Urban v. Ohio Adult Parole , 116 F. App'x 617 ( 2004 )

NOT FOR PUBLICATION
File Name: 04a0104n.06
Filed: November 18, 2004
NO. 03-4352
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
EDWARD J. URBAN,
Petitioner-Appellant,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
OHIO ADULT PAROLE AUTHORITY, COURT FOR THE SOUTHERN
DISTRICT OF OHIO
Respondent-Appellee.
______________________________________/
BEFORE: SUHRHEINRICH and CLAY, Circuit Judges, and NIXON, District Judge.*
SUHRHEINRICH, J., Petitioner-Appellant Edward Urban appeals from the order of the
district court denying his petition for writ of habeas corpus brought under 28 U.S.C. § 2254.
I.
The facts are amply presented in the Ohio Court of Appeals decision, see State v. Urban, No.
01AP-239, 2002 WL 464980 (Ohio Ct. App. March 28, 2002) (unpublished), and the magistrate
judge’s Report and Recommendation, adopted and affirmed by the district court on August 28, 2003,
and are incorporated by reference here. Basically, Petitioner Edward Urban operated a family
medical practice and was licensed to treat persons covered by Medicaid. He was charged with
Medicaid fraud under Ohio Rev. Code § 2913.40(B) for performing unnecessary medical testing on
*
The Honorable John T. Nixon, United States District Judge for the Middle District of
Tennessee, sitting by designation.
his Medicaid patients in order to increase his income from his Medicaid billings, and for billing for
services provided by an LPN that were not payable under Medicaid unless provided by a physician,
registered nurse, or physician’s assistant. Urban was also charged with tampering with evidence in
violation of Ohio Rev. Code § 2921.12(A). Urban was convicted by a jury of two counts of felony
Medicaid fraud, one misdemeanor fraud count, and two counts of tampering with evidence. Urban
filed a motion for new trial, based in part on ineffective assistance of counsel. The trial court held
an evidentiary hearing and subsequently denied the motion. Urban was originally sentenced on
January 25, 2001, but was granted a modification of sentence on November 5, 2002.
Urban appealed. The Ohio Tenth Appellate District affirmed Urban’s convictions on March
28, 2002. See State v. Urban, supra. On August 7, 2002, the Ohio Supreme Court declined to
accept jurisdiction of Urban’s appeal, with one judge dissenting. See State v. Urban, 772 N.E.2d
1204 (Ohio August 7, 2002) (unpublished table decision). On November 20, 2002, Urban filed this
application for a writ of habeas corpus. On July 1, 2003, the magistrate judge issued a report and
recommendation, recommending that Urban’s petition be denied. Urban filed objections. On
August 28, 2003, the district court adopted and affirmed the report and recommendation. This
appeal followed.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254,
applies to this case. Under the AEDPA, an application for writ of habeas corpus by a state prisoner
shall not be granted unless the state court decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). A state court’s legal decision is “contrary to” clearly established
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federal law under § 2254(d)(1) if the state court arrived at a conclusion opposite to that reached by
the Supreme Court on a question of law, or if the state court decided a case differently than the
Supreme Court’s decisions on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362,
412-13 (2000). An “unreasonable application” occurs when the state court correctly identified the
legal principle from the Supreme Court precedent but unreasonably applied that principle to the facts
of the case before it. Id.
A.
Urban contends that the district court erred in denying his application for writ of habeas
corpus because he was denied effective assistance of trial counsel in numerous respects. To
demonstrate ineffective assistance of counsel, a defendant must show that his attorney’s conduct,
“fell below an objective standard of reasonableness,” and that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688 (1984). In other words,
[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 made errors so serious 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.
Id. at 687. Both prongs must be met in order to secure relief. Id.
In Strickland, the Supreme Court further instructed that “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689.
1.
