*1 698 ],” disability-benefit plan, would the accident-or contract[ of its “standardized
terms coverage under the Citizens drafter not exclude the rule of construction precedents re- plan.1 Because this court’s force here. applies with additional Re- interpretation garding the rules of contract 206 (Second) of Contracts statement understanding of the exclu- dictate this cmt. a. unnecessary it is to look to provision, sions Second, precedent, by which prior our parties.2 respectfully I the intent of the bound, instructs that “an insurer arewe dissent. limita- duty express clearly the has a “any policy,” and thus tions its liberally in will be construed
ambiguity strictly against
favor of the insured and Regents the
the insurer.” Univ. Mich., (emphasis at add- F.3d 339-40 GILES, Petitioner-Appellant, Earl omitted). ed) (internal quotation marks v. Therefore, ambigui- we must construe the limitations of the Citizens ty as to the SCHOTTEN, Warden, James Citizens, policy against the insurer. Respondent-Appellee. Because these rules of construction di- No. 04-3708. ambiguity in rect us to construe the Citi- Appeals, United States Court provision against Citi- zens’s exclusions Sixth Circuit. zens, I that we must read “accident believe disability” modifying each of the Argued: Sept. 2005. it, including that follow “benefit.” terms Decided and Filed: June 2006. reading provision, the Under coverage MidMichigan’s under insured’s
plan, plan, which is a health-benefit not an suggestion, ing provision,” Maj. Op. (emphasis Contrary majority’s at 693 1. to the read- clause,” added), ing provision Maj. that it does not reach and "the intent of the plans added), does not render the Medi- health-benefit Op. (emphasis at 695 rather than the meaningless. language The inclusion of care Wulf, parties," "intent of the F.3d language "excluding Medicare benefits added). majority (emphasis This leads provided by government” in Citi- the federal Citizens, the intent of the drafter of focus on simply provision means that zens’s exclusions provision, giving while short shrift to the disability where an accident or a results in contract, party intent of the other Medicare, paid by benefits Citizens will reim- insured, Jacqueline a one- Bradshaw. Such burse Medicare for the cost of the benefits. inquiry produce sided cannot an accurate as- parties. sessment of the intent of the More- necessary 2. Even if it were to consider over, although majority that "[t]he claims majority parties, intent of the errs in its clear,” parties Maj. Op. intent of the is at 696 ascertaining parties’ approach to intent. parties’ majority's view of the intent n. prior majority acknowledges that our The " conjecture is based on mere rather than the interpreting precedent '[w]hen instructs that " ” language any pre- of the contract or evidence contract,’ only we 'look not at the lan parties. majority The credits sented guage, but also for additional evidence " self-serving statements that Citizens made re- contracting parties,’ reflects the intent garding its own intent in its brief to this court Majority Opinion (“Maj. Op.”) (quoting at 692 evidence, Quantum any supporting ex- without either Corp., Chem. Wulf language. (6th Cir.1994)) added). The trinsic or from the contract (emphasis instruction, majority's basis for the conclusion as to Brad- majority how misconstrues this ever, supported. underly- not evident or "the intent shaw's intent is as one to consider *2 to 28 corpus pursuant
habeas U.S.C. in the District Court United States for the Northern District of Ohio. The petition. ap- court denied the On *3 peal, the Sixth Circuit vacated judgment and remanded the case and, if for further factual neces- remand, sary, evidentiary hearing. an On ha- again the district court denied Giles’s granted a certificate of petition beas but appealability on the issue of whether the by deny- rights trial court violated Giles’s him an ing additional medical examination of the children who were the alleged appeals. Giles now victims. We petition. affirm the denial of the Cleveland, Doyle, T. ARGUED: William Ohio, Criss, Appellant. for M. Scott Office I. General, Columbus, Ohio, Attorney wife, In separated Giles from his Appellee.
