The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
KEITH WHITE,
Petitioner, : Case No. 2:20-cv-4398
- vs - District Judge Michael H. Watson
Magistrate Judge Michael R. Merz
WARDEN, Noble
Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Keith White pursuant to 28 U.S.C. §
2254, is before the Court for decision on the merits. Relevant filings are the Petition (ECF No. 1),
the State Court Record (ECF No. 10), the Return of Writ (ECF No. 11), and Petitioner’s Reply
(ECF No. 14).
The Magistrate Judge reference in the case has recently been transferred to the undersigned
to help balance the Magistrate Judge workload in the District (ECF No. 15). Final decision of the
case remains with District Judge Watson.
Litigation History
On March 28, 2018, the Vinton County grand jury indicted Petitioner on charges of attempted
murder in violation of Ohio Rev. Code § 2923.02(A)/2903.02(A), felonious assault in violation of Ohio
Rev. Code § 2903.11(A)(1), disrupting public services in violation of Ohio Rev. Code § 2909.04(A)(1),
and domestic violence in violation of Ohio Rev. Code § 2919.25(A). (Indictment, State Court Record,
ECF No. 10, Ex. 1). A trial jury acquitted White of attempted murder, but convicted him on the three
other charges (Verdict, State Court Record, ECF No. 10, Ex. 4). The trial judge then sentenced White
to an aggregate term of imprisonment of eight years (Sentencing Entry, State Court Record, ECF No.
10, Ex. 5).
White appealed to the Ohio Fourth District Court of Appeals which affirmed the conviction
and sentence. State v. White, 2019-Ohio-4562 (Ohio App. 4th District, Nov. 1, 2019), appellate
jurisdiction declined 2020-Ohio-3634 (2020). White filed his Petition in this Court August 27, 2020,
pleading the following grounds for relief:
Ground One: Appellant was denied his right to due process and his
right to compulsory attendance under the Sixth Amendment.
Supporting Facts: The trial court ruled appellant could not call the
assistant prosecuting attorney as a witness. The APA was the sole
witness who could have revealed that the alleged victim, the State’s
primary witness lied in her statements to detectives and that her
testimony was highly inconsistent with previous statements. Thus,
appellant’s ability to present a full defense was hindered and his
rights were violated.
Ground Two: Appellant was denied his right to due process when
his counsel was ineffective for failing to move the court for appellant
to appear in clothing other than a jail uniform before the jury, a
violation of the 14th Amendment.
Supporting Facts: Trial counsel was ineffective when he failed to
move the court for appellant to appear before the jury in clothing
other than a jail uniform, despite a clear precedent saying this
violated constitutional rights. Appellant appeared before the jury in
prison attire and shackles, a clear violation of his due process right.
Being unaware of the precedent created by the court is not a
reasonable excuse to not raise an objection to appellant’s attire.
(Petition, ECF No. 1, Page ID 5-7).
Analysis
Ground One: Denial of Compulsory Process
In his First Ground for Relief, White claims he was denied his right to compulsory process
and to present a complete defense when the trial judge would not allow the assistant county
prosecutor who was trying the case for the State to be called as a defense witness.
Respondent defends this claim on the merits, asserting that the Fourth District’s decision
of the claim is neither contrary to nor an unreasonable application of clearly established law as
found in holdings of decisions of the United States Supreme Court (Return, ECF No. 11, PageID
513-18). Petitioner responds by claiming the assistant prosecutor’s testimony was necessary to his
defense: “The entire point of the need for the Assistant Prosecutor to testify was to establish the
uncredibility [sic] of the only witness to the alleged crime ... the alleged victim” (Reply, ECF No.
14, PageID 527).
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.
The relevant portions of the Fourth District’s decision on this claim are as follows:
[*P5] Prior to Appellant's trial, the court addressed Appellant's
subpoena to compel the assistant prosecutor in this case to appear
and bring all notes and mental recollections from his conversation
with Crystal Arthur ("Ms. Arthur"), the victim in this case, regarding
her purported claim that Appellant took video/pictures of his attack.
