228 F.3d 674 (6th Cir. 2000), 98-4096, McMeans v Brigano

Docket Nº:98-4096
Citation:228 F.3d 674
Party Name:Jerry McMeans, Petitioner-Appellant, v. Anthony J. Brigano, Warden,Respondent-Appellee.
Case Date:October 05, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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228 F.3d 674 (6th Cir. 2000)

Jerry McMeans, Petitioner-Appellant,

v.

Anthony J. Brigano, Warden,Respondent-Appellee.

No. 98-4096

United States Court of Appeals, Sixth Circuit

October 5, 2000

Argued: June 21, 2000

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 97-00054--Sandra S. Beckwith.

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William R. Gallagher, Cincinnati, Ohio, for Appellant.

Stuart W. Harris, Todd R. Marti, OFFICE OF THE ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: RYAN, SILER, and CLAY, Circuit Judges.

RYAN, J., delivered the opinion of the court, in which SILER, J., joined. CLAY, J. (pp. 687-89), delivered a separate opinion concurring in part and dissenting in part.

OPINION

RYAN, Circuit Judge.

Before us is the appeal from the district court's order dismissing the habeas petition of Jerry McMeans, an Ohio prisoner convicted of raping his stepdaughter. McMeans asserts that the district court erred when it held that he had procedurally defaulted on his Confrontation Clause, Brady, and juror bias claims. He also argues that the district court erred when it held that the Ohio court "reasonably applied" federal law in deciding that trial counsel rendered constitutionally adequate assistance. We will affirm.

I.

During the latter half of the 1980s, McMeans lived with his wife, Twila, and her children from a previous marriage, Donald Jr., Jerry, Misty, and Wendy. According to Wendy, one night in the summer of 1987, Wendy's intoxicated mother summoned her upstairs to a bedroom and ordered her to have sexual intercourse with her stepfather, an order Wendy allegedly followed. Wendy also asserted that after this initial encounter McMeans forced her to have sexual intercourse with him or perform fellatio on him several more times, sometimes for money. McMeans denies having had any sexual relationship with Wendy.

At some point during this period, Wendy informed her father, Donald Self, of McMeans's alleged sexual misconduct. Donald contacted Wendy's mother and she allegedly assured him that the problem would not persist. Wendy later informed Donald that McMeans's alleged misbehavior continued and, soon thereafter, Donald sought the assistance of Franklin County Children Services (FCCS). At about the same time, Wendy also informed her fifth grade teacher of McMeans's alleged abuse. Wendy's teacher reported Wendy's allegations to FCCS.

After receiving these reports, FCCS took Wendy into its custody. At approximately the same time, McMeans lost his job and was evicted from his home in Columbus, Ohio. He then moved with his wife and the remainder of his adopted family to Wisconsin.

After a Franklin County grand jury charged McMeans with six counts of rape, Ohio authorities eventually located him in Wisconsin and procured his return to face criminal charges.

McMeans alleges that during voir dire it became apparent that two prospective jurors would be biased. According to McMeans, juror Hunt was the mother of a rape victim and juror Grey's daughter had been murdered. McMeans also asserts that Grey was friends with the "chief county prosecutor." McMeans claims that, despite his personal objections to these jurors, his trial counsel did not employ unused peremptory challenges to remove Hunt and Grey. There is no record support for McMeans's assertions, however, because his trial counsel waived the

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right to have voir dire proceedings transcribed.

At trial, Wendy testified that McMeans had raped her several times and McMeans denied those charges. The theory of McMeans's defense was that Wendy had fabricated a story of sexual abuse in order that her father would gain physical custody of her. Aside from the testimony of Wendy and McMeans, several other witnesses testified that Wendy had informed them of McMeans's alleged misbehavior.

The only physical evidence presented at trial was the testimony of a doctor from FCCS who had examined Wendy. That doctor testified that Wendy had scarring and "irregularities" on her hymen, which possibly indicated sexual activity.

On the second day of trial, the prosecution gave the trial judge portions of reports from FCCS for in camera review. The reports noted that Wendy had accused two other men of sexually assaulting her after the petitioner's alleged abuse. After reviewing the file, the trial judge informed McMeans's counsel of Wendy's subsequent rape accusations, but warned counsel that he did not think such evidence was admissible under Ohio law. The following day, when McMeans's counsel attempted to question Wendy and her father about the subsequent rape accusations, the trial judge ruled that such examination was impermissible under the Ohio rape shield law.