for BRIEF: T. ON William Virginia April Beard. until Septem- From Cleveland, Ohio, Doyle, Appellant. J. outpatient ber Beard was in involved Bodine, Jr., Joseph Attorney Office of the drug treatment for alcohol and abuse. General, Columbus, Ohio, Appellee. time, During babysit- acted as a Giles ter for the two children and Beard GIBBONS,
Before: CLAY and Circuit together, Ashley. had Shannon and At the STEEH, Judges; Judge.* District time, living Giles was with Patricia Mor- GIBBONS, J., opinion delivered the of gan, girlfriend. his court, STEEH, D.J., joined. in which September Ashley In told her - CLAY, 709), (pp. J. delivered a vagina hurting mother that her her separate dissenting opinion. pulled and that her father had down her panties legs. and bit her between the OPINION Ashley emergency Beard took room GIBBONS, JULIA Circuit SMITH University at Hospital, but she refused to Judge. by allow a physi- herself to be examined May On Earl Giles was convict- cian. Some time later when Beard was pen- preparing Ashley ed on one count of felonious sexual to take back to the hos- pital, etration violation of Ohio Revised told Code Shannon her mother that she § gross something 2907.12 and one count of sexual had to tell her mother but did imposition in they violation of Ohio Revised not want to tell her until reached the § upheld hospital. hospital, Code 2907.05.The conviction was At the Beard heard January appellate say put state courts. On Shannon that her father had his 26, 1995, petition thing Giles filed a for a of writ her.
*
Steeh,
George
Michigan, sitting by designation.
The Honorable
Caram
United
of
Judge
States District
for the Eastern District
force,
15, 1992,
Amy
specification
Rich-
of
count four
Dr.
On November
gross
imposition
ardson,
pediatrician
charged Giles with
sexual
a board-certified
of
Re-
Professor
Pediatrics
of Shannon Beard
violation Ohio
Assistant
2907.05,
charged
§
Program
Code
count five
of the Child Protection
vised
director
University,
rape
Ashley
Beard in
Reserve
Giles with
Case Western
§
Hospital,
of Ohio
2907.02
and Children’s
violation
Revised Code
Rainbow Babies
force,
Dr. Rich-
count
Ashley
specification
and Shannon
with a
six
examined
gross
charged
imposition
no evidence
Giles with
sexual
ardson’s examination revealed
However, Dr.
Ashley
Beard
violation of Ohio Re-
Ashley.
of sexual abuse
re-
2907.05.
Richardson’s examination
Shannon
vised Code
hymen, a condition
an attenuated
vealed
*4
21, 1993,
April
plea
entered a
On
Giles
trau-
repeated penetrating
consistent with
guilty
charges.
not
on all
the
On
of
of
ma.
4, 2003,
compel
to
May
Giles filed a motion
10, 2002,
and
Ashley
On December
independent psychological and medical ex-
by Brenda
Shannon were interviewed
Ashley
aminations of Shannon and
Beard.
Wilson,
Joyce
a sexual
worker
abuse social
12, 1993,
Following May
hearing,
a
the
Department
Human
employed by the
motion,
denied
stating:
trial court
Giles’s
Services and unaffiliated with either
can’t
The Court
order
prosecution.
Spi-
defendant or the
Sandra
every
on
In
evaluation
witness.
this
nello,
by the
employed
a social worker
of trial
has
type
already
trauma
County
of Human and
Cuyahoga
Division
perpetrated.
If these two young
been
Walton,
Services, and
a
Family
Marvin
believed, assuming
are to be
girls
that
in
Police De-
police officer
the Cleveland
moment,
bringing
a
then
them
for
and
partment,
through
observed
interview
they
going
to Court and
are
to
down
trial,
mirror. At
testi-
two-way
Wilson
questioned by
Judge
have to be
fied
de-
prosecution
for the
that Shannon
testify,
they’re
to
then
competency
going
on
her fa-
scribed abuse inflicted
her
subjected
and cross-ex-
to be
to direct
using anatomically
ther
correct dolls.
here, if they
permitted
amination
are
to
testimony
Walton corroborated Wilson’s
you
And on
that
want a
testify.
top of
at trial
point. Spinello
on
testified
this
How much
psychiatric examination?
do
during
very
that
was not
verbal
Shannon
girls
put
two little
you have
these
ma-
interview and
Wilson did the
through?
stated,
talking. Spinello
jority of the
also
out
pointed
the defense counsel
she,
When
however, that
unlike
and Wal-
Wilson
response
facing
in
the court
that Giles
ton, did not have notes from the interview
sentences,
life
trial court stated:
four
session.
27, 1993,
beyond
your request
goes
I
January
Cuyahoga
On
Coun-
think
here
grand
obligation you may
indict-
have to
ty
jury returned a six-count
whatever
abusing
your
client
instance. Whether
sexually
ment
sound or
they
psychologically
and
one and two
were
Ashley
Shannon. Counts
charged
not excuse the acts
charged
rape
Giles with the
of Shannon
would
It
if
occur.
they
in violation of Ohio Revised Code
this indictment
did
is
Beard
force,
fact,
they
just
simple.