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First, Urban alleges that defense counsel repeatedly made disparaging remarks about him
during the proceedings. Specifically, he argues that trial counsel was ineffective because he asked
potential jurors if they hated doctors because of the way they treat nurses. He claims prejudice
because a key prosecution witness, Cathy Fabian, was a former nurse in Urban’s office, and the
comments created the impression that Urban treated Fabian poorly.
However, as the magistrate judge noted, on cross-examination trial counsel elicited from
Fabian that “she enjoyed working for [Urban], they had a professional and friendly relationship,
petitioner allowed employees to use his condominium, he was committed to the community, and that
most employees stayed in his employ for ten years.” (R&R 21; J.A. 99). Thus, Urban has not
established prejudice. Cf. Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001) (stating that
“[a] strategic decision [on voir dire] cannot be the basis for a claim of ineffective assistance unless
counsel’s decision is shown to be so ill-chosen that it permeates the entire trial with obvious
unfairness”).
2.
Second, Urban complains that his trial counsel introduced damaging evidence during cross-
examination of four state witnesses. The Ohio Court of Appeals summarized its conclusion as
follows:
Dr. Urban further faults trial counsel for bringing out, on cross-examination,
accusations made against him that were not relevant to the trial issues. Although we
recognize that plausible theories of defense can be forwarded for some of counsel’s
forays on cross-examination, and that clarifications or cautionary instructions were
given in several instances, we agree that some of the questions, comments, and
characterizations by defense counsel were questionable. Nonetheless, we conclude
that defendant has not proven that it is reasonably probable that the verdict would
have been different absent counsel’s mistakes and omissions.
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Urban, 2002 WL 464980, at *12. The magistrate judge addressed the allegations pertaining to each
witness individually, and likewise concluded that the Strickland standard was not met.
First, Urban contends that on cross-examination of state witness Dr. Peter Barnovsky, a
doctor in Urban’s office, trial counsel elicited highly prejudicial allegations that Barnovksy made
to the grand jury. Specifically, trial counsel informed the jury of an accusation that Urban provided
controlled substances to drug-addicted patients in exchange for their submission to unnecessary
medical testing. Urban further complains that on redirect Barnovsky “spontaneously made another
allegation” that Urban and his staff had discovered that some child patients were being sexually
abused in their homes. Barnovsky then stated that Urban instructed his staff not to report the abuse
because it would inconvenience his medical practice.
Again, we cannot say that the state court decision is an unreasonable application of
Strickland. As the magistrate judge noted “other former employees of petitioner admitted on cross-
examination that they enjoyed working for petitioner.” See, e.g. Transcript, 770-71, 507-08, 657.
“It therefore appears that trial counsel was attempting, by asking the questions referred to above, to
demonstrate that Barnovsky was biased and his testimony incredible. Also, Barnovsky emphasized
that he was not making any allegations regarding sexual abuse by petitioner or his staff.” (R&R 27-
28; J.A. 105-06). Strickland does not require perfect performance; and wide deference is accorded
to trial counsel’s strategic decisions. See Strickland, 466 U.S. at 689; Campbell v. Coyle, 260 F.3d
531, 551 (6th Cir. 2001). As indicated above, Strickland requires both cause and prejudice, and the
state court’s essential conclusion that Urban failed to establish the latter is not unreasonable.
Urban also objects to trial counsel’s cross-examination of state witness Jane Lengel, a
member of the Ohio Attorney General’s Office Medicaid Fraud Control Unit. Urban claims that on
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cross-examination, trial counsel elicited from Lengel that Urban’s employees might have been
conspiring with Urban. However, the record appears to reflect that trial counsel was pursuing a
strategy of showing that the investigators from the medical board, including Lengel, launched a
malicious investigation against Urban. Again, the state court’s conclusion was not unreasonable.
Third, Urban points to the fact that during cross-examination of Cathy Fabian, trial counsel
questioned her as to whether investigators asked her if Urban had a “two-way mirror in the
examinations rooms where a woman would be examined and he could be on the other side.” Again,
as the magistrate judge held, “[v]iewed in context, it appears that defense counsel . . . was attempting
to impugn the character of investigating officials.” (R&R 23; J.A. 101).
