Opinion
Case No. 4:03 CV 2190, Regarding Docket No. 12 (part), 13.
December 7, 2004
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This case is before the district court on Richard D. Goldberg's opposition to an aggregate 21 month sentence for criminal contempt imposed against him as counsel in four matters before Respondent, Judge Timothy P. Maloney, of the Probate Court division of the Common Pleas Court for Mahoning County, Ohio. Goldberg has filed an amended petition for habeas corpus relief under 28 U.S.C. § 2254, as a person in state custody. Co-respondent, Sheriff Randall Wellington, is responsible for enforcing Judge Maloney's order against Goldberg. Respondents do not contest that they are properly named custodians of petitioner Goldberg.
"This custodian, moreover, is `the person' with the ability to produce the prisoner's body before the habeas court. . . . We summed up the plain language of the habeas statute over 100 years ago in this way: "[T]hese provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary. Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885)." Rumsfeld v. Padilla, ___ U.S. ___, 124 S.Ct. 2711, 2717-2718,159 L.Ed.2d 513 (2004).
Petitioner Goldberg was counsel of record in several cases before Judge Maloney: the Estate of Ellen Rose Mercurio; the Estate of Towanna Williams; the Estate of William R. Hunter and the Estate of Richard C. Lanning, Jr. These cases were consolidated with their related ancillary guardianships.
Briefly summarizing the history leading to the petition, on September 16, 1999, the executrix in the Mercurio Estate filed a concealment of assets complaint pursuant to Ohio Revised Code § 2109.50 alleging that Goldberg had withheld $150,000.00 from a wrongful death settlement. See Estate of Mercurio, 2003 WL 1473694 (Ohio App. 7 Dist. 2003). Also on September 16, 1999, the executrix for the Williams Estate filed a complaint for concealment of assets alleging that Goldberg had withheld $150,000.00 from a March 1999 wrongful death settlement. See Estate of Williams, 2003 WL 1473695 (Ohio App. 7 Dist. 2003). On December 14, 1999 a concealment action was filed by the Probate Court itself in the Lanning Estate alleging that Goldberg had failed to account for $20,000.00 that had been advanced to him in November 1998 for future litigation expenses. See Estate of Lanning, 2003 WL 1473636 (Ohio App. 7 Dist. 2003).
The Hunter Estate proceedings, however, were conducted somewhat differently. In that case a contingent fee agreement was approved by the Probate Court for a medical malpractice and wrongful death settlement of $1.1 million. On December 14, 1998 the Court issued a specific order of distribution which allowed Goldberg attorney fees in excess of $470,000 with the distribution accounting to be filed on or before December 24, 1998. Goldberg, however, failed to file that accounting and a hearing was held on June 8, 1999 regarding Goldberg's failure to comply with the distribution order. Goldberg was present at that hearing but invoked his Fifth Amendment privilege against self-incrimination. Goldberg's counsel, Mr. Ingram and Mr. Dunlap, volunteered that they were not present to challenge court proceedings or challenge the accusation that Goldberg had wrongfully taken money from the Hunter Estate but were there to determine on the evidence and the court orders what sums had to be repaid and that they would pay whatever sums were ordered paid. (See Estate of Hunter, 2003 WL 1473696 (Ohio App. 7 Dist. 2003) and Hunter Ex. 01243, Docket No. 21). On June 17, 1999 Judge Maloney ordered Goldberg to disgorge himself of attorney fees, pay all amounts owed to the guardianship of both minors, and immediately deposit the total sum amounting in excess of $626,000 in a restricted bank account in the estate's name. The judge specifically stated that the parties and counsel were forewarned and cautioned that any failure to fully and literally comply with the orders would be considered in direct contempt of court and dealt with accordingly. A corrected order was issued on October 19, 1999 correcting the amount of attorney fees to be disgorged, which had been understated in the prior order.
The reference to a concealment of assets action involving the Hunter Estate is less clear in the state appellate court's decision, but the record does exhibit the existence of a companion concealment of assets case. (See Hunter Ex. 01527, 01696). However, the record contains no concealment of assets hearing in January 2000 unlike the other three cases before Judge Maloney.
Paralleling (or actually as part of) the concealment actions that were filed in the estates of Mercurio, Williams and Lanning, the Probate Court on January 3, 2000 entered show cause orders which were substantially the same in substance and form ordering, adjudging and decreeing that Goldberg was to show cause before the court in early January, 2000 why he should not be held in contempt for failing to comply with the previous orders of that court. Each order was captioned as a part of its respective probate case and made reference to prior court orders in which Goldberg had been directed to pay, or account for, certain sums of money in those estates (Mercurio, Ex. 1070; Williams Ex. 00149; Lanning Ex. 00740; (Docket Nos. 18-21).
The state appellate court noted that the show cause orders were issued under the concealment of assets cases in the Mercurio and Williams matters. See In re Mercurio, 2003 WL 1473694 ¶ 16; In re Williams, 2003 WL 1473695 ¶ 32. The state appellate court appears to indicate that the Lanning show cause order was also a part of the probate court-initiated concealment of assets case. In re Lanning, 2003 WL 14736366 ¶ 11.
The notice via order to show cause in the Lanning Estate involved Goldberg's failure to file an accounting with the court for the use of $20,000 in future litigation expenses that the Probate Court had authorized. Estate of Lanning, 2003 WL 1473636 ¶ 10, 11(Ohio App. 7 Dist. March 24, 2003).
In the Mercurio Estate, the court ordered Goldberg to show cause why he should not be held in contempt of court for his failure to pay $150,000.00 to the estate. In re Estate of Mercurio, 2003 WL 1473694 ¶ 11 through ¶ 16 (Ohio App. 7 Dist. March 24, 2003). In the Williams Estate, Goldberg was ordered to show cause for failing to distribute the settlement proceeds in the amount of $244,854.20. In re Estate of Williams, 2003 WL 1473695 ¶ 3 through 14 (Ohio App. 7 Dist. March 24, 2003).
In the Hunter Estate, the Probate Court ordered Goldberg to appear and show cause why he should not be held in contempt for the failure to comply with the June 17, 1999 and October 1999 distribution orders to disgorge the attorney fees and distribute a total in excess of $750,000.00 (See note 3).
The judgment entries and orders to appear and show cause in the four estates notified Goldberg of the following violations:
Mercurio: "The Court finds that on June 17, 1999 it issued a Judgment Entry and Orders in the above captioned cause which commanded and ordered, inter alia, that one Richard D. Goldberg do or perform certain acts, to wit: Richard D. Goldberg was ". . . directed and ordered to immediately pay over to Counsel for Decedent's Estate, Attorney Albert J. Ortenzio, the total gross settlement sum of $150,000.00 . . ."
Williams: "The Court finds that on June 17, 1999, it issued a Judgment Entry and Orders in the above captioned cause which commanded and ordered, inter alia, that one Richard D. Goldberg do or perform certain acts, to wit: ". . . that . . . Richard D. Goldberg shall immediately and without any further delays pay over the following sums to the following individuals: (1) to Willis Williams, Sr., . . . $24,854.20; (2) to the Estate of Towanna Williams . . . $50,000.00; to Attorney Michael R. Piccirillo as Guardian for Joshua Williams . . . $150,000.00 . . ."
Lanning: "The Court finds that on November 2, 1998 it issued a Judgment Entry and Orders in the above captioned cause which commanded and ordered, inter alia, that one Richard D. Goldberg do or perform certain acts, to wit: to account and/or receipt for $20,000.00 in advancements of legal expenses to be "accounted for by Richard D. Goldberg . . . upon payment."
Hunter: "The Court finds that on June 17, 1999 it issued a Judgment Entry and Orders in the above captioned cause which commanded and ordered, inter alia, that one Richard D. Goldberg do or perform certain acts, to wit: ". . . presently denied any and all attorney's fees . . . ORDERED to disgorge and repay the sum of $349,250.00, together with those sums due and not yet paid for the benefit of the Minors (Jason: $138,562.50; Sheena; $138,562.51) and therefore in the total sum of $626,375.01, over to Attorney William G. Kalasky . . ." On October 19, 1999 in this Court's Amended Judgment Entry and Orders Mr. Goldberg was Ordered to repay Attorney's fees of $473,033.33, and therefore the total sum of $750,158.34."
In the Hunter Estate the January 3, 2000 order to show cause was scheduled for a hearing on February 2, 2000, not January 2000, the dates set for the other estate cases. (See Hunter Ex. 0523, Docket No. 21). Whereas the other three January 2000 contempt hearings were consolidated with their related concealment of assets cases (Mercurio Ex. 00999-01001, 01072-010074, Williams Ex. 00151-00153, Lanning Ex. 00742-00743).
