                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0242n.06

                                            No. 11-3278
                                                                                            FILED
                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT                                   Feb 29, 2012
                                                                                 LEONARD GREEN, Clerk
SANTRAVIS COBB,                                           )
                                                          )         ON APPEAL FROM THE
       Petitioner-Appellant,                              )         UNITED STATES DISTRICT
                                                          )         COURT FOR THE SOUTHERN
v.                                                        )         DISTRICT OF OHIO
                                                          )
WARDEN, CHILLICOTHE                CORRECTIONAL           )                              OPINION
INSTITUTION,                                              )
                                                          )
       Respondent-Appellee.




BEFORE:        COLE, GILMAN, and WHITE, Circuit Judges.

       COLE, Circuit Judge. Santravis Cobb, an Ohio prisoner who pleaded guilty to charges of

drug possession and trafficking in May 2006, appeals the district court’s denial of his petition for a

writ of habeas corpus. Cobb contends that the state trial court improperly denied his motion to

substitute counsel, and that the trial court unreasonably applied federal law when it failed to merge

his offenses at sentencing. For the following reasons, we REVERSE the judgment of the district

court and conditionally GRANT the petition, giving the State of Ohio 180 days to allow Cobb to

withdraw his plea of no contest and proceed to trial or, failing that, to release him.

                                        I. BACKGROUND

       In March of 2006, a Scioto County, Ohio, grand jury indicted Cobb on one charge of felony

drug possession and one charge of trafficking drugs. (R&R, Dist. Ct. Docket No. 12, at 1.) Pretrial
No. 11-3278
Cobb v. Warden

and suppression hearings took place on May 4 and 5, 2006, respectively, with the trial scheduled to

commence on May 8, 2006. (Id. at 2.) Twenty-four days passed between Cobb’s arraignment and

the scheduled trial date, and nineteen days between initial discovery and the scheduled trial date.

(Counsel Substitution Hrg., Dist Ct. Docket No. 5, at 3.) At the pretrial hearing, four days before

the scheduled trial, Cobb’s appointed counsel became aware, via supplemental discovery from the

state, of “other acts” evidence that the state planned to use against Cobb at trial. (Respondent’s

Return of Writ, Dist. Ct. Docket No. 5, at 2.) Whether Cobb’s appointed counsel asked for a

continuance will be discussed in more detail below.

       On the morning of May 8, a new, privately retained attorney requested that he be allowed to

replace Cobb’s appointed counsel, and that the trial date be continued for the purposes of preparing

a defense. (R&R, Dist. Ct. Docket No. 12, at 2.) Cobb’s appointed counsel informed the court that

he did not feel adequately prepared for trial. (Counsel Substitution Hrg., Dist Ct. Docket No. 5, at

3-4.) He also justified the last-minute hiring and substitution of new counsel by pointing to the

supplemental discovery, provided four days prior, informing defense counsel that Cobb “was being

considered as someone who has done other acts, someone who is above the wholesale level.” (Id.

at 3.) In light of this new information, he argued, Cobb’s family now understood the state’s case to

be stronger, and decided to hire an attorney. (Id. at 4.) Cobb’s retained counsel also informed the

court that Cobb believed that his appointed counsel “represents or has represented the husband of

one of the key witnesses against” him. (Mot. for leave, Dist. Ct. Docket No. 5, Ex. 2, at 2.)

       The state argued that it was prepared to begin the trial and had fifteen witnesses, including

a state prisoner, ready to testify. (Counsel Substitution Hrg., Dist Ct. Docket No. 5, at 6.) The state

                                                 -2-
No. 11-3278
Cobb v. Warden

further claimed that continuing the case would not be feasible, in light of its busy summer schedule,

and that the parties had previously consented to the May 8 trial date. (Id. at 5.) In response, Cobb’s

counsel stated, “I hardly agree [that there was a] consensus about a trial on the 8th. I asked you

about waiving time and you said because of the crowded docket the Court is going forward.” (Id. at

6.) The trial court did not respond, but noted that it had “two or three cases that were continued” on

May 5 in anticipation of Cobb’s case going to trial, and that the court had no indication that Cobb

was considering other counsel. (Id.) The trial court denied the motion. (Id.)

        On that same day, Cobb pleaded no contest to both counts of the indictment. (R&R, Dist.

