Ewing v. McMackin
| Decision Date | 03 September 1986 |
| Docket Number | No. 85-3252,85-3252 |
| Citation | 799 F.2d 1143 |
| Parties | Fred D. EWING, Sr., Petitioner-Appellant, v. Norris W. McMACKIN, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Frank A. Lavelle (argued), Lavelle & Goldsberry Co., Athens, Ohio, for petitioner-appellant.
Christine Manuelian, Asst. Atty. Gen., Columbus, Ohio, Christine Bobbey (argued), for respondent-appellee.
Before ENGEL and RYAN, Circuit Judges, and CONTIE, Senior Circuit Judge. *
Fred D. Ewing, Sr., appeals from an order of the district court which denied Ewing's three consolidated habeas corpus petitions on the grounds that review by a federal court pursuant to 28 U.S.C. Sec. 2254 was barred by Ewing's failure to follow state procedures with respect to his contentions, and that Ewing had failed to establish cause for and prejudice arising from such procedural defaults. For the reasons that follow, the judgment of the district court is affirmed in part, vacated in part and remanded for proceedings consistent with this opinion.
On April 28, 1980, Fred D. Ewing, Sr., was indicted on four counts pursuant to Ohio Rev.Code Sec. 2925.03 for trafficking in drugs, and on May 5, pleaded not guilty. (Case No. 80CR-04-1207). On June 9, 1980, Ewing's attorney Michael P. Jackson moved to withdraw, and on August 29, Michael McGinley was appointed as counsel. On September 24, McGinley moved to withdraw and Douglas Moser was appointed. Ewing failed to appear for trial on September 16, 1980, and January 7, 1981. At some point Elliott Good became Ewing's attorney, and, on June 30, 1982 sought to withdraw. On July 15, Richard Sheward was appointed. A jury trial was held, Ewing was convicted on all four counts, and, on August 18, 1982, was sentenced to two-to-five years on each count. On September 15, Sheward moved to withdraw and Attorney Kura was appointed. 1
On July 17, 1980, Ewing was indicted in the Franklin County Court of Common Pleas on two counts of carrying a concealed weapon pursuant to Ohio Rev.Code Sec. 2923.12. (Case No. 80CR-07-2074). On August 15, Ewing pleaded not guilty. Ewing failed to appear for trial on September 11, 1980 and January 7, 1981. On June 30, 1982, Ewing's attorney, Elliott Good, moved to withdraw from the case, and on July 19, the court appointed Richard Sheward at Ewing's request. 2 On September 1, 1982, Ewing changed his plea to guilty and was sentenced to three-to-ten years imprisonment. The second count was nolle prossed. The sentence was to run concurrent to his sentences for his drug trafficking convictions.
On August 5, 1980, Ewing was indicted on charges of carrying a concealed weapon in violation of Ohio Rev.Code Sec. 2923.12 and felonious assault in violation of Ohio Rev.Code Sec. 2903.11, and, on August 15, pleaded not guilty. (Case No. 80CR-06-1834). On January 7, 1981, Ewing failed to appear for trial. On June 30, 1982, Attorney Elliott Good moved to withdraw, and on July 15, Richard Sheward was appointed. Ewing pleaded guilty to carrying a concealed weapon, and, on September 9, 1982 was sentenced to three-to-ten years imprisonment, to be served concurrent with his drug trafficking sentences. The other counts were dismissed.
Ewing appealed his conviction in case no. 80CR-04-1207 (drug trafficking), arguing that the trial court erred in refusing to dismiss the indictment pursuant to Ohio R.Crim.P. 7(B) and that the jury's verdict was against the weight of the evidence. On March 22, 1983, the Ohio Court of Appeals for the 10th District affirmed the convictions. State v. Ewing, 9 Ohio App.3d 285, 459 N.E.2d 1297 (1983). On April 19, 1983, Ewing sought leave to appeal to the Ohio Supreme Court, arguing that his convictions were against the weight of the evidence, and, therefore, obtained in violation of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). On November 23, 1983, the Ohio Supreme Court overruled Ewing's motion, and the appeal was dismissed.
