Robert Melchior v. Arnold R. Jago

CONTIE, Bеfore JONES Circuit BROWN, Judges District Senior Judge.* JONES, Judge. R. Circuit NATHANIEL Robert Melchior was in- aggravated aggrava- dicted for murder and robbery Montgomery County, ted Ohio. counts, to both Though plead guilty following verdict branded charged. He was sen- guilty Melchior charge to death on the murder tenced on the years imprisonment robbery to 7-25 consecutively. run charge, the sentences to affirmed the The Ohio Court * Brown, Wesley designation. The Honorable E. United States Kansas, sitting District for the District of respects. conviction and sentence in all On versions are substantially similar to Melch- 4, 1976, thе October testimony ior’s together provide trial and conviction, affirmed the but modified the the basis for the following recitation of the death imprisonment. sentence to life facts.

A for a writ petition of habeas According petitioner, Krista ap- was filed with the District for the proached him while he was playing pool at Ohio, District of Southern Western Divi- Lounge. the World Krista told him that he petition sion. The challenges murder had He then invited Melchior to $200. his conviction on the basis of the trial court’s apartment to have some beer and to listen instruction on self defense. Jury The was petitioner accompanied his stereo. The petitioner instructed that had the bur- apartment Krista to his with the intention proving den of this affirmative by defense taking stereo, the money and the but preponderance of the evidence. The peti- having with no intention of sexual rela- tioner claims that this was an erroneous keeping tions. with this plan, peti- placement is, of the burden and that he tioner rebuffed Krista’s advances and re- thus, entitled to habeas relief. The district quested another beer. When Krista re- claim, court did not address this substantive beer, turned with the second Melchior told refusing grant the writ on the basis of its give Krista to him money and to take conclusion that Melchior procedurally was him back to the petitioner bar. The claims barred from raising by issue his failure produced that Krista then a knife from the to object to the given. instruction when side of the couch or the of his right side appeal This followed. pants. Melchior grabbed the blade while moving While we behind Krista putting conclude that the district and his arm analysis court’s around Krista’s began issue was nеck. He punching incorrect, fist, we also Krista with right conclude that the trial his the while defense, court’s instruction on self if erro- applying pressure increased to his neck. all, neous at was relaxed, harmless a reason- When Krista the petitioner re- able doubt. Accordingly, we affirm the leased him drop and watched him to the district judgment court’s denying habeas floor. Melchior claims that because Krista relief. was gasping for breath when he left apartment, he thought Krista had not been

I. seriously car, wounded. He took Krista’s the evening 22, 1976, On stereo January and cash. petitioner was apparently with some friends Krista’s body found January at the World Lounge, place frequented 1976. He was face down on the floor with

homosexuals. He leaving was seen his completely head beneath a small table lounge deceased, with the Paul Krista. A covered with blood. There were blood that, witness testified leaving before walls, stains on the living room furniture bar, the petitioner indicated that he had and door. A knife blade covered with blood met a man with who had invited him $200 was near the body with the handle broken tо a nearby apartment. The petitioner al- off. The blood was that of the victim. A legedly said that he planned pretend broken vase was body beside the and a he would willing engage in sexual partial palm print taken a piece relations for the sole purpose obtaining that vase petitioner’s. matched the Krista’s the money; he planned “game” Paul injuries were extensive. He had various Krista. cuts and bruises covering his and body 24,1976 January

On again on Febru- was a stab wound in back, his lower left 25, 1976, ary the petitioner provided state- extending through right lower lobe of ments of the leading events to Krista’s lung. The neck had two puncture death. The statements were recorded and wounds on the side. Based on a series subsequently played jury. observations, These of detailed the coroner opined did the failure court address asphyxiation district had died that Krista believed that object at trial. court after he strangulation manual caused contemporaneous of the state violation stabbed. had been cause showing of objection rule mur- for Krista’s indicted ‍‌‌​​‌​‌​​​‌‌​‌​​​‌‌‌​​‌​‌‌​​‌‌​​‌​‌​‌‌​‌​‌​​‌‌​​‍and tried When Wainwright v. prejudice under actual had act- der, claimed petitioner 53 L.Ed.2d Sykes, 433 specif- The trial in self defense. ed could be (1977)4 petition before charged ically in the fact heard. The court did find cause defend- self defense proving the bur- traditionally placed that Ohio had could be met ant and that burden self on the defend- den aby prepon- were established the defense had ant and the objection No derance of evidence. trial, departure its the time of announced given. such, when rea- charge to the view. As the court raised from that soned would Court of the Ohio The Ohio would that an objection reason to believe the instruction Court found Supreme availing.5 The district have been 2901.05,1as comport to with O.R.C. § failed held, however, failed petitioner that the had Supreme by the Ohio interpreted The court prejudice. to actual demonstrate 103, Robinson, v. 47 Ohio St.2d State requiring that since a defendant concluded (1976), was therefore errone- and N.E.2d view, defense would in his self However, the matter of law.2 ous as a first-degree of the elements of negate any that, say though courts went оn state law, murder there could under error, They was harmless. the instruction Having of due process. been no denial finding this on their based conclusion found issue barred procedurally the failed to evi- review of the record disclose review, habeas the district court denied an sufficient to warrant dence of the considering writ the merits defense in the first instance. Nei- on the petitioner’s claim. opinion state discussed failure

