Zuern v. Tate

• Decision Date: 07 August 1996
• Docket Number: No. C-1-92-771.,C-1-92-771.
• Citation: 938 F. Supp. 468
• Court: U.S. District Court — Southern District of West Virginia
• Parties: William G. ZUERN, Petitioner, v. Arthur TATE, Jr., Warden, Respondent.

938 F. Supp. 468

William G. ZUERN, Petitioner, v. Arthur TATE, Jr., Warden, Respondent.

No. C-1-92-771.

United States District Court, S.D. Ohio, Western Division.

August 7, 1996.

COPYRIGHT MATERIAL OMITTED

Kathleen Anne McGarry, Ohio Public Defender Commission, Columbus, OH, Lawrence Joseph Greger, Sharon Lynn Ovington, Greger and Ovington, Dayton, OH, for William G. Zuern.

Lee Fisher, Attorney General, Office of the Attorney General of Ohio, Columbus, OH, Charles L. Wille, Assistant Attorney General, Capital Crimes Section, Columbus, OH, Stephanie L. Harris, Ohio Attorney General, Capital Crimes Section, Columbus, OH, for Arthur W. Tate, Jr. and State of Ohio.

OPINION AND DECISION ON THE APPLICABILITY OF THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996 (PUB.L. NO 104-132, 110 STAT. 1214)

MERZ, United States Magistrate Judge.

In this habeas corpus case Petitioner William Zuern seeks relief from his conviction and sentence of death in the Hamilton County Common Pleas Court. On April 24, 1996, between sessions of his evidentiary hearing in this case, Congress adopted and the President signed the Antiterrorism and Effective Death Penalty Act of 1996 (the "Act") (Pub.L. No. 104-132, 110 Stat. 1214). The Court requested and the parties have filed memoranda on the interpretation and potential application of the Act to this case and that question is now ripe for decision.

The Act contains no effective date and is therefore effective on the date of enactment. Absent a clear direction by Congress to the contrary, a statute takes effect on the date of its enactment. Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 846, 112 L.Ed.2d 919, 930 (1991), citing Robertson v. Bradbury, 132 U.S. 491, 10 S.Ct. 158, 33 L.Ed. 405 (1889), and Arnold v. United States, 9 Cranch 104, 119-20, 3 L.Ed. 671 (1815); Qasguargis v. INS, 91 F.3d 788 (6th Cir.1996).

SPECIAL DEATH PENALTY PROVISIONS

Chapter 154 of Title 28, added by the Act, provides special procedures to be followed in capital habeas corpus cases if, but only if, the State from which the conviction comes has a capital case process which conforms to 28 U.S.C. § 2261, which provides in pertinent part:

(a) This chapter shall apply to cases arising under section 2254 brought by prisoners in State custody who are subject to a capital sentence. It shall apply only if the provisions of subsections (b) and (c) are satisfied.

(b) This chapter is applicable if a State establishes by statute, rule of its court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners whose capital convictions and sentences have been upheld on direct appeal for State law purposes. The rule of court or statute must provide standards of competency for the appointment of such counsel.

(c) Any mechanism for the appointment, compensation, and reimbursement of counsel as provided in subsection (b) must offer counsel to all State prisoners under capital sentence and must provide for the entry of an order by a court of record —

(1) appointing one or more counsels to represent the prisoner upon a finding that the prisoner is indigent and accepted the offer or is unable competently to decide whether to accept or reject the offer;

(2) finding, after a hearing if necessary, that the prisoner rejected the offer of counsel and made the decision with an understanding of its legal consequences; or

(3) denying the appointment of counsel upon a finding that the prisoner is not indigent.

(d) No counsel appointed pursuant to subsections (b) and (c) to represent a State prisoner under a capital sentence shall have previously represented the prisoner at trial or on direct appeal in the case for which appointment is made unless the prisoner and counsel expressly request continued representation.

