Petition — Engle v. Isaac
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oe Witce Spree 2
-1430. | saa:
‘ 8 0 i FEB 23 1981
CASE NO. ' stews, |
IN THE OC
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1980
TED ENGLE, Superintendent,
Chillicothe Correctional Institute,
Petitioner,
Vv.
LINCOLN ISAAC,
Respondent.
E.P. PERINI, Superintendent,
Marion Correctional Institution,
Petitioner,
V.
KENNETH L. BELL
Respondent.
TED ENGLE, Superintendent,
Chillicothe Correctional Institute.
Petitioner,
V.
HOWARD HUGHES,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
WILLIAM J. BROWN
Attorney General
SIMON B. KARAS
Counsel of Record
RICHARD DAVID DRAKE
Assistant Attorneys General
State Officer Tower, 26th Floor
30 East Broad Street
Columbus, Ohio 43215
(614) 466-5414
ATTORNEYS FOR PETITIONERS
QUESTIONS PRESENTED
1. WHETHER THE “CAUSE” REQUIREMENT OF WA/IN-
WRIGHT V. SKYES, 433 U.S. 72 (1977) FOR OBVIATING A
STATE PROCEDURAL WAIVER MAY BE FOUND WHERE A
FAILURE TO OBJECT TO AN INSTRUCTION PLACING THE
BURDEN OF PROOF ON ACRIMINAL DEFENDANT OF THE
AFFIRMATIVE DEFENSE OF SELF DEFENSE |S PREDI-
CATED SOLELY ON THE FACT THAT THE DEFENDANT'S
TRIAL OCCURRED PRIOR TO A STATE COURT DECISION
WHICH RETROACTIVELY AND SOLELY AS A MATTER OF
STATE LAW ELIMINATED THE DEFENDANT'S TRADITIONAL
“COMMON LAW ULTIMATE BURDEN ON AFFIRMATIVE
DEFENSES.
2. WHETHER THE “PREJUDICE” REQUIREMENT OF
WAINWRIGHT V. SYKES, SUPRA, FOR OBVIATING A STATE
PROCEDURAL WAIVER MAY BE FOUND BY CONSTRUING,
CONTRARY TO THE STATE COURT'S OWN INTERPRETA-
TION OF ITS LAW, A STATE COURT DECISION ELIMINATING
A DEFENDANT'S TRADITIONAL COMMON LAW ULTIMATE
BURDEN ON AFFIRMATIVE DEFENSES TO CREATE A
FUNCTIONAL ELEMENT OF THE CRIME OF “ABSENCE OF
THE AFFIRMATIVE DEFENSE”.
Parties
In addition to the parties listed on the front cover of this
petition, the Ohio Prosecuting Attorneys Association appeared
as amicus on behalf of petitioner (then appellee) Engle in /ssac
v.Engle, F.2d_ ,(No. 78-3488, 6th Cir. 1980) upon rehearing
en banc. The Ohio Public Defenders Association and the
Appellate Review Office, a subdivision of the clinical program
of the School of Law of the University of Akron appeared as
amici for respondent (then appellant) Isaac.
CONTENTS
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AUTHORITIES
PAGE
Beasley v. United States,
491 F. 2d 687 (6th Cir. 1974) 10
Berrier v. Egeler,
583 F. 2d 515 (6th Cir. 1978), cert. denied,
439 U.S. 955 2)
Canary v. Bland,
583 F. 2d 887 (6th Cir. 1978) 9
Carter v. Jago,
F. 2d (No. 79-3317, 6th Cir. 1980) 11,12, 13
Cole v. Stevenson,
620 F. 2d 1055 (4th Cir. 1980) 7,10
Cook v. Bordenkircher,
602 F. 2d 117 (6th Cir. 1978), cert. denied,
444 U.S. 936 9
Harlin v. Missouri,
439 U.S. 459 (1979) 9
Hankerson v. North Carolina
432 U.S. 233 (1977) 8.9, 10
Henderson v. Kibbe,
431 U.S. 145 (1977)
Hockenbury v. Sowders,
633 F. 2d 433 (6th Cir. 1980)
In Re Winship,
397 U.S. 358 (1970)
Krzeminski v. Perini,
614 F. 2d 121 (6th Cir. 1980)
Lee v. Missouri,
439 U.S. 461 (1979)
Mars v. United States,
615 F. 2d 704 (6th Cir. 1980)
Mullaney v. Wilbur
421 U.S. 684 (1975)
O'Connor v. Ohio,
385 U.S. 92 (1966)
Patterson v. New York,
432 U.S. 197 (1977)
Rachel v. Bordenkircher,
590 F. 2d 200 (6th Cir. 1978)
Rivera v. Delaware,
429 U.S. 877 (1976)
State v. Abner,
55 Ohio St. 2d 251 (1978)
State v. Frost,
57 Ohio St. 2d 121 (1979)
State v. Humphries,
51 Ohio St. 2d 95 (1977)
State v. Long,
53 Ohio St. 2d 91 (1978)
State v. Poole,
33 Ohio St. 2d 18 (1973)
State v. Robinson,
47 Ohio St. 2d 103 (1976)
