NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0361n.06

No. 22-3031

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GERALD D. FIELDS,

Petitioner-Appellant,

v.

JAY FORSHEY, Warden,

Respondent-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE 

SOUTHERN DISTRICT OF 

OHIO

OPINION

Before: SUTTON, Chief Judge; BATCHELDER and MURPHY, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Gerald Fields appeals the district court’s 

denial of his habeas petition. This court granted a certificate of appealability for two of his claims: 

ineffective assistance of appellate counsel and the underlying right to counsel claim. Fields alleges 

that his state court appellate counsel was ineffective because he failed to argue that Fields’ 

constitutional right to counsel at sentencing was violated because he did not have counsel at 

sentencing. The state courts and the federal district court denied relief. We affirm.

I. Background and Procedural History

A jury convicted Fields of possessing and trafficking marijuana and cocaine, and 

manufacturing cocaine, all in violation of Ohio law. Fields was represented by counsel at trial. 

After trial, but before sentencing, Fields’ trial counsel moved to withdraw due to an alleged conflict 

of interest. The court granted the motion.
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About a month later, on July 11, 2019, Fields retained a different attorney to represent him. 

Then, on August 8, 2019, four days before sentencing, this new attorney filed a motion to withdraw 

as counsel because of a misunderstanding about the scope of representation. Fields signed the 

motion, which stated that Fields did not want this counsel to represent him or be involved with his 

sentencing.

At sentencing on August 12, 2019, the state trial court confirmed that Fields no longer 

wanted to be represented by his counsel. The court told Fields that he would still be sentenced 

that day; Fields said he understood. After confirming that the attorney still sought to withdraw, 

the court dismissed the attorney. The court proceeded to sentence Fields without counsel present 

and without any further questioning regarding representation. The record does not establish 

whether any pre-sentencing documents were filed, but the district court did address the charges

Fields was being sentenced for and that he was given jail credit, and explained why charges were 

merged for sentencing. The court allowed Fields to argue on his own behalf as to the appropriate 

sentence. The court sentenced Fields to ten years in prison and a $7,500 fine.

Fields was appointed appellate counsel, and he timely appealed. Counsel raised six issues 

on appeal, but none of them involved the lack of counsel at sentencing. On July 27, 2020, the state 

court of appeals affirmed the trial court.

On October 22, 2020, Fields filed a pro se Ohio Appellate Rule 26(B) motion to reopen his 

direct appeal. This Rule allows inmates to file motions raising ineffective assistance of appellate 

counsel. Fields argued that his sentence was “void” because the trial court sentenced him “without 

counsel without having obtained and cause to be journalized a written waiver of counsel signed” 

by him, and that he was prejudiced by the lack of counsel because counsel could have “prevented 
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conviction and sentences for unproven charges, as well as ensured the return of the appellant’s 

property.”

On October 27, 2020, the state appellate court denied his motion. The court rejected Fields’ 

ineffective assistance of appellate counsel claim as meritless. The court discussed the Strickland 

standard and held that:

Upon review, we find no merit in Appellant’s argument that his counsel was 

ineffective. Appellant himself requested that his trial counsel withdraw, with full 

knowledge and a cautionary statement by the trial court that sentencing would still 

go forward. . . . Upon consideration, we find Appellant has failed to demonstrate 

that his counsel was incompetent or that he suffered prejudice as a result of his 

counsel’s decisions. We further do not find that Appellant has established that the 

result of the proceedings [would] have been different. We find Appellant’s 

arguments unpersuasive and thus find no genuine issue exists as to whether 

Appellant was denied the effective assistance of counsel on appeal.

Fields appealed to the Ohio Supreme Court on December 7, 2020, but it declined to exercise 

jurisdiction.

On April 16, 2021, Fields filed a pro se § 2254 habeas petition in the Southern District of 

Ohio. He raised five claims, only two of which are before us. The magistrate judge thoroughly 

examined the merits of the right-to-counsel claim and concluded that the state court did not err 

because Fields: (1) never asked for a continuance to hire a new attorney, (2) did not ask for an 

attorney to be appointed for sentencing, (3) understood that sentencing would continue despite his 

not wanting his retained counsel to represent him, and (4) insisted on firing his attorney four days 

before sentencing. The magistrate judge also said that the dangers of self-representation are less 

at sentencing than during pretrial or trial proceedings. The magistrate judge concluded that it 

would have been better if the trial judge had given Faretta warnings, but the failure to do so “did 

not deprive Fields of any right clearly established by Supreme Court precedent.” Even if the failure 

was a constitutional violation, the magistrate judge held, it was harmless error because his sentence 
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was not impacted, as Fields only alleged that counsel could have relitigated his crimes at 

sentencing. Because no prejudice was shown as a result of Fields’ lack of representation at 

sentencing, the magistrate judge recommended dismissing the denial-of-the-right-to-counsel and 

ineffective-assistance-of-appellate-counsel claims. 

