Jacobs v. Mohr Warden

• Decision Date: 02 August 2001
• Docket Number: No. 99-3565,99-3565
• Citation: 265 F.3d 407
• Parties: (6th Cir. 2001) Earl Ralph Jacobs, Petitioner-Appellant, v. Gary Mohr, Warden, Respondent-Appellee. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 407

265 F.3d 407 (6th Cir. 2001)

Earl Ralph Jacobs, Petitioner-Appellant, v. Gary Mohr, Warden, Respondent-Appellee.

No. 99-3565

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Submitted: August 2, 2001

Decided and Filed: September 10, 2001

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 98-00008, Edmund A. Sargus, Jr., District Judge. [Copyrighted Material Omitted] Thelma Thomas Price, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee.

Earl Ralph Jacobs, Chillicothe, Ohio, pro se.

Before: CLAY and GILMAN, Circuit Judges; WISEMAN, District Judge.^*

OPINION

CLAY, Circuit Judge.

Petitioner, Earl Ralph Jacobs, appeals from the district court's judgment dismissing Petitioner's application for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, as barred by procedural default. For the reasons set forth below, we AFFIRM.

BACKGROUND

Procedural History

On January 2, 1998, Petitioner filed the instant application for a writ of habeas corpus in the United States District Court for the Southern District of Ohio. Petitioner's application sought to challenge his 1962 Ohio conviction for first-degree murder in connection with Petitioner's fatal shooting of a police officer, for which Petitioner was sentenced to life imprisonment. As grounds for relief, Petitioner asserted that the confession upon which his conviction is allegedly based, "is neither handwritten[,] signed, or notarized in violation of Criminal rules of evidence." In a written opinion and order, the district court denied Petitioner's habeas corpus petition as procedurally defaulted. Applying the four-part test of Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), the court noted that Petitioner had raised the issue in his petition for post-conviction relief, and had appealed the trial court's unfavorable decision to the Ohio Court of Appeals, which dismissed the appeal as untimely. However, the court found that Petitioner failed to appeal the court of appeals' dismissal to the Ohio Supreme Court. Thus the district court concluded that Petitioner had defaulted his claim. Because Petitioner had failed to allege any cause for his default, and because Petitioner did not argue that he was actually innocent nor did the record support a finding of actual innocence, the district court dismissed Petitioner's habeas claim.

Subsequently, the district court denied Petitioner's request for a certificate of appealability. This Court also denied Petitioner's request for a certificate of appealability; however, in an order dated March 14, 2000, upon consideration of Petitioner's request for rehearing, this Court granted a certificate of appealability with respect to the following issue: "whether Jacob's [sic] due process claim regarding the admission of his confession at trial has been procedurally defaulted by virtue of appellate counsel's failure to file an appeal of his behalf." As will be explained infra, consideration of this issue requires us to first examine whether Petitioner procedurally defaulted this ineffective assistance of counsel claim.

Facts

On August 10, 1962, a grand jury sitting in Logan County, Ohio, indicted Petitioner for first-degree murder in connection with the shooting death of a police officer, West Liberty Marshall Sherman Ricketts. Attorney J. Ewing Smith was appointed as counsel for Petitioner on August 16, 1962. Petitioner entered a plea of not guilty; a jury trial was held from October 23, 1962 through November 1, 1962, at which time the jury returned a verdict of guilty. Thereafter, on November 8, 1962, Petitioner was sentenced to life imprisonment at the Ohio State Penitentiary in Columbus, Ohio.

No timely appeal as of right was filed by Petitioner following his November 1962 conviction; however, on June7, 1978, proceeding pro se, Petitioner filed a motion for leave to appeal to the Ohio Third District Court of Appeals. In his memorandum in support of his motion, Petitioner raised nine allegations of error. The two allegations of error raised by Petitioner relevant for purposes of this appeal are as follows:

(6)The prosecution introduced a purported "confession" of this Appellant, purportedly acquired hours after the arrest of Appellant and early on in the time of his containment in the Rutan Hospital. The Appellant, in the first instance, was unconscious for many days and under the continuing influence of very heavy sedatives, specifically to include narcotics, administered as the result of the necessity of extremely painful surgery, and any confession thereupon obtained was totally invalid. And in the second instance, the alleged confession was not a knowing, willing and intelligent statement inasmuch as it was obtained without any showing whatsoever that it was highly incriminatory, and as is facially shown by the "confession" purportedly signed by this Appellant. Thereby, the Appellant's rights to fundamental fairness, to due process of law, against self-incrimination and to a fair trial before an impartial jury, guaranteed by Amendments V and VI, United States Constitution, and applicable in such cases made and provided to the State, Amendment XIV, were denied.