§
In
were
specification
2907.02 with a
unsound,
charged
psychiatrically
felonious
to be
count three
Giles with
found
make the
even more hei-
penetration
sexual
of Shannon Beard
would
crime
§ 2907.12
nous if the crime did occur.
violation of Ohio Revised Code
* (6th
519234,
conducted a voir
July
The trial court then
dire
1999 WL
at 3
Cir.
1999).
A
competency
magistrate judge
to determine the
recom-
examination
mended,
holding
evidentiary
without
children. The trial court found
hearing,
deny
the district court
Ashley to
competent
Shannon to be
but
be
10, 1997,
petition.
January
Id. On
incompetent.
petition.
district court denied Giles’habeas
jury
May
on
commenced
timely
Id. Giles filed a
appeal
notice of
prosecution’s
At
close
1993.
3, 1997,
February
Sixth Circuit
pursuant
the defense made a motion
also moved the court for a certificate of
Rule 29 for a judgment
to Ohio Criminal
appealability on March
1997. Id. The
acquittal.
granted
The trial court
the mo-
Sixth Circuit treated the motion as a mo-
regard
tion
relating
both counts
seeking
probable
tion
certificate
cause
Ashley,
regard
but denied the motion with
granted
on March
1998.
charges
all
relating
May
to Shannon. On
A panel of this court found that the district
17, 1993,
jury
convicted Giles of one
properly analyze
court did not
the state
penetration
count of felonious sexual
regarding
facts
the reason Giles
violation of Ohio Revised Code
2907.12
sought independent
psycho-
medical and
gross
imposition
one count of
sexual
*5
logical evaluations of the children because
§
violation of Ohio Revised Code
2907.05.
the court held that the district
im-
court
imprisonment
Giles was sentenced to life
2254(d)
properly applied
§
presump-
penetration charge
the felonious sexual
tion of correctness to the state court find-
years
and
imprisonment
two
to run con-
ings.
It held that it could not determine
currently
gross
on the
imposition
sexual
whether the
properly
state court had
ap-
charge.
timely appeal, argu-
Giles filed a
*
plied Ohio law to Giles’s claim. Id. at
6.
ing
ground
as one
on appeal that his con-
panel
therefore vacated the district
rights
stitutional
had been violated when
court opinion and remanded the case to
he was denied
opportunity
to conduct
the district court for the court to make
independent physical
psychological
ex-
specific findings or to conduct an eviden-
aminations. The Ohio Court of Appeals
tiary hearing on the factual
issues in-
14,
July
affirmed his conviction on
1993. volved. Id.
Giles,
65731,
v.
State
No.
violation of the court of instruc petition prior Giles filed his to the effec- scope of tions or exceed the the remand. and Effec- tive date of the Antiterrorism Here, when this court remanded the (AEDPA). Penalty tive Death Act Under case, it asked the district court to make its analysis a district pre-AEDPA we review purpose own as to the for which grant a writ of court’s refusal habeas sought girls, the examinations of the Giles Collins, 384 F.3d corpus de novo. Hicks evidentiary hearing. with or an without Cir.2004). (6th 204, 210 Schotten, 917, Giles v. 182 F.3d 1999 WL pursued 519234 at *6. The warden then appeal, argues On Giles
argument not addressed finding court erred in that the trial majority opinion and moved for appeals’ deny motion to court’s decision Giles’ that, summary judgment. argued He even require Ashley and Shannon to sub both sought per- if the examinations for a Giles mit to and medical examina purpose (essentially conceding for missible deprive of a fundamen- purposes of the motion that tions did 704 Court,
tally
Newspaper
fair
claims that he was
Superior
trial.1 Giles
Co. v.
457 U.S.
fundamentally
fair trial and
596, 607,
2613,
denied
102 S.Ct.
A right pro defendant’s to due noted, trict court the Sixth Circuit has not cess the criminal essentially context is previously process ruled on the due impli- right to defend himself cations, any, of the denial of a defen- charges the state brought against has him. dant’s for independent medical or result, As to confront and psychological examinations of his accusers. *7 cross-examine witnesses and to call one’s In this the medical examina
own witnesses is fundamental to a defen
tion was performed by
Richardson,
Dr.
process
dant’s due
rights.
v.