§ 107(c) of the Act provides "Chapter 154 of title 28, United States Code (as added by subsection (a)) shall apply to cases pending on or after the date of enactment of this Act." Since this case was pending on the relevant date (April 24, 1996), Chapter 154 will apply to it if, but only if, the Ohio process for providing counsel to capital prisoners in post-conviction proceedings as of the date Mr. Zuern's conviction became final on direct appeal conformed to 28 U.S.C. § 2261.

Respondent argues strongly for applicability of Chapter 154 to this case, but the Court concludes that Ohio's procedure for providing counsel in post-conviction proceedings plainly does not comply with 28 U.S.C. § 2261(b) and (c) in at least the following respects:

1. Although the Ohio Public Defender has been providing representation to capital defendants in Ohio Revised Code § 2953.21 proceedings and Murnahan proceedings since that decision was handed down¹, it is not compelled to do so by statute, since it (and county public defenders who might possibly undertake such cases) is free to reject a case which it determines is without merit. See State v. Crowder, 60 Ohio St.3d 151, 573 N.E.2d 652 (1991).²

2. When the Ohio Public Defender does serve, it does not do so by virtue of "entry of an order by a court of record," but § 2261(c) reads "Any such appointment mechanism ... must provide for the entry of such an order."

3. The Ohio post-conviction process does not provide compensation and reasonable litigation expenses. As noted by Petitioner, most Ohio counties have extremely low caps on the amounts to be spent on representation in such cases.

4. The Ohio post-conviction process does not "offer" counsel to capital prisoners in the manner contemplated by the Act. As Respondent concedes, under the Ohio Public Defender statute, a prisoner might well have to prepare his or her own § 2953.21 petition and hope for appointment thereafter, yet preparation of the petition itself is subject to important technical pleading requirements under Ohio case law. See State v. Barnes, 7 Ohio App.3d 83, 454 N.E.2d 572 (1982).

5. The Ohio process does not provide by statute or rule of the Supreme Court "standards of competency for the appointment of post-conviction counsel,³" but § 2261(b) says it "must provide such standards ..."

The Ohio process also does not preclude appointment of the same counsel on post-conviction petition as represented the prisoner at trial or on direct appeal, but § 2261(d) requires different counsel be appointed unless the prisoner and counsel both request otherwise.⁴

None of this is said to denigrate Ohio's efforts actually to provide representation to capital defendants. As pointed out in Respondent's Memorandum, the Ohio Public Defender has expended enormous efforts to provide such representation. The Ohio Supreme Court has likewise established standards for training and certifying counsel to handle these most difficult cases at the trial and appellate levels. Indeed, Respondent makes a strong argument that Ohio provides substantially the level of service which § 2261 calls for.

However, Congress did not write § 2261 in terms of substantial compliance. Rather, the section is replete with mandatory language. Indeed, although Respondent argues Congress did not intend to create a federal "model" which States must follow, that seems the most natural reading of § 2261.

Accordingly, the Court concludes that 28 U.S.C. Chapter 154 does not apply to this case.

AMENDMENTS APPLICABLE TO ALL HABEAS CORPUS CASES

The Act also makes in § 104 a number of amendments to 28 U.S.C. Chapter 153 which are potentially applicable to this case. It inserts a new subsection (d) which reads as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

It redesignates former subsection (d) as (e) and rewrites it to read as follows:

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —

(A) the claim relies on —

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the offense.

Both parties agree that the standards for determining the applicability of the revisions to Chapter 153 are provided by Landgraf v. USI Film Products, 511 U.S. 244, ___, 114 S.Ct. 1483, 1499, 128 L.Ed.2d 229 (1994), but they disagree strongly on how Landgraf applies to this statute.

Several principles are to be discerned from Landgraf and the Supreme Court jurisprudence on statutory "retroactivity" which preceded it: A court is to apply the law in effect at the time it renders its decision. Bradley v. Richmond School Board, 416 U.S. 696, 711, 94...