88 F.3d 1409 (6th Cir. 1996), 93-5578, O'Guinn v. Dutton

Docket Nº:93-5578, 93-5620.
Citation:88 F.3d 1409
Party Name:Kenneth Wayne O'GUINN, Petitioner-Appellee, Cross-Appellant, v. Michael DUTTON, Respondent-Appellant, Cross-Appellee.
Case Date:July 03, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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88 F.3d 1409 (6th Cir. 1996)

Kenneth Wayne O'GUINN, Petitioner-Appellee, Cross-Appellant,


Michael DUTTON, Respondent-Appellant, Cross-Appellee.

Nos. 93-5578, 93-5620.

United States Court of Appeals, Sixth Circuit

July 3, 1996

Reargued June 14, 1995.

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Paul R. Bottei, Christopher M. Minton (briefed), Lassiter, Tidwell & Hildebrand, Michael J. Passino (argued), Passino & Minton, Nashville, TN, for Petitioner-Appellee, Cross-Appellant.

Kathy Morante, Asst. Atty. Gen. (argued and briefed), Charles W. Burson, Atty. Gen., Glenn R. Pruden, Office of the Atty. Gen., Criminal Justice Div., Nashville, TN, for Respondent-Appellant, Cross-Appellee.


The court delivered a PER CURIAM opinion, in which MERRITT, C. J., MARTIN, JONES, MILBURN, NELSON, RYAN, and MOORE, JJ., joined. MERRITT, C.J. (pp. 1413-1430), delivered a separate concurring opinion, in which JONES, J., joined. BOGGS, J. (pp. 1430-1432), delivered a separate dissenting opinion, in which SILER and BATCHELDER, JJ., joined, with BATCHELDER, J. (pp. 1432-1464), also delivering a separate dissenting opinion, in which KENNEDY, BOGGS, NORRIS, SUHRHEINRICH, and SILER, JJ., joined.


Kenneth Wayne O'Guinn was convicted in state court in Jackson, Tennessee, of first degree murder and aggravated rape against Sheila Cupples. He is currently serving a life sentence for the aggravated rape and is under a death sentence for the murder. The District Court granted O'Guinn's petition for a writ of federal habeas corpus on the grounds that his confession was obtained in violation of his right against self-incrimination and because he received ineffective assistance of counsel during sentencing. Warden Dutton appealed the issuance of the writ. In a split decision, the original panel that heard the case reversed the issuance of the writ and the en banc court agreed to rehear the appeal. O'Guinn v. Dutton, 42 F.3d 331 (1994), vacated, 42 F.3d 359 (6th Cir.1995). The en banc court finds that the federal habeas petition is a "mixed" petition--that is, one containing exhausted and unexhausted claims. This Court also finds that principles of comity and federalism require that unexhausted claims be decided in the first instance

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by the state courts in the absence of exceptional or unusual circumstances. Because the Court finds no such exceptional or unusual circumstances here, the petition is dismissed so that the state courts may adjudicate the claims presented.


Sheila Marie Cupples was brutally raped and murdered on the night of May 23, 1981 after spending the evening at the Hat & Cane, a bar in Jackson, Tennessee. Sheila, her cousin Joannie Cupples and two friends spent the evening drinking, taking Darvon and dancing at the Hat & Cane. Sheila apparently became quite intoxicated. Sheila's cousin Joannie testified that she last saw Sheila around midnight near the entrance to the Hat & Cane. Sheila's body was found the next afternoon in a field with her halter tip wrapped around her neck and strangulation was listed as the cause of death. The local police and the Tennessee Bureau of Investigation interviewed numerous people in the weeks and months following the murder but made no arrests. O'Guinn was not a suspect during the investigation.

Two years later, on July 4, 1983, O'Guinn was arrested in Alabama for the assault and rape of an Alabama woman. O'Guinn admitted the assault but denied the rape. O'Guinn was unable to post bond and remained in prison. About a week later, the Alabama authorities began to question O'Guinn about an unsolved Alabama murder. Because O'Guinn was originally from Jackson, Tennessee, the Alabama authorities contacted the Jackson police to do a background check on O'Guinn. The Tennessee authorities decided to question O'Guinn about the unsolved Cupples murder. Over the next several weeks, a detective from the local police force in Jackson, Tennessee and an agent from the Tennessee Bureau of Investigation traveled to Alabama several times to interview O'Guinn.

