Hill v. McMackin, 88-3684

• Decision Date: 01 December 1989
• Docket Number: No. 88-3684,88-3684
• Citation: 893 F.2d 810
• Parties: John HILL, Jr., Petitioner-Appellant, v. Norris W. McMACKIN, Supt. Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 810

893 F.2d 810

John HILL, Jr., Petitioner-Appellant, v. Norris W. McMACKIN, Supt. Respondent-Appellee.

No. 88-3684.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 12, 1989.

Decided Dec. 1, 1989.

Harry R. Reinhart, argued, Columbus, Ohio, for petitioner-appellant.

Donald G. Keyser, Asst. Atty. Gen., argued, Office of the Atty. Gen. of Ohio, Columbus, Ohio, for respondent-appellee.

Before JONES and GUY, Circuit Judges, and BERTELSMAN, District Judge. ^*

RALPH B. GUY, Jr., Circuit Judge.

Petitioner, John Hill, Jr., appeals the district court's dismissal of his petition for habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. Hill claims that the court erred in requiring him to show cause and prejudice to excuse a procedural default occasioned by ineffective assistance of counsel and by negligent pro se representation. He also claims that the district court erred in finding that his procedural default in state court bars federal review of his claim. Finally, Hill claims that his due process rights were violated by the prosecution's use of an indictment that was based, in part, on perjured testimony. We conclude that, because of recent changes in the applicable law, the district court should have addressed the merits of petitioner's habeas corpus petition. Accordingly, we reverse the district court's dismissal of the petition and remand the case for consideration on the merits.

Petitioner was indicted and convicted of forcing his minor daughter to engage in sexual intercourse with him. He also coerced her to engage in other sexual conduct with him and to pose for nude photographs. In addition, the petitioner coerced his step-daughter to engage in sexual conduct with him and to pose for nude photographs. At the time of the offense, petitioner's step-daughter was a minor below the age of thirteen.

Hill was indicted on two counts of rape, in violation of Ohio Rev.Code Ann. Sec. 2907.02, and one count of sexual battery, in violation of Ohio Rev.Code Ann. Sec. 2907.03. A jury found him guilty on all counts of the indictment on May 15, 1985, and he was sentenced shortly thereafter. ¹ On June 4, 1985, petitioner filed a timely notice of appeal in the Court of Appeals for the Seventh District of Ohio. On June 20, 1986, petitioner's court-appointed counsel, a Columbiana County public defender, filed a motion to withdraw after concluding that the appeal was groundless. Counsel filed a brief in support of his motion to withdraw as counsel of record. ² On July 7, 1986 petitioner filed a motion in support of his counsel's motion to withdraw. In addition, he requested that no new counsel be appointed to represent him and that his case be decided solely on the basis of his pro se brief, which was filed on March 17, 1986. ³

In his pro se brief, petitioner alleged five trial errors. He claimed that he was denied a fundamentally fair trial because his conviction was obtained by the knowing use of false testimony, because the prosecution withheld exculpatory evidence from him, and because the trial court admitted into evidence nude photographs of the victims even though the prejudicial value of the photographs outweighed their probative value. Petitioner also challenged as unconstitutional the unexplained positioning of three deputies who surrounded him in the presence of the jury at trial. Finally, petitioner claimed that his due process rights were violated because he was forced to stand trial for offenses that allegedly took place at broadly specified intervals.

On March 31, 1987, the Court of Appeals for the Seventh District affirmed petitioner's convictions. On July 1, 1987, petitioner filed an "APPLICATION FOR DELAYED APPEAL" to the Ohio Supreme Court. In that filing, petitioner indicated that, if he was permitted to appeal, he would raise the previously noted assignments of error plus ineffective assistance of appellate counsel. On September 2, 1987, the Ohio Supreme Court summarily denied Hill's motion for a delayed appeal.

