Lincoln Isaac v. Ted Engle, Superintendent Chilicothe Correctional Institute, Respondent

ISAAC, Petitioner-Appellant, Lincoln ENGLE, Superintendent Chilicothe

Ted Institute,

Correctional

Respondent-Appellee.

No. 78-3488. Appeals,

United States

Sixth Circuit. 22,

Argued Feb. 8, 1980.

Decided Feb.

H23 PECK, JOHN W. Senior Judge. Circuit principal issue in this appeal is whether the Due Process Clause limits the selective denial of retroactive benefits of a new statutory interpretation, where denial upon is based comply failure to with a State’s rule. In petitioner Lincoln Isaac was con- by victed an Ohio of one count of aggravated trial, assault. At his appellant relied on Ohio’s affirmative defense of self- defense. The trial court instructed the jury that defendant bore the burden proving his affirmative defense a preponderance of the charge evidence.1 This accorded with the prevailing Ohio, law in peti- and tioner objection. made no Subsequently, Supreme Court of Ohio held that legislature changed had the burden of proof for all Ohio, affirmative defenses in including self-defense. Interpreting Ohio Revised 2901.05(A),2 Code § enacted in 1974 (but 1978; amended in pp. see 1127-1128 in- fra), the court held that when a defendant pleads the affirmative defense of self-de- fense, only he has the burden going forward with evidence sufficient to raise defense, and does not have the burden of establishing the a preponder- ance of the Robinson, evidence. State v. McKirahan,. Jay Columbus, Ohio, F. Lin- Ohio St.2d 351 N.E.2d 88 Isaac, se, pro coln Kingsley, James R. Cir- eleville, Ohio, petitioner-appellant. for In the Ohio court appeals, petitioner argued that the trial court’s instruc- Brown, Atty. William J. Gen. of erroneous, tion was citing Robinson. That Karas, Gen., Simon B. Atty. (Div. Asst. court of appeals conviction, affirmed Isaac’s Activities) Columbus, Ohio, Criminal for re- holding that his failure at trial spondent-appellee.

waived any error in the jury instructions. CELEBREZZE, Before Judge, appeal Circuit An Supreme Court was PECK, PHILLIPS sponte Senior Circuit dismissed sua for want of a substan- Judges. tial question. Isaac, constitutional State v. judge anee, 1. The trial instructed the as follows: then the defendant has not established (Transcript The burden of such the defense of issue self-defense. self- upon 227-228.) defense is the defendant. He must es- preponderance tablish such defense “Every person preponderance pre- the evidence. accused of an Now a offense is greater proven weight guilty beyond sumed evidence is the dence, innocent until of the evi- is, doubt, you evidence that reasonable believe be- and the burden of is outweighs your cause it prosecution. or going overbalances in The burden of opposed mind the evidence that is to it... . forward with the evidence of an affirmative weight equally If the evidence bal- defense is the accused.” Ohio Rev.Code you anced or if are unable to determine 2901.05(A). preponder- which side of an issue has the Carolina, July 1977). North (Ohio Sup.Ct., No. 77-412 petitioner’s appeal In v. Hum- day that 53 L.Ed.2d 306 State On the same however, dismissed, phries, supra, the Ohio the Ohio Court de- ease, Court, supra, held its Robinson cided to in another retroactively to all matter of state law.3 Ac- applicable retroactively to be as a decision cordingly, grapple the effective date we need not with the criminal trials held after Humphries, question obligated 51 of whether was to of the statute. State v. Ohio Ohio 95, (1977). However, process. 1354 do so as a matter of due St.2d 364 N.E.2d despite holding, that the Court refused to view, single appeal In our issue in this retroactivity to extend the benefits of Supreme is whether the decision Humphries because of his failure to to withhold from Court charge at trial. Id. to the erroneous at 2901.05(A), as the benefits of established 102, 364 N.E.2d 1354. Robinson, comply in for failure to State v. exhausting with Ohio’s

