*1 1264 erred concludes court This court therefore partment. this argued

Demery limitations where this decision of that in circumstances statute same applying apply- application mandate the shorter claims and would 1983 1981 both §§ 1981 claim. period previously than had bar his limitations applied applied retroactively to § ing it actions, deci- Court, court’s in 1981 it should not be this since Supreme § court’s retroactively. Accordingly, pe- this case, has confirmed in this sion conclusion claims, GRANTED, like 1983 rehearing § 1981 tition § injury personal is RE- of the district court judgment treated claims, be should appropriate selecting the case is REMANDED for VERSED when actions state applicable proceedings further not inconsistent limitations statute Steel opinion. v. Lukens this Goodman claims. such — 2617, 96 -, 107 S.Ct. Co., U.S. Accordingly, this (1987). 572 L.Ed.2d the one- its determination reaffirms in Ohio embodied period limitations year 1981 to both applies §§ 2305.11 Rev.Code § in set forth reasons for the 1983 claims and this court’s City Demery v. in opinion Cir.1987). (6th 1257 F.2d 818 Youngstown, appli regard to the retroactive With decision, Demery this directs of this cation court’s Supreme Court’s attention College in v. Francis recent decision St. — U.S.-, 107 S.Ct. Al-Khazraji, (1987), the Court wherein 95 L.Ed.2d 582 affirmed the ap Third refusal Circuit’s TIPTON, Timothy C. in v. Lukens ply its decision Goodman (3d Cir.1985),aff'd, Petitioner-Appellant, Co., F.2d 113 777 Steel — -, 96 107 S.Ct. L.Ed.2d U.S. v. (1987),retroactively. Third Circuit JAGO, Respondent-Appellee. Goodman, in case at R. like this court Arnold in bar, personal in that the same determined FARR, Petitioner-Appellant, Richard R. to both applied of limitations jury statute affirming actions. In 1981 and 1983 §§ v. determination, retroactivity Third Circuit’s MUSEKAMP, Respondent-Appellee. Eric the circuit Supreme Court noted that six- applied Pennsylvania’s previously had No. 86-3657. in 1981 ac of limitations year statute § tions, over that the decision Goodman Appeals, United States Court holding by applying a short prior ruled its Sixth Circuit. limitations, plain and that er statute of upon prior rely tiff was entitled Argued Feb. pe longer limitations applying decision May Decided circumstances, riod. Under these Third Circuit concluded that Court Rehearing Rehearing En Banc retro properly apply refused Goodman 1, 1987. July Denied actively. Circuit, court, Third like the This six-year statute held that Ohio’s previously 2305.07, limitations, Ohio Rev.Code discrimination employment plied Owens-Illinois, Inc., actions. Mason v. Cir.1975). Demery rea- (6th F.2d 520 517 sonably filing upon relied Mason years after his approximately three action De- Youngstown Police discharge from the *2 April client telephoned former practicing

Richard R. lawyer in Cincinnati, represent to ask him to Ralph Tuccinardi, then in incarcerated the Cincin- City nati Jail. Farr visited Tuccinardi the day, plead next advised him to “no contest” charges, agreed the theft repre- sent him at arraignment. Farr asked for retainer, no later at the trial that he set a representation fee of for $200 arraignment.1 at the arraignment At following day, judge accepted the no plea contest and found Tuccinardi guilty, served,” but sentenced him to “time freed him. released,

After Tuccinardi was Farr proached him more once than at his resi- telephoned dence and also him in attempts to collect his changed fee. Tuccinardi ad- dresses notify Later, and failed to Farr. at Pony resurfaced the Forest Keg Cincinnati, worked, where he lived in over the store. The Pony Keg telephone, did not have so Farr Farr, Cincinnati, Ohio, Richard R. pro se. visited Tuccinardi there to pay- demand (argued) Firooz T. Cincinnati, Namei ment, when he learned Tuccinardi’s Ohio, Tipton. whereabouts. Tuccinardi told Farr to re- day turn another he when would be able to Beverly (argued), Gen., Yale Atty. Asst. pay paycheck. Farr out of his Columbus, Ohio, for respondent-appellee.

