*1 practices hereby unfair labor is enforced as bargain, tive chooses to we will maintain modified.10 existing provision the in effect until an agreement is upon change reached 1(a) Paragraph of the recommended or- impasse until an is reached in our bar- AU, (with adopted modifica- der gaining any over proposed change. tions) Board, by hereby by modified WE WILL following language any NOT in the insertion of the af- like or related with, ter date manner restrain, November 1979 and before interfere or coerce “(said period: you you Local 949 or its succes- if choose rights to exercise the sor, 988, Teamsters, including Local should you have under the National Labor Rela- it be deemed the successor to Local 949 as Act, tions bargain your refuse to with pending representation pro- a result of the representative certified required as by ceeding, shall be referred to herein as the the Act. “Union”)”. WE WILL rescind the restrictions which placed we by the access Employees
The Notice to
is modified
officials of
your
representative
certified
fifth, sixth, seventh,
striking
eighth
to our
premises
on December
paragraphs
substituting
and ninth
13 and
1979.
following paragraphs:
modified,
As
the Board’s order will be
deny
prem-
WE WILL NOT
access to our
enforced.
NLRB Express
Publish-
agents
your
ises to
certified collective
Co.,
ing
bargaining
representative,
including 701,
(1941);
admittance for the
ing you long so legally obligat- as we are give applicable
ed to effect to collectively
bargained provisions permitting access to premises by representative’s
our offi-
cials.
WE WILL NOT cause the any arrest of your
official of certified collective bar- LOCKETT, Petitioner-Appellant, Sandra gaining representative who is on our premises pursuant collectively to a bar- gained provision access for the ARN, Dorothy Respondent-Appellee. providing you representation with so No. 83-3142. long arrangements as officials make property provided us to enter our Appeals, United Court of States applicable collectively bargained Sixth Circuit. provision. Argued Aug. 1983. unilaterally WE WILL NOT alter the July Decided 1984. your terms under which officials of certi- representative may prem- fied enter our Rehearing Rehearing En Banc represent you ises to from those which Aug. Denied any existed under bargaining collective agreement providing without first representative opportu-
certified with an
nity bargain concerning such a and,
change, represénta- if the certified 10. That part arising jurisdic of the Board's order from our enforcement because of our lack of representation proceeding exempted from tion. See text at note 9. infra *2 Kravitz, Bluth,
Max William H. Gerald Simmons, Columbus, Ohio, G. petition- for er-appellant. Brown, Gen., Atty.
William J.
A.
Karen
Kolmacic,
Gen.,
Atty.
Columbus,
Asst.
Ohio,
respondent-appellee.
for
JONES,
Judge,
Before
Circuit
and PECK
BROWN,
and
Judges.
Senior Circuit
BROWN,
BAILEY
Judge.
Senior Circuit
Following
granting
this court’s decision
Lockett,
appellant
habeas relief to
Sandra
appellee moved
rehearing.
appel-
granted
lee’s motion is
opinion
leaving
order of this court filed in this
taxi,
case
after
the house in the
Parker
February
1984 are vacated.
stopped by
and Lockett were
police
questioned. Later, Lockett hid Dew and
appeal,
On
Lockett contends that the dis-
Parker in the attic
parents’
of her
home.
improperly
trict court
denied her
corpus.
for habeas
three
makes
Parker was subsequently apprehended
challenges
charged
to her Ohio con- and
robbery and
*3
aggravated
aggra-
aggravated
viction for
murder and
specifications,
murder with
the
(1)
robbery
grounds
the
punishable
vated
of:
im-
latter offense
by death. Prior
instructions, (2)
proper jury
trial,
ineffective as-
to
pled guilty
Parker
to the murder
counsel,
(3)
charge
sistance of
and
an improper
agreed
testify against
and
to
Lock-
grant
refusal to
a continuance. We con- ett.
In return for
testimony,
prose-
his
the
appellant’s
clude that the
dropped
failure to raise
cutor
aggravated
the
robbery
objection
jury
charge
her constitutional
to the
specifications
and the
to the murder
precludes
charge,
structions at trial
our
of
thereby removing
review
possibility
the
those instructions on
for
penalty.
collateral
the death
Lockett’s brother and
appellant’s
relief. We also find
other Dew were
aggravated
convicted of
murder
Accordingly,
specifications.
claims without merit.
we af- with
judgment
firm the
of the district court.
trial,
At
separate
Sandra Lockett’s
her
counsel, in the opening statement
BACKGROUND
jury, explained her account of the circum-
charged
Sandra Lockett was
surrounding
stances
robbery.
the
Lockett
aggravated
aggravated
murder and
rob-
thought that Dew and her
merely
brother
bery
pawnshop operator
Akron,
aof
pawn
intended to
ring.