State v. Rogers,
43 Ohio St. 2d 28 (1975)
State v. Seliskar,
35 Ohio St. 2d 95 (1973)
State v. Williams,
51 Ohio St. 2d 112 (1977)
Wainwright v. Sykes,
433 U.S. 72 (1977)
8,9, 10, 11, 12
10
11,12
9
1
13
1
3.8
9
13
3, 4,6, 8,9, 10, 13
8
8
9
7, 8,9, 10, 14
iv
STATUTES
O.R.C. Section 2901.05(Ayeff. 1-1-74) 3, 8, 10, 11, 13
O.RC. Section 2901.05(Ajeff. 11-1-78) 3
OPINIONS BELOW
The decision of The United States Court of Appeals for
The Sixth Circuit in Isaac V. Engle, F.2d (No. 78-3488,
6th Cir. 1980), upon rehearing en banc is not yet reported.
(A 1). The panel decision of The United States Court of
Appeals For The Sixth Circuit in /saac v. Engle, supra is not
reported (A24). The decision of the United States District Court
For The Southern District of Ohio, Eastern Division in /saac v.
Engle, is unreported. (A38).
The decision of The United States Court of Appeals For The
Sixth Circuit in Bell v. Perini, F.2d ,(No. 79-3153, 6th Cir.
1980) is not yet reported. (A42). The decision of the United
States District Court For The Northern District of Ohio, Western
Division in Bell v. Perini, is not reported. (A49).
The decision of The United States Court of Appeals For
The Sixth Circuit in Hughes v. Engle, (No. 79-3570) is unre-
ported. (A60). The decision of the United States District Court
For The Northern District of Ohio, Eastern Division in Hughes
v. Engle is unreported. (A62).
JURISDICTION
The panel decision of The United States Court of Appeals
For The Sixth Circuit in /saac v. Engle, supra was entered
February 8, 1980. (A24). Rehearing en banc was granted March
24, 1980. (A36). The en banc decision in /saac v. Engle, supra
was entered December 12, 1980 (A1).
The decision of The United States Court of Appeals For
The Sixth Circuit in Bell v. Perini, supra was entered December
12, 1980 (A42).
The decision of The United States Court of Appeals For
The Sixth Circuit in Hughes v. Engle, supra was entered
December 18, 1980 (A60).
Jurisdiction is conferred by 28 U.S.C. Section 1254(1).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
UNITED STATES CONSTITUTION, AMENDMENT XIV,
Section 1:
All persons born or naturalized in the United States, and sub-
ject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its juris-
diction the equal protection of the laws.
Ohio Rev. Code (Page's) Section 2901.05A (eff. 1-1-74)
(A) Every person accused of an offense is presumed innocent
until proven guilty beyond a reasonable doubt, and the burden
of proof is upon the prosecution. The burden of going forward
with the evidence of an affirmative defense is upon the
accused.
Ohio Rev. Code (Page's) Section 2901.O5A(Eff. 11-1-78)
(A) Every person accused of an offense is presumed inno-
cent until proven guilty beyond a reasonable doubt, and the
burden of proof for all elements of the offense is upon the
prosecution. The burden of going forward with the evidence
of an affirmative defense, and the burden of proof, by a
preponderance of the evidence. for an affirmative defense, is
upon the accused.
STATEMENT OF THE CASE
Isaac
Isaac was found guilty in a jury trial in Pickaway County,
Ohio of aggravated assault, a lesser included offense of felonious
assault for which he had been indicted. On September 15,
1975, Isaac was sentenced to a term of imprisonment of from
6 months to 5 years. During his trial, isaac relied upon an
affirmative defense of self defense. No objection was entered
to an instruction that Isaac bore the burden of proof on self
defense by a preponderance of the evidence.
