995 F.2d 1066 (6th Cir. 1993), 91-4079, Hattie v. Parker

Docket Nº:91-4079.
Citation:995 F.2d 1066
Party Name:Terrence W. HATTIE, Petitioner-Appellant, v. Phillip PARKER, Warden, Respondent-Appellee.
Case Date:June 09, 1993
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1066

995 F.2d 1066 (6th Cir. 1993)

Terrence W. HATTIE, Petitioner-Appellant,

v.

Phillip PARKER, Warden, Respondent-Appellee.

No. 91-4079.

United States Court of Appeals, Sixth Circuit

June 9, 1993

         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 (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)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 Northern District of Ohio, No. 90-00223; Sam H. Bell, J.

        N.D.Ohio

        REVERSED

        Before: KENNEDY and SUHRHEINRICH, Circuit Judges; SPIEGEL, District Judge. [*]

        PER CURIAM.

        In this petition for a writ of habeas corpus brought under 28 U.S.C.§ 2254, petitioner Terrence W. Hattie challenges his Ohio convictions for felonious assault and aggravated robbery, and the merger of two unpled counts of attempted rape and abduction into the felonious assault conviction. For the following reasons, we REVERSE in part, and AFFIRM in part.

        I.

        In April 1983, petitioner was arrested for the aggravated robbery of James Rose, the aggravated robbery of an unnamed victim, the aggravated burglary of James Rose's residence, and the abduction of an unnamed victim. In June 1983, an Ohio grand jury indicted petitioner on only two of the arrest charges: the aggravated robbery of James Rose and the abduction of an unnamed victim, named in the indictment as Florence Rose. The indictment also added two new counts, felonious assault and attempted rape, both of Florence Rose.

        At his arraignment in June 1983, petitioner's attorney of record was not present. Petitioner waived reading of the indictment, even though the attorney appointed to represent him at his arraignment had not been previously involved with the case. Two months later, in September 1983, petitioner pled guilty to the aggravated robbery and the felonious assault. The record on appeal does not reveal a disposition or agreement made at that time regarding the remaining two counts. Two days after the plea hearing, without notice to petitioner, the trial court merged the remaining unpled counts with the felonious assault count under Ohio Revised Code § 2941.25. 1

        Petitioner was sentenced to 4 to 25 years imprisonment for aggravated robbery and felonious assault, but did not begin his sentence until revocation of probation in June 1988. Petitioner first learned of the merger in January 1989 during a parole hearing. He has been denied parole.

        After pursuing state post-conviction remedies, petitioner filed this petition for writ of habeas corpus. The magistrate recommended that the petition be denied. The district court agreed, and denied the petition.

        II.

        A.

        Petitioner contends that the refusal of respondent to provide a transcript of the state court proceedings denied petitioner his rights to due process and of access to the courts. The stenographic notes of petitioner's state proceedings were never transcribed. In the Stark County Court of Common Pleas, untranscribed stenographic notes are destroyed after seven years of storage and the notes of petitioner's case were destroyed in 1990, in accordance with this policy.

        Where, as here, production of a transcript is simply not possible, we have stated that "in order to demonstrate denial of a fair appeal, petitioner must show prejudice resulting from the missing transcript[ ]...." Bransford v. Brown, 806 F.2d 83, 86 (6th Cir.1986), cert. denied, 481 U.S. 1056 (1987). Further, the allegations of prejudice must "present something more than gross speculation that the transcripts were requisites to a fair appeal." Id. Petitioner contends that transcripts have been...

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