FREDERICK WHITE, Petitioner-Appellant, v. JAMES SCHOTTEN, Warden, Respondent-Appellee.
No. 97-4066
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 26, 2000
2000 FED App. 0036P (6th Cir.)
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. File Name: 00a0036p.06. Argued: June 10, 1999. Decided and Filed: January 26, 2000. Before: KEITH, DAUGHTREY, and MOORE, Circuit Judges.
ARGUED: Kort W. Gatterdam, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee. ON BRIEF: Kort W. Gatterdam, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee.
MARTHA CRAIG DAUGHTREY, Circuit Judge.
Petitioner Frederick White appeals the district court’s dismissal of his habeas corpus petition, filed pursuant to
Under applicable Ohio law, a claim of ineffective assistance is raised by application to reopen the direct appeal.
PROCEDURAL AND FACTUAL BACKGROUND
[Kimberly Hawkins] White worked as a nurse’s assistant at the Mount St. Joseph Nursing Home. At approximately 7:00 a.m., November 5, 1988, White left the nursing home with Jacqueline Glenn and walked toward the van of Richard Gibson, a friend of Glenn’s, who was to drive the women home. Glenn testified she entered the van through the front passenger door and, as she began to unlock the rear sliding door, White screamed and pushed Glenn into the van. The women fell onto the floor between the seats. Glenn heard an initial shot and heard White shout, “Wait, Rick, wait.” (Tr. 110). According to Glenn, this shot hit White in the leg. Glenn told the jury White’s assailant entered the van and again shot White, who stated “Oh, Rick.” (Tr. 113). Glenn, who received powder burns during the shooting, testified she heard three to four shots. She also observed the man’s face as he left the van.
In her statement to police immediately after the shooting, Glenn indicated she did not see the man who shot White, nor did this statement include White’s identificatiоn of her assailant. Two days later, Glenn went to the police station to amplify her initial statement. She then told police of White’s references to her assailant as “Rick” and described the man’s clothing. Glenn subsequently selected the defendant’s picture from an array of five photographs and identified him as the man who shot White.
Richard Gibson, the driver of the van, corroborated Glenn’s testimony but was unable to identify the assailant. Gibson told the jury that, as White lay wounded in the van, she stated her husband fired the shots. Euclid police officer Jeffrey Swider responded to the nursing home minutes after the shooting. Swider testified he asked White who shot her and White responded, “My husband.” (Tr. 180). Sister Mary Raphael, a nun at thе nursing home, also heard White identify her husband as the assailant. White later died in the hospital.
Cuyahoga County Coroner Elizabeth Balraj performed an autopsy on White’s body. Her examination revealed a gunshot wound to the left leg as well as an abdominal wound with a perforation of the aorta. Balraj opined White hemorrhaged to death. Barbara Campbell, a member of the coroner’s trace evidence department, testified that gun shot residue on White’s palms indicated the weapon was fired in close proximity to White.
Kathy Kozel, an assistant at Mount St. Joseph, testified that, as she arrived for work, she observed a man standing outside the nursing home approximately ten minutеs before the shooting. Kozel stated she was 12-13 feet from the man and that she looked at his face. Kozel did not see the man fire a gun. Three months later, Kozel selected the defendant’s photo from an array as the man she saw outside the nursing home.
Charon Hawkins, the victim’s daughter, testified the defendant telephoned her mother the evening before she was killed. According to Hawkins, her mother twice refused to speak with the defendant, who finally threatened “to do something bad” to her mother. (Tr. 235). The daughter also averred the defendant beat her mother many times.
Vivian Faylor Jeff, a counselor at the Cuyahoga County Witness & Family Violence Center, testified she met with White on six to eight ocсasions and that White was afraid of the defendant. Jeff indicated White had filed a complaint against the defendant and sought a protective order and divorce from him. Mabel Jean Edwards, also a nursing home employee, told the jury she discussed White’s domestic problems with the defendant. Edwards averred she “often” saw White with black eyes and bruises on her neck. According to Edwards, White told her the defendant once shot at her and a friend.
Euclid police officer Patrick Lynch testified the defendant’s auto was found north of Columbus on the northbound side of Interstate I-71 at 2:14 a.m. the day after the shooting. The left rear tire on the vehicle was flat. Lynch told the jury that highway patrol reports from the prеvious day did not refer to the auto. In February 1989, police arrested the defendant in California and brought him back to Cleveland for trial.
