Roberts v. Carter

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 23, 2003
• Docket: 01-3851
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Roberts v. Carter No. 01-3851 ELECTRONIC CITATION: 2003 FED App. 0240P (6th Cir.) File Name: 03a0240p.06 Falasca, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellant. Stuart W. Harris, KEGLER, BROWN, HILL & RITTER, Columbus, Ohio, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT _________________ OPINION _________________

CLARENCE D. ROBERTS, X KENNEDY, Circuit Judge. Clarence Roberts was convicted of aggravated robbery and murder in the Court of Petitioner-Appellant, - - Common Pleas for Guernsey County, Ohio. After - No. 01-3851 unsuccessfully appealing his case in the Ohio state courts, v. - Roberts filed a petition for a writ of habeas corpus under 28 > U.S.C. § 2254 in the United States District Court for the , Southern District of Ohio. The district court denied the writ. HAROLD E. CARTER , Warden, - Respondent-Appellee. - This Court granted Roberts a certificate of appealability with respect to the following claims: (1) whether Roberts was N deprived of a fair trial, a trial by jury, and due process when Appeal from the United States District Court the trial court ordered that alternate jurors be present during for the Southern District of Ohio at Columbus. deliberations; and (2) whether Roberts was deprived of the No. 00-00409—George C. Smith, District Judge. effective assistance of appellate counsel when his appellate counsel failed to raise as error the trial court’s order that Argued: May 8, 2003 alternate jurors be present during deliberations. We AFFIRM the district court’s denial of Roberts’ petition for Decided and Filed: July 23, 2003 the following reasons.

Before: KENNEDY, SILER, and GILMAN, Circuit I. Judges. Clarence Roberts was charged with one count of aggravated _________________ robbery and one count of aggravated murder with a death penalty specification. At the time of Roberts’ trial, Ohio Rule COUNSEL of Criminal Procedure 24(F) stated that “[a]n alternate juror who does not replace a regular juror shall be discharged after ARGUED: James R. Foley, PUBLIC DEFENDER’S the jury retires to consider its verdict.” Over the objection of OFFICE, Columbus, Ohio, for Appellant. Norman E. Plate, defense counsel, the state trial court ordered the two alternate O F F IC E O F T H E A T T O RN E Y G E N E R A L, jurors to join the twelve regular jurors in the jury room so that CORRECTIONS LITIGATION SECTION, Columbus, Ohio, they would know what happened during deliberations, in case for Appellee. ON BRIEF: David H. Bodiker, Tina M. an alternate needed to be substituted for a regular juror. The