At the initial January hearings Goldberg was represented but not present because at the time he was incarcerated in federal prison in another matter, U.S. v. Richard D. Goldberg, Case No. 4:99 CR 182 (N.D. Ohio). Mr. Michael Richards, a court-appointed investigator, testified that Goldberg was not present because he was incarcerated in federal prison in West Virginia. Supplemental hearings were held on February 2, 2000 where Goldberg was both present and represented. When Judge Maloney called Goldberg to testify, Goldberg reasserted his Fifth Amendment privilege against self-incrimination (Mercurio Ex. 00136-01138; Williams Ex. 00177-00179; Lanning Ex. 00764-00767, Hunter Ex. 01598). Goldberg called no witnesses and only argued the defenses of inability to comply and that he could not be imprisoned for debt.
The Probate Court issued its opinions on May 3, 2000 in each of the four estate cases finding that Goldberg's actions in failing to account or pay the sums of money identified in the show cause orders constituted direct contempt. The probate court noted that neither Goldberg nor his counsel objected to the court judicially noticing facts nor raising any objection during the contempt hearing and that "neither Goldberg nor any of his counsel have ever timely requested an opportunity to be heard upon either the propriety or tenor of any of the facts or records to be judicially noticed." (Mercurio Ex. 00141, Williams Ex. 00222, Lanning Ex. 00817-00818, Hunter Ex. 1642). The court stated the object of the contempt process was to challenge Goldberg for offenses against the dignity and authority of the court for repeatedly failing to comply with the law and court orders and to afford Goldberg an opportunity to explain his violations, and should he fail to establish cause therefor to fashion a remedy which satisfies the court to restore its dignity and authority. The probate court found it had inherent authority to find Goldberg in contempt under state law to an extent beyond the legislative grant of authority, citing Cincinnati v. Cincinnati District Council, 35 Ohio St.2d 197 (1973). Goldberg was found guilty in all four cases and sentenced to consecutive 180 and 90 day sentences of confinement aggregating to 21 months.
After sentencing, Goldberg appealed in all four cases to the Seventh District Court of Appeals raising the following propositions of law:
1. The Probate Court erred in finding Goldberg in contempt of court.
A. The Probate Court did not prove Goldberg guilty of criminal contempt beyond a reasonable doubt.
B. Goldberg's contempt did not constitute direct contempt of court.
C. Goldberg cannot be held in contempt of court for failing to pay over that which he is entitled to have.
D. The Probate Court did not have subject matter jurisdiction in the concealment action.
E. The Probate Court erred in ordering Goldberg to be imprisoned for failure to pay a debt.
2. Goldberg's inability to distribute the remaining proceeds was caused by the Probate Court itself.
3. The Probate Court erred in taking judicial notice of statements made in other cases.
4. The Probate Court erred by failing to allow Goldberg basic procedural due process during the contempt hearing.
A. The Probate Court erred by failing to allow Goldberg to cross-examine witnesses during a contempt hearing.
B. The Probate Court erred by failing to conduct a hearing on the contempt charge.
In general, the state appellate court affirmed the probate court. See Lanning, 2003 WL 14733636, 2003 — Ohio — 1438 (Ohio App. 7 Dist. March 24, 2003); Mercurio, 2003 WL 1473694, 2003 — Ohio — 1436 (Ohio App. 7 Dist. March 24, 2003); Hunter, 2003 WL 1473696, 2003 — Ohio — 1435 (Ohio App. 7 Dist. March 24, 2003); Williams, 2003 WL 1473695, 2003 — Ohio — 1436 (Ohio App. 7 Dist. March 24, 2003). The appellate court found error in the Hunter matter because there was insufficient evidence to support a finding of contempt for suborning witness appearance at the June 8, 1999 hearing. (See Hunter, ¶ 28). The court, however, concluded its elimination would not effect the sentence. Id.
Goldberg thereafter timely appealed to the Supreme Court of Ohio raising the following four propositions of law in each of the four cases:
Proposition of Law No. 1: An alleged contemner is entitled, in a timely manner, to adequate and specific notice of the charges with particularity including whether the nature of the proceeding is civil or criminal.
Proposition of Law No. 2: If the court had jurisdiction to issue the orders and contempts, any alleged disobedience of contemner occurred outside the presence of the court, therefore the conduct was indirect, and the alleged contemner is due the statutory protections provided in R.C. 2705.03 et seq. and cannot be summarily tried.
Proposition of Law No. 3: The court must, in matters of indirect criminal contempt, follow the constitutional safeguards as required by the United States and Ohio Constitutions and as outlined in R.C. 2705.03 and R.C. 2705.05.
Proposition of Law No. 4: Appellate counsel failed to raise to the Appellate Court the necessary issues of the court's lack of adequate notice, failure to comply with R.C. 2705.03 and R.C. 2705.05 and the ineffective assistance of trial counsel.
The Ohio Supreme Court declined jurisdiction and dismissed the appeal as not involving any substantial constitutional question. See In re Estate of Lanning, 99 Ohio St.3d 1467, 791 N.E.2d 983 (Table 2003); In re Estate of Mercurio, 99 Ohio St.3d 1467, 791 N.E.2d 983 (Table 2003); In re Estate of Williams, 99 Ohio St.3d 1455, 790 N.E.2d 1219 (Table 2003); In re Estate of Hunter, 99 Ohio St.3d 1467, 791 N.E.2d 983 (Table 2003).
Additionally, Goldberg had contemporaneously sought a stay in the Ohio Supreme Court which was denied on May 16, 2003. See In re Estate of Lanning, 99 Ohio St.3d 1408, 788 N.E.2d 645 (Table 2003); In re Estate of Mercurio, 99 Ohio St.3d 1407, 788 N.E.2d 645 (Table 2003), et al.; In re Estate of Hunter, 99 Ohio St.3d 1407, 788 N.E.2d 645, 2003-Ohio-2454 (Table 2003); In re Estate of Williams, 99 Ohio St.3d 1407, 788 N.E.2d 645 (Table 2003).
Thereafter on October 28, 2003 Goldberg filed his petition under 28 U.S.C. § 2241 for writ of habeas corpus by a person in federal custody. This petition was amended as one filed under 28 U.S.C. § 2254 with leave granted on December 22, 2003 (See Docket Nos. 13, 23). The undersigned submitted interim report and recommendation with respect to Goldberg's motion to stay execution of sentence, Judge Maloney's motion to dismiss and amended motion to dismiss (Docket Nos. 5, 8, 12). The interim report and recommendation was adopted by an order of court on February 18, 2004 (Docket No. 33). Goldberg's motion for reconsideration was denied on March 29, 2004 (Docket No. 36). The case is now before the undersigned for report and recommendation on the following four claims raised by Goldberg in his amended petition:
CLAIM ONE: PETITIONER'S RIGHT TO PROCEDURAL DUE PROCESS WAS VIOLATED AS THE NOTICE PROVIDED TO PETITIONER FAILED TO INFORM PETITIONER THAT CRIMINAL SANCTIONS MAY BE IMPOSED UPON HIM.
CLAIM TWO: THE EVIDENCE AGAINST THE PETITIONER FOR THE OFFENSES FOR WHICH HE WAS CONVICTED OR ANY ELEMENT THEREOF WAS NOT SUFFICIENT TO CONVINCE A RATIONAL TRIER OF FACT, BEYOND A REASONABLE DOUBT, THAT PETITIONER WAS GUILTY OF THE OFFENSES.
CLAIM THREE: PETITIONER WAS DENIED HIS RIGHT TO BE PRESENT AT EVERY PROCEEDING IN WHICH FACTUAL MATTERS IN THE CASE WERE AT ISSUE OR IN WHICH DISPOSITIVE RULINGS WERE MADE BY THE COURT IN VIOLATION OF THE 6TH AMENDMENT.
CLAIM FOUR: PETITIONER'S RIGHTS UNDER THE 6TH AND 14TH AMENDMENTS TO CONFRONT HIS ACCUSERS WAS VIOLATED WHEN RESTRICTIONS WERE PLACED BY THE COURT OR ON PETITIONER'S ABILITY TO DISCREDIT THE TESTIMONY OF ANY WITNESS AGAINST PETITIONER VIA CROSS-EXAMINATION.
Goldberg in subsequent briefing attempts to recast his four grounds to raise irrelevant and extraneous claims in an effort to obtain a hearing, and to insert new arguments that were never "fairly presented" to the Ohio Supreme Court. Goldberg has not sought leave to amend, and in any event, if the amendment was permitted, the result would be dismissal due to procedural default.
After review of the arguments and the applicable law, the undersigned recommends that Goldberg's application under 28 U.S.C. § 2254 be granted with respect to the holding of contempt in the Estate of Mercurio, Williams and Hunter, and denied with respect to the Estate of Lanning.
Federal Standard of Review:
For purposes of federal collateral review, all claims adjudicated on their merits by state courts are governed by 28 U.S.C. § 2254(d)(1) and (2). See Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002). Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) [ 28 U.S.C. § 2254(d)] the applicable limited standard of review is:
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 (emphasis supplied).