Ct. Docket No. 12, at 3.) Two days later, the trial court sentenced Cobb to consecutive ten-year

prison terms for each count, for a total of twenty years. (Id.) Cobb appealed to the Ohio Court of

Appeals for the Fourth Appellate District, raising two claims of error: first, that the trial court erred

when it denied his motion to substitute counsel, and second, that the trial court erred in sentencing

Cobb to maximum consecutive sentences. (Cobb App. Brief, Dist Ct. Docket No. 5, Ex. 5.) Cobb

did not argue that the offense should have merged at sentencing, but that his sentence was excessive

and that the terms should have run concurrently. (Id. at 7.) His conviction and sentence were

affirmed. (Ohio v. Cobb, Ohio 4th App., Dist. Ct. Docket No. 5, Ex. 7.)

        Cobb appealed pro se to the Ohio Supreme Court, presenting his previously raised claims of

error; he additionally raised a due process claim, and a claim that his appellate counsel was

ineffective for failing to raise the due process claim on appeal. (Cobb Ohio Sup. Ct. Br., Dist Ct.

Docket No. 5, Ex. 8.) The Ohio Supreme Court denied leave to appeal. (Ohio v. Cobb, Case No.

2007-0989, Dist. Ct. Docket No. 5, Ex. 9.)

                                                  -3-
No. 11-3278
Cobb v. Warden

        While his motion to the Ohio Supreme Court was pending, Cobb filed a pro se application

to reopen his case before the Ohio Court of Appeals, pursuant to Ohio Rule of Appellate Procedure

26(B), arguing that his appellate counsel was ineffective for failing to raise his due process claim on

direct appeal. (Rule 26(B) App., Dist. Ct. Docket No. 5, Ex. 10.) He later amended this application

to argue additionally that his appellate counsel was ineffective for failing to argue that the trial court

erred in imposing separate sentences for his offenses, in violation of the constitutional prohibition

of double jeopardy. (Id. at 3.) In support of this claim, he cited to State v. Cabrales, No. C-050682,

2007 WL 624995 (Ohio. Ct. App. Mar. 2, 2007), a case that had been recently decided by the First

Appellate District, which found that trafficking and possession are allied offenses requiring merger

at sentencing. (Id. at 4.)

        The Ohio Court of Appeals for the Fourth Appellate District denied Cobb’s Rule 26(B)

application, noting that Ohio law in that appellate district at that time did not hold trafficking and

possession to be allied offenses of similar import. (Entry, Dist. Ct. Docket No. 5, Ex. 14, at 5.)

Consequently, the court held that Cobb was not prejudiced by his counsel’s failure to raise this

argument on direct appeal. Cobb did not appeal that decision to the Ohio Supreme Court. (Rule

26(A) App., Dist. Ct. Docket No. 5, Ex. 15, at 3.)

        In May 2008, the Ohio Public Defender filed a delayed application for reconsideration,

pursuant to Ohio Rule of Appellate Procedure 26(A). (Id. at 1.) That application noted that the Ohio

Supreme Court’s recent decision in Cabrales, 118 Ohio St. 3d 54 (2008), which clarified whether

to merge trafficking and possession offenses, rendered the prior Rule 26(B) ruling in Cobb’s case

erroneous. (Id. at 4.) The Ohio Court of Appeals for the Fourth Appellate District denied Cobb’s

                                                  -4-
No. 11-3278
Cobb v. Warden

Rule 26(A) application, noting that its ruling on Cobb’s Rule 26(B) application was correct under

the laws in existence at the time of its decision. (Order, Dist. Ct. Docket No. 5, Ex. 16, at 2.)

Further, that court noted, Cobb “could have appealed [the] denial of his [Rule 26(B)] application,

but he chose not to do so.” (Id. at 3.) Finally, that court stated that if it “reopened every case

potentially affected by a later decision from the [Ohio] Supreme Court, the finality of every judgment

becomes suspect.” (Id.) The Ohio Supreme Court dismissed Cobb’s appeal of that decision “as not

involving any substantial constitutional question.” (Ohio v. Cobb, Case No. 2008-1575, Dist. Ct.

Docket No. 5, Ex. 18.)

       In late 2008, Cobb filed his federal petition for a writ of habeas corpus in the district court,

raising two grounds. Cobb argued that the trial court’s denial of his motion to substitute counsel,

and the Ohio Court of Appeals’ failure to order a resentencing in light of the Cabrales decision, were

unreasonable applications of clearly established federal law. (Pet., Dist. Ct. Docket No. 2, at 16.).

