White v. Schotten, 97-4066

Citation201 F.3d 743
Decision Date10 June 1999
Docket NumberNo. 97-4066,97-4066
Parties(6th Cir. 2000) Frederick White, Petitioner-Appellant, v. James Schotten, Warden, Respondent-Appellee. Argued:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Appeal from the United States District Court for the Northern District of Ohio at Cleveland, No. 95-02801--Patricia A. Gaughan, District Judge. [Copyrighted Material Omitted] David H. Bodiker, Kort W. Gatterdam, PUBLIC DEFENDER'S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellant.

Lillian B. Earl, Office of the Attorney General of Ohio, Cleveland, Ohio, Stuart W. Harris, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee.

Before: KEITH, DAUGHTREY, and MOORE, Circuit Judges.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Petitioner Frederick White appeals the district court's dismissal of his habeas corpus petition, filed pursuant to 28 U.S.C. § 2254. In the petition, White challenges his 1989 state convictions for aggravated murder with a firearm specification, felonious assault with a firearm specification, and possession of a weapon under disability, alleging that his appellate counsel rendered constitutionally ineffective assistance. The district court dismissed the petition on the ground of procedural default, finding that the petitioner had failed to raise the issue of ineffective assistance of counsel within the time limit set by Ohio App. R. 26(B). The district court further found that White was unable to show cause and prejudice for the default.

Under applicable Ohio law, a claim of ineffective assistance is raised by application to reopen the direct appeal. Rule 26(B) provides that the application must be filed within 90 days "from journalization of the appellate judgment." In this case, the petitioner's attorney filed the application some three years after the 90-day period had run. Because an application for reopening the direct appeal in Ohio is part of the direct appeal process, and because a defendant has a right to effective assistance of counsel during that stage of proceedings, we conclude that the petitioner in this case is able to show cause for his procedural default, i.e., counsel's failure to file a timely application for reopening. However, the issue of whether the petitioner was prejudiced by the alleged constitutional error was not addressed by the district court and is not adequately briefed before us. Hence, we must remand the case to the district court to make that determination and, if it finds that the petitioner has established prejudice, to review the petitioner's constitutional claims on their merits.

PROCEDURAL AND FACTUAL BACKGROUND

The convictions underlying Frederick White's federal petition for habeas corpus arise from the shooting death of his former wife, Kimberly Hawkins White, as she left work. The Ohio Court of Appeals, affirming the petitioner's convictions and sentence on direct appeal, stated the facts of this case as follows:

[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 identification 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 the 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 minutes 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 occasions 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 previous 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 speed...

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