make such an argument.

State v. White, supra.

White asserts he could not have raised the conflict of interest issue in a post-conviction

petition under Ohio Revised Code § 2953.21 because the time for filing such a petition had expired

while his appeal was pending (Petitioner’s Brief, ECF No. 57, PageID 1761, citing the Sixth

Circuit’s decision which found the time for filing a post-conviction expired four months before the

Tenth District’s decision on direct appeal. 940 F.3d at 273).

To show the Ohio courts’ rejection of White’s eventual post-conviction petition as

untimely, the Sixth Circuit writes “After initiating his federal habeas petition, but before receiving

a decision, White filed a motion seeking post-conviction relief in state court, also pro se, but his

filing came almost two years after the deadline to seek such relief. The trial court, unsurprisingly,

dismissed White's motion as untimely.” 972 F.3d at 273-74, citing State v. White, No. 17AP-538,

slip op., 2017-Ohio-8750 (Franklin Cty. Ct. of Common Pleas, Nov. 30, 2017). However, the

cited case does not involve Vincent White, Petitioner here, (convicted of shooting four people on

July 29, 2012), but Marcus White (convicted of shooting his wife and mother-in-law on October

12, 2003).

It is proper for a federal court to take judicial notice of the online records of another court.

Graham v. Smith, 292 F. Supp. 2d 153, 155, n.2 (D. Me. 2003); Ward v. Wolfenbarger, 323 F.

Supp. 2d 818, 821 (E.D. Mich. 2004). The Magistrate Judge has examined the docket of the

Franklin County Court of Common Pleas in Petitioner’s case1 and finds that he filed a Petition for

Post-Conviction Relief under Ohio Revised Code § 2953.21 on October 11, 2017 (Notice of

Expansion of State Court Record, ECF No. 612, PageID 1817-44). The trial judge denied the

Petition because it was found to be more than two years late. Id. at PageID 1813-14. The Tenth

District Court of Appeals denied leave to file a delayed appeal because White waited more than

ninety days to appeal. Id. at PageID 1815-16. Thus regardless of how the confusion with the

Marcus White case arose, the Sixth Circuit is correct that the Ohio courts rejected White’s post

conviction petition raising his conflict of interest claim because it was untimely.

Respondent argued to the Sixth Circuit that White’s failure to timely file for post-

1 Available at https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/. Visited March 5-6, 2021.

2 The Magistrate Judge has sua sponte expanded the record in this Court by adding White’s Petition for Post-

Conviction Relief, the trial judge’s denial, and the Tenth District’s affirmance. Also added is Respondent’s Motion

to the Sixth Circuit to take judicial notice of these documents.

conviction relief procedurally defaulted this claim. Applying Maupin v. Smith, 785 F.2d 135, 138

(6th Cir. 1986), the Sixth Circuit found:

The trial court's dismissal of White's motion for post-conviction

relief easily satisfies the first three prongs of the Maupin test. Ohio

law contains a statutory deadline for collateral relief, which requires

petitioners to file a motion for post-conviction relief within one year

of the filing of transcripts in the petitioner's direct appeal. Ohio Rev.

Code § 2953.21(A)(2). The parties do not contest that White failed

to meet this deadline or that his untimeliness was the basis of the

trial court's rejection of his claim and the denial of his motion for

leave to appeal. See State v. White, No. 17AP-538, slip op., 2017-

Ohio-8750 (Franklin Cty. Ct. of Common Pleas, Nov. 30, 2017).

And, a denial of post-conviction relief based on the petitioner's

untimeliness is an independent and adequate state ground to

establish default. See, e.g., Walker v. Martin, 562 U.S. 307, 317, 131

S. Ct. 1120, 179 L. Ed. 2d 62 (2011); Hartman v. Bagley, 492 F.3d

347, 357-58 (6th Cir. 2007).

940 F.3d at 275.

Nonetheless, the circuit court concluded White had not procedurally defaulted his conflict

of interest claim by applying Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S.

