RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Gulertekin v. Tinnelman-Cooper No. 01-3920 ELECTRONIC CITATION: 2003 FED App. 0287P (6th Cir.) File Name: 03a0287p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: John P. Feldmeier, SIRKIN, PINALES, FOR THE SIXTH CIRCUIT MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Appellant. _________________ Diane Mallory, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, FUGEN GULERTEKIN , X for Appellee. ON BRIEF: John P. Feldmeier, Marc D. Petitioner-Appellant, - Mezibov, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, - Cincinnati, Ohio, for Appellant. Diane Mallory, OFFICE OF - No. 01-3920 THE ATTORNEY GENERAL, CORRECTIONS v. - LITIGATION SECTION, Columbus, Ohio, for Appellee. > , _________________ DEBORAH TINNELMAN - - COOPER , Warden, - OPINION Respondent-Appellee. - _________________ - N SILER, Circuit Judge. Petitioner-appellant Fugen Appeal from the United States District Court Gulertekin appeals the district court’s denial of her petition for the Southern District of Ohio at Columbus. for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For No. 00-00808—James L. Graham, District Judge. the following reasons, we affirm the decision of the district court. Argued: February 7, 2003 BACKGROUND Decided and Filed: August 14, 2003 Gulertekin’s conviction arises from events which occurred on June 12, 1997. Gulertekin, a citizen of Turkey who holds Before: SILER and ROGERS, Circuit Judges; GWIN, a Master’s Degree from Ohio State University in special District Judge.* education and early childhood education, was caring for Patrick Lape, a five-month-old infant, in her home. According to Gulertekin’s testimony, in the early afternoon on that date, Gulertekin was changing Patrick’s diaper before his nap when he began to choke and vomit. Patrick stopped breathing and Gulertekin administered first the Heimlich maneuver and then CPR. At some point she called for her thirteen-year-old daughter, who was also in the house, to call * The Ho norable James S. Gwin, United States District Judge for the 911. The baby, however, started breathing again, so the call Northern District of Ohio, sitting by designation.
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was discontinued. A few minutes later, when Patrick again after his injury. She testified that Patrick’s injuries were stopped breathing, Gulertekin called her daughter to renew probably sustained within one hour before the paramedics the call to 911, and resumed her attempts at resuscitation.1 were called, and that they could not have happened by Emergency personnel arrived and Patrick was taken to accident. Children’s Hospital in Columbus, Ohio. Upon his arrival, Dr. Carla Hauersperger (a pediatrician who examined and treated The jury found Gulertekin guilty of both offenses charged Patrick) diagnosed him with “a closed head injury, seizure, in the indictment. The court sentenced her to eight years possible aspiration pneumonia, bilateral retinal hemorrhage imprisonment. She appealed her convictions to the Ohio and occipital skull fracture.” Tenth District Court of Appeals, which affirmed on December 3, 1998. She then sought to appeal to the Supreme Gulertekin was indicted on one count of felonious assault Court of Ohio, but it declined to accept jurisdiction over the and one count of child endangering. At trial, three physicians direct appeal. She filed a petition for post-conviction relief testified for the state. Dr. Hauersperger stated that she had with the trial court on September17, 1998, one day after the suspected child abuse, based on Patrick’s injuries, so she 180-day deadline. The court dismissed the petition for lack ordered the medical photographer for the hospital to come to of jurisdiction, due to the late filing. She appealed this the Emergency Department and take photographs of Patrick. dismissal to the Ohio Tenth District Court of Appeals, which Dr. Hauersperger also ordered several consultations of other affirmed. Gulertekin then filed a petition with the Ohio physicians, including Dr. Charles Johnson, the director of the Supreme Court, requesting it to accept jurisdiction over her Child Abuse Division of the hospital. Dr. Johnson, who is post-conviction appeal, but it was denied. She filed the also a professor of pediatrics at the Ohio State University current habeas petition with the federal district court on July College of Medicine and has published articles on shaken 20, 2000, asserting six grounds for relief.2 The district court baby syndrome, testified as well. Dr. Johnson stated his dismissed the petition, finding that her claims were opinion that the injuries to Patrick’s brain occurred within procedurally defaulted and that her claim of actual innocence minutes of the manifestation of his symptoms, that these was insufficient to excuse such default. injuries were caused by his being severely shaken, and that there was nothing in the history he had been given to indicate an accident. Dr. Elizabeth Gilles, a child neurologist at the hospital and an assistant professor of neurology and