ther II. trial; of the con- object at the affirmance of solely finding Generally, prisoner alleging viction was based clаim in court follow- constitutional federal harmless error.3 placement prejudice, to address of a federal court is not 2901.05 establishes 1. O.R.C. regard to affirmative not con- with defenses. of federal which were contentions by proceeding statute has been altered more than once. merits in sidered on the cases, pre-1974 For them virtue a defendant’s failure to raise of upon stat- self-defense defendants required procedure. post-1978 The same true for all cases. ute. is not, however, a definitive court did establish one, cases, like tried between For the instant “prejudice”: “cause” and standard for 1978, statutory persua- burden of 1974 and open deci- in future We leave resolution upon At the time Melch- the state. of sion precise the “cause”— sions the definition of trial, the statute read follows: ior’s standard, “prejudice” here and note and — (A) Every person is accused offense set that it is narrower than the standard proven presumed guilty until be- innocent Fay Noia, v. U.S. 391 [83 forth in dicta in doubt, yond a and the burden of reasonable (1963), which would 9 L.Ed.2d 837] proof prosecution. The is burden оf generally habeas availa- make federal review going forward an affirmative knowing and ble convicts to state absent added). (Emphasis the accused. waiver of federal constitutional deliberate Melchior, 2. 56 Ohio St.2d contention. Supreme has found that 5. The since By 3. virtue of Ohio Rule of Criminal Procedure would not to sufficient set of facts amount party generally to enter justify comply failure to with a con- cause to timely objection preserve in order to Isaac, temporaneous objection Engle rule. challenge alleged appeal. error on But 71 L.Ed.2d U.S. see note infra. Wainwright, specifical- 4. that, showing ly held absent a cause ing procedural a state default must demon- U.S. 71 L.Ed.2d 783 strate cause and actual prejudice habeas (1982), recognizing that the a feder- costs of to be Engle relief is available. 456 al writ of habeas “are particularly 71 L.Ed.2d 783 U.S. high when a trial default has barred a supra; Wainwright Sykes, Hen- prisoner obtaining adjudication of his Jago, (6th Cir.1982). F.2d 471 derson constitutional claim in the state courts.” It is uncontroverted that object failed to to the jury instructions It has explained been the rationale given. beyond dispute when It is also for the is the Sykes recognition doctrine Rule Ohio Rules of Criminal Pro- of the integrity ability state court’s contemporaneous cedure establishes a clear enforce its rules and the state’s objection prerequisite to the assertion sovereign power punish offenders. “The on appeal.6 facts, errors Based on these general failure of federal habeas courts district court reasoned that it was bound to ly compliance contempora with a require apply Wainwright prejudice cause and neous-objection rule tends detract from thus, to, pro- standard conclude that a perception of the trial of a criminal case bar cedural foreclosed consideration of the in state court as a decisive portentous petition. Putting question aside the Sykes, event.” 97 S.Ct. at analysis whether district court’s However, equally important under presence of prejudice correct, cause and pinnings Sykes are doctrine consider we the very find use of the standard inаp- comity ations of As the federalism. propriate. Supreme recently United Court States stat to comply procedural Failure with state Isaac, ed in supra, Sykes’ require may rules bar federal habeas review of the ment that defense present counsel constitu claim, underlying federal absent a showing trial, tional claims during appel the state for “cause” the failure and actual “preju late courts would a “chance to dice” resulting from the alleged constitu mend their own fences and avoid federal tional violatiоn. Wainwright Sykes, v. 433 Isaac, 129, 102 intrusion.” at S.Ct. 72, 97 2497, U.S. 53 594 (1977). S.Ct. L.Ed.2d at 1572. Sykes, In petitioner had failed at ‍‌‌​​‌​‌​​​‌‌​‌​​​‌‌‌​​‌​‌‌​​‌‌​​‌​‌​‌‌​‌​‌​​‌‌​​‍trial of comity Considerations and fed and apparently appeal on direct to chal- eralism have resulted in the development of lenge the admissibility of statements al- a exception well settled to the procedural legedly obtained in violation of his Miranda default of Sykes: appel rule Where a state 75, rights. 433 at 97 U.S. S.Ct. at 2500. He late rely court does not on procedural apparently challenged first the use of the default, but reaches the merits fedеr statements in an unsuccessful state habeas claim, al law bar Sykes petition. inapplicable. Id. The United Supreme States Allen, County County Court Ulster v. 442 Court held the petitioner’s failure to comply 140, 2213, at 99 trial with the U.S. S.Ct. 60 L.Ed.2d 777 contemporaneous- state’s (1979); Engle objection Isaac, rule 456 135 at “independent constituted an U.S. n. adequate ground” state 1575 at n. 71 state court judgment, barring (1982); L.Ed.2d 805 at federal habeas re- n. United view unless Frady, could show States v. cause and prejudice. 