The defendant denied killing his former wife and told the jury he was in Columbus at the time of the shooting. He claimed he spent the late afternoon of November 4, 1988 with his current wife, Kimberly Fox White, until she went to work that night. According to the defendant, he left for Cleveland at 7:00 p.m. to visit relatives after learning about the death of an uncle. The defendant stated his auto had a flat tire on Interstate 71 just outside Columbus and he walked to a nearby convenience store to phone for assistance. Unable to secure towing services, the defendant went to a laundromat/restaurant named “Dirty Dungarees” where he met a woman, Rhonda Simon. The defendant introduced himself to her as “Tony Love“, a name he used as a radio disc jockey. The woman later drove him to his apartment where she left her telephone number on a magazine. The magazine was introduced into evidence. The defendant gave Simon a record album for bringing him home. The defendant testified that, after Brown left, a neighbor, Andrea Bell, visited him. The defendant asked her to order a pizza for him from her apartment since his telephone was not working.
According to the defendant, he and his wife later tried to retrieve his auto but the battery was dead. They spent the rest of the evening watching videotaped movies. The defendant told the jury he awoke the morning of the slaying at 8:15 and went on errands with his wife. He claimed that, as he left the apartment complex on errands, he spoke with Bell about the pizza not arriving the previous night. Later that day the defendant learned his former wife had been killed. He acknowledged he left for California after police visited his mother in Cleveland. The defendant stated the police told his mother they would shoot him. Rhonda Simon corroborated the defendant’s testimony as to meeting “Tony Love” at 8:00 p.m. on November 4, 1988 at “Dirty Dungarees.” She verified that he told her of his flat tire and that she drove him to his apartment where she left her phone number on a magazine. Simon averred she arrived at her house at approximately 10:00 p.m. Andrea Bell also agreed she visited the defendant at his apartment “on a Friday evening in early November” and learned of his flat tire. According to Bell, she spoke with the defendant the next morning between 8:30 and 9:00 as he left the apartment complex with his wife in her auto. Kimberly Fox White corroborated the defendant’s testimony and claimed he was with her in the early morning hours of November 5, 1988.
Private investigator John Younkin told the jury that the distance from defendant’s auto on Interstate 71 to the nursing home where White was shot equaled 139.3 miles. According to Younkin, it requires two hours and nineteen minutes to drive this distance at the posted sрeed limits.
The defendant offered two character witnesses on his behalf. Glenn Frazier, a pastor at the Gospel Palace Church and manager of a radio station where defendant hosted an inspirational program, testified to the defendant’s honesty. Bishop F.E. Perry stated the defendant had been a minister at their church and was a “family” man. Perry described the defendant as truthful.
In rebuttal, the state called Deborah Brown who swore she spoke with the defendant in Cleveland on the afternoon before the shooting between 3:40 p.m. and 3:55 p.m. The defendant allegedly asked Brown whether she had seen White. Patricia Laster also averred she saw the defendant in his auto between 3:00 р.m. and 4:00 p.m. on November 4, 1988. Both women testified they had observed defendant strike White on previous occasions.
State v. White, No. 1991 WL 8581 at *1-*3 (Ohio Ct. App., Jan. 31, 1991), aff’d, 647 N.E.2d 787 (Ohio 1995).
On May 12, 1989, a jury found White guilty of one count of aggravated murder with a firearm specification and two counts of felonious assault with firearm specifications. On May 15, 1989, the trial court sentenced him to 20 years to life for aggravated murder, three years for the firearms specification, and 8-to-15 years on each count of felonious assault, all to be served consecutively. On January 31, 1991, the Ohio Court of Appeals overruled the petitioner’s assignments of error, but sua sponte ordered the trial court to vacate one of his convictions for felonious assault under the allied offеnses doctrine. The court of appeals’s decision was journalized on February 11, 1991.
Although the petitioner obtained representation from the Office of the Ohio Public Defender in 1991, the attorney assigned to White’s case did not file an application for reopening alleging that his appellate counsel had rendered ineffective assistance in failing to raise four assignments of error until three years later, on February 16, 1994. The court of appeals denied White’s application for reopening, finding it to be untimely based on
A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and
sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the application shows good cause for filing at a later time.