the
The defense
primarily
Ohio. The State’s case rested
on called Lockett’s brother and Dew to the
Parker,
testimony
coparticipant,
the
of a
A1
stand; both invoked their fifth amendment
agreed
cooperate in
who
to
return for a privilege and refused
testify.
to
Lockett
charge.
lesser
testify in spite
chose not to
of her counsel’s
warning
testify,
if she did
According
he,
not
her
testimony,
to Parker’s
Lockett,
brother,
solely
defense would consist
Lockett,
of cross-exam-
James
prosecution’s
ination of the
friend,
Dew,
witnesses.
and Parker’s
Nathan Earl
agreed
plan
to a common
to rob the victim.
charged
aggravated
Lockett was
The scheme called for Dew and James
robbery
aggravated
and
ag-
murder. The
pawnshop
pretend
Lockett to enter the
and
gravating specifications as to murder were
pawn
ring.
they
to
After
engaged
had
(1) that the murder was “committed for the
pawnbroker
transaction,
in this
Parker
detection,
escaping
apprehen-
shop
enter the
would
ask to examine a
sion,
punishment”
aggravated
trial or
Parker,
gun.
who
concealing
would be
bul-
(2)
robbery,
that the
murder was “com-
lets,
gun
proceed
would load the
to rob
committing, attempting
mitted while ...
Lockett,
shop.
Sandra
who knew the
commit,
fleeing
or
immediately after com-
operator,
shop
would remain outside the
in mitting
attempting
aggra-
to commit ...
an automobile.
robbery.”
jury
vated
The
was instructed
that,
guilty
order to find Lockett
robbery proceeded according
plan
The
murder,
it had to find that she
operator
pawnshop
grabbed
until the
purposely
pawnbroker
had killed the
while
held
gun
finger
Parker. With Parker’s
committing
attempting
aggra-
to commit
trigger,
gun
on the
went off and the
robbery.
charged
vated
The
shop
victim was killed. Parker fled the
one who
the car
where Sandra
waited with
aids,
engine running.
purposely
helps,
After Parker told
associates himself
happened,
placed
Lockett what had
she
or herself with another for the
gun
purse
regarded
in her
committing
and drove to a relative’s
a crime is
as if
Shortly
principal
house where she called a taxi.
he or she
offender and
were the
just
guilty
person per-
as if
acquiesce
may reasonably
in whatever
be
constituting
act
every
necessary
accomplish
object
formed
the of-
of their
Lockett,
on Sand-
enterprise.”
relying
fense. ..
Montana,
strom v.
510, 512,
trial court also
re-
instructed
2450, 2453,
(1979),
con-
garding
requirement:
the intent
pro-
tends
this instruction
due
violated
person engaged
design
A
in a common
because it
cess
forced her to assume the
with others to rob
force and violence
disproving
purpose,
burden
intent or
prop-
an individual or individuals
their
necessary element of the crime.
erty
presumed
acquiesce
in whatev-
may reasonably
necessary
er
to ac-
Lockett concedes that
failed
object
complish
enterprise...
of their
instructions at
required
trial as
by Rule
Such
conspired
If the
a failure
robbery and the man-
Ohio
R.Crim.P.
comply
accomplishment
contemporane-
with the state’s
ner
its
would be rea-
objection
ous
rule
sonably
produce death,
ordinarily pre-
would
likely
each
*4
clude
federal court from
plotter
equally guilty
reviewing
is
princi-
Wain-
instructions on a collateral attack.
pal offender
...
wright
Sykes,
v.
72,
2497,
433
97
U.S.
S.Ct.
guilty
The
returned a
verdict
and
(1977).
maintains,
Lockett’s initial
writ of
state
is
habe-
barred from rais
corpus
by
ing
the claim in
proceed
dismissed
the district
a federal habeas
court for
ing
showing
failure
her
absent a
preju
exhaust
remedies
cause and
Wainwright
v. Sykes; Engle
available
v.
post-conviction
under Ohio’s
dice.
stat-
§
Isaac,
ute,
107, 129,
456
2953.21. There-
U.S.
102 S.Ct.
Ohio
Rev.Code Ann.
after,
(1982).
petition
Lockett amended
her
Lockett’s fail
deleted the unexhausted
ure to
challenged
claims. The dis-
at
trial
to the
trict court then found Lockett’s
instructions
violated
claims
Rule
Ohio
adequate,
be without merit and her
failure
was dis- R.Crim.P.
This
under
law,
appeal
appellate
missed. This
followed.
Ohio
to bar
consideration of
Isaac,
Engle
an objection.
456
at
I.