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alternate jurors, who were present during both the guilt and United States Code sets forth the standard for granting a writ penalty phase deliberations, were instructed to not participate of habeas corpus: in the deliberations. Neither alternate juror was ever called to substitute for a regular juror. An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State The jury convicted Roberts of aggravated robbery and court shall not be granted with respect to any claim that murder. It did not return a death verdict. Roberts was was adjudicated on the merits in State court proceedings sentenced to ten years on the robbery charge and life unless the adjudication of the claim– imprisonment on the murder charge, with the sentences to be (1) resulted in a decision that was contrary to, or served consecutively. On direct appeal, the Ohio Court of involved an unreasonable application of, clearly Appeals affirmed the convictions, and the Ohio Supreme established Federal law, as determined by the Supreme Court denied review. Roberts’ appellate attorney did not Court of the United States; or assign as error the trial court’s order that the alternate jurors (2) resulted in a decision that was based on an be present during jury deliberation. unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Roberts applied to reopen his direct appeal under Ohio Rule of Appellate Procedure 26(B), claiming that “Appellate Thus, to be entitled to relief under § 2254(d), this Court must counsel renders constitutionally ineffective assistance of find that the decision of the Ohio courts was either contrary counsel on the appeal as of right where such counsel fails to to, or an unreasonable application of, the Supreme Court’s recognize, assign, argue and properly brief the clear violation clearly established precedents, or was based on an of [Ohio Criminal Procedure Rule] 24(F), permitting alternate unreasonable determination of the facts. Price v. Vincent, 123 jurors to be present during jury deliberations, over S.Ct. 1848, 1852-53 (2003). Defendant’s objection.” The state appeals court denied the motion, and the Ohio Supreme Court denied review. Because the parties do not contest the facts established in this case, Roberts’ claims must be analyzed under Roberts then filed a petition for a writ of habeas corpus in § 2254(d)(1). A state court decision is contrary to clearly the United States District Court for the Southern District of established federal law “if the state court arrives at a Ohio, claiming five grounds for relief. The district court conclusion opposite that reached by [the Supreme] Court on denied the petition, as well as Roberts’ request for a a question of law or if the state court decides a case certificate of appealability. Roberts filed a notice of appeal differently than [the Supreme Court] has on a set of materially and a motion for a certificate of appealability, which this indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, Court granted. 412-13 (2000). A state court decision is an unreasonable application of clearly established federal law “if the state II. court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies the This Court reviews de novo the disposition of a petition for principle to the facts of the prisoner’s case.” Id. at 413. The a writ of habeas corpus. Carpenter v. Mohr, 163 F.3d 938, Supreme Court has cautioned that a “federal habeas court may 942-43 (6th Cir. 1998). Section 2254(d) of title 28 of the not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision No. 01-3851 Roberts v. Carter 5 6 Roberts v. Carter No. 01-3851

applied clearly established law erroneously or incorrectly. occurs when petitioner fails to present an issue to a state Rather, that application must also be unreasonable.” Id. at appellate court when provided the opportunity to do so).1 411. Roberts’ Final Reply Brief contends that this claim is not A. barred because he can show cause and actual prejudice sufficient for this Court to reach the merits of the claim. This As his first ground for relief, Roberts claims that by Court may consider a procedurally defaulted claim if Roberts permitting the alternate jurors to be present during jury can demonstrate cause for his procedural default and deliberations, the trial court deprived him of his rights to a prejudice resulting from the constitutional error asserted by fair trial, a trial by jury, and due process. The State argues the claim. Wainright v. Sikes, 433 U.S. 72, 86-87 (1977). that Roberts defaulted this claim when he failed to raise it on Roberts, however, fails to advance any argument in support direct appeal to the Ohio state courts. Roberts counters that of a finding of cause and prejudice. As such, we consider the issue was raised and addressed on the merits by the Ohio Roberts’ cause and actual prejudice argument abandoned. See Court of Appeals in its consideration of his application to United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000) reopen his direct appeal. Roberts’ Application to Reopen (court of appeals will not consider merits of error assignment under Ohio Appellate Rule 26(B), however, was limited to when defendant fails to advance any arguments in support of the claim that “Appellate counsel renders constitutionally claimed error). ineffective assistance of counsel on the appeal as of right where such counsel fails to recognize, assign, argue and B. properly brief the clear violation of [Ohio Rule of Criminal Procedure] 24(F), permitting alternate jurors to be present As his second ground for relief, Roberts claims that he was during jury deliberations, over Defendant’s objection.” deprived the effective assistance of appellate counsel when Roberts’ Rule 26(B) application presented an intertwined his appellate counsel failed to raise as error the trial court’s claim of a constitutional violation (ineffective assistance of order that the alternate jurors be present during jury appellate counsel) and a state procedural rule violation deliberations. To show a violation of the Sixth Amendment (alternate jurors presence in jury deliberations). Roberts’ first right to counsel, clearly established Supreme Court precedent ground for habeas relief presents two intertwined requires a defendant to demonstrate (1) that his or her constitutional claims (ineffective assistance of appellate attorney “made errors so serious that counsel was not counsel and deprivation of fair trial, jury trial and due process functioning as the ‘counsel’ guaranteed the defendant by the rights). Because Roberts never raised the due process Sixth Amendment,” and (2) “that the attorney’s deficient component of his first claim for habeas relief to the Ohio performance was so prejudicial that it deprive[d] the courts, this claim is procedurally defaulted and may not be defendant of a fair trial, a trial whose result is reliable.” considered on federal habeas review. Teague v. Lane, 489 Strickland v. Washington, 466 U.S. 668, 687 (1984). To U.S. 288, 297-98 (1989) (holding that a procedural default demonstrate that counsel’s performance was deficient, a

