Deitz v. Money

• Citation: 391 F.3d 804
• Decision Date: 13 December 2004
• Docket Number: No. 03-3431.,03-3431.
• Parties: Rafael DEITZ, Petitioner-Appellant, v. Christine MONEY, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

391 F.3d 804

Rafael DEITZ, Petitioner-Appellant, v. Christine MONEY, Respondent-Appellee.

No. 03-3431.

United States Court of Appeals, Sixth Circuit.

Submitted: September 24, 2004.

Decided and Filed: December 13, 2004.

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Alan C. Rossman, Cleveland, Ohio, for Appellant.

Bruce D. Horrigan, Corrections Litigation Section, Cleveland, Ohio, for Appellee.

Francis R. Krajenke, Jr., Cleveland, Ohio, for Amicus Curiae.

Before: MERRITT, MOORE, and GILMAN, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

Rafael Deitz filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the constitutionality of his 1997 conviction for drug trafficking. His petition was denied by the district court. The primary issue on appeal is whether Deitz's claim that he was denied the effective assistance of counsel is procedurally defaulted and therefore not reviewable. For the reasons set forth below, we VACATE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

In May of 1996, a Lorain County, Ohio grand jury returned an 11-count indictment for drug trafficking and related offenses against Deitz, a foreign national from Mexico. He pled guilty to all counts in the indictment on February 11, 1997 and, on the same day, was sentenced to a total term of 22 years to life in prison. Two weeks later, Deitz wrote a letter to his trial counsel, asserting his innocence and seeking to retract his guilty plea. According to his brief, Deitz "wanted to appeal his sentence and the conduct of his counsel." His attorney did not file an appeal. Instead, the attorney filed a motion to modify Deitz's sentence on March 20, 1997, which was denied by the state trial court for "lack of jurisdiction." More than a year later, Deitz filed a pro se motion to withdraw his guilty plea. The trial court denied his motion on September 18, 1998, finding "little, if any, merit in Defendant's documentation and arguments."

In October of 1998, Deitz, again acting pro se, appealed the lower court's refusal to grant his request. The Ohio Court of Appeals affirmed the lower court's dismissal, noting that "[b]ecause the motion is based upon the alleged violations of [Deitz's] constitutional rights, it is most properly considered as a petition for postconviction relief," and that "[w]hen a direct appeal is not taken from a judgment, a petition for postconviction relief must be filed no later than one hundred eighty days after the time for filing the notice of appeal expires."

Deitz, with new counsel, filed a motion for leave to file a delayed appeal in February of 2001, and also sought to reopen his direct appeal. Both requests were denied by the Ohio Court of Appeals. The Ohio Supreme Court dismissed the case several months later, concluding that it did not involve a substantial constitutional question.

On April 5, 2002, Deitz filed his petition for a writ of habeas corpus. He raised the following four grounds for relief: (1) his trial counsel was ineffective for failing to file a direct appeal; (2) his appellate counsel was ineffective for not raising a winning issue on appeal; (3) the trial court denied him the due process of law by failing to advise him of the potential deportation consequences of his guilty plea, as required by Ohio law; and (4) the Ohio Court of Appeals violated his due process rights by summarily denying his motion for leave to file a delayed appeal.

Based upon the Report and Recommendation of the magistrate judge, who found that all four claims were procedurally defaulted, the district court dismissed the petition. This court then granted Deitz's motion for a certificate of appealability with respect to the following issue: whether Deitz was denied the effective assistance of counsel by his attorney's failure to file a direct appeal. The warden responds by arguing that this issue was not fairly presented to the state court for review on the merits and is therefore procedurally barred.

II. ANALYSIS

A. Standard of review

This court reviews a district court's conclusions of law de novo, but will not set aside its factual findings unless they are clearly erroneous. Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir.1999). The district court's determination regarding procedural default and its resolution of whether "cause and prejudice" exist to excuse the default are also subject to de novo review. Id.

B. Deitz's claim of ineffective assistance of counsel

A federal court will not address a habeas petitioner's federal constitutional claim unless the petitioner has first fairly presented the claim to the state courts. Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir.1995). Fair presentation of a federal constitutional issue to a state court requires that the issue be raised by direct citation to federal cases employing constitutional analysis or to state cases relying on constitutional analysis in cases with similar fact patterns. Id.

A federal court is also barred from hearing issues that could have been raised in the state courts, but were not, and now may not be presented to the state courts due to a procedural defect or waiver. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In order to gain access to a habeas review of a waived claim, a petitioner must demonstrate either (1) cause to excuse the waiver and prejudice to his defense or (2) actual innocence. Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

We consider four factors in determining whether a petitioner's claim is precluded by the failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). First, we decide whether there is a firmly established state procedural rule with which the petitioner failed to comply. Id.; see also Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (holding that a state procedural rule that is not "firmly established and regularly followed" cannot serve to bar federal judicial review). Second, we ask whether the state court actually enforced the rule in sanctioning the petitioner's failure to comply. Maupin, 785 F.2d at 138; see also Boyle v. Million, 201 F.3d 711, 716-17 (6th Cir.2000) (holding that where a state appellate court characterizes its earlier decision as substantive, the earlier decision did not rely on a procedural bar). We next consider whether the petitioner's failure to comply with the state procedural rule constitutes an adequate and independent ground for barring federal review. Maupin, 785 F.2d at 138; see also Wainwright, 433 U.S. at 86-87, 97 S.Ct. 2497 (concluding that, in light of a Florida law requiring that a petitioner's confession be challenged at trial or not at all, the failure to timely object to such an admission amounted to an adequate and independent state ground that precluded review in a habeas proceeding). Finally, we must determine whether the petitioner has demonstrated that there was cause to disregard the procedural rule and whether the petitioner was actually prejudiced by the alleged constitutional error. Maupin, 785 F.2d at 138; see also Coleman v. Thompson, 501 U.S. 722, 750-51, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (holding that a procedurally defaulted petitioner must show cause for the default and prejudice as a result of the violation, or the petitioner must demonstrate that failure to consider the claim will result in a miscarriage of justice).

Attorney error does not constitute cause to excuse a procedural default unless counsel's performance was constitutionally deficient. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard requires a defendant to show that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defendant. Id. at 688, 694, 104 S.Ct. 2052. A claim of ineffective assistance of counsel must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. Edwards v. Carpenter, 529 U.S. 446, 452, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). Although an ineffective-assistance-of-counsel claim can itself be procedurally defaulted, the procedural default may be excused "if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim." Id. at 453, 120 S.Ct. 1587 (emphasis in original).

Deitz filed both a motion to reopen his direct appeal, pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure, and a motion for leave to file a delayed appeal, pursuant to Rule 5(A) of the Ohio Rules of Appellate Procedure. Rule 26(B) provides as follows:

A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from the journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.

The Ohio Court of Appeals initially granted Deitz's application to reopen, ruling that he had presented "a genuine issue that counsel was ineffective in his representation of Appellant on appeal ." Subsequent to full briefing, however, the court reversed itself and dismissed Deitz's appeal on procedural grounds. The court ruled that it was prevented from considering his arguments because no appeal had initially been filed and thus there was no appeal to reopen, given that the court had denied his request to file a delayed appeal. It did not explain why it had initially granted Deitz's application.

The other applicable provision is Rule 5(A), which reads as follows:

After the expiration of the thirty day period provided by App.R 4(A) for the filing of a notice of appeal as of right, an appeal may be taken by a...