The phrases "contrary to" and "unreasonable application" are not the same. Lockyer, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). Under the "contrary to" standard of review, the state court's decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than "[the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Harris v. Carter, 337 F.3d 758, 761 (6th Cir. 2003); Joshua v. DeWitt, 341 F.3d 430, 436 (6th Cir. 2003). Under those circumstances the Supreme Court has held that the federal court on habeas review may grant the writ. Id.
Under "unreasonable application" standard "the state court identifies the correct governing legal rule from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 413; Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Barnes v. Elo, 339 F.3d 496, 501 (6th Cir. 2003), cert. denied, ___ U.S. ___, 124 S.Ct. 1178, 157 L.Ed.2d 1211 (2004). This includes the state court's refusal to extend or unreasonable extension of existing legal principles from Supreme Court precedent to new contexts. See Williams, 529 U.S. at 407. The state courts's application must be "objectively unreasonable." Harris, 337 F.3d at 361 quoting Williams at 411. "A state court's application of federal law is unreasonable and habeas relief may be granted if `state court decision is so clearly incorrect that it would not be debatable among reasonable jurists.'" Joshua, 341 F.3d 436-37; Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998), quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996). This is not to say that under the "unreasonable application" standard, independent review of the record is forbidden on habeas review, but where the state court has articulated its reasoning the federal court is prohibited from substituting its own independent judgment on what the state court should have considered in reaching its conclusion. Joshua, 341 F.3d at 442.
The phrase "clearly established Federal law" refers to holdings opposed to dicta of the U.S. Supreme Court's decision as of the time of the relevant state-court decision. Lockyer v. Andrade, 538 U.S. 63. 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144 (2003); Williams v. Taylor, 529 U.S. at 412; Bell v. Cone, 535 U.S. at 698.
Claim One:
PETITIONER'S RIGHT TO PROCEDURAL DUE PROCESS WAS VIOLATED AS THE NOTICE PROVIDED TO PETITIONER FAILED TO INFORM PETITIONER THAT CRIMINAL SANCTIONS MAY BE IMPOSED UPON HIM.
This first of Goldberg's four claims is the crux of his case. As explained previously in the interim report and recommendation, the first claim was not presented to the state appellate court, but it was "fairly presented" to the Ohio Supreme Court. Exhaustion does not require a state court adjudication on the merits of the claim at issue. See Smith v. Digmon, 434 U.S. 332, 333, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978); Clinkscale v. Carter, 375 F.3d 430, 438 (6th Cir. 2004). However, the unexplained decision from the Ohio Supreme Court places the district court in the contorted posture where it must provide the rationale for unexplained state decisions which had minimally stated only that no substantial constitutional question had been presented.
Under this standard of review pursuant to § 2254(d)(1):
Where the state court has failed to articulate its reasoning for its decision, `federal courts are obligated to conduct an independent review of the record and applicable law to determine whether the state court decision is contrary to federal law, unreasonably applies clearly established law, or is based on an unreasonable determination of the facts in light of the evidence presented.' Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000) (citations omitted). `That independent review, however, is not a full, de novo review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA.' Id.Palazzolo v. Gorcyca, 244 F.3d 512, 516 (6th Cir. 2001), cert. denied 534 U.S. 828 (2001); and see Onifer v. Tyszkiewicz, 255 F.3d 313, 316 (6th Cir. 2001), cert. denied, 534 U.S. 930 (2001). The only limit on the district court is for it to arrive at a result that is "in keeping with the strictures of the AEDPA." Id. Ascertaining whether an unexplained state court decision is either contrary to or an unreasonable application of law, ". . . does not require citation of [Supreme Court] cases [by the state court] — indeed it does require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). Accordingly, it is necessary to review the record for support to ascertain a deferential rationale consistent with the state court's dismissal of Goldberg's procedural due process argument, if at all possible, consistent with the clearly established federal law expressed in decisions from the U.S. Supreme Court.
An overview of state court's contempt procedures is necessary to begin the explanation for the disposition of Goldberg's first claim. Ohio has in place a statutory scheme which distinguishes between direct contempt (Ohio Rev. Code § 2705.01), "misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice," which allows for summary punishment; and indirect contempt (Ohio Rev. Colde § 2705.02 and 2705.03) which inter alia includes "[d]isobedience of, or resistance to, a lawful process, order, rule, judgment or command of a court or officer." (Ohio Rev. Code § 2705.02(A). Indirect contempt proceedings must be initiated with a charge in writing and require hearing. The statutory provisions are equally applicable to both civil and criminal contempts. See Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 252-253, 416 N.E.2d 610, 18 Ohio Op.3d 446 (1980).
Although statutory provisions are to be followed in matters of indirect contempt, there is no clear distinction between direct and indirect contempt and "the fact that Section 2705.02, Revised Code, inferentially classifies an act of resistance to a lawful court process or order as an act of indirect contempt does not limit the power of the court to determine, in its sound discretion, whether such act constitutes direct or indirect contempt." State v. Kilbane, 61 Ohio St. 201, 204, 400 N.E.2d 386, 389, 15 Ohio Op.3d 221 (1980), quoting State v. Local Union 5760, United Steelworkers of America, 172 Ohio St. 75, 123 N.E.2d 331, 15 Ohio Op.2d 133 (1961). The state courts do not recognize the legislative limits placed on contempt sanctions by Ohio Rev. Code Chapter 2705. Kilbane, 61 Ohio St.2d at 204; In re Roberts, 175 Ohio St. 123, 191 N.E.2d 816 (1963).Compare, Michaelson v. U. S. ex rel. Chicago, St. P.M. O. Ry. Co., 266 U.S. 42, 66, 45 S.Ct. 18, 20, 69 L.Ed. 162 (1924) (Congressional regulation of federal courts' contempt powers is not necessarily unconstitutional). The Ohio Supreme Court ". . . has on occasion recognized that direct contempts may take place beyond the physical presence of the court." State v. Local Union 5760, 172 Ohio St. At 81.
"Distinctions must [additionally] not only be made between direct and indirect contempt, but also between criminal and civil contempt proceedings and sentence." Kilbane, at 204. The state courts recognize contempts as sui generis, resembling suits in equity but neither being wholly civil nor criminal and existing independently from constitutional provision or legislative enactment. See Brown v. Executive 200, Inc., 64 Ohio St.2d at 253; Cincinnati v. Cincinnati Dist. Council 51, 35 Ohio St.2d 197, 202, 299 N.E.2d 686, 64 Ohio Op.2d 129 (1973). The state courts classify contempts as civil or criminal based on the character and purpose of the contempt sanction. See Denovhek v. Trumbull Cty. Commissioners, 36 Ohio St.3d 14, 16, 520 N.E.2d 1367 (1988); State v. Kilbane, 61 Ohio St.2d 201, 15 Ohio Op.3d 221, 400 N.E.2d 386 (1980); State v. Local Union 5760, 172 Ohio St. at 82-83. Ohio courts recognize that these classifications are misnomers because contempt is neither civil or criminal, but have it necessary to create such classification along the type of punishment imposed for due process purposes. See Brown, 64 Ohio St.2d at 253; Denovchek, 36 Ohio St.3d at 16-17.
Generally, "offenses against the dignity or process of the court are criminal contempts." Id. at 205; Denovchek v. Trumbull Cty. Bd. Of Commrs., 36 Ohio St.3d 14, 15, 520 N.E.2d 1362, 1363 (1988); State ex rel Corn v. Russo, 90 Ohio St.3d 551, 555, 740 N.E.2d 265, 269 (2001). The determination whether the contempt is civil or criminal depends on the court's goal. Corn, 90 Ohio St. at 554-555. Civil contempts serve coercive as opposed to a punitive goal and inure to the benefit of a party to the litigation. Id. The classification has consequences since "significant constitutional safeguards required in criminal trials are also required in criminal contempt proceedings." Kilbane, 61 Ohio St.2d at 205. What these safeguards are in criminal contempt proceedings has never been specifically set out by Ohio's Supreme Court, other than to list what is not required — indictment; arraignment; plea; and trial by jury. See Local Union 5760, 172 Ohio St. at 83.
Goldberg's arguments challenge the contempt process approved by the Ohio Supreme Court in In re Estate of Wright, 165 Ohio St. 15, 133 N.E.2d 350, 59 Ohio Op. 371 (1956) and continuing through State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 740 N.E.2d 265 (2001). In Wright the Ohio Supreme Court approved the procedure where counsel serving both as executor and counsel for the executor of an estate was ordered to show cause via a motion filed by a committee of lawyers captioned "motion to vacate order approving fiduciary's account" which requested reimbursement to the estate and "inquiry" to determine whether such acts and conduct are in contempt of this court . . ." Id., 165 Ohio St. at 17. No show cause order or additional notice was issued by the probate court. During "trial" the probate court merely instructed counsel to keep in mind that the committee's motion invited the court to consider the matter of possible contempt. Id., 165 Ohio St. at 25. After conducting a "trial" on vacating the account, the probate court held counsel had committed a fraud upon the court which required reimbursement to the estate. Additionally the probate court found counsel in direct contempt of court, and imposed a criminal penalty, a fine in the sum of $2,000.00. Counsel unsuccessfully challenged this ruling contending that he had been deprived of notice as required under Ohio Rev. Code § 2705.02 and § 2705.03 and thus an opportunity to defend against the charge of contempt of court. These statutes govern indirect contempts of court, as stated earlier in this report.
