Cobb v. Perini

• Decision Date: 06 November 1987
• Docket Number: No. 86-3385,86-3385
• Citation: 832 F.2d 342
• Parties: Robert COBB, Petitioner-Appellant, v. E.P. PERINI, Respondent-Appellee. . Decided and Filed
• Court: U.S. Court of Appeals — Sixth Circuit

Page 342

832 F.2d 342

Robert COBB, Petitioner-Appellant, v. E.P. PERINI, Respondent-Appellee.

No. 86-3385.

United States Court of Appeals Sixth Circuit.

Decided and Filed Nov. 6, 1987.

Argued Feb. 10, 1987.

Donald N. Krosin (argued), Dep. Federal Public Defender, Cleveland, Ohio, for petitioner-appellant.

Christine Manuelian, Asst. Atty. Gen., Columbus, Ohio, John Gideon (argued), for respondent-appellee.

Before MARTIN, WELLFORD and NELSON, Circuit Judges.

PER CURIAM.

On September 16, 1981, appellant, Robert Cobb, was convicted in Ohio state court of voluntary manslaughter in connection with the death of his wife. Cobb, represented by his own attorney, appealed to the state court of appeals, which affirmed his conviction. The Ohio Supreme Court denied Cobb's appeal

Cobb filed this petition for habeas corpus in 1985, and the district court referred the case to a magistrate. The district court followed the magistrate's recommendation to dismiss the petition. There are four issues on this appeal: (1) whether Cobb has exhausted his state remedies; (2) whether admission in evidence of inculpatory statements made by Cobb inside a police station, prior to being given his Miranda rights, was violative of the fifth amendment privilege against self-incrimination; (3) whether Cobb's sixth amendment right to effective assistance of counsel was denied by his retained counsel's failure to object to testimony about an out-of-court confrontation between Cobb and a police officer; and (4) whether there was a failure of proof of the corpus delicti of the crime.

I.

During the late evening hours of May 22, 1981, Linda Ford Cobb, defendant's wife, was taken to the emergency room at Huron Road Hospital, East Cleveland, Ohio. She was suffering from severe injuries and was unconscious and unable to talk or otherwise communicate with hospital personnel or police. Cobb followed the ambulance to the emergency room, and as a result of a disturbance involving a belligerent Cobb and hospital security guards, Cobb was arrested and taken by East Cleveland police officers to their headquarters. Later, in the early hours of May 23, 1981, two officers of the Cleveland Police Department, Nolan and Gebrosky, went to the emergency room in response to orders to investigate a "possible assault," and conducted several interviews at the hospital. They learned that Cobb had been arrested and was taken to the East Cleveland police station. The Cleveland officers called the East Cleveland police and asked them "to hold the male until we arrived because we wanted to question him as to what happened to his wife."

Around 1:00 a.m., Nolan and Gebrosky arrived at the East Cleveland police headquarters. Cobb was brought into the hallway leading to the prisoners' cells. Cobb, dressed in pants and a t-shirt, was not handcuffed. The policemen were there to question Cobb about a "possible assault;" ¹ they did not read him his Miranda rights before questioning him.

The officers asked Cobb "what had happened at his house; Cobb answered that "nothing happened." They then asked "why his wife was in the hospital", and Cobb allegedly responded "We had a fight" and "I hit her a couple of times." Thereafter, they arrested Cobb for felonious assault and domestic violence, and then read him his rights. When asked if he understood his rights, Cobb allegedly said "Yes, I have been around before." Asked again what happened, Cobb said "My wife will never prosecute me." ² Petitioner's motion to suppress the pre-Miranda warning statements or answer was overruled.

Petitioner was originally charged with felonious assault. When his wife died on June 3, 1981, he was indicted for murder. Cobb was also indicted for the attempted murder of a Cleveland policeman who served Cobb with an arrest warrant for the first charge. The charges were severed for separate trials and the attempted murder issue is not before this court.

During the trial, the deputy coroner, Dr. Elizabeth Balraj, testified about the victim's injuries. Doctor Balraj testified about the apparently serious head and body injuries to Mrs. Cobb. She admitted that the injuries sustained by the victim "are consistent with this woman falling down a flight of some eight or nine or twelve stairs to a basement."

