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Tim Shoop, Warden v. August Cassano

Paid petition · United States Court of Appeals for the Sixth Circuit, No. 18-3761 · judgment June 17, 2021

Certiorari denied · June 21, 2022
Pre-decision estimate: 15% cert probability (95% interval 9%–24%)

Before the decision, about 3.6× the 4.1% base rate. The model weighted this up for counsel with five or more prior petitions here, a state or local-government petitioner, and a circuit split argued in the petition.

Questions presented

August Cassano is a convicted murderer. Before his state trial, he filed a “waiver of counsel” alongside a request for the appointment of counsel. Then, three days before trial, Cassano asked the trial court: “Is there any possibility I could represent myself?” The Ohio Supreme Court held that neither the “waiver of counsel” nor the question about selfrepresentation constituted a proper invocation of the Sixth Amendment right to self-representation. To invoke that right, a defendant must “clearly and unequivocally declare[]” his intention to proceed pro se, Faretta v. California, 422 U.S. 806, 835 (1975), and he must do so in a timely fashion, Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 161 (2000). The Ohio Supreme Court determined that neither a “waiver of counsel’ filed with a request for counsel, nor a question about the possibility of self-representation, qualified as a clear and unequivocal declaration of an intent to proceed pro se. Further, it held that Cassano’s question about selfrepresentation would have been untimely even if it had been a clear and unequivocal demand. The Sixth Circuit held that Cassano properly invoked his right to self-representation on both occasions and that the Ohio Supreme Court egregiously erred in holding otherwise. On that basis, it awarded habeas relief to Cassano.

  1. Should the Court summarily reverse the Sixth Circuit’s award of habeas relief?

  2. When a three-judge panel clearly errs in awarding habeas relief, does its decision raise questions important enough to justify en banc review?

Counsel of record

For petitioner
Benjamin Michael Flowers
Ohio Attorney General Dave Yost

For respondent
Erin Gallagher Barnhart
Federal Public Defender for the Southern District of Ohio, Capital Habeas Unit

Case

Conference history
Distributed for 14 conferences

Argument & decision

Decided June 21, 2022.

Proceedings

  1. Jun 21 2022
    Motion for leave to proceed in forma pauperis filed by respondent GRANTED.
  2. Jun 21 2022
    Petition DENIED. Justice Thomas, with whom Justice Alito joins, dissenting from denial of certiorari. (Detached Opinion)
  3. Jun 21 2022
    Record returned to the U.S. District Court for the Northern District of Ohio (4 boxes).
  4. Jun 13 2022
    DISTRIBUTED for Conference of 6/16/2022.
  5. Jun 06 2022
    DISTRIBUTED for Conference of 6/9/2022.
  6. May 31 2022
    DISTRIBUTED for Conference of 6/2/2022.
  7. May 23 2022
    DISTRIBUTED for Conference of 5/26/2022.
  8. May 16 2022
    DISTRIBUTED for Conference of 5/19/2022.
  9. May 10 2022
    Rescheduled.
  10. May 09 2022
    DISTRIBUTED for Conference of 5/12/2022.
  11. Apr 27 2022
    Rescheduled.
  12. Apr 25 2022
    DISTRIBUTED for Conference of 4/29/2022.
  13. Apr 20 2022
    Rescheduled.
  14. Apr 18 2022
    DISTRIBUTED for Conference of 4/22/2022.
  15. Apr 12 2022
    Rescheduled.
  16. Apr 11 2022
    DISTRIBUTED for Conference of 4/14/2022.
  17. Mar 30 2022
    Rescheduled.
  18. Mar 28 2022
    DISTRIBUTED for Conference of 4/1/2022.
  19. Mar 23 2022
    Rescheduled.
  20. Mar 21 2022
    DISTRIBUTED for Conference of 3/25/2022.
  21. Mar 16 2022
    Rescheduled.
  22. Mar 14 2022
    DISTRIBUTED for Conference of 3/18/2022.
  23. Feb 22 2022
    Rescheduled.
  24. Feb 16 2022
    DISTRIBUTED for Conference of 3/4/2022.
  25. Feb 11 2022
    Record received from the U.S. District Court for the Northern District of Ohio (4 boxes).
  26. Jan 06 2022
    Record received from the U.S. Court of Appeals for the Sixth Circuit. The record is electronic and available on PACER.
  27. Jan 05 2022
    Record Requested.
  28. Dec 22 2021
    DISTRIBUTED for Conference of 1/7/2022.
  29. Dec 15 2021
    Reply of petitioner Tim Shoop filed.
    Main DocumentProof of ServiceCertificate of Word Count
  30. Dec 08 2021
    Brief of respondent August Cassano in opposition filed.
    Main DocumentOtherProof of Service
  31. Dec 08 2021
    Motion for leave to proceed in forma pauperis filed by respondent August Cassano.
    Main DocumentProof of Service
  32. Nov 01 2021
    Petition for a writ of certiorari filed. (Response due December 8, 2021)
    PetitionAppendixCertificate of Word CountProof of Service