Johnson v. Bradshaw , 205 F. App'x 426 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0028n.06
Filed: January 9, 2007
No. 05-3260
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILLIE JOHNSON, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
MARGARET BRADSHAW, ) NORTHERN DISTRICT OF OHIO
)
Respondent-Appellee. )
)
)
)
Before: DAUGHTREY and GIBBONS, Circuit Judges; EDMUNDS, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant, Willie Johnson, was convicted in
an Ohio state court of multiple counts of child rape, rape, gross sexual imposition, and intimidation
and sentenced to life in prison. After pursuing the appropriate appellate channels in the Ohio state
courts without success, Johnson filed a petition for habeas corpus relief from the state judgment with
the federal district court, claiming, among other things, that he was denied effective assistance of
counsel in violation of his rights under the Sixth Amendment to the United States Constitution. The
district court denied Johnson’s petition, and Johnson appeals.
*
The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
For the reasons below, we affirm the decision of the district court.
I.
Willie Johnson was charged in a fifty-five count indictment with: (1) seventeen counts of
rape of a victim under the age of thirteen in violation of Ohio Rev. Code Ann. § 2907.02; (2) ten
counts of rape, in violation of Ohio Rev. Code Ann. § 2907.02; (3) twenty-six counts of gross sexual
imposition in violation of Ohio Rev. Code Ann. § 2907.05; and (4) two counts of intimidation in
violation of Ohio Rev. Code Ann. § 2921.04. The charges against Johnson arose out of allegations
made by the adolescent daughters of his former girlfriend, Elnora Benefied, that he engaged in
improper sexual activity with them and later threatened to harm Benefield if she pursued charges
against him. Johnson’s case was set for trial in the Ohio Court of Common Pleas for the County of
Cuyahoga. The Ohio Court of Appeals described the course of the early proceedings before the Ohio
trial court:
The record reveals that the trial court found appellant to be indigent at his
arraignment on August 7, 2001 and appointed counsel to represent him. That counsel
withdrew with the permission of the court on August 15, 2001[,] and the Public
Defender’s Office was contemporaneously appointed as appellant’s legal
representative. Trial commenced on August 30, 2001 . . . .
State v. Johnson, No. 80436, 2002 WL 31839432, at *1 (Ohio Ct. App. Dec. 19, 2002). Christopher
Roberson, of the Public Defender’s Office, appeared on Johnson’s behalf on August 30. The trial
court engaged Roberson in the following exchange:
The Court: How long have you been Mr. Johnson’s counsel?
Mr. Roberson: The case was assigned to the public defender’s office. He was
arraigned on August 7th and we received the case shortly after that, so a few weeks,
your Honor.
The Court: You received the case right out of the arraignment room?
2
Mr. Roberson: No I didn’t receive the case – initially, the case was assigned to
another attorney at the public defender’s office. And, she was not going to be able
to, because of conflicts she had as far as her work schedule, she was not going to be
able to continue on the case.
After he was re-indicted, another attorney was assigned to the case and this attorney
also had conflicts of time problems, so he was permitted to withdraw. Subsequent
to that, then I was appointed on this case. That would have been some time after
August the 13th.
The Court: All right. So, you had this case no longer than seventeen days. Today’s
August 30th.
Mr. Roberson: Correct.
The Court: Mr. Johnson, do you want to go forward with trial today? Your lawyer’s
had this case seventeen days. The maximum penalty provided under twenty-some
counts here is life imprisonment, fifteen years to life imprisonment. He has told me
repeatedly that you wish to go forward. That’s why I’m here. That’s why I told
everybody to be here to try this case.
The Defendant: Yes.
The Court: You still want to go forward? The time is running on the case. We have
to go forward on the case. That’s what you want to do?
The Defendant: Yes.
The Court: I would continue the case today at your request if you requested such to
get your attorney more involved in the facts of the case. But, without your request
to do so, I will not do it. You want to go forward then?
The Defendant: Yes, because from what I see, you know, it still is going to be just
me.
JA 417-19. After correcting a prior misstatement regarding the possible sentence to which Johnson
could be subject upon conviction, the court again asked if he was prepared to continue. Johnson
responded in the affirmative. Trial proceeded. On September 4, the third day of trial, at the
beginning of the direct examination of one of the minor victims, Roberson asked to approach the
3
bench. There, he made an oral request for a continuance because, over the weekend, Johnson had
informed him that his sister was attempting to hire a new attorney. The state objected to the
continuance, and the court overruled Johnson’s motion.