After his state court reme- deprivation process. dies, was a of due Isaac turned to the federal courts for relief, filing petition writ of for a habeas The decision to a new rule corpus, asserting that he was entitled to the retroactively prospectively essentially or application retroactive State policy, one of and is thus a determination to supra, as a matter of federal constitutional by appropriate be made state action. Once peti- law. court The district dismissed give the determination to effect retroactive grounds appellant tion on the that had made, however, to a new rule has been shown neither cause for his to failure right benefits of the conferred may not be prejudice nor to as a arbitrarily. generally, withheld Ameri faulty charge. appeal result of the This Express Kentucky, can Ry. Co. v. 273 U.S. followed. 269, 353, (1931); City 47 71 L.Ed. 639 S.Ct. Vester, (6th of Cincinnati v. 33 F.2d 242 matter, preliminary As a we note Cir.), aff’d, 439, 360, 50 S.Ct. 74 ordinarily that the Constitution does not (1930). L.Ed. 950 require the retroactive of a new interpretation of a statute. e. Hal Respondent that the insists criterion used States, 831, liday v. 394 89 United U.S. S.Ct. By Supreme Court State v. 1498, (1969). 23 L.Ed.2d On the other 95, 102, Humphries, supra, 51 Ohio at St.2d hand, pertains where the statute to an af 1354, N.E.2d limit the application to firmative and the statute is con approved was the Su- strued to make the absence of the affirma preme Court of the United States Han- tive defense an element of Carolina, supra. kerson v. North In Han- crime itself a different result is mandated. kerson, Supreme of North Court Caroli- case, In such a the constitutional doctrine imposed na held that a instruction that Wilbur, Mullaney announced in U.S. burden self-defense 684, 1881, (1975), 95 S.Ct. 44 L.Ed.2d 508 process defendant was violative of due un- 358, Winship, and in In re Supreme der the Court’s decision in Mulla- S.Ct. (1970), 684, 1881, requiring ney 25 L.Ed.2d 368 prosecution prove every to element of a 44 L.Ed.2d 508 Hankerson doubt, beyond crime appli Mullaney reasonable has tried before the date on which Egeler, (6th Concluding cation. Berrier v. 583 F.2d 515 was decided. that it was not Cir.), required apply Mullaney cert. v. Wilbur retro- U.S. S.Ct. (1978), actively 58 L.Ed.2d 347 and the Due Process to a conviction that occurred before requires interpretation Supreme Clause that the new the date on which the down, applied retroactively. Hankerson v. decision was handed the North Caro- Every Paragraph syllabus four of the in State v. criminal trial held on and after Assembly Humphries required “The en- that date is to be conducted in accord- reads: General January provisions acted R.C. 2901.05 to be effective ance with the of that section.”

H25 lina court affirmed Hankerson’s conviction. whether the means selected the Ohio reversed. It held Humphries, Court that supra, bear a designed where a new constitutional rule is “ real and substantial relation to the ends aspect sought ‘to overcome an of a criminal trial to be attained the use of its substantially impairs truth-finding its deny rule to the benefits of ” function,’ applied the rule must be retro- retroactivity petitioner. Therefore, to the actively. 432 justification S.Ct. we turn to pro- for Ohio’s 306; quoting City Ivan V. v. requires cedural rule that a defendant York, New challenge jury S.Ct. instructions at trial or not at all. Hankerson, language Williams, supra relied In State v. 51 Ohio St.2d bar, by respondent on in the case at (1977), came in 364 part N.E.2d 1364 vacated in sub partial response state’s contention nom. Williams v. retroactivity devastating would have a handed

effect on the justice. administration of To day petitioner’s down on the same that ap- argument, this replied peal dismissed, the Court in a foot- was the Court of note that a “may be able to insulate paragraph one of syllabus,5 the past by enforcing convictions the normal said: and valid rule that failure to to a appellate An court need not consider an