The Ohio Supreme Court found this probate court matter constituted a direct contempt proceeding. The court expanded on the general presence requirement of such contempts, to include obstruction of justice due to fraud upon the court which persuaded "the court to make orders in its own courtroom, concerning which it probably would not have done otherwise had [counsel's] act not occurred." Id., 165 Ohio St. at 25. Wright illustrates that direct contempt proceedings, as a matter of state law, need not be conducted summarily, and further may be conducted simultaneously with a related matter, such as in Wright, the vacating of the account. See Id., 165 Ohio St. at 25. Note that no show cause order had been issued by the trial court itself, and indirect contempt proceedings require advance notice. The issue was put to rest in the Ohio Supreme Court by classifying the contempt as direct.
Judge Maloney echoed Wright in stating in his May 3, 2000 decision and judgment entries that Goldberg had committed a fraud upon the court.
The question whether notice in state procedure must indicate whether the proceeding is civil or criminal in nature was answered in State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 740 N.E.2d 265 (2001). In that case the Ohio Supreme Court approved an initially civil contempt proceeding to continue as a criminal proceeding against a disobedient expert witness upon a judicially-initiated show cause order for failure to abide by the court's order for production of documents. The Supreme Court permitted a "shift" from what was initially contemplated to be a civil contempt to compel compliance with the court's order. Corn, 90 Ohio St.3d at 555. No additional notice was given to the witness of this change in the posture of the contempt proceedings. The underlying civil personal injury case had settled and the issue became whether the trial court continued to have jurisdiction to hold the contempt proceedings. The Ohio Supreme Court recognized the dictate of the U.S. Supreme Court's decision in Gompers, that where the parties settle an underlying case that had given rise to a civil contempt motion, the civil contempt proceeding is moot since the case had come to an end. See Gompers v. Buck's Stove Range Co., 221 U.S. 418, 451-52, 31 S.Ct. 492, 55 L.Ed. 797 (1911). Nevertheless, the Ohio Supreme Court accepted the trial court's argument that the contempt matter had "shifted" from a civil proceeding to a criminal contempt when it was learned that an expert witness had purposely conducted business in such a fashion as to circumvent discovery on the defense of bias. The trial court was therefore "no longer restricted to coercing [the witness] into complying with the court's orders" but was now vindicating the authority of the court. Corn, 90 Ohio St.2d at 556. The Ohio Supreme Court held that the trial court could proceed because it had jurisdiction over contempt proceedings which had become criminal, despite settlement of the underlying civil action.
The underlying case, Crow v. Dotson, in the Cuyahoga County Court of Common Pleas was settled on April 7, 1999, after the court's show cause order for contempt had been issued and the matter heard on September 28, 1998. The matter was returned to the court's active docket on June 11, 1999 ( Corn, 90 Ohio St.3d at 551-553).
It is significant that the Ohio Supreme Court was unconcerned whether the contempt was redesignated as a direct contempt. Obviously, the matter had been initiated as an indirect contempt proceeding upon the trial judge's show cause order followed by hearing, especially considering that the original intent had been to coerce rather than punish. This notice in the show cause order remained sufficient despite the "shift" of the proceeding into the criminal realm. There was no requirement to indicate in advance that the contemplated sanction was criminal. If that had been the case, then the "shift" would have also required the Ohio Supreme Court to deem the proceeding had become both a matter of criminal and direct contempt to circumvent the lack of predesignation in the notice of show cause order. In effect, once notice is given, the trial court is free to opt for civil, criminal or a combination of sanctions without informing the contemner of the type of sanctions in advance.
The Ohio Supreme Court has never adopted a procedure analogous to that in Fed. Crim. R.P. 42 with respect to criminal contempt. Pursuant to 18 U.S.C. § 401 and Rule 42(b) federal jurisdictions are given a narrower scope of cases where a federal district court may utilize summary disposition, and in other matters, Rule 42(a) requires notice with a statement of essential facts constituting a charge of criminal contempt, description of it "as such," and in addition the appointment of a prosecutor. This federal procedural rule no doubt was inspired by Gompers v. Buck Stove Range, 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911), the primary federal case on which Goldberg relies.
[Ohio] Appellate courts have repeatedly allowed parties to appeal from the imposition of sanctions resulting from a finding of criminal contempt without the involvement of the local county prosecutor's office. See State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 2001-Ohio-0015, 740 N.E.2d 265; Brown, supra; Calex Corp. v. United Steelworkers of Am. (2000), 137 Ohio App.3d 74, 738 N.E.2d 51; In re Brewer, 7th Dist. No. 99 CA 29, 2001-Ohio-3196.
Citicasters Co. v. Stop 26 — Riverbend, Inc., 2002 WL 31163655 ¶ 26 (Ohio App. 7 Dist. Sept. 26, 2002).
Goldberg's first claim as "fairly presented" was developed from two cases, Mosler v. United Automobile, Aerospace Agricultural Implement Workers of America Local 1862, 91 Ohio App.3d 840, 633 N.E.2d 1193 (1993) and the U.S. Supreme Court decision extensively cited Gompers v. Buck's Stove Range Co., supra in that case. Both cases are factually distinguishable because in each the courts had before them a party-initiated contempt proceeding for violating a court's injunction restraining union activity. Mosler, 91 Ohio App.3d at 841, 844; Gompers, 221 U.S. at 421-22. In contrast, the show cause orders against Goldberg were solely court-initiated.
Mosler held that the contemner was entitled to advance notice that he would be subject to criminal penalties. Id., 91 Ohio App.3d 840. Mosler does indeed support Goldberg's claim, but Mosler is an unreliable indicator of Ohio law in light of Wright and Corn, and in any event resolution of petitioner Goldberg's claims under § 2254 is not ultimately dependent on state law.
Goldberg's point before the Ohio Supreme Court was that these were indirect contempt proceedings governed under Ohio Rev. Code § 2705.03 requiring notice of the charges. The state appellate court in the Williams Estate explained that even though the probate court labeled the contempt as direct, "and part of it arguably may have been indirect contempt, there was no prejudice to [Goldberg] since the [probate] court complied with all of the essential requirements of R.C. 2705.03 for indirect contempt. See Williams, 2003 WL 1473698 ¶ 51. In the Mercurio and Lanning Estates the appellate court simply concluded that Goldberg had received the benefit of the probate court's treatment of the matters as indirect contempt. Mercurio, 2003 WL 1473694 ¶ 35; Lanning, 2003 WL 147333636 ¶ 30. The reasoning in the Hunter Estate was less clear, but the state appellate court arrived at the conclusion that the probate court complied with the notice requirement of Ohio Rev. Code § 2705.03 despite finding that Goldberg was in contempt for: (1) failure to disclose and identify Paul Hunter and Brad Young as beneficiaries; (2) attempting to suborn the appearance of the executrix at the June 8, 1999 hearing; (3) failing to pay over or otherwise depositing $277,125.01 for minor Hunter beneficiaries; (4) failing to report what distribution had been made pursuant to the magistrate's January 15, 1999 decision; and (5), failing to comply with the probate court's judgment entry and orders of June 17, 1999 and its October 19, 1999 amendment to pay over the proceeds of the wrongful death settlement. In several instances the probate court's decisions held Goldberg in contempt for matters that were not specified in the January 2000 show cause orders. The state appellate court circumvented notice requirements in concluding that there was sufficient evidence of direct contempt before it. E.g., Hunter, 2003 WL 14373696 ¶ 27-28, 34. Recall that under state procedure, direct contempts require no advance notice of the charge. The state appellate court, nonetheless, concluded that the probate court had provided notice and invoked the process for indirect contempt to assure Goldberg of the fullest measure of due process consistent with the law of indirect contempt.
There is no question that the contempt sanction of imprisonment was anything else but "criminal" in nature. See International Union, UMW, 512 U.S. at 828, 114 S.Ct. at 2558 (". . . a fixed sentence of imprisonment is punitive and criminal if it's imposed retrospectively for a `completed act of disobedience.'"). However, what complicates the situation is that Goldberg's claims are raised in a situation where the state appellate court found that the contempt punishment was for both direct and indirect contempts, and due to this complexity, both types must be addressed.