86-7, 1584, 1599, Id. at (Blackmun, 2506-07. L.Ed.2d In a recent concurring federal habeas J. corpus 1982). As the United States United States Supreme Supreme Court reaffirmed explained County Court the Sykes Isaac, in Engle standard County, of Ulster supra, when the state Law, judge gives making contemporaneous objec- Under Ohio when a trial out of a Hunter, erroneous statement in the law tion. See Carrothers v. St.2d Ohio charge, opposed omitting of an other- Lynn, State v. 262 N.E.2d 867 item, necessary judge’s may wise the trial error Ohio St.2d by Appeals be reviewed Ohio with- concluded, consti- and the state supreme indicate that a federal courts do not pro- state by judge’s claim barred some court that the trial agreed, tutional instruc- rule, im- a federal present cedural in the case were tions erroneous. [habeas] enter- for the state plies disrespect However, the fact It is clear that the Ohio taining the claim.7 court’s instructions violated state law does claim consider the merits of the courts did alone, standing justify federal habeas petition form the basis of the habeas relief. Mere errors of state are not district court in the instant presented to the generally cognizable in the habeas the state cоurt nor appellate case. Neither Isaac, 456 Engle context.8 121 n. rely chose to Supreme the Ohio also Bell v. at 1568 n. 21. See default, removing thus Arn, (6th Cir.1976); F.2d 123 Reese v. as a for a bar to federal that default basis Cardwell, (6th Cir.1969). 410 F.2d 1125 habeas review. Rather, appellant must establish the Accordingly, we find that the district presence of a federal constitutional viola relying upon proce- court erred tion if he is to be entitled to the relief he dural default which the state courts did not seeks. themselves choose invoke as bar will appellate proceed review. This Court already Court has to consider the merits of the charging only found that claim violation claim. substantive 2901.05 “does no more than O.R.C. suggest respon the instructions at III. may dent’s trial have violated state law.” courts concluded that the trial Isaac, Engle U.S. at judge erred as a matter of law when it In the court reasoned that self defense placed Ohio had chosen to assume preponderance of the evidence affirmative defense without disproving an Robinson, 47 the defendant. designating also the absence оf 351 N.E.2d 88 Ohio St.2d held as an element of the crime. Court Supreme Court held that Ohio Rev. Ohio required prove the state is long that as as 2901.05(A) changed previ Code Ann. § each and every a reasonable doubt beyond ously accepted common law rule for allocat defined, element of the crime as it is due cases. ing proof in criminal Thus, the con process is satisfied. when a criminal defend Robinson held that cluded, require not a state process due does defense, ant raises an affirmative the de further burden than it chooses any to meеt for going fendant has the burden of clear then that to assume. Id. It is an ward with evidence sufficient to create comport court’s failure evi issue as to that defense. Once such Robinson, 2901.05, can interpreted by as is must presented, prosecution dence more, as a basis for serve doubt the demonstrate a reasonable relief. habeas defendant, even to the extent guilt however, contends, that The petitioner the affirmative defense. See disproving of from the consideration separate apart 51 Humphries, also v. Ohio St.2d violation, could not a 1354 Based on this for of 364 N.E.2d proving shift the burden of law, constitutionally of mulation of state the Ohio Court general exception exist general to this rule does rule we fol 8. An 7. The rationale behind the grossly law are so errone where errors of state not honor low here is that the state courts do result in a denial of fundamental ous as to bar, federal courts do dam Pitts, Handley F.Supp. v. 491 fairness. See comity age to notions of state-federal follow aff'd., (6th (1978), 599 623 F.2d 23 Cir. e.g. County of Ulster ing their lead. Buchkoe, 1980); Maglaya (6th v. 515 F.2d 265 Allen, County 442 U.S. 99 60 S.Ct. denied, Cir.), cert. 423 U.S. 96 46 S.Ct. L.Ed.2d 777 Gemmel Buchkoe 358 260 L.Ed.2d Cir.1966). (6th F.2d self-defense, self defense the trial did in the of proving the absence this of present case. The this has argument fully behind Circuit not In resolved ‍‌‌​​‌​‌​​​‌‌​‌​​​‌‌‌​​‌​‌‌​​‌‌​​‌​‌​‌‌​‌​‌​​‌‌​​‍the issue. Hooper Perini, crimes requiring knowing (6th contention is that Cir. 1981), purposeful imply degree Judge po- behavior Celebrezze summarized the necessarily judge sition took as the culpability writing absent when in Carter Jago, (6th Cir.1980): one acts in self defense. once 637 F.2d 449 possibility defendant raises the of self The thrust of Carter that process due defense, state should state, of law not preclude does оnce that disprove part duty defense as its having proved the fundamental elements establish the mens rea. appropriate of a crime a reasonable doubt then placing of proving burden Several courts have this ration- adopted an affirmative defense on the accused. ale, Wilbur, interpreting Mullaney In this an setting, shifting proof burden of does remove not (1975) York, and Patterson v. New 432 U.S. prosecution the full resting L.Ed.2d it under In re Winship, [90 charging the prosecution with constitu- (1970), L.Ed.2d but 368] duty tional the absence self- simply legislative reflects a evaluatiоn of Mullaney defense. In party’s superior access to proof. process held the due clause requires The subsequent Supreme Court decision prosecution prove beyond a reasona- Isaac, however, may cast doubt ble all doubt of the elements included in position. In the court addressed this state’s charge. definition The Su- issue in circumstances similar to we preme Court in those Patterson further held that now consider and a state concluded the habeas may only place the burden