During the course of trial, the state offered evidence from both minor victims, their mother,
their siblings, school personnel, law enforcement officials, and the doctor who examined one of the
victims. The victims testified that Johnson, who lived with Benefield and her children for thirteen
years, had regularly subjected them to inappropriate sexual touching over the course of two years.
Benefield testified that when she learned of Johnson’s activities and notified the police, Johnson
returned to her home and threatened her with violence. Although Roberson cross-examined each
witness and offered an opening and closing statement, he did not present any defense witnesses.
Johnson did not testify. The jury returned a verdict of guilty on all of the counts before it:1 eleven
counts of rape, eight counts of gross sexual imposition, and two counts of intimidation. The court
sentenced Johnson to two consecutive life sentences for the child rape convictions, concurrent ten-
year sentences for the additional rape charges, and one-year sentences for each count of gross sexual
imposition and intimidation, to run concurrent with his other sentences.
Johnson appealed his conviction to the Ohio Court of Appeals, raising seventeen assignments
of error. The court affirmed Johnson’s convictions and sentences on December 19, 2002. State v.
Johnson, No. 80436, 2002 WL 31839432 (Ohio Ct. App. Dec. 19, 2002). On February 14, 2003,
Johnson filed a notice of appeal with the Ohio Supreme Court. That court dismissed Johnson’s
appeal on May 16, 2003, citing the absence of any substantial constitutional questions.
1
The trial court dismissed 35 counts prior to submitting the case to the jury.
4
On April 12, 2004, Johnson filed his petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 in the United States District Court for the Northern District of Ohio. The court referred the
petition to a United States Magistrate Judge, who issued a report and recommendation advising the
district court to deny Johnson’s petition. Johnson filed timely objections to the report and
recommendation. The district court rejected these objections and, on January 31, 2005, adopted the
magistrate’s report and recommendation and also denied Johnson’s request for a certificate of
appealability. Johnson filed his notice of appeal with this court on February 22, 2005, and we
granted a certificate of appealability on two issues raised by Johnson: (1) whether Johnson was
denied the effective assistance of counsel because a new attorney was appointed to represent him less
than seventeen days2 prior to trial; and (2) whether the trial court made sufficient inquiry regarding
Johnson’s dissatisfaction with newly appointed counsel when it denied his motion for a continuance.
II.
A.
The propriety of the district court’s decision on Johnson’s habeas petition is a question of
law we review de novo. Mitchell v. Mason, 325 F.3d 732, 737 (6th Cir. 2003). The state court’s
factual determinations are presumptively correct, and a habeas petitioner bears the burden of
showing, by clear and convincing evidence, that the state court’s findings of fact are erroneous. Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-
132, 110 Stat. 1214 (1996), which applies to all habeas petitions filed after April 24, 1996, governs
2
Although the certificate of appealability identifies the duration of Roberson’s appointment
as seventeen days, presumably in reliance on the state trial court’s statement, the record indicates that
Roberson was not assigned to the case more than fifteen days prior to trial. The Ohio Court of
Appeals also identified the relevant period as fifteen days. We adopt the fifteen-day finding.
5
Johnson’s petition. Frazier v. Huffman, 343 F.3d 780, 787 (6th Cir. 2003). AEDPA permits a
federal court to grant relief from a state court judgment only if the state court’s decision:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United states; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Only the “holdings, as opposed to dicta, of the Supreme Court’s decisions as
of the time of the relevant state-court decision” qualify as clearly established federal law for habeas
purposes. Mitchell, 325 F.3d at 738. A federal court may grant relief from a state court judgment
under the “contrary to” clause where the state court decision is “opposite to that reached by [the
Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme
Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413
(2000). Relief is appropriate under the “unreasonable application” clause where “the state court
identifies the correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id. “An unreasonable
application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “The proper
inquiry for the ‘unreasonable application’ analysis is whether the state court decision was objectively
unreasonable and not simply erroneous or incorrect.” Keith v. Mitchell, 455 F.3d 662, 669 (6th Cir.
2006).
We review the decision of the Ohio Court of Appeals, the last state court to address the
merits of Johnson’s claims, Hunt v. Mitchell, 261 F.3d 575, 582 n.3 (6th Cir. 2001), and limit our
6
review to those issues identified in the certificate of appealability. Searcy v. Carter, 246 F.3d 515,
518 (6th Cir. 2001).