Urban claims that counsel’s cross-examination of state witness Joan Milo, a former patient,
was objectionable because Milo conceded that Urban acted “inappropriately,” and had improperly
billed Milo’s girlfriend for medical services that were never performed. However, we agree with
the magistrate judge that “[d]efense counsel’s cross-examination of Milo regarding the allegedly
improper medical bill was plainly an attempt by counsel to portray Milo as biased, [Transcript], at
732-34, which was not an unreasonable strategy under the circumstances presented.” (R&R 32; J.A.
110).
3.
Urban argues that trial counsel undermined his credibility by telling the jury that he was a
defendant in a pending criminal prosecution. Again, we agree with the magistrate judge that
although counsel’s reference was not altogether clear, it also appeared that counsel was merely
attempting to ensure that the jury panel was impartial. (See R&R 34; J.A. 112). In any event, even
if error, it is quite a stretch to find prejudice under Strickland. Nor can Urban parlay the statement
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into prejudice by combining it with trial counsel’s opening statement regarding FBI agents visiting
his office. The latter comment, as the magistrate judge held, was “an attempt to explain to the jury
why Cathy Fabian, a nurse who had worked for petitioner for fourteen years, would be testifying for
the prosecution.” (R&R 34; J.A. 112). This contention is without merit.
4.
Urban contends that, while cross-examining a witness, trial counsel implied that Urban was
guilty. On cross-examination of Dr. Debra Cooper, another physician and former employee of
Urban, Cooper indicated that Urban told his staff members “if they did not order these tests that they
would not make enough money to run this business and then nobody would get paid.” See Urban,
2002 WL 464980, at *11. The Ohio Court of Appeals specifically addressed this claim and rejected
it because trial counsel also elicited an admission from Cooper that, despite her concerns, she
continued to work at the office and accepted a paycheck, and further admitted that she could not
testify as to what is or is not Medicaid fraud, and that she did not have an opinion as to whether
Urban’s acts were criminal. Id. at 12. The Ohio Court of Appeals also rejected the contention
because “an objection . . . (about alleged instructions to the staff) would not necessarily have been
successful, given that the reported statement was made by Dr. Urban, a party, and that one could
argue that the employees were speaking as agents of Dr. Urban.” Id. Finally, the state court noted
that the absence of such an objection did not affect the outcome of the case. Id. Urban does not, and
cannot, attempt to show how the Ohio Court of Appeals’ ruling is an unreasonable application of
Strickland.
5.
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Urban claims that trial counsel was unprepared for trial. In support, he references affidavits
attached to his motion for a new trial indicating that trial counsel spent only a week preparing for
the trial, and that one week before trial commenced, “trial counsel had absolutely no idea what his
theory of defense would be.” He also appears to complain that more witnesses should have been
presented, although his argument is largely unspecific.
Contrary to Urban’s assertion, the record reflects a defense “theme”–that Urban was the
innocent victim of a corrupt investigation, penalized for being successful at delivering Medicaid
care. Further, the failure to call witnesses does not automatically establish ineffectiveness. In any
event, many of the witnesses Urban would have called were presented as part of the prosecution’s
case. In the absence of any demonstration of prejudice, Urban’s claim under Strickland fails.
6.
Urban argues that trial counsel was ineffective because he failed to call witnesses, as
promised during opening statements. Counsel also told the jury that he was going to have Urban
explain what it was like to be under investigation for five years, but then never called Urban to
testify in his own defense.
Again, Urban’s claim fails. Counsel’s claim that “I will get you ten doctors here and . . .
[y]ou’re going to have ten different opinions as to what the conditions are,” was not a promise to
deliver ten doctors but simply a reflection on the fact that doctors often disagree on diagnoses. As
to the alleged failure of other witnesses, Urban offers no names and no details. Further, he had a
second chance to call witnesses at his post-trial evidentiary hearing, with new counsel, and did not.
