Melchior v. Jago

Decision Date15 December 1983
Docket NumberNo. 80-3500,80-3500
Citation723 F.2d 486
PartiesRobert MELCHIOR, Petitioner-Appellant, v. Arnold R. JAGO, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Robert Melchior, pro se.

Edward F. Marek, Federal Public Defender (court-appointed), Donald N. Krosin, Deputy Federal Public Defender (argued), Cleveland, Ohio, for petitioner-appellant.

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

Before JONES and CONTIE, Circuit Judges and BROWN, Senior District Judge. *

NATHANIEL R. JONES, Circuit Judge.

The petitioner Robert Melchior was indicted for aggravated murder and aggravated robbery in Montgomery County, Ohio. Though he plead guilty to both counts, the verdict following a jury trial branded Melchior guilty as charged. He was sentenced to death on the murder charge and to 7-25 years imprisonment on the robbery charge, the sentences to run consecutively. The Ohio Court of Appeals affirmed the conviction and sentence in all respects. On October 4, 1976, the Ohio Supreme Court affirmed the conviction, but modified the death sentence to life imprisonment.

A petition for a writ of habeas corpus was filed with the District Court for the Southern District of Ohio, Western Division. The petition challenges the murder conviction on the basis of the trial court's instruction on self defense. The Jury was instructed that the petitioner had the burden of proving this affirmative defense by a preponderance of the evidence. The petitioner claims that this was an erroneous placement of the burden and that he is, thus, entitled to habeas relief. The district court did not address this substantive claim, refusing to grant the writ on the basis of its conclusion that Melchior was procedurally barred from raising the issue by his failure to object to the instruction when given. This appeal followed.

While we conclude that the district court's analysis of the procedural issue was incorrect, we also conclude that the trial court's instruction on self defense, if erroneous at all, was harmless beyond a reasonable doubt. Accordingly, we affirm the district court's judgment denying habeas relief.

I.

On the evening of January 22, 1976, the petitioner was apparently with some friends at the World Lounge, a place frequented by homosexuals. He was seen leaving the lounge with the deceased, Paul Krista. A witness testified that, before leaving the bar, the petitioner indicated that he had met a man with $200 who had invited him to a nearby apartment. The petitioner allegedly said that he planned to pretend that he would be willing to engage in sexual relations for the sole purpose of obtaining the money; he planned to "game" Paul Krista.

On January 24, 1976 and again on February 25, 1976, the petitioner provided statements of the events leading to Krista's death. The statements were recorded and subsequently played to the jury. These versions are substantially similar to Melchior's testimony at trial and together provide the basis for the following recitation of the facts.

According to the petitioner, Krista approached him while he was playing pool at the World Lounge. Krista told him that he had $200. He then invited Melchior to his apartment to have some beer and to listen to his stereo. The petitioner accompanied Krista to his apartment with the intention of taking the money and the stereo, but with no intention of having sexual relations. In keeping with this plan, the petitioner rebuffed Krista's advances and requested another beer. When Krista returned with the second beer, Melchior told Krista to give him the money and to take him back to the bar. The petitioner claims that Krista then produced a knife from the side of the couch or the right side of his pants. Melchior grabbed the blade while moving behind Krista and putting his arm around Krista's neck. He began punching Krista with his right fist, all the while applying increased pressure to his neck. When Krista relaxed, the petitioner released him and watched him drop to the floor. Melchior claims that because Krista was gasping for breath when he left the apartment, he thought Krista had not been seriously wounded. He took Krista's car, stereo and cash.

Krista's body was found January 23, 1976. He was face down on the floor with his head completely beneath a small table covered with blood. There were blood stains on the living room walls, furniture and door. A knife blade covered with blood was near the body with the handle broken off. The blood was that of the victim. A broken vase was beside the body and a partial palm print taken from a piece of that vase matched the petitioner's. Krista's injuries were extensive. He had various cuts and bruises covering his body and there was a stab wound in his lower left back, extending through the right lower lobe of the lung. The neck had two puncture wounds on the right side. Based on a series of detailed observations, the coroner opined that Krista had died from asphyxiation caused by manual strangulation after he had been stabbed.

When indicted and tried for Krista's murder, the petitioner claimed that he had acted in self defense. The trial court specifically charged the jury that the burden of proving self defense was upon the defendant and that burden could only be met if the defense were established by a preponderance of the evidence. No objection was raised to the charge when given.

The Ohio Court of Appeals and the Ohio Supreme Court found that the instruction failed to comport with O.R.C. Sec. 2901.05, 1 as interpreted by the Ohio Supreme Court in State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88 (1976), and was therefore erroneous as a matter of law. 2 However, the state courts went on to say that, though error, the instruction was harmless. They based this conclusion on their finding that a review of the record failed to disclose evidence sufficient to warrant an instruction on the defense in the first instance. Neither state opinion discussed the failure to object at trial; the affirmance of the conviction was based solely on the finding of harmless error. 3

The district court did address the failure to object at trial. The court believed that the violation of the state contemporaneous objection rule required a showing of cause and actual prejudice under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) 4 before the petition could be heard. The court did find cause in the fact that Ohio had traditionally placed the burden of proving self defense on the defendant and the Ohio Supreme Court had not, at the time of trial, announced its departure from that view. As such, the court reasoned that the petitioner would have no reason to believe that an objection would have been availing. 5 The district court held, however, that the petitioner had failed to demonstrate actual prejudice. The court concluded that since requiring a defendant to prove self defense would not, in his view, negate any of the elements of first-degree murder under Ohio law, there could have been no denial of due process. Having found the issue procedurally barred from habeas review, the district court denied the writ without considering the merits of the petitioner's claim.

II.

Generally, a prisoner alleging a constitutional claim in federal court following a state procedural default must demonstrate cause and actual prejudice if habeas relief is to be available. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, supra; Henderson v. Jago, 681 F.2d 471 (6th Cir.1982). It is uncontroverted that the petitioner failed to object to the jury instructions when given. It is also beyond dispute that Rule 30 of the Ohio Rules of Criminal Procedure establishes a clear contemporaneous objection prerequisite to the assertion of errors on appeal. 6 Based on these facts, the district court reasoned that it was bound to apply the Wainwright cause and prejudice standard and to, thus, conclude that a procedural bar foreclosed consideration of the petition. Putting aside the question of whether the district court's analysis of the presence of cause and prejudice was correct, we find the very use of the standard inappropriate.

Failure to comply with state procedural rules may bar federal habeas review of the underlying federal claim, absent a showing of "cause" for the failure and actual "prejudice" resulting from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

In Sykes, petitioner had failed at trial and apparently on direct appeal to challenge the admissibility of statements allegedly obtained in violation of his Miranda rights. 433 U.S. at 75, 97 S.Ct. at 2500. He apparently first challenged the use of the statements in an unsuccessful state habeas petition. Id. The United States Supreme Court held the petitioner's failure to comply at trial with the state's contemporaneous-objection rule constituted an "independent and adequate state ground" for the state court judgment, barring federal habeas review unless petitioner could show cause and prejudice. Id. at 86-7, 97 S.Ct. at 2506-07. In a recent federal habeas corpus case, the United States Supreme Court reaffirmed the Sykes standard in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), recognizing that the costs of a federal writ of habeas corpus "are particularly high when a trial default has barred a prisoner from obtaining adjudication of his constitutional claim in the state courts." 456 U.S. at 128, 102 S.Ct. at 1572.

It has been explained that the rationale for the Sykes doctrine is the recognition of the integrity of the state court's ability to enforce its procedural rules and the state's sovereign power to punish offenders. "The failure of the federal habeas courts generally to require compliance with a...

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