*

 The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by

designation. 

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0449p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

AHMAD JAMES,

Petitioner-Appellee,

v.

ANTHONY BRIGANO, Warden, Warren Correctional

Institution,

Respondent-Appellant.

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No. 05-4003

Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 00-00491—Thomas M. Rose, District Judge.

Submitted: May 30, 2006

Decided and Filed: November 30, 2006 

Before: KEITH and BATCHELDER, Circuit Judges; ALDRICH, District Judge.*

_________________

COUNSEL

ON BRIEF: Diane Mallory, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS

LITIGATION SECTION, Columbus, Ohio, for Appellant. Derek A. Farmer, DEREK A. FARMER

& ASSOCIATES CO., Columbus, Ohio, for Appellee.

ALDRICH, D. J., delivered the opinion of the court, in which KEITH, J., joined.

BATCHELDER, J. (p. 8), delivered a separate opinion concurring in the result.

_________________

OPINION _________________

ANN ALDRICH, District Judge. Respondent-appellant Anthony Brigano, Warden of the

Warren Correctional Institution (the “Warden”), appeals the district court’s grant of habeas corpus

relief pursuant to 28 U.S.C. § 2254 to petitioner-appellee Ahmad James (“James”) on his claims that

(1) the state trial court failed to inquire as to the reasons for James’s dissatisfaction with appointed

counsel prior to trial, and (2) James’s waiver of appointed counsel was not made knowingly and

intelligently. Because the district court properly determined that neither of James’s claims were

1
No. 05-4003 James v. Brigano Page 2

procedurally defaulted, that it could order an evidentiary hearing, and that James’s waiver of counsel

was not made knowingly and intelligently, we affirm the district court’s grant of habeas relief.

I.

James was indicted in September 1996 on a number of felony counts, including possession

of crack cocaine while carrying a concealed weapon, possession of powder cocaine, carrying a

concealed weapon, and having a weapon under disability. Following a trial in June 1997, a jury

convicted James of the charge of having a weapon under disability, but hung on the remaining three

charges. After the June 1997 trial, the counsel James had retained withdrew, citing James’s

indigence and inability to pay for their services. James was sentenced to 12 months incarceration

for having a weapon under disability.

A public defender was then appointed to represent James after his previous attorneys

withdrew, but the public defender did virtually no work and ended up withdrawing in May 1998

prior to James’s re-trial on the three remaining charges. After the completion of the 12 month

sentence, James was retried on the other three felony charges. The attorney who was appointed to

represent James at that trial, his third attorney, was Albert Stewart (“Stewart”). On the day trial was

scheduled to begin, June 22, 1998, Stewart met with James and informed him that he was not

prepared to go to trial that day, that he had not received discovery from the prosecutor, and that he

intended to ask for a continuance.

Stewart then asked the state trial court judge for a continuance. The state trial judge denied

Stewart’s request because Stewart was already in possession of the transcript from the June 1997

trial, which was, in the judge’s opinion, superior to any discovery that could be had from the

prosecutor. Following that, twice during the voir dire of prospective jurors, James declared that he

wanted to fire Stewart. The judge instructed James not to engage in any further outbursts, lest James

be found in contempt, tried in absentia, or gagged. At this point, Stewart again moved to withdraw

as counsel, on the grounds that he could not properly represent James and get him a fair trial. While

discussing the matter, the prosecutor suggested that James was “play[ing] the same trick” his halfbrother had three weeks earlier, by engaging in spontaneous outbursts during jury selection, which

led to a mistrial. The trial judge denied Stewart’s request to withdraw, asserting that Stewart was

ready for trial. 

The trial judge then asked James if he wished to represent himself, if he did not wish to be

represented by Stewart. The trial judge did not inquire into James’s reasons for wanting to fire

Stewart, nor did the trial judge explain the risks and dangers of self-representation. The court then

permitted James to represent himself, without making a specific finding that James’s waiver of

counsel was knowing or intelligent. The jury convicted James on the three remaining counts, and

he was sentenced to a total of thirteen years’ incarceration. 