On November 8, 1982, Ewing filed a pro se motion for post-conviction relief in the weapons cases, case nos. 80CR-06-1834, 07-2074, pursuant to Ohio Rev.Code Sec. 2953.21. Ewing alleged that his counsel was ineffective because he misled Ewing about the nature of the plea bargain and that had Ewing known the true bargain he would not have pleaded guilty. Ewing also alleged that because of his psychiatric and alcohol problems he should have received a sanity hearing. Ewing alleged failure to comply with Ohio R.Crim.P. 11(F). Ewing alleged that the circumstances surrounding his guilty pleas rendered such pleas involuntary in violation of the Sixth and Fourteenth Amendments. 3 On April 20, 1983, the trial court denied Ewing's petition, finding no violation of state or federal constitutional rights. The court found that "[t]he pleas of guilty were voluntarily, intelligently and knowingly made by the defendnt [sic]," and that "[c]ounsel for defendant very effectively represented defendant at all stages of the proceedings."
Sometime in 1983, Ewing filed three petitions for writs of habeas corpus in the U.S. District Court for the Southern District of Ohio alleging with respect to his weapons convictions, that:
1. His guilty plea was involuntary, and not made with a full understanding of its nature and consequences.
2. His conviction was obtained in violation of the protection against double jeopardy.
3. His conviction was obtained through the use of evidence resulting from an unlawful arrest.
4. He was denied the effective assistance of counsel.
5. He was denied due process and a fair trial.
6. He was unconstitutionally sentenced.
7. The police department violated his civil rights by harassment. 4
With respect to the drug convictions, Ewing realleged errors 2, 4, 5, 6 and 7 and additionally alleged that:
1. He was subjected to an unconstitutional search and seizure.
2. He was denied the right to a speedy trial.
On May 3, 1984, with respect to case no. C2-84-356, the district court held that the petition was unexhausted because it included claims which had never been presented to the state courts. The district court recognized the possibility that the Ohio courts would consider such claims to be waived because of Ewing's failure to raise such claims on direct appeal. With respect to the weapons convictions, the district court found that five of the seven claims had not been exhausted, and that the petition must be dismissed pursuant to the rule of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The court held that "[a]ny of the claims which appear on the face of the record may still be presented to the Ohio courts by way of a delayed direct appeal pursuant to Ohio Appellate Rule 5." 5 On September 20, 1984, we affirmed the judgment of the district court pursuant to Rule 9(a), Rules of the Sixth Circuit.
On May 11, 1984, Ewing, represented by counsel Frank Lavelle, filed, with respect to all of his convictions, a motion in the state trial court for post-conviction relief pursuant to Ohio Rev.Code Sec. 2953.21. Ewing sought relief from his convictions on the grounds that (1) his right to a speedy trial pursuant to Ohio Rev.Code Sec. 2945.71(C) was violated; (2) evidence was obtained by an unconstitutional search and seizure; (3) multiple punishments were imposed for the same offense in violation of Art. I, Sec. 10 of the Ohio Constitution; 6 (4) he was rendered ineffective assistance of trial counsel and deprived of a fair trial in violation of Ohio and federal constitutional law; 7 (5) that Ohio R.Crim.P. 7(D) was violated; and (6) he received unconstitutionally excessive sentences. On September 6, 1984, the trial court denied the petition finding that Ewing was not denied his right to a speedy trial under Ohio law and the Sixth Amendment and that Ewing was barred from raising the speedy trial and search issues with respect to the drug convictions because such issues could have been raised, and were not, on direct appeal. Ewing was barred from challenging the legality of the search with respect to his weapons convictions because of his guilty plea. The court rejected the double jeopardy argument on the ground that one weapons conviction arose from events on June 11, 1980, while the other arose from events on June 18, 1980. The court rejected the double jeopardy argument with respect to the drug convictions because different drugs were sold on different dates and because the double jeopardy argument was waived because Ewing failed to raise this issue on direct appeal. The court found that Ewing received effective assistance of trial counsel and that "[i]n addition, the several claims of error at trial could have been raised by the defendant in his direct appeal with new appellate counsel and are therefore res judicata. " No appeal was taken.
On October 25, 1984, Ewing filed a petition for a writ of habeas corpus (district court case no. C2-84-1903) with respect to his conviction for carrying a concealed weapon in state case no. 80CR-07-2074. Ewing explained his failure to appeal the denial of his first state post-conviction motion on the ground that Ewing explained his failure to appeal the denial of his second state post-conviction motion on the ground that "I no longer had counsel; due to Ohio Supreme Court decisions in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), etc., it would be futile." As grounds for relief, Ewing asserted:
1. Denial of a right to a speedy trial.
2. Unconstitutional search and seizure.
3. Violation of double jeopardy.
4. Denial of effective assistance of counsel.
5. Unlawfully induced guilty plea, not made with knowledge and understanding of the nature of the charge and the consequences of the plea.
On November 14, 1984, Ewing filed a petition for a writ of habeas corpus (district court case no. C2-84-1975) with respect to his...
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