After the trial judge dismissed one of the counts against McMeans, the jury found McMeans guilty of the five remaining counts. The trial judge sentenced McMeans to five life sentences.

McMeans timely appealed his conviction with the assistance of appointed counsel. Counsel argued:

[(1)]THE TRIAL COURT ERRED IN ADMITTING . . . EVIDENCE . . . OF PRIOR BAD ACTS . . . .

[(2)]THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF PROSECUTRIX'S PRIOR ACCUSATIONS OF RAPE AGAINST OTHERS IN VIOLATION OF APPELLANT'S RIGHT TO A FAIR TRIAL, AND TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

[(3)]THE TRIAL COURT ERRED BY OVERRULING APPELLANT'S MOTION TO DISMISS [THE CHARGES AGAINST HIM WHICH WERE IMPERMISSIBLY VAGUE].

[(4)]APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

After submitting those arguments, McMeans filed a supplemental brief, pro se, which asserted, among other claims, that the prosecution failed to comply with the duties recognized by the Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963). On February 21, 1989, the Ohio Court of Appeals struck McMeans's brief, noting that he had the option of dismissing his appointed counsel and relying upon his pro se brief. McMeans did not dismiss his appointed counsel.

The Ohio Court of Appeals affirmed McMeans's conviction on August 23, 1990. As to McMeans's contention that trial counsel should have been allowed to pursue inquiry into Wendy's prior rape accusations, the appellate court stated:

This court finds that the [Ohio] rape shield law is not applicable to this case since the evidence concerning whether or not Wendy fabricated other rape charges does not address any aspect of her sexual activity. The evidence merely addresses whether or not Wendy is a credible witness. However, before a trial

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court may admit evidence that the victim had made prior accusations of rape against others, the trial court must be satisfied that the prior accusations were, in fact, false. . . .

In this case, there is no evidence in the record that Wendy's prior accusations were false. . . . Had appellant wished to proffer evidence of the falsity of the prior accusations, appellant could have availed himself of an in-camera hearing . . . . Since appellant did not, this court cannot find that the trial court abused its discretion in declining to permit appellant's counsel to cross-examine Wendy on her prior accusations of rape. Accordingly, appellant's second assignment of error is not well-taken.

Regarding McMeans's ineffective assistance claim, the court held that "none of the things appellant asserts as ineffective in and of themselves demonstrates ineffectiveness on the face of the record and, most certainly, do not demonstrate that the result would have been different." McMeans filed a motion for reconsideration of that decision, which the court of appeals denied on November 6, 1990.

McMeans then filed a pro se appeal to the Ohio Supreme Court, claiming four errors in his trial including the claim that his rights guaranteed by the Confrontation Clause had been violated. The Ohio Supreme Court declined to hear the appeal.

While his direct appeal was pending, McMeans filed a pro se motion for a new trial, arguing ineffective assistance of trial counsel and that the prosecution failed to fulfill its Brady obligations. After the Ohio Court of Appeals affirmed his conviction, the trial court rejected McMeans's motion, holding that such motion was untimely and, timing aside, that his arguments had been considered and rejected at the appellate level.

McMeans unsuccessfully appealed the trial court's decision. The Ohio Court of Appeals affirmed, ruling that McMeans's motion was untimely. McMeans then appealed to the Ohio Supreme Court, which declined to exercise its jurisdiction over his appeal.

In November 1991, McMeans filed his first habeas petition in federal court, arguing that the prosecution failed to disclose exculpatory evidence and that his Confrontation Clause rights had been violated. While his petition was pending, the Ohio Supreme Court ruled in State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992), that an ineffective assistance of appellate counsel claim could be raised in a delayed motion for reconsideration of a direct appeal. Given this ruling, McMeans moved to dismiss his petition without prejudice in order that he might file a Murnahan motion. The district court granted this request.

McMeans then submitted his Murnahan motion and argued that his appellate counsel grossly erred in failing to raise his Confrontation Clause, Brady, and juror bias claims. The Ohio Court of Appeals ruled, first...

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