Shoop v. Cassano ( 2022 )

Cite as: 596 U. S. ____ (2022) 1
Per, J.,
THOMAS Curiam
dissenting
SUPREME COURT OF THE UNITED STATES
TIM SHOOP, WARDEN v. AUGUST CASSANO
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 21–679. Decided June 21, 2022
The motion of respondent for leave to proceed in forma
pauperis is granted. The petition for a writ of certiorari is
denied.
JUSTICE THOMAS, with whom JUSTICE ALITO joins, dis-
senting from denial of certiorari.
In 1997, respondent August Cassano was serving a life
sentence in Ohio for aggravated murder. The prison as-
signed Cassano a new cellmate, Walter Hardy. A few days
later, Cassano murdered Hardy by stabbing him 75 times
with a prison shank. An Ohio jury convicted Cassano of
capital murder, and the trial court sentenced him to death.
Yet, more than 20 years later, the Sixth Circuit granted
Cassano habeas relief because it thought that the state trial
court had ignored Cassano when he purportedly invoked
his right to represent himself at trial. In doing so, the Sixth
Circuit failed to treat the state-court adjudication of Cas-
sano’s self-representation claim with the deference de-
manded by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA).
To correct this manifest error, I would grant Ohio’s peti-
tion and summarily reverse the Sixth Circuit. Therefore, I
respectfully dissent from denial of certiorari.
I
Cassano is no stranger to violence. In 1976, he and an
accomplice shot bartender Donald Pinto through the heart
during a heist in Akron, Ohio. An Ohio jury convicted Cas-
sano of aggravated murder and robbery, and he received a
life sentence. State v. Cassano, 1976 WL 188932, *1–*2
2 SHOOP v. CASSANO
THOMAS, J., dissenting
(Ohio App., Nov. 10, 1976). Over his first 21 years in cus-
tody, Cassano participated in over 100 fights and stabbed
four people. Once, he stabbed a fellow inmate approxi-
mately 32 times before the victim escaped. State v. Cas-
sano, 96 Ohio St. 3d 94, 98, 2002-Ohio-3751, ¶¶3, 25, 772
N. E. 2d 81, 87, 89.
In 1997, prison officials assigned Walter Hardy to be Cas-
sano’s cellmate. That decision angered Cassano, who said
he “ ‘didn’t want that snitching ass faggot in his cell.’ ” Id.,
at 95, 772 N. E. 2d, at 87. Cassano told other inmates that
if Hardy was not removed, he would “ ‘remove [Hardy] him-
self.’ ” Ibid. It was no bluff. A few days later, a corrections
officer responded to a scuffle in the cell. He found Cassano
standing over Hardy and stabbing him with a shank.
Hardy pleaded for help, yelling, “ ‘he’s killing me, he’s stab-
bing me.’ ” Ibid., 772 N. E. 2d, at 88. As the officer waited
for backup, he ordered Cassano to stop. Ibid. But Cassano
kept stabbing Hardy until backup arrived and the officers
entered the cell. Hardy later succumbed to the roughly 75
stab wounds Cassano inflicted on his head, neck, back, and
chest. Id., at 96, 772 N. E. 2d, at 88. A nurse checked Cas-
sano for injuries. Ibid. His only complaint was that his
shoulder was tired. Ibid.
State prosecutors charged Cassano with capital murder
in March 1998, and the state trial court appointed him de-
fense counsel. But, by May 14, 1998, Cassano no longer ap-
proved of his appointed counsel. That day, he filed two
pro se motions. One, labeled a “Waiver of Counsel,” said
that Cassano wanted to control his own defense. The other,
labeled a “Motion for Appointment of Substitute Counsel,”
said that his counsel was ineffective and asked the court to
appoint him another lawyer. When the old counsel with-
drew, the trial court appointed the requested attorney along
with two others. The court did not explicitly rule on the
motion for waiver of counsel. See 1 F. 4th 458, 462–463
(CA6 2021).