[*P6] Appellant argued that the assistant prosecutor's testimony
would provide "Brady material. It's constitutional." Appellant's
counsel asserted that the assistant prosecutor informed him that Ms.
Arthur alleged Appellant had recorded the assault of her with his
cell phone. However, Appellant claimed that the State had never
produced video of the attack during discovery. Therefore, Appellant
argued, the only way to determine the content of that recording was
through the testimony of the assistant prosecutor.
[*P7] In response, the State admitted that it had disclosed to
Appellant's counsel that Ms. Arthur claimed there was a cell phone
video of Appellant's assault of Ms. Arthur. The State further asserted
that they recovered the phone and shipped it off for review, but
"[n]othing materialized." And, the State argued that it was nearly
certain that it informed defense counsel that the phone contained no
video of the attack. Finally, the prosecutor also argued that he had
disclosed this information to Appellant's counsel in April, more than
six months before the trial in November, and yet Appellant did not
raise this issue until trial.
[*P8] Appellant's counsel admitted that the prosecutor had
informed him that no recording existed, but he argued that "the only
proof of that [no video of the attack exists] is [the assistant
prosecutor's testimony]."
[*P9] The trial court pointed out that the prosecutor had already
informed Appellant that there was nothing on the phone so the court
didn't think that there was a genuine dispute to which the prosecutor
could testify. And, after confirming with the prosecution that Ms.
Arthur was going to testify, the court also pointed out that Appellant
could cross-examine the victim regarding the alleged videotaping.
[*P10] The trial court found that because the State had previously
disclosed to Appellant, albeit informally, that there was no recording
on the phone, there was no Brady violation because there was
nothing that had been withheld by the State. The court again noted
that Appellant would have an opportunity to cross-examine the
victim regarding any alleged videotaping of the alleged attack. The
court stated: "And so then the question comes back to whether,
whether based on all of this taken together is a sufficient reason, uh
basically, to disqualify the prosecutor from presenting the case from
going forward with a trial." The court found "there is not[,]" and
denied Appellant's request to call the prosecutor as a witness for the
defense.
* * *
Witness Testimony
[*P34] "The Sixth Amendment to the United States Constitution
and Section 10, Article I of the Ohio Constitution provide an
accused with a right of compulsory process to obtain a witness's
testimony." State v. Lavery, 9th Dist. Summit No. 20591, 2001-
Ohio-1638, citing Pennsylvania v. Ritchie, 480 U.S. 39, 56, 107 S.
Ct. 989, 94 L.Ed.2d 40, (1987), Columbus v. Cooper, 49 Ohio St.3d
42, 550 N.E.2d 937 (1990). And "[f]ew rights are more fundamental
than the right of an accused to present witnesses on his behalf." State
v. Brown, 64 Ohio St.3d 649, 652, 1992-Ohio-19, 597 N.E.2d 510
(1992), citing Taylor v. Illinois, 484 U.S. 400, 408, 108 S.Ct. 646,
652, 98 L.Ed.2d 798 (1988).
[*P35] "The right to compulsory process, however, is not
unlimited." State v. Denis, 117 Ohio App.3d 442, 446, 690 N.E.2d
955 (1997), State v. Collins, No. 48159, 1984 WL 6341, at *3 (Ohio
Ct. App. Dec. 6, 1984), State v. Smiddy, 2nd Dist. Stark No.
06CA0028, 2007-Ohio-1342, ¶ 25. "The principle that undergirds
the defendant's right to present exculpatory evidence is also the
source of essential limitations on the right." Taylor v. Illinois, 484
U.S. 400, 410, 108 S.Ct. 646, 654, 98 L.Ed.2d 798 (1988). "The trial
process would be in shambles if either party had an absolute right to
control the time and content of his witnesses' testimony." Id. at 411.