At point testimony trial, Farr’s version of facts and MARTIN, Before NELSON and diverge. version BOGGS, Farr testified that Judges. Circuit appointed day return for his to the Keg Sunday; was the next Tuccinardi testi- BOGGS, Judge. Circuit Monday. fied that it was Tuccinardi testi- case, In a consolidated two habeas cor- fied at paid trial that he was fact on pus petitions were dismissed the United every Friday, but he also testified with for the District Court Southern Dis- respect appointed date for petitioners appeal, trict of Ohio. The as- to Farr that there no reason that he serting that their convictions for robbery willing pay would have or able to invalid because insufficient evi- day. another dence, mistake of reasonable and oth- 3, 1983, July On Farr Sunday, was in the er reasons. company Dulay, of his friends Michael Dor- We hold was no that there evidence to Tipton, Coney is Nock and Timothy support an element of public swimming pool. essential the of- Island After leav- charged. ing fenses We reverse the swimming pool district Farr’s automo- bile, going and remand instructions that the that he was announced writ issue. visit collect a fee $200. 1. Tuccinardi the existence of a later that the fee was denied set fee at contacts with Farr deny acknowledging but he did not in his police station transported Pony Keg, Farr cers theAt from a client. represent inside, booking, Farr went there to fol- and went automobile parked the inter- Wells and Stratton Tipton. Officers Tipton. The latter Dulay and lowed station, after waived viewed Farr at buy beer. merely intended individuals him at that time. rights, and arrested in the automobile. Nock waited Miss *3 Farr Tipton and grand jury The indicted indi- Pony Keg, the three inside the Once consolidated Tuccinardi, the cases were separately and approached viduals trial, At the the State a bench trial. Farr asked the counter. standing behind police officers witnesses the produced as and was rebuffed. for the $200 Tuccinardi Tuccinardi, only who was the State’s not have the and that he did replied Tuccinardi Tipton and actual offense. pay witness to the he would Farr that money, but told robbery, and guilty of Farr were found replied, some- Monday. Farr the next him pris- years in to three to fifteen money sentenced he needed the heatedly, that what years prison and a to fifteen on and four the who was across immediately. Tipton, fine, respectively. striking $500 within Tuccinardi but from counter up the store” distance, to “tear threatened probation in lieu years two Farr received forcibly into the Tuccinardi and to take bail Tipton could not make of his sentence. Tipton then “whoop him.” lot and parking 1984, 19, imprisoned and was April until physical contact a nonconsensual initiated until that time. Ohio after the trial vari- which was described Appeals the trial court affirmed Court testimony. Tipton called a in the ously opinion. appellants Both per curiam chin; Tuccinardi and “touching” of the Supreme in the Court sought review “grabbing” it as a described Farr both Farr’s motive to grounds on the Ohio event, only it lasted for the chin. negated fee the intent collect his also disa- The witnesses a second. about Supreme of Ohio denied rob. The Court pushed Dulay or Tuccinardi greed whether review. away Tuccinardi. Tipton’s hand from for reduction of his sen- Tipton moved of the cash then took out $50 in the Pleas Court. tence Common Farr, who had handed it to register and Farr moved for denied this motion. help hinder nothing to or Supreme done the Court reconsideration before Farr wrote out Ohio, Tuccinardi. actions toward The Board of which was denied. gave signed and receipt, Discipline which Tuccinardi on Grievance Commissioners testi- to Farr. At Bar Association reviewed back of the Ohio State receipt that was copy of the “no evidence to fied that the trial record and found same was not the in a support admitted into evidence the conviction” “[review] Furthermore, pro- Tuc- signed. transcript of the criminal that he had the entire one receipt [Farr],” the Board felt signed ceedings against testified that he cinardi duress; not have the Rules for the Govern- that he would constrained under Farr’s in- Bar to recommend money except for the ment of the given Farr suspension. Pursuant Tipton used. Farr definite force that threats and recommendation, Supreme Board’s asked that he neither suspended Farr from of Ohio sought assist- Court threats nor use force and 15, January law on practice of collecting the debt. ance in twenty-one days be- January Keg, On this incident at After probation peri- of his fore the termination departed friends for Farr’s four habeas od, petition for pro filed a se Farr Tuccinardi asked in the automobile. District Court corpus in the United po- Pony Keg to summon clerk at the District of Ohio. dis- the Southern and Hood were lice. Officers Lemker counsel, peti- Tipton filed a similar Through Pony Keg, and later patched to the The cases were January apartment. Tipton at Farr’s prehended magistrate, to a United States referred their actions Tipton explained findings of fact report of his filed a offi- who time. After the the officers at that magistrate’s report with the court. The of fact could have found the element of possibili- force. stated that the issue was the ty that a rational trier of fact could have As defined in Ohio Revised Code 2913.- robbery beyond found each element of the 02, theft following involves the elements: magistrate reject- a reasonable doubt. The (1) “purpose deprive the owner of prop- appellants’ argument ed that State v. (2) erty”; and “without the consent” or

