Riggins v. McMackin

• Decision Date: 10 June 1991
• Docket Number: 90-3407,Nos. 90-3375,s. 90-3375
• Citation: 935 F.2d 790
• Parties: Anthony RIGGINS, Petitioner-Appellee, Cross Appellant, v. Norris W. McMACKIN, Respondent-Appellant, Cross Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 790

935 F.2d 790

Anthony RIGGINS, Petitioner-Appellee, Cross Appellant, v. Norris W. McMACKIN, Respondent-Appellant, Cross Appellee.

Nos. 90-3375, 90-3407.

United States Court of Appeals, Sixth Circuit.

Argued March 22, 1991.

Decided June 10, 1991.

Paul Mancino, Jr. (argued), Cleveland, Ohio, for petitioner-appellee, cross-appellant.

Jack W. Decker (argued), Office of Atty. Gen. of Ohio, Columbus, Ohio, for respondent-appellant, cross-appellee.

Before KEITH and MARTIN, Circuit Judges, and CONTIE, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

Anthony Riggins filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 challenging the guilty plea he entered on April 7, 1983, to the charge of carrying a concealed weapon in the Court of Common Pleas for Cuyahoga County, Ohio. In his petition, Riggins raised three grounds for appeal: (1) he was denied due process when he was sentenced for a felony offense when the indictment charged only a misdemeanor; (2) his guilty plea was not knowingly and voluntarily entered because he was improperly informed of the effect the plea would have on his parole status; and (3) his guilty plea was not knowingly and voluntarily made because he was never informed of the maximum possible sentence. The district court found that Riggins' first claim had not been fairly presented to the state courts as a federal constitutional claim and was therefore waived. The court found the second claim to be lacking merit because parole implications are indirect consequences of a plea of which a defendant need not be advised. The district court, however, found Riggins' third argument to have merit. It found the record failed to disclose that the trial judge had informed Riggins of the maximum possible sentence and thus the plea was not entered into in a voluntary and intelligent manner.

The superintendent of the Marion Correctional Institution timely appealed and Riggins cross-appealed the adverse portions of the district court's decision rejecting his first two claims. While we affirm the district court's decision rejecting Riggins' first two claims, we remand for a hearing to determine whether Riggins' guilty plea comported with the requirements of due process.

This saga began on July 31, 1980, when Anthony Riggins entered a plea of guilty to one count of aggravated robbery in the Court of Common Pleas for Franklin County, Ohio. He was sentenced to a term of imprisonment of not less than four years nor more than twenty-five years. On January 15, 1982, he was released on parole. Less than eight months later, on August 18, 1982, while still on parole, Riggins was indicted on a charge of knowingly carrying or concealing a deadly weapon under Ohio Rev.Code Sec. 2923.12. On April 7, 1983, Riggins appeared before the Court of Common Pleas for Cuyahoga County, Ohio, at which time he entered the guilty plea at issue in this case. He was immediately sentenced to a term of one to ten years imprisonment. He served fifteen months of his sentence and was paroled on July 10, 1984.

Under Ohio law, a plea of guilty to the concealed weapon charge created a conclusive presumption that Riggins had violated his parole for the earlier aggravated robbery offense. See Ohio Adm.Code. Sec. 5120:1-1-19(A)(1). Furthermore, Ohio Rev.Code Sec. 2929.41(B)(3) mandates that a parolee serve any new sentence imposed for a felony consecutively with the prior sentence. Accordingly, Riggins' parole should have been revoked for the aggravated robbery offense and he should have been required to serve consecutive sentences for the earlier aggravated robbery offense and the concealed weapon charge. However, Riggins' parole was not revoked at this time. The record does not indicate whether this was due to inadvertence or a decision on the part of the parole board not to revoke Riggins' parole.

On December 3, 1985, Riggins was found guilty following a jury trial in the Court of Common Pleas for Cuyahoga County, Ohio, for yet another offense--having a concealed weapon while under a disability with firearm and prior aggravated felony specifications in violation of Ohio Rev.Code Secs. 2923.12(D) and 2929.71. Riggins was sentenced to a term of three to five years imprisonment to be served consecutive with and following a term of three years actual incarceration for the firearm charge. After his conviction for this offense, Riggins' parole was revoked for his two prior offenses. Consequently, he is now serving an aggregate sentence of eight to forty years which is being served consecutively with and following his current sentence of three years actual incarceration.