There are several parts to Goldberg's first claim as "fairly presented" to the Ohio Supreme Court. Goldberg maintains that due process requires notice of intent to impose criminal sanction, notice of the criminal nature of the proceeding by way of a separate proceeding solely concerning the contempt charge, and notice in the written charge of a complete listing of each act or omission to be adjudicated in the contempt proceeding. This report commences with those aspects of indirect contempt discussed in Gompers concerning notice to impose criminal sanctions and separate contempt proceedings.
The main thrust in Gompers, was that the Supreme Court reversed the lower court's finding that the proceeding was criminal in nature and as a consequence of settlement, the Supreme Court adhered to the principle that the civil contempt proceeding "necessarily ended with the settlement of the main cause of which it was a part." Gompers, 221 U.S. at 452. The Supreme Court noted in Gompers that "proceedings for civil contempt are between the original parties, and are instituted and tried as part of the main case, but, on the other hand, proceedings at law for criminal contempt are between the public and the defendant and are not part of the original cause." Id., 221 U.S. at 445, 31 S.Ct. at 499.
The Court also went on to state,
This is not a mere matter of form for manifestly every citizen however unlearned in the law, by mere inspection of the papers in contempt proceedings ought to be able to see whether it was instituted for private litigation or for public prosecution, whether it sought to benefit the complaintant or vindicate the court's authority. He should not be left in doubt as to whether relief or punishment was the object in view. He is not only entitled to be informed of the nature and charge against him, but to know that it is a charge, and not a suit. United States v. Cruikshank, 92 U.S. 542, 559, 23 L.Ed. 588, 593.Gompers, 221 U.S. at 446, 31 S.Ct. at 500. The Supreme Court then examined the lower court's proceedings and concluded that the matter was a continuation of a suit of equity and there had been a ". . . departure — variance — between the procedure adopted and the punishment imposed, when in answer to a prayer for remedial relief, in an equity cause, the court imposed a punitive sentence appropriate only to a proceeding at law for criminal contempt. The result was as fundamentally erroneous as if in an action of `A vs. B, for assault and battery,' the judgment entered had been that defendant be confined in prison for twelve months." Gompers, 221 U.S. at 449, 31 S.Ct. at 501.
This Gompers decision raised several points such as notice of the criminal nature of the contempt charge, separate proceeding for criminal contempt with prosecution by the government, right to trial by jury, requirement of proof beyond a reasonable doubt, and the right not to be compelled to testify against oneself in criminal contempt proceedings. Nevertheless, the U.S. Supreme Court held that the trial court had exceeded its authority by imposing a criminal sanction on a motion for civil contempt ( Id., 221 U.S. at 443-444), resulting in error for when the contempt matter was actually civil in nature it could not survive post-settlement. Gompers, 221 U.S. at 446, 451-52.
The portions on which Goldberg relies concerning entitlement to notice of the criminal nature of the charge, however, are dicta and not relevant to the holding of the case. As explained in Yarborough v. Alvarado, "We begin by determining the relevant clearly established law. For purposes of 28 U.S.C. § 2254(d)(1), clearly established law by this Court `refers to the holdings, as opposed to dicta, of the Court's decisions as of the time of the relevant state-court decision . . .' We look for `the governing legal principle or principles set forth by the Supreme Court . . .'" Id., ___ U.S. ___, 124 S.Ct. 2140, 2147, 158 L.Ed.2d 938 (2004), quoting, Williams v. Taylor, 529 U.S. at 412, and Lockyer v. Andrade, 538 U.S. at 71.
Dictum is "an observation or remark . . . concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination . . ." Black's Law Dictionary (5th Ed.).
First, no governing principle was developed in Gompers requiring notice to be given whether the proceedings were to be criminal or civil in nature. Rather the Court in Gompers examined the proceeding to determine whether the proceeding was equitable or criminal and the quote from the case utilized by Goldberg concerned one of several factors examined and weighed, including whether the parties clearly indicated that they regarded this as a civil proceeding ( Id., 221 U.S. at 447). The decision noted that the complainant acted in charge of the litigation through its counsel and clearly proceeded in its own right ( Id., 221 U.S. at 445), from which the Supreme Court concluded that the trial court had a civil contempt matter before it.
It is indicative that Goldberg's reading of Gompers has not been echoed in subsequent U.S. Supreme Court decisions. Notice whether the proceedings were criminal or civil in nature was raised as an issue many years after Gompers in U.S. v. United Mineworkers of America, 330 U.S. 258, 67 S.Ct. 677, 92 L.Ed.2d. 884 (1947), where contemners challenged a federal district court's show cause order because "nowhere was the contempt described as criminal as required by rule [42(b)]." Id., 330 U.S. at 297. The Supreme Court dispatched the notice argument citing facts indicating contemner's awareness that the contempt charged was criminal.
United Mineworkers of America, though, was focused upon the federal rule's requirement that the notice "state the essential facts constituting criminal contempt charged and describe it as such." See FED. R. CRIM. R. 42(b). There is no holding of the Supreme Court requiring notice to this extent as a matter of constitutional due process, as Goldberg would need to demonstrate to establish a foundation for his first claim.
Justice Rutledge observed in his dissenting opinion in United Mineworkers of America, however, that some provisions from the Bill of Rights would in his view apply to criminal contempt proceedings including: the provision against double jeopardy( In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500); the provision against self-incrimination ( Gompers, 221 U.S. at 444); the provision for "suitable notice and adequate opportunity to appear and be heard); (Blackmer v. U.S., 284 U.S. 421, 440, 52 S.Ct. 252, 76 L.Ed. 375); right to speedy and public trial, compulsory process, and assistance of counsel ( Cooke v. U.S., 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767); and protection against cruel and unusual punishment ( U.S. ex rel. Brown v. Lederer, 7 Cir., 140 F.2d 136, 139). United Mineworkers, 330 U.S. at 364 (Rutledge J., dissenting)
More recent lists of constitutional protections for criminal defendants in nonsummary criminal contempt prosecutions appeared in U.S. v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), and International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 648 (1994), which included presumption of innocence, proof beyond a reasonable doubt and guarantee against self-incrimination ( Gompers, 221 U.S. at 444); notice of the charges, assistance of counsel, and right to present a defense ( Cooke, 267 U.S. at 537); and public trial( In re Oliver, 333 U.S. at 278). See Dixon, 509 U.S. at 696; International Union, 512 U.S. at 826-27. Similarly, Gompers was cited in Young v. U.S. ex rel. Vuitton et Fils, SA, 481 U.S. 787, 798-799, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), for the same points; presumption of innocence; guilt to be proved beyond a reasonable doubt; and Fifth Amendment privilege. This decision referred to Cooke regarding notice of the charges.
Prior to these decisions, the Supreme Court in Bloom v. Illinois, cited Gompers as establishing the presumption of innocence, requirement of proof beyond a reasonable doubt, and testimonial privilege. Id., 391 U.S. 194, 205, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). One would surmise that if Gompers was a statement of the constitutional minimal threshold for notice, then it would be cited repeatedly as a statement for that standard. However, with respect to due process regarding notice in indirect contempts the Supreme Court has continually referred to Cooke ( 267 U.S. at 537) and Blackmer v. U.S., 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932). See Dixon, 509 U.S. at 696; Bagwell, 512 U.S. at 826; Bloom v. Illinois, 391 U.S. 194, 205, 88 S.Ct. 1477, 1484, 20 L.Ed.2d 522 (1968).
Likewise reference in Hicks on behalf of Feiock v. Feiock to Gompers regarding notice, referenced entitlement to know that the "charge is not a suit," but this again was presented as dicta. Id., 485 U.S. 674, 638 n. 10, 108 S.Ct. 1423, 1433 n. 10, 99 L.Ed.2d 721 (1988). As in Gompers, the Supreme Court made this statement in the context of weighing whether the California child support proceedings, which the state court had denominated as "quasi-criminal," were predominantly civil or criminal in character. The issue there though was not adequacy of notice, but the application of a statutory presumption that the obligated parent remained able to make required child support payments. Id., 485 U.S. at 640-41, 108 S.Ct. at 1434.
Cooke and Blackmer are thus the critical due process cases regarding threshold constitutional due process notice requirements for indirect or nonsummary contempt matters. In Blackmer the Court emphasized that criminal contempt proceedings were sui generis and not criminal prosecutions within the Sixth Amendment or common understanding. Blackmer, 284 U.S. at 440. With citation to Cooke, the Court in Blackmer vaguely held, "The requirement of due process in such a case is satisfied by suitable notice and adequate opportunity to appear and to be heard." Blackmer, 784 U.S. at 440. The Court explained:
The petitioner urges that the statute does not require notice of the offense, but the order to show cause is to be issued after the witness has failed to obey the subpoena demanding his attendance and the order is to be made by the court before which he was required to appear. This is sufficient to apprise the witness of the nature of the proceeding and he has full opportunity to be heard.Id., 284 U.S. at 256.