Chambers
who testified that she had examined over
Mississippi,
410 U.S.
93 S.Ct.
one thousand
(1973).
alleged
children for
sexual
Because Giles has not shown (6th Cir.1982)). Moreover, 987-89 state ruling state on Giles’s questions as to conclusions mixed of independent re examinations pure questions law fact or of law are fairness, denial sulted of fundamental presumption not entitled to the of correct- we affirm the district court’s denial 2254(d). § under *5 (quoting ness Id. at petition. Smith, (6th Cain 379-80 Cir.1982)).
CLAY, Judge, dissenting. Circuit agree I majority’s cannot with the deci- only Court issues should sion to affirm the order of the district address appeal connection with this are court. Because the district court failed to two unresolved errors the district court. previous abide this Court’s in- remand The district court committed first of structions, again this Court should remand these errors in initially when it failed this case to the district court it properly analyze Petitioner’s claim for may previous those follow remand instruc- time, habeas relief. Id. at At that *3. tions. argued that Petitioner the state trial court matter, As an initial process right because Petitioner had violated his pres- due filed petition his habeas before the enact- ent a defense his request when refused ment of the Antiterrorism and Effective to conduct psy- medical and (AEDPA), Penalty Death Act chological of 1996 alleged examinations of the vic- pre-AEDPA standard review applies. tims. Id. at *4. The pre- district court result, review, As a on federal habeas “the sumed be correct the finding factual generally state court be appellate ‘shall the state court that Petitioner’s ” presumed be only purpose correct.’ Giles v. seeking Schot- these examina- ten, 97-3218, No. WL at *4 challenge veracity was “to tions of [the (6th 1999) Jul.16, (unpublished Cir. alleged deci- testimony inculpating victim’s] trial sion) 2254(d) (1994)). (second (quoting 28 U.S.C. [Petitioner].” Id. alteration *9 (internal presumption applies This to original) quotation the factual marks and ci- omitted). findings appellate of state trial and courts. tation court district then Mata, Id. (citing Sumner v. 449 legal U.S. deferred to the conclusion of the 545-46, appellate that, 101 S.Ct. 722 L.Ed.2d state court under State v. Stowers, In Boston, Supreme State v. the Ohio 545 N.E.2d 46 Ohio St.3d (Ohio only that “ex- 1989), testify explained to Court Boston expert may an not as testimony offering opin- cludes an expert veracity testimony, aof child witness’ the ion as to truth of a statements the child’s properly disal- that the state court so (e.g., appear the child does or not to does examinations. requested Petitioner’s lowed to fantasizing pro- be have been Id. not grammed, or is or is truthful accus- judgment the of the This Court vacated ing particular person).” 690 N.E.2d First, the grounds. district court two (Ohio 1998). pro- Boston “does not presumed it the district court erred when sup- testimony scribe which is additional finding to be appellate state court’s factual port for truth of the testified to the facts correct, finding because the factual was child, by the or which the fact assists Id. at *5. supported not the record. assessing veracity.” finder in the child’s found, the appellate The state court and removed). Thus, if (emphasis Id. even that presumed, court Petitioner’s purpose seeking Petitioner’s the exami- in seeldng the examinations purpose sole nations to find that would was evidence challenge veracity alleged the of the was to jury assist the determining the whether however, testimony; “there [was] victim’s truth, child telling purpose this ample showing evidence the record Peti- Boston, an long would valid under as be sought the examinations to collect tioner expert testify veracity did support theory his independent evidence to testimony. the child’s abused, girls that the were not and little the district court failed to ex- Because fairly support finding to that evidence amine the record determine whether sought only Petitioner examinations supported appellate factu- the state credibility.” their Id. This evi- challenge al court finding, and because the district (1) included: the fact that Petitioner dence failed to examine Ohio case law with re- a medical al- sought examination Boston, spect to this in 1999 Court ruled victims, legally which could be irrele- leged that the district court when it failed erred attacking veracity al- vant ap- properly analyze Petitioner’s habeas (2) testimony; leged victim’s fact error, plication. In this order correct specifically Petitioner’s counsel stated that the Court of the examinations was to purpose judgment and re- evidence, below vacatefd] independent arguing “[a]ll obtain make to the district court to produce. mandad] what will we have is the State specific findings or to conduct an eviden- no than We have access other (3) tiary hearing on the factual is- for”; relevant asking that is what we are and, ultimately ap- sues in rebutting the fact that when propriate, legal address issue expert, prosecution’s of the medical Peti- his the State denied Petitioner whether again proclaimed tioner’s counsel Petition- right to a defense present constitutional an medical er’s have in denying opportunity him the to obtain alleged examination of the victims. Id. (alteration physical examinations in the original). him. witnesses
