Cobb v. Warden, Chillicothe Correctional Institution (776 F. Supp. 2d 578, 2011)

United States District Court for the Southern District of Ohio 2011-03-02

Citations

Full opinion text

ORDER

MICHAEL R. BARRETT, District Judge.

This matter is before the Court on Magistrate Judge Timothy S. Hogan’s January 15, 2011, Report and Recommendation (“R & R”) (Doc. 12), which recommends denial with prejudice of Petitioner’s habeas-corpus action under 28 U.S.C. § 2254. In addition, Magistrate Judge Hogan recommends that Petitioner be granted a certificate of appealability with regards to both grounds for relief alleged in the petition and leave to appeal in forma pauperis. (Doc. 12, 24.)

Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the R & R in a timely manner. United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). Petitioner filed objections to the R & R. (Doc. 17.) For the reasons provided below, the Court ADOPTS the magistrate judge’s R & R in its entirety.

I. BACKGROUND

The full history of this case is set forth in Respondent’s Answer/Return of Writ. (Doc. 5.) Thus, the Court will provide only a brief summary here.

In March 2006, Petitioner was indicted on multiple drug offenses. In April 2006, Petitioner was arraigned and assigned appointed counsel. In May, on the morning of the scheduled trial, Petitioner moved to substitute privately retained counsel, who asked that he be allowed to appear on Petitioner’s behalf and that the court continue the trial. The prosecutor opposed the continuance, and the trial court ultimately denied Petitioner’s motion after hearing arguments from both sides. Petitioner then entered into negotiations that resulted in a no contest plea and a sentence of two ten-year prison terms to be served consecutively.

Petitioner appealed his conviction, setting forth two assignments of error. Petitioner argued that the trial court erred by not permitting his privately retained counsel to represent him at trial and by sentencing him to consecutive rather than simultaneous prison terms. The court of appeals denied Petitioner’s appeal. Petitioner, pro se, appealed, and the Ohio Supreme Court dismissed his appeal finding that it lacked any substantial constitutional question.

In June 2007, while the direct appeal was pending with the Ohio Supreme Court, Petitioner filed an application for reopening with the appellate court under Ohio Rules of Appellate Procedure 26(B), alleging ineffective assistance of counsel. In May 2008, Petitioner filed an additional application for reopening under Ohio App. R. 26(A) after the appellate court denied the 26(B) motion. Petitioner failed to file a timely appeal to the court of appeal’s denial of his App. R. 26(B) motion for reconsideration. In June 2008, the appeals court denied the App. R. 26(A) delayed application, and, in August 2008, the Supreme Court declined to exercise jurisdiction over the subsequent appeal after finding that it lacked any substantial constitutional question.

Petitioner then brought this habeas-corpus action under 28 U.S.C. § 2254.

II. ANALYSIS

Federal Rule of Civil Procedure 72 provides that a district judge shall consider a party’s objections to a magistrate’s order on non-dispositive matters and “shall modify or set aside any portion of the magistrate’s order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a). The clearly erroneous standard “mandates that the district court affirm the magistrate’s decision unless, on the entire evidence, it ‘is left with the definite and firm conviction that a mistake has been committed.’ In the absence of clear error, the magistrate’s order must stand.” Bank One Columbus, Ohio, N.A. v. First Fin. Ventures, LLC, No. 2:01-CV-0049, 2001 WL 840310, at *3 (S.D.Ohio July 5, 2001) (quoting Farley v. Farley, 952 F.Supp. 1232, 1235 (M.D.Tenn.1997)).

When objections are received to a magistrate judge’s report and recommendation on a dispositive matter, the assigned district judge “must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). After review, the district judge “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1)(B). General objections are insufficient to preserve any issues for review; “[a] general objection to the entirety of the magistrate’s report has the same effects as would a failure to object.” Howard v. Sec. of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.1991).

A. Ground One: Sixth Amendment Right to Counsel

Petitioner asserts that the conviction deprived him of his Sixth Amendment right to counsel of his own choosing. In his objections (Doc. 17), Petitioner asserts that Magistrate Judge Hogan failed to analyze United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), as the binding precedent in his case and failed to take appropriate judicial notice of the Ohio appellate court’s insufficient methodology under Saldivar-Trujillo, 380 F.3d 274 (6th Cir.2004). (Doc. 17, 3-4.) Petitioner’s objections are not well taken.

1. Standard of Review

A state court’s decision is contrary to clearly established law if it applies a rule that contradicts the governing law set forth in Supreme Court cases or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from this precedent. Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (citing Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); see also Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ 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 petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495); see also Bell, 535 U.S. at 694, 122 S.Ct. 1843. “In order for a federal court to find a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous. The state court’s application must have been ‘objectively unreasonable.’ ” Wiggins, 539 U.S. at 520-21, 123 S.Ct. 2527 (citations omitted); see also Williams, 529 U.S. at 409, 120 S.Ct. 1495.

Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the state court’s decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. 28 U.S.C. § 2254(d)(1); see Williams, 529 U.S. at 412, 120 S.Ct. 1495; see also Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Section 2254(d) “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.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); see also Mitchell, 540 U.S. at 16, 124 S.Ct. 7. While the requirements of “clearly established law” are to be determined solely by the Supreme Court’s holdings, the decisions of lower federal courts are useful in assessing the reasonableness of the state court’s resolution of an issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir.2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.2003)).

Additionally, a federal habeas court must presume that state court factual determinations are correct. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.1998).

2. Reasonableness Inquiry

It is well established that the right to counsel of one’s choice is not absolute. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). The decision regarding whether to appoint new counsel at a defendant’s request is committed to the sound discretion of the trial coxrrt. United States v. Saldivar-Trujillo, 380 F.3d 274, 277-78 (6th Cir.2004). In United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), the Supreme Court held that a defendant could obtain a new trial without showing prejudice when the trial court arbitrarily denied him the services of his retained counsel — in that case, by erroneously refusing to grant the chosen attorney admission pro hac vice. 548 U.S. at 143, 144-45, 126 S.Ct. 2557. However, Gonzalez-Lopez does not suggest that the choice-of-counsel right at issue is absolute; its holding only addresses situations in which “the defendant is erroneously prevented from being represented by the lawyer he wants.... ” Id. at 148, 126 S.Ct. 2557 (emphasis added). The Supreme Court went on to recognize that “a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar.... None of these limitations on the right to choose one’s counsel is relevant here.” Id. at 152, 126 S.Ct. 2557 (internal citations omitted).