413 (2013), to this case:

Ohio's procedural framework effectively "channel[ed] initial review

of [White's] constitutional claim to collateral proceedings." Id. at

423. Accordingly, under the Martinez-Trevino framework, we find

that White has cause to overcome his procedural default because: he

raised a substantial ineffective-assistance claim; he was without

counsel during his post-conviction proceedings; the post-conviction

proceeding was the initial opportunity for a merits assessment of the

claim; and the design and operation of Ohio procedural law rendered

it "highly unlikely" his claim could be reviewed on direct appeal.

Because we find that White has cause, he satisfies the fourth prong

in Maupin and is not barred from raising his claim of ineffective

assistance based on Armengau's conflict of interest. See Maupin,

785 F.2d at 138; see also Detrich v. Ryan, 740 F.3d 1237, 1246 (9th

Cir. 2013) (en banc) (concluding that after finding cause under

Martinez, the trial court can continue to the merits of a petitioner's

ineffective-assistance-of-trial-counsel claims); see also Workman v.

Superintendent Albion SCI, 915 F.3d 928, 940 (3d Cir. 2019)

(same).

940 F.3d at 278. The Court then remanded the case “for the district court to consider, in the first

instance, White's claim de novo, including whether he is entitled to an evidentiary hearing in order

to supplement the record.” Id. at 279.

These terms of remand at least implicitly elide the question whether Cullen v. Pinholster,

563 U.S. 170 (2011), would preclude such a hearing. The parties have further avoided that

question by stipulating to facts to be considered in addition to those that were before the Tenth

District. But see Moore v. Mitchell, 708 F.3d 760, 780-784 (6th Cir. 2013).

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). However in this case the cited

principle does not apply because the Sixth Circuit has in effect held the Tenth District’s decision

was not “on the merits” as required by § 2254(d)(1) because White had not had a chance to develop

the relevant factual record. Accordingly, the Magistrate Judge’s analysis of whether White’s

conviction is unconstitutional is not limited to considering “clearly established law” from holdings

of the United States Supreme Court.

Positions of the Parties

Petitioner’s Brief

White asserts his continued imprisonment violates clearly established federal law as

enunciated in Glasser v. United States, 315 U.S. 60 (1942), Holloway v. Arkansas, 435 U.S. 475

(1978), and United States v. Cronic, 466 U.S. 648 (1984)(Petitioner’s Brief, ECF No. 57, PageID

1760). He asserts this case authority establishes the conflict was a structural error not subject to

harmless error analysis. Id. at PageID 1762. He seeks issuance of a conditional writ to require his

release unless he is convicted at a new trial within a limited period of time.

White now admits, per the Stipulation, that Armengau told White he had been indicted,

“but he did not advise Mr. White of the conflict of interest that arose by representing himself and

Mr. White simultaneously”. Id., citing Stipulation at PageID 1752. No attorney advised him of

the conflict of interest issue until it was brought to his attention by his appellate counsel. Id.

White argues that the conflict of interest which occurs when one’s attorney has been

indicted is “palpable, well-settled, and universally recognized.” Id. at PageID 1762. He relies on

Glasser and Cronic for the proposition that the error is structural and on Holloway for the

proposition that a defendant need not show he was prejudiced by the conflict. Id. at PageID 1763.

White describes the nature of the conflict as follows: Armengau was “negotiating on behalf

of Mr. White with the Franklin County prosecutor at the very time that he was negotiating with

that prosecutor on behalf of himself.” Id. at PageID 1764. White argues he did not waive the

conflict because “[n]o one advised Mr. White -- a prisoner untrained in the law -- that he had a

right, under the U.S. Constitution, to representation by unconflicted counsel.” Id. at PageID 1765.

Respondent’s Brief

Respondent reminds the Court that it is an ineffective assistance of trial counsel claim that

we are reviewing (Respondent’s Brief, ECF No. 58, PageID 1773). That claim was added to this

case as Ground Five by amendment and reads as follows:

GROUND FIVE: Petitioner was deprived of his right to the

effective assistance of counsel in violation of the Fifth, Sixth and

Fourteenth Amendments to the United States Constitution based

upon the actual conflicts of interests the Petitioners trial counsel

had in this case.