jury any instruction is a waiver of claim of party error which a complaining of the See, g., error. e. Fed.Rule Crim.Pro. 30.” trial judgment called, court’s could have 8,97 at 244 n. at 2345-46 n. call, but did not to the trial court’s atten- 53 L.Ed.2d a 306. Ohio has similar rule.4 tion at a time when such error could have been by avoided or corrected the trial by cited respondent footnote was dic- court. Hankerson, tum. The like the here, appellant failed to to the In the opinion, text of the Williams the instructions at trial. The North Carolina court went say: on to pass validity Court chose to on the Any other rule relieve would counsel instructions, Thus, of the nevertheless. the any duty from responsibility or question may of whether a state constitu- place court and the entire responsibility tionally utilize its rules to bar give the trial court to faultless in- ruling the of a retroactive was possible structions every feature of not before the Court. case, thereby disregarding entirely the true relation of court and counsel Court, course, This is not con enjoins which upon counsel duty to Moreover, by trolled dicta. we need not exercise diligence and to aid the court pass question whether, gener on the as a rather than silence mislead the court rule, al may required defendants be to raise into commission of error omit- [citation objections their to instructions at trial. Ohio.St.2d 364 N.E.2d at ted]. specific We are confronted here with a fac required tual situation in which we are Thus, decide whether the state court’s decision in it is clear that the end which the instant case was arbitrary capricious. or the contemporaneous objection rule seeks to Thus, applied appeal the test to be on this is achieve is to make proceedings trial as error Procedure, Law, only points 4. Rule Ohio Rules of Criminal 5. Under Ohio of law set that, expressly provides party may syllabus not out in the “[a] are considered to have the assign giving give law, opinion as error the or the per failure to force of unless the is curiam. any objects body unless he thereto be- opinion The statements made in the fore the retires to consider its verdict .. . writing judge are the conclusions stating specifically See, State, the matter to which he ob- opinion. g., e. Haas St. jects grounds objection.” and the of his 132 N.E. 158 Glaros, also State v. 170 Ohio St. N.E.2d it said: Wainwright Sykes, “[S]elf possible. as free defense, which 2497, 2508, affirmative defense is an preponderance rule does not assume (1977). The must be established always (State [1973], avoid or cor- court will v. Seliskar that a trial the evidence asserted; did, appellate 582) if it rect the error 298 N.E.2d Ohio St.2d But, needed. as State respect would not be With courts N.E.2d at 676. Id. at Williams, rule does supra, suggests, 2901.05, stated: “The the Court further to § for the assertion that some basis assume to effect using reasonable force defense of tenuous, exists, can however error ... affirmative arrest ... is an a citizen through diligence of counsel discovered (R.C. 2901.05[C][2]) places to the trial presented good faith the evi going forward with the burden of another consideration. Stated court for its (R.C. 2901.05[A]) to upon the accused dence contemporaneous objection rule way, the preponderance prove that issue existence contemporaneous presupposes Seliskar, (35 supra evidence. See State principle applicable legal some 582).” N.E.2d Id. at Ohio St.2d trial. proceedings 330 N.E.2d at case, principle that the present In the Rogers language quoted from proving must bear the burden of defendant Therefore, peti at the time of was dictum. defense of self-defense the affirmative trial, question of who must bear tioner’s prior to the enactment well-settled de burden of the affirmative 2901.05(A). e. Revised of Ohio Code self-defense had not been defini State, (1871); fense of see 22 Ohio St. Silvus Nevertheless, Seliskar, we believe also, tively answered. v. 35 Ohio St.2d State v. (1973), cases cited therein. the decision to State N.E.2d 582 and trial, strong no Ohio appellant’s supra, retroactively At the time of evidence indicated that the recognized court had held or even that its Supreme the Court The modified the common law. changed statute had the law sub Robinson decision had new accompanied committee notes that the stantially. existing in statute reflected no alteration circumstances, We hold that in these the accompanied was the statute a

law. Nor trial cannot bar the failure table, explain sometimes used to transition application the retroactive petitioner from law, prior a statute on the effect of new Robinson, supra. v. of State including the new law is to be the date stated, contemporane- previously the As phased out. e. phased in and old objection presupposes rule the existence ous Ann. 2903.01 and §§ Ohio Rev.Code legal principle capable being of ad- of a 1975). (Page 2929.04 The standard Ohio Yet, objection. in the support vanced to an Instructions, Jury placed which the burden bar, every recognized authority on case at self- the affirmative defense of defenses in Ohio as well as dic- affirmative by preponderance of the evidence Supreme tum from the Ohio Court rein- defendant, unchanged af on the remained of the trial court’s propriety forced the 2901.05(A). 4 ter the enactment of 0.3.1. § Thus, existing pro- law charge jury. to the Further, (1970 ed.). Criminal 409.60 objection an to the court’s no basis for vided leading perceived treatises no variation To jury instructions at the time of trial. prior from 1 Anderson’s Ohio Crimi law. objection in these circumstances require an (1975 Procedure 52.15 nal Practice and § doing of a vain act. require would be to Katz, ed.); and L. Ohio Crim O. Schrader are, therefore, led to the conclusion that ed.). We Practice, (1974 inal Law Tit. 29 at relation there was no real or substantial gave Finally, Supreme the Ohio cre contemporaneous the use of the 2901.05(A) between dence to the view that had not § retroactivity in when, objection rule as a bar to v. altered the common law pur- avowed the instant case and the rule’s Rogers, 330 N.E.2d 674 43 Ohio St.2d (1975), pose. In O’Connor cert. (1966), major petitioner’s thrust of Ct. Su- claim was, is, not directed constitution-

