Franklin v. Anderson

• Decision Date: 09 January 2006
• Docket Number: No. 03-3697.,No. 03-3636.,03-3636.,03-3697.
• Citation: 434 F.3d 412
• Parties: George T. FRANKLIN, Petitioner-Appellee/Cross-Appellant, v. Carl S. ANDERSON, Warden, Respondent-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

434 F.3d 412

George T. FRANKLIN, Petitioner-Appellee/Cross-Appellant, v. Carl S. ANDERSON, Warden, Respondent-Appellant/Cross-Appellee.

No. 03-3636.

No. 03-3697.

United States Court of Appeals, Sixth Circuit.

Argued: March 17, 2005.

Decided and Filed: January 9, 2006.

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ARGUED: Heather L. Gosselin, Attorney General's Office of Ohio, Columbus, Ohio, for Appellant. Joseph E. Wilhelm, Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Appellee. ON BRIEF: Heather L. Gosselin, Charles L. Wille, Attorney General's Office of Ohio, Columbus, Ohio, for Appellant. Stephen A. Ferrell, Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Appellee.

Before: BOGGS, Chief Judge; and BATCHELDER and CLAY, Circuit Judges.

BOGGS, C. J., delivered the opinion of the court, in which CLAY, J., joined. BATCHELDER, J. (pp. 431-32), delivered a separate dissenting opinion.

BOGGS, Chief Judge.

In December 1988, George Franklin was found guilty of two counts of aggravated burglary and one count of aggravated murder and was sentenced to death. He began a long process of appeals, with each state court affirming his convictions or dismissing his claims as res judicata. On petition for habeas corpus to the Southern District of Ohio, however, Franklin was found to have two viable claims: service of a biased juror and ineffective assistance of appellate counsel, neither of which the court found to be procedurally defaulted. The court granted a conditional writ of habeas corpus on these two issues. In addition, although denying Franklin's petition on the remaining 26 claims, the district court granted a certificate of appealability (COA) on three issues: ineffective assistance of trial counsel, discriminatory use of peremptory challenges by the prosecutor, and the prosecutor's failure to provide the defense with material exculpatory and impeachment evidence at trial. Because Franklin did not object to the district judge's denial of habeas on any other issues, all other claims are forfeited on appeal and are not before this court. United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). The State appeals the conditional grant of habeas, and Franklin cross-appeals the denial of habeas on the three issues certified for appeal.

I

Franklin was convicted of the brutal murder of Gerald Strauss in his Cincinnati home on the evening of July 23, 1988 and of the theft of a television from the nearby apartment of Rosha Winston seventeen days earlier. The jury recommended the death penalty, and the judge sentenced Franklin to death in addition to two consecutive ten- to twenty-five-year terms of imprisonment for the aggravated burglaries at Strauss's and Winston's homes. State v. Franklin, 62 Ohio St.3d 118, 580 N.E.2d 1, 3-5 (1991).

Represented by new counsel, Franklin appealed his conviction through the Ohio courts. After the Ohio Supreme Court affirmed his conviction and sentence on direct appeal, a third set of attorneys took up his case and further attempted to secure relief in the Ohio courts, first by requesting that the Ohio Supreme Court recall its mandate and permit supplemental briefing on direct appeal and, when that request was denied without an opinion, State v. Franklin, 1995 WL 26281 (Jan. 25, 1995), 585 N.E.2d 424 (1992), by seeking post-conviction relief. The Hamilton County Common Pleas Court denied the petition for post-conviction relief without an evidentiary hearing, a decision that was affirmed by the Hamilton County Court of Appeals. See State v. Franklin, 1995 WL 26281 (Ohio App.), appeal not allowed, 72 Ohio St.3d 1538, 650 N.E.2d 479, cert. denied, 516 U.S. 950, 116 S.Ct. 394, 133 L.Ed.2d 315 (1995). Franklin also sought delayed reconsideration in the Ohio Court of Appeals, and his motion was denied for failure to file within the ninety-day time limit. State v. Franklin, No. C-890028 (Ohio App. Mar.3, 1994).