B.
Johnson contends he was constructively denied effective assistance of counsel because of the
limited time between Roberson’s appointment and his trial date. Courts typically review a
defendant’s claim that he was denied the effective assistance of counsel guaranteed by the Sixth
Amendment under the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668,
687 (1984), wherein a petitioner must make a showing of both deficient performance and actual
prejudice to his case. In United States v. Cronic, 466 U.S. 648 (1984), the Supreme Court held,
however, that a defendant is entitled to a presumption of prejudice where circumstances arising in
a criminal prosecution “are so likely to prejudice the accused that the costs of litigating their effect
in a particular case is unjustified.” Id. at 658. The Court in Cronic identified three situations where
a defendant is entitled to a presumption of prejudicial impact: (1) where the defendant is subject to
a “complete denial of counsel,” including those situations where a defendant was denied the presence
of counsel at a “critical stage”; (2) where defense counsel “entirely fails to subject the prosecution’s
case to meaningful adversarial testing”; and (3) in situations where “the likelihood that any lawyer,
even a fully competent one, could provide effective assistance is so small that a presumption of
prejudice is appropriate.” Id. at 659-60; see also Bell, 535 U.S. at 695-96 (reaffirming Cronic’s
holding). Johnson argues that his claim falls within this third category because the limited time
between Roberson’s appointment and the commencement of trial made it impossible that any lawyer
could provide constitutionally adequate assistance of counsel.
As to Johnson’s claim of constructive denial of counsel, the Ohio appeals court held:
7
As is demonstrated from the . . . colloquy [between Roberson and the trial court at
the commencement of trial], appellant was asked on several occasions if he wanted
to go forward. Appellant repeatedly states in his brief before this court that his trial
counsel did not “feel prepared” or was “admittedly ill prepared.” This is untrue. Not
only did appellant never voice any hesitancy with appointed counsel, appointed
counsel did not indicate or otherwise demonstrate to the court that counsel was
unprepared to go forward. On the contrary, when inquired by the court, counsel stated
that he was prepared to go forward.
While it is true that a court's decision to appoint counsel on the day of trial has been
found to be prejudicial error, that is not the case here. Compare Hunt v. Mitchell
(C.A.6, 2001), 261 F.3d 575. We see no error. . . .
Appellant's first assignment of error is not well taken and is overruled.
Johnson, 2002 WL 31839432, at *2.
The state court decision is not based upon an unreasonable application of established
Supreme Court precedent. As a preliminary matter, while Johnson insists the trial court appointed
the Public Defender’s Office to represent him on August 20, ten days before the start of trial, the
journal entry from the state trial court confirms the state appellate court’s account of the trial court’s
actions, that is, that the public defender’s office was assigned to Johnson’s case August 15, fifteen
days before trial was to begin. Although the precise date Roberson assumed responsibility for
Johnson’s case cannot be ascertained from the record, Roberson had Johnson’s case at least three
days prior to trial, because he appeared on Johnson’s behalf at the taking of the videotape testimony
of Dr. Mark Feingold, a state witness, on August 27. Given the reasonably able manner in which
Roberson handled the taking of Feingold’s testimony – he both offered substantive objections and
thoroughly cross-examined the doctor – it is likely Roberson had the case more than three days.
