Isaac v. Engle

Decision Date16 December 1980
Docket NumberNo. 78-3488,78-3488
Citation646 F.2d 1129
PartiesLincoln ISAAC, Petitioner-Appellant, v. Ted ENGLE, Superintendent, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Jay McKirahan, James R. Kingsley, Circleville, Ohio, for petitioner-appellant.

Lincoln Isaac, pro se.

William J. Brown, Atty. Gen., Simon B. Karas, Div. of Crim. Activities, Columbus, Ohio, for respondent-appellee.

Gary W. Crim, Atty. for Ohio Prosecuting Atty's Assn., Dayton, Ohio, amicus curiae.

Richard L. Aynes, School of Law, The University of Akron, Akron, Ohio, for amicus curiae/Ohio Public Defender Association and Appellate Review Office.

Before EDWARDS, Chief Judge, and WEICK, LIVELY, ENGEL, KEITH, MERRITT, BROWN, KENNEDY, MARTIN and JONES, Circuit Judges, sitting En Banc.

BAILEY BROWN, Circuit Judge.

In this appeal, we are confronted with the difficult task of determining the federal constitutional consequence, if any, of two decisions by the Supreme Court of Ohio. One of these decisions for the first time construed an Ohio statute to place the burden on the state in criminal cases of proving the absence of affirmative defenses, and the other decision held that only those defendants who had objected at the trial to jury instructions placing the burden on defendant to prove an affirmative defense could avail themselves on appeal of this interpretation of the statute.

I

Prior to 1974, Ohio followed the traditional common law rule that the defendant in a criminal case not only had the burden of going forward with evidence to create an issue as to an affirmative defense but also had the ultimate burden of proving such affirmative defense by a preponderance of the evidence. State v. Seliskar, 35 Ohio St.2d 95, 298 N.E.2d 582 (1973). As of January 1, 1974, however, a new statutory provision became effective. That provision, codified as Ohio Revised Code § 2901.05(A), stated:

(A) Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof is upon the prosecution. The burden of going forward with the evidence of an affirmative defense is upon the accused.

The language of the new statute was not free of ambiguity. As a result § 2901.05(A) was not initially considered to effect any change in the previous common law rule. As late as 1975, the Supreme Court of Ohio reaffirmed at least in a dictum the principle that a defendant must bear the burden of proving affirmative defenses by a preponderance of the evidence. State v. Rogers, 43 Ohio St.2d 28, 330 N.E.2d 674 (1975). 1

II

In 1975, appellant, Lincoln Isaac, was indicted in Ohio for felonious assault. At his trial, Isaac asserted that he had acted in self-defense. The trial court instructed the jury without any objection by Isaac that it was incumbent on Isaac to demonstrate self-defense by a preponderance of the evidence. The jury found Isaac guilty of the lesser included offense of aggravated assault. Isaac was sentenced to a term of six months to five years imprisonment.

Prior to any appeal by Isaac, the Supreme Court of Ohio, in State v. Robinson, 47 Ohio St.2d 103, 351 N.E. 103 (1976), concluded that § 2901.05(A) had changed the previously accepted common law rule allocating the burden of proof in criminal cases. The court construed § 2901.05(A), effective January 1, 1974, to adopt the majority rule that a defendant only has the burden of coming forward with sufficient evidence to create an issue as to an affirmative defense and that once such evidence is presented, the prosecution then must demonstrate beyond a reasonable doubt the guilt of the defendant even to the extent of disproving such affirmative defense. Interpreting § 2901.05(A) in this manner, the Supreme Court of Ohio held that any jury instruction placing the burden of proving an affirmative defense on the defendant constituted prejudicial error.

Relying on Robinson, Isaac appealed his conviction. The Court of Appeals for Pickaway County held that Isaac had waived any error in the jury instruction on burden of proof by failing to object to that instruction. Accordingly, it affirmed Isaac's conviction. Isaac thereafter filed an appeal in the Supreme Court of Ohio. That appeal was dismissed in 1977 for lack of a substantial constitutional question.