As the magistrate judge likewise observed, “[a]s noted by the state appellate court, petitioner has
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failed to demonstrate that any other experts would have provided exculpatory evidence.” (R&R 41;
J.A. 119).
7.
Urban complains that trial counsel was repeatedly admonished by the trial court to Urban’s
detriment. The Ohio Court of Appeals did not directly address this argument. However, as the
magistrate judge noted, “petitioner refers to only three incidents, one of which took place outside
the presence of the jury, and none of which were prejudicial to petitioner.” (R&R 41; J.A. 119).
8.
Urban claims that trial counsel filed an incomprehensible motion for acquittal. However,
the trial transcript reflects that trial counsel stated he was moving for judgment of acquittal under
Rule 29, and that “In Rule 29 we all know the standard and language.” The argument following this
assertion attacked the sufficiency of the state’s evidence, count by count. Trial counsel concluded
by reiterating his reliance on Rule 29. This contention is without merit.
9.
Urban argues that counsel was ineffective in opening and closing arguments. Urban makes
little argument other than to characterize trial counsel’s opening statement as basically
“unintelligible,” and closing argument as “indecipherable.” Like the magistrate judge, upon review
of the record, we cannot agree that trial counsel’s performance was inadequate or prejudicial to
Urban. (R&R 42; J.A. 120). Counsel was undeniably colorful, but his arguments were also logical
and forceful, setting forth his reasons why Urban was entitled to a favorable verdict. In any event,
Urban’s meager attempt to criticize counsel’s performance does not approach a showing under
Strickland, especially under the deferential standard of the AEDPA.
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10.
Urban alleges that trial counsel failed to present available defenses as to both Medicaid fraud
charges and the tampering with evidence charges. Urban claims that with regard to the tampering
with evidence charges, he was prepared to testify that his first attorney instructed him that updating
the patient files after they had been subpoenaed was appropriate. He also contends that four other
individuals were prepared to testify that they heard counsel instruct Urban in such a fashion.
The Ohio Court of Appeals found as a matter of fact that:
Mr. Bravo testified that he did not use the term “grooming” files, that it was
“not a term that would be in my vocabulary and not a term that I would use.” (Tr.
2204.) HHe [sic] explained that, if Dr. Urban used that term, it was in the context
of making sure the right pieces of paper were in each file. Mr. Bravo testified that
he never had a discussion with Dr. Urban about making changes or additions to
existing documents. He stated unequivocally that he never advised Dr. Urban that
he could groom files to make them “complete” by adding to office notes after the
date of the visit.
In regard to the allegation that staff members and Mrs. Urban heard him
confirm that Dr. Urban could groom the files, Mr. Bravo testified that, on the
occasions he was with Dr. Urban in the presence of staff members or Mrs. Urban, the
document production was complete or nearly so. He noted, however, that Dr. Urban
was very upset about the production of files and often talked with counsel about it.
He noted that, to the extent he approved continued preparation of files, he meant
adding the computer printouts and removing misfiled papers.
Urban, 2002 WL 464980, at *3. These facts are entitled to a presumption of correctness, see 28
U.S.C. § 2254(e), and Urban has done nothing to undermine that presumption.
The court then ruled on Urban’s arguments in light of these facts as follows:
First, we cannot agree that “no defense” was presented for Dr. Urban.
Several members of Dr. Urban’s staff, who might have been called in his defense,
were called by the prosecution to establish parts of its case, and, accordingly, their
beneficial testimony was elicited on cross-examination by defense counsel. Further,
on appeal, Dr. Urban has not proved that trial counsel failed to call witnesses whose
testimony would likely have resulted in his acquittal. For example, he asserts in his
brief that he employed other temporary doctors who did not testify at trial and who,
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therefore, apparently approved of his protocol and found that the tests were
medically necessary. However, he did not present the trial court with an affidavit
post-trial from any of these doctors to demonstrate that they had crucial testimony
to offer. Even when the court invited the defense to provide a witness in the post-
trial hearing, the defense did not put on a witness to help demonstrate that, if that
witness had testified during trial, there would likely have been an acquittal.