Second, the district court erred when it Giles, 519234, at *6. 1999WL legal to the erroneous conclusion deferred following unambiguous appellate of the state court Boston Instead of Court, prevented expert of this testifying from as to instructions compounded by explicitly initial veracity testimony. of a child its error witness’ *10 708
deciding any findings Certainly, not to such change make or to no in circumstances evidentiary hearing conduct an on the filing rele- resulted from the of a warden’s mo- legal vant factual issues to address the summary tion judgment following for re- issue of whether Petitioner denied his judge mand. The district should have sim- defense, present a constitutional ply followed the remand instructions and disregard unmistakable of Court’s in- any dispositive deferred consideration of Moreover, only not did structions. the motions until the district court had com- instructions, ignore district court our but it plied with the instructions it received from beyond scope also went of this Court’s Appeals. the Court of by proceeding instructions entertain a examples majority The lists with summary judgment motion Peti- respect changed that al- circumstances open This disregard tioner. of this Court’s stray low the district court to from remand only baffling, instructions is not it is a highly If, distinguishable. instructions are rule, of direct violation the mandate which dies, a example, party there is the “ compliance ‘compels on remand with the possibility ju- that district court has no ” the superior dictates of court.’ United risdiction there case or because is no con- O’Dell, (6th States v. 320 F.3d Likewise, troversy. if a claim becomes Cir.2003) (quoting United States v. Ben moot, juris- a district court cannot exercise Zvi, (2d Cir.2001)). 242 F.3d The diction over the claim there because is no “ rule also mandate states ‘a district controversy. case party when a And court scope is bound the remand amends pleading, by its then nature that ” appeals.’ issued the court of Id. alters the case or controversy before the (quoting Campbell, United States v. district simply court. There was no such (6th Cir.1999)). short, F.3d In case; change in the instant the warden the district court’s error in its treatment of merely summary a motion judg- filed first, is this case two-fold: the district ment. analyzed court erred when it improperly Petitioner’s habeas The application; principal difficulty majori- and sec- with the ond, when, ty’s the district court erred on opinion re- is its contention that the mand, not it did resolve initial error necessary were not examinations reveals to the according directive this court. the majority’s disagreement with the re- mand prior instructions of the Court of majority opinion forth the sets novel Appeals panel which appeal considered the position and unusual district court By this case in 1999. asserting that ignore can simply remand instructions those remand inappro- instructions were if, Appeals from the Court priate signaling disagreement its opinion, the district court believes prior panel, majority for all prac- that it changed is confronted with circum- tical purposes is that our advocating panel practical import stances. The of imple- sit reviewing as a the prior over menting majority’s is views to encour- so, panel’s By doing only decision. age the is judges may few who it rule violating panel that no of our occasion wish to circumvent remand Court can Appeals. prior panel, instructions of overrule see LRL the Court In Auth., Properties Portage contrary majority’s instant Metro Hous. (6th contention, Cir.1995), changed there 1105 n. 2 were no circum- but justified usurping stances which could have is also the en dis- role of banc trict court’s failure to follow the Court. Compliance prior remand with the remand from of Appeals. instructions required Court instructions is therefore out of *11 prior panel’s decision respect BARNES, Plaintiff-Appellee, Moreover, Wilbur such of this Circuit. rules difficult not be
compliance would in- achieve; remand following the after Tony al., et Defendants- the dis- WRIGHT appeal, the 1999 from structions Appellants. proceed litigation with court could trict normally would. Because No. 04-6288. the instruc- completely disregarded simply I opinion, of our would prior tions Appeals, United Court of States to the district court remand the case Circuit. Sixth may proceedings consistent that it conduct Nov. 2005. Argued: prior opinion. with and Filed: 2006. Decided June views majority’s highly questionable obligation of district courts regarding the instructions, they be-
to follow remand unto- accepted, could have the widely
come encouraging some obstinate result of
ward ways search for creative courts to remand instruc- complying avoid with they disagree; could
tions which encourag- have the untoward result
also “judge shopping” engage
ing parties par- shopping” by encouraging “panel until find multiple they appeals
ties to take which will release Appeals panel
a Court of a requirements from
them the remand hyperbole to state panel. It is not
prior majority’s implementation
that the
views, contrary being addition of the federal procedures
policy
courts, ultimately jeopardize could
ability superior supervise courts system. in the federal
the lower courts respectfully
I therefore dissent.