Downton v. Vandemark, C 82-444.

• Decision Date: 06 September 1983
• Docket Number: No. C 82-444.,C 82-444.
• Parties: Ronald DOWNTON, Plaintiff, v. William C. VANDEMARK, Defendant.
• Court: U.S. District Court — Northern District of Ohio

571 F. Supp. 40

Ronald DOWNTON, Plaintiff, v. William C. VANDEMARK, Defendant.

No. C 82-444.

United States District Court, N.D. Ohio, W.D.

May 13, 1983.

Supplemental Memorandum Filed September 6, 1983.

Robert S. Catz, College of Law, Cleveland State University, Cleveland, Ohio, for plaintiff.

Jack G. Fynes, Shumaker, Loop & Kendrick, Toledo, Ohio, for defendant.

MEMORANDUM and ORDER

WALINSKI, District Judge.

This cause came to be heard upon the plaintiff's objections to a Report & Recommendation of Magistrate James G. Carr. In response to a motion filed by the defendant, the Magistrate recommended the dismissal of the plaintiff's complaint as untimely. The court rejects the Magistrate's report, and for the following reasons the complaint is dismissed in part.

I.

This suit arises under the Civil Rights Act, 42 U.S.C. § 1983 and the common law of Ohio. Jurisdiction is predicated upon 28 U.S.C. §§ 1331, 1332 and 1343(3). The requisite amount in controversy is present as to the claim arising under this court's diversity jurisdiction.

The defendant is an attorney who represented the plaintiff in a state criminal proceeding. The representation by the defendant was determined to be constitutionally inadequate. Downton v. Perini, 511 F.Supp. 258 (N.D.Ohio 1981). The plaintiff claims the defendant deprived him of his rights under the sixth and fourteenth amendments to the United States Constitution giving rise to the § 1983 action, and committed legal malpractice as defined by the common law of Ohio giving rise to the diversity claim.

The magistrate's report sets out the facts, but for convenience they are restated here. The plaintiff pled guilty to the charge of second degree murder in a state court. He was sentenced on June 8, 1972, and the parties to this proceeding apparently agree their attorney/client relationship terminated on that date.

The plaintiff was incarcerated until December 23, 1980. After his release from prison the plaintiff successfully petitioned this court for a writ of habeas corpus. In the habeas proceeding it was determined that the former attorney failed to provide constitutionally adequate representation of the plaintiff in the criminal action in state court. This mandate was issued on March 11, 1981. The appeal taken therefore was dismissed by the Sixth Circuit Court of Appeals on July 16, 1981.¹ The state elected not to retry the plaintiff on November 5, 1981, and this action was filed on July 22, 1982.

The issue raised by the motion presently before the court is whether the cause of action accrued (1) upon the termination of the attorney/client relationship, as the defendant contends,² (2) upon the plaintiff's successful challenge to the state court conviction; or (3) upon the state's decision not to retry the plaintiff as he contends. If the cause accrued at either of the earlier two dates — termination of the relationship or upon reversal of the conviction — the claim is time barred; otherwise, it is not.

II.

The 1983 claim arising out of the defendant's ineffective representation of the plaintiff in the state criminal proceedings is time barred. It accrued upon the reversal of the state court determination as to the adequacy of counsel.

The parties agree the applicable statute of limitations is governed by Ohio law, and specifically the Ohio statute of limitations for professional malpractice. Ohio law requires a claim for professional malpractice to be brought within one year of the accrual of the cause of action. Ohio Rev.Code § 2305.11(A).

The defendant argues the cause of action accrued, at the latest, upon the termination of the attorney/client relationship — June 8, 1972. Under the tolling provisions of Ohio Rev.Code § 2305.15 the statute was tolled until December 23, 1980 because of the plaintiff's incarceration. By this reasoning, the one year period had run on July 22, 1982 when the complaint was filed in this action.³ The defendant therefore argued, and the magistrate agreed, the complaint should be dismissed.

In support of the view the claim accrued at the termination of the attorney/client relationship, the magistrate relied upon Ohio law to that effect. Keaton Company v. Kolby, 27 Ohio St.2d 234, 271 N.E.2d 772 (1971), also, Ishler v. Miller, 56 Ohio St.2d 447, 384 N.E.2d 296 (1978); Richard v. Staehle, 70 Ohio App.2d 93, 434 N.E.2d 1379 (1980). However, it is well settled that federal law governs the accrual of federal claims. E.g., Kaiser v. Cahn, 510 F.2d 282 (2d Cir.1974).

