Lyons v. Ohio Adult Parole Authority

• Decision Date: 22 January 1997
• Docket Number: No. 96-3489,96-3489
• Citation: 105 F.3d 1063
• Parties: Larry LYONS, Petitioner-Appellant, v. OHIO ADULT PAROLE AUTHORITY, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1063

105 F.3d 1063

65 USLW 2551

Larry LYONS, Petitioner-Appellant, v. OHIO ADULT PAROLE AUTHORITY, et al., Respondents-Appellees.

No. 96-3489.

United States Court of Appeals Sixth Circuit.

Argued Oct. 16, 1996.

Decided Jan. 22, 1997.

Larry Lyons (briefed), Lebanon, OH, pro se.

Steven S. Nolder (argued and briefed), Kimberly M. Skaggs, Federal Public Defender's Office, Columbus, OH, for Larry Lyons.

Stephanie Lynn Harris, Asst. Atty. General (argued and briefed), Office of the Attorney General of Ohio, Columbus, OH, Lillian B. Earl, Office of the Attorney General of Ohio, Cleveland, OH, for Ohio Adult Parole Authority, Margarette T. Ghee, Anthony J. Brigano.

Before: JONES, RYAN, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which JONES, J., joined. RYAN, J. (pp. 1076-78), delivered a separate concurring opinion.

MOORE, Circuit Judge.

Petitioner-Appellant Larry Lyons appeals the denial of his habeas corpus petition. This appeal requires that we, for the first time, interpret several provisions of the recent statutory amendments to the federal habeas corpus framework. As explained below, we hold that district courts have the power to issue certificates of appealability under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (codified, inter alia, at 28 U.S.C. § 2244 et. seq.) [hereinafter "AEDPA" or "the Act"]. Because the district court's certificate of probable cause failed to comply with the requirements for certificates of appealability under the Act, we remand the case to the district court to issue a new certificate of appealability.

I. FACTS AND PROCEDURAL HISTORY

In 1984 Lyons was convicted in Ohio state court of aggravated robbery and sentenced to ten-to-twenty-five years imprisonment. Ten years later, in May 1994, Lyons was paroled. His freedom was short-lived: in June he was arrested for attempted petty theft. He quickly posted bond but, when he failed to appear in court to answer the charge, the state declared him a parole-violator-at-large. On August 3, Lyons was again arrested, and charged with theft and obstructing official business. This time, he was not released on bond; he has been incarcerated ever since. Instead, he was notified that he was in danger of having his parole revoked because of the theft charges and for failing to return to his halfway house.

Lyons pleaded guilty to all three offenses--theft, petty theft, and obstruction--and did not challenge them on direct appeal. He received thirty days in jail for one offense and suspended sentences for the other two. Meanwhile, the Ohio Adult Parole Authority was moving to revoke Lyons's parole. In August Lyons had signed a form waiving his right to an "on-site" revocation hearing; the form stated that this hearing would occur within sixty days or, if Lyons was "unavailable," within a reasonable time. Lyons became "available" to the Parole Authority when he was sentenced for the misdemeanors ¹ on October 6, an event which had little immediate effect in his life: he remained in the county jail until November 4, when he was transferred to the state prison in Orient, Ohio.

Soon after arriving at the prison in Orient, Lyons began challenging the revocation of his parole. On November 8 he filed an administrative motion asking that the revocation be set aside. The next month, he filed an action in mandamus, or in the alternative for a writ of habeas corpus, in the Ohio Supreme Court, alleging that the state's failure to grant him a final parole revocation hearing within sixty days of his arrest violated a "protected liberty interest." Dist.Ct. Order at 3. Lyons attempted to amend his original pleading, but failed to get the requisite permission to do so. The Ohio Supreme Court dismissed the action without opinion on January 18, 1995.

On January 5, 1995, Lyons was finally given a formal parole hearing. The parole board revoked his probation based purely on the three misdemeanor convictions but dismissed the parole violations based on uncharged conduct. His case was continued until 1999. Lyons then asked a state appeals court for permission to take a delayed appeal of his misdemeanor convictions, asking to withdraw his guilty pleas. This request and a subsequent motion for reconsideration were denied. Dist.Ct. Order at 4.