1 As we explain in Part B , the Ohio C ourt of Ap peals did no t address the merits of Roberts’ claim regarding the presence of the alternate jurors in its consideration of his Rule 26(B) application. Thus, we also cannot say that the Ohio courts reached the merits of this claim. No. 01-3851 Roberts v. Carter 7 8 Roberts v. Carter No. 01-3851

defendant “must show that counsel’s representation fell below circumstances. Roberts argued that the court should presume an objective standard of reasonableness.” Id. at 688. To prejudice to the defendant because the alternate jurors may establish that counsel’s deficient performance was prejudicial, have participated in deliberations through body language and a defendant “must show that there is a reasonably probability the alternate jurors presence may have had a chilling effect on that, but for counsel’s unprofessional errors, the result of the the regular jurors’ deliberations, citing United States v. proceeding would have been different.” Id. at 694. Because Olano, 507 U.S. 725 (1993), for support. Roberts, however, the question of whether a defendant is deprived of effective did not address the merits of his ineffective assistance of counsel is a mixed question of law and fact, the “unreasonable appellate counsel claim. application” prong of § 2254(d)(1) controls our analysis. French v. Jones, 2003 WL 21348339 (6th Cir. June 11, The Ohio Court of Appeals denied Roberts’ Rule 26(B) 2003). We, therefore, next consider whether the Ohio courts application. The court affirmed that a claim of ineffective unreasonably applied the Strickland test to Roberts’ assistance of appellate counsel is analyzed under the two-part ineffective appellate counsel claim. Strickland test. In holding that Roberts’ failed to demonstrate that he was deprived constitutionally effective appellate Ohio Appellate Rule 26(B) permits a criminal defendant to counsel, the court stated that “Appellant’s argument he was apply to reopen the direct appeal based on a claim of prejudiced by the presence of the alternate jurors during ineffective assistance of appellate counsel. The application deliberations is based purely upon speculation and is consists of one or more assignments of error that were not unsupported by the record. We find that the state of the previously considered due to appellate counsel’s allegedly present record does not support appellant’s assertion.” In deficient representation. Ohio App. R. 26(B)(1)(c). When light of the requirements of Rule 26(B), the court’s holding considering an application to reopen, the state appeals court must be read as pertaining to the merits of Roberts’ conducts a two-part inquiry. First, the court determines ineffective assistance of appellate counsel claim, not his state whether the applicant was deprived of the effective assistance procedural rule claim. of appellate counsel. Ohio App. R. 26(B)(5). If the defendant makes a colorable ineffective assistance of appellate counsel The state appeals court’s analysis of Roberts’ ineffective claim, the court then considers the assigned error(s) as if assistance of appellate counsel claim is not objectively raised on an initial appeal. Ohio App. R. 26(B)(7). unreasonable. Under the prejudice prong of the Strickland test, Roberts had the burden of proving that there is a Roberts’ Rule 26(B) application contended that “Appellate reasonably probability that, but for his appellate counsel’s counsel renders constitutionally ineffective assistance of error in not raising the Rule 24(F) violation, his direct appeal counsel on the appeal as of right where such counsel fails to would have provided him with relief from his conviction. recognize, assign, argue and properly brief the clear violation Roberts did not argue, let alone prove, that the result of his of [Ohio Rule of Criminal Procedure] 24(F), permitting direct appeal would likely have been different if his original alternate jurors to be present during jury deliberations, over appellate counsel had raised the state trial court’s violation of Defendant’s objection.” Because the Ohio courts had not Rule 24(F). Rather, he argued that the state appeals court addressed the issue of a Rule 24(F) violation in a case where should adopt a rule that presumes prejudice when a Rule defense counsel had timely objected, Roberts’ application 24(F) violation occurs over objection by defense counsel. urged the state appeals court to find that a violation of Rule 24(F) constitutes prejudice as a matter of law under such No. 01-3851 Roberts v. Carter 9 10 Roberts v. Carter No. 01-3851

