[Cite as In re Disqualification of Nastoff, 134 Ohio St.3d 1232, 2012-Ohio-6339.]




                        IN RE DISQUALIFICATION OF NASTOFF.
                             THE STATE OF OHIO v. DAVIS.
          [Cite as In re Disqualification of Nastoff, 134 Ohio St.3d 1232,
                                    2012-Ohio-6339.]
Judges—Affidavit of disqualification—R.C. 2701.03—Disqualification of judge
        not warranted—Same judge who presided at trial may decide petition for
        postconviction relief absent proof of bias or prejudice.
                    (No. 12-AP-004—Decided February 16, 2012.)
 ON AFFIDAVIT OF DISQUALIFICATION in Butler County Court of Common Pleas,
                              Case No. CR-1983-12-0614.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} Kort Gatterdam, counsel for petitioner, has filed an affidavit with
the clerk of this court under R.C. 2701.03 seeking to disqualify Judge Andrew
Nastoff from acting on any further proceedings in case No. CR-1983-12-0614, a
postconviction-relief action now pending in the Court of Common Pleas of Butler
County.
        {¶ 2} Attorney Gatterdam contends that it would be unfair for Judge
Nastoff to rule on Davis’s petition for postconviction relief.                Judge Nastoff
presided over the three-judge panel that sentenced Davis to death. Gatterdam
states that the postconviction petition currently before Judge Nastoff contains a
claim that Davis’s defense counsel were ineffective in not seeking to recuse Judge
Nastoff from presiding over Davis’s capital sentencing hearing.                     Gatterdam
argues that given the nature of the ineffective-assistance-of-counsel claim, Judge
Nastoff should be disqualified from presiding over the underlying postconviction-
relief proceedings.
                              SUPREME COURT OF OHIO




       {¶ 3} Judge Nastoff has responded in writing to the concerns raised in
the affidavit of disqualification. According to the judge, he is capable of deciding
the underlying petition in a fair and impartial manner, and he asks that he be
allowed to remain on the case.
       {¶ 4} For the following reasons, no basis has been set forth for ordering
the disqualification of Judge Nastoff.
                                  Relevant Facts
       {¶ 5} In 1984, petitioner Davis was convicted of aggravated murder and
sentenced to death. State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925 (1988)
(affirming conviction but reversing death sentence); 63 Ohio St.3d 44, 584 N.E.2d
1192 (1992) (affirming reimposition of death sentence on remand). In 2007, the
Sixth Circuit Court of Appeals reversed Davis’s death sentence and remanded his
case for a new sentencing hearing. Davis v. Coyle, 475 F.3d 761 (6th Cir.2007).
       {¶ 6} From September 8 through September 10, 2009, a new sentencing
hearing was held before a three-judge panel of the Butler County Common Pleas
Court, with Judge Nastoff sitting as the presiding judge. During the sentencing
hearing, defense counsel called Davis’s sister, Carol Smith, as a mitigation
witness. Smith testified that her son, Lahray Thompson, had previously been
convicted of aggravated murder. Prior to Smith’s testimony, Judge Nastoff was
not aware of the family connection between Davis and Thompson. The judge
immediately informed all counsel that he had appeared as an assistant prosecuting
attorney in Thompson’s capital trial.        After this disclosure, Davis’s defense
counsel advised Judge Nastoff that they were already aware of his prior
involvement in Thompson’s case and did not believe that further discussion was
necessary. At the conclusion of the sentencing hearing, the panel sentenced Davis
to death.    State v. Davis, 12th Dist. No. CA2009-10-263, 2011-Ohio-787
(affirming death sentence).