4H objection Lockett, on the State v. merits of N.E.2d at 1070-72. state court demonstrates the state Thus, the contention made Lockett in procedural default). rely court did not the state only courts raised a state law that, in the Lockett contends examination issue, did not raise the federal constitution sufficiency of the evidence on the ele- issue, al court the Ohio only decided kill, ment intent Ohio the state law issue.1 courts considered her constitutional chal- Isaac, Engle In the Supreme Court lenges thereby instructions and contemporaneous held that Ohio’s objection contemporane- waived her violation of rule barred federal habeas review of consti objection ous rule. On challenges tutional instructions evidence, sufficiency of the the Ohio objection where no was made at trial. The Supreme provisions interpreted Court respecting Court stressed the state’s statute, of the murder Ohio procedural necessary § rules was in order 2903.01, complici- Rev.Code Ann. § protect proper ty role state provision, 2923.- tribunals. Ann. Ohio Rev.Code statutory procedural 03. The court’s When a discussion default has occurred at requirement proof and the trial, of intent on this the trial “has had opportuni court no issue, maintains, Lockett now demonstrates ty to correct the defect and proble avoid that the state court her failure to waived matic at retrials.” 456 U.S. objections the in- raise constitutional courts, at appeals moreover, 1572. State at structions trial. “have not had a chance to mend their own fences and avoid
After careful of Lockett’s federal intrusion.” consideration *5 opinions by and the appeal brief on direct U.S. at at 1572. S.Ct. We would Supreme the Ohio and Ohio Court of Court ignore the of Engle rationale v. Isaac to Appeals, we are that Lockett nev- satisfied hold, appellant urges, as the that a state er made the claim that instructions requirement court’s discussion of intent unconstitutionally shifted the burden to her procedural under state a law waives de prove absence intent or regard separate fault with ato constitu kill. Lockett did that the murder contend tional presented claim never to a state fo required proof statute that Parker had a Therefore, rum. we determine that kill she and that shared that not Ohio state courts have waived Lock evidence, purpose. maintained, she did procedural ett’s default.2 prove not that such either had intent. The Lockett that maintains habeas review is Supreme Ohio answer Court’s was that the precluded by procedural not the state’s supported finding evidence that Parker a rules because she can establish cause and had an intent The court to kill. also held prejudice object for her failure that, complicity provi- as it construed In support instructions at trial. of her sion, requirement the intent was satisfied present, contention that cause Lockett by proof far as Lockett concerned asserts that the were instructions constitu- knowing participation of Lockett’s in a rob- tionally so erroneous that the failure bery conspiracy reasonably likely that was object to result in the was an repre- death victim. instance ineffective Marshall, challenge present 1. Lockett did In Fornash v. 686 F.2d instruc- 1185 n. manslaughter involuntary (6th Cir.1982), tions on and failure court held that this even a which, to instruct on of accident the defense general objection instructions will not appeals, "substantially claimed in her state af- prisoner’s clearly excuse an Ohio failure to rights. Ap- fected” her the Ohio Court of Both present objections appel- constitutional to state peals Supreme Court held Ohio that Lock- prisoner late courts. Because in that case objections ett’s failure to raise these at trial objection had not raised the constitutional in challenges ap- barred consideration of on court, applied state this court the cause and peal. suggests This a direct that constitutional prejudice standard. to the instructions mur- disposition der would have met a similar in the Ohio courts. sel had committed errors so serious that (She to make also seems sentation. functioning not as the ‘coun assistance “counsel was this ineffective that contention guaranteed the defendant the Sixth amend sel’ of the sixth to a violation amounted Second, petitioner must this ment.) Thus, contends that Amendment.” prejudiced the that counsel’s errors cause un show constitutes ineffective assistance “deprive[d] the defendant of be defense and Sykes. It should Wainwright v. der contention, that, framing her At evaluate a claim in fair trial.” 