preme the failure to Court held that itself; ality of instruction but rath- long at trial to a that Ohio had practice er, challenges it centers the con- deprive allowed could not stitutionality of the Ohio practice in right his the state to attack that application selective its State v. subsequent following courts its invalidation petitioner’s decision while conviction was The Court reasoned Court. pending still on review the state courts. charged that defendants cannot with supra, Wainwright Sykes, applica- is not anticipating invalidating decisions future appellant’s ble to prong peti- this second Though past practices. O’Connor involved tion. claim, attempted of a federal assertion petitioner’s Since we find selective retro- logic we believe the that decision to be meritorious, activity claim to be we do not equally persuasive the context of necessary appellant’s deem it to address present case. further that the assertion on district court’s Wain reliance at his trial were unconstitutional. Conse- wright Sykes, S.Ct. it quently, unnecessary pass is also appellant’s to dismiss the question of Isaac whether established petition misplaced. petition Insofar as prejudice predicate cause and aas to habeas er claims that he was entitled to attack review of that latter claim. collaterally constitutionality of the jury disposition In our of this case we are basis of Mullaney instructions on the not unmindful of the amendment supra, Assembly General Ohio R.C. his despite pre L.Ed.2d 508 failure to 2901.05(A), effective November properly trial, serve the issue his state That again requires section affirmative de provides Wainwright Sykes the initial by preponderance fenses to be established test for review. Absent federal habeas a of the evidence. If section were to this showing the noncompliance of cause for have retrial any might with Ohio’s holding, result from our conclusion prejudice, and some actual showing of fed might be considered senseless since on re eral of corpus Mullaney habeas review his pertinent trial the instruction would be e. Egel claim is barred. Berrier v. original identical at the given to that trial. er, Cir.), (6th 583 F.2d cert. 515 439 However, apparent any it is that such re 955, 99 354, 58 (1978). U.S. S.Ct. L.Ed.2d 347 trial purview would not fall the of under proper It was district court apply for the to 2901.05(A) amended because section such the prejudice cause and test to this branch procedure clearly impermissible would on claim, petitioner’s though of express we no U.S.Const., post I, ex grounds. facto art. opinion as to the soundness of its conclu 10, Williams, cl. United States v. See test, Having however, sion. the applied 244, 475 the U.S.App.D.C. (D.C.Cir. 154 F.2d 355 1973), court’s task half only was finished. and cases therein cited.6 This cir “Every legal (1900), Utah, quoting Hopt law that the rules 1015 alters of evi- 110 U.S. dence, less, 574, 202, testimony, (1884); or different 4 receives S.Ct. 28 L.Ed. 262 see also States, required Landay 698, (6th than the law at the time of the com- United 108 F.2d 705 offense, 1939). not, legislature may mission of the in order to convict the Cir. under “[T]he Bull, post guise establishing procedure offender ex [is facto].’’ Calder v. 3 the of modes of 305, 309, 386, ., 390, accepted principles U.S. 3 1 Dali. L.Ed. 648 violate the that (1798). “Any statutory protect against legal person post alteration of the an accused ex facto 596, 733, rules of evidence would authorize con- enactments.” 21 which 181 U.S. S.Ct. at Malloy proof, degree, viction in 45 less amount or L.Ed. 1015. See also v. South Caroli- na, 180, 507, required than was the offense was com- 237 when U.S. 35 S.Ct. 59 L.Ed. 905 mitted, Missouri, offense, (1915); 377, ought, respect in of that to be Duncan v. 152 U.S. 14 570, Utah, (1894); Hopt obnoxious to the constitutional inhibition S.Ct. 38 L.Ed. 485 Carolina, 574, 202, post (1884); ex facto v. North 28 262 laws.” Mallett 4 S.Ct. L.Ed. 589, 595, 730, 733, Missouri, 221, Kring (7 Otto) U.S. 21 S.Ct. 45 L.Ed. view, objection, palpable the existence of a require, in our an would cumstance raising that of had no valid the the here Isaac’s reason to to counsel instruction of self-defense does judge’s to trial on affirmative obligation of its of state not relieve the To the contrary, the issue self-defense. of be offense proving every element however, based on objection the consti an doubt and that the de yond a reasonable subsequently in infirmity tutional isolated prov bear the burden of does not fendant Mullaney v. 95 S.Ct. by preponderance a ing such defense (1975) always L.Ed.2d evidence. available; is, could have objected Isaac placed upon the instructions him the is re- judgment of the district court violation of proof princi with di- burden of in the case remanded versed and corpus ples expressed writ of to in In re grant process to habeas Win rections shall unless State of Ohio ship, 397 S.Ct. trial within grant a new a reasonable him by the court. time be fixed district to I separately I write because believe that speculation whether such as to Isaac’s coun- CELEBREZZE, Judge, concur- Circuit objection could raised an sel or should have ring. predicate trial for hypothetical is too in this focus case is whether primary procedural of a state federal interdiction with due uti- process, consistent may, ground equally rule. It is an uncertain for objection to contemporaneous lize rule its denying new trial which the Isaac a its deci- bar effect to Robinson retroactive burden defined as Robinson Hum- Having sion. concluded State v. applies. Admittedly, federal interference phries, 364 N.E.2d 1354 51 Ohio St.2d objection with contemporaneous Ohio’s (1977) should retro- that Robinson proceed cautiously light should attempts deny now to Isaac spectively, Ohio applica- deference to the the retroactive benefits of g. tion of rules. e. state his to because counsel failed Wainwright Sykes, instructions on at trial This L.Ed.2d 594 deference the issue of self-defense. in light takes on dimension an added In failure to accord analyzing Ohio’s Justice White’s observation Hankerson v. benefit Isaac retroactive n.8, Carolina, North employs a standard of review majority some to discover rational rela seeks that a to use might proce- state be able its purposes tionship between that Ohio’s past dural rules to insulate convictions from objection designed contemporaneous rule is legal From a collateral attack.1 techni- reason for which that rule serve and the offers viewpoint, cian’s this dicta a viable majority in this case. The invoked impact full avoiding avenue for of Mul- utilization of the contem concludes that the laney. poraneous objection rule to bar retroactive that, despite Although Mullaney I believe application is an ex arbitrary of Robinson constitutionally permissible is procedural ercise law consti it of state process. for a self-defense as an af deprivation tutes of due This is state to treat so, reasons, prosecution that the majority because the con firmative defense need doubt, temporaneous negate objection presupposes beyond not a reasonable see Garland, (4 (1883); challenge 1. Were directed L.Ed. 506 Ex Parte here to the sub- instructions, 333, (1867); Wall.) Frisby stance use of 18 L.Ed. 366 v. Unit- of the a contem- also, States, (1912). poraneous preclude App.D.C. objection 22 rule to ed 38 See habeas corpus justified. generally, Croseky, Meaning might True Frazier review 994, Weatherholtz, (4th 572 F.2d Provision of Ex Post Facto 997-98 Cir. Constitutional Jackson, Laws, 1978). States v. 539 See also United 569 14 U.Chi.L.Rev. 1003, 1978). (7th F.2d 1008-09 Cir. York, 197, 210, process requires New Patterson v. Isaac receive the bene- 2319, (1977); 53 L.Ed.2d 281 interpretation. 97 S.Ct. Bern fits of that court’s Accord- 515, (6th 583 F.2d Egeler, er v. Cir. ingly, I judgment concur in the court J., 1978) (Engel, dissenting), cert. awarding the writ. 955, 347; 354, 99 S.Ct. U.S. Garoiina, v. North

