Jones v. Jago

• Decision Date: 22 February 1983
• Docket Number: No. 81-3269,81-3269
• Citation: 701 F.2d 45
• Parties: Thomas Lester JONES, Petitioner-Appellant, v. Arnold JAGO, Sup't., Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 45

701 F.2d 45

Thomas Lester JONES, Petitioner-Appellant, v. Arnold JAGO, Sup't., Respondent-Appellee.

No. 81-3269.

United States Court of Appeals Sixth Circuit.

Argued Nov. 1, 1982.

Decided Feb. 22, 1983.

Thomas Lester Jones, pro se.

Donald N. Krosin, Federal Public Defender, Cleveland, Ohio, for petitioner-appellant.

Dain N. Deveny, Connie Harris, Asst. Attys. Gen. of Ohio, Columbus, Ohio, for respondent-appellee.

Before JONES and CONTIE, Circuit Judges, and PECK, Senior Circuit Judge.

CONTIE, Circuit Judge.

Thomas Jones appeals a district court order denying relief on a habeas corpus petition brought pursuant to 28 U.S.C. Sec. 2254. Petitioner was convicted of murder in Ohio under procedural circumstances identical to those considered by the Supreme Court in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

The indictment in this case charged Jones with aggravated murder. He claimed self-defense. Traditionally, Ohio law required defendants in murder cases to prove the defense of self-defense by a preponderance of the evidence. On January 1, 1974, however, a new statute became effective:

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.

Though this statute possibly indicated a shift in the law regarding the burden of proving affirmative defenses as of January 1, 1974, Jones did not specifically object ¹ to the following jury instruction during trial in July of that year:

The burden of proving the defense of self-defense is upon the defendant. He must establish such a defense by a preponderance of the evidence.

Subsequent to Jones' trial, the Ohio Supreme Court ruled that the new statute had changed the burden of proof as of its effective date. While a defendant retained the burden of coming forward with sufficient evidence to raise an affirmative defense question, the state bore the burden of proving guilt beyond a reasonable doubt even to the extent of disproving the asserted defense. State v. Robinson, 47 Ohio St.2d 103, 351 N.E.2d 88 (1976). Thus the court had improperly instructed the jury in Jones' case. The Ohio Supreme Court later held, however, that defendants who had not objected to jury instructions which improperly shifted the burden of proving affirmative defenses could not reap the benefits of Robinson. State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977).

After exhausting state remedies, Jones brought this action in the district court. While petitioner claims that he was denied effective assistance of counsel when his attorney failed to object to the jury instruction in question, the petition can also be construed to allege that the jury instruction itself violated due process. This court will consider both claims. Jones also preserved for appeal the questions of whether the jury reached a unanimous verdict and whether Jones was given notice in the indictment of the lesser included offense of murder for which he was convicted. For the reasons stated below, we affirm the judgment of the district court.

Jones violated Ohio's contemporaneous objection rule as set forth in Humphries when he failed to object to the jury instruction at issue. Thus, the due process challenge to the jury instruction clearly is barred by the Supreme Court's holding in Engle v. Isaac. ² Even if this court were to reach the merits, we would hold that the instruction in question did not violate due process. Carter v. Jago, 637 F.2d 449 (6th Cir.1980), cert. denied, --- U.S. ----, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982).

Nor was Jones denied effective assistance of counsel under the test established in Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974). In essence, petitioner contends that competent counsel would have realized that the new statute possibly changed the burden of proving affirmative defenses and would therefore have objected to the jury instruction concerning the burden of proving self-defense. Counsel's failure to do so has resulted in a procedural default which has precluded Jones' due process challenge to the instruction. This failure to protect petitioner's rights allegedly constitutes ineffective assistance of counsel.

This argument is unconvincing. Were it correct, the Supreme Court's holding in Engle v. Isaac would in effect be circumvented because every case like it would become an ineffective assistance of counsel case. We cannot agree that the Supreme Court intended such a result. The Court's opinion in Engle v. Isaac supports this conclusion. Though the Court held that the failure to object to the burden of proof instruction did not establish "cause" under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) because attorneys in numerous other cases had raised similar objections, the Court also indicated that not every astute or competent counsel would have recognized Isaac's constitutional claim. Engle v. Isaac, 102 S.Ct. at 1574. Hence the attorney's failure to object in this case is insufficient to establish ineffective assistance of counsel.