The magistrate judge disagreed and recommended denial of the petition. (R&R, Dist. Ct. Docket

No. 12.) The district court adopted the magistrate judge’s report and recommendation, and also

denied the petition. (Order adopting R&R, Dist. Ct. Docket No. 23.) This appeal followed.

                                          III. ANALYSIS

       Because Cobb filed his habeas petition after the enactment of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), AEDPA’s provisions apply to his case. Murphy v. Ohio, 551

F.3d 485, 493 (6th Cir. 2009). This court in Murphy set out the standard of review under AEDPA

as follows:



                                                -5-
No. 11-3278
Cobb v. Warden

       Under AEDPA, a federal court may grant a writ of habeas corpus with respect to a
       “claim that was adjudicated on the merits in state court proceedings” if the state
       court’s decision “was contrary to, or involved an unreasonable application of, clearly
       established Federal law, as determined by the Supreme Court of the United States.”
       28 U.S.C. § 2254(d)(1). A habeas petition may also be granted if the state court’s
       decision “was based on an unreasonable determination of the facts in light of the
       evidence presented in the State court proceeding.” Id. § 2254(d)(2). A state-court
       decision is contrary to clearly established federal law “if the state court applies a rule
       that contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the
       state court confronts a set of facts that are materially indistinguishable from a
       decision of [the Supreme] Court and nevertheless arrives at a result different from
       [that] precedent.” Williams [v. Taylor, 529 U.S. 362, 405 (2000)]. A state-court
       decision is an unreasonable application of clearly established federal law if it
       “correctly identifies the governing legal rule but applies it unreasonably to the facts
       of a particular prisoner’s case,” id. at 407–08, or if it “either unreasonably extends
       or unreasonably refuses to extend a legal principle from Supreme Court precedent to
       a new context,” Seymour v. Walker, 224 F.3d 542, 549 (6th Cir. 2000).

Id. at 493–94. And, as the Supreme Court recently explained, our review under § 2254(d)(1) is

“limited to the record that was before the state court.” Cullen v. Pinholster, ––– U.S. ––––, 131

S. Ct. 1388, 1398 (2011).

A. Substitution of Counsel

       Cobb first argues that the Ohio Court of Appeals erred in reviewing the trial court’s decision

to deny Cobb’s motion for substitution of counsel. (Cobb Br. 23.) The parties do not dispute that

Cobb properly exhausted this issue in state court. It is therefore preserved for review.

       The Ohio Court of Appeals, the highest state court to address this issue on the merits,

considered several different factors in denying relief. (Ohio v. Cobb, Ohio 4th App., Dist. Ct.

Docket No. 5, Ex. 7.) These included the timeliness of the motion; the failure to indicate the length

of the continuance requested; inconvenience to the witnesses, opposing counsel, and the court; the

trial court’s authority to control its own docket; the lack of a conflict between Cobb and his

                                                 -6-
No. 11-3278
Cobb v. Warden

appointed counsel, who represented Cobb throughout all pretrial proceedings; and appointed

counsel’s failure to voice any need for a continuance during the pretrial hearings. (Id. at 6-7.)

        “The Sixth Amendment requires that a defendant have a reasonable opportunity to employ

counsel of his choosing.” Henness v. Bagley, 644 F.3d 308, 321 (6th Cir. 2011) (citing Chandler

v. Fretag, 348 U.S. 3, 10 (1954)). In analyzing whether a state trial court unreasonably applied

clearly established federal law when it denied a defendant’s motion to substitute counsel, the

following four factors are controlling: (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) a balancing of the accused’s right to counsel of his choice and the public’s interest in the

prompt and efficient administration of justice. Id. (citing United States v. Vasquez, 560 F.3d 461,

466 (6th Cir. 2009)). If the trial court erroneously deprived the defendant of his counsel of choice,

the defendant need not additionally show that the error prejudiced him. United States v. Gonzalez-

Lopez, 548 U.S. 140, 146 (2006). We address each of these issues in turn.

        1. Timeliness of the motion

        The parties do not dispute that Cobb’s motion for substitution of counsel occurred on the

morning that his trial was set to begin. But, the hearing in consideration of that motion reveals that

Cobb’s counsel had previously requested a continuance at the pretrial hearing in light of the state’s

supplemental discovery that was turned over only four days prior. (Counsel Substitution Hrg., Dist

Ct. Docket No. 5, at 6.) Cobb’s appointed counsel told the court, in light of the state’s assertion that

the parties were in agreement over the May 8 trial date, “I asked you about waiving time and you said

                                                 -7-
No. 11-3278
Cobb v. Warden

because of the crowded docket the Court is going forward.” (Id.) Neither the trial court nor the state

contested this statement. (Id.)