Although Dr. Urban presented affidavits in the post-trial hearing from his
wife and several employees regarding counsel’s approval of “grooming” the files,
we cannot conclude that the testimony of these witnesses, if they testified at trial,
would likely have resulted in a different outcome as to evidence tampering. These
witnesses did not appear at the hearing, and there was no cross-examination as to
their fairly vague statements in the affidavits, which do not directly and specifically
refute Mr. Bravo’s testimony at hearing. Their statements were generally consistent
with his statements that he approved adding some materials to the files and reviewing
the files for misfiled papers. More importantly, accepting arguendo that effective
counsel would have interviewed these witnesses and presented one or more of them
during trial, we nevertheless conclude that the evidence against Dr. Urban was so
overwhelming that a different result was not likely upon retrial.
Id. at *12-13. Urban utterly fails to establish that the state court’s rulings–that there was no cause,
and if cause, no prejudice given the overwhelming amount of evidence–are an unreasonable
application of Strickland. As the Respondent asserts, any testimony from Urban and his employees
would have been refuted by Attorney Bravo’s testimony that he never discussed the files with them;
and therefore, defense counsel exercised sound trial strategy in avoiding such impeachment.
11.
Urban asserts that the foregoing examination demonstrates that the cumulative weight of trial
counsel’s errors was overwhelming and that he is entitled to relief under the “contrary to” clause of
§ 2254(d)(1). Contrary to his assertion, the “unreasonable application” clause applies to Urban’s
Strickland claim, and the state court’s ruling was not unreasonable. The Ohio Court of Appeals
held, and the record reflects, that “the evidence against Dr. Urban was so overwhelming that a
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different result was not likely upon retrial.” Id. Urban has not established how the rulings of the
trial court or the Ohio Court of Appeals are an unreasonable application of Strickland.
B.
Urban also argues that his claim for relief is governed by the “contrary to” clause of 28
U.S.C. § 2254(d)(1) and that the Ohio Court of Appeals’ rulings were contrary to clearly established
federal law. As an initial matter, it should be noted that the Ohio Court of Appeals assessed Urban’s
ineffective assistance of trial counsel claim under two distinct standards twice, as part of Urban’s
direct appeal, and as part of the denial of Urban’s motion for a new trial. The Ohio Court of Appeals
expressly considered and rejected Urban’s claim under two distinct standards of review.
1.
Urban contends that the Ohio Court of Appeals’ decision denying his ineffective assistance
claim is “contrary to” Cuyler v. Sullivan, 446 U.S. 335 (1980). He points to the state appellate
court’s comments that
the trial court gave careful consideration to the overall fairness of the trial. For
example, the trial court considered Dr. Urban’s situation, which was not that of an
uneducated defendant with a court-appointed counsel he did not choose. . . . We
conclude that the trial court, in denying a new trial on grounds of ineffective
assistance of counsel, reasonably considered the defendant’s education, his
experience with lawyers and legal matters, his ability to hire counsel of his choice,
and his past exercise of the freedom to hire new counsel.
Id. at *14.
Cuyler stated that defendants who retain counsel are entitled to the same constitutional
protections as those who are appointed counsel, Cuyler, 446 U.S. at 344-45, and further held that
“[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at
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trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s
performance.” Id. at 348.
Cuyler involved multiple representation. This case is therefore not “contrary to” Cuyler.
