Carpenter v. Mohr

• Decision Date: 24 March 1999
• Docket Number: 97-3393,Nos. 97-3392,s. 97-3392
• Citation: 163 F.3d 938
• Parties: Robert W. CARPENTER, Petitioner-Appellee/Cross-Appellant, v. Gary C. MOHR, Warden, Respondent-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 938

163 F.3d 938

Robert W. CARPENTER, Petitioner-Appellee/Cross-Appellant, v. Gary C. MOHR, Warden, Respondent-Appellant/Cross-Appellee.

Nos. 97-3392, 97-3393.

United States Court of Appeals, Sixth Circuit.

Argued April 28, 1998.

Decided Dec. 18, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied March 24, 1999.

Dennis C. Belli (argued and briefed), Columbus, OH, for Petitioner-Appellee/Cross-Appellant.

Charles L. Wille (argued), Jon C. Walden (briefed), Office of the Attorney General of Ohio, Columbus, OH, for Respondent-Appellant/Cross-Appellee.

Before: MERRITT, JONES, and NORRIS, Circuit Judges.

OPINION

NATHANIEL R. JONES, Circuit Judge.

Respondent Gary C. Mohr, a warden for the State of Ohio, appeals from the district court's grant of a conditional writ of habeas corpus to petitioner Robert W. Carpenter. The district court held that Carpenter's appellate counsel on direct appeal in state court was ineffective for failing to raise a sufficiency of the evidence claim, and ordered that the state court reinstate Carpenter's appeal within ninety days or a writ of habeas corpus would be issued. Carpenter cross-appeals from the district court's decision not to decide his remaining habeas claims. For the reasons stated herein, we affirm the district court's determination that Carpenter established cause for procedurally defaulting his insufficient evidence claim. However, we remand the case for issuance of a writ of habeas corpus conditioned upon the state court granting Carpenter a new culpability hearing.

I.

On the evening of October 5, 1988, Warren Young found the dead body of his adoptive mother Thelma Young, ¹ a 73-year-old woman, in her Columbus, Ohio home. She had apparently been bludgeoned to death with a blunt object and repeatedly cut and stabbed with a sharp object and a screw driver. All of the cash kept in her purse and bedroom dresser had been removed. The next day, on October 6, 1988, Carpenter, Warren Young's close friend, telephoned 9-1-1 and stated that he had information concerning the crime. He informed the police officers investigating the crime that while he was attending to his car at a gas station, three men forced him at gun point to the rear of his car, and drove the car to Young's home. At Young's home, two men took Carpenter's shirt and glasses. According to Carpenter the three men then forced Carpenter to knock on the door, and when Young answered pushed Carpenter inside. Carpenter asserted that one of the men went with Carpenter into Young's bedroom where he forced Carpenter to dump the contents of Young's purse on the bed. That man then took the money from Young's purse and forced Carpenter into the bathroom. While Carpenter was in the bathroom, Young was murdered. After the men left, Carpenter exited the bedroom, removed a screw driver from Young's mouth, and rolled Young's body onto its back. He retrieved his glasses and shirt that were lying near the body, picked up the screw driver and left the house. The next day he called 9-1-1.

Although the police initially considered Carpenter a witness, he was eventually arrested. The police retrieved a number of items of evidence connecting Carpenter to the crime scene, including pieces of Carpenter's clothing with blood from the victim, as well as a screw driver found in his car. J.A. at 308. Carpenter, however, consistently maintained that although he was present during the murder, others actually committed the crime. ²

On October 14, 1989, a Franklin County Grand Jury returned an indictment charging Carpenter with one count of aggravated murder with a death penalty specification under Ohio Rev.Code § 2903.01, and one count of aggravated robbery under Ohio Rev.Code § 2911.01. Carpenter initially entered a general plea of not guilty to the charges, but as a result of a plea agreement, waived his right to a jury trial and changed his plea to a conditional guilty plea pursuant to the procedure approved in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), in which he pleaded guilty while still maintaining his innocence. During the culpability hearing concerning his guilty plea, held before a three-judge panel, Carpenter asserted his innocence and stated that he pleaded guilty only to avoid the death penalty. J.A. at 253-55. The prosecution then recited its statements of facts concerning the charges, which the parties agreed that the defense would neither admit nor deny. J.A. at 257. No witnesses were called during the culpability hearing and no testimony or exhibits were admitted other than the prosecution's statement concerning the crime. After hearing the prosecution's statement, the three-judge panel accepted Carpenter's plea and found beyond a reasonable doubt that Carpenter had committed the crimes charged in the indictment, including the death penalty specification that Carpenter was the principal offender and committed the murder during the commission of an aggravated robbery. The three-judge panel then conducted a mitigation hearing to determine Carpenter's sentence and subsequently sentenced Carpenter to a life term of imprisonment with no possibility of parole for thirty years on the aggravated murder count, and to a concurrent term of ten years minimum to twenty-five years maximum on the aggravated robbery count.