        No court—not the Ohio Court of Appeals, the Ohio Supreme Court, or the district court—has

considered this statement, even though it has always been part of the trial court record. The Ohio

Court of Appeals even stated, in a footnote, that “[h]ad counsel made a motion for a continuance

[upon receipt of the supplemental discovery], the trial court would have been hard pressed to justify

denying it. . . . [i]n light of the last minute disclosures by the state . . . . ” (Ohio v. Cobb, Ohio 4th

App., Dist. Ct. Docket No. 5, Ex. 7, at 7 n.1.) And although the pretrial hearing transcript is not

before us, the state conceded that Cobb’s appointed counsel had previously asked for a continuance.

In its brief to the Ohio Court of Appeals, the state acknowledged that “a continuance was discussed

at a prior pre-trial conference . . . .” (Appellee Br., Ohio v. Cobb, Ohio 4th App., Dist. Ct. Docket

No. 5, Ex. 6, at 7.)

        This means, then, that the Ohio Court of Appeals, which was presented with evidence of the

prior request for a continuance, and which specifically stated that it likely would have reversed if

there had been a prior request for a continuance, erred in its assessment of the timeliness of Cobb’s

request to substitute counsel. All three requests—the pretrial motion for a continuance, the May 8

motion to substitute counsel, and the May 8 motion for a continuance—arose out of the state’s

supplemental discovery provided only four days before the trial was set to begin. The requests could

not have been more timely. The Ohio Court of Appeals improperly ascribed fault to Cobb for failing

to bring his motion earlier, yet failed to recognize that the only reason that Cobb’s motion to



                                                  -8-
No. 11-3278
Cobb v. Warden

substitute counsel was untimely was because the trial court, as the Ohio Court of Appeals itself

recognized, improperly denied the pretrial continuance.

        We have previously noted that “[i]f the defendant’s motion would necessitate a last-minute

continuance, the trial judge’s actions are entitled to extraordinary deference.” Henness, 644 F.3d at

321 (quoting Vasquez, 560 F.3d at 466). Such deference may be overcome only if the trial court

engages in “an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable

request for delay . . . .” Vasquez, 560 F.3d at 466 (quoting Morris v. Slappy, 461 U.S. 1, 11-12

(1983)). And although Cobb moved the court to substitute counsel on the morning of his trial, this

was (1) after he had previously requested a continuance; (2) only four days after receiving

supplemental discovery from the state; (3) only twenty-four days after his arraignment; and (4) only

nineteen days after receiving initial discovery. Given the context, we cannot say that his request was

untimely. And there can also be no argument that Cobb’s request to substitute counsel in light of

the new evidence, and in light of his appointed counsel’s understandable inability to prepare

adequately for trial, was a justifiable request for delay. It cannot be said that fairminded jurists could

disagree that this factor weighs strongly in Cobb’s favor.

        2. Adequacy of the court’s inquiry

        The trial court’s analysis as to why Cobb’s motion to substitute counsel should be denied is

limited to the following:

        I also 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.


                                                  -9-
No. 11-3278
Cobb v. Warden

(Counsel Substitution Hrg., Dist Ct. Docket No. 5, at 6.) The trial court did not comment on Cobb’s

appointed counsel’s statement that he lacked time to prepare adequately because of the state’s

supplemental discovery. The trial court also did not comment or hear argument on Cobb’s retained

counsel’s argument that Cobb was “concerned that a conflict of interest exists as a result of

[appointed counsel’s] representation of both himself and a key prosecution witness’s husband.”

(Mot. for leave, Dist. Ct. Docket No. 5, Ex. 2, at 2.)

       The Ohio Court of Appeals did not discuss the adequacy of the trial court’s inquiry. (Ohio

v. Cobb, Ohio 4th App., Dist. Ct. Docket No. 5, Ex. 7.) The magistrate judge noted that the trial

court “did not conduct an extensive inquiry into the substance of petitioner’s complaint about his

court-appointed counsel.” (R&R, Dist. Ct. Docket No. 12, at 15.) The district court agreed with this

assessment. (Order adopting R&R, Dist. Ct. Docket No. 23, at 8.)

