Keener v. Ridenour

• Citation: 594 F.2d 581
• Decision Date: 28 March 1979
• Docket Number: No. 78-3322,78-3322
• Parties: Samuel KEENER, Petitioner-Appellant, v. L. G. RIDENOUR, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 581

594 F.2d 581

Samuel KEENER, Petitioner-Appellant, v. L. G. RIDENOUR, Warden, Respondent-Appellee.

No. 78-3322.

United States Court of Appeals Sixth Circuit.

Argued Dec. 11, 1978.

Decided March 28, 1979.

Alexander H. Martin, Jr., Shaker Heights, Ohio, for petitioner-appellant.

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

Before WEICK, Circuit Judge, PHILLIPS, Senior Circuit Judge, and TAYLOR, District Judge. ^*

PHILLIPS, Senior Circuit Judge.

Appellant Samuel Keener appeals from the dismissal of his petition for a writ of habeas corpus for failure to exhaust available State remedies. His appeal presents three questions for determination: (1) whether an Ohio State prisoner has a right to a delayed appeal to raise issues not presented on his prior direct appeal to the appellate courts of Ohio; (2) whether a prisoner who previously has filed and prosecuted a direct appeal to the appellate courts of Ohio must undertake a delayed appeal to exhaust State remedies under 28 U.S.C. § 2254 with respect to federal constitutional questions not raised on a previous appeal; and (3) whether a prisoner has a remedy under the Ohio Post-Conviction Act, Ohio Rev.Code §§ 2953.21, Et seq., when he asserts that the convicting court never acquired jurisdiction over him due to a defect in bind-over proceedings in juvenile court, resulting in a void conviction.

For the reasons stated herein, we answer the first two questions in the negative, concluding that a delayed appeal is available under Ohio law only where there has been no prior direct appeal. We answer the third question in the affirmative. We affirm in part and reverse in part the decision of the district court.

I

Appellant Keener was indicted by the April 1971 term of the Hamilton County, Ohio, Grand Jury for the crime of first degree murder, in violation of former Ohio Rev.Code § 2901.01. Keener waived his right to a jury and was found guilty by a three-judge court, which sentenced Keener to life imprisonment with a recommendation of mercy.

Keener appealed his conviction to the Court of Appeals for the First Appellate District, Hamilton County, Ohio, raising three assignments of error not relevant to this appeal. In its decision of June 26, 1972, the Court of Appeals overruled Keener's assigned errors and affirmed his conviction.

Thereafter, Keener appealed to the Ohio Supreme Court raising the same assignments of error which had been presented in the Court of Appeals. On October 13, 1972, the Supreme Court of Ohio dismissed the appeal, holding that Keener had failed to raise a substantial constitutional question. Keener did not file post-conviction action in the State courts challenging his conviction.

On October 25, 1977, more than five years after the Ohio Supreme Court had dismissed Keener's direct appeal, Keener petitioned the United States District Court for the Southern District of Ohio for a writ of habeas corpus. Keener presented two grounds for relief in his petition before the district court, neither of which had been raised on direct appeal. Keener contended that he was twice placed in jeopardy when he was bound over from the Juvenile Division of the Court of Common Pleas to be tried as an adult on a charge of first degree murder. Keener further argued that the bind-over hearing, under Ohio Rev.Code § 2151.26 as it existed in 1970, was defective in transferring personal jurisdiction to the Common Pleas Court, resulting in a void conviction.

The district court dismissed Keener's petition on the ground that he had failed to exhaust available State remedies. The district court concluded that Keener could have raised the previously stated claims in Ohio courts by delayed appeal, Ohio Rev.Code § 2953.05 and Ohio R.App.P. 5. This appeal followed.