Snowden, App.3d 7 Ohio 455 N.E.2d “beyond scope express of the implied (1982), they held that could not have consent” of person “the owner or autho- had the intent to rob if their motive give rized to consent.” was to collect a debt. The offense here charged statute; language is, appellants

Appellants objected magistrate’s “committing attempting to commit report grounds magistrate on the that the offense, a theft to wit: theft of United *4 misapplied requirement the intent of the currency.” The opening State its crime, complicity requirement. Af- argument specifically money stated: “The objections, ter de novo review of the belonged to the Forest Keg, not to petitions. district court dismissed the Thus, Mr. Tuccinardi.” the relevant ele- only court held that meant that Snowden ments that must be assessed do not involve presence legally of a owed debt could depriving money. Tuccinardi of They in- negate the robbery, mens rea element of volve depriving the owner Pony Keg, of the that need not. The court below though even he never made any complaint. assumed that the court had trial concluded Thus, there specific must have been a appellants that did act with not intent to merely get intent not money to from Tucci- collect a debt. (whether nardi justified so), or not in doing money but to take from Pony Keg.2 II There was no evidence whatsoever that giving ever said he was them Appellants charged with violation money, by any owner’s or that act or of (Page Ohio Revised Code 2911.02 statement the defendants indicated a desire 1982) defining robbery to include “commit- or intent to money. take the owner’s ting “use[ing] a theft offense” while threatenpng] the immediate use of force argues The State that the mere fact that against another.” While the evidence of Tuccinardi money took the from the cash quite register threats use of force are is evidence from which the weak, say we cannot that no rational trier could have knowledge inferred both a charge negate If the is considered as directed at de- collection are such as to the intent ele- priving property, Tuccinardi of own his ment of the crime. extremely Snowden case would become rele- Here, taking even were it assumed that the (see, e.g., vant. In Snowden and similar cases involved, money the doctrine Annotation, Robbery, Attempted Robbery, or As- might provide of Snowden a defense. There the Robbery sault to Commit Intent Affected court held that an accused does not act with Claim, Collect or Secure Debt or 88 ALR 3d 1309 purpose deprive property an owner of if he (1978)), overbearing general- debt collection has reasonably right believes that he has a ly provide been held not a defense whenever property Here, question. N.E.2d 455 at 1065. there are indicia that more involved than strongly the evidence is to the effect that collection, simple taking debt such as more than only money Farr wanted owed him. In- due, taking acknowledge- the amount ment, without deed, only departed with 25% of that taking explicit amount, in the face of resistance. though even there was more in the Certainly, legitimate Further, existence of debt does persons taking money drawer. with justify peace not a breach of the in debt collec- purpose depriving property another of the normally (Page tion. Cf. Ohio Revised Code 1309.46 give signed receipts. do not We do 1979). hand, believe, however, On the other debt collection has not regard that it is the intent with adjudicated complete robbery money defense to to Tuccinardi’s that is relevant cry where the fact, of theft is raised after the here. The State did not contend that Tuccinar- involved, money appellants’ where the consensual nature of the deliv- di’s or that ery money dispute, general regard sup- is not in and in intent with of Tuccinardi surrounding ported where the circumstances the debt the crime. 1268 REVERSED, ultímate source of the convictions are be knowing it cause no rational money,

intent to take to be the trier of fact could have Farr and believing guilty found disagree, owner’s. We that this of each essen tial element of the robbery. crime of piles upon inference inference to the break- Jack 307, v. Virginia, son 443 U.S. 99 S.Ct. ing point. indicated in Ohio Revised As (1979); 61 L.Ed.2d 560 2901.22(A), v. Peri Scott the intent Code 2913.02 §§ ni, denied, 662 F.2d cert. 456 U.S. here is the intent that matters (1981). S.Ct. L.Ed.2d 167 deprive the owner of his simply no money. There is evidence for NELSON, DAVID A. Judge, Circuit dis- proposition. All of the evidence is senting. intended to that the defendants collect the Tuccinardi. There is regret fee from not the I cannot concur in the slightest they indication were bent on court’s conclusion that there was no evi- obtaining money, regardless of the source. dence that the intended to de- pleaded poverty; It is prive Pony Keg’s true that the Forest owner of his however, intermingled nature of cash- dollars. owner, especially in ier and store this small Notwithstanding intermingled “the na- establishment, living the cashier over ture” Mr. Tuccinardi employer,1 and his store, simply are such that it is not Petitioner his own stretching permit

reasonable to the infer- behalf at the did not assert *5 point making ence thought that he money belonged the register from the cash can be anyone other than the owner of the store. supply used to the crucial element of intent Petitioners’ counsel made no such claim to rob the owner. either, nothing and I find in the record to suggest that the supposed Mr. argument supported by