What is significant about the foregoing quotation is the absence of reference to the fact that the trial court's show cause order commanded Blackmer why he should not be adjudged guilty of contempt of court for failing and refusing to obey a subpoena, and directed the marshal to levy on property to the value of $100,000. See Blackmer v. U.S., 49 F.2d 523, 527, 60 App. D.C. 141, 145 (1931). The Supreme Court's decision attached no importance to this indication of the criminal nature of the show cause order and contempt proceeding.
The Supreme Court's explanation indicates due process is satisfied merely upon notice of the alleged contumacious conduct of failure to obey subpoena. There was no requirement of advance warning of potential criminal sanction.
In contrast, the alleged contemner in Cooke had no precise idea of the purport of the charges until the trial court read its order at the hearing. Id., 267 U.S. 536-37. The court stated:
Due process of law, therefore in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. Id., 267 U.S. at 537.
The notice, though, concerned only the contumacious act and not advance notification that the trial court was considering either civil or criminal penalties. Consistently, the Supreme Court in Groppi v. Leslie, 404 U.S. 496, 92 S.Ct. 582, 30 L.Ed.2d 632 (1972), merely stated that, "reasonable notice of a charge and an opportunity to be heard in defense before punishment is opposed are `basic in our system of jurisprudence with respect to legislative contempt.'" Id., 404 U.S. at 502.
Goldberg, though, mistakenly relies on dicta in International Union, United Mineworkers of America v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994), where the Supreme Court did state that, "[d]ue process traditionally requires that criminal laws provide prior notice both of the conduct to be prohibited and of the sanction to be imposed." Id., 512 U.S. at 836, 114 S.Ct. at 2562. However, this case held that a serious contempt fine in the amount of $52 million for violation of a labor injunction was a criminal penalty which could only be imposed through jury trial, but courts may still impose petty criminal fines for contempts without conducting a jury trial. Id., 512 U.S. at 838-839. As in Blackmer and Cooke, there was no insistence that the notice to contemner provide advance warning of the trial court's contemplation of criminal penalties. Rather the quoted passage was in response to the argument that the mere fact that the trial court had a pre-determined prospective fine schedule in its order rendered the fines coercive rather than punitive. The remark was not a governing legal principle for the disposition of the case. In short, there is no clearly established law from the Supreme Court requiring advance notice of intent to impose criminal sanctions as a matter of constitutional due process.
Second, Goldberg contends that a separate proceeding was required as part of the notice requirement of due process. Although dictum from Gompers stated that criminal contempt proceedings is not part of the original cause ( Id. 221 U.S. at 445), as explained in Nye v. U.S., 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941), (which coincidentally was in relation to wrongful death suit and probate matter), that "[w]hile the proceedings in the District court were entitled in[the action under the name of the administrator of the estate] and the United States was not a party until the appeal, these circumstances though relevant ( Gompers . . .) are not conclusive as to the nature of the contempt." Id., 313 U.S. at 42, 61 S.Ct. at 813. Even in relation to Rule 42, the Supreme Court has refused to disallow "mingling" of civil and criminal contempt proceedings because the same conduct may justify a court in resorting to either coercive or punitive measures. See U.S. v. United Mine Workers of America, 330 U.S. at 292-299, 67 S.Ct. at 697-699. Goldberg's argument that a separate criminal case must be instituted to invoke criminal sanction for contempt has no merit, and is contrary to clearly established federal law as expressed by the Supreme Court.
The third and final subpart of Goldberg's claims as "fairly presented" to the Ohio Supreme Court concerns failure to list all of the charges. This point was raised in Goldberg's appeal to the Ohio Supreme court. (E.g., Hunter Memorandum in Support of Jurisdiction, 2003 WL 2364458 pg. 6). The probate court did include consideration of matters not listed in the January 2000 show cause orders and did hold Goldberg in contempt on these matters, such as suborning the appearances of adverse witnesses. This aspect of Goldberg's central contention, he argues will require resolution of whether he was sentenced on in-court direct contempts or out-of-court indirect contempts.
This distinction carries importance in Goldberg's view, and if he is correct it is of critical importance because, it is a ". . . fundamental proposition that criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings . . . Hicks, 485 U.S. at 632, 108 S.Ct. at 1429-30; Gompers, 221 U.S. at 444, 31 S.Ct. at 499; International Union, UMW, 512 U.S. at 826, 114 S.Ct. at 2556.
Goldberg maintains that the contempts were incorrectly characterized by the probate court as direct (or primarily direct in the state appellate court's view) and he cannot be penalized for matters which were not listed in the January 3, 2000 show cause orders. He insists that the probate court's judgment was erroneously based on instances of indirect contempt for actions occurring out-of-court.
The distinction between in-court contempt, which may be punished by district courts summarily, and out-of-court contempt, which generally requires adherence to the procedures of FED. R. CRIM. P. 42(a), is sharp in federal proceedings. Eg. Young, 481 U.S. at 798-799, 107 S.Ct. at 2133, U.S. v. Wilson, 421 U.S. 309, 314-318, 95 S.Ct. 1802, 1805-1808, 44 L.Ed.2d 186 (1975). In federal jurisdictions, the court's prosecution of contempt is constrained by both Congress, constitutional review, and supervisory power. Young., 481 U.S. at 759, 107 S.Ct. at 2133; Michaelson v. U.S. ex rel. Chicago St. P.M. O.Ry. Co., 266 U.S. 42, 65-66, 45 S.Ct. 18, 19-20, 69 L.Ed. 162 (1924); (regulated by Congress); Nye v. U.S., 313 U.S. 33 (1941) (same); Bloom v. Illinois, 391 U.S. at 201-08, 88 S.Ct. at 1481-1485 (constitutional review); Chaff v. Schneckenberg, 384 U.S. 373, 384, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966) (supervisory power). Early in the jurisprudence of this republic, in contrast, there was little if any constraint on judicial contempt powers for matters arising outside the presence of the court. The dichotomy arose by Congressional action restraining summary punishment to "misbehaviour . . . in the presence of or said courts, or so near thereto" with the Act of March 2, 1831 "declaratory of law concerning contempt of court." See Nye v. U.S., 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941).
The first part of the Act read:
That the power of the several courts of the United States to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases except the misbehaviour of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehaviour of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts.
Quoted from Nye, 313 U.S. at 46.
As explained in Nye, the Act was in response to the actions of one federal district judge James H. Peck, who had imprisoned and disbarred Mr. Lawless, an attorney. This judgment so incensed Congress that impeachment was prosecuted, but the judge stood acquitted. See Nye, 313 U.S. at 45-46. "The day after Judge Peck's acquittal Congress took steps to change the [Judiciary] Act of 1789." Id.
Aside from the clear historical perspective in Nye, what is significant in Nye, is that the Supreme Court reversed its earlier pronouncement, "that `there can be no doubt' that the first section of the Act of March 2, 1831 `conferred no power not already granted and imposed no limitations not already existing'" as an inaccurate observation. Nye, 313 U.S. at 47, overruling Toledo Newspaper Co. v. U.S., 247 U.S. 402, 418-419 (1918). "[T]he previously undefined power of the courts was substantially curtailed by the Act was early recognized by lower federal courts." Id. at 47-48.
The language of Ohio Rev. Code § 2705.01 and § 2705.02 distinguishing between direct or summary contempt and indirect contempt aligns neatly with the presence requirement, imposed on federal courts since 1831, but as explained early in this report, the state courts unlike the federal courts, have refused to be so bridled. More importantly, the U.S. Supreme Court has not been willing to clearly establish a constitutional due process principle to substantially curtail the contempt process of the state courts in the same manner to which federal courts have acquiesced.
This is not to suggest that the dichotomy between in-court and out-of-court contempts is unimportant. "The distinction . . . has been drawn not to define when a court has or has not authority to initiate prosecution for contempt, but for the purpose of prescribing what procedures must attend the exercise of that authority." Young, 481 U.S. at 798, 107 S.Ct. at 2133. As explained, for indirect contempt proceedings specific notice of the charge is a prerequisite, whereas, direct contempts have no notice requirement as matters of either state or federal law because a summary proceeding is envisioned. Goldberg maintains that the acts which were deemed to be direct contempts were not misbehavior in the presence of the court or near to the court as to obstruct the administration of justice.
Had Goldberg been subjected to summary proceeding by Judge Maloney it would be a more sharply focused picture of criminal direct contempt. Goldberg, though, was not subjected to summary proceedings, but as In re Estate of Wright illustrates, state law permits direct contempt to be punished years later. See Id., 165 Ohio St. at 16, 25-26. The Supreme Court has permitted this practice and refused to hold that the deferral of contempt proceedings removes them from the realm of direct or summary contempt. Instead as stated in Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), the Court pointed out:
If we were to hold that summary punishment can be imposed only instantly upon the event, it would be an incentive to pronounce, while smarting under the irritation of the contemptuous act, what should be a wellconsidered judgment.Id., 400 U.S. at 463, quoting from Sacher v. U.S., 343 U.S. 1, 11, 72 S.Ct. 451, 456, 96 L.Ed. 717 (1952). The deferral of a direct or summary contempt adjudication is not a violation of due process or a cause to transform it into a matter of indirect contempt as a matter of due process.