Subsequent to conviction, Isaac appealed to the Court of
Appeals of Pickaway County, Ohio. Therein, Isaac relied on
the newly decided case of State v. Robinson, 47 Ohio St. 2d
103 (1976). In Robinson, the Ohio Supreme Court concluded
as a matter solely of state statutory law that O.R.C. Section
2901.05(A)(eff. 1-1-74) changed the traditional common law
preponderance burden of proof on affirmative defenses to
require that a defendant only have the burden of coming
forward with sufficient evidence to create an issue as to the
affirmative defense.' The State then bore the burden of proof
beyond a reasonable doubt, not only as to the statutory elements
of the crime, but also as to the non existence of the affirmative
defense. The Court of Appeals affirmed Isaac's conviction on
the basis that he had failed to object to the instruction given.
isaac further appealed to the Ohio Supreme Court which
denied relief on July 20, 1977. On the same day, the Ohio
Supreme Court decided State v. Humphries, 51 Ohio St.
2d 95 (1977) holding that although the interpretation of O.R.C.
Section 2901.05(A) worked by Robinson was fully applicable
to all trials conducted after January 1, 1974, the effective date
of the statute, a defendant who had not objected to the charge
on that basis would be precluded from relief.
‘In reaction to the Robinson decision, the Ohio legislature amended O.R.C.
Section 2901.05, effective November 1, 1978, to return to the common law
preponderance standard.
On March 31, 1978, Isaac filed a petition for writ of habeas
corpus with the United States District Court For The Southern
District of Ohio, Eastern Division. Therein Isaac alleged as his
sole proposition the failure of the Ohio Courts to apply the
Robinson decision to his case. The district court, on June 26,
1978 denied the petition, “because the record clearly establishes
that petitioner waived his constitutional claim by failing to present
it to the trial court”. (A41).
Upon appeal, a panel of The United States Court of Appeals
For The Sixth Circuit, on February 8, 1980, voted to reverse.
(A24). The majority found error on the basis that the selective
denial by the Ohio Supreme Court of the benefits of the Robinson
decision was itself arbitary and capricious and thus a denial of
due process. (A26). As such, the majority did not consider the
question of whether the instruction itself was a violation of due
process. (A31). The concurrence (A33) found error on the basis
that the statutory interpretation of Robinson had redefined the
burden of proof in constitutional terms. (A34). Rehearing en
banc was granted on March 24, 1980. (A36).
The decision on rehearing en banc was entered December
12, 1980 and resulted in a 4 member plurality, 2 one judge
concurrences and 3 separate dissents representing the votes
of 4 judges. (A1). The plurality found error in that Robinson
created a functional element of “absence of the affirmative
defense” which the State was then required to disprove. (AQ).
Chief Judge Edwards in concurrence was of the view that due
process per se requires negation by the State of self defense
(A10) and Judge Jones in a separate concurrence expressed
approval of the panel decision. (A12). In dissent, Judge Lively
disputed the contention of the plurality that Ohio had created a
new “element” of the crime. (A16). Judge Engel joined in this
opinion as clarified by a subsequent order of the court (A23).
Judges Merritt and Kennedy in separate dissents (A20) and
(A21) would have found waiver by the failure to object.
On December 31, 1980, the Court granted a stay of the
mandate pending certiorari to this Court. (A37).
Bell
Bell was found guilty in a jury trial in Cuyahoga County,
Ohio of murder, a lesser included offense of aggravated murder
for which had had been indicted. On April 8, 1975, Bel! was
sentenced to a term of imprisonment of from 15 years to life.
Like Isaac, Bell relied upon the affirmative defense of self
defense and failed to object to the traditional jury instruction
that he bore the burden of proof as to such defense by a
preponderance of the evidence.
Subsequent to conviction, Bell appealed to the Court of
Appeals of Cuyahoga County, Ohio and the Ohio Supreme
Court raising issues not pertinent herein. Said appeals were
respectively denied on April 8, 1975 and September 16, 1976.
Thereafter, Bell filed a petition for writ of habeas corpus
with the United States District Court For The Northern District
of Ohio, Western Division. As a sole ground for relief, Bell
raised for the first time, a due process challenge to the instruction
on self defense.
On December 26, 1978, the district court issued an opinion
and order denying the petition on the merits. (A49). On January
23, 1978, the district court issued a second opinion and order
denying Bell's motion for reconsideration. (A56).
Upon appeal, The United States Court of Appeals For The
Sixth Circuit on December 12, 1980, reversed on the authority
of the en banc decision in /saac. (A42). On December 31, 1980,
the appellate Court granted a stay of the mandate pending
certiorari review. (A48).
Hughes
Hughes was found guilty in a jury trial in Summit County,
Ohio of the crime of voluntary manslaughter, a lesser included
offense of aggravated murder for which he had been indicted.
