                              RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit Rule 206
                                           File Name: 06a0449p.06

                      UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                   X
                             Petitioner-Appellee, -
 AHMAD JAMES,
                                                    -
                                                    -
                                                    -
                                                         No. 05-4003
              v.
                                                    ,
                                                     >
 ANTHONY BRIGANO, Warden, Warren Correctional       -
                                                    -
                          Respondent-Appellant. -
 Institution,

                                                    -
                                                   N
                    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

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


                                                      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 half-
brother 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


       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.

       1
           In a split decision, Justice O'Connor's opinion represents the plurality for these sections.
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.
