Hockenbury v. Sowders, 79-3339

• Decision Date: 30 September 1980
• Docket Number: No. 79-3339,79-3339
• Citation: 633 F.2d 443
• Parties: Murrell Toby HOCKENBURY, III, Petitioner-Appellee, v. Dewey SOWDERS, Superintendent, Kentucky State Penitentiary, Respondent- Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 443

633 F.2d 443

Murrell Toby HOCKENBURY, III, Petitioner-Appellee, v. Dewey SOWDERS, Superintendent, Kentucky State Penitentiary Respondent- Appellant.

No. 79-3339.

United States Court of Appeals Sixth Circuit.

Sept. 30, 1980.

Barbara B. Edelman, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellant.

Larry H. Marshall, Asst. Public Advocate, Frankfort, Ky., for petitioner-appellee.

Before WEICK, MERRITT and KENNEDY, Circuit Judges.

ORDER

A majority of the Court having not voted in favor of an en banc rehearing, the petition for rehearing has been referred to the hearing panel for disposition.

Judge Keith's dissent from the denial of the rehearing en banc makes several assertions in support of his conclusion that the decision of the panel is incorrect. While the panel believes that the opinion in this case adequately refutes most of the assertions made in the dissent, it feels compelled to respond to one of Judge Keith's conclusions regarding the application of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

In his dissent Judge Keith opines that if a state's contemporaneous objection rule, as a matter of state law, permits the state court any exception for manifest injustice or plain trial error, then Wainwright v. Sykes, supra, cannot bar federal review even though the state court in its interpretation of state law applied its contemporaneous objection rule. In view of the number of states with "plain error", "manifest injustice", or similar exceptions to their contemporaneous objection rules, Judge Keith's reasoning would give the Wainwright decision no effect whatsoever. That Wainwright does not permit this conclusion is best illustrated by the Wainwright decision itself, and the law of Florida under which it originated. In Wainwright the Florida courts had refused to consider the merits of the habeas petitioner's claim because of noncompliance with the state's contemporaneous objection requirement. The Supreme Court held that the petitioner's failure to timely object in accordance with the Florida rule amounted to an independent and adequate state ground for the decision. The fact that Florida has a "fundamental error" exception to its contemporaneous objection requirement, Clark v. State, 363 So.2d 331, 333 (Fla.1978) did not convince the Supreme Court that it should undertake an independent review of the petitioner's claims under the fundamental error standard of review which had been available to the state court. Implicit in the Supreme Court's opinion in Wainwright is the conclusion that a state may decide when its contemporaneous objection requirement applies. Similar deference is evident in Ulster County Court v. Allen, 442 U.S. 140, 147-154, 99 S.Ct. 2213, 2219-2223, 60 L.Ed.2d 777 (1979), where the Supreme Court made a painstaking attempt to determine whether New York had denied a habeas petitioner's claim based on an adequate and independent state procedural ground where the state court had been less than explicit in their reasons for rejecting the claim. The Court's analysis centered on New York's application of their contemporaneous objection rule and its exceptions; the Court did not seek to make an independent application of the rule without regard to the way in which New York applies its own rule. If Judge Keith's analysis were correct, then the Supreme Court would have made an independent application of the states' exceptions to their contemporaneous objection rules in Wainwright, supra, and Ulster County, supra. If, as Judge Keith suggests, the fact that a state could review a claim under a plain error standard, a fundamental error standard, or a manifest injustice standard, gave federal courts the right to review a petitioner's claim regardless of petitioner's failure to object at the trial, there would be little or no deference to a state's decision on the independent procedural ground and the decision in Wainwright would have little or no effect. This Court is not at liberty to construe Supreme Court cases so as to render them totally without effect.

Accordingly, upon consideration of the Court, it is ORDERED that the petition for rehearing be and hereby is DENIED.

KEITH, Circuit Judge, dissenting from denial of rehearing en banc.