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THOMAS, J., dissenting
On September 25, 1998, Cassano filed another motion,
this time requesting to participate in the trial as co-counsel
alongside his new attorneys. During a hearing that day, he
reiterated that he had “a right to be co-counsel with [his]
attorneys.” App. to Pet. for Cert. 260a. The trial court re-
sponded that Cassano was “not going to represent [himself]
in this matter,” and denied the motion. Ibid.On April 23, 1999—three days before trial—Cassano told
the trial court that he did not think his lead attorney had
prepared adequately for trial. Cassano said: “I would like
my lead counsel to be here and be prepared when my trial
starts.” Id., at 264a. A short time later, the trial court
asked whether Cassano had anything else to say. Cassano
responded: “Is there any possibility I could represent my-
self? I’d like that to go on record.” Id., at 265a. The judge
refused, explaining that he and Cassano had “talked about
it before” and that he would “be doing [Cassano] a disservice
by allowing that.” Ibid. Neither the court nor the parties
discussed self-representation again. See id., at 265a–271a.
A jury then found Cassano guilty of aggravated murder,
and he was sentenced to death.
Cassano appealed. As relevant here, he brought a claim
that the trial court had violated his right to represent him-
self by denying what he argued were three motions request-
ing self-representation. The Supreme Court of Ohio af-
firmed in a published opinion. In a section labeled
“Preliminary Issues: Self-representation,” the court de-
scribed the three alleged invocations before “reject[ing]
Cassano’s claim that his rights of self-representation were
violated.” Cassano, 96 Ohio St. 3d, at 98, 100, 772 N. E. 2d,
at 90, 91.
Cassano later filed a federal habeas petition under 28
U. S. C. §2254. His “First Claim for Relief ” argued that the
state trial court violated his right to self-representation in
the lead-up to trial, in violation of Faretta v. California, 422
U. S. 806 (1975). See Amended Pet. for Habeas Corpus in
4 SHOOP v. CASSANO
THOMAS, J., dissenting
Cassano v. Bradshaw, No. 1:03–cv–1206 (ND Ohio), ECF
Doc. 138, p. 15. The District Court for the Northern District
of Ohio reviewed the Supreme Court of Ohio’s decision re-
jecting Cassano’s Faretta arguments on direct appeal. Ap-
plying AEDPA deference, the District Court denied relief
but issued a certificate of appealability on Cassano’s
Faretta claim. Cassano v. Bradshaw, 2018 WL 3455531,
*18–*26, *57 (July 18, 2018).
A divided panel of the Court of Appeals reversed and con-
ditionally granted Cassano’s petition. First, it found that
the Supreme Court of Ohio had not, in fact, addressed Cas-
sano’s alleged invocation of the right to self-representation
in his May 1998 waiver of counsel motion. 1 F. 4th, at 467–
468. The panel majority then held that Cassano had in-
voked his right to self-representation clearly and unequivo-
cally despite the simultaneous, contradictory motion for
substitute counsel. Id., at 468–470. Second, regarding the
September 1998 motion, the Court of Appeals conceded that
Cassano had requested only “a form of hybrid representa-
tion,” and so the Supreme Court of Ohio’s “conclusion that
Cassano failed to invoke his right to self-representation” in
that motion was “reasonable.” Id., at 471. Finally, the
Court of Appeals reviewed the state high court’s analysis of
Cassano’s April 1999 motion. The Court of Appeals pur-
ported to apply AEDPA deference, but still held that “noth-
ing about Cassano’s [April] request was unclear or equivo-
cal, and no fairminded jurist could conclude otherwise.” Id.,
at 473. The Court of Appeals conditionally granted habeas
relief unless Ohio retried this quarter-century-old capital
case within six months. Id., at 479.