Cuyler is also not relevant because Urban does not assert that his lawyer had an actual conflict of
interest. Finally, the Ohio Court of Appeals did not reject Urban’s ineffectiveness claim because
he had retained counsel. In any event, the passage Urban cites in support of his argument addressed
the denial of Urban’s motion for a new trial, not his federal constitutional claim for ineffective
assistance of counsel. Indeed, the Ohio Court of Appeals was careful to note in its opinion that “we
have reviewed the question of ineffective assistance of counsel using two different standards of
review,” Urban, 2002 WL 464980, at *13, and that Urban had not only “not satisfied the two
elements required” under Strickland, but also that the trial court did not abuse its discretion in
denying the new trial motion. Id. In short, this contention is without merit.
2.
Urban also alleges that the Ohio Court of Appeals incorrectly rejected his ineffectiveness
claim on the ground that Urban benefitted from the competent representation of his co-defendant’s
counsel. The Ohio Court of Appeals stated in relevant part that “[w]e agree that Mr. Merkle made
objections and presented witnesses that benefitted Dr. Urban, and we conclude that the trial court,
in considering the fairness and reliability of the trial, reasonably considered the overall assistance
received by defendant during trial.” Urban, 2002 WL 464980, at *14. Urban contends that this
ruling directly contradicts clearly established federal law, namely Von Moltke v. Gillies, 332 U.S.
708 (1948), which states in part that “[t]he right to counsel guaranteed by the Constitution
contemplates the services of an attorney devoted solely to the interests of his client.” Id. at 725.
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Urban is wrong. In Von Moltke, the Supreme Court held that the petitioner had been
deprived of her Sixth Amendment right to counsel because she was deprived altogether of the right
to appointed counsel, and that the advice and counsel received from government representatives, FBI
agent-attorneys, whose loyalty was to the government, did not suffice. Pension v. Ohio, 488 U.S.
75 (1988), is also inapposite. It held that a criminal defendant was entirely without the assistance
of counsel on his first appeal as of right, after appointed counsel filed a motion for leave to withdraw
but failed to comply with Anders v. California, 386 U.S. 738 (1984), and the court failed to conduct
an independent analysis.
In any event, the state appellate court did not reject Urban’s constitutional ineffectiveness
claim simply because he received some benefit from the performance of codefendant Hatcher’s
attorney, and the appellate court did not consider the performance of Hatcher’s attorney in lieu of
his. The court merely noted that, in the context of its review of the new trial motion, Urban derived
some benefit from Hatcher’s defense. The state court decision is not “contrary to” federal law.
3.
Next, Urban contends that the Ohio Court of Appeals evaluated his ineffective assistance of
counsel claim under a higher measure of proof than Strickland requires. Urban alleges that the state
court required him to demonstrate that, but for counsel’s errors, the “outcome probably would have
been different,” rather than requiring him to prove that there was a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. Thus, Urban claims that the state appellate court applied a
preponderance of the evidence standard, and therefore was contrary to clearly established federal
law.
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We reject this argument. The Supreme Court recently held that a state court’s “occasional
shorthand reference to [the Strickland prejudice standard] by use of the term ‘probable’ without the
modifier may perhaps be imprecise,” but it is not a repudiation of the Strickland standard, “contrary
to” federal law. Woodford v. Visciotti, 537 U.S. 19, 23-24 (2002) (per curiam). The Supreme Court
recently reversed the Sixth Circuit on these grounds. See Holland v. Jackson, 124 S. Ct. 2736
(2004) (per curiam) (holding that the Sixth Circuit erred in holding that the state court acted contrary
to federal law by requiring proof of prejudice by a preponderance of the evidence rather than by a
reasonable probability; noting that in Visciotti, the Court held that use of unadorned “probably” is
permissible shorthand when complete Strickland standard is elsewhere cited). Although it did not
quote Strickland and used slightly different terms, the Ohio Court of Appeals clearly applied the
Strickland standard; it cited to the federal standard, including the correct pinpoint cite, see State v.
Urban, 2002 WL 464980, at *10 (citing Strickland, 466 U.S. at 687), and it relied on Ohio v.
Bradley, 538 N.E.2d 373, 380 (Ohio 1989), in which the Ohio Supreme Court quoted the Strickland
standard in full, including the proper definition of reasonable probability.