When Riggins' parole for his guilty plea of April 7, 1983, for carrying a concealed weapon was revoked, he sought and obtained leave to file a delayed appeal of that conviction in the Ohio Court of Appeals. Riggins raised three issues there:

(1) The trial court committed prejudicial error in sentencing the defendant to a term of imprisonment for a felony offense for the reason that the indictment returned against the defendant only alleged a misdemeanor offense.

(2) The trial court committed prejudicial error in accepting a plea of guilty when the constitutional right of a defendant was violated in that this was not a knowing and voluntary plea because the defendant was not properly advised as to the consequences of his parole status and the effect of a new conviction.

(3) The defendant was denied due process of law when the court accepted a plea of guilty without determining that the defendant understood what the maximum penalty was for the offense to which he was entering a plea of guilty.

The Ohio Court of Appeals affirmed Riggins' conviction on March 19, 1987. In addressing Riggins' third claim, the Ohio Court of Appeals found that "the trial court substantially complied with the procedure set forth in Crim.R. 11 by insuring the defendant was aware of his constitutional rights and the guilty plea is, therefore, valid. State v. Stewart, (1977), 51 Ohio St.2d 86 [5 O.O.3d 52, 364 N.E.2d 1163]." The Ohio Court of Appeals noted that "[i]n Stewart, the [Ohio Supreme Court] stated 'there must be some showing of prejudicial effect before a guilty plea may be vacated.' " The court found that Riggins had failed to show any prejudicial effect from failing to be informed of the maximum possible sentence by the trial court and that the trial court had adequately informed him of his constitutional rights. The Ohio Supreme Court declined review. Thereafter, Riggins filed this petition for writ of habeas corpus.

We have little difficulty in affirming the district court's decision with respect to the first two issues raised by Riggins in his habeas petition. Riggins' first issue, that he was denied due process when he was sentenced on the basis of the felony provisions of Ohio Rev.Code Sec. 2923.12, rather than the misdemeanor provisions of the statute, was not presented as a federal constitutional claim to the Ohio courts. Although Riggins did raise the misdemeanor/felony issue during the course of his state court appeal, he did so purely in the context of state law arguing, in effect, that under Ohio law the terms "loaded gun" and "firearm" are not synonymous. There is simply nothing in the record to indicate that Riggins ever apprised the Ohio state courts of his federal constitutional claim. See Franklin v. Rose, 811 F.2d 322, 326 (6th Cir.1987).

A state prisoner generally must first give the state courts a fair opportunity to remedy any constitutional infirmity in the conviction before seeking relief in a federal court. See Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989); see also Shoultes v. Laidlaw, 886 F.2d 114, 117 (6th Cir.1989). Ordinarily, when a state prisoner raises a constitutional claim for the first time in his petition for habeas corpus the petition is dismissed to permit the state court to review the claim. However, Riggins is now precluded from raising his due process claim in Ohio state court because he had the opportunity to raise the issue during the course of his direct appeal and failed to do so. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Thus, because Ohio law establishes a procedural bar to Riggins' due process claim, this court will not consider that claim unless Riggins establishes adequate cause to excuse his failure to raise the claim during his state court appeal and actual prejudice to him from the fact that the state courts did not address the merits of his due process claim. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986).

Riggins alleges neither cause nor prejudice in failing to present his due process claim in the Ohio courts. Rather, Riggins argues that he should be excused from demonstrating cause and prejudice because he is "actually innocent." See Murray, 477 U.S. at 495-496, 106 S.Ct. at 2649. However, Riggins does not argue that he is innocent of the underlying offense of carrying a concealed weapon but rather that he was sentenced improperly. Accordingly, the district court was correct in not addressing this issue.

With respect to the second issue raised by Riggins, the district court concluded that "[s]ince it is clear from the record that the court apprised the petitioner as to the possibility that his parole status would be adversely affected by a new criminal conviction, this Court finds that petitioner entered his guilty plea fully aware of the parole consequences." The record indicates that the following exchange took place between the court, Riggins and his counsel at the sentencing on April 7, 1983.

THE COURT: Have you discussed the possible consequences of a plea with Mr. Schwartz [Riggins' counsel] as far as your parole status is concerned?

COUNSEL: Your Honor, I have gone over with Mr. Riggins his rights constitutionally in regard to this plea and this plea is voluntarily and intelligently made...