Rhoden v. Morgan
| Decision Date | 10 September 1996 |
| Docket Number | No. 95-5224,95-5224 |
| Citation | 97 F.3d 1452 |
| Parties | NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Lawtis Donald RHODEN, Petitioner-Appellant, v. Jack MORGAN, Warden; State of Tennessee; Charles W. Burson, Attorney General, State of Tennessee, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Before: MILBURN and BOGGS, Circuit Judges; and BORMAN, District Judge. *
Appellant was convicted on October 23, 1985 by a jury in Davidson County, Tennessee, of two crimes: (1) rape, and (2) use of a minor for obscene purposes (photography). He was sentenced to 20 years imprisonment on each count of conviction, to be served consecutively. After the Tennessee state courts affirmed his convictions, Appellant filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Middle District of Tennessee. The district court affirmed the rape conviction, but reversed his second count of conviction (obscene photography of a minor) on the ground that the statute was unconstitutional as applied. 1 Appellant appeals from the District Court's order denying his request for relief from the rape conviction. The state does not appeal from the District Court's reversal of the second count of conviction.
After Appellant's conviction on the two aforementioned counts in Davidson County (Nashville), Tennessee, his Motion for New Trial was denied on June 27, 1986. His convictions and sentences were affirmed on direct appeal by the Tennessee Court of Criminal Appeals on April 16, 1987; State v. Rhoden, 739 S.W.2d 6 (Tenn.Crim.App.1987). 2 The Tennessee Supreme Court denied review on October 5, 1987.
Appellant filed a state post-conviction petition on February 16, 1988, which was denied by the trial court on March 17, 1987. The Tennessee Court of Criminal Appeals affirmed the trial court's decision on February 21, 1991; Rhoden v. State, 816 S.W.2d 56 (Tenn.Crim.App.1991). The Tennessee Supreme Court denied Appellant's application for permission to appeal on July 1, 1991.
Appellant filed a petition for a Federal writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 17, 1991. On August 19, 1991, Appellant filed a second, "amended" petition. On January 13, 1992, the Federal District Court consolidated these petitions. 3
The District Court referred Appellants claims to a Magistrate Judge. On April 26, 1993, the Magistrate Judge's Report and Recommendation (R & R) rejected all of Appellant's claims except for juror misconduct, which was dismissed without prejudice for failure to exhaust state remedies. Appellant timely filed objections to the R & R.
On January 19, 1994, the District Court rejected in part the Magistrate Judge's R & R, and ordered: (1) an evidentiary hearing on the juror misconduct claim; (2) oral argument on petitioner's challenge to (a) the constitutionality of the obscene photograph of a minor statute as applied to Appellant, and (b) the sufficiency of the evidence on the obscene photograph count of conviction. Rhoden v. Morgan, 846 F.Supp. 598 (M.D.Tenn.1994). The District Court reserved decision on the ineffective assistance of counsel issue, and on the petition for writ of habeas corpus.
On August 24, 1994, the District Court granted the writ in part, holding unconstitutional Appellant's conviction on count two--use of a minor for obscene purposes (photography). 4
On September 16, 1994, Appellant filed with the District Court a Motion to Alter or Amend. On December 13, 1994, the District Court entered an order denying relief on the ground that "the motion is not well-taken."
On December 16, 1994, Appellant filed a timely notice of appeal, and application for certificate of probable cause. On January 12, 1995, the District Court granted the certificate of probable cause to appeal.
Appellant's Brief raised three issues for review:
At Appellant's voir dire in the state court trial in 1985, a female juror was asked if she had ever been the victim of a crime. She responded "no, sir." Appellant claims that this juror deliberately concealed the fact that she had been raped in 1982, that at the time of this jury service she was outraged by her rape, and accordingly, that she was not an impartial and unbiased juror. This Court rejects this claim.