C.
Urban argues that his habeas application is governed by the “contrary to” clause of §
2254(d), which is not as demanding as the “unreasonable application” clause. As reflected above,
we have analyzed various claims under both prongs of § 2254(d)(1), as appropriate. Further,
Urban’s argument that he is entitled to relief under pre-AEDPA standards is without merit. He
makes a number of other related arguments in this section of his brief. We address only those that
need further attention. Urban complains that his trial counsel was ineffective because he was not
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called to the witness stand, because trial counsel did not hire an expert witness, and because counsel
failed to introduce policy statements from the State Medical Board.
1.
Urban complains that he wished to testify at trial and that counsel erred in failing to call him
testify in his own behalf. Urban claims that he could have explained how Attorney Bravo advised
him to update his files, and how all the tests billed under Medicaid were medically necessary. He
further alleges that, had he testified, there was a reasonable probability that the outcome would have
been different. However, as the Ohio Court of Appeals determined,
there were good reasons to refrain from calling Dr. Urban as a witness. The
prosecutor pointed out during hearing on the motion for new trial that, if Dr. Urban
had testified that Mr. Bravo told him it was acceptable to insert new material into the
progress notes, Mr. Bravo would have contradicted it emphatically, creating a
situation where defendant’s former attorney essentially called him a liar, under oath.
In addition, the prosecutor pointed out that retrospective justifications for some of
the tests would not have refuted the central thrust of the prosecution’s case, which
was that unqualified employees routinely ordered tests under a written protocol prior
to examination by temporary doctors, and that tests were thus performed and billed
in the absence of findings of medical necessity. More importantly, the trial court
noted that the prosecution had damaging evidence, a statement by Dr. Urban that
could be viewed in the nature of a confession, which the prosecution could present
to the jury only if Dr. Urban testified, to impeach him.
Urban, 2002 WL 464980, at *10. The Ohio Court of Appeals also noted that much of the allegedly
“crucial evidence” came from other witnesses:
For example, although Dr. Urban argues that he did not have the opportunity to
explain the role of preventive testing in a holistic approach to medicine, defense
counsel cross-examined witnesses about differing opinions on this approach, and
obtained helpful admissions from several witnesses. Similarly, although Dr. Urban
did not testify, the jury heard evidence that his attorney approved his updating of the
subpoenaed files. For example, Barbara Goodhart testified that Dr. Urban was
openly writing on the subpoenaed charts and also talked about it openly, making
clear that he believed that his lawyer approved. In sum, defendant has not met his
burden of demonstrating that trial counsel erred in failing to present him as a witness
on his own behalf or demonstrate the requisite prejudice.
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Id. The Ohio Court of Appeals’ ruling that such decision was sound strategy is not an unreasonable
application of Strickland and progeny.
Significantly, Urban does not contend that he was not informed of his right to testify, or that
trial counsel refused to let him testify. Rather, his affidavit states in relevant part:
The affiant, on the 1st day of trial, had not been advised if he was going to
testify or not, who was going to testify on his behalf, or what the defense strategy
was.
(J.A. 55). In other words, Urban’s statement confirms that the decision not to have him testify was
strategic. For the reasons discussed above, we hold that the Ohio Court of Appeals’ determination
that the strategic decision did not violate Strickland and progeny was not an unreasonable
application of Supreme Court precedent.
2.
As for Urban’s contention regarding policy statements, the Ohio Court of Appeals
determined as follows:
Dr. Urban also argues that his counsel was ineffective in failing to present
exculpatory documents from the medical board. These documents, filed in
December 2000 with the motion for new trial, are policy statements interpreting R.C.