The federal district court agreed with the magistrate judge’s “conclusion that any 

constitutional error in proceeding to sentencing in this case without an attorney was at most 

harmless error.” The court stated that Fields “has never suggested how he was prejudiced by the 

absence of counsel, i.e., what an attorney would or could have said that would have resulted in a 

different sentence,” especially when that attorney was hired to move for a new trial but was then 

fired, and Fields never asked for a continuance to obtain new counsel. The district court denied 

his petition on November 9, 2021. Fields appealed, and this court granted a certificate of 

appealability on the two claims before us.

I. Discussion

A. Legal Standard

This court reviews de novo the district court’s denial of a writ for habeas corpus; we review

findings of fact for clear error. Reiner v. Woods, 955 F.3d 549, 554 (6th Cir. 2020). AEDPA 

allows relief when the state court’s decision is either (1) “contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the Supreme Court,” or (2) “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)(1), (2). The court must determine “whether the state court’s 

application of clearly established federal law was objectively unreasonable.” King v. Bobby, 433 

F.3d 483, 490 (6th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)). 
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A state court’s legal decision is contrary to clearly established federal law if the conclusion 

reached is either opposite of the conclusion the Supreme Court reached on the question of law, or 

if the state court decides a case differently from one decided by the Supreme Court that has 

materially indistinguishable facts. Id. at 489 (citing Williams, 529 U.S. at 413). A state court also 

unreasonably applies clearly established federal law if 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. (quoting Williams, 529 U.S. at 413) (quotation 

marks omitted). “Federal law is clearly established only when it is embodied in a holding of the 

Supreme Court; dicta does not count.” Jones v. Bell, 801 F.3d 556, 564 (6th Cir. 2015) (quoting 

Thaler v. Haynes, 559 U.S. 43, 47 (2010)) (quotation marks omitted).

An application for habeas relief shall not be granted unless the state courts have had a fair 

opportunity to address the constitutional claims first. Anderson v. Harless, 459 U.S. 4, 6 (1982); 

28 U.S.C. § 2254(b)(1)(A). State court factual findings are “presumed to be correct” and are 

entitled to a “high measure of deference.” 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 455 U.S. 591, 

598 (1982). The petitioner must rebut the “presumption of correctness with clear and convincing 

evidence.” Warren v. Smith, 161 F.3d 358, 360–61 (6th Cir. 1998). The court “must conclude 

that the state court’s findings lacked even ‘fair[] support’ in the record”; clear error is insufficient. 

Marshall v. Lonberger, 459 U.S. 422, 432 (1983); Hand v. Houk, 871 F.3d 390, 407–08 (6th Cir. 

2017).

B. Claim 4 — Right to counsel at sentencing

It is undisputed that Fields’ right-to-counsel claim is procedurally defaulted and is not 

resurrected simply because it forms the basis of his ineffective assistance of appellate counsel 

claim. Lott v. Coyle, 261 F.3d 594, 611–12 (6th Cir. 2001). Fields must therefore show that the 
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default is excused. Fautenberry v. Mitchell, 515 F.3d 614, 633 (6th Cir. 2008). To excuse 

procedural default, Fields must show both cause and actual prejudice from the alleged 

constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 84 (1977).

Fields argues that ineffective assistance of appellate counsel provides cause because the 

deprivation of counsel, without an adequate inquiry into waiver of the right to counsel, constitutes

structural error such that counsel’s performance was automatically prejudicial to him, making 

appellate counsel’s performance deficient for failing to raise a “dead-bang winner” of an argument. 

Specifically, he argues that the Supreme Court has “repeatedly held that a defendant is entitled to 

counsel at all ‘critical stages’ of a case,” which includes sentencing, and he did not have counsel

at sentencing. He also argues that a defendant’s waiver of the right to counsel must be knowing 

and voluntary, and his was not. Because the deprivation of the right to counsel is structural error, 

he argues, both Strickland prejudice and actual prejudice are shown because he was inherently 

prejudiced by the lack of counsel.

Ineffective assistance of counsel can serve as cause to excuse the procedural default of his 

right-to-counsel claim. Edwards v. Carpenter, 529 U.S. 446, 451 (2000). To establish cause,

Fields must show the merits of the ineffective-assistance claim, which includes showing the merits 

of the underlying right-to-counsel claim. Coleman v. Thompson, 501 U.S. 722, 755 (1991); Davie

v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008). If Fields cannot demonstrate that appellate counsel 

was ineffective for failing to raise the right-to-counsel claim on appeal, he cannot show cause to 

excuse the default. Davie, 547 F.3d at 312.
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Even if we assume that Fields can show cause to excuse the procedural default, he must 

also show that he suffered actual prejudice from that constitutional violation. But he cannot show 

actual prejudice, so the procedural default of his right-to-counsel claim cannot be cured.

