Walter HOOPER, Petitioner-Appellant, v. E. P. PERINI, Respondent-Appellee
No. 79-3167
United States Court of Appeals, Sixth Circuit
Feb. 17, 1981
Rehearing Denied April 1, 1981
445
EDWARDS, Chief Judge.
We believe, as did the Tax Court, that the depreciability of grading is irrelevant. We find no difference between
It is possible that petitioner may be entitled to an abandonment loss for grading and ballast under a single line of track that was removed, that is, where the former double tracks diverged and one of them was retired and removed as a result of CTC. However, “the taxpayer must establish that the property actually did lose its useful value, and that he, by reason thereof, actually did write off and abandon the property as an asset in the particular year for which deduction of the loss is claimed.” Stanley Burke, 32 T.C. 775, 780 (1959), aff‘d, 283 F.2d 487 (9th Cir. 1960). The evidence offered by petitioner is insufficient to establish the extent of such sections of grading and ballast or that those sections of grading and ballast were no longer used by petitioner for any useful purpose. The fact that petitioner wrote them off on its books alone is not enough. 66 T.C. at 1007, n.30. See also Western Maryland Ry. Co. v. United States, 291 F.Supp. 935 (D.Md. 1968).
The judgment of the Tax Court is affirmed, save for the ruling on payroll tax deductions. That portion of the judgment is reversed and remanded to the Tax Court with instructions to enter computations consistent with this opinion.
Walter Hooper, pro se.
Paul Mancino, Jr., Cleveland, Ohio [Court-Appointed CJA], for petitioner-appellant.
William J. Brown, Atty. Gen. of Ohio, Simon B. Karas and Richard David Drake, Asst. Attys. Gen., Columbus, Ohio, for respondent-appellee.
Before EDWARDS, Chief Judge, and CECIL and CELEBREZZE, Senior Circuit Judges.
This is an appeal from the judgment of a district court in the Northern District of Ohio which denied petitioner Hooper‘s application for habeas corpus relief under
The jury in this case returned a verdict of guilty of second degree murder under
The District Court cited United States Supreme Court cases including In re Winship, 396 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); and Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). The court appeared to rely primarily on the Patterson case. In Patterson, the Supreme Court upheld the State of New York in placing the burden of an affirmative defense, “extreme emotional disturbance,” upon the defendant. The facts in this case would indeed provide appellant a jury issue on the extreme emotional disturbance defense of the Patterson case except for the fact that Ohio law affords no such defense to a second degree murder charge.
The facts in this case show that petitioner is not entitled to the writ and that the District Judge should be affirmed. After a bar brawl on December 22, 1973 between one Salmon and Hooper which had something to do with both whiskey and a bar dancer, the fight was renewed outside the bar. By all accounts, including Hooper‘s own statement made on the scene to a police officer, Hooper won the fight. The overwhelming evidence showed that Hooper knocked Salmon out, gained possession of Salmon‘s gun and while Salmon was lying on the ground, shot him through the heart at point blank range. Assuming that the burden of proof instruction was constitutional error, it would be harmless beyond reasonable doubt on these facts. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In addition, in this case there is no showing of “prejudice” as defined by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Wainwright the Supreme Court dealt with the “prejudice” issue in language which is directly applicable here:
“The other evidence of guilt presented at trial, moreover, was substantial to a degree that would negate any possibility of actual prejudice resulting to the re
spondent from the admission of his inculpatory statement.” Id. at 91, 97 S.Ct. at 2508.
The judgment of the District Court is affirmed.
CELEBREZZE, Senior Circuit Judge, concurring.
Petitioner Hooper did not object at trial to the jury instructions allocating to him the burden of proving the affirmative defense of self-defense by a preponderance of the evidence. Since he failed to comply with Rule 30 of the Ohio Rules of Criminal Procedure which requires a contemporaneous objection in order to preserve the issue for appeal, his threshold task is to satisfy the “cause” and “prejudice” standards of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). See Hockenbury v. Sowders, 620 F.2d 111 (6th Cir. 1980). The en banc decision of this court in Isaac v. Engle, 646 F.2d 1122 (6th Cir. 1980) holds that, in situations such as this, the absence of any colorable reason for raising an objection will constitute “cause“, and “prejudice” is presumed when the burden of proof is shifted to the defendant when he has produced sufficient evidence to raise the defense of self-defense. As the majority notes, the evidence adduced by Hooper to corroborate his claim of self-defense was grossly inadequate. That failure to present sufficient evidence on the issue of self-defense precludes consideration of petitioner‘s claim.
Even if Hooper were able to satisfy the Wainwright criteria, the substance of his due process claim is without merit. Petitioner claims that it was a denial of due process for the state to compel him to prove self-defense by a preponderance of the evidence. The underpinning of this contention is the assertion that the defense of self-defense negates the element of malice. On the one hand, the state was forced to prove beyond a reasonable doubt that the killing was committed purposely and with malice in order to convict. On the other hand, petitioner claims that he was forced to rebut the element of malice by proving the affirmative defense by a preponderance of the evidence in order to gain an acquittal on the theory of self-defense. Petitioner argues this constitutes impermissible burden shifting under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). I would reject this claim on the merits and affirm the denial of habeas corpus relief based upon the reasoning of my opinion for the court in Carter v. Jago, 637 F.2d 449 (6th Cir. 1980). The thrust of Carter is that due process of law does not preclude a state, once having proved the fundamental elements of a crime beyond a reasonable doubt, from then placing the burden of proving an affirmative defense on the accused. In this setting, an instruction shifting the burden of proof does not remove from the prosecution the full burden resting upon it under In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), but simply reflects a legislative evaluation of a party‘s superior access to the proof.
Notes
No person shall purposely and maliciously kill another. Whoever violates this section, except in the manner described in sections 2901.01, 2901.02, 2901.03, and 2901.04 of the Revised Code, is guilty of murder in the second degree and shall be imprisoned for life.