"The State's interest in the orderly conduct of a criminal trial is
sufficient to justify the imposition and enforcement of firm, though
not always inflexible, rules relating to the identification and
presentation of evidence. Id. Therefore, "a defendant's right to
present his own witnesses to establish a defense is prescribed by the
rules of evidence." State v. Denis, 117 Ohio App.3d at 442, 446, 690
N.E.2d 955 (6th Dist.). "A trial court has broad discretion in the
admission or exclusion of evidence and so long as such discretion is
exercised in line with the rules of procedure and evidence, its
judgment will not be reversed absent a clear showing of an abuse of
discretion with attendant material prejudice to defendant." State v.
Blair, 2016-Ohio-2872, 63 N.E.3d 798, ¶ 67, quoting State v.
Richardson, 4th Dist. Scioto No. 14CA3671, 2015-Ohio-4708, ¶ 62.
[*P36] "A party may not predicate error on the exclusion of
evidence during the examination in chief unless" (1) the party
proffers the expected testimony or the proffer is apparent from the
context of the questions asked, and (2) the exclusion of such
evidence must affect a substantial right of the party. State v.
Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶
113, citing State v. Gilmore, 28 Ohio St.3d 190, 28 Ohio B. 278, 503
N.E.2d 147 (1986), syllabus. If the excluded testimony does not
have an impact on the jury's verdict, it has not prejudiced the
movant's substantial rights. State v. Blair, 2nd Dist. Montgomery
No. 26256, 2015-Ohio-3604, ¶ 14-15.
[*P37] Finally, the Supreme Court of Ohio has "recognize[d] that
a prosecuting attorney should avoid being a witness in a criminal
prosecution," unless "it is a complex proceeding where substitution
of counsel is impractical, * * * the attorney so testifying is not
engaged in the active trial of the cause and it is the only testimony
available * * *." (Emphasis added.) State v. Coleman, 45 Ohio St.3d
298, 302, 544 N.E.2d 622 (1989).
[*P38] During cross examination, Appellant's counsel asked Ms.
Arthur: "Okay. And do you, you indicated you recall alleging that
[Appellant] held you down, beat you and videoed the incident while
it was going on?" Ms. Arthur responded: "He said he was. I wasn't
on the other side of the phone. All I know is he had it in front of me
while he was hitting me." (Emphasis added.)
[*P39] Contrary to Appellant's assertion, Ms. Arthur did not testify
that a video of the attack existed. Rather, she alleged that Appellant
told her that he was videoing the attack. In fact, her statement - "I
wasn't on the other side of the phone" - indicates that Ms. Arthur
was uncertain whether Appellant recorded the attack. Therefore, we
find that the assistant prosecutor's proffered testimony - that no
video of the attack existed - would not have impeached Ms. Arthur's
testimony, or even undermined its credibility, which was the basis
of Appellant's argument on appeal. Consequently, we find the
assistant prosecutor's excluded testimony would not have impacted
the jury's verdict, i.e. it did not affect Appellant's substantial rights.
See Blair, 2nd Dist. Montgomery No. 26256, 2015-Ohio-3604, ¶ 14-
15. Moreover, because Ms. Arthur provided the only testimony
necessary to answer Appellant's question regarding the recording of
the attack, Coleman also supported our conclusion that the assistant
prosecutor should not have been called as a witness in this case.
[*P40] Accordingly, the trial court did not abuse its discretion in
precluding Appellant from calling the assistant prosecutor as a
witness is his case. We overrule Appellant's first assignment of
error.
State v. White, supra.
As the Fourth District found, the Assistant County Prosecutor who was handling the case,
William L. Archer, Jr., had advised defense counsel in April 2018 that the cell phone recovered
from White did not have a video of him beating the victim, Crystal Arthur. Yet defense counsel
waited until two days before trial in November 2018 to subpoena Mr. Archer. Defense counsel
claimed that the testimony he sought from Archer – that no video of the attack existed on
White’s phone – was Brady material, adverting to Brady v. Maryland, 373 U.S. 83 (1963).
Brady of course requires the disclosure by the State to a defendant of any material exculpatory
evidence, including evidence which is impeaching of testimony by State’s witnesses. See
Strickler v. Greene, 527 U.S. 263, 280-82 (1999). There is no claim made here that the
prosecutor violated Brady; prompt pre-trial disclosure of the lack of a video is admitted.
