Rust v. Zent, 93-3729

• Decision Date: 22 February 1994
• Docket Number: No. 93-3729,93-3729
• Parties: James Yates RUST, Jr., a/k/a James Yeats Rust, Jr., Petitioner-Appellant, v. Rex A. ZENT, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 155

17 F.3d 155

James Yates RUST, Jr., a/k/a James Yeats Rust, Jr., Petitioner-Appellant, v. Rex A. ZENT, Warden, Respondent-Appellee.

No. 93-3729.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 19, 1994.

Decided Feb. 22, 1994.

Daniel E. Brinkman, Dayton, OH (argued and briefed), for petitioner-appellant.

Osias D. Zimmer, Atty. General's Office, Columbus, OH (argued and briefed), for respondent-appellee.

Before: NELSON and BOGGS, Circuit Judges; and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Petitioner-appellant James Yates Rust, Jr., appeals the district court's June 2, 1993 Judgment dismissing his petition for habeas corpus relief as barred by procedural default. We affirm the district court for the following reasons.

I.

On March 2, 1983, an unidentified man armed with a handgun robbed the Big Bear Supermarket in Springfield, Ohio, of approximately $1200 while his accomplice, petitioner-appellant James Yates Rust, Jr., served as the "lookout" in the parking lot. The unidentified man and Rust ran from the parking lot as the police arrived following the robbery. Rust fell to the ground where he was apprehended clutching a loaded sawed-off shotgun and two 20-gauge shells. Rust refused to identify his accomplice.

On May 26, 1983, the Clark County Court of Common Pleas jury found Rust guilty of aggravated robbery (with a firearm specification) and possession of dangerous ordnance. The trial court sentenced Rust to indeterminate terms of seven to twenty-five years for aggravated robbery and two to five years for possession of dangerous ordnance, plus three years actual incarceration for the firearm specification, all to be served consecutively.

On December 2, 1983, Rust, through appointed counsel, filed a delayed direct appeal with the state Court of Appeals, alleging as his sole assignment of error the three-year sentence he received for the firearm specification because he contends that he "did not actually possess the firearm upon which the enhanced sentence was based." On March 21, 1984, the Court of Appeals rejected Rust's assignment of error and affirmed Rust's sentence. Rust did not appeal to the Ohio Supreme Court.

More than six years later, Rust moved for leave to file a delayed direct appeal in the state Court of Appeals citing six assignments of error that were not raised in his first appeal:

1. The court erred when placing appellant twice in jeopardy [by repeatedly] punishing him for the same offense....

2. [T]he trial judge ... abused his discretion by ... not instructing the jury on his [termination and duress] affirmative defenses....

3. The prosecutor's remarks during trial and closing argument deprived defendant-appellant of due process and his right to a fair trial.

4. [T]he trial court abused its discretion by condoning a trial permeated with inadmissible evidence and compulsory self-incrimination [by] permitting the state to improperly impeach [Rust's] credibility through evidence of a prior conviction and by eliciting evidence of his post-arrest silence.

5. The court abused its discretion [by] permitting an indictment bearing the expression "John Doe, AKA William Bennett, AKA James Yates Rust, Jr.," to go to the jury as competent evidence....

6. [T]he circumstantial evidence relied on by the state to prove an essential element of the crime was insufficient as a matter of law.

Respondent Zent's Return of Writ at 3-4. Though the appellant conceded that these six assignments of error were not raised in his first appeal, Rust blamed this on ineffective assistance of appellate counsel.

On January 29, 1991, the Court of Appeals dismissed Rust's appeal on res judicata grounds. Rust thereafter filed a notice of appeal with the Ohio Supreme Court citing seven propositions of law:

1. [A]ppellate counsel ineffectively assisted appellant by refusing to raise pertinent, non-frivolous meritorious appellate claims ... thereby causing [Rust] to procedurally default against raising those claims ... in a second appeal....

2. The court erred when placing appellant twice in jeopardy by [repeatedly] punishing him for the same offense....

3. [T]he trial judge ... abused his discretion by ... not instructing the jury on his ... [termination and duress] affirmative defenses....

4. The prosecutor's remarks during trial and closing argument deprived defendant-appellant of due process and his right to a fair trial.

5. [T]he trial court abused its discretion by condoning a trial permeated with inadmissible evidence and compulsory self-incrimination [by] permitting the state to improperly impeach [Rust's] credibility through evidence of a prior conviction and by eliciting evidence of his post-arrest silence.