There is, additionally, support for the Ohio Court of Appeals’s determination in the trial
record. On the first day of trial, Roberson represented to the court that he was prepared to proceed
8
with trial. Moreover, the record reveals that Roberson performed competently during trial, the
limited preparation time notwithstanding. On cross examination, Roberson identified many of the
inconsistencies in the testimony of the minor victims and their siblings who testified. Roberson
called no additional defense witnesses, but it is not clear there was anyone else to be called, since,
it appears, all of the individuals with personal knowledge of the incident were present at trial and
subjected to cross examination. Finally, although Roberson had limited time to prepare, it is
reasonable to assume that, as a member of the Public Defender’s Office, he was well-versed in Ohio
criminal procedure and substantive law. Compare Cronic, 466 U.S. at 650 (observing that appointed
attorney was “young lawyer with a real estate practice”).3
Johnson relies on Hunt v. Mitchell, 261 F.3d 575 (6th Cir. 2001), in support of his claim of
entitlement to Cronic’s presumption. In Hunt, the Sixth Circuit considered habeas petitioner Wayne
Hunt’s claim that he was entitled to a presumption of prejudice under Cronic due to his appointed
attorney’s inability to prepare prior to trial. As the court described the facts underlying Hunt’s claim,
police arrested Hunt following a drunken altercation at his home one evening. Id. at 578. Hunt
remained in jail for eighty-seven days following his arrest until the state returned an indictment
against him charging him with felonious assault and domestic violence. Id. Two days later, Hunt
was arraigned in the Court of Common Pleas of Cuyahoga County, Ohio, where the court appointed
an attorney to represent him. Id. That same day, the trial court informed Hunt:
Mr. Hunt . . . we have to start trial today because apparently this is your 90th day of
incarceration. So if you want to go to trial, that’s fine. I’ll have them take you
3
Unfortunately, we are without the benefit of any information from Roberson concerning the
preparatory activities in which he engaged prior to trial. Johnson did not secure an affidavit from
Roberson in support of his habeas petition. All that appears in the record is an affidavit from
Johnson concerning what Roberson allegedly told him.
9
downstairs and have you changed into civilian clothes. In the meantime we’ll have
the jury brought up and we’ll start trial or you can waive time if you want more time
to consult with your lawyer to prepare your case. Those are your two options.
Id. When Hunt’s newly appointed counsel requested ten minutes to consult with Hunt, the court
responded, “There is no ten minutes. He’s got to be taken downstairs. It’s pretty straight forward.”
Id. The court in Hunt determined that petitioner had been denied access during the critical pretrial
phase of his trial insofar as he did not have an opportunity to consult with his attorney even once
before the start of voir dire. Id. at 583. In addition, the court noted that Hunt remained in jail,
apparently forgotten, for eighty-seven days before being indicted, was rushed through the pretrial
process, and forced to choose between his right to the aid of counsel and his right to a speedy trial
and held that the “egregious circumstances surrounding the trial court’s appointment of counsel” also
justified application of the Cronic presumption. Id. at 583-84.
In Mitchell v. Mason, 325 F.3d 732 (6th Cir. 2003), the Sixth Circuit again considered the
Cronic doctrine. The petitioner, Charlie Lee Mitchell, was convicted in Michigan state court of
second-degree murder and sentenced to imprisonment. Id. at 734-35. Before the start of his trial,
Mitchell wrote a series of letters to the trial court, stating his attorney had not visited him in prison
or consulted with him in court. Id. at 735. Defense counsel failed to appear for a hearing held on
Mitchell’s motion for withdrawal, where Mitchell notified the court that he received a letter from
counsel that he had been suspended from the practice of law for a month. Id. Defense counsel was
reinstated the first day of jury selection and appeared on Mitchell’s behalf. Id. He informed the trial
court that Mitchell wished to dismiss him as counsel. Id. The court denied Mitchell’s motion
without prejudice, and Mitchell was subsequently convicted. Id. at 736. After the Michigan state
courts denied his claims of ineffective assistance of counsel, Mitchell filed a § 2254 petition with
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the federal district court, which the district court granted. Id. at 737. The panel affirmed the grant
of relief, observing, “When counsel is appointed but never consults with his client and is suspended
from practicing law for the month preceding trial, and the court acquiesces in this constructive denial
of counsel by ignoring the defendant’s repeated requests for assistance, Cronic governs.” Id. at 744.
Hunt and Mitchell present factual scenarios more egregious than those underlying Johnson’s
habeas petition. Defense counsel in Hunt had no time to consult with his client before proceeding
to trial, 261 F.3d at 583, and the court in Mitchell concluded that defense counsel’s thirty-day
suspension from practice prior to trial and extremely limited contact with Mitchell amounted to a
“complete denial of counsel at a critical stage of the proceedings.” 325 F.3d at 741. Other courts
have rejected Cronic claims where the circumstances complained of amounted to little more than
a limited period of preparation for appointed counsel. See, e.g., Cronic, 466 U.S. at 665 (denying
claim to presumption of prejudice where appointed counsel, a young real estate lawyer, had twenty-
five days to prepare for trial); Jackson v. Carroll, 161 F. App’x 190, 193 (3d Cir. 2005) (denying
Cronic claim where defense attorney had sixteen days to prepare for trial); Conklin v. Schofield, 366
F.3d 1191, 1202 (11th Cir. 2004) (“The fact that Chason had just thirty-seven days to prepare for
trial does not lead to per se ineffectiveness.”); Glover v. Miro, 262 F.3d 268, 278 (4th Cir. 2001)
(rejecting petitioner’s claim that his counsel’s performance was presumptively prejudicial when he
had only two days to prepare and had fifty to sixty other cases to handle). These cases undercut
Johnson’s attempt to make the number of days Roberson had for preparation the pivotal issue in this
case.