Judge Siler dissented, arguing that the panel failed to
properly apply AEDPA deference to the Supreme Court of
Ohio’s decision. See id., at 479–480. Judge Griffin and
Judge Thapar (joined by Judge Nalbandian) dissented from
the denial of rehearing en banc. See 10 F. 4th 695, 696 (CA6
Cite as: 596 U. S. ____ (2022) 5
THOMAS, J., dissenting
2021). Judge Thapar maintained that the “panel disre-
garded federal law, spurned Supreme Court precedent, and
trampled on Ohio’s state courts” in order to “erroneously
g[i]ve postconviction relief to a repeat murderer.” Id., at
700. The State filed an application with JUSTICE
KAVANAUGH for a recall and stay of the Court of Appeals’
mandate, which he granted pending the disposition of a
writ of certiorari. 594 U. S. ___ (2021).
II
AEDPA significantly limits federal courts’ power to upset
state criminal convictions. When a state court adjudicates
a state prisoner’s federal claim on the merits, a federal
court may not grant habeas relief unless the adjudication of
the claim resulted in a decision (1) “contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by” this Court’s decisions, or (2) “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). As relevant here, a decision is “contrary
to” clearly established federal law if it “applies a rule differ-
ent from the governing law set forth in our cases.” Bell v.
Cone, 535 U. S. 685, 694 (2002). A decision “involve[s] an
unreasonable application of . . . clearly established law”
only if “there is no possibility fairminded jurists could disa-
gree that the state court’s decision conflicts with this
Court’s precedents.” Harrington v. Richter, 562 U. S. 86,
102 (2011).
Under this Court’s precedents, a criminal defendant may
waive his right to counsel and instead represent himself.
See Faretta, 422 U. S., at 835. To exercise that right, a de-
fendant must “ ‘knowingly,’ ” “intelligently,” “clearly[,] and
unequivocally” invoke it before the trial court. Ibid.; see
also Raulerson v. Wainwright, 469 U. S. 966 (1984) (Mar-
shall, J., dissenting from denial of certiorari) (a defendant
6 SHOOP v. CASSANO
THOMAS, J., dissenting
has a right “to proceed without counsel if he clearly and un-
equivocally asks to do so”).
A
Applying AEDPA, this case is straightforward. To begin,
the Supreme Court of Ohio expressly addressed and adju-
dicated the merits of Cassano’s various Faretta arguments.
The state high court labeled a section of its decision “Pre-
liminary Issues: Self-representation.” Cassano, 96 Ohio St.
3d, at 98, 772 N. E. 2d, at 90. It then described the May
1998 waiver of counsel and the dueling request for substi-
tute counsel filed the same day. Id., at 99, 772 N. E. 2d, at
90–91. It also described Cassano’s September 1998 and
April 1999 motions. See ibid., 772 N. E. 2d, at 91. After
recounting all three alleged invocations of the right to self-
representation, the court then cited state and federal case
law derived from Faretta and “reject[ed] Cassano’s claim
that his rights of self-representation were violated.” Id., at
100, 772 N. E. 2d, at 91. The opinion leaves no doubt that
the state high court reached and decided the merits of Cas-
sano’s Faretta claim.
But even if the Supreme Court of Ohio’s opinion had not
“expressly address[ed]” Cassano’s Faretta claim, “a federal
habeas court must presume that the federal claim was ad-
judicated on the merits” when the state court rejects it.
Johnson v. Williams, 568 U. S. 289, 301 (2013). Only if in-
disputable evidence “leads very clearly to the conclusion
that [the] federal claim was inadvertently overlooked in
state court” may a federal court review the claim de novo.
Id., at 303. Here, it is obvious that the Supreme Court of
Ohio did not “inadvertently overloo[k]” Cassano’s Faretta
claim or any of the claim’s supporting evidence. At the very
least, nothing “very clearly” establishes that court’s inad-
vertence.
Because the Supreme Court of Ohio adjudicated Cas-
sano’s Faretta claim on the merits, AEDPA’s deferential
Cite as: 596 U. S. ____ (2022) 7
THOMAS, J., dissenting
standard applies. The court’s merits decision easily sur-
vives review. No one meaningfully disputes that the court
applied the correct governing rule set forth in Faretta. See
Cassano, 96 Ohio St. 3d, at 99, 772 N. E. 2d, at 90. And a
fairminded jurist could readily find that the Supreme Court
of Ohio applied that rule reasonably.
