Meeks v. Bergen, No. 83-1578

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Before KRUPANSKY and WELLFORD, Circuit Judges, and WEICK; KRUPANSKY; WEICK
• Citation: 749 F.2d 322
• Parties: Lorraine MEEKS, Petitioner-Appellee, v. Donna BERGEN, Respondent-Appellant.
• Docket Number: No. 83-1578
• Decision Date: 27 November 1984

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749 F.2d 322 Lorraine MEEKS, Petitioner-Appellee,
v.
Donna BERGEN, Respondent-Appellant. No. 83-1578. United States Court of Appeals,
Sixth Circuit. Argued June 6, 1984.
Decided Nov. 27, 1984.

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Frank J. Bernacki (argued), Detroit, Mich., for respondent-appellant.

Marjory B. Cohen (argued), Detroit, Mich., for petitioner-appellee.

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

KRUPANSKY, Circuit Judge.

The State of Michigan (the state) appealed the decision of the district court granting the petitioner-appellee, Lorraine Meeks' (petitioner) petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. The basis of the district court's judgment was a determination that petitioner had been denied effective assistance of counsel requiring habeas relief from her state court conviction. On appeal, the state initially alleged that the district court erred in reaching the merits of the petitioner's claim and additionally that the district court erred in determining that the petitioner was denied effective assistance of counsel.

The operative facts underlying the petitioner's state court conviction disclose that

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on October 26, 1977 petitioner doused her common law husband, James Satchel (Satchel), with gasoline and ignited him, which action caused Satchel's death four days later.

At trial, petitioner asserted self defense and alleged that, throughout their ten years of marriage, Satchel physically abused her on numerous occasions, and that at the time of the incident in question, and on the day before, Satchel had assaulted and threatened to kill her.

Petitioner testified that on October 26, 1977, Satchel called her and informed her that he intended "to finish the job that I didn't do yesterday", referring to the assault he had perpetrated upon her person the day before which had rendered her unconscious. Consequently, petitioner alleged that she went to the garage and obtained some gasoline which she intended to throw on Satchel to irritate his skin should he attempt another assault.

Later that day, Satchel returned home, assaulted petitioner, and threatened her with a knife. When Satchel left the bedroom for a moment, petitioner attempted to lock the door. Upon Satchel's return to the bedroom, petitioner, in an attempt to prevent Satchel from resuming his assault upon her, doused Satchel with the gasoline, lit a piece of paper and ignited him.

Petitioner was charged with first and second degree murder in the Recorder's Court for the City of Detroit for causing Satchel's death, and was convicted by a jury of second degree murder. The court sentenced Meeks to a term of ten to twenty years imprisonment.

On the direct appeal, the state appeals court rejected the petitioner's two allegations of error arising from evidentiary rulings and affirmed the conviction. In the application for leave to appeal presented to the Michigan Supreme Court, the petitioner joined for the first time the issue of ineffective assistance of counsel. Specifically, petitioner identified her trial counsel's failure to introduce expert testimony concerning the "battered wife syndrome" as evidence of constitutionally deficient representation. The Michigan Supreme Court, however, denied petitioner leave to appeal.

Thereafter, the petitioner filed a petition pursuant to 28 U.S.C. Sec. 2254 in federal district court for collateral relief. The district court determined that the petitioner had adequately exhausted her state court remedies and concluded that she had been denied adequate assistance of counsel at trial due to counsel's failure to introduce expert testimony of the battered wife syndrome.

There ensued the instant appeal.

On appeal, the state has initially alleged that the district court erred in reaching the merits of the petitioner's claims. The state has asserted that there was a failure to adequately exhaust state court remedies as to the ineffective assistance of counsel issue and accordingly the petition should have been dismissed without a reaching the merits. The state has relied on Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

The state's formulation of the issue as one of exhaustion is erroneous. As the Supreme Court noted in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed. 783 (1982), the question of whether a respondent is barred from litigating in a federal habeas corpus proceeding constitutional claims that were forfeited before the state court, is distinct from the issue of exhausted state remedies. Section 2254(b), in requiring habeas applicants to exhaust those remedies "available in the courts of the state", refers only to remedies still available at the time of the federal petition. Engel v. Isaac, supra, at 125 n. 28, 102 S.Ct. at 1570 n. 28. If a remedy had existed, then it must have been pursued before resort to the federal courts. If no remedy was available at the commencement of the federal action, but a remedy previously offered was not timely utilized, then a waiver analysis must be explored. Engle v. Isaac, supra; Fornash v. Marshall, 686 F.2d 1179 (6th Cir.1982); Keener v. Ridenour, 594 F.2d 581 (6th Cir.1979).