pediatrics at Ohio State University, also testified. Dr. Gilles has 2 previously testified as an expert in pediatric child abuse and These ground s were as follows: neglect, has written articles on shaken baby syndrome, and was called in as a consultant to examine Patrick several weeks (1) ineffective assistance of counsel; (2) denial of due p rocess, a fair trial, and an impartial jury based o n trial court’s manipulative and coercive tactics toward a deadlocke d jury; 1 (3) denial of due process, a fair trial, and effective representation The government asserts in its brief that “[a]t approximately 1:00 of counsel due to government’s violation of the Vienna p.m., two 911 calls were placed from Gulertekin’s home, both resulting Convention on Consular Relations; (4 ) prosecuto rial misco nduc t, in hang-up s. W hen the police dispatcher called back , Gulertekin’s 13- concealment of exculpatory and mitigating evidence, and year-old daughter answered the telephone and stated that a baby was coerced incriminating statements; (5) denial of a fair trial and choking.” This account comports with the facts re counted b y the Ohio due process of law due to severe and prejudicial evidentiary Court of Appeals, in its opinion rendered on December 3, 1998. errors by the trial court; and (6) actual innocence. No. 01-3920 Gulertekin v. Tinnelman-Cooper 5 6 Gulertekin v. Tinnelman-Cooper No. 01-3920
STANDARD OF REVIEW November 26, 1997, the jurors submitted a note to the trial judge, asking, “What do you suggest when some jurors feel In a habeas proceeding, this court reviews a district court’s strongly one way, and one or two jurors feel strongly the legal conclusions de novo and its factual findings for clear other way?” error. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). Further: The judge noted that the same question had been posed by the jurors the day before, after they had been deliberating for In all cases in which a state prisoner has defaulted his less than two hours. The judge then gave the standard federal claims in state court pursuant to an independent “Howard charge,” and the jury returned to the jury room at and adequate state procedural rule, federal habeas review 10:45 a.m. Shortly after 11:00 a.m., another note was sent to of the claims is barred unless the prisoner can the trial judge asking whether one of the jurors could be demonstrate cause for the default and actual prejudice as replaced by an alternate juror. The note stated in part that a result of the alleged violation of federal law, or Juror No. 3 “would like to be replaced because I am not able demonstrate that failure to consider the claims will result to reach the decision of everyone else.” in a fundamental miscarriage of justice. At 11:20 a.m., the trial judge held a discussion with the Coleman v. Thompson, 501 U.S. 722, 750 (1991). “Whether attorneys for both sides, out of the presence of the jury. The a state court rested its holding on procedural default so as to judge expressed concern that Juror No. 3 was not deliberating, bar federal habeas review is a question of law” reviewed de and further related that “[i]t’s also come to my understanding novo. Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000). from the bailiff that – I have seen her do this – that whenever This court looks to the last explained state-court judgment they are on break she’s on a cell phone. It is my when answering that question. Id. understanding from the bailiff that she’s called her boyfriend to come pick her up. She’s not been excused from this jury.” DISCUSSION The judge then asked counsel what they wanted to do, and whether they wanted to excuse the juror, noting that A. Procedural Default “yesterday the comment was that she doesn’t want to be the one responsible for making the decision in this case.” In the 1. Juror Coercion discussion which ensued, the judge further expressed her In her second claim on habeas, Gulertekin asserts that “her intention to have the bailiff remove the juror’s cell phone, rights to due process, a fair trial, and an impartial jury. . .were because: violated when the trial judge effectively directed the jury to For her to call her boyfriend to come pick her up to me return a guilty verdict.” This claim stems from a series of is communicating about the case. That’s a violation of events which occurred during the jury’s deliberations. The the oath. . . . It’s now been brought to my attention that jury initially began deliberating at 1:00 p.m. on November 25, she’s also called her mother yesterday, now she’s calling 1997. At 2:42 p.m. the jury was admonished and given a her boyfriend to come pick her up. Maybe she’s not fifteen minute recess. The jury continued deliberating until talking about the substance of the case, but I don’t think 7:25 p.m., at which time they were admonished and recessed it’s appropriate to have that cell phone back there so I’m until the next morning. At approximately 9:45 a.m. on going to ask the bailiff to take the cell phone. No. 01-3920 Gulertekin v. Tinnelman-Cooper 7 8 Gulertekin v. Tinnelman-Cooper No. 01-3920