Instead, White appears to claim that a defendant has the right to prove the content of
disclosed Brady material by calling as a witness the prosecutor who made the disclosure. On
appeal, represented by new counsel, White claimed that having Archer testify as intended
would not violate Ohio R. Prof. Conduct 3.7 because it was of uncontested facts (Appellant’s
Brief, State Court Record, ECF No. 10, Ex. 8, PageID 88-89). The Fourth District disclaimed
any authority to opinion on the ethics question. State v. White, supra, at ¶¶ 32-33. But neither
Archer nor the trial judge could have known in advance that the Fourth District would take this
position. A skeptical trial judge, such as the undersigned, might suspect defense counsel of
waiting until trial to raise the issue in the hope that Archer, having been called as a witness,
would be disqualified from prosecuting the case, forcing a continuance or presentation of the
State’s case by an unprepared assistant county prosecutor. If this tactic were allowed, defense
counsel in other cases would have a strong temptation to try it in many cases, because
prosecutors would ordinarily know the content of Brady material they had disclosed and thus
would be competent witnesses on that matter.
Fortunately, the Court need not reach that question because the absence of a video would
not have impeached Ms. Arthur’s testimony. She freely admitted she did not know whether
White video-recorded his beating of her because she was not on his side of the phone. She
could only testify that he said he was recording the beating. Of course the prosecutor searched
for the film – it would have been invaluable proof of White’s guilt if it existed. But when he
found nothing he told defense counsel that. Thus the Fourth District’s decision that Archer’s
testimony to the lack of a video would not have undermined Ms. Arthur’s credibility is a
reasonable determination of the facts based on the evidence presented.
As Supreme Court case authority for his position, White relies on Pennsylvania v. Ritchie,
480 U.S. 39 (1987). While the Ritchie Court does recite general language about compulsory
process, the holding of the case is that defense counsel did not have the right to examine a child
abuse file made confidential by Pennsylvania law. Rather it held the trial judge should examine
the file and provide any Brady material to the defense.
Taylor v. Illinois, 484 U.S. 400 (1988), also relied on by White, is much more in point, but
supports the Fourth District’s decision. Defense counsel sought to add a surprise witness to
his witness list on the second day of trial, but the trial judge excluded the witness. There, as
here, defendant claimed an absolute right under the Compulsory Process Clause to present the
witness. The Supreme Court disagreed, holding that:
A trial judge may certainly insist on an explanation for a party's
failure to comply with a request to identify his or her witnesses in
advance of trial. If that explanation reveals that the omission was
willful and motivated by a desire to obtain a tactical advantage that
would minimize the effectiveness of cross-examination and the
ability to adduce rebuttal evidence, it would be entirely consistent
with the purposes of the Compulsory Process Clause simply to
exclude the witness' testimony.
While there is no indication on the record that defense counsel violated the Ohio criminal
discovery rules in this case, subpoena two days before trial of opposing counsel to testify appears
to be tactically motivated. In any event, the Supreme Court did not hold the Compulsory Process
Clause right was absolute.
White’s Reply also brings out the tentativeness of Archer’s exclusion. Defense counsel
suggested he might need to call Archer in rebuttal if Ms. Arthur lied about the video recording. In
response, the trial judge said he would see “if we get there.” (Reply, ECF No. 14, PageID 530).
White argues the trial judge was required to resolve the issue pretrial. Id. But the tentative or
preliminary ruling preserved the possibility of calling Attorney Archer if Ms. Arthur lied about the
video. She did not and thus any need to call Archer to rebut the existence of the video disappeared1.
White emphasizes the discrepancy between Arthur’s earlier statement to the prosecutor
that there was a video and her later testimony at trial that she had just seen White holding the
camera and saying he was filming the beating (Reply, ECF No. 14, PageID 531). White notes
essentially how stupid it would be for someone in the attacker’s position to film what he was doing.
Id. Agreed. But it might well fit the mindset of a person engaged in terrorizing a domestic partner
to tell her he was filming his beating of her – so he could remind her, should the occasion arise, of
how helpless she was at this hands. Of course Petitioner was perfectly free to take the stand and
deny everything – the beating, the filming, or the lie about filming. But he chose not to do so. He
can argue now that she was lying, but it is too late for him to testify to that effect.
