Brown v. Marshall
| Decision Date | 12 April 1983 |
| Docket Number | No. 82-3355,82-3355 |
| Parties | James BROWN, Petitioner-Appellant, v. Ronald MARSHALL, Supt., Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Milton Berner, Bethel, Ohio, for petitioner-appellant.
Lianne L. Santellani, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.
Before KRUPANSKY, Circuit Judge, PHILLIPS, Senior Circuit Judge, and HILLMAN, District Judge. *
This is an appeal by petitioner James Brown from the denial of his petition for a writ of habeas corpus, 28 U.S.C. Sec. 2254, by Judge John Manos. The instant review presents the issues of improper prosecutorial comment and double jeopardy which were addressed by the district court, and an additional basis for relief, a purportedly erroneous jury instruction, which Brown here attempts to present for the first time in any forum. We affirm the district court on both matters considered below and, distinguishing the situation sub judice from that of a "mixed" petition proscribed by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), we dismiss the claim of error in the jury instruction.
Brown was convicted in Mahoning County (Ohio) Common Pleas Court of aggravated murder, aggravated robbery, kidnapping, rape and theft, and was sentenced to a term of life in prison together with various concurrent sentences. The convictions were upheld by the Ohio Court of Appeals, Seventh District, and further review was denied by the Ohio Supreme Court. In his federal habeas petition, Brown alleged that he was prejudiced by a comment made by the prosecutor during closing argument and that his separate convictions for aggravated robbery, Ohio Rev.Code Sec. 2911.01 (Page's 1982), and theft, Ohio Rev.Code Sec. 2913.02 (Page's 1982), violated his right to be free of double jeopardy. In a comprehensive, well-reasoned, twenty-four page memorandum opinion, Judge Manos found the petitioner's contentions to be without merit and denied the writ.
On appeal, Brown reiterates the two grounds for relief originally passed upon by the Ohio courts, and, subsequent to the exhaustion of state remedies, by the federal district judge. However, the appellant's brief also seeks to raise an asserted error in the jury instruction propounded at trial. This ground for relief was not raised at trial, nor during the state post-conviction process, nor in the petition for habeas relief addressed by the district court. Accordingly, the present appeal does not involve a "mixed" petition containing both exhausted and unexhausted claims; rather, Brown is here, in essence, attempting to amend his petition on appeal.
The clear rule is that appellate courts do not consider issues not presented to the district court. Bannert v. American Can Co., 525 F.2d 104, 111 (6th Cir.1975), cert. denied, 426 U.S. 942, 96 S.Ct. 2662, 49 L.Ed.2d 394 (1976). This rule applies with particular force when the new issue requires development of additional facts,...
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