SUPPORTING FACTS: Unbeknown to the Petitioner, and at the

time of Petitioner's trial in October/November of 2013, his trial

counsel, (Javier Armengau), was under indictment in case no. 13CR

- 2217 for eighteen serious offenses including: six counts of rape,

three counts of kidnapping, five counts of sexual battery, three

counts of gross sexual imposition and one count of public

indecency. He was arrested for some of the criminal offenses in

April 2013, and was indicted on the eighteen counts on May 20,

2013. Before he was convicted and sentenced to thirteen years of

imprisonment on August 26, 2014.

(Amendment, ECF No. 7, PageID 39). Respondent also notes that White and Armengau were

prosecuted by different attorneys, White by the Franklin County Prosecuting Attorney and

Armengau by special counsel appointed by the Ohio Attorney General (Respondent’s Brief, ECF

No. 58, PageID 1777).

Respondent first argues that White has waived any conflict of interest claim because he

knew of Armengau’s indictment and decided to keep him on the case anyway. Id. at PageID 1781-

84. He then asserts the case does not involve structural error and White must show deficient

performance and actual prejudice instead. Id. at PageID 1785-88. To prevail, Respondent claims,

White must show an actual conflict of interest and has not done so. Id. at PageID 1788-96, citing

Wood v. Georgia, 450 U.S. 261, 271-274 (1981), Cuyler v. Sullivan, 446 U.S. 335, 350 (1980); Moss

v. United States, 323 F.3d 445, 473 (6th Cir. 2003); and Smith v. Cook, 956 F.3d 377, 392-393 (6th Cir.

2020). Finally Respondent argues White has shown neither deficient performance nor that the result

would likely have been different with different counsel (Respondent’s Brief, ECF No. 58, PageID

1796-97).

Petitioner’s Reply Brief

White replies that Respondent has not shown he meets the well-accepted standard for

waiver: intentional relinquishment of a known right (Reply Brief, ECF No. 59, PageID 1800). He

discounts the State’s attempts to distinguish United States v. DeFalco, 644 F.2d 132 (3d Cir. 1979)

and United States v. Levy, 25 F.3d 146 (2d Cir. 1994)3. Id. at PageID 1801-02. He asserts “Cuyler

v. Sullivan, 446 U.S. 335 (1980), and Mickens v. Taylor, 535 U.S. 162 (2002), relied upon by the

State in its brief, are inopposite [sic].” Id. He concludes “[t]he existence of the concurrent conflict

of interest obviates any requirement for Mr. White to demonstrate prejudice, as clearly stablished

by the Supreme Court in Holloway, Glasser, Cronic, Cuyler, and Mickens.” Id. at PageID 1803.

Analysis

White’s Fifth Ground for Relief, quoted above, is that he received ineffective assistance of

trial counsel. The governing standard for ineffective assistance of counsel is found in Strickland

3 He also complains “the State fails to mention, much less discuss, the relevant, specific language in the seminal

treatise in this area of the law, Gershman's Criminal Trial Error and Misconduct, cited by Mr. White.” Id. at PageID

1801.

v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel was

not functioning as the "counsel" guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing

Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly

deferential. . . . A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at

the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel's

conduct falls within a wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action "might be

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held: “The defendant must show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to overcome

confidence in the outcome.” 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184

(1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing

Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland,

466 U.S. at 687. “The likelihood of a different result must be substantial, not just conceivable.”

Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S.

86, 111-12 (2011).

In assessing prejudice under Strickland, the question is not whether

a court can be certain counsel's performance had no effect on the

outcome or whether it is possible a reasonable doubt might have

been established if counsel acted differently. See Wong v.

Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328

(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,

80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably

likely” the result would have been different. Id., at 696, 104 S. Ct.

2052, 80 L. Ed. 2d 674. This does not require a showing that

counsel's actions “more likely than not altered the outcome,” but the

difference between Strickland's prejudice standard and a more-

probable-than-not standard is slight and matters “only in the rarest

case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The

likelihood of a different result must be substantial, not just

conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

White claims that Armengau’s continuation as his trial attorney after Armengau was

indicted constitutes a structural error such that he does not have to prove prejudice. The Supreme

Court has "found structural error only in a very limited class of cases." Hereford v. Warren, 536

F.3d 523 (6th Cir. 2008), citing Johnson v. United States, 520 U.S. 461, 468 (1997). “Most

constitutional mistakes call for reversal only if the government cannot demonstrate harmlessness.