To start, Cassano filed his May 1998 motion for waiver of
counsel simultaneously with his request for substitute
counsel. (They were docketed within a minute of one an-
other.) Neither motion referenced the other. Given these
simultaneous, contradictory motions, a fairminded jurist
could easily agree with the Supreme Court of Ohio that Cas-
sano did not clearly and unequivocally invoke his right to
represent himself. In fact, two federal jurists would have
held that Cassano made no clear and unequivocal demand
to represent himself “no matter what standard of review”
applies. 10 F. 4th, at 702 (opinion of Thapar, J.).
Moreover, a fairminded jurist could agree with the Su-
preme Court of Ohio that Cassano’s April 1999 question to
the state trial court—“Is there any possibility I could repre-
sent myself?” App. to Pet. for Cert. 265a—“was not an ex-
plicit and unequivocal demand for self-representation,”
Cassano, 96 Ohio St. 3d, at 100, 772 N. E. 2d, at 91. Cas-
sano asked a “tepid question,” and “[q]uestions are not de-
mands.” 10 F. 4th, at 703 (opinion of Thapar, J.). For ex-
ample, a fairminded jurist could reasonably think that
Cassano was asking “a contingent question inquiring
whether self-representation [was] even an option for the fu-
ture.” Id., at 698 (opinion of Griffin, J.). In that vein, the
rest of the exchange suggests equivocation. Shortly before
Cassano asked about self-representation, he said: “I would
like my lead counsel to be here and be prepared when my
trial starts.” App. to Pet. for Cert. 264a. Much like Cas-
sano’s conflicting filings in May 1998 left unclear whether
he did or did not want counsel, Cassano’s conflicting state-
ments in April 1999 left unclear whether he did or did not
8 SHOOP v. CASSANO
THOMAS, J., dissenting
continue to want counsel as the trial loomed.
Ultimately, the Supreme Court of Ohio’s decision was one
over which fairminded jurists could disagree. That is suffi-
cient to preclude habeas relief under AEDPA.
B
The Court of Appeals erred when it held otherwise. To
begin, the Court of Appeals plainly erred when it declined
to apply AEDPA deference because, in its view, the Su-
preme Court of Ohio had “ ‘inadvertently overlooked’ ” Cas-
sano’s May 1998 dueling motions. 1 F. 4th, at 468 (quoting
Williams, 568 U. S., at 303). The Court of Appeals pointed
to two reasons for its decision. First, because the Supreme
Court of Ohio “explicitly address[ed] whether Cassano in-
voked his right to self-representation on either September
25, 1998 or April 23, 1999,” and did not as explicitly address
the May 1998 motions, the Court of Appeals thought that
the state court must have inadvertently overlooked those
motions. 1 F. 4th, at 468. Second, the Court of Appeals
observed that the Supreme Court of Ohio “referred to Cas-
sano’s September 25, 1998 motion as the ‘only written mo-
tion’ and his statements at the April 23, 1999 hearing as
the only time he ‘mention[ed] that he wanted to represent
himself.’ ” Ibid. (quoting Cassano, 96 Ohio St. 3d, at 100,
772 N. E. 2d, at 91).
Even assuming that the Supreme Court of Ohio did not
expressly address Cassano’s Faretta claim, but see supra,
at 5–6, the Court of Appeals did not properly apply the pre-
sumption of merits adjudication. As stated above, that pre-
sumption is rebutted only by “evidence lead[ing] very
clearly to the conclusion that [the] federal claim was inad-
vertently overlooked in state court.” Williams, 568 U. S., at
303 (emphasis added). Simply “issu[ing] an opinion that
addresses some issues but does not expressly address [a]
federal claim in question” cannot alone be evidence leading
“very clearly” to the conclusion that the federal claim was
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THOMAS, J., dissenting
inadvertently overlooked. Id., at 292, 303. To the extent
the Court of Appeals relied on what it perceived to be the
lack of any explicit discussion of the May 1998 motions, it
erred.