James filed a direct appeal in July 1998 listing five assignments of error, but failing to list

the two grounds on which the district court granted habeas relief: (1) the Sixth Amendment required

the trial court to inquire into complaints made by an indigent criminal defendant prior to trial

regarding appointed counsel’s effectivness; and (2) that his waiver of counsel was not knowingly,

intelligently, or voluntarily made. The Ohio Court of Appeals affirmed James’s convictions in

February 1999. James petitioned for leave to appeal to the Ohio Supreme Court, raising the two

grounds on which habeas relief was granted. The Ohio Supreme Court denied leave to appeal in

June 1999. 

Then, in May 1999, James filed in the Ohio Court of Appeals an application to reopen his

appeal, listing the two grounds on which habeas relief was eventually granted. The Ohio Court of

Appeals denied James’s request in August 1999, finding that “waiver of counsel” was not an issue
No. 05-4003 James v. Brigano Page 3

in James’s trial, due to his dilatory tactics, and otherwise finding James’s arguments without merit.

James filed for leave to appeal that decision to the Ohio Supreme Court in September 1999, but the

Ohio Supreme Court denied leave in November 1999.

James then filed the instant habeas action in the United States District Court for the Southern

District of Ohio in September 2000, pressing four claims for relief. Magistrate Judge Michael Merz

filed a Report & Recommendation (“R&R”), recommending that the petition be dismissed. Judge

Walter Rice adopted that R&R in part and rejected it in part, remanding the matter for an evidentiary

hearing on the two claims for habeas relief which would eventually be granted. In so doing, Judge

Rice held that the success of James’s second claim for relief, the failure of the state trial judge to

inquire into the reasons for James’s dissatisfaction with appointed counsel depended on the success

of James’s third claim for relief -- that James’s waiver of counsel was not knowingly and

intelligently made. The case was then transferred to Judge Thomas Rose and Magistrate Judge

Sharon Ovington. 

Following the evidentiary hearing, Magistrate Judge Ovington filed an R&R recommending

that James’s petition for habeas relief be granted on his second and third claims for relief. Judge

Rose adopted that R&R in its entirety in June 2005, overruling the Warden’s objections, prompting

the Warden’s appeal to this court.

II.

Before addressing the merits of James’s respective claims for habeas relief, we must first

address two procedural matters. First, the Warden argues that James’s claims for relief are barred

by procedural default, and that such default may not be excused in this case. Second, the Warden

argues that James failed to develop the factual basis for his habeas claims, such that the district court

erroneously ordered the evidentiary hearing that led to the grant of habeas relief.

A.

On the question of procedural default, the court applies the familiar four-part Maupin test.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Under Maupin, the court must determine:

(1) if there is a state procedural rule that applies and petitioner failed to comply with that rule; (2)

if the state court actually enforced the state procedural sanction; (3) if the state procedure ground

is an “independent and adequate” ground to refuse review; and (4) if there is no cause and prejudice

to excuse the default. Id. “[A] state rule is independent if the state court actually relies on it to

preclude a merits review.” Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005) (emphasis added)

(citing Abela v. Martin, 380 F.3d 915, 921 (6th Cir. 2004)).

In this case, the question is whether, in denying James’s motion to reopen his direct appeal,

the Ohio Court of Appeals “actually relie[d]” on a state procedural rule to “preclude a merits

review.” The procedural rule in question is OHIO APP. R. 26(B), which governs applications by a

criminal defendant to reopen an appeal “based on a claim of ineffective assistance of appellate

counsel.” OHIO APP. R. 26(B)(1). That procedure, created by the Ohio Supreme Court in State v.

Murnahan, ensured that defendants could raise constitutional claims, but prevented state trial courts

from “second-guess[ing] superior appellate courts.” 584 N.E.2d 1204, 1208, 63 Ohio St. 3d 60, 65

(1992). As codified in OHIO APP.R. 26(B), a motion to reopen “shall be granted if there is a genuine

issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.”

OHIO APP. R. 26(B)(5). As the Ohio Supreme Court put it in Murnahan, the defendant must “put

forth a colorable claim of ineffective assistance of appellate counsel.” 584 N.E.2d at 1209, 63 Ohio

St. 3d at 66. If the court of appeals denies the motion to reopen, it must “state in the entry the

reasons for denial.” OHIO APP. R. 26(B)(6). 
No. 05-4003 James v. Brigano Page 4

In this case, Magistrate Judge Ovington’s R&R found that the Ohio Court of Appeals did not,

in fact, enforce the state procedural sanction. James failed to present the two claims for habeas relief

at issue in his direct appeal, but he did submit the claims in his application to reopen his appeal.