The trial judge asked the attorneys whether they wanted to [DEFENSE COUNSEL]: Well, I think you need to voir dire the juror, in chambers, in order to determine whether make it not just to her, but to she was refusing to deliberate. Defense counsel stated his all of the jurors. opinion that “it is inappropriate for us to intrude into the deliberating process” and that the court should not “creat[e] THE COURT: Bring them out here. We’ll an intrusive atmosphere with regard to that juror.” He do that. suggested that the next step would be to ask the jury foreperson whether further deliberations would be productive Upon the jury’s entry into the courtroom, the judge read the and, if he answered in the negative, to declare a mistrial (to note aloud, noted that it posed the same question as was which the court stated that an insufficient period of time had submitted by the jury the day before, and stated: elapsed since the giving of the Howard charge to declare a mistrial). Defense counsel then reiterated his objection to Our response is still the same, you are all members of “pull[ing] one juror out of deliberations and interrogat[ing] this jury. You have not been excused from this jury. I them in the middle of deliberations.” A further exchange have given you the instructions. I have just given you occurred regarding the judge’s concern that Juror No. 3 was additional instructions on how you are to conduct not deliberating and her use of the cell phone, to which yourselves in the deliberation room. I’m telling you to defense counsel responded, “Your Honor, the question and go back there and deliberate on this case. the answer, seem to me, do not infer juror misconduct. . . . I would like anybody who has got a cell phone to turn My suggestion is, frankly, the answer to the question is no, it in to the bailiff. You are not allowed to have any she can’t be removed.” The remaining dialogue was as communications concerning this case either in the follows: deliberation room or outside of the deliberation room. The admonition that I have given you applies throughout THE COURT: Okay. Then what I’ll tell her the entire trial. The only time you are allowed to discuss she can’t be removed, hand this case is among yourselves while you are deliberating over the cell phone. She’s in the deliberation room. This also applies to calling not allowed to have any anyone on the outside, such as a mother or boyfriend to contact with anyone out of come pick them up because that’s not going to happen. the jury deliberation room Now, I’m going to ask you to turn over the cell phones regarding this case. to the bailiff, go back into the deliberation room and continue your deliberations. [DEFENSE COUNSEL]: During the deliberations, or I don’t know, you can get – The jury was given the admonition and recessed during the noon hour; they resumed deliberations after lunch, and THE COURT: Outside the process here. I returned a verdict of guilty on both counts at 1:50 p.m. The don’t want her on the breaks jurors were polled, and each, including Juror No. 3, indicated calling anybody saying come that this was his or her verdict. pick me up, I can’t do this any more. Gulertekin contends that the trial court’s tactics amounted to juror coercion, and has presented an affidavit by Juror No. No. 01-3920 Gulertekin v. Tinnelman-Cooper 9 10 Gulertekin v. Tinnelman-Cooper No. 01-3920
3, Julie Weston Ring, which recounts her feelings that the contemporaneous objections to jury instructions) does not judge’s statements regarding the use of cell phones apply to jury instructions given after the jury begins its deliberations; (2) defense counsel did object to the trial were directed solely at me, as I had previously used my court’s resolution of the situation; (3) the court of appeals cell phone to call my boyfriend during a break. In front failed to provide a “clear and express” statement that it was of the entire courtroom, which was filled with spectators, enforcing the state procedural sanction at issue; and (4) this news reporters and television cameras, I was then forced procedural bar does not constitute an independent and to turn over my cell phone to a man I believed to be the adequate state ground, separate from federal law. The district court’s bailiff. I felt humiliated and degraded by the court rejected these arguments upon examination of the judge. opinion of the Ohio Court of Appeals, dated December 3, 1998, the last state court to review the claim. Ring further avers that the judge’s “statements made me feel as though she was forcing me to change my position and In reviewing this claim on direct appeal, the Ohio Court of compelling me to vote to convict Mrs. Gulertekin. The Appeals first observed that defense counsel did not object to manner in which Judge O’Neill instructed us made me feel as the Howard charge the court had initially given to the jury, though she was not going to let anyone leave until we had a and “further note[d] that no objection was raised to the court’s conviction.” final supplemental instructions which included the court’s admonition to the jurors