On October 9, 1990, Carpenter (through counsel) appealed his convictions and sentence to the Ohio Court of Appeals, assigning only one error. ³ The Court of Appeals affirmed the convictions and sentence, and Carpenter did not appeal this decision to the Ohio Supreme Court.

On March 13, 1992, Carpenter applied for post-conviction relief and filed a pro se petition to vacate or set aside his convictions and sentence asserting four errors. ⁴ The trial court dismissed the petition on June 18, 1992 finding no substantive grounds for relief. Carpenter then appealed this decision, again pro se, to the Ohio Court of Appeals asserting two errors. ⁵ After the state's response, Carpenter filed an additional assignment of error pro se. ⁶ Carpenter then obtained court-appointed counsel and on September 30, 1992, filed another brief asserting one assignment of error. ⁷ On December 3, 1993, the Ohio Court of Appeals affirmed the lower court decision dismissing Carpenter's petition to vacate, finding that the conclusory statements made in support of his petition were insufficient to state a ground for post-conviction relief. Carpenter (again pro se) appealed to the Ohio Supreme Court which dismissed the appeal on April 14, 1993.

On July 15, 1994, after retaining yet another counsel, Carpenter filed an application to reopen his direct appeal in the Ohio Court of Appeals pursuant to Ohio R.App. P. 26(B), alleging that his original appellate counsel was ineffective because he had failed to raise the sufficiency of the evidence claim on direct appeal. This was Carpenter's first opportunity to raise the claim of ineffective assistance of appellate counsel because under Ohio law such claims cannot be raised in post-conviction proceedings, but must be raised either in a motion for reconsideration in the court of appeals through an application to reopen direct appeal, or in an appeal to the Ohio Supreme Court. See State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204, 1208-09 (Ohio 1992). The Ohio Court of Appeals dismissed Carpenter's application on September 29, 1994, determining that Carpenter had failed to show good cause for filing his application beyond the ninety-day period required under Ohio R.App. P. 26(B)(1). ⁸ Carpenter subsequently appealed this decision to the Ohio Supreme Court, which on January 31, 1996 affirmed the Ohio Court of Appeals' decision in a one sentence per curiam opinion relying on the authority of State v. Reddick, 72 Ohio St.3d 88, 647 N.E.2d 784 (Ohio 1995).

On May 3, 1996, Carpenter filed a habeas corpus petition with the United States District Court for the Southern District of Ohio. He alleged: 1) insufficiency of the evidence to support his plea and subsequent sentence; 2) ineffective assistance of appellate counsel; and 3) that he was denied a meaningful opportunity to litigate his federal claims in the state courts through the application of Ohio Appellate Rule 26(B). On March 12, 1997, the district court entered judgment for Carpenter on his ineffective assistance of appellate counsel claim and ordered that a writ of habeas corpus conditionally issue unless the Ohio Court of Appeals reinstated Carpenter's direct appeal from the state conviction within ninety days. The district court did not rule on Carpenter's sufficiency of the evidence and lack of meaningful relief claims, deeming them moot. The State timely appeals from this judgment and Carpenter cross appeals from the district court's denial of relief on his two other grounds, as well as the district court's choice of remedy.

II.

This court reviews de novo a district court's disposition of a petition for a writ of habeas corpus, but nonetheless reviews the district court's factual findings for clear error. Groseclose v. Bell, 130 F.3d 1161, 1163 (6th Cir.1997); see also West v. Seabold, 73 F.3d 81, 84 (6th Cir.1996); Warner v. United States, 975 F.2d 1207, 1215 (6th Cir.1992).

We first address Carpenter's cross-appeal because the resolution of that appeal in Carpenter's favor would render the State's appeal moot. Carpenter argues that the district court erred on several grounds by failing to reach the merits of his sufficiency of the evidence claim. ⁹ First, he argues that the district court erroneously applied the four part Maupin test for state procedural default. ¹⁰ The district court determined initially that Carpenter's sufficiency of the evidence claim was waived for purposes of habeas review because he failed to assert it in state court making it barred there due to res judicata. See State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, 105 (Ohio 1967) (applying res judicata to bar...