Petitioner attempts to excise the unhelpful portion of the balancing test required by Gonzalez-Lopez by objecting to the Magistrate Judge’s approval of the appellate court’s “prejudice analysis.” (Doc. 17, 3.) Petitioner fails to acknowledge that, in Gonzalez-Lopez, the government admitted that the defendant had been erroneously deprived of his chosen counsel, but argued that this deprivation should be excused because the defendant was not prejudiced as a result. 548 U.S. at 150, 126 S.Ct. 2557. Gonzalez-Lopez is inapplicable to cases in which the trial court properly-balanced the defendant’s Sixth Amendment right to counsel of his choice with the demands of its calendar and other equitable considerations. See Benitez v. United States, 521 F.3d 625, 635 (6th Cir.2008) (“This is not to say, of course, that the district court would have been required to permit Benitez to substitute counsel or to delay the sentencing hearing.”) (citing United States v. Gonzalez-Lopez, 548 U.S. 140, 150-53, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)).

In this case, the trial court did not abuse its discretion nor violate Petitioner’s constitutional rights in denying his request for substitute counsel because it properly weighed Petitioner’s right to counsel with the burden the substitution would have had on its schedule and on the prosecutor. The Ohio court of appeals and Magistrate Judge Hogan concluded that Petitioner’s claim lacked merit, and each supported this conclusion with ample analysis using the proper standard of review. Petitioner’s objection to the Magistrate Judge’s recitation of the underlying facts is inapposite to the objective reasonableness analysis. See Warren v. Smith, 161 F.3d at 360-61.

This Court agrees with Magistrate Judge Hogan’s determination that the Ohio appellate court’s rejection of Petitioner’s motion was reasonable. Petitioner has failed to establish that the trial court erred in denying his request for substitute counsel. Therefore, habeas relief is not warranted under this line of inquiry,

a) Saldivar-Trujillo’s Test

In assessing a motion to substitute counsel, a court must consider: (1) the timeliness of the motion; (2) the adequacy of the court’s inquiry into the defendant’s complaint; (3) whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense; and (4) the balancing of the accused’s right to counsel of his choice and the public’s interest in the prompt and efficient administration of justice. Saldivar-Trujillo, 380 F.3d 274, 277-78 (6th Cir.2004) (citing United States v. Iles, 906 F.2d 1122, 1130 n. 8 (6th Cir.1990)).

Again, Petitioner ignores the unhelpful portions of this test. Petitioner’s reliance on the Magistrate Judge’s alleged failure to adequately consider two of the four Saldivar-Trujillo factors is unavailing. (Doc. 17, 4-5.) Factors one, three, and four weighed considerably against granting Petitioner’s request for substitute counsel. First, Petitioner only expressed dissatisfaction with his counsel on the morning of his trial when he attempted to substitute privately retained counsel. A request for substitute counsel on the day of trial is untimely and weighs against granting such a motion. See Saldivar-Trujillo, 380 F.3d at 278-79. Second, while the court did not conduct an extensive inquiry into the substance of Petitioner’s complaint, the record does not indicate that Petitioner’s complaint arose from any conflict with his appointed counsel. The conflict, if any, was clearly not so great as to result in a total lack of communication preventing an adequate defense. Third, the trial court weighed all the factors and acted within its discretion to decide in favor of the public’s interest in the prompt and efficient administration of justice.

The Court agrees with Magistrate Judge Hogan’s determination that the Ohio appellate court’s rejection of Petitioner’s motion was not an abuse of discretion under Saldivar-Trujillo. Petitioner has failed to establish that the trial court erred in denying his request for substitute counsel, and habeas relief is not warranted.

B. Ground Two: Double Jeopardy

Petitioner asserts that the plea deal subjected him to the imposition of multiple punishments for allied offenses of similar import, and this result violated the Double Jeopardy Clause of the United States Constitution. In addition, Petitioner asserts that this claim was not proeedurally defaulted. Petitioner specifically objects to Magistrate Judge Hogan’s “assessment that the instant claim was not fully exhausted in the state courts through [Petitioner’s] delayed application for reconsideration of the denial of [Petitioner’s] application for reopening.” (Doc. 17, 6.) In the alternative, Petitioner claims that the allegedly proeedurally defaulted claim should be considered because Petitioner can show cause or the ruling would result in a fundamental miscarriage of justice. (Doc. 17, 7-8.) Petitioner’s objections are not well taken.

1. Procedural Default

Prior to addressing the merits of Petitioner’s claim, this Court must determine that the claim is properly before it and has not been proeedurally defaulted. “ ‘Under the procedural default doctrine, a federal court is generally barred from considering an issue of federal law arising from the judgment of a state court if the state judgment rests on a state-law ground that is both independent of the merits of the federal claim and an adequate basis for the state court’s decision.’ ” Munson v. Rapture, 384 F.3d 310, 313-14 (6th Cir.2004) (quoting Clinkscale v. Carter, 375 F.3d 430, 435 (6th Cir.2004)). As such, federal habeas relief may be precluded on claims that a petitioner has not presented to the state courts in accordance with the state’s procedural rules. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Such a “procedural default” occurs when a petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule is “adequate and independent.” White v. Mitchell, 431 F.3d 517, 524 (6th Cir.2005).