6. The court abused its discretion [by] permitting an indictment bearing the expression "John Doe, AKA William Bennett, AKA James Yates Rust, Jr.," to go to the jury as competent evidence....

7. [T]he circumstantial evidence relied upon by the state to prove an essential element of the crime was insufficient as a matter of law and was reconcilable and consistent with [Rust's] theory of innocence by a reasonable doubt.

Id. at 4-5. The Ohio Supreme Court dismissed Rust's appeal on May 1, 1991.

On June 25, 1991, Rust filed his petition for habeas corpus relief in district court, pursuant to 28 U.S.C. Sec. 2254, citing these same seven assignments of error. The respondent-appellee, Warden Rex A. Zent, responded to Rust's petition on October 15, 1991. On October 30, 1991, the magistrate recommended that Rust's petition be dismissed for failure to exhaust available state court remedies. On December 11, 1991, the district court adopted the magistrate's Report and Recommendations. On December 13, 1991, Rust filed untimely objections to the magistrate's Report and Recommendations which the district court treated as a motion for reconsideration. On December 16, 1991, the magistrate issued a Supplemental Report and Recommendations in which he recommended denying Rust's motion for reconsideration and reiterated his prior recommendation that Rust's petition be dismissed, without prejudice, for failure to exhaust available state court remedies.

On January 9, 1992, Rust objected to the magistrate's Supplemental Report and Recommendations and filed a motion to amend his petition by excluding the ineffective assistance of counsel claim. On January 16, 1992, the magistrate recommended that Rust's petition be dismissed as mixed (i.e., containing both exhausted and unexhausted claims). On February 10, 1992, Rust objected to the magistrate's findings. On February 14, 1992, the magistrate recommended that Rust's motion to dismiss be granted without prejudice after concluding that "Rust must exhaust [his] post-conviction remed[ies] for his claim of ineffective assistance of counsel." Third Supplemental Report and Recommendations at 2.

On March 9, 1992, the magistrate restored Rust's petition to the active docket for consideration of the merits in light of the Ohio Supreme Court's ruling in State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), which held that claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings, and that such claims may be raised in an application for reconsideration in the court of appeals or in a direct appeal to the Ohio Supreme Court.

The magistrate thereafter recommended that Rust's habeas corpus petition be dismissed "as all of the claims in it are barred by procedural default." Magistrate's October 23, 1992 Report and Recommendations at 8. On December 21, 1992, Rust objected to the magistrate's recommendations. On December 23, 1992, the magistrate filed a Supplemental Report reiterating his belief that Rust's petition should be dismissed because the appellant defaulted on his procedural claims. On May 28, 1993, the district court adopted the magistrate's findings and dismissed Rust's habeas corpus petition:

[T]he Petitioner has defaulted on all of his procedural claims in that he failed to appeal, in any manner, to the Ohio Supreme Court on direct appeal or [to] the Court of Appeals for reconsideration of its decision on his direct appeal. As of the time his conviction was affirmed in the Court of Appeals, he was well aware (pursuant to his own admissions and his correspondence to the appellate court) that his appellate lawyer had failed to argue the points he now wishes this Court to consider. Rather than moving the appellate court for reconsideration ... or appealing the appellate court's affirmance of his conviction to the Supreme Court, he did nothing until he filed a [delayed motion] for leave to appeal on December 14, 1990. Moreover, [Rust's] attempt to claim the benefit of the ... "cause and prejudice exception" to procedural default, pursuant to Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), is unavailing, given the fact that he has failed to demonstrate even a colorable claim of probable innocence. In the absence of a showing of probable innocence, this Court is under no obligation, pursuant to Murray, to determine whether a constitutional violation has occurred.

District Court's May 28, 1993 Decision and Entry Adopting Report and Recommendations of United States Magistrate Judge and Supplemental Report and Recommendations of United States Magistrate Judge in Their Entirety at 1-2.

Rust filed his timely notice of appeal on June 23, 1993.

II. Exhaustion

Though a state prisoner may challenge the constitutionality of his state court conviction by seeking habeas corpus relief pursuant to 28 U.S.C. Sec. 2254, the state prisoner must first exhaust his available state court remedies by presenting his claims to the state courts to provide the courts an opportunity to remedy any constitutional infirmities in his conviction. It is the petitioner's burden to prove exhaustion. Darr v. Burford, 339 U.S. 200, 218-19, 70 S.Ct. 587, 597-98, 94 L.Ed. 761 (1950).

"The exhaustion...