Appellant's claims of prejudice were not supported by juror Susan Palinosky's testimony at the Federal District Court's hearing on May 9, 1994. The juror testified:
1. that she had experienced a sexual encounter with a male acquaintance in 1982.
2. that at the time of this 1982 encounter, and subsequently, through the time of the instant 1985 trial, she was not certain that she had been the victim of a sexual assault: "I didn't have any knowledge of that particular aspect of [date or acquaintance] rape at that time." Joint App. at 440.
3. that it was not until two years after the instant trial, in 1987, when she began reading college student newspaper stories about date rape and acquaintance rape, that she understood that what had happened to her in 1982 was in fact a rape. Id. at 447.
4. that at the time this trial began, she thought she could be impartial. Id. at 442.
5. that during the course of this trial, while sitting as a juror, "I do not consciously remember having any feelings of bias." Id. at 453.
6. that she did not realize until 1987 that what had happened to her in 1982 was a crime. Id. at 449.
7. that to the best of her knowledge, at the time of the voir dire question, she did not lie when she said that she was not the victim of a crime; that this answer was her honest opinion and not untrue at the moment when she answered the question.
8. that the gravamen of this issue came "forth through my therapy" after her service as a juror.
9. that she was not conscious of this issue in 1985 when the trial took place. Id. at 467.
The District Court concluded that, on the basis of the juror's testimony, she "did not deliberately conceal the fact that she had been the victim of a crime." Rhoden, 863 F.Supp. at 616. This Court finds that the relevant facts do not support Appellant's claim that Susan Palinosky was not a fair and impartial juror at the 1985 trial. The juror did not fail to disclose material information during the voir dire; she answered the questions truthfully at that time. There is no evidence of bias by this juror at the 1985 trial. There has been no diminution of the right guaranteed by the Supreme Court's decision in Irvin v. Dowd, 366 U.S. 717, 721-23 (1961), "A criminal defendant has a constitutional right to a fair trial before an impartial trier of fact." Id.
The Supreme Court further held in Patton v. Yount, 467 U.S. 1025, 1036 (1984), that the question of whether jurors have opinions that disqualify them is not a mixed question of law and fact, but instead "one of historical fact: did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality have been believed." In the instant case, the historical facts as developed at the District Court's evidentiary hearing established that at the time of the trial the juror acted in a fair and impartial manner.
A District Court's factual findings are to be upheld unless they are clearly erroneous. In the instant case, the District Judge's findings are supported by her testimony at the District Court hearing.
There is no evidence that this juror failed to disclose material information during the 1985 voir dire that supports Appellant's claim under United States v. Patrick, 965 F.2d 1390, 1399 (6th Cir.), cert. denied, 506 U.S. 940 (1992), that he was deprived of his constitutional right to a fair trial by an impartial jury.
Appellant's brief listed, in a footnote, seven matters that he alleges had been raised before the District Court evidencing ineffective assistance of trial counsel (at 27, note 6):
(1) Failed to attack the constitutionality of Count II prior to trial;
(2) Failed to move pretrial and at the conclusion of the State's case-in-chief for a dismissal of Count II as a matter of law; 5
(3) Failed to object to the introduction of the uncharged rape and other bad acts against Appellant;
(4) Failed to object to the trial court's ruling that Appellant's "consent" defense could not be raised in voir dire or opening statements;
(5) Failed to object to the State's alleged misconduct and improper closing statements;
(6) Failed to prepare adequately for trial and to develop available defenses; and
(7) Failed to preserve the trial court record for appellate review.
This opinion will deal with these matters seriatim.
(1) Appellant asserts as erroneous the district court finding that as to Count 2, Appellant...
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...outweighed the aggravating evidence, where trial judge properly instructed the jury before punishment deliberations . Rhoden v. Morgan , 97 F.3d 1452, 1996 WL 515348, *7 (6th Cir. 1996) (per curiam). In prison inmate’s claim for ineffective assistance of counsel during rape trial, the court......