959 F.2d 234 (6th Cir. 1992), 90-6602, Key v. Carlton

• Docket Number: 90-6602.
• Date: 07 April 1992
• Citation: 959 F.2d 234
• Parties: Jimmy Lee KEY, Petitioner-Appellant, v. Howard CARLTON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 234

959 F.2d 234 (6th Cir. 1992)

Jimmy Lee KEY, Petitioner-Appellant,

v.

Howard CARLTON, Warden, Respondent-Appellee.

No. 90-6602.

United States Court of Appeals, Sixth Circuit

April 7, 1992

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

On Appeal from the United States District Court for the Eastern District of Tennessee, No. 89-00872; Hull, C.J.

E.D.Tenn.

AFFIRMED.

Before RALPH B. GUY, Jr. and RYAN, Circuit Judges, and JOINER, Senior District Judge. ^[*]

PER CURIAM.

Appealing the denial of a habeas writ under 28 U.S.C. § 2254, petitioner Jimmy Lee Key challenges the constitutionality of Tennessee juvenile court proceedings occurring over 20 years ago and his subsequent conviction in criminal court of offenses transferred from juvenile court. Key was found to be an habitual criminal based on these offenses. We affirm the denial of the writ.

I.

Throughout 1969, several petitions of delinquency were filed against Key in the Juvenile Court for Knox County, Tennessee, alleging various acts including burglary and larceny. In August of that year, the juvenile court conducted a hearing to determine whether to transfer jurisdiction over two of the petitions to criminal court. ¹ Key contends that he was not represented by counsel at that hearing. An attorney was present and entered Key's plea of not guilty, but Key claims that the lawyer represented Key's former wife, who had gained access to Key's closed hearing by indicating that the attorney represented Key.

Upon transfer to criminal court, Key was represented by Robert Ritchie, a law student. Six separate indictments stemming from the transferred juvenile petitions were returned. Key pled guilty to all six charges in December 1969.

In 1976, Key was convicted of burglary while in possession of a firearm. Another attorney, Anthony Brown, represented Key at this trial. Based on the earlier convictions, Key was found to be an habitual criminal and was sentenced accordingly. Several years of unsuccessful post-conviction petitions in Tennessee courts ensued, followed by a habeas petition in federal court and the present appeal.

II.

Key first asserts a violation of his Sixth Amendment right to counsel, claiming that he was unrepresented at the 1969 transfer hearing and that the assistance he received from the law student in the criminal-court proceedings (at which Key pled guilty) was ineffective for failing to raise defects in the transfer process.

The issue as to the law student's effective assistance in the 1969 criminal court proceeding has not been exhausted. The only ineffective assistance issue Key raised before the court of criminal appeals concerned the allegedly defective performance of the lawyer who represented him at his 1976 burglary and habitual-criminal trial. ² Key's application for permission to appeal to the Supreme Court of Tennessee similarly raised an ineffective assistance claim only with respect to his 1976 trial counsel. It is "clear that 28 U.S.C. § 2254 requires a federal habeas petitioner to provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim. It is not enough that all the facts necessary to support the federal claim were before the state courts...." Anderson v. Harless, 459 U.S. 4, 6 (1982) (citations omitted).

In addition, like the state and federal courts considering the issue, we find that while Key had a constitutional right to counsel at the transfer hearing, ³ he waived his objection to the lack of counsel by entering the guilty plea in criminal court--at which time Key was assisted by counsel. ⁴ Shepard v. Henderson, 449 S.W.2d 726 (Tenn.1969). "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973). This waiver may be found, of course, only if the plea was voluntary and intelligent. Key never properly challenged the voluntary and intelligent nature of his plea in state court. ⁵

Canary v. Bland, 583 F.2d 887, 889 (6th Cir.1978), we held that the "break in the chain of events" rule of Tollett does not bar "a federal habeas challenge to claimed constitutional deficiencies when state procedure permits appellate review of those issues after a guilty plea." The Kentucky case law at issue in Canary permitted a challenge to the legality of transfer proceedings, by direct appeal and otherwise, by one who had pled guilty after the transfer. Tennessee cases have made clear, in contrast, that any error in the failure to appoint counsel at a juvenile hearing transferring charges to criminal court is waived by a voluntary plea of guilt in the criminal court. Crumley v. Tennessee, 462 S.W.2d 252 (Tenn.Crim.App.1970).

We therefore find that Key's Sixth Amendment claim and his related attack on his guilty plea fail.

III.

Key also contends that the jury instructions at the habitual criminal sentencing stage of his 1976 armed...