On the same day that it dismissed Isaac's appeal, the Supreme Court of Ohio reaffirmed the interpretation of § 2901.05(A), placing the burden on the state to prove absence of affirmative defenses, that it had made in Robinson. State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977). At the same time, however, the court held that appellant Humphries could not avail himself of this interpretation of the statute because he had not objected to the charge to the jury on this ground, relying on Ohio Criminal Rule 30. The court, nevertheless, in the same opinion, held that appellant Meyer, who had had a bench trial, could effectively raise the question on appeal since Criminal Rule 30 did not apply to such trials. Ohio has continued to so apply its contemporaneous objection rule. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).

In 1978, Isaac sought habeas corpus relief in federal district court. Without reaching the merits of Isaac's claim, the district court dismissed his petition. The court, relying on Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), held that federal habeas corpus review was precluded by an adequate state procedural ground, specifically, the Ohio rule that the failure to object to a jury instruction waived any error in such instruction.

In Isaac v. Engle, 646 F.2d 1122 (decided February 8, 1980) a panel of this court reversed the decision of the district court, Judge Celebrezze writing a concurring opinion. The focus of the panel opinion was on the constitutionality of Ohio's use of its contemporaneous objection rule as a means of limiting the benefits of the Robinson decision. The panel opinion concluded, preliminarily, that Wainwright v. Sykes was simply not applicable and therefore there was no bar to consideration of this constitutional claim since such claim was not directed at the substantive validity of the jury instructions allocating the burden of proof. As to the merits of the claim, all three members of the panel determined that Ohio's failure to grant Isaac the benefits of Robinson represented a denial of due process. The panel divided, however, as to the appropriate basis for reaching such a conclusion. Judges Peck and Phillips determined that Ohio's use of its contemporaneous objection rule was arbitrary and capricious and therefore a denial of federal due process under the circumstances of this case because there was no basis for objection to the jury instruction at the time of Isaac's trial. Judge Celebrezze, adopting a somewhat broader approach, maintained that the placing of the burden of proof is so critical in the truth-finding process that the change in interpretation of the law allocating that burden must have "retroactive application" without any limitations based on state procedural rules.

We granted a petition for rehearing en banc to consider the important issues presented by this case.

III

We recognize that the use of a contemporaneous objection rule as a procedural device to deny a defendant the retroactive benefits of an important change in state law is arguably arbitrary and capricious when there did not exist a reasonable basis for an objection at the time of the trial. The Supreme Court, however, has at least suggested that such a use of a procedural rule may be a valid means of limiting the retroactive benefit of a new constitutional principle. Hankerson v. North Carolina, 432 U.S. 233, 244 n.8, 97 S.Ct. 2339, 2345 n.8, 53 L.Ed.2d 306 (1977). Moreover, as a matter of comity, states are entitled to some deference in the manner that they apply their own procedural rules. We are therefore hesitant to hold, as did the panel opinion, that this use of a contemporaneous objection rule to limit the retroactive benefits of a new statutory interpretation is, ipso facto, violative of due process.

We believe that the more appropriate focus is on the underlying claim, in this case the constitutional validity of the jury instructions given at Isaac's trial as considered in light of Robinson and Humphries. In this context, the threshold question, then, is not whether the state's limiting of the retroactive benefits of a new statutory interpretation through the use of a procedural rule is constitutional but whether that state procedural rule effectively precludes federal habeas corpus review of the underlying constitutional claim.

IV

In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court held that a petitioner's failure to comply with a state procedural rule represents an independent and adequate state ground barring habeas corpus review of a constitutional claim absent a showing of cause for the noncompliance and a showing of prejudice resulting from the constitutional violation. 2 The Court, however, declined to define precisely what would constitute "cause" and "prejudice." That task was left for development in subsequent cases. While the "cause" and "prejudice" standards of Wainwright still remain somewhat undefined, we conclude that the circumstances of this case satisfy both of those standards.

At the time of Isaac's trial, there was no indication that the jury instruction given by the trial court was contrary to state law. Ohio had traditionally placed the burden of proving affirmative defenses on the defendant. Moreover, the Supreme Court of Ohio had in a dictum stated that the recently enacted statute, Ohio Revised Code § 2901.05(A), did not change the previous common law rule. See State v. Rogers, supra. Confronted with such well-established law, it would have seemed futile for Isaac to object to a jury...

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