Notwithstanding Petitioner’s objection to the contrary, which proffer no case law to support his position that his Ohio App. R. 26(B) motion for reconsideration due to ineffective counsel preserved an independent double-jeopardy claim, the Court agrees with the Magistrate Judge’s analysis that Petitioner’s claim was proeedurally defaulted. Petitioner committed a procedural default by failing to raise his record-based double-jeopardy claim in the state direct review proceedings. His attempt to bootstrap this claim by alleging that his appellate counsel should have asserted the claim on direct appeal is inefficacious. Under Ohio R.App. P. 26(B), the underlying claim of error cannot serve as an independent justification for reopening the appeal but, rather, only as an example of appellate counsel’s ineffectiveness.

a) Cause for Procedural Default

A petitioner may overcome procedural default if he can demonstrate “‘cause for the default and actual prejudice as a result of the alleged violation of federal law....’” Murphy v. Ohio, 551 F.3d 485, 502 (6th Cir.2009) (quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).

Petitioner fails to direct the Court to new evidence or case law to support his position that an application for reopening a motion for reconsideration under Ohio App. R. 26(A) due to ineffective assistance of counsel, which was denied for failure to assert an error in the appellate court’s judgment and later denied review by the Ohio Supreme Court because the motion lacked any substantial constitutional question, constitutes cause for committing procedural default in regards to failing to appeal a double-jeopardy claim through direct appeal. Although appellate counsel’s ineffectiveness may amount to cause for procedural default occurring in an appeal as of right to the Ohio Court of Appeals, cause cannot be established if the ineffective assistance of appellate counsel claim was itself procedurally defaulted. See Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see also Edwards v. Carpenter, 529 U.S. 446, 451-53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Burroughs v. Makowski, 411 F.3d 665, 667-68 (6th Cir.2005) (per curiam), cert. denied, 546 U.S. 1017, 126 S.Ct. 653, 163 L.Ed.2d 529 (2005). The Court agrees with the Magistrate Judge’s analysis that Petitioner lacks cause under this line of reasoning.

Petitioner’s additional assertion of cause, that a subsequent “clarification of law” justified a delayed application for reconsideration, fails on two levels. (Doc. 17, 6.) The Supreme Court has held that “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984); see also Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). However, at the time of Petitioner’s direct appeal, Ohio appellate courts had split on the issue of the double-jeopardy claim herein. Cf. Bousley, 523 U.S. at 622, 118 S.Ct. 1604. Even assuming arguendo that the legal basis for Petitioner’s claim was not reasonably available to appellate counsel at the time of Petitioner’s direct appeal, this does not discount the analysis above regarding Petitioner’s failure to appeal his motion for reconsideration. Petitioner conflates the procedural import of direct versus indirect appeals. As such, the Court concludes that Petitioner is unable to establish cause for his procedural default.

b) Fundamental Miscarriage of Justice

A petitioner may overcome procedural default if he can demonstrate that a “fundamental miscarriage of justice” will result if the court declines to consider his claims. Murphy, 551 F.3d 485, 502 (6th Cir.2009) (citing Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To demonstrate that a “fundamental miscarriage of justice” would occur absent review of a petitioner’s claim, the petitioner must assert a credible claim of actual innocence that is supported by reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 315-16, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). To establish actual innocence, a petitioner must demonstrate that “in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 329, 115 S.Ct. 851. Thus, if the Schlup test is met, a federal habeas petitioner may have an otherwise barred constitutional claim considered on the merits.

In Sawyer v. Whitley, the Supreme Court narrowly held that a federal habeas court may review an otherwise defaulted claim under the exceptionally limited circumstances where the petitioner could demonstrate “by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under applicable state law.” 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). The Supreme Court recently affirmed the contours of the narrow “actual innocence” exception in Dretke v. Haley when it declined an opportunity to extend the actual innocence exception to noncapital sentencing errors. 541 U.S. 386, 393, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). The Sixth Circuit has not directly addressed this issue, but other circuits have provided some, albeit conflicting, guidance.

The circuits remain divided when interpreting the language of Sawyer and Dretke. The Second Circuit has adopted the broadest reading by seemingly endorsing the application of the actual innocence exception to all sentencing proceedings. See Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 170-71 (2d Cir.2000). The Fourth and Fifth Circuits have taken a narrow approach by limiting the actual innocence exception to the context of eligibility for a career or habitual offender enhancement. United States v. Mikalajunas, 186 F.3d 490, 496 (4th Cir.1999); United States v. Maybeck, 23 F.3d 888, 893 (4th Cir.1994) (“[W]e see little difference between holding that a defendant can be innocent of the acts required to enhance a sentence in a death case and applying a parallel rationale in non-capital cases.”); Haley v. Cockrell, 306 F.3d 257, 265 (5th Cir.2002); see also Cristin v. Brennan, 281 F.3d 404, 422 (3d Cir.2002) (“Those courts that have extended Sawyer’s holding on the ‘actual innocence’ of a sentence have uniformly done so in the context of testing the factual findings on which a particular non-capital sentence is based, such as prior convictions.”).

While the Ninth Circuit has not directly addressed this issue, district court cases support the conclusion that the actual innocence exception does not apply to sentencing error claims in noncapital cases. Nasset v. Belleque, No. 06-611-CL, 2008 U.S. Dist. LEXIS 115140, at *17 (D.Or. Sept. 11, 2008) (citing Downs v. McGee, CV 04-6215-MA, 2006 U.S. Dist. LEXIS 41260, 2006 WL 1582304, at *6 (D. Ore. June 1, 2006) (“neither the Ninth Circuit nor this court has expanded the actual innocence exception to permit a petitioner to attack a noncapital sentence.”), aff'd, 246 Fed.Appx. 476 (9th Cir.2007)). The case law in three other circuits is sufficiently ambiguous as to prevent any divination in regards to the state of the law in each circuit. Compare, Jones v. Arkansas, 929 F.2d 375, 381 (8th Cir.1991), with Embrey v. Hershberger, 131 F.3d 739, 740 (8th Cir.1997).

The R & R correctly points out that the Sixth Circuit has yet to directly address this issue except to state that the Supreme Court has not issued a clear ruling on whether or not to extend the actual innocence exception to noncapital cases. Ross v. Berghuis, 417 F.3d 552, 557 (6th Cir. 2005). In two earlier unpublished opinions, the Sixth Circuit rejected any extension of the actual innocence exception to noncapital cases. Flahardy v. United States, No. 95-5281, 1995 WL 570925, at *2, 1995 U.S.App. LEXIS 36911, at *6 (6th Cir. Sept. 27,1995) (unpublished); Black v. United States, No. 95-5041, 1995 WL 445718, at *2,1995 U.S.App. LEXIS 20847, at *5 (6th Cir. July 26,1995) (unpublished). For noncapital cases, the Sixth Circuit held that claims of actual innocence were reserved only for cases where the petitioner asserted substantive innocence of the actual offense. Flahardy, 1995 WL 570925, at *1-2, 1995 U.S.App. LEXIS 36911, at *5-6; Black, 1995 WL 445718, at *1-2, 1995 U.S.App. LEXIS 20847, at *4-5; see also Gibbs v. United States, 2:97-CV-556, 2009 WL 1024456, at *8, 2009 U.S. Dist. LEXIS 35002, at *21-22 (S.D.Ohio Apr. 15, 2009) (unpublished).

The Court agrees with the Magistrate Judge that unpublished Sixth Circuit precedent and analogous cases in other circuits weigh against extending the actual innocence exception to consecutive sentences in noncapital cases. See, e.g., Selsor v. Kaiser, 22 F.3d 1029, 1035 (10th Cir.1994) (noting “that even if the petitioner prevailed on the merits of his double jeopardy-claim he would not show factual innocence; rather, doing so would show only legal innocence of part of his conviction.”) (quotations omitted). Assuming arguendo that the actual innocence exception extends to noncapital offenses involving double-jeopardy claims, actual innocence can be used to obviate procedural default for an untimely filing of a habeas-corpus petition in a noncapital case only if the petitioner can prove his innocence of the sentence imposed. See Ross, 417 F.3d at 555-57; see, e.g., Goldman v. Winn, 565 F.Supp.2d 200, 228 (D.Mass.2008) (granting habeas relief pursuant to 28 U.S.C.S. § 2241, and holding that the inmate’s clear and convincing evidentiary showing of actual innocence excused the default).

Petitioner’s showing of actual innocence would serve as a “gateway” to hear his otherwise defaulted claim that his consecutive sentences were improper as the sentencing was in violation of the Double Jeopardy Clause. It is difficult for this Court to conclude that petitioner can meet this “actual innocence” exception in view of the fact that the record suggests that Petitioner would have been separately convicted of trafficking and possession. (Doc. 12, 23-24.)

It is well established that either cause and prejudice or a fundamental miscarriage of justice must be established in order to excuse procedural default. Johnson v. Wolfenbarger, 391 Fed.Appx. 510, 513-14 (6th Cir.2010) (citing Murray, 477 U.S. at 488, 106 S.Ct. 2639 (1986) and Murphy, 551 F.3d at 501-02). Petitioner cannot demonstrate that either the cause and prejudice or the fundamental miscarriage of justice exceptions apply to his case. Therefore, this Court must conclude that his second ground is procedurally defaulted, and habeas relief is not warranted.

III. CONCLUSION

After reviewing this matter de novo, the Court ADOPTS the magistrate judge’s R & R. Petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED with prejudice.

A certificate of appealability will be issued, and informa pauperis status will be granted consistent with the opinion by the Magistrate Judge as outlined in the R & R (Doc. 12).

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

TIMOTHY S. HOGAN, United States Magistrate Judge.

Petitioner, a prisoner in state custody at the Chillicothe Correctional Institution in Chillicothe, Ohio, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the assistance of counsel from the Ohio Public Defender’s Office. This matter is before the Court on the petition, respondent’s “Answer/Return Of Writ” with exhibits, and petitioner’s “traverse” in reply to the return of writ. (Docs. 2, 5,10).

Background

On March 13, 2006, the Scioto County, Ohio, grand jury returned a two-count indictment charging petitioner with first-degree-felony drug possession and trafficking offenses; the indictment also contained a major drug offender specification and forfeiture specification. (Doc. 5, Ex. 1).

It appears from the record that petitioner appeared before the Scioto County Common Pleas Court for arraignment on April 13, 2006, where counsel was appointed to represent him. (See id., Ex. 7, p. 2). Pretrial and suppression hearings were held on May 4 and 5, 2006, and the trial was scheduled to commence on May 8, 2006. (Id.).

On the morning of the scheduled trial date, a new, privately retained attorney filed a motion requesting that he be allowed to “substitute in as defense counsel,” to replace petitioner’s court-appointed attorney. (See id., Ex. 2 & May 8, 2006 Hearing on Motion to Substitute Counsel Tr. 2). A hearing was held on the record, where the retained attorney also requested a continuance of the trial date for the purpose of preparing a defense. (Id., May 8, 2006 Hearing on Motion to Substitute Counsel Tr. 3). Petitioner’s court-appointed attorney addressed the court as well, stating:

.... The case was set for trial on the 26th with the first pre-trial on the 4th. When, on that date we learned that Mr. Cobb was being considered as someone who has done other acts, someone who is above the wholesale level. This stuff only became known to us on the date of the first pre-trial, last Thursday, four days ago and then they presented us since that time supplemental discovery maybe four or five times so that there [are] ten witnesses now. I don’t feel adequately prepared for that.

I prepared twelve hours Saturday, twelve hours Sunday. I prepared half of my testimony. After this trial date today I’m going to have to go back in the office for probably another eight hours to prepare for cross examination tomorrow and I don’t think it’s fair to Mr. Cobb.... The case only looked strong ... on Thursday when they talked about this other acts stuff that there’s coming in co-defendants who are going to testify against him. We didn’t know that.... I just don’t think it’s fair.

(Id., Tr. 3-4).

After hearing further arguments by the two attorneys, as well as the prosecuting attorney who opposed any continuance of the trial date, the court overruled the motion for leave to substitute counsel on the record. (Id., Tr. 6). In so ruling, the court stated:

I ... want to add for the record that I had two or three other cases that were continued on Friday in anticipation of this going to trial and not requiring other counsel that would have to prepare over the weekend. We had no indication whatsoever that other counsel was even considered.