       This Court’s previous decisions require only that the trial court “allow a defendant the

opportunity to explain the attorney-client conflict as he perceives it.” United States v. Marrero, 651

F.3d 453, 465 (6th Cir. 2011) (citing Vasquez, 560 F.3d at 467; Chambers, 441 F.3d 438, 447 (6th

Cir. 2006); Saldivar-Trujillo, 380 F.3d 274, 278 (6th Cir. 2004)). But the trial court in those cases

did far more than the trial court here. Vasquez, 560 F.3d at 467 (“The record demonstrates that the

district court engaged in multiple lengthy discussions with [the defendant and attorney] that span

many transcript pages regarding their alleged conflicts.”); Chambers, 441 F.3d at 447 (“[T]he record

demonstrates that the district court engaged in a discussion with the defendant and counsel that

covers numerous pages of transcript.”); Saldivar-Trujillo, 380 F.3d at 278 (“[T]he district court

summarized [the defendant’s complaints] and allowed [the defendant], his defense counsel, and the

                                                - 10 -
No. 11-3278
Cobb v. Warden

prosecutor the opportunity to address the complaint at issue.”). We have further held that our

assessment of the trial court’s inquiry is contingent upon the trial court “inquir[ing] into [the

defendant’s] statements and ma[king] explicit findings . . . .” Benitez v. United States, 521 F.3d 625,

635 (6th Cir. 2008).

       Here, the trial court’s statements were limited to lamenting the inconvenience to the court

that a substitution of counsel would cause, and it did not address either of Cobb’s bases for the

request. There was neither discussion nor findings as to appointed counsel’s inability to prepare or

the alleged conflict of interest. Although in previous cases we can be assured that the trial court

heard, considered, and discussed the reasons for the conflict, the transcript here precludes such

assurances. So this factor, too, weighs in Cobb’s favor.

       3. Total lack of communication

       The Ohio Court of Appeals noted that “the record does not indicate that a conflict existed

between Cobb and his appointed counsel, who represented Cobb throughout all pretrial

proceedings.” (Ohio v. Cobb, Ohio 4th App., Dist. Ct. Docket No. 5, Ex. 7, at 6.) We note that the

test articulated in Vasquez and Saldivar-Trujillo is perhaps inapplicable here because the basis of the

substitution request is the supplemental discovery and appointed counsel’s inability to prepare and

not an irreconcilable conflict between Cobb and his attorney. Regardless, we cannot say that the

Ohio Court of Appeals was unreasonable in its conclusion. This factor weighs against Cobb.

       4. Cobb’s rights balanced against the efficient administration of justice

       The Ohio Court of Appeals noted that a substitution of counsel and continuance would have

“inconvenienced the witnesses, opposing counsel, and the court” and that rescheduling would be

                                                - 11 -
No. 11-3278
Cobb v. Warden

difficult. (Ohio v. Cobb, Ohio 4th App., Dist. Ct. Docket No. 5, Ex. 7, at 6-7.) It did not consider

Cobb’s rights when conducting its analysis. The magistrate judge similarly did not consider this

fourth factor, finding only that because the first three factors weighed against Cobb, the trial court

acted “in favor of the public’s interest in the prompt and efficient administration of justice.” (R&R,

Dist. Ct. Docket No. 12, at 15.) The district court simply stated that “the trial court weighed all the

factors and acted within its discretion” to deny the motion in favor of the public’s interest. (Order

adopting R&R, Dist. Ct. Docket No. 23, at 8.) No court has in this case more than facially

considered this issue.

       Cobb was charged with major offenses. The parties do not dispute that four days before his

trial was set to begin, the state provided supplemental discovery to Cobb’s appointed counsel

alluding to the state’s intent to introduce evidence of “other acts.” The parties also do not dispute

that Cobb’s appointed counsel only then knew of the number of witnesses that the state planned to

have testify. In light of this, Cobb’s appointed counsel requested, at the pretrial hearing, a

continuance so that he could adequately prepare. But, because of a heavy caseload in the

prosecutor’s office and its own crowded docket, the trial court denied the request. As the Ohio Court

of Appeals made clear in a footnote, it would have considered the trial court’s decision with more

“rigorous scrutiny” had it realized that appointed counsel had made a pretrial request. Ohio v. Cobb,

Ohio 4th App., Dist. Ct. Docket No. 5, Ex. 7, at 7, n.1.) Appointed counsel then prepared all

weekend for the trial, but still felt that he could not mount an adequate defense. During this time,

Cobb’s family, realizing that the supplemental discovery made the case against Cobb stronger than



                                                - 12 -
No. 11-3278
Cobb v. Warden

previously expected, collected funds to hire an attorney. (Counsel Substitution Hrg., Dist Ct. Docket

No. 5, at 4.)