This is further kept Tuccinardi his own careful examination of definition of register. store’s cash purpose, key element under considera- 2901.22(A) tion. Ohio Revised Code § Farr, The record shows that Petitioner 1982) (Page states: least, knew that Mr. Tuccinardi was not A person purposely acts self-employed. when it is his At very outset of the result, intention to cause a certain lawyer trial Mr. Farr’s told the gist when the prohibi- of the offense is a court that when Mr. spoke Farr first against conduct of a pony keg, certain nature Mr. Tuccinardi in the “Mr. Tucci- regardless Farr, of what the offender intended told Mr. Sunday. nardi ‘Come back accomplish thereby, it is his My boss will be back in and I’ll town ... ” engage intention to in conduct of you.’ (Emphasis have the sup- plied.) nature. On cross-examination Mr. Tuccinar- di confirmed that he had told Mr. Farr “I provisions of the Criminal Code are get paid Fridays.” on That was not the penal in and nature, “strictly must be con- testimony, obviously, of someone who was against strued liberally the State and con- self-employed Mr. Farr himself testi- —and strued in favor of the accused.” Ohio Re- acquainted fied “I was not with the owner 2901.04(A). vised light Code pony keg.” Mr. Farr was ac- construction, statutory this rule of Farr’s quainted with Mr. a sometime Pony Keg visit to the “purposely” was not client, and knew that Mr. Tuccinardi was a purpose” Pony Keg, or “with to rob the “deadbeat,” property. not a man of because it was not his intention to cause conceded, depriving cross-examination, the result of the owner of his Mr. Farr on money. knowledge See Ohio Revised Code that he had no 2913.02. store, really intermingled, beverage "pony keg,"