Finally the death blow to Goldberg's direct/indirect dichotomy argument is that the state courts retain discretion in designating whether the contempts are considered direct or summary as opposed to indirect. In reversing the Ninth Circuit's overturning of a summary contempt conviction on habeas corpus, the Supreme Court in Pounders v. Watson noted:
While the Due Process Clause no doubt imposes limits on the authority to issue a summary contempt order, the States must have latitude in determining what conduct so infects orderly judicial proceedings that contempt is permitted.
Id., 521 U.S. 982, 991, 117 S.Ct. 2359, 2363, 138 L.Ed.2d 976 (1997).
The significance of this statement becomes clearer when read in context with the dissenting opinion which expressed concern over the lack of indication that the state court had exercised its summary contempt power to prevent the "actual obstruction of justice." Pounders, 521 U.S. at 993, 117 S.Ct. at 2364. The dissenting justices were concerned with the Congressionally imposed restriction on summary contempt powers for acts which obstruct the administration of justice, citing a contempt case originating in federal court, In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962). Id.
The majority in Pounders had the opportunity to align state court contempt powers in matters of direct or summary contempt with the restrictions pressed upon the federal courts since the Act of March 2, 1831 "declaratory of the law concerning contempt of court." The majority opted not to extend these restrictions as a matter of due process and constitutional governance to limit state law. Accordingly, there is no clearly established federal law that state courts must adhere to the same in court and out-of-court dichotomy in matters of direct or summary contempt as developed within federal jurisprudence. Pounders demonstrates the Supreme Court's reluctance to interpose federal standards and process in but certain core aspects of state contempt proceedings.
As explained, there is no clearly established federal law as set forth by the Supreme Court of the United States which would require this federal district court to overturn the convictions for contempt due to a mischaracterization of the contempts between direct or indirect, or simply due to the deferral of their adjudication. There is no clearly established law requiring notice of intent to impose criminal sanction, no clearly established law requiring notice by way of separate proceeding for contempt, and no clearly established law that would lead inescapably to the conclusion that the probate court's proceedings were matters of indirect contempt which would require advance notice of each matter that had been adjudicated as contempt. The Supreme Court except in a few specified areas, has not reined in state court procedures which adhere with eighteenth century methods.
With this background, Cooke may be more thoroughly understood. It is central to any success petitioner Goldberg may have. Recall that, "Due process of law . . . in the prosecution of contempt, except for that committed in open court, requires that the accused should be advised of the charges . . ." Id., 267 U.S. at 537, 45 S.Ct. at 395. The district judge who had held counsel in contempt for an impertinent and insulting letter to the court, had firmly believed that the actions were under the court's summary powers with the "presence" requirement of the federal court satisfied. Id., 267 U.S. 517, 45 S.Ct. at 391. Justice Taft in Cooke, however, explained that this holding applied notwithstanding federal statute allowing summary contempt for matters occurring in the presence of the court:
This difference between the scope of the words of the statute `in the presence of the court,' on the one hand, and the meaning of the narrower phrase, `under the eye or within the view of the court,' or `in open court,' or `in the face of the court,' or `in facie curiae,' on the other hand, is thus clearly indicated, and is further elaborated in this opinion.Id., 267 U.S. at 536, 45 S.Ct. at 394.
The Supreme Court did not take issue with the district court's finding that the contempt occurred in the district court's presence. Rather the Supreme Court found that the disparaging letter was not a matter occurring in "open court". Thus regardless of an application of a "presence of the court" in federal statutory law, preliminary notice of the "purport of the charges" cannot be dispensed with except within the narrow range of matters occurring in "open court." Id., 267 U.S. at 535, 45 S.Ct. at 394. Contempt in open court was, "[t]o preserve order in the courtroom for the proper conduct of business, [where] the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court . . ." Cooke, 267 U.S. at 534, 45 S.Ct. at 394. Thus in that narrow view of "open court" as explained in Cooke, it is clear that none of the instances of contempt found to have been direct contempts by the state appellate court had also involved matters in "open court." Since Cooke indicates a decision based on an overriding constitutional due process principle, and not merely federal statute governing summary contempt, then careful scrutiny of Judge Maloney's decision is required to ascertain whether Goldberg was held in contempt without being "advised of the charges."
In the Mercurio Estate, Judge Maloney found Goldberg in contempt for unlawfully taking and retaining the proceeds of the wrongful death settlement in the amount of $150,000 and of restraining the property and assets of the estate and interfering with the obstruction of administration of justice. The court further found Goldberg in contempt for violating its June 17, 1999 order to pay over the proceeds of the wrongful death settlement in the sum of $150,000 and finally for suborning the presence of a witness at the June 8, 1999 hearing before the Probate Court. While Goldberg did have notice in the show cause order concerning $150,000 which he had not distributed, there was nothing in the order concerning suborning the presence of a witness. This was not a matter necessary to preserve order in the courtroom, and moreover this illustrates a second point from Cooke concerning staleness. When adjudication of a matter, even one occurring in open court, is delayed, then the contemner should have notice. Id., 267 U.S. at 537, 45 S.Ct. at 395. The state appellate court included witness subornation in upholding contempt. See Mercurio, 2003 WL 1473694, ¶ 29-30. Accordingly, petitioner Goldberg was held in contempt on one matter for which he had no notice of the acts prior to hearing in that one instance.
In the Williams Estate, Judge Maloney entered judgment which for the most part followed the prior January 3, 2000 notice, and in fact there was a reduction in the survival claim from $24,854.20 to $19,854.20 in Judge Maloney's judgment (Williams Ex. 00232, Docket No. 18). However, Judge Maloney departed from the show cause order by including Goldberg's failing to report on the afore-ordered distributions by April 12, 1999, and that he interfered, hindered, delayed and obstructed the administrator in filing his amended inventory and subsequent account in the decedent's estate and guardian/trustee in filing his inventory in the guardianship.
Likewise as previously mentioned in the Hunter Estate, Judge Maloney found petitioner Goldberg in contempt for matters beyond those set out in the show cause order, by including failure to disclose and identify Paul Hunter and Brad DeYoung as beneficiaries of the estate, suborning the appearance of the executrix at a June 8, 1999 hearing, failing to report what distribution had been made pursuant to the state magistrate's January 15, 1999 decision, interfering, hindering or delaying and obstructing the executrix from filing timely and accurate reports in addition to the noticed charges concerning sums due and not yet paid for the benefit of minors, failure to follow June 17, 1999 court orders and disgorgement of attorney fees.
Only in the Lanning Estate, which involved a $20,000.00 advance of legal expenses, did the Probate Court focus exclusively on that event in its judgment. (See Lanning Ex. 00822-00823, Docket No. 19). In the Lanning Estate, Goldberg was sentenced to imprisonment for 90 days. See Id. at 00824. Only with respect to the notice and finding in contempt in the Lanning matter did the Probate Court provide adequate notice of the contumacious acts.
The Supreme Court in Cooke, set forth a fundamental principle of due process irrespective of statutory requirements that notice must be given in advance except in matters which occur in open court as that term is very narrowly defined. As a matter of clearly established federal law, while it is arguable that the matters occurred in the court's "presence" for purposes of Ohio Rev. Code § 2705.01, they did not occur in "open court." The notice in the Hunter, Williams and Mercurio Estates was inadequate for it failed to provide notice of the acts or omissions that the probate court was considering as bases for its findings of contempt of court. Consequently in all cases except for the Lanning Estate, criminal penalties may not be imposed on Goldberg since he "has not been afforded the protections that the Constitution requires of such criminal proceedings . . ." Hicks, 45 U.S. at 632, 108 S.Ct. at 1429-30. Accordingly, it is the recommendation of the undersigned that the matter be remanded to the state probate court to overturn the criminal convictions in those three matters. These adjudications of contempt were both contrary to and involved unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.
Claim Two:
Goldberg claims that the evidence against him was not sufficient to convince a rational trier of fact beyond a reasonable doubt that he was guilty of the offenses. Previously in the interim report and recommendation the undersigned expressed belief that this ground had been procedurally defaulted for a failure to raise it before the Ohio Supreme Court. Goldberg in his motion for summary judgment had related only that the claim was related to the state appellate court (Docket No. 15, page 15). The undersigned continues this finding that this ground has never been "fairly presented" before the Ohio Supreme Court.
Exhaustion principles dictate that a petitioner who has presented the "substance of his federal claim to the state's highest court," has exhausted his state remedies. See Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Duncan v. Henry, 513 U.S. 364, 115 S.Ct. 887, 888, 130 L.Ed.2d 865, 868 (1995).