Ideally, defense counsel would enjoy greater opportunity to prepare before proceeding to trial.
The presumption of prejudice afforded under Cronic is limited, however, to those cases where
11
defendant was subject to a pretrial and trial process so fundamentally flawed that no lawyer of any
quality could provide constitutionally adequate counsel. Johnson does not present such a case. The
Ohio Court of Appeals did not engage in an unreasonable application of clearly established federal
law in denying Johnson’s claim, and we accordingly reject his petition on that ground.4
C.
Johnson contends that he was denied effective assistance of counsel when the state trial court
refused his request for substitution of counsel during trial and failed to inquire into the substance of
Johnson’s dissatisfaction with Roberson. As to this claim, the Ohio Court of Appeals wrote:
In his second assignment of error, appellant contends that he was denied due
process of law when the trial court failed to make an adequate inquiry regarding his
request to replace his appointed counsel with counsel of his own choosing.
We note at the outset that, contrary to appellant's representations, appellant's request
was for a continuance, not a request for his counsel to withdraw. Notwithstanding,
we note that if a criminal defendant has demonstrated “good cause, such as a conflict
of interest, a complete breakdown of communication, or an irreconcilable conflict,”
then a trial court's failure to honor a timely request for new counsel would constitute
a denial of effective assistance of counsel. State v. Blankenship (1995), 102 Ohio
App.3d 534, 558, 657 N.E.2d 559; State v. Carter (1998), 128 Ohio App. 3d 419,
423, 715 N.E.2d 223. In all other cases, a trial court's decision denying a motion for
a continuance to retain new counsel is governed by an abuse of discretion standard.
State v. McNeill (1998), 83 Ohio St. 3d 438, 452, 700 N.E.2d 596.
Appellant relies on this court's decision in State v. Beranek (Dec. 14, 2000),
Cuyahoga App. No. 76260, 2000 Ohio App. Lexis 5868, for the proposition that a
trial court commits reversible error when it does not inquire of an indigent criminal
4
The disposition of the Cronic issue does away with any need to consider Johnson’s claim
under Strickland. Under Strickland, “a defendant's right to effective assistance of counsel is violated
where counsel's representation fell below an objective standard of reasonableness and where there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.” McFarland v. Yukins, 356 F.3d 688, 709-10 (6th Cir. 2004) (internal
citation and quotation marks omitted). Whatever Roberson’s imperfections, there is no evidence in
the record that his performance fell below an objective standard of reasonableness or that a
correction of any errors would have altered the outcome of Johnson’s trial.
12
defendant as to that defendant's reasons for requesting a change of counsel. In that
case, the defendant had requested that his trial counsel withdraw and trial counsel
thereafter made an oral motion prior to voir dire to be removed. Finding the motion
not only untimely but not written, the court denied the motion.
The Beranek court, relying on State v. Prater (1990), 71 Ohio App. 3d 78, 593 N.E.2d
44, found that a trial court has a duty to investigate the reasons behind the defendant's
request for a change of counsel, however brief or minimal, once that defendant
asserts allegations specific enough to justify further investigation. Id. at 12, 593
N.E.2d 44. Notwithstanding that there were no specific allegations made by the
defendant in Beranek, the court stated that it would “not penalize Beranek for failing
to press the issue before the [court] when the [court] made it clear that [it] would not
consider Beranek's complaints and did not inquire into their nature.”
In this case, the record reveals that the state's first witness, the victims' mother, had
finished testifying when the state called Victim I as its second witness. After the
court had inquired as to this victim's age and ability to testify truthfully and before
the state began its direct examination, appellant's counsel interrupted, stating:
[APPELLANT'S COUNSEL]: Okay, what I'm doing is making an oral request for
a continuance. I spoke with the [appellant] over the weekend. He says his sister was
in the process of trying to hire an attorney to take over the case. And, I just want to
bring that to the Court's attention.
THE COURT: He wants it continued to hire a lawyer.
