224 F.3d 542 (6th Cir. 2000), 98-4316, Seymour v Walker

Docket Nº:98-4316
Citation:224 F.3d 542
Party Name:Beverly A. Seymour, Petitioner-Appellant, v. Diane Walker,Respondent-Appellee.
Case Date:August 16, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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224 F.3d 542 (6th Cir. 2000)

Beverly A. Seymour, Petitioner-Appellant,

v.

Diane Walker,Respondent-Appellee.

No. 98-4316

UNITED STATES COURT OF APPEAL FOR THE SIXTH CIRCUIT

United States Court of Appeals, Sixth Circuit

August 16, 2000

        Submitted: May 3, 2000

        Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 96-00763--John D. Holschuh, District Judge.

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        Laurence R. Snyder, ASSISTANT ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Cleveland, Ohio, for Appellee.

        Beverly Seymour, Columbus, Ohio, pro se.

        Before: MOORE and GILMAN, Circuit Judges; McKEAGUE,[*] District Judge.

        OPINION

        KAREN NELSON MOORE, Circuit Judge.

        After a jury trial, Beverly Seymour was convicted on November 29, 1990, of voluntary manslaughter and of a firearm specification for the shooting death of her ex-husband, Richard Reams. She brought a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the U.S. District Court for the Southern District of Ohio, raising forty-six claims of error, principally involving ineffective assistance of counsel, illegal search and interrogation techniques, prosecutorial misconduct, faulty jury instructions, and various alleged due process violations. The district court denied the petition, and on appeal Seymour raises fourteen claims of error, which attempt to incorporate most of the forty-six claims raised before the district court. For the reasons discussed below, we AFFIRM the district court's denial of the petition for habeas corpus.

        I. BACKGROUND

        By her own admission, petitioner Beverly Seymour shot and killed her ex-husband, Richard Reams, on August 27, 1990. Reams had arrived at Seymour's apartment that day while Seymour was not at home, shortly after he received a judgment awarding him custody of their daughter Tessa. Seymour testified at trial that, when she arrived in the apartment, Reams (who had allegedly physically abused Seymour in the past) attacked her, and that she attempted to frighten him with her gun, which she grabbed from the kitchen table, but that the gun fired without her realizing or intending it. Seymour's uncle testified, however, that although he lived in an adjoining apartment, separated by only one door, he heard the gunshot but no screaming or arguments. After the shooting, Seymour checked into a motel and attempted to commit suicide by swallowing a large quantity of aspirin. She was later hospitalized.

        On September 14, 1990, Seymour was indicted by a grand jury in Pickaway County, Ohio, for one count of murder with a firearm specification. After a jury trial, she was convicted of voluntary manslaughter and of the firearm specification. Seymour was sentenced to a prison term of eight to twenty-five years on the manslaughter charge, plus an additional three years on the firearm specification, to be served consecutively. Through new counsel, Seymour appealed her conviction to the Ohio Court of Appeals for the Fourth

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Appellate District, raising twelve claims of error; Seymour also supplemented her counsel's brief with a pro se brief that raised an additional fifteen claims. The court of appeals affirmed the conviction. See State v. Seymour, No. 90 CA 38, 1993 WL 472875 (Ohio Ct. App. Nov. 9, 1993), appeal dismissed, 632 N.E.2d 519 (Ohio 1994). With the help of yet another attorney, Seymour raised six claims before the Ohio Supreme Court, which dismissed her appeal as presenting no substantial constitutional question. Acting pro se, Seymour filed a motion for reconsideration in the Ohio Supreme Court, arguing that the counsel who represented her before that court was ineffective due to his failure to raise a number of claims enumerated by her. The motion was denied without opinion. While her direct appeal was still pending, Seymour filed a habeas corpus petition in the U.S. District Court for the Southern District of Ohio, claiming only that her appeal bond was excessive. That court dismissed the habeas petition on the merits. On August 2, 1996, Seymour filed the instant petition, raising forty-six claims of error. In a lengthy opinion, the district court considered all of Seymour's claims, finding some of them to be procedurally defaulted and the remainder to be without merit. Seymour timely appealed, and a Certificate of Appealability was granted as to all issues.

        II. ANALYSIS

        A. Standard of Review

        This court reviews the district court's legal conclusions de novo and its findings of fact for clear error. See Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000). Because Seymour's habeas petition was filed after the Antiterrorism and Effective Death Penalty Act (AEDPA) became effective on April 24, 1996, the provisions of that act apply to Seymour's case and prescribe the appropriate standard of review. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Harris, 212 F.3d at 942. Under AEDPA, a writ of habeas corpus shall not issue unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), or was based on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(2).

        Noting that AEDPA "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court," the Supreme Court illuminated the meaning of § 2254(d)(1) in Williams v. Taylor, ---U.S.---, 120 S.Ct. 1495 (2000). Id. at ---, 120 S.Ct. at 1523. A state-court decision is "contrary to" Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent" and arrives at a different result. Id. at ---, 120 S.Ct. at 1519. A state-court decision involves an unreasonable application of Supreme Court precedent "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case" or if the state court either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context. Id. at ---, 120 S.Ct. at 1520. The reasonableness of the state court's opinion is judged by an objective rather than subjective standard. See id. at ---, 120 S.Ct. at 1521-22; Harris, 212 F.3d at 942-43.

        B. Claim One: Procedural Default and Ineffective Assistance of Appellate Counsel

        When a habeas petitioner fails to obtain consideration of a claim by a state

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court, either due to the petitioner's failure to raise that claim before the state courts while state-court remedies are still available or due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, that claim is procedurally defaulted and may not be considered by the federal court on habeas review. See Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Picard v. Connor, 404 U.S. 270, 275-78 (1971). A petitioner may avoid this procedural default only by showing that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner's case. See Sykes, 433 U.S. at 87, 90-91.

        The district court found that several of Seymour's claims were procedurally defaulted due to her failure to raise them in the Ohio state courts. Seymour claims that this finding was incorrect. She argues that, to the extent that her claims were purportedly defaulted due to her failure to raise them on direct appeal, she has repeatedly claimed ineffective assistance of appellate counsel, which constitutes "cause" to excuse her procedural default. Specifically, Seymour argues that she received ineffective assistance because her appellate counsel was forced to limit his brief to thirty-five pages, and therefore had to eliminate a number of claims from the appeal; because her appellate counsel's motion to correct errors in the transcript of the proceedings was denied; and because she was unable to communicate with her counsel during an eight-day period of time while the appellate brief was being prepared and filed.

        We treat the question of procedural default more fully below, in connection with our examination of the individual claims that are alleged to be defaulted. However, we first briefly address the question, common to many of the procedural default issues, whether the ineffective assistance of Seymour's appellate counsel can serve as cause to excuse Seymour's default of those claims that she failed to raise in the state courts.

        If Seymour could show that she received ineffective assistance of appellate counsel that rose to the level of a violation of her Sixth Amendment rights, it would excuse her procedural default. See, e.g., Murray v. Carrier, 477 U.S. 478, 488 (1986). The Supreme Court explained the requisite showing for ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984):

        First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient...

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