Carter v. Jago

• Decision Date: 22 December 1980
• Docket Number: No. 79-3317,79-3317
• Citation: 637 F.2d 449
• Parties: Robert CARTER, Petitioner-Appellant, v. Arnold R. JAGO, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 449

637 F.2d 449

Robert CARTER, Petitioner-Appellant, v. Arnold R. JAGO, Respondent-Appellee.

No. 79-3317.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 17, 1979.

Decided Dec. 22, 1980.

Paul Mancino, Jr., Cleveland, Ohio (Court-appointed CJA), for Robert carter.

William J. Brown, Atty. Gen. of Ohio, Simon B. Karas, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.

Before CELEBREZZE, BROWN and KENNEDY, Circuit Judges.

CELEBREZZE, Circuit Judge.

In 1973, petitioner Robert Carter was convicted of murder in the second degree by a jury in Cuyahoga County, Ohio. The Cuyahoga County Court of Appeals affirmed the conviction. In his appeal to the Ohio Supreme Court, Carter raised several additional allegations of error not presented to the appeals court. The Ohio Supreme Court denied petitioner's motion for leave to appeal for lack of a substantial constitutional question.

In 1977, Carter filed a petition for a writ of habeas corpus with the United States District Court for the Northern District of Ohio. In the return of writ the respondent suggested that Carter had failed to exhaust available state remedies and that a delayed appeal was available under Rule 5 of the Ohio Rules of Appellate Procedure. While the matter was pending in the Federal District Court, a motion for leave to file a delayed appeal was entered by Petitioner, in essence raising the issues previously raised for the first time before the Ohio Supreme Court. This motion was denied by the Cuyahoga County Court of Appeals and on appeal the Ohio Supreme Court dismissed the appeal as of right and also overruled a motion for leave to appeal. District Judge William K. Thomas thereafter denied habeas corpus relief to Carter and this appeal followed. We now affirm the decision of the District Court.

FACTS

In May of 1973, Mr. John Knific was residing at the Milner Colonial Hotel located on Prospect Avenue in Cleveland. On May 22, 1973, Mr. Knific entered the hotel at approximately 2:15 a. m. in the company of another man. Knific, informed the desk clerk, Henry Dora, that the man was his guest and that both were going to Knific's room. Knific, who had lived at the hotel for approximately two years, was at that time living in Room 614. Shortly after Knific and the other man left the lobby for Knific's room, Mr. Stanley Orack, the day clerk was informed by Dora that Knific had taken a guest to his room. Mr. Orack was living directly adjacent to Knific's room.

At approximately 3:00 a. m., Mr. Dora received a call from Knific's room requesting an outside number. The hotel telephone system required that all outgoing calls be placed through the main switchboard. Knific gave Dora the first three digits of the number, 481, at which time Dora heard scuffling and a shot. Dora immediately called Orack's room to inform him of the trouble, and then called the police. Dora testified that Knific sounded calm when he requested the number.

Just before receiving Dora's call, Stanley Orack was watching television in his room. Orack heard scuffling and two or three loud crashes from the direction of Knific's room. After telling Dora to call the police, Orack went to Room 614 and knocked on the door. Mr. Orack stated that when he first approached the room, he could hear dresser drawers opening and closing. After his knock, the room became quiet, and then Carter opened the door. Orack told Carter that he would have to wait until the police arrived, at which time Carter reached into his waistband. Orack knocked Carter to the floor and when Carter started to get up, he had a pistol in his hand. Orack immediately returned to his room where he waited until he heard the police arrive. While he was waiting in his room, Orack heard someone rattling on his door; when he left the room, he noticed blood on his doorknob.

Patrolmen Galka and Couzer received a radio call directing them to the Milner Hotel at approximately 3:10 a. m. As they arrived on the sixth floor and started down the hallway toward Room 614, they were met by Carter who was running in their direction. Carter had blood on his head from the blow he received from Orack. He was apprehended, searched, and found to be carrying a .22 caliber revolver containing three spent shells and one live round. John Knific died on June 27, 1973, as a result of the gunshot wounds he received.