As for the Supreme Court of Ohio’s statements regarding
the September 1998 motion and the April 1999 hearing,
this evidence also falls far short of showing that the state
high court did not adjudicate the merits of Cassano’s
Faretta claim based on the May 1998 motions. Again, in
the section entitled “Preliminary Issues: Self-representa-
tion,” the Supreme Court of Ohio specifically described the
dueling motions that Cassano filed. See Cassano, 96 Ohio
St. 3d, at 99–100, 772 N. E. 2d, at 90–91. Only nine sen-
tences later the court “reject[ed] Cassano’s claim that his
rights of self-representation were violated.” Id., at 100, 772
N. E. 2d, at 91. It is implausible that the court neglected or
forgot about what it had just recounted. The absence of fur-
ther, specific discussion is more likely a reflection of the
state high court’s judgment that the argument was “too in-
substantial to merit [further] discussion” once already
flagged in the opinion. Williams, 568 U. S., at 299. The
May 1998 waiver of counsel, simultaneously contradicted
by a request for new counsel, simply did not count for much
of anything. At the very least, the statements identified by
the Court of Appeals were insufficient to overcome the pre-
sumption of merits adjudication by “very clearly” showing
that the Supreme Court of Ohio overlooked the May 1998
motions, instead of tersely dismissing them. Id., at 303.
The Court of Appeals likewise erred when, purporting to
apply AEDPA deference to the Supreme Court of Ohio’s as-
sessment of Cassano’s April 1999 motion, it nevertheless
found the state court’s decision objectively unreasonable.
See 1 F. 4th, at 474. It bears repeating: “A state court’s
determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’
on the correctness of [that] decision.” Harrington, 562
10 SHOOP v. CASSANO
THOMAS, J., dissenting
U. S., at 101 (quoting Yarborough v. Alvarado, 541 U. S.
652, 664 (2004)). As discussed above, supra, at 7, the Su-
preme Court of Ohio’s decision that Cassano’s tepid April
1999 question on the eve of trial “was not an explicit and
unequivocal demand for self-representation,” Cassano, 96
Ohio St. 3d, at 100, 772 N. E. 2d, at 91, was “at least debat-
able,” 562 U. S., at 110.
Perhaps recognizing that the substance of Cassano’s
April 1999 motion—a single question—did not suffice, the
Court of Appeals emphasized the “context” in which the
question was asked. 1 F. 4th, at 474. It noted that, at the
earlier September 1998 hearing, the trial court had told
Cassano that he was “ ‘not going to represent [himself] in
this matter,’ ” and that the law did not require the court to
allow him to represent himself. Ibid.; see App. to Pet. for
Cert. 260a. Taking into account that statement and the
court’s “stern admonishment” during the September hear-
ing “that Cassano would never be allowed to even speak in
the courtroom,” the Court of Appeals held that “no fair-
minded jurist could conclude” that Cassano’s April 1999
question “was unclear or equivocal.” 1 F. 4th, at 474.
The Court of Appeals’ analysis is obviously wrong. First,
the Court of Appeals ignored the more immediate context
of the April 1999 hearing, which supports the Supreme
Court of Ohio’s reasoned decision. Cassano equivocated at
the April hearing. He first demanded counsel’s presence at
the trial, then asked about self-representation, and then ac-
cepted counsel’s help. That context suggests equivocation
just as much as his tepid question does.