cf. Hankerson

233, 2339, 245, 97 Blackmun, J., concurring, Ohio Su

preme interpreted has O.R.C. 2901.-

05(A) place so as defendant

only going forward with evi burden ISAAC, Petitioner-Appellant, Lincoln dence sufficient to raise the defense. State Robinson, 47 Ohio St.2d 351 N.E.2d ENGLE, Superintendent, Ted Respondent-Appellee. expressed by As a unanimous Court in Hankerson, placement definition No. 78-3488. proof is a aspect burden of fundamental United States Court of Appeals, truth-finding process of a criminal Sixth Circuit. Hankerson, supra, trial. 432 U.S. at 243- at S.Ct. at 315-316. Argued June 1980. 370-72, Winship, See also at Decided Dec. 1075-1976, S.Ct. at 25 L.Ed.2d at 378 As Modified Dec. (Harlan, J., concurring); Speiser Randall, 513, 525-26, (1958); generally,

L.Ed.2d 1460 see Jeffer- Defenses, Stephen, Presumptions

ies & Law,

Burden of in the Proof Criminal (1979). Protecting

Yale L.J. truth-

finding precedence function must take over expressed

a state’s concerns in a such, As rule.

denying to a defendant a trial under what Court has concluded to proper

be the allocation of the burden of process to a amounts denial of

law.

Redefining proof placed the burden of defendant,

upon a whether it be a new rule or by statutory

constitutional a new

interpretation dimension, of constitutional

has a impact upon substantial a criminal truth-finding

trial’s In function. such situ-

ations imperative. retroactive

Hankerson, supra, quoting Ivan V. York, City 204-05, of New

Since the Ohio decision significantly affects the burden defendant, placed upon to

Case Details

Case Name: Lincoln Isaac v. Ted Engle, Superintendent Chilicothe Correctional Institute, Respondent

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 8, 1980

Citation: 646 F.2d 1122

Docket Number: 78-3488

Court Abbreviation: 6th Cir.