1 Incidentally, White claims Arthur was the “only witness to the alleged crime.” (Reply, ECF No. 14, PageID 527).
Not so. White was also present, but chose not to testify.
The right to offer witnesses and to compel their attendance if necessary is a fundamental
element of due process of law. Washington v. Texas, 388 U.S. 14 (1967). But the right is not
absolute and the trial court’s exclusion of the assistant prosecuting attorney as a defense witness
was not an unreasonable application of Supreme Court precedent interpreting the right.
Ground Two: Prison Garb
In his Second Ground for Relief, Petitioner asserts he received ineffective assistance of
trial counsel when his attorney did not object to his appearing at trial in a jail uniform and shackles.
Respondent defends this claim on the merits, arguing that White was not compelled to
appear in a jail uniform and has not shown any prejudice from counsel’s failure to object.
The Fourth District Court of Appeals considered this claim on the merits and ruled as
follows:
[*P41] In his second assignment of error, Appellant alleges that he
was denied his right to due process when his trial attorney provided
ineffective assistance of counsel by failing to move the trial court
for him to appear before the jury in clothing other than a jail
uniform.
[*P42] Prior to voir dire and out of jury's presence, the prosecutor
brought to the attention of the court and Appellant that the State had:
concerns that the defendant is not in street clothes as he is in a
jumper. Um I don't think any of us here want to go forward and go
through a trial of this length and magnitude to have the Court of
Appeals say, well, but he was — he was in his jumper instead of
street clothes. I don't know how the court wants to address that, but
I do want to note it on the record that I have some concerns about
— about going forward with that.
In response, Appellant's counsel stated: "I have nothing to add to
that judge. I am not familiar with the case law to which [the
prosecutor] is referring." The judge the stated: "All right. Very well
then. Anything further?" Both attorneys responded in the negative,
and proceedings continued.
[*P43] Appellant argues that his trial counsel was ineffective for
failing to request the trial court for an opportunity to appear before
the jury in clothing other than his jail uniform. Appellant argues the
United States Supreme Court held that appearing in a jail uniform
before a jury is "inherently prejudicial" in Estelle v. Williams, 425
U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976). Because
Appellant's counsel purportedly was not familiar with Estelle or
similar case law, and did not request that Appellant be dressed in
clothing other than his jail uniform, Appellant argues that his
performance was below an objective level of reasonable
representation. He also argues that he was "directly prejudiced" by
wearing his jail uniform before the jury.
[*P44] The State argues that while Estelle held that wearing prison
attire can be prejudicial, it did not establish a bright line test to make
that determination when wearing prison attire was reversible error.
This, the State argues, is because some defendants may prefer to
wear prison clothing to elicit sympathy. Therefore, a defendant must
show that he or she was compelled to wear prison clothing as a
perquisite [sic] to finding prejudice. The State argues that Appellant
failed to make the showing that his counsel was ineffective.
[*P45] The State also highlights the fact that Appellant's counsel
was made aware that Appellant was wearing prison clothing, and
because he did not object, Appellant waived any right to claim that
it was error. The State further argues that Appellant's assignment of
error should be rejected under the invited error doctrine.
[*P46] "To establish constitutionally ineffective assistance of
counsel, a defendant must show (1) that his counsel's performance
was deficient and (2) that the deficient performance prejudiced the
defense and deprived him of a fair trial." State v. Barnhart, 4th Dist.
Meigs Nos. 18CA8 and 18CA15, 2019-Ohio-1184, ¶ 64, citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.
Ed. 2d 674 (1984). "Failure to satisfy either part of the test is fatal
to the claim." State v. Gillian, 4th Dist. Gallia No. 16CA11, 2018-
Ohio-4983, ¶ 12, citing Strickland at 697.