(Id.).

At that point, petitioner “entered into negotiations that resulted in a no contest plea to both counts of the indictment.” (See id., Ex. 7, p. 3). Petitioner entered the plea at a hearing held on the record on May 8, 2006. (See id., May 8, 2006 Plea and Sentencing Tr.). It appears from the record that petitioner agreed as a term of the plea bargain to the imposition of consecutive ten-year terms of imprisonment totaling twenty (20) years, and that in exchange, no additional sentence was to be imposed based on petitioner’s status as a “major drug offender” on the attached specification. (Id., Tr. 2, 21). In a Judgment Entry filed May 10, 2006, petitioner was sentenced in accordance with the plea agreement to consecutive mandatory ten-year prison terms “for a total of 20 years.” (Id., Ex. 4, pp. 3-4).

With the assistance of the same attorney who had sought to replace petitioner’s court-appointed counsel at the trial level, petitioner timely appealed to the Ohio Court of Appeals, Fourth Appellate District, raising two assignments of error:

1, Whether the trial court erred as a matter of law when it denied defendant-appellant’s request to continue his trial to permit privately retained counsel to represent him?

2. Whether the trial court erred as a matter of law [under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (Ohio 2006),] when it sentenced the defendant-appellant to maximum consecutive sentences?

(See id., Ex. 5).

On April 17, 2007, 2007 WL 1165863, the Ohio Court of Appeals overruled the assignments of error and affirmed the trial court’s judgment. (Id., Ex. 7).

Petitioner filed a pro se appeal to the Ohio Supreme Court. In his memorandum in support of jurisdiction, he re-asserted the two claims of error that had been presented to the Ohio Court of Appeals and also claimed as additional propositions of law that (1) his no contest plea was invalid because he believed when he entered the plea that he could challenge his stipulated sentence on appeal; and (2) his appellate counsel was ineffective in failing to raise on appeal the claim contesting the no contest plea “to an agreed sentence which [petitioner] though[t] he had the right to challenge” on appeal. (See id., Ex. 8). On October 3, 2007, 874 N.E.2d 538 (2007), the Ohio Supreme Court denied petitioner leave to appeal and summarily dismissed the appeal “as not involving any substantial constitutional question.” (Id., Ex. 9).

In the meantime, on June 5, 2007, petitioner also filed with the Ohio Court of Appeals, Fourth Appellate District, a timely pro se application for reopening of the appeal under Ohio R.App. P. 26(B), raising the same claim of ineffectiveness on the part of his appellate counsel that he had separately presented in his appeal to the Ohio Supreme Court. (Id., Ex. 10). Thereafter, petitioner amended the application to add another ineffective assistance of appellate counsel claim based on counsel’s failure to assert as an assignment of error that “[t]he trial court erred to the prejudice of appellant by imposing consecutive terms of imprisonment in violation of R.C. 2941.25 and in violation of appellant’s Fifth and Fourteenth Amendment ] rights against double jeopardy.” (Id., Ex. 11).

On September 28, 2007, the Ohio Court of Appeals denied petitioner’s reopening application after addressing and rejecting both ineffective assistance of appellate counsel claims on the merits. (Id., Ex. 14). Respondent states that petitioner did not appeal this decision to the Ohio Supreme Court. (Id., Brief, p. 6).

Over seven months later, on May 9, 2008, counsel from the Ohio Public Defender’s Office filed a delayed application for reconsideration under Ohio R.App. P. 26(A) with the Ohio Court of Appeals on petitioner’s behalf. (Id., Ex. 15). In the application, counsel contended that the Ohio Court of Appeals had erred in rejecting the double jeopardy claim asserted as a basis for finding that petitioner’s appellate counsel was ineffective; specifically, counsel contended that the Ohio Supreme Court’s April 9, 2008 decision in State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 181 (Ohio 2008), which resolved a conflict among the lower appellate courts regarding the standard for determining allied offenses of similar import, mandated that the drug possession and trafficking offenses charged against petitioner be deemed allied offenses that should have been merged for sentencing purposes. (See id.).

On June 30, 2008, the Ohio Court of Appeals denied the delayed application for reconsideration, reasoning in pertinent as follows:

After carefully reviewing appellant’s application, we conclude that he has not called to this court’s attention an error in our judgment, nor has he raised an issue that was either not considered or fully considered when it should have been. Although Cabmles appears to have overruled prior decisions from this court involving the question of allied offenses of similar import and a person who has been convicted of both trafficking and possessing drugs, ... at the time appellant filed his application to reopen [the prior precedent that was relied on by the court in denying the application] was good law in this district. Appellant could have appealed our denial of his application, but he chose not to do so. Moreover, if this court reopened every case potentially affected by a later decision from the Supreme Court, the finality of every judgment becomes suspect.

(Id., Ex. 16).

Petitioner’s counsel filed a timely appeal from this decision to the Ohio Supreme Court. (Id., Ex. 17). On October 15, 2008, 894 N.E.2d 1245 (2008), the Ohio Supreme Court summarily dismissed the appeal “as not involving any substantial constitutional question.” (Id., Ex. 18).

Petitioner’s counsel from the Ohio Public Defender’s Office next commenced the instant federal habeas action on petitioner’s behalf. In the petition filed on December 29, 2008, petitioner alleges two grounds for relief:

Ground One: Denying a criminal defendant substitution of counsel for trial violates the defendant’s rights to due process and counsel under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution....

Ground Two: Failing to order the re-sentencing of a criminal defendant following a clarification of the law that would result in a sentence reduction is a violation of the Due Process and Double Jeopardy Clauses....

(Doc. 2, pp. 16-18).

In the return of writ filed in response to the petition, respondent contends that petitioner has waived his second ground for relief, which he procedurally defaulted in the state courts, and that petitioner has not demonstrated he is entitled to habeas relief based on the merits of the claim alleged in his first ground for relief. (Doc. 5, pp. 8-18).