The 1983 claim premised upon the defendant's ineffective legal representation could not have been brought before this court's decision in the plaintiff's prior action for habeas relief. Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). Prior to the final determination on the habeas petition, the state court ruled the plaintiff received constitutionally sufficient legal representation. This precluded the bringing of a contrary claim here by operation of the doctrine of res judicata.

The defendant's attempts to distinguish and discredit Allen v. McCurry are unpersuasive. In Allen a 1983 claimant sought damages from police officers arising out of a search and seizure. The plaintiff had unsuccessfully challenged the same conduct in the course of his state court criminal conviction. The adverse state court determination of the issue was held to preclude the relitigation of the matter in the subsequent 1983 suit.

The Allen reasoning is controlling here as this case and Allen are indistinguishable on their significant facts. As in Allen the issue presented in this 1983 claim was actually litigated by the state courts. The matter was resolved adversely to the plaintiff in his state post-conviction proceedings. Until the federal habeas court overturned the state's determination of the adequacy of the legal representation the plaintiff received, the state's determination of the question was binding under the Allen reasoning.

The defendant at bar notes the reservation of a narrow question in Allen. In a footnote the Court refused to decide whether the normal rules of claim preclusion should apply in a 1983 action where the plaintiff seeks to litigate a federal issue which he could have raised but did not raise in the earlier state court suit. This question was not raised by the facts in Allen. That reserved question, interesting as it is, is not presented in the case sub judice either. Here, the claim of the adequacy of the defendant's services was actually litigated in state courts.

The plaintiff's position with respect to Allen goes too far, however. Under his theory the claim accrued in November of 1981 when the state refused or failed to retry the plaintiff. The error is in viewing Allen as precluding the 1983 action until reversal of the state criminal conviction.

The significant fact for Allen variety claim preclusion is an adverse state court ruling of which the plaintiff in the 1983 action seeks relitigation. The adverse ruling in the case sub judice is the state post-conviction court's determination counsel was adequate, not the finding of guilt.

The fact that the plaintiff continued in jeopardy of retrial for some period later is irrelevant. The constitution does not guarantee adequate counsel only to innocent persons accused of crime. The fact of guilt or innocence is not relevant to the question of whether an accused has been deprived of a constitutional right. The claim for damages arising out of the deprivation of that right is not dependent on a not guilty verdict; and indeed, the 1983 plaintiff might choose to proceed against his attorney without ever attacking the conviction.⁴

The conviction itself is not attacked in the 1983 proceeding against the plaintiff's former attorney, and a reversal of the conviction is not the significant event which lifts the preclusive effect of the earlier litigation. On July 16, 1981, when this court's order finding the plaintiff's representation constitutionally inadequate was final, the state court's contrary determination no longer bound the plaintiff.

In sum, the plaintiff here unsuccessfully challenged the adequacy of his legal representation in the state court. The state court's adverse determination of that claim barred relitigation of the issue in a federal civil rights action. When this court granted habeas relief upon a finding that the plaintiff had been denied the right to effective assistance of counsel, the state court determination lost its claim preclusion effect. The statute, therefore, began to run from that day, July 16, 1981. The claim was brought more than a year later, on July 22, 1982, and is therefore time barred. The motion to dismiss should be granted.

III.

The diversity claim for legal malpractice is not time barred. It accrued upon the state's refusal to retry the plaintiff, an event which the parties agree occurred within the one year period of limitations.

Under the Erie doctrine this court sitting in diversity looks to the law of Ohio to determine when the action for malpractice arose. The only Ohio authority defining the elements of legal malpractice in the context of a criminal defense is Weaver v. Carson, 62 Ohio App.2d 99, 404 N.E.2d 1344 (Cuyahoga Co.App.1979).⁵ Among other things, the malpractice plaintiff must plead and prove the reversal of the conviction and either a merit dismissal or acquittal on retrial. If no retrial is had, the plaintiff, alternatively, must prove the conviction could not have been achieved, but for the ineptitude of his counsel.

In the case sub judice there was no reversal of the conviction until the mandate of this court was reinstated, July 21, 1981, and the time the state was given to retry him lapsed. The parties agree this date is November 5, 1981. As the action was brought within a year of that date, it is timely, and the motion to dismiss should be denied.

IV.

The motion to dismiss is granted as to the 1983 claim and denied as to the claim...