to ‘go back there and deliberate on The district court found this habeas claim to be this case.’” The court then reviewed state law, holding that procedurally defaulted, due to the failure of Gulertekin’s trial “in the absence of plain error, ‘the failure to object to counsel to object to the judge’s supplemental instructions, and improprieties in jury instructions, as required by Crim. R. 30, thus declined to address the merits.3 Gulertekin asserts, is a waiver of the issue on appeal.’” Gulertekin’s first however, that the finding of a procedural bar is erroneous, argument, that Rule 30 is inapplicable to jury instructions because (1) Ohio Criminal Rule 30 (requiring given after the jury has begun to deliberate, relies on a single antiquated case, Burnett v. State, 19 Ohio Law Abs. 100 3 (1935), which held that a court’s admonition to the jury to We have previously held: “try and reach a verdict” after deliberations had started was W hen a state argues that a habeas claim is precluded by the not an “additional charge . . . in violation of § 13442-9 GC.” pe titioner's failure to observe a state procedural rule, the federal Neither Gulertekin nor Burnett explains the substance of court must go through a complicated analysis. First, the court § 13442-9 GC, so the import of this holding, thus removed must determine that there is a state procedural rule that is from its context, is dubious. Moreover, while Gulertekin applicable to the petitioner's claim and that the petitioner failed asserts that the state court never used the term to com ply with the rule. . . . Second, the court must dec ide “contemporaneous objection” in reference to the jury coercion whether the state courts actually enforced the state procedural sanction. . . .Third, the cou rt must decide whethe r the state claim, the court did state that “counsel failed to object to the procedural forfeiture is an "adeq uate an d independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.
Ma upin v. Sm ith, 785 F.2d 135, 138 (6 th Cir. 1986) (internal citations omitted). No. 01-3920 Gulertekin v. Tinnelman-Cooper 11 12 Gulertekin v. Tinnelman-Cooper No. 01-3920
[supplemental] instruction given at the time.” Therefore, this reread the instructions on aggravating circumstances, without argument is without merit.4 any contemporaneous objection from defense counsel. The jury was sent back to continue its deliberations, and after it Gulertekin further maintains that defense counsel’s left the courtroom, the defense objected that the judge had discussion with the trial judge, prior to the giving of the indicated that aggravated murder was itself an aggravating supplemental instruction, in which he voiced disagreement circumstance for the purpose of determining penalty. In with the suggestion of singling out Juror No. 3, did constitute reviewing this case, the Supreme Court of Ohio stated: a contemporaneous objection to the judge’s instruction – particularly to the court’s admonition against jurors “calling We note that the jury question itself was compound in anyone on the outside, such as a mother or boyfriend to come nature and therefore contained a potential for ambiguity. pick them up.” Gulertekin seeks to distinguish the present As a result, the trial court's response ("the answer to that situation due to the fact that defense counsel had no is yes") contained an element of uncertainty as to opportunity, before the jury was called in, to review the exact whether that answer meant, "yes, the aggravating language the court intended to use in addressing them and circumstances are just the kidnapping and rape" or "yes, lodge any objections. Although this factual scenario is the aggravating circumstances include the murder itself." somewhat unique, it is by no means unprecedented. In State We note that defense counsel's objection to the court's v. Gumm, 653 N.E.2d 253, 264 (Ohio 1995), during response was not made at a point in time at which the deliberations, the jury sent a two-part question to the trial trial court could easily have corrected the ambiguity judge, asking “Are the aggravating circumstances to Count I inherent in its response, and error, if any, might properly just the kidnapping and attempted rape, or do they also be deemed to have been waived. include the murder itself?” The jury was called into the courtroom, the court read its question aloud, and the judge Id. (emphasis added). This case indicates that the rationale responded as follows: “The answer to that is 'Yes.' Let me behind the contemporaneous objection rule – the timely read you the instructions on that point.” Id. The judge then correction of errors – should be taken into account in determining the import of a failure to object. If defense counsel felt that the judge’s remarks improperly coerced Juror 4 No. 3, counsel should have so indicated before the jury Mo reover, in State v. Baker, No. CA 86-06-041, 1987 WL 9749 returned its verdict. His reliance on his previous discourse (Ohio App . Apr. 13, 1987), an Ohio ap pellate court confronted the question of whether contemporaneous objection was required