[*P47] The United States Supreme Court has addressed the issue
of "whether an accused who is compelled to wear identifiable prison
clothing at his trial by a jury is denied due process or equal
protection of the laws." Estelle v. Williams, 425 U.S. 501, 502, 96
S.Ct. 1691, 1692, 48 L.Ed.2d 126 (1976).
[*P48] Estelle found that in large part courts have "determined that
an accused should not be compelled to go to trial in prison or jail
clothing because of the possible impairment of the presumption [of
innocence] so basic to the adversarial system." (Citations omitted.)
Id. at 504. However, Estelle also recognized that courts have
declined to adopt a per se rule invalidating all convictions where a
defendant had appeared before the jury in prison clothing. Id. at 508.
The court stated that:
[**23] [t]he reason for this judicial focus upon compulsion is
simple; instances frequently arise where a defendant prefers to stand
trial before his peers in prison garments. The cases show, for
example, that it is not an uncommon defense tactic to produce the
defendant in jail clothes in the hope of eliciting sympathy from the
jury. Id. at 507-508, citing Anderson v. Watt, 475 F.2d 881, 882
(10th Cir. 1973); Watt v. Page, 452 F.2d 1174, 1176 (10 Cir. 1972),
Cf. Garcia v. Beto, 452 F.2d 655, 656 (5th Cir. 1971).
Therefore, the court held that:
although the State cannot, consistently within the
Fourteenth Amendment, compel an accused to stand trial
before a jury while dressed in identifiable prison clothes,
the failure to make an objection to the court as to being
tried in such clothes, for whatever reason, is sufficient to
negate the presence of compulsion necessary to establish a
constitutional violation. (Emphasis added.) Estelle, 425
U.S. 501, 512-13, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126
(1976).
[*P49] In State v. Judy, 4th Dist. Ross No. 08CA3013, 2008-Ohio-
5551, ¶ 37, the Court addressed whether Appellant's trial counsel's
failure to object to the fact that his client wore prison clothing at trial
constituted ineffective assistance of counsel. The appellant in Judy
appeared at trial dressed in his prison clothes. Id. at ¶ 4. But during
voir dire, Appellant's counsel asked the jury if anyone would treat
Appellant unfairly because his of his prison clothes. Id. "[T]here was
no indication from the jury that there would be a problem." Id.
[*P50] On direct appeal, Appellant alleged that his "counsel was
ineffective for not dressing her appropriately for trial." Id. at ¶ 32.
After reviewing the holding in Estelle, the court in Judy concluded
that "[a]lthough other attorneys may have suggested or done
otherwise, we decline to second-guess trial counsel's decision to
allow his client to stand trial in prison garb because this decision has
been acknowledged to be a strategic one." Id. at ¶ 42, citing Estelle,
supra, United States v. Wells, 9th Cir. No. 97-35656, 1998 U.S.
App. LEXIS 26240, 1998 WL 741173 (Oct. 13, 1998), State v.
Singer, 4th Dist. Ross No. 99CA2845, 2000 Ohio App. LEXIS
3518, 2000 WL 1093577, (July 31, 2000), State v. Edgington, 4th
Dist. Ross No. 95CA2151, 1996 Ohio App. LEXIS 5697, 1996 WL
720860 (Dec. 11, 1996). Accordingly, the court rejected Appellant's
ineffective assistance of counsel argument.
[*P51] In addition, overwhelming evidence supporting an
appellant's convictions may negate any prejudice for wearing prison
clothing at trial. See State v. Godbolt, 5th Dist. Licking No.
2003CA00034, 2004-Ohio-317, ¶ 21.
[*P52] In this case, unlike in Judy, Appellant's counsel was
apparently unaware that under the law a defendant could not be
compelled to wear prison clothes to trial. However, the prosecutor
put Appellant on notice that a defendant had the option to wear street
clothes at trial rather than prison clothing, even noting that he did
not want Appellant's prison clothing to become an issue on appeal.
Nevertheless, Appellant never objected to his prison attire or
otherwise expressed a desire to wear street clothes at trial. As Estelle
stated: "the failure to make an objection to the court as to being tried
in [prison] clothes, for whatever reason, is sufficient to negate the
presence of compulsion necessary to establish a constitutional
violation."