While the Ohio Court of Appeals rejected that application, it did review both of James’s claims on

the merits instead of rejecting them on procedural grounds. The Warden argues, however, that

claims reviewed in an application to reopen an appeal are never actually presented before a state

court for the purposes of avoiding procedural default, citing Lott v. Coyle, 261 F.3d 594 (6th Cir.

2001). 

In Lott, the Sixth Circuit held that a habeas petitioner’s application to the Ohio Court of

Appeals to reopen an appeal, relying upon an ineffective assistance of counsel claim, which was

itself based on an involuntary jury waiver claim did not constitute presentation of that involuntary

jury waiver claim to state court to avoid procedural default. 261 F.3d at 607. However, in Lott, the

Sixth Circuit only held that the fact “that a court, in reviewing a claim of ineffective assistance of

counsel, looks to the merits of the alleged error for purposes of determining the existence of

Strickland prejudice is not dispositive of the question whether a procedurally defaulted claim has

been resurrected.” Id. at 612. In other words, examination of the prejudice prong is not always

sufficient to overcome procedural default. However, the Sixth Circuit did not hold, despite the

Warden’s assertions, that examination of the prejudice prong is never sufficient to overcome

procedural default. The Lott Court simply requires courts to examine precisely what the court of

appeals did, in accordance with the Maupin test. And in Lott, the court found that the claims were

procedurally defaulted because the “last reasoned opinion” on that defendant’s specific claims found

those claims to be procedurally barred by res judicata. Id. James’s claims, however, were never

found to be so barred.

In Patterson v. Haskins, the Sixth Circuit examined precisely what the Ohio Court of

Appeals did in resolving the question of procedural default. 316 F.3d 596, 605 (6th Cir. 2003). The

Ohio Court of Appeals, in denying the motion to reopen, stated that with respect to allegedly

erroneous jury instructions, “the court did not commit error, plain or otherwise in giving . . . the jury

instructions.” State v. Patterson, Case No. CT97-0035, slip op. at 4 (Ohio Ct. App. Nov. 24, 1998).

The Sixth Circuit thus held that because the Ohio Court of Appeals, in denying a motion to reopen

a criminal appeal under OHIO APP.R. 26(B), expressly examined the underlying claim in finding no

prejudice, the Ohio Court of Appeals “indicated that the decision rested on an evaluation of the

merits of his claim,” and that claim was not procedurally defaulted for habeas purposes. Patterson, 316 F.3d at 605. 

In this case, as in Patterson, the Ohio Court of Appeals expressly examined the underlying

claims raised by James in denying his motion to reopen. On James’s claim that the state trial court

failed to inquire into the reasons for his dissatisfaction with appointed counsel prior to removing said

counsel, the Ohio Court of Appeals stated that, “[b]ased on the . . . record, we find that James failed

to meet the burden of announcing grounds that would entitle him to discharge his counsel,” and

“because James failed to meet his burden . . . the trial court had no duty of inquiry.” State v. James, App. Case No. 98-CA-54, slip op. at 8-9 (Ohio Ct. App. Aug. 26, 1999). On James’s claim that his

waiver of appointed counsel before the state trial court was not made knowingly and intelligently,

the Ohio Court of Appeals stated that “this situation does not involve waiver of counsel,” and

instead analyzed the claim as though James had been engaging in dilatory tactics. Id. at 12.

The Ohio Court of Appeals’ lengthy opinion denying James’s motion to reopen does not

frame its rejection of James’s underlying claims as a failure to find prejudice or on procedural

grounds, but instead rejects those claims on their merits. Therefore, because the Ohio Court of

Appeals did not actually rely on the procedural bar in rejecting either of James’s claims, those claims

are not procedurally defaulted for habeas purposes.
No. 05-4003 James v. Brigano Page 5

1

 In a split decision, Justice O'Connor's opinion represents the plurality for these sections.

B.

The Warden also argues that the district court erred in ordering an evidentiary hearing on

James’s claims, as 28 U.S.C. § 2254(e)(2) states that a court “shall not hold an evidentiary hearing”

if James “has failed to develop the factual basis of a claim in State court proceedings.” 28 U.S.C.

§ 2254(e)(2). However, Section 2254(e)(2) bars evidentiary hearings only if it was the petitioner’s

fault that the factual record was not developed in state court. McAdoo v. Elo, 365 F.3d 487, 500 (6th

Cir. 2004) (citing Williams v. Taylor, 529 U.S. 420, 437-38 (2000)) (holding that “failed to develop”

means that the petitioner was at fault or failed to exercise diligence in developing the record). From

the record below, it is obvious that any failure to develop the record below was the fault of the state

trial court, not James. James, proceeding effectively pro se just prior to proceeding actually pro se, made his complaints known to the state trial judge in as clear terms as he could have been expected

to manage. The state trial judge, on the other hand, decided that James was attempting to delay trial

and summarily forced James to choose between self-representation and counsel that, by Stewart’s

own admission, was unprepared. More to the point, it was the trial court’s duty to determine that

James’s waiver was knowing and intelligent before he accepted it. Therefore, it was not error to

order the evidentiary hearing, because it was not James’s fault that the factual record was not fully

developed in state court.

III.

As for the merits of James’s habeas claims, because the claims James presented to the Ohio

Court of Appeals in his application to reopen his appeal were evaluated on the merits such that

neither of his claims were procedurally defaulted, the provisions of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq., govern this case. 

AEDPA dictates that:

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim-- 

 (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)(2004). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court1

explained the “contrary to” language of section (1) as follows:

A state-court decision will certainly be contrary to our clearly

established precedent if the state court applies a rule that contradicts

the governing law set forth in our cases . . . . A state-court decision

will also be contrary to this Court's clearly established precedent if

the state court confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless

arrives at a result different from our precedent.
No. 05-4003 James v. Brigano Page 6

Id. at 405-406, and the “unreasonable application” language in this way: 

[A]n unreasonable application of federal law is different from an

incorrect application of federal law. . . . In § 2254(d)(1), Congress

specifically used the word “unreasonable,” and not a term like

“erroneous” or “incorrect.” Under § 2254(d)(1)'s “unreasonable

application” clause, then, a federal habeas court may not issue the

writ simply because that court concludes in its independent judgment

that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that application must

also be unreasonable.

Id. at 410-11. In other words, the Ohio Court of Appeals must have applied the law in an

“objectively unreasonable” manner in order for this court to grant relief under the AEDPA standards.

Bell v. Cone, 535 U.S. 685, 699 (2002). 

In reviewing a grant of habeas relief, the standard of review is de novo, but any findings of

fact are reviewed for clear error. Towns v. Smith, 395 F.3d 251, 257 (6th Cir. 2005); Combs v.

Coyle, 205 F.3d 269, 277 (6th Cir. 2000). A federal court is to apply a presumption of correctness

to state court findings of fact for habeas corpus purposes unless clear and convincing evidence is

offered to rebut this presumption. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61

(6th Cir. 1998). A federal appeals court gives complete deference to the district court’s and state

court’s findings of fact supported by the evidence. Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir.

1994). 

A.

The basis of the district court’s grant of relief on James’s first claim, that his Sixth

Amendment rights were violated because the state trial court failed to inquire into the reasons for

his dissatisfaction with appointed counsel prior to removing said counsel, is a Sixth Circuit case,

United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990) (holding that the trial court has a duty to

determine the reasons for an indigent defendant’s dissatisfaction with current counsel when that

indigent defendant requests that appointed counsel be discharged and new counsel appointed). This

claim concerns an unreasonable application of law, not an unreasonable determination of facts in

the state court. Thus, under the AEDPA standard of review, because Iles is not “clearly established

Federal law, as determined by the Supreme Court of the United States,” the district court’s grant of

relief on that claim is reversed. 28 U.S.C. § 2254(d)(1).

B.

James’s other claim for habeas relief is that his waiver of appointed counsel before the state

trial court was not made knowingly and intelligently. As the record makes clear, at no time did the

state trial court judge ensure that James’s waiver of appointed counsel was knowing and voluntary.

At no time did the state trial judge explain to James the risks and dangers in proceeding pro se. And

at no time did the state trial judge make an explicit finding that James’s waiver was knowing and

intelligent. Instead, the state trial judge appeared to accept, and the Ohio Court of Appeals explicitly

accepted, the idea that James was attempting to delay trial and avoid the administration of justice

when he tried to fire Stewart with his outbursts in front of prospective jurors and to the court after

voir dire.

Neither the state trial judge nor the appeals court addressed the question of waiver, even

though “courts [should] indulge every reasonable presumption against waiver of fundamental

constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). As the district court pointed

out, under even the AEDPA standard, the finding that James knowingly and intelligently waived
No. 05-4003 James v. Brigano Page 7

appointed counsel was a failure to apply clearly established Supreme Court precedent because of

an unreasonable finding of fact. The record, and the evidentiary hearing held by Magistrate Judge

Ovington, make it clear that James was not attempting to delay the trial unreasonably and was not

engaging in dilatory tactics. Instead, he was attempting to deal with appointed counsel that had

stated he was unprepared to go to trial and a trial court judge intent on going forward with trial

regardless of appointed counsel’s preparedness.

As such, James’s waiver was not made knowingly and intelligently, with “eyes wide open”;

the choice between unprepared counsel and self-representation is no choice at all. Fowler v. Collins, 253 F.3d 244, 249-50 (6th Cir. 2001) (citing Faretta v. California, 422 U.S. 806 (1975)). Contrary

to the Warden’s assertions, Fowler is not based on a reading of Von Moltke v. Gillies, 332 U.S. 708

(1948), but instead on an application of Faretta, which looks at all of the circumstances surrounding

waiver of counsel to ensure that such waiver was knowing and intelligent.

In his reply brief, the Warden cites King v. Bobby, a Sixth Circuit case that held that a

petitioner/defendant validly waived counsel without specific findings of knowing and intelligent

waiver because that petitioner/defendant refused both self-representation and retention of counsel

and had a history of switching attorneys in order to delay proceedings. 433 F.3d 483, 492-94 (6th

Cir. 2006). King merely upholds the idea that if a defendant engages in dilatory tactics, that conduct

may be sufficient to constitute valid waiver of counsel and excuse the duty of the court to explicitly

ensure knowing and intelligent waiver. However, unlike King, but as in Fowler, James was not

engaging in dilatory tactics, and the duty of the court was not excused. Therefore, James’s waiver

was not made knowingly and intelligently, and the district court’s grant of relief on that claim is

affirmed.

IV.

For the foregoing reasons, we affirm the district court’s grant of habeas relief on James’s

claim that he did not knowingly and intelligently waive counsel.
No. 05-4003 James v. Brigano Page 8

_____________________

CONCURRENCE _____________________

ALICE M. BATCHELDER, Circuit Judge, concurring. I concur in the result reached by the

lead opinion because I agree that the trial court was required to make a significantly more detailed

on-the-record inquiry into James’s reasons for proceeding without counsel and his understanding

of the consequences of doing so. I write separately simply to note my disagreement with the lead

opinion’s statement – which is the underpinning of its ultimate conclusion – that “[t]he record, and

the evidentiary hearing held by Magistrate Judge Ovington, make it clear that James was not

attempting to delay the trial unreasonably and was not engaging in dilatory tactics.”

Mr. Stewart was James’s third counsel. His first attorneys were retained, and at least one

of them attempted to withdraw prior to trial because James refused to cooperate with them.

Although this problem was resolved, James’s trial was delayed because he failed to appear on the

day trial was to begin. The trial court revoked his bond; James was arrested; and the case proceeded

to trial. James was convicted on one charge, but the jury was unable to reach a verdict on the others.

James’s retained counsel then moved to withdraw because James was now indigent.

The trial court next appointed the county public defender to represent James, but that counsel

moved to withdraw after several months because James refused to talk with him about the case. The

trial court granted that motion, and Mr. Stewart was appointed.

In my view, the record does not “make it clear” that James was not engaging in dilatory

tactics. Neither, however, does the record make it clear that he was in fact simply attempting to

delay the trial and to engage in dilatory tactics. While I have no doubt that this is what James was

up to, I agree with the lead opinion that it was incumbent upon the trial judge to do more than he did

to ensure that James’s demand to proceed without counsel was knowing and voluntary.