II

A State prisoner normally must exhaust available State judicial remedies before a federal court will entertain his petition for a writ of habeas corpus. Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886). The doctrine of exhaustion of State remedies, codified in the federal habeas corpus statute, 28 U.S.C. § 2254(b) and (c), reflects a policy of comity between State and federal courts, "an accommodation of our federal system designed to give the State an initial 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Wilwording v. Swenson, 404 U.S. 249, 250, 92 S.Ct. 407, 409, 30 L.Ed.2d 418 (1971); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

The exhaustion of available State remedies requires more than simply seeking appellate review of a criminal conviction on some tenable ground. Thus, where a State petitioner asserts a claim cognizable under federal habeas corpus that was not presented to the State appellate courts, but which could be heard in some form of State post-conviction review proceeding, that remedy must be pursued before federal habeas corpus will lie. Picard, 404 U.S. at 227 n. 3, 275-76, 92 S.Ct. 509; Pitchess v. Davis, 421 U.S. 482, 487-88, 95 S.Ct. 1748, 44 L.Ed.2d 317 (1975); Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944). However, it is not necessary to present the same claim for relief in both State appellate and post-conviction proceedings. Where several alternative State remedies are available to a defendant, exhaustion of one of those alternatives on a particular issue is all that is necessary. Section 2254 does not require repetitious applications to State courts for relief. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953).

Section 2254 does not bar habeas corpus relief because of a prisoner's "failure to exhaust state remedies no longer available at the time habeas is sought," Fay, 372 U.S. at 434, 83 S.Ct. at 846, but requires only an exhaustion of those "remedies still open to the habeas applicant at the time he files his application in federal court." Fay, 372 U.S. at 435, 83 S.Ct. at 847. Therefore, if a State prisoner fails to appeal his conviction and the time for appeal has expired, relief may be had in federal court even though the claim was never presented to a State court, unless some other post-conviction remedy is available. The same rule applies where an appellate or post-conviction remedy is unavailable or is ineffective to protect the prisoner's rights. Wilwording, 404 U.S. at 250, 92 S.Ct. 407; Fay, 372 U.S. at 434, 83 S.Ct. 822; Mario v. Ragen, 332 U.S. 561, 68 S.Ct. 240, 92 L.Ed. 170 (1947). See also, Developments in the Law Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1103 (1970).

The rules permitting federal habeas relief are not absolute. If the State can show that a prisoner "deliberately bypassed" State remedies or is precluded from raising his claim through, "inexcusable procedural default" of a State rule or provision, federal habeas corpus relief is precluded. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976); Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Fay, 372 U.S. at 438-39, 83 S.Ct. 822.

Appellate review in Ohio courts is governed, in part, by Ohio Rev.Code §§ 2953 Et seq., and the Ohio Rules of Appellate Procedure. Ohio's delayed appeal statute, Ohio Rev.Code § 2953.05, states in pertinent part:

Appeal under section 2953.04 of the Revised Code, may be filed as a matter of right within thirty days after judgment and sentence or from an order overruling a motion for a new trial or an order placing the defendant on probation and suspending the imposition of sentence in felony cases, whichever is the latter. Appeals from judgments or final orders as above defined in magistrate courts shall be taken within ten days of such judgment or final order. After the expiration of the thirty day period or ten day period as above provided, such appeal may be taken only by leave of the court to which the appeal is taken. (Emphasis added.)

This section provides that an appeal as a matter of right (direct appeal) must be filed within the specified time periods. An appeal filed beyond the appropriate time period may be taken only by leave of court (delayed appeal).

Ohio R.App.P. 5(A) states in pertinent part:

(A) Motion and notice of appeal. After the expiration of the thirty day period provided by Rule 4(B) for the filing of a notice of appeal as of right in criminal cases, an appeal may be taken only by leave of the court to which the appeal is taken. In such event, a motion for leave to appeal shall be filed with the court of appeals setting forth the reasons for the failure of the appellant To perfect an appeal as of right and setting forth the errors which the movant claims to have occurred in the proceedings of the trial court. (Emphasis added.)

Like § 2953.05, Rule 5(A) provides that where there has not been a timely appeal as a matter of right, appeal may be had only by leave of court for good cause shown. However, neither § 2953.05 nor Rule 5 expressly states whether the remedy of delayed appeal exists in addition to direct appeal, or whether it is exclusively in lieu of direct appeal.

Appellant Keener contends that under Ohio law there can be no delayed appeal where there has been a prior direct appeal. Keener further contends that by taking a direct appeal from his criminal conviction for first degree murder to the Ohio Supreme Court, he has exhausted available State remedies.

Appellee argues that a State prisoner may take a delayed appeal to raise issues not presented on direct appeal. Appellee further asserts that federal habeas corpus is not immediately available to an Ohio prisoner where he presents claims in federal court that were not raised on direct appeal in the State courts of Ohio because the prisoner has failed to exhaust available State remedies as required by 28...