On August 12, 1983, O'Guinn confessed to both the Alabama murder and the murder of Sheila Cupples. The confession in the Cupples murder was admitted at trial. 1 A jury convicted O'Guinn of aggravated rape and first-degree murder. He was sentenced to life imprisonment for the aggravated rape and to death for the murder.

The conviction and sentence were affirmed by the Tennessee Supreme Court on direct appeal. State v. O'Guinn, 709 S.W.2d 561 (Tenn.), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986). In 1987, O'Guinn filed a petition with the Tennessee state courts for post-conviction relief. The petition was dismissed by the circuit court and the Tennessee Court of Criminal Appeals affirmed. State v. O'Guinn, 786 S.W.2d 243 (Tenn.Crim.App.1989). The Tennessee Supreme Court denied O'Guinn permission to appeal. In 1989, O'Guinn filed a second post-conviction petition with the state courts; it was also dismissed.

O'Guinn filed a federal habeas petition pursuant to 28 U.S.C. § 2254 in October 1990 and a superseding petition in August 1992. It is undisputed that O'Guinn had requested all exculpatory documents from the State before his trial in state court. Upon utilizing the discovery procedures under the federal habeas statute, O'Guinn learned for the first time that arguably material documents had not been turned over to O'Guinn's counsel before trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). O'Guinn amended his federal petition and raised for the first time his claim that the State of Tennessee had improperly withheld numerous documents from his counsel before trial. This claim, therefore, has not been addressed in any manner by the Tennessee state courts.

The District Court held an evidentiary hearing and granted the writ of habeas corpus on the grounds that O'Guinn's confessions were obtained in violation of his right against self-incrimination and that his right to effective assistance of counsel was violated during the sentencing phase of his trial. O'Guinn v. Dutton, 870 F.Supp. 779 (M.D.Tenn.1993). The District Court addressed

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only one small part of O'Guinn's Brady claim and, without discussion, found the claim to be without merit. Id. at 786. It did not address the other main points of the Brady claim.

In 1995, O'Guinn filed his third post-conviction petition with the Tennessee state courts alleging that his constitutional rights were violated by the withholding of documents in violation of Brady. The state courts are holding the petition in abeyance pending the outcome of the case in the federal courts.


The habeas statute, 28 U.S.C. § 2254(b), provides that the application for a writ will not be granted

unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

The Supreme Court has held that a habeas petition containing both exhausted and unexhausted claims must be dismissed in its entirety. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). It is undisputed that the habeas petition here is a "mixed" one, because it contains both exhausted and unexhausted claims. As such, we find that it should be returned to state court for adjudication of the claims presented.

The requirement for exhaustion of remedies is not jurisdictional because state courts are fully empowered to adjudicate federal rights in the first instance; it is essentially a matter of federalism and comity. Granberry v. Greer, 481 U.S. 129, 133-34, 107 S.Ct. 1671, 1674-75, 95 L.Ed.2d 119 (1987); Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) (state court should be afforded first opportunity to correct constitutional violation). Unless there is no available state process, or circumstances exist that render the process ineffective to protect petitioner's rights (circumstances not present in this case), a state can adjudicate a federally-based claim such as O'Guinn's claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Granberry, 481 U.S. at 133-34, 107 S.Ct. at 1674-75.

In 1987, the Supreme Court held in Granberry v. Greer that federal courts could entertain unexhausted claims under certain circumstances, but the Court circumscribed this exception to LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973) quite narrowly. Id. In Granberry, the state inadvertently failed to raise the defense of non-exhaustion at the district court level, but raised it at the appeals court. The Supreme Court held that federal courts are to determine on a case-by-case basis whether comity and federalism would be better served by requiring further state proceedings or addressing the merits immediately. Id. at 134, 107 S.Ct. at 1675. The Supreme Court again confirmed that "there is a strong presumption in favor of requiring the prisoner to pursue his available state remedies." Id. at 131, 107 S.Ct. at 1674. In particular, the Court said, if the case involves an important unresolved question of fact or state law or where there is an important state interest at stake, a return to the state courts is appropriate. Id. at 134-35, 107 S.Ct. at 1675-76. Unless "unusual" or "exceptional" circumstances make it appropriate to reach the merits of an unexhausted issue, the Court held that the petition should be dismissed so that the unexhausted claim may be reviewed by the state courts in the...

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