[*P53] Finally, there is overwhelming evidence supporting
Appellant's convictions. Although there are some inconsistencies in
the testimony of some of the witnesses, the evidence and testimony
support that Appellant physically assaulted Ms. Arthur and caused
her significant injury. Accordingly, we find that Appellant cannot
show that he was prejudiced by wearing his prison clothing at trial.
See Godbolt.
[*P54] Absent deficient representation and a lack of prejudice, we
find that Appellant's counsel was not ineffective. Accordingly, we
overrule Appellant's second assignment of error.
State v. White, supra.
White includes in his Second Ground for Relief a claim that he appeared before the jury
and was tried in shackles. Such a claim presents entirely different issues from the claim about
appearing in a jail uniform. See Deck v. Missouri, 544 U.S. 622 (2005). No claim about shackles
was presented to the Fourth District and White offers no record reference to show that he was
indeed shackled. Thus any issue about shackling is either non-existent or defaulted.
There is likewise no claim that White was compelled to appear in jail garb. The prosecutor
raised the issue and White’s counsel waived any objection. Rather the question is whether he
provided ineffective assistance of trial counsel in waiving the objection.
The governing standard for ineffective assistance of counsel is found in Strickland 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).
The Fourth District clearly recognized that Strickland provided the relevant legal standard.
It noted that failure to object to prison garb can be a strategic choice on the part of defense counsel
in an attempt to gain sympathy for a defendant. White claims this was not the case here because
his attorney claimed not to be familiar with the relevant case law. Whether or not counsel could
cite cases on the point, he was clearly made aware by the prosecutor that he had a choice and he
made that choice to allow White to appear in jail clothes2. Because Estelle holds that can be a
valid strategic choice, the Fourth District was not prepared to second guess it. Under Harrington,
this Court must be even less willing to do so.
Beyond deficient performance, a prisoner who claims ineffective assistance of trial counsel
must also show prejudice. The Fourth District found no prejudice because of what it characterized
as the overwhelming evidence of guilt and the jury’s acquittal on the most serious charge,
attempted murder. White makes no response on the second Strickland prong, but the Magistrate
Judge concurs with the Fourth District that the evidence of guilt was overwhelming. The victim’s
physical injuries were serious and corroborated by multiple medical personnel who saw her
immediately after the incident. This is not a “she said, he said case.” The victim’s testimony and
corroboration were met with complete silence by the defense, either the Petitioner himself or any
forensic evidence to undermine the State’s case. Thus even if it was deficient performance to fail
to object to the jail uniform, White has not shown he suffered any prejudice.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition herein 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
2 Although the Fourth District did not take up the question, counsel’s choice in the light of the prosecutor’s comment
about not creating appellate issues makes this appear very much like invited error.
not be permitted to proceed in forma pauperis.
March 11, 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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. #
NOTICE REGARDING RECORD CITATIONS#
The attention of all parties is called to S. D. Ohio Civ. R. 7.2(b)(5) which provides:
(5) Pinpoint Citations. Except for Social Security cases, which
must comply with $.D. Ohio Civ. R. 8.1(d), all filings in this Court
that reference a prior filing must provide pinpoint citations to the
PageID number in the prior filing being referenced, along with a
brief title and the docket number (ECF No. or Doc. No. __) of
the document referenced.
The Court’s electronic filing system inserts in all filings hyperlinks to the place in the record which
has been cited following this Rule. However, as with most computer systems, the CM/ECF
program cannot read pinpoint citations which do not follow the Rule precisely. For example, the
first pinpoint citation in ODRC’s Reply reads “Plaintiff argues that he could not bring this action
until “administrative remedies as (sic) are exhausted (sic).” (Doc. 80, Pageld# 987).” The correct
citation would have been Doc. No. 80, PageID 987.” Because Defendant added the “#” symbol,
the program failed to inset a hyperlink. Use of this software is mandated by the Judicial
Conference of the United States and cannot be locally modified. The parties are cautioned to
comply precisely with S. D. Ohio Civ. R. 7.2(b)(5) in any further filings.
17