Only the rare type of error – in general, one that ‘[infect] [s] the entire trial process’ and

‘necessarily render[s] [it] fundamentally unfair’ requires automatic reversal.” Glebe v. Frost, 574

U.S. 21 (2014), citing Neder v. United States, 527 U.S. 1, 8 (1999).

One such structural error is denial of counsel at a "critical stage" of the criminal

proceedings, entitling the defendant to a new trial without a specific showing of prejudice because

the error makes "the adversary process itself presumptively unreliable." United States v. Cronic,

466 U.S. 648, 659 (1984). But White was not denied representation by counsel of his choice at

any stage of the proceedings.4 What happened here is only a denial of counsel at a critical stage if

one accepts the proposition that having an attorney with a potential conflict of interest of the type

that occurred here is ipso facto a denial of counsel.

Where a criminal defendant can prove that his attorney actively represented actual

conflicting interests, ineffectiveness will be found and there is no need to show prejudice resulting

from the conflict. Cuyler v. Sullivan, 446 U.S. 335 (1980); Thomas v. Foltz, 818 F.2d 476 (6th Cir.

1987). The burden of proof of actual conflict is on the Petitioner. Cuyler, supra. The conflict

must be actual and significant. Thomas, 818 F.2d at 481. The presumed prejudice standard of

Cuyler is clearly established only when the conflict is due to multiple concurrent representations.

Mickens v. Taylor, 535 U.S. 16 (2002). Armengau did not represent multiple clients in this case

who had conflicting interests; indeed, he did not represent multiple clients at all. Nor did White’s

interests conflict with those of a prior client such that Armengau might have been tempted to

breach the confidentiality he owed the prior client.

United States v. DeFalco, 644 F.2d 132 (3rd Cir. 1979), relied on by White, was an action

under 28 U.S.C. § 22555. The court held that the Sixth Amendment was violated “when counsel,

while representing appellant on a direct criminal appeal, was himself under indictment and had

entered into a plea bargain, during the pendency of the appeal, in the same federal district court

from which the appeal was taken.” Id. at 133. Further, it said,

4 Note that Armengau was retained, not appointed. Although the Sixth Amendment requires effective representation

regardless of fee, it is significant that White chose Armengau.

5 Although this case is brought under 28 U.S.C. § 2254 because a state conviction is involved, the Sixth Amendment

standards are the same.

We conclude that inherent emotional and psychological barriers

created an impermissible potential of preventing appellate counsel

from competing vigorously with the government. The totality of the

circumstances presented here, including the facts that DeFalco's

appeal emanated from the same district court in which his attorney

was indicted, that three of his attorney's indictments were processed,

prior to the striking of the plea bargain, before the same district

judge who presided over DeFalco's trial, that the same United States

Attorney's office prosecuted DeFalco and his lawyer, and that

Verdiramo entered into plea bargaining during the pendency of

DeFalco's appeal with the same United States Attorney's office that

constituted his adversary on appeal, presents, under the rule of

Hart6, "a possible conflict of interest or prejudice, however remote."

[footnote omitted] We are persuaded that, even without proof of

actual conflict of interest, legitimate decisions of counsel were

rendered suspect because of the potential for conflicting loyalties to

himself and to his client and because, as we have heretofore

observed, a reviewing court cannot reliably determine to what extent

the decisions were based on legitimate tactical considerations and to

what extent they were the result of impermissible considerations.

We therefore hold as a matter of law that the standard of normal

professional competence cannot have been achieved by appellant's

counsel.

Id. at 136-37. The court did not grant relief, but remanded for a hearing on whether DeFalco knew

of his lawyer’s indictment and nonetheless acquiesced in the representation. Id. Here of course

White knew of Armengau’s indictment and expressed strongly his desire to keep Armengau on the

case.

The cited opinion in DeFalco is only a plurality opinion; one judge concurred in the

judgment and four dissented. As a Third Circuit decision, it would not be binding precedent here

even if Judge Aldisert’s opinion had commanded a majority. More importantly, it was handed

down well before the Supreme Court decisions in Cuyler, Strickland, and Mickens which must

guide this Court’s decision. Finally, DeFalco is distinguishable because he and his attorney were

being prosecuted by the same prosecutor before the same judge; neither of those facts applies here.