1. About all that was as far where he was discloses, employed, ought as the record was Mr. Tuccinardi’s but the reader not infer that workplace. employer habitat and his Mr. Tuccinardi tes- Mr. Tuccinardi and his were Siamese twins, occupied abnormally tified that he a basement or even intimate friends. any pony having proprietary interest there reason to suppose he intended to reject what he keg. All Mr. Farr knew was had accepted offer when he it. acquaintance; been told a mutual name- Mr. Tuccinardi said he did not need a working ly, that Mr. Tuccinardi was and receipt, testified, but Mr. as he keg, living pony “and that he was acknowledgment “wanted a written of how ought making enough money that he to be much still owed me.” Mr. [Tuccinardi] within a pay able to me off reasonable got piece paper and wrote the testified, time.” Mr. Tuccinardi without it, date on followed the words “Received contradiction, that in fact had no owner- Ralph Balance $50. due: ship interest in the Forest Mr. signed Farr then $150.” his name and not the owner of the dollars tak- insisted that Mr. Tuccinardi do likewise. register. en There from the cash is not a dispute There no about the fact that Mr. suggest scintilla of evidence sign paper Tuccinardi did du- —“under otherwise, petitioners thought or to indi- ress,” as he claimed—and there is no dis- they believed cate that the store’s owner pute that Mr. Farr took acknowledg- this Mr. dip had authorized Tuccinardi to into ment of away indebtedness with him. He purposes. the till for his own did not offer give copy, Tuccinardi a Although Mr. Tuccinardi claimed that request nor did Tuccinardi one. been told in for Farr had to come his Mr. Tuccinardi had a employee fellow money Monday, July it would have police store, call the when the men left the reasonable for the state trial police responded two officers promptly. accept testimony Mr. Farr’s that Tuccinardi Tuccinardi told the officers where Mr. Farr Sunday, July him to come in on told lived. The officers went to Mr. Farr’s accompanied, When Mr. Farr did so— house and found him and Mr. there. time, by two other men—Mr. Tuccinardi computer A capias- check disclosed “some pretend tried to that the Fourth was the Tipton; es” on Petitioner he was arrested appointed day. In may as Mr. Farr be taken to the station. Asked at divined, presumed to have Tuccinardi had “Why you grab this time did Mr. Tuccinar- paying no intention of the debt at all. Un- di around the Tipton replied, neck?” Mr. *6 circumstances, der the hardly would have according officer, “I just trying surprising been for Mr. Farr to lose his help out a friend.” temper precisely that seems to be —and declining say After anything further happened. got very what “I angry with attorney being without his present, Mr. him” when Tuccinardi said he did not have Tipton telephoned Mr. Farr and asked him testified, money, Mr. Farr and “there to come to police the station. A officer name-calling.” was a lot of The record got testified that he then on the line and Tipton, indicates that Petitioner one of the you told Mr. Farr “We want to talk to also him,2 brought “got men Mr. Farr had in reference to this incident.” Mr. Farr heated,” very grabbed Mr. station, police went to the was advised of neck, the chin or around the and threatened rights, and in the ensuing course of the up to tear both store and to take Mr. police Tipton conversation told the that Mr. parking Tuccinardi out lot and “grabbed” “[T]his,” Mr. Tuccinardi. “whoop” After Petitioner him. quoted saying, Mr. Farr was “is the “slapped hand had away” by the third way I can collect from a deadbeat.” When trio, testified, man in the as Mr. Farr Tucci- asked you go “Couldn’t to civil court?” “Well, dollars”; pay you nardi said I’ll replied, according Mr. Farr register, he then turned to the cash took officer, “sometimes that’s too slow I ... money, gave out the it to Mr. Farr. If don’t have the time.” suppose there is no reason that Mr. Farr intended to Having take store owner’s reviewed the record of the bench him, before it was petitioners offered to neither is trial at which the were convict- beer," girlfriend, they bought nothing: 2. Mr. Farr’s who remained outside in but it turned out car, "thought may actually testified she men who what their intention anyone’s guess. have been is [the going buy went in with Mr. Farr] were in to ed, so, Judge employer’s. being States Dis- or his Spiegel, United That petitions prepared say am not Judge trict who denied the that the debt collec- rational tor corpus, constitutionally concluded that “a has a mandated defense habeas if happens occupy living quar- have found the element the debtor trier of fact could and could present premises intent this case” ters somewhere on the where he rationally petitioners have found the “ei- works. If Mr. Tuccinardi a had been live-in Spiegel, guilty guilty.” Judge handyman gardner domestic servant —a ther or not view, right. occupying quarters home, my employer’s at his example why, do not see as a matter —I It is true that the crime—if it was law, the accident of his residence would one, particularly heinous crime—was not a justified taking have of the employer’s consequences of the conviction property. (which The facts of this case severe; Tipton spent has a sub- were interpret none of us can authority with the period prison, of time in and al- stantial of a trial actually heard the though has not that in- Mr. Farr suffered course) testimony, of do not strike me as dignity, felony conviction led to the loss sufficiently different hypothe- from those Judges law. can practice of his license to justify sized to the conclusion that readily sympathize with someone like State of Ohio violated the Federal Constitu- company certified member of “the convicting Messrs. Farr and women,” of educated men and robbery.3 I would have affirmed the temptation magnanimous to be here is hard denial of the writs. Judge Spiegel’s to resist. As decision cor- however, intimates, rectly very our role ais regardless

limited one—and of how we

might preferred have to see the case decid- level, sympa- trial

ed the criminal our ought

thies to be immaterial if the trial

record contains evidence on which a ration- al fact-finder could have concluded that the BROCK, Secretary William E. guilty. We are not a Labor, Petitioner, instance, court of first and we even are not v. error; an court of Ohio our sole function is COMPANY, The L.E. MYERS HIGH to determine whether the convic- DIVISION, Occupa- VOLTAGE tions violated the Due Process Clause of Safety tional and Health Review Com- the United States Constitution. I can dis- mission, Respondents. cern no such constitutional violation. No. 86-3215. If Mr. Tuccinardi had been a teller in a Appeals, United States Court of or a cashier in a if supermarket, bank *7 Sixth Circuit. place had been confronted at his employment by threatening someone Argued March 1987. up” place “tear if he did not immediate- May Decided debt, ly personal surely make on a charge it would have been no defense to a robbery that the debt did not collector paid

care whether the debtor with his own O'Neil, significance pony keg, sign I attach no the owner of the fact Mr. by complaints proceedings which the complaint already criminal after Mr. Tuccinardi had signed by so, were initiated were done and it is not inconceivable that Mr. scene, the man on the ployer, rather than em- (who was to have owed Mr. Tucci- O’Neil said nothing. of whose whereabouts we know days nardi an indeterminate amount for ten police, It was Mr. Tuccinardi who sent for the and it was the performed preceeding work over the two or police, according to their testimo- weeks) recoup three could his loss in event ny probable hearing cause that resulted the deducting fifty dollars from Mr. being grand jury, Mr. Farr's bound over for recoupment pay. could turn a No such who took sign Tuccinardi to the station to after the however. into a loan complaints. There was no reason for