Beckovich v. Coyle
| Decision Date | 15 October 1998 |
| Docket Number | No. 1:97 CV 1441.,1:97 CV 1441. |
| Citation | 22 F.Supp.2d 722 |
| Parties | Risto BECKOVICH, Petitioner, v. Ralph COYLE, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
Risto Bekovich, Mansfield, OH, pro se.
Lillian B. Earl, Office of the Assistant Attorney General, Cleveland, OH, for Respondent.
This case is before the Court upon Risto Bekovich's pro se petition for writ of habeas corpus (docket no. 1). The case was referred to United States Magistrate Judge David S. Perelman on June 9, 1997 (docket no. 5). In a report and recommended decision ("R & R") issued on June 30, 1998, Magistrate Judge Perelman recommended the petition be dismissed without further proceedings (docket no. 16). Mr. Beckovich filed objections to the R & R on July 30, 1998 (docket no. 18). Respondent has not objected to the R & R or responded to Mr. Beckovich's objections. Mr. Beckovich's objections to the R & R shall be considered in turn.
Mr. Beckovich first argues the Magistrate Judge was incorrect to conclude Mr. Beckovich failed to file his habeas corpus petition within the applicable statute of limitations. He does not dispute Magistrate Judge Perelman's conclusion the statute of limitations ran out on April 24, 1997. Nor does he dispute the Clerk of this Court received both his petition for a writ of habeas corpus and his motion to proceed in forma pauperis after that date. Nonetheless, Mr. Beckovich argues he filed these documents before April 24, 1997.
By affidavit attached to his objections to the Magistrate Judge's report, Mr. Beckovich states he delivered his petition for writ of habeas corpus and his motion to proceed in forma pauperis to the mailing officials at the Mansfield Correctional Institution on April 18, 1997. Citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), Mr. Beckovich argues his petition must be regarded as "filed" on that date.1 In Houston v. Lack, the Court held notices of appeal filed by pro se prisoner litigants are "filed" at the time they are delivered to prison officials for mailing to the district court. Mr. Beckovich would have this Court extend Houston v. Lack, so his habeas corpus petition would be deemed filed on April 18, 1997, six days before the statute of limitations ran.
Most courts considering this issue agree with Mr. Beckovich. See. e.g., Spotville v. Cain, 149 F.3d 374 (5th Cir.1998) (); Burns v. Morton, 134 F.3d 109 (3d Cir.1998) (); Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997) (); Nichols v. Bowersox, ___ F.3d ___, No. 97-3639, 1998 WL 151380 (8th Cir. Apr.3, 1998) (); United States ex rel. Gonzalez v. DeTella, 6 F.Supp.2d 780 (N.D.Ill.1998) (); Bailey v. Gilmore, 5 F.Supp.2d 587, 588-89 (N.D.Ill. 1998); United States ex rel. Barnes v. Gilmore, 987 F.Supp. 677 (N.D.Ill.1997) (); but see Jackson v. Nicoletti, 875 F.Supp. 1107, 1111-14 (E.D.Pa.1994) ().
While the Sixth Circuit Court of Appeals has not explicitly reached this issue, it is not unfriendly to extending the rule of Houston v. Lack to pro se in forma pauperis prisoner litigants. See. e.g., McGore v. Wriggles-worth, 114 F.3d 601 (6th Cir.1997) (); In re Sims, 111 F.3d 45 (6th Cir.1997) ().
The main rationale behind the "mailbox rule" of Houston v. Lack and cases extending it is "pro se prisoners have no control over delays between the prison authorities' receipt of the notice [of appeal] and its filing, and their lack of freedom bars them from delivering the notice to the court clerk personally." Houston v. Lack, 487 U.S. at 273-74, 108 S.Ct. 2379. This reasoning applies with equal force to the filing of habeas corpus petitions. See. e.g., Spotville, 149 F.3d at 377. Because of this, and because the overwhelming weight of authority agrees, the Court concludes the mailbox rule of Houston v. Lack should be applied to the filing of habeas corpus petitions by pro se prisoners.