        The trial court’s inquiry in denying the motion for substitution focused only on the delay in

administering justice. But, less than four weeks had passed since Cobb had been arraigned and less

than three weeks had passed since initial discovery had been provided to Cobb. (Id. at 3.) Although

a grant of the request would have delayed the administration of justice, our analysis of this fourth

factor must consider both Cobb’s rights and the rights of the public. See Marrero, 651 F.3d at 467.

Any substitution of counsel will “almost certainly necessitate a last-minute continuance,” United

States v. Whitfield, 259 F. App’x 830, 834 (6th Cir. 2008) (quoting United States v. Pierce, 60 F.3d

886, 891 (1st Cir. 1995)), so more than simply a delay must be shown to justify denying a motion

to substitute counsel. If not, then this factor would always weigh against the defendant. The state

had not experienced multiple continuances or other delays in bringing Cobb to trial; given the

belated discovery practices and the denial of a previous motion for a continuance, this factor also

weighs strongly in Cobb’s favor.

        In sum, the Ohio Court of Appeals unreasonably applied Supreme Court precedent when it

concluded that Cobb had not experienced an erroneous deprivation of his counsel of choice. See

Gonzalez-Lopez, 548 U.S. at 144 (“[A]n element of the [the right to counsel] is the right of a

defendant who does not require appointed counsel to choose who will represent him.”); Morris, 461

U.S. at 14 (“Of course, inconvenience and embarrassment to witnesses cannot justify failing to

enforce constitutional rights of an accused: when prejudicial error is made that clearly impairs a

defendant’s constitutional rights, the burden of a new trial must be borne by the prosecution, the

                                               - 13 -
No. 11-3278
Cobb v. Warden

courts, and the witnesses; the Constitution permits nothing less.”); Chandler, 348 U.S. at 10

(“Regardless of whether petitioner would have been entitled to the appointment of counsel, his right

to be heard through his own counsel was unqualified.”). Considering that his motion was as timely

as it could have been given the supplemental discovery, the inadequacy of the trial court’s

consideration of his request, and the balancing of Cobb’s rights against the interest of the public, we

conclude that the Ohio Court of Appeals improperly and unreasonably affirmed the trial court’s

denial of Cobb’s motion to substitute counsel.

       We further note that, although not raised by the parties, the Ohio Court of Appeals based its

decision “on an unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(2). For a petitioner to prevail on a claim brought under

§ 2254(d)(2), “it is not enough for the petitioner to show some unreasonable determination of fact;

rather the petitioner must show that the resulting state court decision was ‘based on’ that

unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).

       As already explained, Cobb presented a record to the Ohio Court of Appeals demonstrating

that his appointed counsel had requested a continuance at the pretrial hearing. And the state, in its

brief to the Ohio Court of Appeals, conceded that such a request occurred. But this shows only that

there was an unreasonable determination of fact—it does not, by itself, require us to conclude that

the Ohio Court of Appeals based its decision on such a determination. For that, we look to the Ohio

Court of Appeals’ footnote, in which that court declared that it would have scrutinized the trial

court’s decision with far more rigor if a continuance at pretrial had been requested. This statement



                                                 - 14 -
No. 11-3278
Cobb v. Warden

leads us to the conclusion that the Ohio Court of Appeals based its decision to affirm the trial court’s

denial of Cobb’s motion to substitute on an unreasonable determination of the facts.

B. Double Jeopardy

        Cobb further asserts that the Ohio Court of Appeals erred in upholding his sentence, in light

of a recent Ohio Supreme Court ruling that merges certain trafficking and possession offenses. In

light of our conclusion above, we need not reach this issue.

                                         III. CONCLUSION

        For the reasons stated above, the judgment of the district court is REVERSED and a

conditional writ of habeas corpus is hereby GRANTED, giving the State of Ohio 180 days from the

date of this order to allow Cobb to withdraw his plea of no contest and proceed to trial or, failing

that, to release him from custody.




                                                 - 15 -
