Sellers v. Morris, 86-3851

• Decision Date: 26 February 1988
• Docket Number: No. 86-3851,86-3851
• Citation: 840 F.2d 352
• Parties: Stacey SELLERS, Petitioner-Appellant, v. Terry L. MORRIS, Superintendent of the Southern Ohio Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 352

840 F.2d 352

Stacey SELLERS, Petitioner-Appellant, v. Terry L. MORRIS, Superintendent of the Southern Ohio Correctional Facility, Respondent-Appellee.

No. 86-3851.

United States Court of Appeals Sixth Circuit.

Argued Oct. 19, 1987.

Decided Feb. 26, 1988.

Stacey Sellers, pro se.

Richard A. Shinaberry, James A. Brebberman (argued), Toledo, Ohio, for petitioner-appellant.

James A. Carr, Asst. Atty. Gen., John Gideon, Asst. Atty. Gen. (argued), Columbus, Ohio, for respondent-appellee.

Before LIVELY, Chief Judge, WELLFORD, Circuit Judge, and BROWN, Senior Circuit Judge.

BAILEY BROWN, Senior Circuit Judge.

This is an appeal from the judgment of the United States District Court for the Northern District of Ohio, Eastern Division, denying Petitioner Stacey Sellers's petition for a writ of habeas corpus. Sellers's petition alleges that an Ohio juvenile court proceeding held preliminary to binding him over for trial as an adult was actually a delinquency adjudication, and, therefore, the State's subsequent prosecution of him as an adult offender for the same crimes that caused the juvenile court to adjudicate him a delinquent violated his fifth-fourteenth amendment right to be free from double jeopardy. On appeal to this court, Sellers contends that the district court erred in applying the 28 U.S.C. Sec. 2254(d) presumption of correctness ¹ to the Ohio Court of Appeals' finding that the juvenile court proceeding was a probable cause determination and not a delinquency adjudication without first determining whether his case fits within a statutory exception to the application of that presumption. This exception provides that the presumption of correctness afforded a state court factual finding in a habeas corpus action shall not apply when the district court "concludes that such factual determination is not fairly supported by the record." 28 U.S.C. Sec. 2254(d)(8). Had the district court analyzed Sellers's claim under this exception and concluded that the Ohio Court of Appeals' characterization of the juvenile court proceeding as a probable cause hearing rather than a delinquency adjudication was "not fairly supported by the record," the court would have been compelled to conclude that the State's prosecution of him as an adult violated his right to be free from double jeopardy. Breed v. Jones, 421 U.S. 519 (1975). We conclude that the district court erred in failing to make inquiry as to whether this exception is applicable, and, consequently, we remand the case to the district court to engage in the appropriate analysis of Sellers's claim.

I.

On February 23, 1978, the disputed hearing was held before the Juvenile Division of the Trumbull County Court of Common Pleas. The judgment entry of that hearing states as follows:

The Court having heard all the evidence, finds ... that said juvenile is a delinquent child, officially, as charged in the complaint under Section 2151.02 Ohio Revised Code, in that he unlawfully violated his parole; unlawfully was involved in the aggravated robbery, rape and felonious assault which occurred at the Masters Cleaners, 1795 Youngstown Rd. in Warren, Trumbull County, Ohio on February 17, 1978, on or about 2:40 p.m. Said child further unlawfully stole a wallet at Dr. Unalan's office in Warren, Trumbull County, Ohio, on February 17, 1978.

Child pleaded not true. IT IS ORDERED that said child be committed to the Ohio Youth Commission for evaluation to determine whether the child should or should not be treated as an adult. Placed on probation for preparation of Social History.

The italicized portion of the above-quoted judgment entry was typed in. The remainder is form language.

On March 30, 1978, a second hearing was held before the Trumbull County Juvenile Court. The judgment entry completed by the court after this hearing, using the same form, had all of the preprinted form language crossed out. In its place was a single, typed paragraph which stated, in sum, that probable cause existed to believe that Sellers had committed the crimes charged, and, since he was not amenable to rehabilitation, ordered him bound over for trial as an adult.

On May 19, 1978, Sellers appeared before the Trumbull County Court of Common Pleas and pled no contest to charges of felonious assault and aggravated robbery. He was sentenced to five to fifteen years on the assault charge and five to twenty-five years on the aggravated robbery charge, both sentences to run concurrently.

Sellers then exhausted his state appellate remedies, claiming, inter alia, that he was adjudicated a delinquent in the February 23rd juvenile court hearing, and, therefore, the State's subsequent prosecution of him as an adult violated his fifth-fourteenth amendment right to be free from double jeopardy. The Ohio Court of Appeals, addressing this issue, found that the February 23rd hearing was not an adjudication of delinquency, as Sellers claimed, but merely a probable cause hearing. Consequently, he was not placed in double jeopardy when he was subsequently prosecuted as an adult.

Sellers filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Ohio. Sellers, proceeding pro se, alleged that the Ohio Court of Appeals erred in finding that the February 23rd hearing was a probable cause hearing when the judgment entry clearly indicates that it was a delinquency adjudication.

Sellers's case was referred to a magistrate who recommended that the petition be denied since, as a factual finding, the Ohio Court of Appeals' determination that the February 23rd proceeding was a probable cause hearing is entitled to the presumption of correctness contained in 28 U.S.C. Sec. 2254(d). Sellers filed objections to the magistrate's recommendation, reiterating his position that the judgment entry of the disputed hearing showed clearly that it was a delinquency adjudication. Sellers's objections, however, did not specifically attack the application of the section 2254(d) presumption of correctness.

The district court adopted the magistrate's recommendation, denying Sellers's petition. The court held that the February 23rd judgment entry was "clearly ambiguous" and that, since "petitioner's objections [to the magistrate's report] do not challenge the presumption of correctness found in 28 U.S.C. Sec. 2254(d) as it relates to the opinion of the Ohio Court of Appeals," applying the presumption the petition must be denied. Thus, the district court did not consider the question of whether the state court's factual determination was, under Sec. 2254(d)(8), fairly supported by the record. Sellers contends that the district court should have considered this question and should have determined that the state court's finding was not fairly supported by the record.

II.

The Ohio attorney general raises a preliminary argument, which, if accepted, would effectively bar this court from reviewing the central issue of this habeas corpus proceeding. The attorney general's argument is that Sellers's plea of no contest to the charges of assault and aggravated robbery when tried as an adult constitutes a waiver of his right to assert that his conviction was obtained in violation of the fifth-fourteenth amendments' prohibition of double jeopardy. We reject this argument,...