with regard with the judge regarding the proper course of action, which to the trial court’s rerea ding of an instruction in response to a jury resulted in (ostensibly) an agreement, is insufficient to question. The court discussed Rule 30, acknowledging that “[t]he case at preserve any objection to the supplemental instructions on bar is somewhat incongruous to the situation contemplated in the rule in appeal. What is clear from the record is that counsel objected that this involves a case where the jury has already retired for to “pull[ing] one juror out of deliberations and interrogat[ing] deliberations and has requested a rereading of an instruction.” Id. at *2. After reviewing the rationale behind the rule (to “enab le[] the court to them.” The trial judge accommodated this objection, and correct an erro neous instruction or add that which w as imp roperly instead addressed the entire jury. While the particular omitted”), the court held that “the requirements of contemporaneous and reference to calling “a mother or a boyfriend” may have hit specific objections, necessary before a jury retires to consider its verdict, home with Juror No. 3, there was nothing explicit in the are equa lly applicable to a rereading of an instruction or instructions judge’s admonition regarding cell phones which mentioned requested by the jury after it has commenced it[s] deliberations.” Id. at *3. No. 01-3920 Gulertekin v. Tinnelman-Cooper 13 14 Gulertekin v. Tinnelman-Cooper No. 01-3920
her by name or juror number, and defense counsel did not of justice.” State v. Long (1978), 53 Ohio St.2d 91, object to this admonition. paragraph three of the syllabus. Gulertekin also contends that the court of appeals failed to The court then embarked on a discussion of whether each provide a “clear and express” statement that its ruling facet of the trial court’s supplemental instructions constituted regarding her juror coercion claim was based on the state plain error. Although the court of appeals mentioned procedural bar, conducted a “full-blown constitutional review, “reversible error,” and cited occasionally to federal law, the not plain error review,” and spoke in terms of “reversible fact that it found the procedural problem (defense counsel’s error.” The requirement that a state court invoking a state failure to object) paramount, and examined only whether this procedural bar must provide a “clear and express” statement holding would constitute plain error (or manifest injustice), is to that effect (the “plain statement” rule) originated in sufficient to foreclose federal court review on habeas. The Michigan v. Long, 463 U.S. 1032 (1983), and was applied to court began discussion of the issue by citing the the federal habeas context by Harris v. Reed, 489 U.S. 255 contemporaneous objection rule, and returned to counsel’s (1989). Coleman, 501 U.S. at 732-34. In Coleman v. failure in this regard several times throughout the analysis. Thompson, however, the Supreme Court made clear that “[a] The mentions of “reversible error” can fairly be read to predicate to the application of the Harris presumption [that broach the question of whether there was, indeed, any error, state court opinions lacking such a “clear and express” let alone one which would constitute manifest injustice if statement of reliance on a state procedural bar do not preclude uncorrected. This case properly falls under the rubric of federal habeas review of the claim at issue] is that the Paprocki v. Foltz, 869 F.2d 281, 284-85 (6th Cir. 1989), decision of the last state court to which the petitioner wherein we observed: presented his federal claims must fairly appear to rest primarily on federal law or to be interwoven with federal The [state court of appeals] did not conduct the sort of law.” Id. at 735. review of the jury instructions that presumably would have been undertaken had there been a timely objection The court of appeals took up the issue of the trial court’s to them; instead, the court inquired only whether jury instructions by first recounting the state-law precepts affirmance of the conviction would “result in manifest that: injustice” because of the alleged instructional error. . . . We would be loath to adopt an exception to the “cause To preserve on appeal the issue of error in the and prejudice” rule that would discourage state appellate instructions to a jury, “an appellant must cite an courts from undertaking the sort of inquiry conducted by objection to the instruction on the trial record.” State v. the [state] court, and we do not believe that the state Powers (1995), 106 Ohio App.3d 696, 699. See also court’s explanation of why the jury instructions resulted State v. Underwood (1983), 3 Ohio St.3d 12, 13 (in the in no manifest injustice can fairly be said to have absence of plain error, “the failure to object to constituted a waiver of the procedural default. improprieties in jury instructions, as required by Crim. R. 30, is a waiver of the issue on appeal”). Further, See also Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001) “[n]otice of plain error under Crim.R. 52(B) is to be (“[W]e view a state appellate court’s review for plain error as taken with the utmost caution, under exceptional the enforcement of a procedural default”). circumstances and only to prevent a manifest miscarriage No. 01-3920 Gulertekin v. Tinnelman-Cooper 15 16 Gulertekin v. Tinnelman-Cooper No. 01-3920