Prior to the present petition, Smith became frustrated with the progress of his case in the state court system. Therefore, on December 3, 1986, he sought a writ of mandamus in the Ohio Supreme Court to compel a decision from the court of appeals. When the supreme court took no prompt action, Hill, on February 27, 1987, filed a petition for a writ of habeas corpus in federal district court, pursuant to 28 U.S.C. Sec. 2254. On June 17, 1987, by which time the state appellate court had affirmed his conviction, Hill's habeas corpus petition was dismissed without prejudice for lack of exhaustion. On September 30, 1987, after having exhausted his state remedies, he filed another petition for a writ of habeas corpus in federal district court. He alleged that his constitutional rights were violated by the use of perjured testimony; prosecutorial misconduct involving the withholding of exculpatory evidence; and that he was denied a fair trial, impartial jury, due process, and the effective assistance of counsel on direct appeal. The government argued that petitioner failed to exhaust his claim of ineffective assistance of counsel and that his other claims were time barred due to a procedural default occasioned by petitioner's tardy motion for leave to appeal before the supreme court.

On January 27, 1988, the United States magistrate found that petitioner's tardy appeal (of the state court of appeals' decision) to the Ohio Supreme Court constituted a procedural default. Accordingly, the magistrate ordered petitioner to show cause for and prejudice resulting from the default. On May 4, 1988, finding no cause or prejudice, the magistrate recommended that Hill's petition be dismissed. On June 24, 1988, after reviewing the entire record de novo, the district court adopted the magistrate's report and recommendation and dismissed the petition. This timely appeal followed. ⁴

I.

Of the various issues raised in petitioner's appeal, we begin with the dispositive one. The district court did not reach the merits of Hill's petition because it determined that the Ohio Supreme Court disposed of the case on the basis of a procedural default for which Hill established no cause or prejudice that otherwise would excuse the default. See Wainwright v Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); see also Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1985). As noted, the procedural default is Hill's tardy appeal of the state appellate court's judgment affirming his conviction. ⁵ Although the parties do not dispute the tardiness of the appeal giving rise to the procedural default, they disagree as to the basis for the Ohio Supreme Court's denial of Hill's delayed motion for leave to appeal. In denying the leave, the supreme court issued a one-page order, which reads, in pertinent part, as follows:

This cause is pending before the Court on the filing of a motion for leave to appeal from the Court of Appeals for Columbiana County and as an appeal as of right from same said Court. Upon consideration of appellant's motion for leave to file delayed appeal,

IT IS ORDERED by the Court that said motion be, and the same is hereby, denied.

The parties agree that the Ohio Supreme Court did not specify whether its decision was substantively or procedurally grounded. The basis for the court's decision, however, is pivotal to determining whether Hill exhausted his state remedies with respect to his habeas petition. If the state court's decision is substantively grounded, he did exhaust his remedies. If the decision is procedurally grounded, he did not exhaust them.

The magistrate and the district court were persuaded by the government's argument that the absence in the court's order of customary language indicating that the court was relying on substantive grounds to deny leave to appeal effectively rendered the order one based substantially on procedural grounds. See Gilbert v. Parke, 763 F.2d 821 (6th Cir.1985). Accordingly, the court proceeded to consider whether cause and prejudice excused the procedural default so as to permit the court to consider the merits of Hill's petition. See Wainwright, 433 U.S. 72, 97 S.Ct. 2497. Finding no cause or prejudice, the court dismissed the petition.

The district court's opinion in this case was filed on June 24, 1988. Since that time, the United States Supreme Court has decided Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). In that case, the Court extended the " 'plain statement' " rule of Michigan v. Long, 463 U.S. 1032, 1042, n. 7, 103 S.Ct. 3469, 3477, n. 7, 77 L.Ed.2d 1201 (1983), ⁶ to cases on federal habeas review and determined that:

[A] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case " 'clearly and expressly' " states that its judgment rests on a state procedural bar.

109 S.Ct. at 1043 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985), quoting Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476-77, 77 L.Ed.2d 1201 (1983)). The Court expressly declined to adopt a presumption that a state court's judgment that is ambiguous as to its basis rests on procedural grounds.

Although the parties did not address the question whether the rule announced in Harris may be applied retroactively, we find ourselves compelled to do so in light of the Supreme Court's recent decision in Teague v. Lane, --- U.S. ----, 109 S.Ct. 1060, 103 L.Ed.2d 334, reh'g denied, --- U.S. ----, 109 S.Ct. 1771, 104 L.Ed.2d 206 (1989). Teague held that, with two exceptions, new rules generally may not be applied retroactively to cases on collateral review. However, Teague does not bar retroactive application of rules when the case does not announce a new rule. According to Teague, "a case announces a new rule if the result was not dictated by precedent existing at the time ...