Mitchell v. Gray, 73-1538.
| Decision Date | 19 March 1974 |
| Docket Number | No. 73-1538.,73-1538. |
| Citation | 494 F.2d 684 |
| Parties | Edward J. MITCHELL, Petitioner-Appellee, v. Frank H. GRAY, Superintendent, Chillicothe Correctional Institution, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellant; William J. Brown, Atty. Gen., Columbus, Ohio, on brief.
John J. Callahan (Court appointed), Openlander, Callahan & Connelly, Toledo, Ohio, for petitioner-appellee.
Before WEICK, EDWARDS and LIVELY, Circuit Judges.
The state has appealed from an order of the District Court granting a writ of habeas corpus to petitioner who had been convicted by a jury in the state court of murder in the first degree, in 1963.
After the remand, petitioner filed a notice of appeal on December 27, 1971, in the Common Pleas Court of Lucas County, Ohio, to appeal from his 1963 conviction. The State Court of Appeals complied with our directions and on January 4, 1972 it appointed counsel for petitioner and provided him, at State expense, with a transcript of evidence taken at the 1963 trial.
The State Court of Appeals then considered petitioner's appeal as a direct appeal, as required by our decision, and it found that there was ample evidence to sustain the jury's finding of guilty beyond a reasonable doubt, and that the jury's verdict was sustained by sufficient evidence.
The State Appellate Court further held that if the rule in the subsequent 1965 decision of the Supreme Court in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), was to be applied to petitioner's 1963 conviction, it was error for the prosecuting attorney to comment on, and for the trial judge to instruct on, the failure of petitioner to testify.
The State Appellate Court recognized our decision in the prior appeal, in which opinion we approved findings of fact of the District Court that in December, 1963, petitioner had delivered a letter to a prison official now deceased, who allegedly tore up the letter, and that this constituted a notice of appeal. This appeal was not a matter of record in the Courts of Ohio prior to Griffin. As a matter of fact it did not become a matter of record in the Ohio courts until January 4, 1972, when petitioner filed his notice of appeal in the Common Pleas Court of Lucas County, Ohio.
The State Appellate Court interpreted the language of the Supreme Court "still pending on direct review" in Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L. Ed.2d 453 (1966), "in the usual meaning of this phrase and applied only to cases on review as a matter of record in the court." The Court noted that petitioner, for many years after his conviction, had not taken any of the steps prescribed by Ohio law, to perfect his alleged appeal. As a matter of fact, in 1968 he filed a motion for a delayed appeal in the same State Court of Appeals but did not disclose to that Court, nor to his appointed counsel, the alleged incident in 1963 of his delivery to the prison official of a so-called letter of appeal. Had he made such disclosure at that time, the State Court of Appeals would have had opportunity to determine the facts.
In our judgment petitioner was not denied any constitutional right when Ohio...
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