Gulertekin’s related assertion that the procedural bar at because the State had made application of the procedural issue was not an “adequate and independent” ground, separate bar depend on an antecedent ruling on federal law.” from federal law, relies on an unpublished Sixth Circuit Coleman, 501 U.S. at 741. . . .The Coleman Court then opinion, Knuckles v. Rogers, No. 92-3208, 1993 WL 11874 distinguished that holding by observing simply that “Ake (6th Cir. Jan. 21, 1993). In Knuckles, this court was a direct review case. We have never applied its rule acknowledged Ohio’s contemporaneous objection rule and regarding independent state grounds in federal habeas. the procedural default which resulted from a failure to object, But even if Ake applies here, it does Coleman no good but found that since the Ohio appellate court which reviewed because the Virginia Supreme Court relied on an the case conducted a plain error analysis, which gauges independent state procedural rule.” Id. The Supreme whether a person has been denied a “fair trial” (which, in turn, Court, then, does not find the mere reservation of requires the application of federal constitutional law), the discretion to review for plain error in exceptional decision was “not independent of federal law.” Id. at *3. We circumstances sufficient to constitute an application of have previously held Ohio’s contemporaneous objection rule federal law. to constitute an adequate and independent state ground. See .... Hinkle, 271 F.3d at 244 (“Ohio’s contemporaneous objection All in all, we think it is clear that Knuckles, an rule constitutes an adequate and independent state ground that unpublished decision of this court, cannot provide bars federal habeas review absent a showing of cause and persuasive authority to support a finding that the Ohio prejudice”); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. Supreme Court did not rely on an independent state 2000) (objections to trial court’s jury instructions are procedural ground in disposing of Scott’s challenge to defaulted because “the court of appeals reviewed them only the trial court’s penalty-phase instruction on jury for plain error due to Seymour’s failure to comply with unanimity. Ohio’s contemporaneous objection rule. . . .Controlling precedent in our circuit indicates that plain error review does Id. at 867-68. Scott also noted that “Harris [v. Reed, 489 not constitute a waiver of state procedural default rules.”); U.S. 255 (1989)] specifically instructed state courts that. . . . and Scott v. Mitchell, 209 F.3d 854, 867 (6th Cir. 2000) ‘By its very definition, the adequate and independent state (“[T]he Supreme Court [has] specifically found that default ground doctrine requires the federal court to honor a state imposed for failure to object contemporaneously as required holding that is a sufficient basis for the state court’s by Ohio’s Rule 30 is an adequate and independent state judgment, even when the state court also relies on federal ground”). law.’” Scott, 209 F.3d at 866-67 (quoting Harris, 489 U.S. at 264 n.10 (citations omitted)). The Ohio appellate court in this In Scott, we criticized Knuckles, observing that: case invoked the procedural bar imposed by defense counsel’s failure to lodge a contemporaneous objection In Coleman, the Court . . . very strongly implied its sufficiently to preclude federal court review of this claim on continued disapproval of the rule . . . ascribe[d] to habeas. Knuckles. As a preamble to its discussion of independent state grounds, the Court acknowledged that it had 2. Remaining Claims previously held Oklahoma’s review for “fundamental trial error” before applying state procedural defaults “was Gulertekin’s remaining claims on habeas are also not independent of federal law so as to bar direct review procedurally defaulted, in that she failed to raise them before No. 01-3920 Gulertekin v. Tinnelman-Cooper 17 18 Gulertekin v. Tinnelman-Cooper No. 01-3920
the state courts. Her first claim alleges ineffective assistance conviction proceedings “rushed through” her petition of counsel, for defense counsel’s alleged failure to retain or (spending 5.25 hours on it) and filed it one day late. As to the consult with medical experts. While Gulertekin’s petition for prejudice element, Gulertekin presents the affidavit of Dr. Jan post-conviction relief made a general claim of ineffective Leestma, a physician who provides consultation in forensic assistance of counsel, it did not include facts or argument aspects of neuropathology, and whose opinions contradict that concerning this theory. At any rate, the state courts denied of the physicians called by the state. Dr. Leestma’s ultimate this petition, which did specifically allege her third and fourth opinion is that “the