2064. To noted so deficient, the must that counsel was court of the conten the reverse Lockett asserts Isaac; acts or determine whether the “identified Engle overruled tion made and range the wide cause was omissions were outside was that there the contention professionally competent assistance.” The infirmi the constitutional satisfied because par court must consider the “facts of the so unclear ty the instruction was ticular case viewed as of the time of must excused. We object the failure contention, recognize counsel’s conduct” do not believe that here, strongly presumed “counsel is to have ren presented under the circumstances all adequate dered assistance and made a denial of the viewed as valid whether in the of rea significant decisions exercise right to counsel amendment sixth professional judgment.” under sonable showing cause At. 2066. a basis for viewed as Engle As stated Sykes. Wainwright method of cross-examina Counsel’s insure Isaac, “does not the Constitution develop and the not to tion decision recognize and counsel will that defense defense of accident were matters of trial every conceivable raise say counsel’s strategy. We cannot 134, 102 at at claim.” Id. 456 U.S. actions were unreasonable under the cir 1574.3 Cardwell, 426 cumstances. Henderson v. (6th Cir.1970). Similarly, the F.2d 150 II. mere failure to to evidence and jury instructions does not render counsel Assistance of Counsel Ineffective Perini, 419 F.2d ineffective. Whitsell v. court, Lock- In her to the district (6th Cir.1969). Presenting a motion *6 that she denied effec- ett maintained was presence in the of the a directed verdict in tive assistance of counsel violation noted, was, a as the district court jury appeal, Lockett sixth amendment. On counsel. Such a part on the of mistake for: that her counsel was ineffective claims mistake, correctly district court as the (1) failing impeach testimony the of Par- found, assistance not render counsel’s does made to a co-defend- ker with a statement throughout togeth trial. Taken ineffective (2) develop attorney; failing to the ant’s er, allegations of ineffective as accident; (3) failing make defense of a viola counsel do not establish sistance of timely objections to evidence of Lockett’s amendment. tion of the sixth (4) jury charge; bad acts and making verdict in a motion for a directed III. presence jury. of the the a Denial of Continuance decision, In a recent v. Strickland — relief, 2052, Lockett al- U.S. ---, In her third claim for 104 S.Ct. Washington, grant leges trial court’s failure to (1984), Supreme that the L.Ed.2d the Court 80 674 opportuni- her of an deprived continuance for claims of a set forth standards of review of her choice. Lockett ty A habe to retain counsel assistance of counsel. ineffective petition an affidavit from to her that coun attached petitioner must first establish attorney intended to retain at trial. showing coun an she sel was “deficient” Wainwright v. ever be "cause" under do not decide could We need not and therefore alleged Sykes. assistance of counsel whether ineffective procedural failing comply rule with a state
413
attorney
any
This
states that he contacted the
herself of
process.”
“state corrective
judge
day
Lockett, therefore,
trial
before trial
the
fully
has
her
exhausted
delay.
judge
request
refused a
for a
state
regard
remedies in
her
constitu-
judge
attorney
told the
to contact Lockett’s
tional
to the state
court’s
court-appointed counsel.
doctrine,
instructions.
The exhaustion
thus,
preclude
addressing
does not
us from
grant
The decision
a continu
Lockett’s contention that those instructions
generally
is a
left to the sound
ance
matter
unconstitutionally
her
shifted to
the burden
United
judge.
discretion of
trial
proving
of
the essential
element
“intent”
Allen,
1229,
(6th
v.
States
522 F.2d
1233
in the
crime of
murder. See
denied,
Cir.1975),
1072,
cert.
423
96
U.S.
§
Ohio Rev.Code Ann.
2903.01.
(1976). Although
L.Ed.2d
S.Ct.
47
82
a
a criminal defendant is entitled to reason
are
precluded
We
addressing
from
opportunity to
contention,
able
obtain counsel
his
however, by Lockett’s
failure
choice,
right
this
exercise of
must be
contemporaneously
authority
against
balanced
the court’s
charge
required
as she is
to do under Rule
docket. United States
In
its
control
30, Ohio R.Crim.P. After careful
review
man,
(4th Cir.1973).
483 F.2d
In
record,
this
I can find neither cause nor
case,
ample
this
Lockett had
time to choose
prejudice for
comply
the failure to
with
continuance; nothing
a
counsel
seek
Wainwright
Sykes,
that rule.
explains why
record
made
re
now aggra- person shall be convicted
No specifically he unless
vated murder intended to cause
found to have shall a In no case death of another. America, STATES of UNITED case be aggravated murder in an Plaintiff-Appellee, may that it in such a manner structed commits or person that a who believe any offense listed attempts to commit CORP., Richard MORTGAGE GRAHAM (B) conclu- this section is to be division Heinz, Chapin, P. Thomas E. inferred, engaged he in a sively because Defendants-Appellants. design with others to commit common 83-1628, Nos. 83-1629. and violence or be-
the offense force manner of its the offense and the cause Appeals, States Court United likely produce be commission would Sixth Circuit. death, to cause the to have intended 27, 1984. during Argued March any killed person death of who is commit, of, attempt the commission July 1984. Decided attempt of or flight from the commission Rehearing En Banc Rehearing and commit, If in an offense. Sept. Denied murder case is instructed attempts person who commits that a in division any offense listed
to commit inferred,
(B) may this section be- design engaged in a common
cause he commit the offense others to the offense or violence or because
force would of its commission
and the manner *8 death, to likely produce have any person to cause the death
tended of, during killed the commission
who is commit, flight from
attempt attempt to commit the of or
commission
offense, shall be instructed also nonconclusive, that
that the inference