Petitioner raises two other claims, the first of which is that he was not convicted by a unanimous jury decision. While the State of Ohio has not presented an original certified copy of the verdict form, it has tendered a copy of the certified copy which bears twelve juror signatures. Since Jones has not challenged the authenticity of this copy, we reject his claim.

Secondly, Jones claims that he did not receive proper notice of the murder charge for which he was convicted. This claim is frivolous. The indictment charged aggravated murder, which Ohio defines as "purposely, and with prior calculation and design, caus[ing] the death of another." Ohio Rev.Code Anno. Sec. 2903.01(A) (Page) (1982). Since Ohio defines "murder" as "purposely caus[ing] the death of another," Ohio Rev.Code Anno. Sec. 2903.02(A) (Page) (1892), the indictment gave petitioner sufficient notice of the charge for which he was convicted.

The judgment of the district court is AFFIRMED.

NATHANIEL R. JONES, Circuit Judge, dissenting.

The majority concludes that Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), bars consideration of petitioner's claims because of the procedural default which occurred at trial when his counsel failed to object to the jury instruction with specificity. Because I construe the procedural posture of this case to be controlled by County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), rather than Engle v. Isaac, supra, I respectfully dissent.

During the trial proceedings below, petitioner's counsel failed to comply with Ohio's contemporaneous objection rule as set forth in State v. Humphries, 51 Ohio St.2d 95, 364 N.E.2d 1354 (1977), when he made a general objection to the jury charge rather than objecting with specificity as required by Ohio Rule of Criminal Procedure 30. Ordinarily, this procedural defect would preclude federal habeas corpus review. However, when the state appellate court does not construe the procedural error as barring review, then a federal court may entertain the merits of the claim.

In County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Supreme Court held that a federal district court had jurisdiction to entertain constitutional claims raised in a habeas corpus petition when the state appellate court did not construe a state procedural default as its basis for denying review of the claims. In that case, respondents appealed their convictions challenging the unconstitutionality of a New York Statute to the state appellate division which rejected their claim without explicitly articulating its reasons. The court reasoned that since the prosecution never argued that a state procedural default had occurred, it could conclude that the appellate court did not rely on such a procedural ground in rejecting respondent's constitutional claim. Id. at 152, 99 S.Ct. at 2222.

The court further reasoned that the purpose of the exception to federal habeas corpus jurisdiction is to accord appropriate respect to the sovereignty of the states and their procedural rules by the federal system. Upon concluding that the appellate court rejected respondent's claim on its merits, the court held that the federal courts could address the claim because "a federal court implies no disrespect for the state by entertaining [a] claim" which the state has addressed on the merits. Id. at 154, 99 S.Ct. at 2223. Accord Martinez v. Harris, 675 F.2d 51 (2d Cir.1982).

This Circuit has applied the holding of Ulster County Court to review a habeas corpus petition which challenged jury instructions as a denial of due process in Burton v. Bergman, 649 F.2d 428 (6th Cir.1981), vacated and remanded on other grounds, --- U.S. ----, 102 S.Ct. 2026, 72 L.Ed.2d 478 (1982). ¹ The court reasoned that the failure to object to the instructions at trial did not bar habeas relief reasoning that such a procedural default precludes federal review only "if the state court relies on the procedural default in affirming the conviction." 649 F.2d at 430 n. 1.

In the instant case, petitioner sought post-conviction relief pursuant to Ohio Rev.Code Sec. 2953.21 before the 7th District Court of Appeals of Ohio. There petitioner alleged due process deprivation by the trial court's jury instruction which placed the burden of proving self-defense by a preponderance of the evidence upon the defendant. The court of appeals concluded that the failure of counsel to specifically object at trial constituted a waiver of any claims related thereto. Ohio v. Jones, No. 1279 (Ohio Ct.App.1978). Nonetheless, the appellate court addressed the merits of petitioner's claim and concluded that the jury instruction did not amount to a denial of a...