conclusions of these witnesses (that the claims on habeas (the government’s alleged violation of the injuries sustained by the infant could not have been caused Vienna Convention on Consular Relations and prosecutorial unintentionally and could have occurred only within a misconduct), without reaching the merits, because it was filed temporal window of a few hours) cannot be established to a late. In her briefs to this court, Gulertekin does not revisit the reasonable degree of medical certainty.” Gulertekin also imposition of this procedural bar, but proceeds to argue that presents two recent articles calling into question whether only she can show cause and prejudice therefor. extreme violence results in shaken baby syndrome. B. Cause and Prejudice Gulertekin cannot use her post-conviction attorney’s alleged ineffectiveness to establish cause for the procedural Gulertekin contends that she can show cause and prejudice default, however, because because any procedural default associated with her habeas claims is the result of ineffective assistance of counsel. [t]here is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner 1. Ineffective Assistance of Counsel – Failure to cannot claim constitutionally ineffective assistance of Consult Medical Experts counsel in such proceedings. . . .[The] attorney’s error that led to the late filing of [the] state habeas appeal . . . . In this claim on habeas, Gulertekin asserts that her trial cannot be constitutionally ineffective; therefore counsel was ineffective in that he did not employ a medical [Gulertekin] must bear the risk of attorney error that expert to investigate Patrick Lape’s medical records and to results in a procedural default. refute the State’s expert testimony. Because this claim was not presented to the state courts on direct appeal or in her Coleman, 501 U.S. at 752-53 (internal citations and quotation post-conviction proceedings, it is barred. Gulertekin points marks omitted). Accordingly, Gulertekin cannot establish out, however, that she was represented by her trial attorney cause sufficient to excuse the procedural default on this claim. during the direct appeal,5 and that her attorney for the post- 2. Juror Coercion
5 While Gulertekin presented this claim to the state courts on Thus, she contends, it could not have be en exp ected that he would direct appeal, those courts found the claim procedurally have raised the issue of his own ineffectiveness, nor was the evidence of record ad equate on direct ap peal to dem onstrate the imp act of his failure to retain med ical experts. Under Ohio law, when the same attorney represents a defendant at trial and on direct appeal (as in this case), the app ropriate forum in which to raise claims of ineffective assistance of trial will not bar the ineffective assistance claim. State v. Co le, 443 N.E.2d counsel is in a post-conviction action. In such a situation , res jud icata 169 , 171 n.1 (O hio 1982 ). No. 01-3920 Gulertekin v. Tinnelman-Cooper 19 20 Gulertekin v. Tinnelman-Cooper No. 01-3920
defaulted due to trial counsel’s failure to lodge a federal habeas petitioner may obtain review of defaulted contemporaneous objection. As cause for this default, claims by showing the failure to conduct such review will Gulertekin alludes only to “defense counsel’s ineffective result in a “fundamental miscarriage of justice.” Coleman, representation,” presumably in failing to object to the 501 U.S. at 750. See also Murray v. Carrier, 477 U.S. 478, allegedly coercive instructions to the jury. In Edwards v. 496 (1986) (“[I]n an extraordinary case, where a Carpenter, 529 U.S. 446, 451 (2000), however, the Supreme constitutional violation has probably resulted in the Court held that “ineffective assistance adequate to establish conviction of one who is actually innocent, a federal habeas cause for the procedural default of some other constitutional court may grant the writ even in the absence of a showing of claim is itself an independent constitutional claim,” which can cause for the procedural default.”). In support, Gulertekin be procedurally defaulted. Gulertekin has never presented cites Ring’s affidavit, in which Ring avers that, but for her this claim (ineffective assistance of trial counsel) to the state coercion by the trial court, she would have voted to acquit courts. Once again, her petition for post-conviction review Gulertekin. Ring also asserts: presented only a general ineffective assistance of counsel claim, and was dismissed for having been untimely filed. To During deliberations, the jurors did not really decide the extent Gulertekin may assert ineffective assistance of her whether the State proved Mrs. Gulertekin[] guilty beyond post-conviction counsel as cause for the procedural default of a reasonable doubt. Instead, one of the jurors posed the her claim for ineffective assistance of trial counsel, she is question as to whether any of us would hire Mrs. barred by the fact that she has no constitutional right to such Gulertekin to baby-sit our children. We went around the counsel. Thus, she is unable to demonstrate cause