Franklin then sought a writ of habeas corpus in federal district court. The district court referred the matter to a magistrate judge for a report and recommendations. The magistrate judge held an evidentiary hearing and issued a comprehensive report. After amending the report slightly in response to objections filed by the parties, the magistrate judge recommended that the court grant the requested writ of habeas corpus with respect to Franklin's claim that his convictions and sentences were unconstitutional because one of the jurors could not impartially apply the law, a claim the magistrate found was not procedurally barred because Franklin had received ineffective assistance of appellate counsel on direct appeal. The district court adopted the report and recommendation, granting a conditional writ of habeas corpus on the biased juror and ineffective assistance of appellate counsel claims and dismissing all other claims as meritless. In this appeal, we are asked to consider five issues: (1) whether a juror, who was unable to follow the law, sat on Franklin's jury; (2) whether the prosecution dismissed prospective jurors for reasons of race; (3) whether the prosecution failed to provide Franklin with exculpatory material and impeachment evidence; (4) whether Franklin's trial counsel was ineffective for failing to conduct adequate investigations during the trial and the mitigation phases; and (5) whether his appellate counsel was ineffective.

As Franklin filed his Petition for Writ of Habeas Corpus on November 14, 1995, prior to the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA), we apply a pre-AEDPA standard of review. Sowell v. Bradshaw, 372 F.3d 821, 828 (6th Cir.2004). We review the district court's judgment de novo and its findings of fact for clear error. Carter v. Bell, 218 F.3d 581, 590 (6th Cir.2000). In addition, absent clear and convincing evidence, we presume the state court's findings of fact to be correct. See Wainwright v. Goode, 464 U.S. 78, 85, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983). We may issue a writ of habeas corpus only if we find that the state court proceedings were fundamentally unfair due to a violation of the Constitution or other federal law. Sowell, 372 F.3d at 828.

II

Franklin did not raise the issues under consideration in this appeal on his direct appeal in the state courts, but rather raised them for the first time in his Motion to Recall the Mandate before the Ohio Supreme Court and then later in his post-conviction proceedings. Therefore, the post-conviction courts refused to consider the merits of all of the claims, other than several of the ineffective assistance of counsel claims, on the ground that they were barred by res judicata. In Ohio, res judicata bars state courts from considering constitutional claims in post-conviction collateral attacks when those claims have already or could have been fully litigated on direct appeal. Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir.2002). Absent cause or prejudice, when a habeas petitioner fails to obtain consideration of a claim by the state courts due to a state procedural rule that prevents the state courts from reaching the merits of the petitioner's claim, the claim is procedurally defaulted and may not be considered by the federal court on habeas review. Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Lancaster v. Adams, 324 F.3d 423, 436 (6th Cir.), cert. denied, 540 U.S. 1004, 124 S.Ct. 535, 157 L.Ed.2d 409 (2003); Seymour v. Walker, 224 F.3d 542, 549-50 (6th Cir.2000). Demonstrating cause requires showing that an "objective factor external to the defense impeded counsel's efforts to comply" with the state procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Demonstrating prejudice requires showing that the trial was infected with constitutional error. See United States v. Frady, 456 U.S. 152, 169, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

Consequently, we must first decide whether Franklin can show cause and prejudice to excuse his procedural default. We focus on Franklin's claim of ineffective assistance of counsel, because such a claim can serve as both cause and prejudice, excusing a procedural default in an underlying substantive claim, as long as the petitioner can also show cause and prejudice to excuse the procedural default of the ineffective assistance claim itself. Edwards v. Carpenter, 529 U.S. 446, 450-52, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).

To determine whether Franklin had cause for his procedural default, we apply the four-part test set forth in Maupin v. Smith.

First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.

. . . .

Second, the court must decide whether the state courts actually enforced the state procedural sanction.

. . . .

Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.

. . . .

Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate . . . that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

785 F.2d 135, 138 (6th Cir.1986) (citations and footnote omitted). We agree with the district court that Franklin's ineffective assistance of appellate counsel claim is not barred from review under the Maupin test because at the time he filed his Motion for Delayed Reconsideration, in which he raised the claims he makes on appeal in the instant case, the Ohio courts did not have a "firmly established and regularly followed" procedural rule governing the timeliness...