OPINION

A. Petitioner Is Not Entitled To Relief Based On The Claim In Ground One Challenging The Denial Of His Motion For Substitution Of Counsel

In Ground One of the petition, petitioner alleges that he was denied due process and his Sixth Amendment right to counsel of his own choosing when the trial court denied a motion filed on his behalf the morning the trial was scheduled to commence for substitution of his court-appointed counsel by a retained attorney, who also requested a continuance in order to prepare a defense. (Doc. 2, pp. 16-17; see also Doc. 5, May 8, 2006 Hearing on Motion to Substitute Counsel Tr.). This claim, which petitioner exhausted in the state direct review proceedings, is subject to review on the merits.

The Ohio Court of Appeals was the last state court to issue a reasoned decision addressing the claim of constitutional error. In overruling petitioner’s assignment of error, the court made findings of fact, which are presumed correct under 28 U.S.C. § 2254(e)(1), and ruled in relevant part as follows:

The Sixth Amendment provides, “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” U.S. Const. Amend. VI. “[Wjhile the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States (1988), 486 U.S. 158, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 .... Thus, “[a] defendant has only a presumptive right to employ his own counsel.” ... “ ‘[T]he important right to counsel of choice is not absolute; it must be balanced against the court’s authority to control its own docket, and a court must beware that a demand for counsel may be utilized as a way to delay proceedings or trifle with the court.’ ”...

Factors to consider in deciding whether a trial court erred in denying a defendant’s motion to substitute counsel include the timeliness of the motion and whether there was a conflict between the attorney and the client that was so great that it resulted in a total lack of communication preventing an adequate defense.... “In addition, courts should ‘balancfe] * * * the accused’s right to counsel of his choice and the public’s interest in the prompt and efficient administration of justice.”... A trial court’s decision regarding the substitution of counsel is within the sound discretion of the trial court.... Likewise, the grant or denial of a continuance is a matter that is entrusted to the sound discretion of the trial court.... In evaluating a motion for continuance, a court should consider, inter alia, the length of the delay requested; the inconvenience to the litigants, witnesses, opposing counsel, and the court; and whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived----

* * *

Under the circumstances in this case, we find no abuse of the trial court’s discretion in denying Cobb’s request for a continuance to enable privately retained counsel to enter an appearance and prepare the defense.

First, the motion for continuance was untimely, having been first presented to the trial court on the morning of trial. Second, appellant failed to indicate on the record the length of the delay requested. A defendant’s request to substitute retained counsel of his choice must be timely and not disrupt the trial proceedings.... A trial court does not abuse its discretion in denying a motion for continuance made on the morning of trial for purposes of allowing additional time to prepare a defense where defense counsel was aware of the facts and circumstances several days before trial.... Third, continuance of the trial in this case would have inconvenienced the witnesses, opposing counsel, and the court. Vigorously opposing the requested continuance, the state advised the court that it was ready to proceed and had 15 witnesses to testify at the trial, including one who had been transported from a correctional institution.

Fourth, the trial court could have reasonably decided that appellant’s untimely request for a continuance did not outweigh the court’s authority to control its own docket.... The trial court noted that just three days prior to the scheduled trial in this case it had granted continuances in other cases that were ready to proceed in order to accommodate the trial scheduled in this case. And rescheduling of the trial would have been difficult because both the state and the trial court had busy trial schedules for several months after the trial date.

Fifth, the record does not indicate that a conflict existed between Cobb and his appointed counsel, who represented Cobb throughout all pretrial proceedings. In considering Cobb’s motion to substitute counsel, the trial court expressly noted that Cobb had at no time expressed dissatisfaction with his appointed counsel. Even on the date of trial, Cobb did not assert an irreconcilable conflict or a complete breakdown in communication with his appointed attorney.

Appointed counsel informed the court on the morning of trial that he became aware at a pretrial hearing held on May 4, 2006 of the complexity of the case against Cobb and his difficulty in preparing for the May 8th trial date. However, appointed counsel did not voice any reservations during the pretrial hearings concerning preparation for trial or the need for a continuance. When an accused has previous opportunities but waits until the last minute, i.e., the morning of trial, to request a substitution of counsel and a continuance, the court may infer the motions were made in bad faith for the purpose of delay.... Finally, ... the record reflects that Cobb signed an affidavit of indigency in April 2006 indicating he was financially unable to retain private counsel. In requesting substitution of privately retained counsel in May 2006, he did not assert that his financial situation had changed since he signed the affidavit. Appellate courts have upheld a trial court’s denial of substitution of counsel and a continuance filed on the day of trial in such circumstances....

(Doc. 5, Ex. 7, pp. 4-8) (footnote and state case citations omitted) (emphasis in original).

In so ruling, the state appellate court did express concerns in a footnote about the State’s disclosure of “supplemental discovery” to the defense four days before the trial was scheduled to commence. Specifically, the court emphasized that if petitioner’s court-appointed attorney had moved for a continuance of the trial at the pretrial hearings held on May 4 and 5, 2006, when the disclosure was made, “the trial court would have been hard pressed to justify denying” the motion; the court noted further that its decision “should not be viewed as condoning belated discovery practices by the state” and that, given the “last minute disclosures by the state” in the instant case, “we would give rigorous scrutiny to a decision denying a timely request for a continuance.” (Id., p. 7 n. 1).

In this federal habeas case, the applicable standard of review governing the adjudication of petitioner’s claim in Ground One challenging the trial court’s denial of his motion for substitution of counsel is set forth in 28 U.S.C. § 2254(d). Pursuant to this standard, petitioner is not entitled to relief unless the state courts’ adjudication of his claim resulted in a decision that (1) is contrary to, or involves an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) is based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., writing for majority on this issue); Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000), cert. denied, 532 U.S. 947, 121 S.Ct. 1415, 149 L.Ed.2d 356 (2001); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997), cert. denied, 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 (1998).