Second, the “context” that the Court of Appeals chose to
highlight does not help Cassano’s cause. The state trial
court made the September 1998 comments at a hearing in
which it rejected Cassano’s request to be appointed co-coun-
sel with his attorneys, which (as the Court of Appeals itself
recognized) he had no right to demand. See id., at 471; see
McKaskle v. Wiggins, 465 U. S. 168, 183 (1984) (“Faretta
Cite as: 596 U. S. ____ (2022) 11
THOMAS, J., dissenting
does not require a trial judge to permit ‘hybrid’ representa-
tion”). A fairminded jurist could find that those September
1998 comments, made in a hearing about a distinguishable
issue some seven months before, did not somehow trans-
mogrify an ambiguous and equivocal question into a clear
and unequivocal invocation of a constitutional right.
Third, as for the trial court’s conduct at the April 1999
hearing itself, it did not “admonis[h]” Cassano against
“even speak[ing] in the courtroom.” 1 F. 4th, at 474. Ra-
ther, the trial court solicited questions from Cassano. Cas-
sano took that opportunity to complain about his counsel,
demand their presence at his trial, and inquire about self-
representation. See App. to Pet. for Cert. 264a–265a. A
fairminded jurist could find that none of his statements in-
voked his right to self-representation in clear and unequiv-
ocal terms, and that he was not coerced into silence by the
trial court. That is all it takes to satisfy AEDPA.
III
Because the Court of Appeals’ decision was obviously
wrong and squarely foreclosed by our precedent, this case
merits summary reversal. See Presley v. Georgia, 558 U. S.
209, 217 (2010) (THOMAS, J., dissenting); S. Shapiro, K. Gel-
ler, T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme
Court Practice §5.12(c), p. 5–44 (11th ed. 2019) (Shapiro).
In fact, summary reversal is particularly appropriate be-
cause the Court of Appeals “committed [a] fundamental
erro[r] that this Court has repeatedly admonished [it] to
avoid.” Sexton v. Beaudreaux, 585 U. S. ___, ___ (2018) (per
curiam) (slip op., at 7); Shapiro §5.12(c), at 5–45. This is far
from the first time that the Sixth Circuit has failed to apply
the deference that AEDPA and our governing precedents
demand. See, e.g., Rapelje v. Blackston, 577 U. S. 1019,
1021 (2015) (Scalia, J., dissenting from denial of certiorari)
(“The Sixth Circuit seems to have acquired a taste for dis-
regarding AEDPA”). Over the last two decades, we have
12 SHOOP v. CASSANO
THOMAS, J., dissenting
reversed the Sixth Circuit almost two dozen times for fail-
ing to apply AEDPA properly. See 10 F. 4th, at 696–697
(listing cases). Many of those reversals have been sum-
mary. See ibid. The Court should add this case to the list.
Instead, the Court chooses to leave in place a clearly er-
roneous decision that relieves Cassano of his death sen-
tence. In doing so, the Court inflicts a harm on “the State
and its citizens.” Shinn v. Martinez Ramirez, 596 U. S. ___,
___ (2022) (slip op., at 22). By saddling the State with the
risk and expense of retrying a repeat murderer’s quarter-
century-old capital case, the Court permits the Court of Ap-
peals to “intrud[e] on [Ohio’s] sovereignty to a degree
matched by few exercises of federal judicial authority.” Id.,
at ___ (slip op., at 7) (internal quotation marks omitted). At
worst, the State has lost its sovereign right to “enforce soci-
etal norms through criminal law.” Ibid. (internal quotation
marks omitted). At best, if the retrial results in the same
verdict and sentence, the Court will have consigned the
State to several decades’ worth of additional death penalty
appeals. See Ramirez v. Collier, 595 U. S. ___, ___–___
(2022) (THOMAS, J., dissenting) (slip op., at 6–7). Ohio and
its citizens deserve better.
* * *
The Court of Appeals should have faithfully applied
AEDPA deference and denied the writ. Its failure to do so
“illustrate[d] a lack of deference to the state court’s deter-
mination and an improper intervention in state criminal
processes, contrary to the purpose and mandate of AEDPA
and to the now well-settled meaning of and function of ha-
beas corpus in the federal system.” Harrington, 562 U. S.,
at 104. Because I would grant the State of Ohio’s petition
and summarily reverse, I respectfully dissent from denial
of certiorari.