Leroy v. Marshall

• Decision Date: 21 March 1985
• Docket Number: No. 82-3534,82-3534
• Citation: 757 F.2d 94
• Parties: Willis LEROY, Petitioner-Appellant, v. R.C. MARSHALL, Supt., Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 94

757 F.2d 94

Willis LEROY, Petitioner-Appellant, v. R.C. MARSHALL, Supt., Respondent-Appellee.

No. 82-3534.

United States Court of Appeals Sixth Circuit.

Argued Nov. 14, 1983.

Decided March 21, 1985.

Willis Leroy, pro se.

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

Christine Manuelian (argued), Karen Kolmacic (on the brief), Asst. Attys. Gen., Columbus, Ohio, for respondent-appellee.

Before ENGEL and WELLFORD, Circuit Judges, and WEICK, Senior Circuit Judge.

ENGEL, Circuit Judge.

The issue in this habeas corpus appeal is whether the failure of a defendant's state trial counsel to include a given constitutional issue among those issues raised in his direct appeal to the state's appellate courts evokes the "deliberate by-pass" rule of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) or the "cause and prejudice" rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). ¹ We hold that the "cause and prejudice" rule applies to this procedural default, and affirm the judgment of the district court upon this alternative basis as urged by the state.

On September 26, 1975, Leroy was arrested in connection with the kidnapping and murder of Lester Emoff, a Dayton area businessman. Leroy was tried by jury in the Court of Common Pleas of Hamilton County, Ohio, and convicted of aggravated murder (with the specification of kidnapping), kidnapping, and extortion. On February 23, 1977, Leroy was sentenced to life imprisonment for aggravated murder, seven to twenty-five years for kidnapping, and three to ten years for extortion, all sentences to be served consecutively.

Leroy appealed his conviction to the Ohio Court of Appeals for Hamilton County, presenting four assignments of error. Three of his assignments of error, none of which is raised here, concerned the prosecution's alleged violation of Ohio's speedy trial statute, its alleged use of peremptory challenges to systematically exclude blacks from the jury, and its comment to the jury during closing argument regarding an exhibit that had been excluded from evidence. Leroy's remaining assignment of error challenged the trial court's instructions to the jury on the issue of aiding and abetting, and is raised in the habeas petition presently before us. On November 29, 1978, the Court of Appeals for Hamilton County affirmed the judgment of the common pleas court. On April 12, 1979, the Ohio Supreme Court denied Leroy's motion for leave to appeal, which had raised only the speedy trial issue.

On December 13, 1979, Leroy filed his first habeas petition in United States District Court for the Southern District of Ohio. In this petition, Leroy set forth the same four grounds he had presented to the Court of Appeals for Hamilton County. In denying the writ, United States District Judge Carl B. Rubin adopted the recommendation of the Magistrate. While noting that three of the grounds had not been raised in Leroy's direct appeal to the Ohio Supreme Court, the Magistrate's "Report and Recommendation" expressly declined to address the issue of whether Leroy waived his right to assert the claims in his habeas petition. Instead, the Magistrate rejected each of Leroy's claims on the merits. On October 10, 1980, the Sixth Circuit denied Leroy's motion for a certificate of probable cause.

On October 8, 1981, Leroy filed his second federal habeas petition, which is the subject of the present appeal. The petition raised four grounds for relief:

1. The conviction resulted in a violation of the Double Jeopardy Clause;

2. There was a denial of due process when the jury was coerced with an Allen charge;

3. The jury instructions regarding aiding and abetting erroneously shifted the burden of proof to the petitioner and allowed for impermissible presumptions to be made by the jury; and

4. The evidence was insufficient to support the conviction.

United States District Judge Arthur Spiegel concluded that the petition should not be dismissed as a delayed or successive petition pursuant to Rule 9 of the rules governing 28 U.S.C. Sec. 2254 cases, and that Leroy had exhausted all of his available state remedies. The district judge then held that it did not follow from Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), that the double jeopardy claim had been waived, because Leroy's counsel "did raise a double jeopardy objection prior to the commencement of the trial, and, after jury instructions were given, did state that he wanted to preserve earlier objections to the charge made in the record." Reaching the merits of the claim, Judge Spiegel concluded that the Ohio legislature "clearly allowed" the imposition of consecutive sentences for aggravated murder and the underlying felony. His opinion then quickly disposed of the other three grounds without any discussion of whether they had been waived by reason of procedural default.