As the Ohio Supreme Court has observed recently, the respect to prejudice under Rule 52(b), id. at 734. The Court propriety of alternate jurors being present during jury declined to presume prejudice based on the alternates’ mere deliberations “was a subject of much misunderstanding” after presence because (1) alternate jurors were indistinguishable the court’s decision in State v. Hutton, 559 N.E.2d 432 from the regular jurors, and (2) the district court instructed the (1990). State v. Gross, 776 N.E.2d 1061, 1109 (2002). In alternates to not participate in jury deliberations and the law 1999, when the state appeals court denied Roberts’ Rule assumes that jurors will follow their instructions. Id. at 740. 26(B) application, a state appeals court had previously held The Court made clear that its analysis did not reach a case in that the presence of alternate jurors during guilt phase which Rule 24(c) was violated over objection. Id. at 741 deliberations of a capital case did not violate Rule 24(F) (“Whether the Government could have met its burden of because Hutton made the rule inapplicable to capital cases. showing the absence of prejudice, under Rule 52(a), if State v. Voorhies, No. 94-CA-8, 1995 WL 495820 (Ohio App. respondents had not forfeited their claim of error, is not at 5 Dist. June 14, 1995). Because the Voorhies court had issue here.”). determined that Rule 24(F) was not applicable to cases such as Roberts, the appeals court that considered Roberts’ Rule What Roberts’ argument overlooks is that Olano clearly 26(B) application could not have found that there was a held that the mere presence of alternate jurors in jury reasonable probability that, on direct appeal, a Rule 24(F) deliberations does not affect a defendant’s substantial rights. violation over objection would have been found to constitute Thus, Olano does not require the Ohio courts to find that a reversible error.2 violation of its similarly worded procedural rule deprives a defendant of his or her constitutional rights. In fact, because Roberts argues that Olano dictates that the Ohio courts find the Ohio Court of Appeals did not reach the merits of that a violation of Rule 24(F) over objection places the burden Roberts’ claim regarding the alleged violation of Rule 24(F), of proving the absence of prejudice on the government. The the court had no occasion to consider whether Olano should Olano Court addressed the question of whether “the presence or should not guide its interpretation of its rule. Further, the of alternate jurors during jury deliberations was ‘plain error’ fact that Olano suggests that the government has the burden that a court of appeals could correct under Federal Rule of of proving the absence of prejudice when a defendant Criminal Procedure 52(b).” 507 U.S. 725, 737 (1993). At the preserves a Federal Rule 24(c) error does not shift the burden time, Federal Rule of Criminal Procedure 24(c) required that of proving prejudice (or the absence thereof) when a “[a]n alternate juror who does not replace a regular juror shall defendant claims a violation of his or her Sixth Amendment be discharged after the jury retires to consider its verdict.” right to counsel based on the violation of a state procedural The Court held that because “[t]he presence of alternate jurors rule. during jury deliberations is not the kind of error that ‘affect[s] substantial rights independent of its prejudicial impact,” id. at III. 737, and Olano had not objected to the alternates presence in the jury deliberations, he bore the burden of persuasion with In sum, because the Ohio Court of Appeals did not unreasonably apply the Strickland test to Roberts’ ineffective assistance of appellate counsel claim, we AFFIRM the 2 district court’s denial of his petition for a writ of habeas The Gross court subsequently held that a violation of Rule 24(F) corpus. over objection creates a presumption of prejudice to the defendant that may be rebutted by the state. 776 N.E.2d at 1098.