Carter testified at trial and admitted having shot John Knific. His testimony is summarized by the state court of appeals as follows:

The appellant testified that he and Mr. Knific went to Mr. Knific's hotel room to engage in homosexual acts. When both men were undressed, Mr. Knific allegedly told the appellant that he enjoyed beating people. (R. 232). The appellant further testified that this remark made him afraid for his life. (R. 232). The appellant made an attempt to dress himself, but at that time he was grabbed by Mr. Knific, and the appellant, who had a gun in the pocket of his jacket, reached for his gun and shot Mr. Knific. The appellant stated that he didn't intend to shoot the decedent but rather that he was pulling the trigger when he thought the chamber of the gun was empty to frighten him. (R. 238). The decedent received three bullet wounds. The decedent died one month after the shooting, allegedly as the result of the gunshot wounds.

The jury, however, returned a verdict of guilty of murder in the second degree. As a result, the petitioner was sentenced to life imprisonment.

I.

Initially, Carter alleges error by the district court in failing to conduct an evidentiary hearing on the question of exhaustion of state remedies. The basis of this contention is difficult to discern. Admittedly, Carter raised several issues for the first time in his appeal to the Ohio Supreme Court. Since exhaustion was solely an issue of law, the district court had only to determine whether any state remedy was still available. The district court, in ruling on exhaustion noted that the court of appeals had indicated that petitioner could raise the issues presented in the delayed appeal in a post conviction proceeding in the trial court. Thus, there was reason to doubt whether Carter had exhausted all available state remedies.

In the interim of this appeal, this court decided Collins v. Perini, 594 F.2d 592 (6th Cir. 1979), and Keener v. Ridenour, 594 F.2d 581 (6th Cir. 1979), which hold that neither a delayed appeal nor a post conviction appeal would be available to one, such as petitioner, who has already had an appeal. Petitioner's habeas petition is properly before the court for decision then. The district court's decision, however, was not founded only upon the exhaustion issue. The observation that petitioner might have further state remedies available was an afterthought to a conclusion that Carter had waived several claims he sought to present in his petition. We now turn to those claims.

II.

In his instruction to the jury the trial judge charged the jury that the burden of proof was on the defendant to prove the affirmative defense of self-defense by a preponderance of the evidence. At the time of trial, state law clearly mandated the instruction issued by the trial judge. State v. Seliskar, 35 Ohio St.2d 95, 298 N.E.2d 582 (1973). ¹ The critical portions of the charge are as follows:

The law says this defendant cannot be convicted of any offense in the charge of this indictment notwithstanding the fact that he may have killed John Knific if, at the time of committing such offense he was acting in self-defense.

Self-defense in a proper case is the right of every person. The essential elements of self-defense are these:

First, the defendant must be free from fault, that is, he must not have provoked the defendant or purposely brought on the combat.

Second, there must be present a pending peril to life or great bodily harm, either real or apparent as to create the bona fide belief of an existing assassin.

Now, a man may repel force by force even to the extent of taking a life in the defense of his person. A bare fear, however, of being killed or receiving bodily harm is not sufficient to justify one inflicting serious injury or death upon another. It must appear that the circumstances were sufficient to excite the fear of a reasonable person similarly situated as the defendant and the defendant acted in good faith and in viewing the situation and circumstances from his standpoint, really acted under the influence of such fear and not in the spirit of malice or revenge.

Now, that is this: the jury is to look at the situation from the standpoint of the defendant himself at the time he acted as charged in the indictment and determine under the circumstance of stress and excitement surrounding him whether, without fault or carelessness on his part he did honestly believe he was in imminent danger of losing his life or receiving great bodily harm, and to prevent this it was necessary for him to act as he did act.

When a person in the lawful pursuit of his business, and without blame, is violently assaulted by one who manifestly and maliciously intends and endeavors to kill him, the person so assaulted, without retreating, although it says it may be in his power to do so without increasing his danger, may kill his assailant to save his own life or protect himself from great bodily harm.

The law of self-defense is the law of necessity, pure and simple. It is not an offensive law, but it is a defensive law and the burden of proving it rests upon the defendant, so he is not called upon to establish the defense beyond a reasonable doubt.

It is sufficient if he establishes it by a preponderance of the evidence. Now, by preponderance of the evidence is meant the greater weight of the evidence, that evidence in the case which is more convincing of its truth and which influences the minds of the jury; the minds of the jury in the conclusion you reach, the evidence in the case which you find be entitled to the...