In May 1995, Lyons filed this petition for habeas corpus. The initial and supplemental petitions raised six claims for relief. ² The district court found three of these to be procedurally barred, because Lyons had failed to raise them in his state habeas petition. Id. at 7. The court found the other three claims meritless and denied the writ on March 25, 1996. Id. at 12. On April 21, 1996, Lyons delivered his notice of appeal and request for a certificate of probable cause ³ to a prison official to file with the court. The district court issued a certificate of probable cause for the appeal on May 1, nearly a week after President Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996 on April 24. ⁴

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction over this habeas petition by a state prisoner under 28 U.S.C. § 2254(a). Lyons is currently imprisoned because his parole was revoked. The essence of his claim is that the misdemeanor convictions which led to this revocation are constitutionally invalid and that his revocation hearing violated his Due Process rights. To the extent these legal claims have merit, Lyons is "in custody in violation of the Constitution ... of the United States." 28 U.S.C. § 2254(a). See Ex Parte Hull, 312 U.S. 546, 550, 61 S.Ct. 640, 642, 85 L.Ed. 1034 (1941) (where petitioner's "parole was revoked and he was ordered to serve out his first sentence only because of the second conviction," he could challenge that second conviction in federal habeas petition); Peyton v. Rowe, 391 U.S. 54, 67, 88 S.Ct. 1549, 1556, 20 L.Ed.2d 426 (1968) ("[T]his Court has held that a prisoner whose first-sentence parole was revoked upon a second conviction could challenge the second conviction in a habeas corpus proceeding though he would not be released if he prevailed.") (citing Hull ); Brewer v. Dahlberg, 942 F.2d 328, 334 (6th Cir.1991). The district court determined that Lyons had exhausted his state-law remedies, and the state does not question this determination. See 28 U.S.C. § 2254(b) (exhaustion requirement).

This court has jurisdiction over the district court's final order under 28 U.S.C. §§ 1291, 2253. All of the novel issues presented by the Act are purely legal, and are thus reviewed de novo. United States v. Spinelle, 41 F.3d 1056, 1057 (6th Cir.1994).

III. ANALYSIS

The timing of Lyons's appeal makes this case more complicated than it would otherwise be. In order to prevent frivolous appeals, Congress has long required that state prisoners whose habeas corpus petitions are denied in federal district court obtain a certificate of probable cause before appealing that denial. See Barefoot v. Estelle, 463 U.S. 880, 892-93, 103 S.Ct. 3383, 3394-95, 77 L.Ed.2d 1090 (1983). When Lyons applied for a certificate of probable cause, it was well settled that a district court could grant such a certificate and that if it did issue one a prisoner could then appeal every claim raised in his petition to this court. See Houston v. Mintzes, 722 F.2d 290, 293 (6th Cir.1983) ("the grant of the certificate of probable cause by the district court, in spite of its purported limiting provision [in this case], brings before us the final judgment for review in all respects"). After the passage of the AEDPA, however, neither of these propositions is necessarily true: the Act requires that certificates of appealability "indicate which specific issue or issues" are found to be appealable, 28 U.S.C. § 2253(c)(3), and there is a question whether the Act divests district courts of the authority to issue any such certificates. Compare 28 U.S.C. § 2253(c)(1) (no appeal allowed "[u]nless a circuit justice or judge issues a certificate of appealability") with FED.R.APP.P. 22(b) (appeal "may not proceed unless a district or a circuit judge issues a certificate of appealability"). Before we can address the petition's merits, then, we must decide whether to apply these provisions of the AEDPA to this case.

The Supreme Court has provided the framework for this retroactivity analysis:

When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, ... it does not govern absent clear congressional intent favoring such a result.

Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994). Thus, we must first look to the statute's text for an expression that the AEDPA should, or should not, apply to pending cases. Absent an expression by Congress of the statute's proper reach, we must determine what change, if any, the new legislation makes to the controlling law. We must then decide whether applying the new law to the pending case would have an impermissible retroactive effect by impairing a party's rights when he acted or imposing new liabilities or duties with respect to past conduct. See id. at 270, 114 S.Ct. at 1499 ("The conclusion that a particular rule operates 'retroactively' comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection...