Couch v. Jabe

• Decision Date: 01 November 1991
• Docket Number: No. 90-1666,90-1666
• Citation: 951 F.2d 94
• Parties: George G. COUCH, Petitioner-Appellant, v. John JABE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 94

951 F.2d 94

George G. COUCH, Petitioner-Appellant, v. John JABE, Warden, Respondent-Appellee.

No. 90-1666.

United States Court of Appeals, Sixth Circuit.

Submitted Aug. 8, 1991.

Decided Nov. 1, 1991. ^*

Gary A. Kozma (briefed), Goldschmid & Kozma, Detroit, Mich., for petitioner-appellant.

Thomas C. Nelson (briefed), Becky M. Lamiman, Asst. Attys. Gen., Suzanne L. Wilhelm, Office Atty. Gen., Habeas Div., Lansing, Mich., for respondent-appellee.

Before JONES and SUHRHEINRICH, Circuit Judges, and WELLFORD, Senior Circuit Judge.

PER CURIAM.

Petitioner George G. Couch and co-defendant Ronald L. Jordan were jury convicted of first degree murder in the Circuit Court of Jackson County, Michigan, on August 5, 1982. Couch was sentenced to a mandatory term of life imprisonment on September 15, 1982. After Couch failed to timely appeal his conviction, the Michigan Court of Appeals denied his delayed application for leave to appeal on November 16, 1984, as did the Michigan Supreme Court on November 25, 1985. Couch's federal habeas corpus petition was dismissed without prejudice on exhaustion grounds on August 18, 1986. His delayed motion for a new trial was subsequently denied on December 29, 1986. The Michigan Court of Appeals and the Michigan Supreme Court thereafter denied applications for leave to appeal on November 3, 1987, and March 28, 1988, respectively. Couch then filed this second petition for habeas corpus with the Eastern District of Michigan on June 9, 1989. On May 21, 1990, the court adopted the magistrate's Report and Recommendation and denied Couch's petition. For the following reasons, we decline to reach Couch's substantive claims and instead remand the case for further consideration.

I

Couch's conviction stems from the stabbing death of inmate Ricky Ricardo Williams on November 14, 1981, at the State Prison of Southern Michigan. Williams was apparently wounded in his third floor cell at approximately 5:45 p.m., but managed to reach the guard desk on the first floor before collapsing. As Williams reached the first floor, Officers Davenport and Lowell observed Couch following directly behind him. Williams was immediately taken to a nearby hospital, where he died soon thereafter.

At trial, the government relied largely on the testimony of inmate Tyrone Edwards, guards, and on alleged inconsistencies in the testimony of Couch's witnesses. Couch, who proceeded initially pro se and later only with advisory counsel, likewise rested much of his defense on apparent inconsistencies in Edwards' testimony and on other inmates who called into question the veracity of Edwards' account.

Subsequent to his conviction and his failed attempt to secure relief on direct appeal, Couch sought state collateral relief. In his state petition, Couch requested a new trial on the grounds that he did not knowingly and intelligently waive his constitutional right to counsel and that prejudicial comments by the prosecutor during closing argument deprived him of a fair trial. The state judge rejected both claims as barred by procedural default.

In the present petition, Couch reasserts these claims and adds that the evidence presented at trial was insufficient to support a finding of guilt beyond a reasonable doubt.

II

We have recently reaffirmed that whether a state court rested its holding on procedural default, thus barring federal habeas review, is a question of law to be reviewed de novo. McBee v. Abramajtys, 929 F.2d 264, 266 (6th Cir.1991). In the instant case, our determination is bound by the Supreme Court's recent decision in Ylst v. Nunnemaker, --- U.S. ----, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), which modified the Court's earlier holding in Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Harris extended the "plain statement rule" of Michigan v. Long, 463 U.S. 1032, 1042 & n. 7, 103 S.Ct. 3469, 3477 & n. 7, 77 L.Ed.2d 1201 (1983), to federal habeas review, holding that procedural default at the state level will not in and of itself preclude federal habeas review "unless the last state court rendering a judgment in the case 'clearly and expressly' states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263, 109 S.Ct. at 1043 (citations omitted). That holding was clarified in the companion case to Ylst; Coleman v. Thompson, --- U.S. ----, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), which held that a federal habeas court may review a state proceeding only if the state court did not clearly and expressly rely on adequate and independent state law grounds and if the state opinion "fairly appeared to rest primarily on resolution of [petitioner's federal] claims, or to be interwoven with those claims." Id. 111 S.Ct. at 2557.

In Ylst, the Court directed federal courts considering habeas petitions to look to "the last explained state-court judgment." Ylst, 111 S.Ct. at 2595. The Court also established the following rebuttable presumption:

[W]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion 'fairly appear[s] to rest primarily upon federal law,' [Coleman ] we will presume that no procedural default has been invoked by a subsequent unexplained order that leaves the judgment or its consequences in place. Similarly where ... the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits.

Id. 111 S.Ct. at 2594. Where the last explained state court judgment rejected petitioner's claims on procedural grounds, the presumption is rebuttable only where the petitioner "adduc[es] strong evidence that one of the subsequent courts reached the merits of the federal claim." Id. 111 S.Ct. at 2596. The Court offered two examples of what might rebut the foregoing presumption:

It might be shown, for example, that even though the last reasoned state-court opinion had relied upon a procedural default, a retroactive change in law had eliminated that ground as a basis of decision, and the court...