A state court decision is “contrary to” clearly established federal law as determined by the Supreme Court if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams, 529 U.S. at 405-06, 120 S.Ct. 1495 (O’Connor, J.); Harris, 212 F.3d at 942. An “unreasonable application” of Supreme Court precedent occurs (1) if the state court identifies the correct legal standard but unreasonably applies it to the facts of the case, or (2) if the state court either unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at 407-08, 120 S.Ct. 1495 (O’Connor, J.).

Under § 2254(d)(l)’s “unreasonable application” clause, a federal habeas corpus 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 411, 120 S.Ct. 1495 (O’Connor, J.); see also Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir.2000); Harris, 212 F.3d at 942.

The reasonableness inquiry is an objective one; it does not involve a subjective inquiry into whether or not reasonable jurists would all agree that the state court’s application was unreasonable. Williams, 529 U.S. at 409-10, 120 S.Ct. 1495 (O’Connor, J.); see also Washington v. Hofbauer, 228 F.3d 689, 698 (6th Cir.2000); Harris, 212 F.3d at 942-43. Moreover, the writ may issue only if the application is objectively unreasonable “in light of the holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant state court decision.” McGhee, 229 F.3d at 510, 512 (citing Williams, 529 U.S. at 412, 120 S.Ct. 1495).

In this case, although the Ohio Court of Appeals primarily relied on state cases in addressing petitioner’s claim of constitutional error, it utilized standards of review that comport with applicable, well-established Supreme Court precedents, and reasonably applied those standards in rejecting petitioner’s claim on the merits.

As the Ohio Court of Appeals apparently understood, it is well-settled that the Sixth Amendment right to counsel encompasses “the right of a defendant who does not require appointed counsel to choose who will represent him.” See United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (citing Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), and Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). However, as the state appellate court also understood, the right is not absolute. See id. (citing Wheat, 486 U.S. at 159, 108 S.Ct. 1692); see also United States v. Mooneyham, 473 F.3d 280, 291 (6th Cir.), cert. denied, 552 U.S. 1009, 128 S.Ct. 531, 169 L.Ed.2d 371 (2007). The Supreme Court has recognized that a trial court has “wide latitude in balancing the right to counsel of choice against the needs of fairness ... and against the demands of its calendar.” Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557 (citing Wheat, 486 U.S. at 163-64, 108 S.Ct. 1692, and Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983)).

The Supreme Court’s decision in Morris is particularly instructive here. In Morris, the petitioner’s initial attorney was hospitalized shortly before trial, and six days before the scheduled trial date, a colleague was substituted to represent petitioner at trial. Morris, 461 U.S. at 5, 103 S.Ct. 1610. On the first two days of trial, petitioner made comments complaining about the inadequacy of his new counsel’s investigation and the lack of time for preparation, which the trial court construed as a request for a continuance; the request was denied. See id. at 6-8, 103 S.Ct. 1610. On the third day of trial, petitioner presented the trial court with a petition, claiming that he was “unrepresented by counsel” and expressing dissatisfaction with his new attorney’s performance. Id. at 8, 103 S.Ct. 1610. The court treated the petition as a renewed request for a continuance until petitioner’s original attorney could represent him again; the request was denied. Id. At that point, the petitioner announced that he would not cooperate at the trial, and against counsel’s advice, refused to take the stand to testify in his defense. Id. at 8-9, 103 S.Ct. 1610.

In addressing the question whether the court’s denial of the petitioner’s requests for continuance effectively deprived petitioner of his Sixth Amendment right to counsel of choice, the Court stated:

Trial judges require a great deal of latitude in scheduling trials. Not the least of their problems is assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay” violates the right to the assistance of counsel.

Morris, 461 U.S. at 11-12, 103 S.Ct. 1610 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). The Court held that the trial court was “abundantly justified in denying [the petitioner’s] midtrial motion for continuance so as to have [his original attorney] represent him,” because “it could reasonably have concluded that [the petitioner’s] belated requests to be represented by [the attorney] were not made in good faith but were a transparent ploy for delay.” Id. at 13, 103 S.Ct. 1610.

Although Morris was decided in the context of the denial of a request for a continuance, the decision is pertinent to the issue to be addressed herein involving the denial of a request for substitution of counsel. Cf. Henness v. Bagley, No. 2:01cv43, 2007 WL 3284930, at *46 (S.D.Ohio Oct. 31, 2007) (unpublished); see also Charley v. Bagley, No. 1:03cv1607, 2006 WL 1624240, at *8 (N.D.Ohio June 2, 2006) (unpublished) (denying habeas relief because the Ohio appellate court’s application of Morris in upholding the trial court’s refusal to appoint substitute counsel was reasonable).

As the court stated in Henness, supra, 2007 WL 3284930, at *46:

The timing of the request, any delay in the proceedings, and the inconvenience to the trial participants are all factors for a trial court to consider when deciding either a motion for a continuance or a request for new counsel. Not to be ignored, however, is the reason for the request, as Morris demonstrates. If the attorney-client relationship is such that the attorney is able to provide competent representation, then the client’s dislike of or disagreement with his attorney generally cannot provide a basis for a continuance or appointment of new counsel. Otherwise, a defendant could prolong his trial indefinitely, repeatedly claiming not to trust or be able to work with his attorney, regardless of the attorney’s preparedness or willingness and ability to provide competent representation to the client....

Here, neither the trial court’s denial of petitioner’s request for new counsel nor the Ohio Court of Appeals’ decision upholding that ruling are unreasonable under Morris.