prov- it before had raised at ing an affirmative least the defend- “colorable ant as constitutional claim.” long as it does require not the de- Court ac- prove fendant essential element of knowledged circuits, among the division crime. In that Court declined above, discussed as a reasoned that the mere adopt imperative, oper- “constitutional existence of suggested countrywide, controversy ative that a state must dis- argument “states at plausible least a beyond a reasonable fact doubt constitutional claim.” Id. constituting Finding affirmative defenses claim had been Wainwright, barred under related to the culpability accused.” however, Patterson, the court did reach the sub- U.S. at 97 S.Ct. at 2327. stantive issue. The extent to which this declining adopt rule, a uniform Pat in requires dicta Isaac a reformulation of terson left the question to each circuit of this Court’s prior stance remains therefore prosecutorial the extent of the burden. an open question.10 Circuit, While the Wynn Fourth v. Maho (4th ney, Cir.) denied, F.2d 448 cert. Because we are unconvinced that 62 L.Ed.2d 320 habeas relief is in this re warranted case (1979), Circuit, the Fifth Tennоn v. Rick gardless of whether the trial court’s instruc etts, 642 (5th Cir.1981); F.2d Holloway erroneous, were tions we need not resolve cert, v. McElroy, (5th 632 F.2d Cir.) open question. The Courts found Ohio denied, although that the erroneous (1981), L.Ed.2d 398 and recent scholarship9 law, as a matter of state the error was placed have the prosecutor the burden beyond harmless a reasonable doubt. “Defenses, Stephen, Presumptions 9. Jeffries present & 10. As in the both and Carter Law,” and Burden of Proof in Criminal Yale prisoners Isaac dealt with Ohio and the consti- Comment, Shifting L.J. 1325 Bur tutionality placing of Proving Analysis den of Self-Defense — With of self-defense them. Law, Related Ohio II Akron L.Rev. 717 concluded, general Based these principles, and the appeals state’s court affirmed, clearly petitioner that there was facts indicate that Supreme Court fault, aggressor, initially issue of was who evidence to submit the insufficient instance. withdrew. Melchior went to the first never to Krista’s jury self-defense agree. apartment We with sole intention of steal- ing property. attempted his When Krista there question of whether defend that the altercation be- рroperty, warrant sufficient evidence to submission stop made effort gan. Melchior law question is a of an issue to retreat, no effort affray and developed on the historical facts based fact that he was four to five despite the apply court may trial. While a federal from began. feet Krista when conflict facts it deems given law to a set of surrounding at the details A close look of correctness appropriate, presumption fight ultimate conclusion of the between factual determi underlying attaches to all Krista Melchior and further indicates court. nations made state Sumner competent there was no evidence Mata, to find that the acted in a in assess justifiably posture. Examining defensive as to self de ing the evidence submitted facts, objective Ap- the Ohio Court of the factual scenario presume fense we peals concluded: courts, re largely and found Considering location and nature of above, is produced accurate.11 wounds, Paul’s the distribution of his The basic of Ohio postulates room, living blood around the the positiоn as it is applicable to the self defense issue of his that he thrown body indicating quickly raised this case can be summa table, death, the cause of under the his First, necessary rized. it condition appellant sizes and the relative right to claim self defense Paul, found, his where blood was it is accused killer fault. appellant’s cavel versions seq. Accordingly, O.Jur.2d et where given rise to could not reasonable conflict, about it is the brought has guilt stemming any doubt as to his in his duty employ defendant’s means claim of self defense. In power necessity killing. to avert thе (No. July Court of CA order initial to withdraw aggressor for an 18, 1977) (Em- self-defense, unpublished opinion act in regain right in original). We find this a fair good phasis he or must manifest a faith clearly she assessment of the claim. affray intention to withdraw from the just fear any apprehension must remove recognize that harmless error We original possess. victim Id. at 634- may in the context asserted constitutional standard, narrow extremely violation is an addition, main avoid retrial permitting Ohio has tained in the it can be demonstrated reasonable duty retreat self-defense the error not contribute in person context. A who is where he has doubt that did way the conviction. Eberhardt v. may ground any to be stand his and resist force, Bordenkircher, (6th Cir.1979). force is where person but a who found that specifically he has no to must the com Both state courts follow Id. minds could have come to but mon law rule and to the wall.” reasonable “retreat invitee, if on the force of the evidence: Even one is an one conclusion 636-37. where not guilty that was and had his or to do harm and that the defendant purpose ‍‌‌​​‌​‌​​​‌‌​‌​​​‌‌‌​​‌​‌‌​​‌‌​​‌​‌​‌‌​‌​‌​​‌‌​​‍her is We are com unabаted, be in self-defense. purpose acting continues the invitee been to same conclusion. Our review trespasser, pelled comes initio. 52 O.Jr.2d ab that, reveals other than of the record Melchior, 11. See State v. 56 Ohio St.2d self-defense, requested own assertion of instructions. The position