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                                January Term, 2012




       {¶ 7} On October 21, 2011, Davis filed a petition for postconviction
relief with the trial court. Davis claimed in the petition that his trial counsel
rendered ineffective assistance for not seeking to recuse Judge Nastoff. In his
Sixth Ground for Relief, Davis argued that his trial counsel should have requested
that Judge Nastoff step aside from the penalty-phase hearing because the judge
had served as a prosecutor in the death penalty case of Davis’s nephew and had
advocated for the nephew’s death.
       {¶ 8} Davis also filed a motion requesting that Judge Nastoff recuse
himself from deciding the postconviction-relief petition. Judge Nastoff denied the
motion to recuse on January 6, 2012. Following this denial, attorney Gatterdam
filed the instant affidavit of disqualification on Davis’s behalf.
                 The Merits of the Affidavit of Disqualification
       {¶ 9} It is well settled that a judge who presided at trial will not be
disqualified from hearing a petition for postconviction relief in the absence of
evidence of bias, prejudice, or a disqualifying interest. In re Disqualification of
Kilbane, 42 Ohio St.3d 602, 536 N.E.2d 1153 (1989); In re Disqualification of
Aubry, 117 Ohio St.3d 1245, 2006-Ohio-7231, 884 N.E.2d 1095 (state and federal
courts have been virtually unanimous in holding that a judge who presided over
prior proceedings involving a party presently before the court will not be
disqualified from presiding over later proceedings involving that same party
absent a showing of actual bias). See also Flamm, Judicial Disqualification,
Section 31.4, 949 (2d Ed.2007) (it is generally held that, absent a statute that
mandates otherwise, a convicted defendant has no absolute right to a new judge in
postconviction proceedings).
       {¶ 10} No factual basis for disqualification has been presented in the
instant affidavit. Attorney Gatterdam argues only that it would be “unfair” to
have Judge Nastoff now rule on the claim of ineffective assistance of counsel—or
any other ground in the postconviction petition—given the “nature” of the



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ineffective-counsel claim. But Gatterdam does not explain why the nature of the
claim makes it unfair for Judge Nastoff to rule on the postconviction petition. In
an affidavit-of-disqualification proceeding, the burden falls on the affiant to
submit sufficient argument and evidence demonstrating that disqualification is
warranted.      See R.C. 2701.03(B)(1) (requiring affiant to include specific
allegations of bias, prejudice, or disqualifying interest and the facts to support
those allegations). It is not this court’s duty to speculate as to what grounds the
affiant believes would compel disqualification of the judge. In re Disqualification
of Mitrovich, 101 Ohio St.3d 1214, 2003-Ohio-7358, 803 N.E.2d 816, ¶ 4; In re
Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d
3, ¶ 5.
          {¶ 11} Moreover, nothing in the record of this case suggests that Judge
Nastoff is incapable of presiding over the underlying case in a fair and impartial
manner.      The very nature of a postconviction-relief proceeding requires trial
judges to evaluate and pass upon their own actions and conduct.               R.C.
2953.21(A)(1)(a).     Judge   Nastoff’s   disqualification   from    postconviction
proceedings is not required merely because Gatterdam has raised questions about
the judge’s impartiality in the underlying criminal case.           Indeed, even if
circumstances in the postconviction case ultimately show that Judge Nastoff
should have removed himself from Davis’s sentencing hearing, it does not
automatically follow that defense counsel rendered ineffective assistance in
failing to seek his recusal. Quite simply, Gatterdam has not shown that the
resolution of the ineffective-assistance-of-counsel claim will necessarily turn on
Judge Nastoff’s judgment concerning his own impartiality. While there may be
circumstances that would prevent Judge Nastoff from presiding over Davis’s
ineffective-assistance claim, Gatterdam has not established such grounds in his
affidavit of disqualification. See In re Disqualification of Walker, 36 Ohio St.3d




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                                 January Term, 2012




606, 522 N.E.2d 460 (1988) (vague and unsubstantiated allegations are
insufficient to establish bias or prejudice).
                                     Conclusion
        {¶ 12} “A judge is presumed to follow the law and not to be biased, and
the appearance of bias or prejudice must be compelling to overcome these
presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-
Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been overcome in
this case.
        {¶ 13} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Nastoff.
                             ______________________




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