(9)The trial court erred in failing to advise that the Appellant had an absolute right to undertake a timely appeal to seek review of the judgment of conviction rendered and sentence thereupon imposed and simultaneously, to have the assistance of counsel in perfecting, briefing and arguing the said appeal, it [being] a first appeal as of right, and guaranteed pursuant to the Ohio Constitution, Article IV, § 3(b)(1)(f), §3(B)(2), ORC 2953.02-2953.05, and the procedural rules of court then existing and since superseded by Rule 32(A)(2); Rule 44(A), Ohio Rules of Criminal Procedure; Rule 4(B), Ohio Rules of Appellate Procedure.

(J.A. at 122-23.) Petitioner added the following in reference to his ninth allegation of error.

While it is clear that there is no Federal Constitutional right to appeal per se, it is equally clear that if such rights are established as a matter of state law, constitutional, statutory, decisional or procedural, the denial thereof, be it by chance or by design, triggers the protection afforded a putative defendant in a state court, and further, one who as is conclusively shown herein is indigent, counsel-less, unlearned in the law and confined to custody, by the Due Process and Equal Protection Clauses, Amendments V, XIV, United States Constitution. Where, as here, those rights existed as a matter of state law, the trial judge was under an obligation to advise of their existence; this he did not do.

(J.A. at 124.)

The State of Ohio submitted a brief in opposition to Petitioner's motion for leave to appeal, wherein the State argued as follows regarding the two relevant allegations of error:

SIXTH ASSIGNMENT OF ERROR

IT WAS NOT ERROR FOR THE TRIAL COURT TO ADMIT INTO EVIDENCE A WRITTEN STATEMENT OF THE CONFESSION OF THE DEFENDANT AND SIGNED BY THE DEFENDANT WHEN THERE WAS NO COERCION INVOLVED WHATSOEVER; THE DEFENDANT WAS NOT DRUGGED OR DRUNK, BUT WAS FULLY CONSCIOUS AND AWARE OF WHAT HE WAS THEN DOING; AND THE PROSECUTOR WARNED THE DEFENDANT THAT HE NEED SIGN NOTHING BUT THAT IF HE DID IT COULD AND WOULD BE USED AGAINST THE DEFENDANT.

NINTH ASSIGNMENT OF ERROR

IT WAS NOT ERROR FOR THE TRIAL COURT TO FAIL TO INSTRUCT THE CONVICTED DEFENDANT OF HIS ABSOLUTE RIGHT TO APPEAL AND TO HAVE COUNSEL APPOINTED FOR HIM TO AID HIS APPEAL IF FOUND INDIGENT WHEN NEITHER THE U.S. CONSTITUTION NOR THE APPLICABLE CASE LAW REQUIRED THE TRIAL JUDGE TO GIVE SUCH INSTRUCTIONS.

(J.A. at 170-71.) The Ohio Court of Appeals thereafter denied Petitioner's motion for leave to appeal as "not to be well taken for the reasons set forth in [the] brief of the State of Ohio." (J.A. at 215.) Petitioner filed an application for reconsideration of the court's decision, as well as a motion to certify because of a conflict with other districts within the court of appeals. The Ohio Third Appellate District denied the application for reconsideration and overruled the motion to certify without opinion. On August 29, 1978, Petitioner filed a "notice of appeal" with the Supreme Court of Ohio challenging the Ohio Court of Appeals decision denying him leave to appeal. The Supreme Court of Ohio sua spontedismissed Petitioner's appeal for want of prosecution.

On July 31, 1992, Petitioner filed a Petition for Post-Conviction Relief with the Logan County Court, wherein Petitioner claimed that

he was not afforded a fair trial, in accordance with his rights as guaranteed by the Fifth, Sixth and Fourteenth Amendment[s] to the Constitution of the United States of America and the Ohio Constitution in that he was not afforded effective assistance of counsel, in violation of Ohio Rules of Criminal Procedure, Rule # 5(A)(1)(2) and Rule #44; which requires [sic] Assignment of Counsel; and the defendant further stipulates that he was not advised of his "Miranda" rights required by law, and "Escobedo" rule.

Further, defendant was never advised of his "Right to Appeal" and to obtain his trial transcript by some means.

(J.A. at 255.) In his memorandum in support of his petition, Petitioner argued at length regarding his allegations of error, arguing at one point:

The defendant will further submit that his attorney appointed (J. Ewing-Smith) for trial, See Journal Entry 4476,and all available court records fail to show that this attorney protected his Right of Direct Appeal by filing a notice of appeal, as required by law, and in that sense was denied the effective assistance of counsel? The records fail to show any "Notice of Appeal" was filed, therefore, cannot be disputed. The landmark case which must be examined to determine whether or not the petitioner was afforded effective assistance of counsel is, Beasley v. United States, 491 F.2d 687 (1974); wherein the United States...