Chapter 4731, the “Medical Practice Act.” In the first document, the board
expressed its concern that physicians were signing insurance forms for payment of
services they did not personally provide. The board stated that, if the doctor’s
certification did not match his actual activities, there had been a violation of the
Medical Practice Act. The board further stated that, if a physician stated that a
service was a medical necessity without personal knowledge allowing such
certification, a Medical Practice Act violation had occurred. In the other policy
statement, the board explained that performing a pelvic examination constituted the
practice of medicine but that a physician could delegate “specific technical
components” of the examination, such as obtaining a pap smear, “to nurses or
physician’s assistants if within their scope of practice.” (Motion for New Trial,
Exhibit 1A.)
We note, first, that these statements were not interpreting the Medicaid laws
under which Dr. Urban was billing ODHS, and, therefore, the statements were not
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relevant to the accusation at trial, which was that Dr. Urban billed for Ms. Fabian’s
services using a Medicaid code for services provided by a registered nurse or
physician’s assistant, which he knew was untrue. Second, it is debatable whether the
documents support Dr. Urban’s innocence. On the contrary, his actions could be
viewed as violating the policies. We find that trial counsel was not deficient in
failing to present these documents as a defense to Medicaid fraud.
Urban, 2002 WL 464980, at *11. Urban has simply not demonstrated how this ruling is an
unreasonable application of Strickland.
3.
As to the alleged failure to retain an expert witness, the Ohio Court of Appeals ruled that
In addition, Dr. Urban argues that his trial counsel committed a serious error
in failing to retain an expert to testify that all the tests billed to Medicaid were
medically necessary. He asserts that an expert would have testified as to the medical
necessity of the tests. We note, however, that, in the post-trial proceedings, when the
trial court expressly invited defendant to bring in an expert witness, and gave an
extension of time to obtain witnesses to support the motion for new trial, defendant
presented no witness. In the time provided prior to the hearing, an expert could have
reviewed two or three patient files selected by Dr. Urban, and testified as to the
medical necessity for the tests, thus providing a sample of the kind of expert
testimony that, Dr. Urban alleges, a diligent and prepared attorney would have
presented at trial. However, no expert testified, and Dr. Urban’s assertions that an
expert would testify that the tests were necessary are speculative.
Id. Again, Urban does not show how the state court’s decision is an unreasonable application of
Strickland.
III.
As the Ohio Court of Appeals concluded:
[E]ven though there were flaws in counsel’s defense of Dr. Urban, defendant has not
met his burden of proving that it was reasonably likely that there would have been
a different result absent the errors. The testimonial evidence and documentary
evidence were overwhelming in combination. Accordingly, we conclude the trial
court did not err or abuse its discretion in denying the motion for new trial on the
grounds that counsel was constitutionally ineffective. We also conclude, separately,
upon independent review of the record, that defendant has not met his burden on
appeal of demonstrating that the outcome of his trial would probably have been
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different absent the errors and omissions by his trial counsel, considered in their
totality.
Urban, 2002 WL 464980, at *14. “To be sure, [Urban’s] lawyer was no Aristotle or even Clarence
Darrow.” Yarborough v. Gentry, 540 U.S. 1, 7 (2003) (per curiam). However, the bottom line is
that, even though trial counsel’s performance was not stellar, Urban has not established prejudice.
Our independent review of the record under the applicable habeas standards confirms that the Ohio
Court of Appeals’ decision is not an unreasonable application of clearly established federal law.1
As noted above, any remaining contentions are utterly without merit and do not warrant
discussion.
IV.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
1
Urban includes a string citation of cases in which Colucci has been chastised for providing
inadequate services to his clients. Furthermore, it should also be noted that on July 9, 2004, the
Supreme Court of Ohio entered an interim remedial suspension against Mark S. Colucci, trial
counsel, effective immediately, for the reason that he “has committed numerous violations of the
Code of Professional Responsibility and that he poses a substantial threat of serious harm to his
clients and the public.” 7/09/2004 Case Announcements, 2004-Ohio-3599.
Even if, as Urban suggests, the recitation demonstrates that trial counsel has repeatedly
disregarded his professional obligations to his clients, it does not a fortiori establish Strickland
cause, let alone prejudice, here.
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