defendant’s assertion not only appellant proposes an that was unsubstanti- surely would have such ated, effect, but ver- was contradicted his own making trial courts overly cau- events, no evi- reversal, sion is simply for fear of tious even where an dence as to the existence of the affirmative may instruction superfluous.12 have been Accordingly, defense. we are convinced that, It clear even if is then we assume that it is irrelevant where the burden for the sake of that the argument appellant this issue was because placed considerations has asserted a constitutional colorable claim self simply could not have come in habeas petition, any may his error that Thus, is play. into it clear that there is no have been committed court instruction, reasonablе possibility Thus, harmless. while the procedural erroneous, could have even contributed upon which ground the district court based Melchior’s and that conviction the harmless incorrect, its denial of habeas relief we error rule is properly applicable. judgment prop- find entered otherwise petitioner argues The in the alter denying er. the pe- order native that even if evidence were insuf tition for a writ of hereby, habeas is ficient warrant instruction as an Affirmed. original once proposition, the trial court one, it give chose to do so bound CONTIE, Circuit Judge, concurring. properly. petitioner contends that the I believe the of Ohio can constitu- giving concededly instruc erroneous place the tionally self-de- tion should never be deemed harmless error. fense in I defendant this case. Court impliedly This reached the same issue majority opinion, therefore concur in the Perini, Hooper There, in we supra. ex grounds. but on different The petitioner presented amined the evidence on the issue felony was convicted under Ohio’s murder concluded, of self we defense and do which, statute at the of petitioner’s time here, that it a jury was insufficient to raise trial, provided person shall pur- “[n]o question. We then determined that since cause posely the death of another while the instruction was in first unnecessary committing commit, or attempting to or instance, must, an improper delivery of it fleeing immediately committing while after therefore, be harmless error. believe We attempting or ... aggravated commit that' holding Hooper applies equally in robbery....” 2903.01(B). Ohio Rev.Code § present noted, to thе As case. once this The state was thus be- convinced a reasonable death; (1) yond (2) a reasonable doubt that an did