On January 27, 1975, Hughes was sentenced to a term of
imprisonment of from 6-25 years. Like Isaac and Bell, Hughes
relied on self defense at trial and raised no objection to an
instruction that he bore the burden of proof of the affirmative
defense of self defense by a preponderance of the evidence.
In fact, Hughes’ counsel specifically requested the charge that
was given.
Subsequent to conviction, Hughes appealed to the Court of
Appeals of Summit County, Ohio and the Ohio Supreme Court.
Said appeals were respectively denied on September 24, 1975
and March 16, 1976, both in advance of the decision in Robin-
son. No contention was made in either appeal that the
instructions on self defense violated due process.
On April 26, 1977, Hughes filed a petition for writ of
habeas corpus with the United States District Court For The
Northern District of Ohio, Eastern Division. Therein, Hughes
challenged the constitutionality of the instruction on self de-
fense.
On June 26, 1979, the district court, after interim orders
requesting briefing on exhaustion of state remedies and the
merits, issued its opinion denying the petition. (A62). The district
court found alternatively that Hughes’ burden shifting claim
was waived by failure of objection and that the instruction itself
did not violate federal due process.
On December 18, 1980, The United States Court of Appeals
For the Sixth Circuit reversed on the basis of the /saac decision.
(A60). A motion to stay the mandate pending certiorari was
granted on January 21, 1980. (A61).
Status of the Parties
During the interim of proceedings in the courts below,
Hughes and !saac were granted final releases as a matter of
parole and thus have served their sentences. The action as to
them proceeds only with respect to the collateral consequences
of reversed convictions. Bell is still in prison and a “live” case
is still in existence. In addition, approximately 25 pending
“live” actions now exist in the appellate and district courts for
which motions to stay issuance of decision are pending. The
decisions in /saac, Bell and Hughes are potential precedent for
the release of every Ohio prisoner between 1974-1978 who
relied on affirmative defenses.
ARGUMENT IN SUPPORT OF CERTIORARI
The instant cases present novel, complex, and important
issues of both federal constitutional law and federal state
relationships. As characterized by Chief Judge Edwards,
concurring in /saac:
Few cases in the history of this Court have resulted in as much
soul-searching thought and debate as has this case.
(A10). While obviously important to the State of Ohio, it is not
just the fact of the number of prisoners who will be released
under the authority of these cases—primarily homicides—or
even the multiplicity and lack of uniformity of the opinions of
the Court below—six separate opinions on rehearing en banc
in /saac—that demands review and reversal. Rather it is the
misapplication of this Court's decision in Wainwright v. Sykes,
supra and the lower court's reconstruction of Ohio's definition
of the elements of crime that present issues of national
importance. Utilizing the criteria of “cause” and “prejudice”, as
outlined in Wainwright, the petition will demonstrate not only
the need for further clarification in these areas but that the
instant cases present the proper factual and legal parameters
for such resolution. In this regard, it should be noted that the
United States Court of Appeals For The Fourth Circuit—also
on rehearing en banc—is in conflict with the en banc decision
in Isaac. Cole v. Stevenson, 620 F. 2d 1055 (4th Cir. 1980).
|. WHETHER THE “CAUSE” REQUIREMENT OF WAIN-
WRIGHT V. SYKES, 433 72 (1977) FOR OBVIATING A STATE
PROCEDURAL WAIVER MAY BE FOUND WHERE A FAILURE
TO OBJECT TO AN INSTRUCTION PLACING THE BURDEN
OF PROOF ON A CRIMINAL DEFENDANT OF THE AFFIRMA-
TIVE DEFENSE OF SELF DEFENSE IS PREDICATED SOLELY
ON THE FACT THAT THE DEFENDANT'S TRIAL OCCURRED
PRIOR TO A STATE COURT DECISION WHICH RETRO-
ACTIVELY AND SOLELY AS A MATTER OF STATE LAW
ELIMINATED THE DEFENDANT'S TRADITIONAL COMMON
LAW ULTIMATE BURDEN ON AFFIRMATIVE DEFENSES.
Prior to 1974, Ohio followed the traditional common law
view that a defendant bore the ultimate burden of proof by a
preponderance of the evidence when an affirmative defense
like insanity, self defense or duress was raised. State v. Seliskar,
35 Ohio St. 2d 95 (1973). The traditional instruction outlined
the statutory elements of the crime, the state's burden of proof
beyond a reasonable doubt as to such elements, the factors
constituting the affirmative defense and the defendant's burden,
and the repeated admonition that the failure of the defendant
to meet his burden on the affirmative defense did not relieve
the state of its ultimate burden of proof as to the elements of
the crime. In each of these cases, the traditional instruction
was given.
in 1974, Ohio enacted O.R.C. Section 2901.05, which as
interpreted in Robinson relieved the defendant of this historic
obligation of burden of proof, substituting instead merely a
“burden of production”. In a real sense, the decision was not
foreshadowed either by the terms of O.R.C. Section 2901.05
nor interim decisions of the Ohio Supreme Court. In State v.
