701 F.2d 45 (6th Cir. 1983), 81-3269, Jones v. Jago

Docket Nº:81-3269.
Citation:701 F.2d 45
Party Name:Thomas Lester JONES, Petitioner-Appellant, v. Arnold JAGO, Sup't., Respondent-Appellee.
Case Date:February 22, 1983
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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701 F.2d 45 (6th Cir. 1983)

Thomas Lester JONES, Petitioner-Appellant,

v.

Arnold JAGO, Sup't., Respondent-Appellee.

No. 81-3269.

United States Court of Appeals, Sixth Circuit

February 22, 1983

Argued Nov. 1, 1982.

Page 46

Thomas Lester Jones, pro se.

Donald N. Krosin, Federal Public Defender, Cleveland, Ohio, for petitioner-appellant.

Dain N. Deveny, Connie Harris, Asst. Attys. Gen. of Ohio, Columbus, Ohio, for respondent-appellee.

Before JONES and CONTIE, Circuit Judges, and PECK, Senior Circuit Judge.

CONTIE, Circuit Judge.

Thomas Jones appeals a district court order denying relief on a habeas corpus petition brought pursuant to 28 U.S.C. Sec. 2254. Petitioner was convicted of murder in Ohio under procedural circumstances identical to those considered by the Supreme Court in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

The indictment in this case charged Jones with aggravated murder. He claimed self-defense. Traditionally, Ohio law required defendants in murder cases to prove the defense of self-defense by a preponderance of the evidence. On January 1, 1974, however, a new statute became effective:

Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused.

Though this statute possibly indicated a shift in the law regarding the burden of proving affirmative defenses as of January 1, 1974, Jones did not specifically object 1 to the following jury instruction during trial in July of that year:

The burden of proving the defense of self-defense is upon the defendant. He must establish such a defense by a preponderance of the evidence.

Subsequent to Jones' trial, the Ohio Supreme Court ruled that the new statute had changed the burden of proof as of its effective

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date. While a defendant retained the burden of coming forward with sufficient evidence to raise an affirmative defense question, the state bore the burden of proving guilt beyond a reasonable doubt even to the extent of disproving the asserted defense. State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88 (1976). Thus the court had improperly instructed the jury in Jones' case. The Ohio Supreme Court later held, however, that defendants who had not objected to jury instructions which improperly shifted the burden of proving affirmative defenses could not reap the benefits of Robinson. State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977).

After exhausting state remedies, Jones brought this action in the district court. While petitioner claims that he was denied effective assistance of counsel when his attorney failed to object to the jury instruction in question, the petition can also be construed to allege that the jury instruction itself violated due process. This court will consider both claims. Jones also preserved for appeal the questions of whether the jury reached a unanimous verdict and whether Jones was given notice in the indictment of the lesser included offense of murder for which he was convicted. For the reasons stated below, we affirm the judgment of the district court.

Jones violated Ohio's contemporaneous objection rule as set forth in Humphries when he failed to object to the jury instruction at issue. Thus, the due process challenge to the jury instruction clearly is barred by the Supreme Court's holding in Engle v. Isaac. 2 Even if this court were to reach the merits, we would hold that the instruction in question did not violate due process. Carter v. Jago, 637 F.2d 449 (6th Cir.1980), cert. denied, --- U.S. ----, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982).

Nor was Jones denied effective assistance of counsel under the test established in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974). In essence, petitioner contends that competent counsel would have realized that the new statute possibly changed the burden of proving affirmative defenses and would therefore have objected to the jury instruction concerning the burden of proving self-defense. Counsel's failure to do so has resulted in a procedural default...

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