The petitioner attached to his application for reopening an affidavit from his attorney stating that he had been assigned White’s case in 1991 but had been unable to review the merits of the case until late 1993, as a result of his office’s “overwhelming caseload” and his own “personal heavy caseload.” White’s counsel argued that his heavy caseload served as “good cause,” as that phrase is used in
White then filed a pеtition for writ of habeas corpus in the United States District Court for the Northern District of Ohio, raising the following claims:
(1) violation of petitioner’s rights to due process and a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution on the grounds of prosecutorial misconduct; (2) petitioner’s Fifth and Fourteenth Amendment rights against self-incrimination, to due process and a fair trial were denied when the trial court repeatedly allowed introduction of other acts evidence and extrinsic evidence of petitioner’s character to be presented to the jury; (3) petitioner’s Sixth and Fourteenth Amendment rights to confrontation
The case was referred to a magistrate judge, who issued a report аnd recommended that the petition be dismissed because the claims were procedurally defaulted under
ANALYSIS
White appeals the district court’s dismissal of his habeas corpus petition on the basis of procedural default. In considering a district court’s disposition of a habeas petition, we review the district court’s legal conclusion de novo, and its factual findings for clear error. See Carpenter v. Mohr, 163 F.3d 938, 942-43 (6th Cir. 1998), cert. granted, 120 S.Ct. 444 (1999).
Under Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), this circuit utilizes the following four-pаrt analysis when the state argues that a federal habeas claim has been procedurally defaulted in state court: (1) whether there is a procedural rule that is applicable to the petitioner’s claim and whether the petitioner failed to follow this rule; (2) whether the state courts actually enforced the state procedural rule; (3) whether the state procedural rule is an adequate and independent state ground to foreclose federal relief; and if so (4) whether the
The petitioner contends that none of the first three factors of the Maupin test have been met. He also argues, in the alternative, that even if those three factors have been satisfied, he is able to show cause and prejudice for his default under the fourth factor, thereby entitling him to federal court review of the merits of his habeas corpus claims. He also argues that the court may excuse his procedural default because failure to address the merits of his constitutional claims will result in a fundamental miscarriage of justice. We consider each of the four Maupin factors in turn, addressing petitioner’s arguments in the process.
The first Maupin factor requires us to consider whether there is a procedural rule that is applicable to the petitioner’s claim and whether he failed to follow that rule. The petitioner argues that there was no procedural rule applicable to his claim because
Turning to the second Maupin factor, we must consider whether the state courts actually enforced the state procedural rule. The Ohio Court of Appeals held that it was compelled to deny the petitioner’s application for reopening because it was untimely under
Notwithstanding the fact that the application for reopening is untimely, a substantive review of the applicant’s supporting memorandum clearly demonstrates that res judicata prevents the reopening of the appellate judgment that was rendered in State v. White (Jan. 31, 1991), Cuyahoga App. No. 57944, unreported. The doctrine of res judicata prohibits a defendant from relitigating any defense or claim of error that has been previously raised on direct appeal. State v. Perry, 10 Ohio St. 2d 175 (Ohio 1967). . . . In an attempt to reopen the appellate judgment that was rendered by this Court, the applicant raises four proposed assignments of error which appellate counsel allegedly failed to argue upon appeal. These four proposed assignments of error address the following issues: (1) other acts testimony (Evid. R. 404); (2) hearsay evidence (Evid. R. 801); (3) extensive evidence to impeach defendant’s character (Evid. R. 608); and (4) prosecutorial misconduct. This court, however, has previously examined upon direct appeal each of the applicant’s four proposed assignments of error. Through the fourth, fifth, and sixth assignments of error as raised on direct appeal, this Court reviewed the issues of other acts testimony, hearsay evidence, and extrinsic evidence to impeach defendant’s character. In addition, this court addressed the issue of prosecutorial misсonduct in light of the harmless error rule (Crim. R. 52(A)) and held that: “Although the prosecutor repeatedly violated the rules of evidence in this case, we are compelled to find these errors harmless in light of the overwhelming evidence of the defendant’s guilt. State v. Abrams (1974), 39 Ohio St. 2d 53; Chapman v. California (1967), 386 U.S. 18. . . . ”
Id. at 4-5.
White argues that the appeals court’s alternative holding – that his claims would be barred by res judicata even if they were not procedurally barred -- constitutes a decision on the merits and that his claims, therefore, are not procedurally barred.1 We cannot agree. As the Supreme Court has explained, “a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court’s judgment, even when the state court also relies on federal law.” Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (emphasis in original); accord Sochor v. Florida, 504 U.S. 527, 533 (1992). As we concluded in Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998),
We turn next to the third Maupin factor, which requires us to consider whether the state procedural rule is an adequate and independent state ground to foreclose federal relief. Such a rule is adequate if it is regularly or consistently applied by the state court, see Johnson v. Mississippi, 486 U.S. 578, 587 (1988), and is independent if it does not “depend[ ] on a federal constitutional ruling.” Ake v. Oklahoma, 470 U.S. 68, 75 (1985); see also Mapes v. Coyle, 171 F.3d 408, 421 (6th Cir. 1999), petition for cert. filed, 68 USLW 3116 (July 29, 1999) No. 99-203) (“[T]he fact that a petitioner hаs not complied with a state procedural rule cannot bar federal review of constitutional claims if the state rule is not ‘firmly established and regularly followed.’“) (internal quotation marks and citation omitted)).