Leroy contends, in his appeal, that his grounds for habeas relief were with merit. The state argues that the grounds were without merit, as found by the trial court. In addition, the state strenuously asserts that review of those issues by the district court was foreclosed by the failure of Leroy to present the issues to the Ohio courts on the direct appeal of his conviction.

I.

The district judge held that Leroy's habeas petition should not be dismissed as a delayed or successive petition pursuant to Rule 9 of the rules governing 28 U.S.C. Sec. 2254 cases, which provides (b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constitutes an abuse of the writ.

The state correctly asserts that the petition is a second and thus successive petition, and also that the claims asserted either were or could have been presented in Leroy's first petition. The state thus claims that "Rule 9 ... bars consideration of the instant petition ..." Dismissal pursuant to Rule 9 is not mandatory, but lies within the discretion of the trial judge. McKeldin v. Rose, 631 F.2d 458, 459 (6th Cir.1980), cert. denied, 450 U.S. 969, 101 S.Ct. 1488, 67 L.Ed.2d 619 (1981). Since the petitioner's incarceration is for life, we are unwilling to hold that the trial judge abused his discretion in entertaining Leroy's second petition.

The district judge held that Leroy had exhausted all of the available state remedies as required by 28 U.S.C. Sec. 2254. We agree that Leroy has no further opportunity to seek redress in Ohio's courts. Since Leroy perfected a direct appeal to the Ohio Court of Appeals and sought but was denied leave to appeal to the Supreme Court of Ohio, he is foreclosed from availing himself of that state's collateral attack remedies as to both those issues which were in fact presented on direct appeal and as to those which could have been presented but were not. See Keener v. Ridenour, 594 F.2d 581 (6th Cir.1979); Collins v. Perini, 594 F.2d 592 (6th Cir.1979); and Engle v. Isaac, 456 U.S. 107, 125 n. 28, 102 S.Ct. 1558, 1570 n. 28, 71 L.Ed.2d 783 (1982). Hence, although three of the issues presented in Leroy's petition were never raised before the Ohio appellate court, there is, nonetheless, no exhaustion problem.

II.

Leroy raised four grounds for relief in his second petition for habeas corpus relief. Leroy failed to raise three of his claims in his direct appeal to the Ohio Court of Appeals. The fourth claim, Leroy failed to include in his motion for leave to appeal to the Ohio Supreme Court. The state strenuously asserts that the failure to present these issues on direct appeal bars the district court from reaching the merits unless Leroy shows "cause and prejudice" which he has failed to do. We agree. Leroy must be held to have waived his right to challenge his convictions upon the four grounds asserted in the district court because he failed to present those issues to the Ohio appellate courts, and because he failed to show any "cause and prejudice" which would provide a legal justification for the federal court to look beyond the procedural bar imposed by Ohio law.

We are presented with the problem of determining whether Wainwright v. Sykes applies to the procedural default here involved. If Wainwright applies, the burden of showing adequate "cause and prejudice" is upon the habeas petitioner. ² Fornash v. Marshall, 686 F.2d 1179, 1186-87 (6th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983).

The Supreme Court has long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forego the exercise of its habeas corpus power when there is a procedural default. Francis v. Henderson, 425 U.S. 536, 538-39, 96 S.Ct. 1708, 1709-10, 48 L.Ed.2d 149 (1976). In Fay v. Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837 (1963), the Court held that a "federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts." The Supreme Court later narrowed the "deliberate by-pass" holding of Fay v. Noia in Wainwright v. Sykes While not explicitly overruling Fay v. Noia, Wainwright apparently left open only the narrow question whether the "cause and prejudice" standard would apply to the Fay factual situation of a failure to make any direct appeal. See 433 U.S. at 88 n. 12, 97 S.Ct. at 2507 n. 12. In Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Court again applied the "cause and prejudice" standard to the failure to make a contemporaneous objection at trial. The Court, however, stated its...