doubt error contribute kill; intent to causation any way conviction, to a the legal standard during must occur fleeing while finding an error harmless is satisfied. from the commission or attempted commis- Bordenkircher, Where, Eberhardt v. supra. aggravated sion of robbery.1 The statute here, issue, there is no evidence on the presume any does not element of the the nature of the given will Wilbur, Mullaney crime exists. Cf. generally be irrelevant. If wе to hold were the contrary and.accept the appellant’s argument, the harmless error doctrine would largely be nullity. rendered a recognized Court has addition, we are to any adverse rule which once each element of an offense is estab- would make trial judges doubt, reluctant tender lished reasonable appeals As aforethought observed: 1. Malice is not an element of felo- only ny spinoff This case murder can be viewed Ohio. Ohio Rev.Code as a 2903.01(B). tendency from the unfortunate trial courts charge on self-defense time there is the merest scintilla of evidence touching subject. in the case on that

495 beyond not a reasonable required prove fact,

doubt the existence or nonexis WHITE, INC., al., WHITE et AND willing recognize tence of which it is Plaintiffs-Appellees, circumstance. exculpatory mitigating York, 197, 432 206- Patterson v. New U.S. AMERICAN HOSPITAL SUPPLY 07, 2324-25, 2319, 97 53 L.Ed.2d 281 CORP., Defendant-Appellant. (1977); Oregon, 343 Leland v. U.S. 795-96, 1002,1005-06, 1008, 799, 72 96 No. 82-1305. (1952). 1302 In this L.Ed. United States Court of Appeals, that the correctly instructed

state was each element of Sixth Circuit. the offense reasonable doubt. beyond Argued May petitioner’s The court also indicated that separate affirmative defense constituted a Decided Dec. issue which only should be considered Rehearing Rehearing En Banc determined

jury first the state had 7, 1984. Denied Feb. words, met petitioner’s ‍‌‌​​‌​‌​​​‌‌​‌​​​‌‌‌​​‌​‌‌​​‌‌​​‌​‌​‌‌​‌​‌​​‌‌​​‍its burden. In other negate affirmative defense did serve to

any elements of this offense. See

Poole, 18, 19, 33 Ohio St.2d prosecution once the

has proven a reasonable doubt that

the defendant intentionally killed another

person fleeing during or from the commis

sion or attempted aggrava commission

ted I robbery, believe State of Ohio can

constitutionally place proving

self-defense defendant in a prose

cution for murder under felony Ohio Rev. 2903.01(B).2

Code Patterson v. New

York, 209-10, 2326-

27; Jago, Carter 455-57

(6th Cir.1980), denied, cert. 456 U.S. (1982); L.Ed.2d State v.

Poole, Ohio St.2d N.E.2d 888. Isaac, Engle

2. That the Court in tal elements of a crime a reasonable 107, 122, 1558, 1568, doubt, may place 102 S.Ct. 71 L.Ed.2d the burden self-de process Engle fense referred due the accused. argument plausible 107, 137, 1558, 1576, stating “a constitutional 456 U.S. 102 S.Ct. J., (1982) (Stevens, concurring); claim” indicates the Court would L.Ed.2d 783 York, 197, 206, compelled have been to address this issue in Patterson v. 432 U.S. New 209- result, 2326-27, the absence of a bar. As a I 97 S.Ct. 53 L.Ed.2d disagree majority’s Jago, assertion that this Carter v. 637 F.2d 456- denied, “may upon” (6th Cir.1980), position statement doubt cast cert. state, having proved that a once the fundamen-

Case Details

Case Name: Robert Melchior v. Arnold R. Jago

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 15, 1983

Citation: 723 F.2d 486

Docket Number: 80-3500

Court Abbreviation: 6th Cir.