Goldberg has no meaningful avenue to return to the state courts to prevent this claim due to state res judicata principles. See Keener v. Ridenour, 594 F.2d 581, 590-91 (6th Cir. 1979); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982); Buell v. Mitchell, 274 F.3d 337, 348 n. 3 (6th Cir. 2001); Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir. 2002); op. corrected, 307 F.3d 459 (6th Cir. 2002). Therefore, this ground is deemed to be exhausted due to "an absence of available State corrective process." 28 U.S.C. § 2254(b)(1)(B)(i).
Generally, the federal courts require a "plain statement" from the state court rejection of federal claim due to waiver. However, "[t]his rule necessarily applies only when a state court has been presented with a federal claim, as will usually be true given the requirement that a federal claimant exhaust state-court remedies before raising the claim in a federal habeas petition." Harris v. Reed, 49 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Although Goldberg raised a similar claim to the state district appellate court, he waived it by failing to preserve it for his appeal to the Ohio Supreme Court.
Goldberg's failure to use his prior opportunity to present the ground to the state courts, waives the issue under state procedural law. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Lord v. Ishee, 384 F.3d 189, 194, 2004 WL 2008211 (6th Cir. 2004). This is an adequate and independent state ground. Id. Goldberg cannot resurrect a defaulted claim for a second judicial opinion. Federal habeas is "an extraordinary remedy and `will not be allowed to do service for an appeal.'" Bousley v. U.S., 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) quoting Reed v. Farley, 592 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994).
In order to overcome a procedural default the petitioner must demonstrate both cause and prejudice, the failure to establish either is sufficient to bar the claim. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Dretke v. Haley, ___ U.S. ___, 124 S.Ct. 1847, 1852 (2004); Teague, 489 U.S. 288, 298-99, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (claim never presented to state courts).
Goldberg has not demonstrated "cause" to excuse procedural default. To establish "cause" a petitioner must present a substantial reason to excuse his procedural default. Rust, 17 F.3d at 161. This substantial reason must be based upon "some objective factor external to the defense . . ." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); Ritchie v. Eberhart, 11 F.3d 587, 591 (6th Cir. 1993), cert. denied 510 U.S. 1135 (1994). There was no external cause for Goldberg's substitution of a new ground in the federal petition. Accordingly, federal review of Goldberg's second claim is barred due to bypassing the Ohio Supreme Court.
Further, for the purposes of the sole standing contempt conviction in the Lanning Estate, Goldberg has not demonstrated that the failure to consider the claim will result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750-51, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Amadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). Considering the depth of the evidence of record against Goldberg, he has failed to "point to a constitutional violation that probably resulted in the conviction of one who is actually innocent." White v. Schotten, 201 F.3d 743, 753 (6th Cir. 2000); Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1997); Murray, 477 U.S. at 496.
Claims Three and Four:
In his third and fourth claims, Goldberg argues that he was denied his right to be present at every proceeding in which factual matters in the case were at issue or dispositive rulings were made (Claim 3), and that he was denied his rights under the Sixth and Fourteenth Amendments to confront his accusers and restrictions were placed by the probate court on his ability to discredit the testimony of any witness against him via cross-examination (Claim 4).
Goldberg was not physically present at several hearings conducted before Judge Maloney in 1999 and initially at the show cause hearings in January 2000. However his legal representatives were present on his behalf. Judge Maloney noted these proceedings, his prior orders, statements from Goldberg's legal representatives, and three attempts by Goldberg's office to suborn the presence of adverse witnesses by misinforming them that hearings had been cancelled in the Williams, Mercurio and Hunter matters.
The Sixth Amendment's confrontation clause protects the right to physically face those who testify against defendant and the right to conduct cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); Delaware v. Fensterer, 474 U.S. 15, 18-19, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). The Fourteenth Amendment obliges the states to comply with the Sixth Amendment confrontation rights. See Pointer v. Texas, 380 U.S. 400, 403-06, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Pennsylvania, 480 U.S. at 485 n. 5. However, the Supreme Court recognized 80 years ago that:
While contempt maybe an offense against the law and subject to appropriate punishment, certain it is that since the foundation of our government proceedings to punish such offenses have been regarded as sui generis and not `criminal prosecutions' within the Sixth Amendment or common understanding.
Myers v. U.S., 264 U.S. 95, 104-05, 44 S.Ct. 272, 68 L.Ed. 577 (1924).
Subsequently, with respect to the issue of presence under the Sixth Amendment, the Supreme Court affirmed its earlier stance rejecting the argument that presence is a due process requisite in criminal contempt. See Blackmer v. U.S., 284, 421, 440, 52 S. Ct. 252, 76 L.Ed. 735 (1932). The Supreme Court has never recognized a right of presence nor has it specifically recognized a right of confrontation or cross-examination of one's accusers. It has only recognized the right to present witnesses. See In re Green, 369 U.S. 689, 691-692, 82 S.Ct. 1114, 1116, 8 L.Ed.2d 198 (1962) ("[P]rocedural due process ` requires that one charged with contempt of court be advised of the charges against him [under Ohio Rev. Code § 2705.02], have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and a chance to testify and call other witnesses in his behalf, either by way of defense or explanation'"), quoting In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 508, 92 L.Ed. 682 (1948).
Goldberg under this claim advances the proposition that the probate court took judicial notice of other proceedings in violation of due process. Without question, the probate court did include consideration of the events which had occurred involving Goldberg in matters which had come before it. The probate court justified this under the presence or "so near the court or judge" requirement of direct contempt under the premise that Goldberg's acts and omissions were obstruction of the administration of justice. The state appellate court found this claim to be meritless:
The court has the power to take judicial notice of its own records and judicial notice of its own actions in earlier proceedings of the same case. Diversified Mortgage Investors, Inc. v. Athens Cty. Bd. of Revision (1982), 7 Ohio App.3d 157, 157, 454 N.E.2d 1330. In the instant action, a probate court took judicial notice of the entire record of the matter herein, all of which was known to appellant and his attorney. Any objection thereto was waived by failure to make a timely request to be heard as to the propriety of taking judicial notice. Evid. R. 201(E).
Lanning, 2003 WL 1473636 ¶ 38; Mercurio, 2003 WL 1473694 ¶ 45; Williams, 2003 WL 1473695 ¶ 61; Hunter, 2003 WL 1473696 ¶ 45.
There is no prohibition to a court's taking judicial notice of its prior orders in contempt matters. See Person v. Miller, 854 F.2d 656, 660 (4th Cir. 1988) (prior court orders noticed); Huber v. Marine Midland Bank, 51 F.3d 5, 9 (2d Cir. 1995) (Circuit instructed district court to take judicial notice of Huber's bankruptcy case as evidence of contemner's financial condition). The Fourth Circuit has recognized a problem only in criminal contempt where the contempt matter has been transferred to a different judge in matters which that judge had not witnessed due to the presence requirement in Rule 42(b). See U.S. v. Hawkins, 76 F.3d 545, 550-551 (4th Cir. 1996). Since Judge Maloney presided in all matters considered for contempt, the issue addressed in Hawkins does not arise. Moreover, federal case law establishes that the trial court may take judicial notice sua sponte so a motion from a party or prosecutor is unnecessary. Hawkins, 76 F.3d at 551; Person, 854 F.2d at 660. Compare U.S. v. James, 987 F.2d 648, 651 (9th Cir. 1993) (government failed to request judicial notice and trial court had not taken judicial notice itself).
In a nutshell, there is no clearly established federal law which would prohibit the trial court to take notice of counsel's actions or omissions from matters in which counsel had been involved. Goldberg has failed to establish that the claim was in a violation of clearly established federal law on these points or was an unreasonable application of such law.
CONCLUSION AND RECOMMENDATION
Following review of the petition and applicable law, petitioner has not demonstrated that he is in custody pursuant to judgment of a State court in the Lanning Estate which was the result of a decision that was contrary to or involved the unreasonable application of Federal law as determined by the Supreme Court of the United States or was the result of a decision based on an unreasonable determination of the facts in light of the evidence in the State court proceeding. See 28 U.S.C. § 2254(d)(1) and (2). However, he has established both prongs of this test with respect to his first ground with respect to the judgment finding him in contempt in the Estates of Mercurio, Williams and Hunter. Because the errors cannot be rectified except by issuance of a complete notice of charges in those contempt matters, and in effect resuming the court proceedings at their initial stage, it is recommended that the case be remanded for vacation of both the sentence and convictions in those three cases. There has been no demonstrated need for an evidentiary hearing. It is recommended that the petitioner's application for habeas corpus be granted in part.Further, the remaining portion of Judge Maloney's amended motion to dismiss concerning the merits of the claims should be denied as moot with respect to those claims withdrawn by Goldberg in his amended petition and granted in part and denied in part consistent with the recommendation.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of mailing of this notice. Failure to file objections within the specified time WAIVES the right to appeal the Magistrate Judge's recommendation. See, United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985)