Gerth v. Warden, Allen Oakwood Correctional Institution, No. 17-4091 (6th Cir. 2019)Annotate this Case
In 2011, a Cincinnati officer ran the license plate number of an SUV and found that it had been reported stolen. The SUV stopped after the officer activated his emergency lights. When the officer stepped out of his cruiser, the SUV sped away. At over 75 miles-per-hour, the SUV raced through a downtown red light, swiping a vehicle, then slamming into a taxicab. The SUV hit a parking meter and caught fire; its driver ran, leaving his passenger, with leg fractures, inside the burning vehicle. Rescue workers freed the SUV passenger; he survived. The cab’s driver and passenger died immediately. Officers quickly apprehended the SUV’s driver, later identified as Gerth. Although Gerth suffered only minor injuries, police took him to a hospital, where a toxicology test revealed that he had alcohol, marijuana, and cocaine in his system. Gerth was charged with felony murder, aggravated vehicular homicide, aggravated vehicular assault, vehicular assault, leaving the scene of the accident, failure to comply with the order or signal of a police officer, and receiving stolen property. A half-dozen attorneys have represented Gerth throughout his trial, appeals, and collateral attacks. The Sixth Circuit affirmed the rejection of his federal habeas petition. Gerth procedurally defaulted a claim that his second appellate counsel failed to argue that the trial court improperly denied his request to proceed pro se. Gerth had no constitutional right to counsel in his reopened appeal and cannot excuse his procedural default.