6 United States ex rel Hart v. Davenport, 478 F.2d 203, 210 (3d Cir. 1973).

White also relies on United States v. Levy, 25 F.3d 146 (2d Cir. 1994). In that case Chaim

Levy and his nephew Eliahu Levy were co-defendants in a drug trafficking case, both represented

by Attorney Ian Fisher. The Second Circuit noted four conflict of interest issues and applied its

own precedent from Winkler v. Keane, 7 F.3d 3014 (2nd Cir. 1993), where it held:

if a defendant establishes that her attorney has a potential conflict of

interest, in order to prove that the conflict resulted in a violation of

her Sixth Amendment right to effective assistance of counsel, she

must demonstrate prejudice. However, prejudice is presumed when

a defendant establishes that her attorney had an actual conflict of

interest that adversely affected the attorney's performance. . . An

attorney has an actual, as opposed to a potential, conflict of interest

when, during the course of the representation, the attorney's and the

defendant's interests 'diverge with respect to a material factual or

legal issue or to a course of action.'" 7 F.3d at 307 (quoting Cuyler,

446 U.S. at 356 n.3).

The Levy Court found there were actual conflicting interests between Chaim and Eliahu in that

Attorney Fisher bargained for advantage for one for them by trying to get the other to cooperate

with the Government. An actual conflict also arose from the Government’s investigation of Fisher

for helping the nephew escape to Israel. Fisher was also a potential rebuttal witness and apparently

averred he would not be called so that he could maintain his position as trial attorney. Finally,

Fisher was a defendant in an unrelated criminal case. The Second Circuit concluded “Fisher may

have believed he had an interest in tempering his defense of Levy in order to curry favor with the

prosecution, perhaps fearing that a spirited defense of Levy would prompt the Government to

pursue the case against Fisher with greater vigor.” 25 F.3d at 156. All of these circumstance, taken

together, warranted a conclusion of actual conflict. Id. at 157. But under Keane, the actual conflict

alone did not warrant a new trial. Instead, Levy was also required to show an adverse effect, which

the Second Circuit found in Levy’s failure to pursue a trial strategy of shifting the blame to the

nephew. Id. at 157.

The factors at work in Levy do not map onto this case. Aremengau never represented

anyone else in White’s case. His own criminal case was being pursued by a special prosecutor

designated by the Attorney General, an office politically and institutionally quite separate from the

Franklin County Prosecuting Attorney.

Finally, White relies on Gershman’s Criminal Trial Error and Misconduct. Gershman

writes:

A criminal defendant has a right under the Sixth Amendment to be

represented by an attorney whose loyalties are undivided. [footnote

omitted] To prove that an attorney has conflicted loyalties, a

defendant must demonstrate that his attorney labors under an actual

conflict of interest, and that there was a lapse of representation

resulting from that conflict. [footnote omitted] To prove a lapse of

representation, a defendant must demonstrate that some plausible

alternative defense strategy or tactic might have been pursued but

was not because the alternative defense was inherently in conflict

with or not undertaken due to the attorney’s other loyalties or

interests.

§3-5(a). Having considered this portion of Gershman’s treatise, the Magistrate Judge finds it in

no way contrary to the analysis offered here.7

White has not shown any adverse impact on Armengau’s representation arising from the

potential conflicts White raises. What should Armengau have done differently that he did not do

because he had a conflict and what difference would it have made? Without persuasive answers

to those questions, White has not established his case.

7 As for Gershman’s treatise being a “seminal” work in criminal procedure, the undersigned has sat as a criminal court

judge for more than forty years and had never heard of this treatise until it was cited here. More likely candidates for

that label would be Sir Matthew Hale’s Pleas of the Crown or perhaps Joel Prentiss Bishop on Criminal Procedure,

relied on by Justice Scalia in Apprendi v. New Jersey, 530 U.S. 466 (2000).

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the

Petition herein, as amended by the addition of Ground Five, be dismissed with prejudice.

The issues raised here are sufficiently complex and not governed by close-fitting and

binding precedent. On that basis, the Magistrate Judge believes White deserves encouragement to

proceed further and recommends a certificate of appealability be issued.

March 8, 2021.

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. 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.