First, as in Morris, the Ohio Court of Appeals properly considered the timing of petitioner’s request, made belatedly on the first day of trial for the purpose of allowing additional time to prepare a defense, as well as the resulting inconvenience to “the witnesses, opposing counsel, and the court.” In opposing the motion for substitution of counsel, the prosecutor pointed out that both the prosecutor’s office and the court had such busy schedules, with a “number of cases set over the summer on a weekly basis,” that it was difficult to even schedule the May 8th trial date at the initial pretrial conference in order to comply with speedy trial time constraints. (See Doc. 5, May 8, 2006 Hearing on Motion to Substitute Counsel Tr. 5). Although retained counsel indicated that “as part of my Motion for Leave to Substitute!,] I had obviously prepared a ... Motion for a continuance which did contain a speedy trial waiver,” by that point, the State had “fifteen witnesses standing by,” including a prisoner who had been transported to the courthouse from a state penal institution. (See id., Tr. 6). In addition, by that point, the trial court also was inconvenienced because, in the absence of any “indication whatsoever that other counsel was even considered,” it had continued “two to three other cases” on its “overcrowded docket” on the Friday before the scheduled Monday trial date “in anticipation of this going to trial.” (Id.).

Second, as the Ohio Court of Appeals further pointed out in rejecting petitioner’s claim, petitioner has not shown that his relationship with his court-appointed attorney was such that the attorney was unable to provide competent representation. In overruling petitioner’s motion for leave to substitute counsel, the trial court expressly noted that petitioner had never indicated that he was even considering other counsel to represent him. Moreover, there is no evidence in the record to suggest that petitioner had any problems or conflicts with his appointed counsel, who prior to May 8, 2006, “never voicfed] any reservations during pretrial hearings concerning preparation for trial or the need for a continuance.” (See Doc. 5, Ex. 7, p. 7). Indeed, at the hearing on the motion to substitute counsel, petitioner’s appointed counsel indicated that he had already spent an extensive amount of time over the previous weekend preparing for trial and planned to return to his office after the first day of testimony “for probably another eight hours to prepare for cross examination.” (Id., May 8, 2006 Hearing on Motion to Substitute Counsel Tr. 3-4).

Instead, the only concern that retained and court-appointed counsel conveyed to the court at the hearing pertained to both attorneys’ inability to adequately prepare a defense responding to the State’s belated “supplemental discovery” provided four days earlier at a pretrial conference that petitioner “was being considered as someone who has done other acts, someone who is above the wholesale level.” {See id., Tr. 3). As the Ohio Court of Appeals noted, if counsel had timely moved for a continuance at the pretrial conference, the trial court “would have been hard pressed” to justify the denial of a continuance. However, no request for a continuance was asserted at that time; instead, petitioner waited until the first day of trial four days later to seek a continuance by way of the motion for substitution of counsel, after witnesses, opposing counsel, and the trial court had been inconvenienced. Under these circumstances, in the absence of any evidence of conflicts or other problems in petitioner’s relationship with appointed counsel, it was reasonable for the Ohio Court of Appeals to conclude that the motion for substitution of counsel was “not made in good faith but w[as] a transparent ploy for delay,” Morris, 461 U.S. at 13, 103 S.Ct. 1610. (See Doc. 5, Ex. 7, p. 7).

The Ohio Court of Appeals’ determination also comports with Sixth Circuit precedents, which hold that a motion for new counsel is “addressed to the sound discretion of the trial court.” United States v. Trujillo, 376 F.3d 593, 606 (6th Cir.2004) (quoting United States v. White, 451 F.2d 1225, 1226 (6th Cir.1971) (per curiam)); see also Mooneyham, 473 F.3d at 291. The Sixth Circuit cites four factors to consider in ruling on these motions: (1) the timeliness of the motion; (2) the adequacy of the court’s inquiry into the matter; (3) the extent of the conflict between the attorney and client and whether it was so great that it resulted in a total lack of communication preventing an adequate defense; and (4) the balancing of these factors with the public’s interest in the prompt and efficient administration of justice. Trujillo, 376 F.3d at 606 (and cases cited therein); see also Mooneyham, 473 F.3d at 291. The Sixth Circuit also has held that “[w]hen ‘the granting of the defendant’s request [for substitution of counsel] would almost certainly necessitate a last-minute continuance, the trial judge’s actions are entitled to extraordinary deference.’ ” United States v. Vasquez, 560 F.3d 461, 467 (6th Cir.) (quoting United States v. Whitfield, 259 Fed.Appx. 830, 834 (6th Cir.2008) (not published in Federal Reporter), in turn quoting United States v. Pierce, 60 F.3d 886, 891 (1st Cir.1995), cert. denied, 518 U.S. 1033, 116 S.Ct. 2580, 135 L.Ed.2d 1094 (1996)), cert. denied, — U.S.-, 130 S.Ct. 476, 175 L.Ed.2d 319 (2009).

Here, under the first factor, and as the Ohio Court of Appeals emphasized, petitioner’s request for new counsel made on the first day of trial was untimely. See, e.g., Bailey v. Trombley, No. 05-10190, 2008 WL 2937843, at *8 (E.D.Mich. July 24, 2008) (unpublished); cf. White, 451 F.2d at 1226 (holding that “the refusal of the [court] to appoint substitute counsel on the eve of the trial” is not improper); Edsall v. Lazaroff, 208 F.3d 213 (table), No. 99-3128, 2000 WL 263273, at *2 (6th Cir. Mar. 10, 2000) (unpublished), cert. denied, 531 U.S. 842, 121 S.Ct. 107, 148 L.Ed.2d 65 (2000).

The trial court did not conduct an extensive inquiry into the substance of petitioner’s complaint about his court-appointed counsel. But, it appears clear from the record that the competency of counsel’s representation was not at issue; rather, petitioner’s complaint stemmed from the relatively short amount of time accorded to him to prepare a defense responding to the State’s belated disclosure of “other acts” evidence. The record does not reveal the existence of any conflict between petitioner and his appointed counsel that was so great it resulted in a total lack of communication preventing an adequate defense. Therefore, upon weighing all the factors, the trial court acted within its discretion to decide in favor of the public’s interest in the prompt and efficient administration of justice.

Accordingly, in sum, the undersigned concludes that the state courts’ adjudication of the constitutional claim alleged in Ground One of the petition neither is contrary to nor involves an unreasonable application of clearly-established federal law as determined by the United States Supreme Court in Wheat and Morris and their progeny. In light of the circumstances presented herein, the trial court’s decision to deny petiti