White argues that the “good cause” requirement of Ohio’s
A review of the Ohio court of appeals cases attached to Petitioner’s brief reveals that the state courts have not achieved consensus on what constitutes “good cause” to excuse non-compliance with
In any event, we need not focus on whether the good cause exception to
Without question, an attorney’s failure or refusal to abide by established time deadlines in handling a client’s appeal is conduct falling below the minimal standards of competency that federal case law has imposed upon counsel to satisfy constitutional safeguards. See Strickland v. Washington, 466 U.S. 668, 698 (1984) (a finding of ineffective assistance of counsel requires first that an attorney’s representation fall below an objective standard of reasonableness). See also Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) (failure to perfect a direct appeal in derogation of a request to do so is a per se violation of the Sixth Amendment, regardless of whether the appeal would have been successful). In fact, such deficiencies have been held to constitute ineffective assistance of counsel per se. See Rodriguez v. United States, 395 U.S. 327, 330 (1969) (“Those whose right to appeal has been frustrated should be treated exactly like any other appellant; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage of the proceedings.“).
The State of Ohio argues, nevertheless, that a petitioner such as White has no constitutional right to counsel at any stage of criminal proceedings beyond a direct appeal as of right. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Without a right to counsel, the petitioner also has no
If the application for delayed reconsideration is neither part of a state habeas nor state post-conviction proceeding, it must be a continuation of activities related to the direct appeal itself. Because a defendant is entitled to effective assistance of counsel on direct appeal, see Evitts v. Lucey, 469 U.S. 387, 396 (1985), such an individual must be accorded effective assistance of counsel throughout all phases of that stage of the criminal proceеdings. The failure of the Ohio Public Defender to offer such constitutionally-mandated counsel excuses the failure of the petitioner to abide by the timing requirements of applicable procedural rules.
Therefore, upon establishing that he was actually prejudiced by any ineffective representation, the petitioner is entitled to present to a federal court for merit review those claims that should have been brought to the attention of the Ohio state courts throughout the course of the petitioner’s legal battles. See Coleman, 501 U.S. at 750. Having found no cause for White’s default, neither the magistrate judge nor the district judge addressed the prejudice prong. Accordingly, unless there is аnother basis upon which to excuse the petitioner’s procedural default, we must remand to the district court to decide whether the petitioner can establish prejudice.
White claims that there is such an alternative basis to excuse his procedural default, arguing that even if this court finds that he has not shown cause and prejudice, the procedural default should nonetheless be excused because a fundamental miscarriage of justice would result from a failure
There were two eyewitnesses to the crime. Richard Gibson testified he could not identify the perpetrator. Jackie Glenn identified Mr. White but admitted she told the police after the incident that she did not see the assailant because she was pushed aside, out of the way, and had her head down. The State’s evidence is contradicted by the evidence presented by White. Mr. White produced credible evidence at his trial that he was in Columbus, Ohio at the time of his ex-wife’s murder. In addition to the alibi testimony from his wife, Mr. White introduced testimony from two disinterested witnesses who testified to seeing Mr. White the night before and the morning of thе murder in Columbus, Ohio. . . . The State of Ohio convicted Mr. White based upon his past conduct, bad character, hearsay and prosecutorial misconduct.
We conclude that the petitioner has not made a colorable showing of actual innocence under the Carrier/Schlup standard. As the petitioner acknowledges, this evidence was presented to the jury, which chose to credit the state’s evidence over that offered by the petitioner. Although we might agree with the Ohio Court of Appeals’s assessment that the prosecutor violated the rules of evidence in this case, there is no basis for us to second-guess the jury’s credibility determination and its resulting verdict. Accordingly, becausе a miscarriage of justice will not result from the court’s failure to review this claim, it does not excuse the petitioner’s failure to comply with state procedural rules. See Ritchie, 11 F.3d at 593.
Finally, we note the petitioner’s argument that
CONCLUSION
We conclude that Ohio criminal defendants have a federal constitutional right to effective assistance of counsel during an application for reopening and that the petitioner’s cоunsel in this case was constitutionally ineffective in failing to file such an application in a timely fashion, thus constituting