In re Disqualification of Nastoff ( 2012 )


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  • [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).
    2
    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
    3
    SUPREME COURT OF OHIO
    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 4
    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.
    ______________________
    5
    

Document Info

Docket Number: 12-AP-004

Judges: O'Connor

Filed Date: 2/16/2012

Precedential Status: Precedential

Modified Date: 11/12/2024