for the room and offered our “vote” based on this question. All procedural default of this claim. the jurors except me and another young juror said they would not hire Mrs. Gulertekin as a baby-sitter. After 3. Violation of the Vienna Convention on Consular the other juror joined the majority, many of the jurors Relations and Prosecutorial Misconduct started pressuring me into voting to convict because they wanted to go home for the Thanksgiving holiday. These habeas claims are likewise defaulted because Gulertekin’s attorney filed her post-conviction petition one Gulertekin also reiterates the conclusions of Dr. Leestma, as day beyond the deadline, thus depriving the state court of contained in his affidavit, and the additional articles on jurisdiction. Gulertekin asserts that the cause for this default, shaken baby syndrome. however, is “clearly” ineffective assistance of counsel. Yet again, as Gulertekin had no right to counsel in her post- Under Schlup v. Delo, 513 U.S. 298, 324 (1995), a conviction proceedings, the alleged ineffectiveness of this petitioner claiming actual innocence must “support his counsel cannot constitute cause. allegations of constitutional error with new reliable evidence--whether it be exculpatory scientific evidence, C. Actual Innocence trustworthy eyewitness accounts, or critical physical evidence--that was not presented at trial.” Further, “[t]o Finally, Gulertekin asserts that the district court erred in its establish the requisite probability, the petitioner must show finding that her claim of actual innocence did not excuse her that it is more likely than not that no reasonable juror would procedural default. In so arguing, she relies on the tenet that, have convicted him in the light of the new evidence.” Id. at even without a demonstration of cause and prejudice, a 327. Actual innocence, moreover, “means factual innocence, No. 01-3920 Gulertekin v. Tinnelman-Cooper 21 22 Gulertekin v. Tinnelman-Cooper No. 01-3920
not mere legal insufficiency.” Bousley v. United States, 523 Fed. R. Evid. 606(b), that court concluded that she had not U.S. 614, 623-24 (1998). Thus, actual innocence “does not met the standards required by Schlup and Murray. That merely require a showing that a reasonable doubt exists in the conclusion is correct. light of the new evidence, but rather that no reasonable juror would have found the defendant guilty.” Schlup, 513 U.S. at To answer Gulertekin’s reassertion of Dr. Leestma’s 329. affidavit, the government recounts the testimony of the three physicians who testified against Gulertekin at trial. Dr. The government challenges the propriety of even Leestma’s opinions merely undermine this testimony, and do considering Ring’s affidavit, citing Fed. R. Evid. 606(b), not “show that it is more likely than not that no reasonable which provides that juror would have convicted [her] in the light of the new evidence.” Schlup, 513 at 327. Thus, this evidence fails to a juror may not testify as to any matter or statement meet the exacting standards of establishing actual innocence occurring during the course of the jury’s deliberations or pursuant to Schlup. to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or Similarly unavailing is Gulertekin’s argument pertaining to dissent from the verdict . . . or concerning the juror’s an affidavit by Ian Heyman, an attorney who avers that mental processes therewith. Buechner, the lead detective in Petitioner’s case, “volunteered to [Heyman] that from the onset of his involvement [in the The rule contains an exception, however, that “a juror may case], he knew that the injuries sustained by the Lape child testify on the question whether extraneous prejudicial were the result of an accident.” Heyman also asserts that information was improperly brought to the jury’s attention or Buechner acknowledged the existence of a language barrier whether any outside influence was improperly brought to bear in Gulertekin’s communications. This affidavit does not upon any juror.” Id. constitute new reliable evidence, such as “exculpatory scientific evidence, trustworthy eyewitness accounts, or While Ring’s allegations regarding how the jurors began critical physical evidence,” Schlup, 513 at 324, sufficient to their deliberations would clearly fall into the prohibited establish actual innocence. category under Rule 606(b), Gulertekin maintains that the trial judge’s alleged coercive tactics in rendering the AFFIRMED. supplemental instruction regarding cell phones constituted an impermissible “outside influence” about which Ring may aver. United States v. Tines, 70 F.3d 891, 898 (6th Cir. 1995), however, makes clear that “[a] jury's interpretation and application of the court's instructions is a part of the deliberative process and [is] correctly excluded under Rule 606(b).” Thus, the trial judge’s admonition to the jury instructing them to “go back and deliberate” and prohibiting the use of cell phones is not considered an improper outside influence. Moreover, while Gulertekin points out that the district court considered Ring’s affidavit without mentioning