Cobb testified in his own behalf that when he got home he found his wife lying at the bottom of the stairs in the basement. His defense was that Mrs. Cobb fell down the stairs and injured herself. On cross-examination, Cobb was asked about a "conversation" between him and officer Nolan during a recess in the trial after officer Nolan's testimony. Cobb admitted calling Nolan a liar ("You lie good"), but denied threatening the officer. Defense counsel did not object to these questions. In rebuttal, Nolan testified that in a short recess during his earlier testimony, Cobb came up to him in the hallway and, in front of officer Gebrosky, "called me an f'ing liar and threatened me."

The jury found Cobb guilty on the first count of the indictment of the lesser included offense of involuntary manslaughter. He was sentenced to a term of seven to twenty-five years imprisonment. Cobb appealed the judgment to the Ohio Court of Appeals, raising two issues: one dealing with suppression of his alleged confession, the other was, essentially, an attack on the sufficiency of the evidence. After the Ohio appellate court had affirmed Cobb's conviction, the Supreme Court of Ohio denied him leave to appeal.

Shortly thereafter petitioner filed a petition for writ of habeas corpus. At Cobb's request, the petition was dismissed without prejudice. Cobb then sought post-conviction relief in the state courts pursuant to Ohio law. He raised three issues in these state proceedings, all of which were variations on a theme of ineffective assistance of counsel.

The Ohio trial court denied post-conviction relief and made specific findings of fact and conclusions of law. Cobb alleges that he did not receive notice of the denial of his post-conviction petition and therefore was prevented from seeking appellate review of that denial.

Cobb then filed this petition for habeas corpus relief, pressing the three claims raised in his state post-conviction action, along with an allegation that his conviction was obtained in violation of the privilege against self-incrimination (an issue raised in his first appeal).

The magistrate to whom this petition was referred recommended its dismissal. The district court agreed with the recommendation upon review. When Cobb filed a notice of appeal, the district court denied a certificate of probable cause; we subsequently granted the certificate.

II.

Before discussing the merits of Cobb's appeal, we first consider whether Cobb has exhausted his available state remedies. Section 2254(b) requires exhaustion of "the remedies available in the courts of the State" before a federal court can grant an application for the writ of habeas corpus. Two of the issues presented on appeal may not have been exhausted in the state courts. Because both parties assumed that Cobb had exhausted available state remedies and neither party had addressed the exhaustion issue, we ordered the parties to file supplemental briefs addressing this issue.

Here, as in Granberry v. Greer, --- U.S. ----, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987), the state did not initially raise the exhaustion issue; ³ thus, it is "appropriate for the court of appeals to take a fresh look at the issue" and "determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner's claim." Id. Granberry casts considerable doubt on our prior decisions requiring total exhaustion. See, e.g., Bowen v. Tennessee, 698 F.2d 241 (6th Cir.1983) (en banc).

The two issues involving questionable exhaustion were pressed before one or more levels of the Ohio court system. We conclude, in the absence of objection by respondent, that Cobb has sufficiently exhausted his state remedies because the interests of comity, federalism, and wise use of judicial resources will be best furthered by "addressing the merits forthwith." Our conclusion is bolstered, moreover, by the fact that the Ohio legislature recently repealed the statute which supported our concern about exhaustion, so that, even if Cobb had not previously exhausted his state remedies, further review in the Ohio courts may now be foreclosed. See Ohio Rev.Code Ann. Sec. 2953.05 (page 1982), repealed by 141 v H 412, Sec. 2 (Dec. 16, 1986) (effective March 17, 1987); see also Cox v. Cardwell, 464 F.2d 639, 645 (6th Cir.1972) (quoting Allen ); Allen v. Perini, 424 F.2d 134, 140 (6th Cir.) ("It is re-emphasized that prisoners convicted on a plea of not guilty must exhaust their remedy of delayed appeal under Sec. 2953.05 as well as their remedies under the Ohio post-conviction statute, Sec. 2953.21, et seq. as a prerequisite to seeking relief by federal habeas corpus."), cert. denied, 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143 (1970). But cf. Meeks v. State, 8 Ohio App.2d 8, 220 N.E.2d 378, 378 (1966).

III.

We now turn to Cobb's first issue, concerning admissibility of the inculpatory statements he made. Cobb argues that admission of this testimony was reversible error of constitutional magnitude because he was not advised of his rights to remain silent and to the assistance of counsel prior to questioning. He urges that, under the circumstances, a reasonable person would have believed he was in custody, that the questions asked of him constituted custodial interrogation, and that he did not knowingly waive his fifth amendment rights.

The state submits, in reply, that under the circumstances the questions asked of him were in the nature of permissible stop-and-detain questioning of a potential witness to a possible assault, and denies that he was then in...