Under Houston v. Lack, Mr. Beckovich is deemed to have filed his petition on April 18, 1997 — the date he gave it to the prison mailing authorities. The statute of limitations did not run until April 24, 1997. The habeas corpus petition was therefore filed within the statute of limitations. Therefore, the Court need not review Magistrate Judge Perelman's conclusion the statute of limitations was not tolled when Mr. Beckovich filed an application for reopening his appeal.
Mr. Beckovich next argues Magistrate Judge Perelman incorrectly concluded there was an independent and adequate state ground for the state court decision due to procedural default. Further, argues Mr. Beckovich, even if there was a procedural default, the Magistrate Judge incorrectly decided Mr. Beckovich had not met the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Court need not decide this issue because, regardless of the result, eventually the Court would have to apply the same test.
If the Court were to conclude there was no procedural default in the state court, it would then reach the merits of Mr. Beckovich's claim he was denied the effective assistance of appellate counsel due to attorney error in the 1986 direct appeal of his conviction. If, on the other hand, the Court were to conclude there was a procedural default, it would then have to consider whether Mr. Beckovich had met the cause and prejudice standard of Wainwright v. Sykes. As Magistrate Judge Perelman points out, and Mr. Beckovich does not dispute, the standard for determining adequate "cause" for a procedural default and the standard for determining whether counsel was constitutionally ineffective due to attorney error are the same. See Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Rust v. Zent, 17 F.3d 155, 161 (6th Cir.1994). Therefore the Court will turn to the merits of Mr. Beckovich's ineffective assistance of counsel claim.
Mr. Beckovich's first argument on the merits is he was denied ineffective assistance of appellate counsel. Mr. Beckovich waived his right to a jury in his 1985 criminal trial, but a written waiver was not filed with the court. Over ten years later, in State v. Pless, 74 Ohio St.3d 333, 658 N.E.2d 766 (Ohio 1996), the Supreme Court of Ohio held a waiver of a defendant's right to jury trial would not be effective under Ohio Rev.Code § 2945.05 until a written form was filed with the court. Mr. Beckovich argues his 1986 appellate counsel should have anticipated this 1996 holding of the Supreme Court of Ohio, and asserted as a basis for reversal of his conviction that a written waiver was not filed with the trial court.
To show ineffective assistance of counsel, Mr. Beckovich must prove (1) counsel's performance was deficient, and (2) the deficient performance prejudiced Mr. Beckovich's defense (or appeal). Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a "strong presumption" counsel's assistance was not deficient and the court must make "every effort ... to eliminate the distorting effects of hindsight." Id. at 689, 104 S.Ct. 2052. Further, counsel need not be perfect, only "reasonably effective." Id. at 693, 104 S.Ct. 2052.
Mr. Beckovich's appellate counsel's performance was not deficient. As the Magistrate Judge stated, counsel's performance is "deficient" only if his or her errors are so egregious that there was no "counsel" as guaranteed by the Sixth Amendment. Id. Mr. Beckovich's counsel's failure to anticipate a decision which would not be made for another ten years is not "deficient" under this standard.
In his objections to the R & R, Mr. Beckovich does not dispute this conclusion. Rather, he claims Ohio law as it existed in 1986 required the filing of a written statement to waive a defendant's right to jury trial. Mr. Beckovich relies mainly on State v. Tate, 59 Ohio St.2d 50, 391 N.E.2d 738 (Ohio 1979), and also cites many state appellate court decisions decided before 1986. In Tate, the defendant made a written demand for jury trial, but then stood by silently as the case was tried to the court. Id. at 739. The Supreme Court of Ohio held that it was reversible error for a trial court to proceed without a jury, once a jury trial had been demanded, unless the prerequisites of Ohio Rev.Code § 2945.05 had been met. That statute requires the waiver to "be in writing, signed by the defendant, and filed in said cause and made part of the record thereof."
In Tate, however, the waiver was not written and was not made part of the record. Likewise, the problem in the other cases decided before Mr. Beckovich's trial was the waiver was not written, or not made at all. In this case, by contrast, the waiver was...
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