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Although the petitioner did not join the issue of ineffective assistance of counsel on direct appeal from her criminal conviction, she did articulate the issue in her application for a delayed appeal, which was denied by the Michigan Supreme Court. Consequently, the petitioner has adequately exhausted her state remedies as required by 28 U.S.C. Sec. 2254(b). ¹ The relevant inquiry must probe whether petitioner's failure to join the issue of ineffective assistance of counsel on direct appeal constituted a waiver of her right to raise the issue in a federal habeas corpus proceeding, absent a showing of cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

In Sykes, supra, the Supreme Court held that a defendant who failed to comply with state rules of procedure governing the timely presentation of federal constitutional claims forfeited the right to federal habeas corpus review of those claims absent a showing of "cause for noncompliance [with state procedure] and some showing of actual prejudice resulting from the alleged constitutional violation." Id. at 84, 97 S.Ct. at 2505.

Sykes, however, does not bar federal habeas corpus relief merely upon a showing that an adequate procedural ground was available to support a conviction; rather Sykes mandates that it must be demonstrated that the state court had relied upon the procedural default. Where a state appellate court did not rely on the procedural default, but reached the merits of a claim, the Sykes bar is inapplicable. The rationale of this rule requires that in instances where the state courts themselves decline to honor a procedural bar, the federal courts do no damage to precepts of comity and federalism by similarly addressing the merits of a claim. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Raper v. Mintzes, 706 F.2d 161 (6th Cir.1983). While the petitioner did not raise ineffective assistance of counsel as error on the direct appeal, she did charge the error in her application for a delayed appeal. In denying her application for leave to appeal the Michigan Supreme Court noted:

On order of the Court, the delayed application for leave to appeal is considered, and it is denied, because the Court is not persuaded that the questions presented should be reviewed by this Court. The motion for bond pending appeal is also considered, and it is denied.

In Hockenbury v. Sowders, 620 F.2d 111 (6th Cir.1980), this court held "that a federal court must determine whether the petitioner's failure to comply with the contemporaneous objection requirement was a substantial basis for the state court's denial of petitioner's claim". This court suggested in that case that federal review of habeas corpus claims is not precluded when, even in instances where the petitioner failed to object at trial, the state court did not rely upon "an adequate and independent state procedural ground" for dismissal. 620 F.2d at 115; see also, Jones v. Jago, 701 F.2d 45 (6th Cir.1983). The standard for determining if the state courts have waived their own procedural bar, however, has not been precisely defined.

A review of the state supreme court's order in the case at bar does not indicate if the court rejected plaintiff's claims on state procedural grounds or upon the merits. Where the basis of a state courts decision is unclear, this circuit in Raper, supra, set forth the standard to be applied in determining if the state court relied upon a procedural default. Specifically, the court noted:

Where the basis for the state court's decision is unclear, we believe that the federal habeas court must look to the arguments presented to the state court. See, Martinez v. Harris, 675 F.2d 51 (2d

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Cir.1982). In Martinez, the Second Circuit announced the following rules for ascertaining the basis of the state court's decision: (1) if the state prosecutor only argued the merits of the petitioner's claim before the state court and failed to raise the procedural default issue, the federal court may assume that the state court ruled only on the merits; (2) if the prosecutor relied solely on the procedural default, the federal court may assume that that was the only basis for the state court's decision; and (3) if the prosecutor argued in the alternative, the federal court may assume that the state court did not rely solely on the merits unless it says so. Id. at 54-55.

A review of the state filings in response to the petitioner's application for a delayed appeal reveals that the state argued in the alternative, asserting both the alleged procedural default and the merits of petitioner's assigned errors. ² Where, as here, the state has argued in the alternative, Raper...