While Fields may be correct that it is structural error to be deprived of counsel at 

sentencing, a structural error does not automatically establish actual prejudice to cure procedural 

default. Jones, 801 F.3d at 564; Ambrose v. Booker, 684 F.3d 638, 649 (6th Cir. 2012); McConnell 

v. Rhay, 393 U.S. 2, 3–4 (1968); see also Davis v. United States, 411 U.S. 233, 245 (1973); Weaver 

v. Massachusetts, 582 U.S. 286, 293–95, 298–300 (2017). Actual prejudice requires that the actual 

and eventual outcome would have been different “regardless of the nature of the underlying 

constitutional claim.” Ambrose, 684 F.3d at 651. Actual prejudice goes beyond, and must be 

shown in addition to, Strickland prejudice. Jones, 801 F.3d at 563–64. 

Fields cannot show actual prejudice because he has not pointed to anything that shows that 

the outcome of his sentencing would have been different if he had had counsel. Fields’ argument 

that his sentence would have been shorter because counsel’s help could have resulted in dismissal 

of some of his convictions fails because convictions cannot be relitigated at sentencing. His next 

argument—that his sentence was double the minimum requirement and that counsel could have 

helped secure a concurrent sentence instead of a consecutive sentence—fails for two reasons. First, 

judges have discretion in sentencing. Second, Ohio law permits the court to order consecutive 

sentences if the defendant’s criminal history demonstrates the need to protect the public. Ohio Rev. 

Code § 2929.14(C)(4)(c). Fields has substantial criminal history, and the state court found that the 

public needed protection from Fields, so he cannot show that this part of his sentence would have 

been different.
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Finally, Fields cannot show that he would not have been given the $7,500 fine had he had 

counsel at sentencing. Ohio law requires that the defendant file an affidavit prior to sentencing 

that says the defendant is indigent and unable to pay a fine. Ohio Rev. Code § 2929.18(B)(1). The 

court must also find the defendant indigent. Id. It is unclear whether Fields was indigent. His 

sentencing counsel was retained, which suggests he was not. On appeal, however, he was indigent, 

which suggests otherwise. No affidavit was filed, and nothing in the record shows that the trial 

court ever found that Fields was indigent. Beyond that, Fields had counsel up until sentencing and

he is not complaining about that counsel’s actions. That counsel could have filed the affidavit for 

him. Fields therefore cannot show that his sentence would not have included the $7,500 fine if he 

had had counsel at sentencing. 

Because Fields cannot demonstrate that he was actually prejudiced by the lack of counsel 

at sentencing, he cannot excuse the procedural default of his right-to-counsel claim. This claim 

fails.

C. Claim 5 — Ineffective assistance of appellate counsel

Fields also cannot show that his state appellate counsel was ineffective for failing to raise 

his right-to-counsel claim on direct appeal. Because the state appellate court resolved this 

ineffective-assistance claim, AEDPA requires that Fields show a violation of clearly established 

Supreme Court precedent before habeas relief can be granted. Fields cannot meet that standard. 

To begin with, Strickland requires that the defendant show that he was prejudiced by counsel’s 

ineffectiveness. Strickland v. Washington, 466 U.S. 668, 687 (1984). Strickland prejudice 

requires that Fields demonstrate a reasonable probability he would have prevailed but for counsel’s 

failure to raise the issue. Moore v. Mitchell, 708 F.3d 760, 776 (6th Cir. 2013). As explained 
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above, Fields cannot show that he was prejudiced by counsel’s failure to raise the right-to-counsel 

claim on appeal. 

In addition, the state court did not unreasonably apply Strickland’s deficiency prong. It 

found that Fields’ appellate counsel did not act deficiently by failing to raise the right-to-counsel 

claim because that claim was meritless. Fields argues that the state trial court should have made a 

Faretta inquiry before denying him counsel at sentencing. Faretta requires the court to conduct 

an inquiry into whether a defendant’s waiver of the right to counsel at a criminal trial is knowing 

and voluntary before allowing him to waive that right. Faretta v. California, 422 U.S. 806, 807, 

832–36 (1975). The court must also ensure that the defendant understands “the dangers and 

disadvantages of self-representation” and knows what he is doing. Id. at 835. Here, it is not clearly 

established that the state court failed to make a proper Faretta inquiry when it only asked one 

question at sentencing before permitting Fields to dismiss his counsel. The Supreme Court has 

not applied the Faretta inquiry in the sentencing context. And it is not clear that the state court’s 

inquiry was insufficient, considering that Fields has criminal court experience, wanted counsel 

dismissed, and understood that sentencing would continue without counsel present. Fields did not 

ask for replacement counsel or say that he did not want to be sentenced without counsel. On these 

facts, it is not clear that Fields was deprived of the right to counsel when he made no effort to 

preserve it. The state courts, therefore, did not unreasonably apply clearly established Supreme 

Court precedent. Fields’ ineffective assistance of counsel claim fails.

CONCLUSION

For the foregoing reasons, we affirm.