This case presents a constitutional violation of the state habeas petitioner's rights under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and Charles v. Anderson, 610 F.2d 417 (6th Cir. 1980). The district court granted the writ of habeas corpus, and there is apparently no dispute that the petitioner's constitutional rights were violated. ^*

Instead of affirming the district court, the panel conducted an independent analysis under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and remanded the case to the district court in light of that analysis. Hockenbury v. Sowders, 620 F.2d 111 (6th Cir. 1980). Unfortunately, the panel's opinion is at odds with established authority in the circuit. Today, the en banc court refuses to act in the face of a clear affront to circuit precedent. I must respectfully dissent.

I

The problem in this case was that, although there was clear constitutional error in the state trial, counsel never objected to it. Thus, this case presents a threshold question whether federal habeas corpus relief is barred by the Supreme Court's decision in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This was the doctrine seized upon by the panel to deny relief to the petitioner.

The panel decision cannot be reconciled with a series of cases in this court which clearly established this circuit's view of Wainwright: Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978); Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978); Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979) and Krzeminski v. Perini, 614 F.2d 121 (6th Cir. 1980) (a case not cited by the panel).

Under these cases, error which is apparent on the trial record, which is of constitutional dimension, is reviewable in habeas corpus proceedings if state law allows review of such error. The leading case holding this is Judge Edward's opinion in Berrier v. Egeler, where this court affirmed the grant of a writ of habeas corpus despite counsel's failure to object at trial or raise the jury instruction issue in question on appeal within the state system. Berrier squarely relied on a "plain error" analysis-plain error which is reviewable within the state system, even if the state courts did not actually review it.

Berrier was followed in Cook v. Bordenkircher and Rachel v. Bordenkircher as an alternative ground for decision. Both Cook and Rachel held that habeas corpus relief is available in cases of plain trial error. These decisions were further endorsed in Krzeminski v. Perini, 614 F.2d at 123 n.2 which stated:

Where there is plain error in the record which is reviewable under state law, we can review it in a habeas corpus proceeding .... The Ohio state courts review plain error in jury instructions. ... Accordingly, we can do the same.

The panel opinion in this case is completely at odds with these cases. As this court noted in Cook v. Bordenkircher, supra, at 119, plain trial error is reviewable in Kentucky, even absent an objection. We are thus not precluded from reviewing it in a habeas corpus proceeding. The statement in the panel opinion that "(t)his court has never ruled that federal habeas corpus review is proper under Wainwright based solely on an independent federal analysis of plain error" (620 F.2d at 114) is simply not true. ¹

II

Wainwright is based on "considerations of comity and concerns for the orderly administration of criminal justice." Id. 433 U.S. at 84, 97 S.Ct. at 2505, citing Francis v. Henderson, 425 U.S. 536, 538-39, 96 S.Ct. 1708, 1709-1710, 48 L.Ed.2d 149 (1976). In Wainwright itself, the state courts had consistently refused to review the claim which was at issue there absent a contemporaneous objection at trial. "But if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim." County Court v. Allen, 99 S.Ct. at 2223. See Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980); Moran v. Estelle, 607 F.2d 1140, 1141-43 (5th Cir. 1979); Canary v. Bland, 583 F.2d 887, 889-90 (6th Cir. 1978); Cannon v. Alabama, 558 F.2d 1211, 1216 n.12 (5th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978).

Cook v. Bordenkircher, supra, makes it clear that Kentucky courts can review plain trial error to avoid manifest injustice. The panel agreed that this is true: "Kentucky's contemporaneous objection requirement precludes appellate review of matters which are not objected to, unless manifest injustice results." (620 F.2d at 113). In fact the panel states, correctly, that "the nature of Kentucky's contemporaneous objection rule required the court to make a cursory review of the merits of petitioner's claim." It is precisely because this is true that Wainwright v. Sykes does not apply. For the reasons outlined above, if the state contemporaneous objection rule, as a matter of state law, does not apply in cases of manifest injustice or plain trial error, then Wainwright v. Sykes cannot bar federal review. This is exactly what Berrier v. Egeler, Rachel v. Bordenkircher, Cook v. Bordenkircher, and Krzeminski v. Perini held.

Cook v. Bordenkircher, supra, followed Miller v. State of North Carolina, 583 F.2d 701 (4th Cir. 1978). Miller is indistinguishable from this case. The North Carolina Supreme Court had affirmed a conviction on direct appeal where no objection to an egregious prosecutorial closing...