THE PROSECUTOR: We would object. We're ready to go forward.
THE COURT: Motion overruled.
During sentencing, appellant stated:
I still say that I'm innocent, and I want it on the record that I tried to dismiss my
attorney, and he said that you disallowed it, even though there was no stenographer
over there, he said that you disallowed it.
Trial counsel thereafter explained to the court:
Just for clarification, Your Honor, with respect to the statement just made, he did ask
me to approach the Court to try to get new counsel appointed on the case, and I
explained to him that one of the problems was there was a time problem with respect
to this case, and I asked would he be willing to sign a waiver to extend the time, and
13
of course, he wasn't willing to do that, which is part of the reason why the Court
decided that new counsel would not be appointed to the case.”
Appellant maintains that this exchange “obviously” supports his early dissatisfaction
with his appointed counsel, which triggered the court's duty to inquire. We disagree.
Assuming without deciding that Beranek appropriately states the law on this issue,
nothing in the record before us leads this panel to conclude that appellant questioned
the adequacy of his appointed counsel. Certainly in the harsh light of hindsight,
appellant may feel justified in finding his trial counsel inadequate because of an
unfavorable verdict. While there may have been a discussion between appellant and
his trial counsel on this issue, there is nothing in the record before us that supports
appellant's argument that he alleged with sufficient specificity that he was unhappy
with his counsel during the course of the trial so as to trigger any duty on the part of
the trial court to make further inquiry. Unlike Beranek, moreover, we see nothing in
the record to support that appellant was absolved of making specific allegations
because to do so would have been a vain act. Consequently, we see no error in the
trial court's decision to deny appellant a continuance.
Appellant's second assignment of error is not well taken and is overruled.
Johnson, 2002 WL 31839432, at *2-4 (paragraph symbols and quotation marks omitted).5
In order to demonstrate a conflict with federal jurisprudence warranting habeas relief,
Johnson must first point to clearly established federal law as expressed by the Supreme Court.
Mitzel v. Tate, 267 F.3d 524, 530-31 (6th Cir. 2001). Johnson chiefly relies on this court’s opinion
in United States v. Iles, 906 F.2d 1122 (6th Cir. 1990), and decisions from other federal courts of
appeals to support the proposition that the constitution requires a trial court to inquire into the basis
for a defendant’s request to secure new counsel. He does not cite any Supreme Court precedent
establishing such an obligation under the Sixth Amendment, and we have found no Supreme Court
5
The analysis of the Ohio Court of Appeals, notably, does not identify any Supreme Court
authority or federal law. This omission does not warrant reversal, however. As the Supreme Court
explained in Early v. Packer, 537 U.S. 3, 8 (2002), avoiding the “pitfalls” identified in § 2254 “does
not require citation of [Supreme Court] cases – indeed, it does not even require awareness of
[Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision
contradicts them.” See also Williams v. Bagley, 380 F.3d 932, 942 (6th Cir. 2004).
14
case law on the issue.6 “If [the Supreme Court] has not broken sufficient legal ground to establish
an asked-for constitutional principle, the lower federal courts cannot themselves establish such a
principle with clarity sufficient to satisfy the AEDPA bar.” Williams, 529 U.S. at 381; see also
Mitzel, 267 F.3d at 531 (“We may not look to the decisions of our circuit, or other courts of appeals,
when deciding whether the state decision is contrary to, or an unreasonable application of, clearly
established federal law.”) (internal quotation marks omitted). Johnson’s inability to point to
Supreme Court authority contravened by the Ohio Court of Appeals decision is fatal to his § 2254
claim that the court’s decision is contrary to clearly established federal law. Perceiving no conflict
with existing clearly established federal constitutional law, we deny Johnson’s ineffectiveness claim
insofar as it is based upon the trial court’s failure to inquire into the basis of his concern with his
appointed attorney.
III.
For the foregoing reasons, we affirm the judgment of the district court denying petitioner
Willie Johnson’s request for habeas relief under 28 U.S.C. § 2254.
6
The sole conceivable ground available to Johnson is found in the line of cases establishing
a constitutionally-imposed duty to inquire into a defense attorney’s potential conflict of interest in
representation. See, e.g., Mickens v. Taylor, 535 U.S. 162 (2002). This is not the claim Johnson
presented to the state appellate court, and, in any event, there is no evidence that Roberson operated
under a conflict of interest.
15