Rogers, 43 Ohio St. 2d 28, 33 (1975), decided after O.R.C.
Section 2901.05 had been enacted but prior to Robinson, the
Ohio Supreme Court stated:
The defense of using reasonable force to effect a citizen
arresi necessarily involves an allegation of excuse or justifi-
cation and is, therefore, an affirmative defense (RC.
2901 .05[c] [2]) which places the burden of going forward with
the evidence upon the accused (R.C. 2901.05/A]}) to prove that
issue by a preponderance of the evidence.
As a result, few Ohio counsel objected to the traditional
instruction. It is from this factor that the appellate court found
“cause” under Wainwright.
In State v. Humphries, supra, the Ohio Supreme Court
found as a matter of state law that the failure to object would
be deemed a procedural waiver of a Robinson claim. Therein,
the Court specifically relied upon prior direction by this Court
that a subsequent decision is not per se “cause” sufficient to
overcome the normal contemporaneous objection rule:
The States, if they wish, may be able to insulate past convic-
tions by enforcing the*normal and valid rule that failure to
object to a jury instruction is a waiver of any claim of error.
Hankerson v. North Carolina, 432 U.S. 233, 244 n. 8(1977). In
Hankerson, this Court held Mullaney v. Wilbur, 421 U.S. 684
(1975) to be fully retroactive. The above statement was made
in reaction to the state's concern that such holding would
substantially undermine the finality of convictions entered
prior to Mullaney. In reliance on such holding, Ohio has
consistently found the Robinson error not to be “plain error’.
State v. Williams, 51 Ohio St. 2d 112 (1977); State v. Long, 53
Ohio St. 2d 91 (1978). The holding of the appellate court
below is a direct rejection of the direction given in
Hankerson.’
The majority in the panel decision in /saac dismissed the
quoted portion of Hankerson as mere “dicta” (A27) and found
Ohio's reliance on it to be arbitrary and capricious. (A31). This
created an anomoly for the appellate court as that court had
flirted with the very same proposition:
As stated above, unless we accord retroactive application to
the Mauro decision no violation of the IAD occurred in the
present case. In light of our conclusions that appellant waived
any IAD claim he may have had and that Section 2255 is not an
appropriate vehicle to raise appellant's |AD claim, we need not
decide whether Mauro should receive retroactive application
Mars v. United States, 615 F. 2d 704, 707 (6th Cir. 1980).
Moreover, since Hankerson, this Court has consistently re-
affirmed that portion quoted above. Lee v. Missouri, 439 US.
461 (1979); Harlin v. Missouri, 439 U.S, 459 (1979). It was for
this reason the plurality en banc in /saac found the majority
panel decision to be an unsatisfactory basis of decision. (AS).
*The finding of “cause” in these cases allowed the appellate court to bypass a
more direct challenge to Wainwright itsell. In prior decisions of the Sixth Circuit
4 substantial number of judges have expressed the view that a federal court may
review an alleged error if the state court system has a plain error review
mechaniam—even if the state court has specifically rejected that it is plain error
under that system. See specifically: Hockenbury v. Sowders, 633 F. 2d 433 (6th
Cir, 1980), see also: Berrier v. Egeler, 683 F.2d 616 (6th Cir, 1978), cert, denied,
439 U.S. 055; Canary v. Bland, 683 F. 2d 887 (6th Cir. 1978), Cook v. Borderkireher,
602 F. 2d 117 (6th Cir, 1979) cert, denied, 444 US. 936, Rachel v. Bordenkircher,
590 F. 2d 200 (6th Cir, 1978), Krzeminski v. Perini €14F 2d 121 (6th Cir, 1980)
Such view of Wainwright undercuts the purpose of the decision—to make the
trial itself the main component of the criminal system and not a forerunner of
later discovered collateral claims. It also runs contrary to this Court's admonition
in Menderson v. Kibbe, 431 U.S. 145 (1977) that challenges to a state court's
instructions require a greater showing than ‘plain error:
10
Relying on O'Connor v. Ohio, 385 U.S. 95 (1966), the
plurality en banc in /saac found cause in the “futility” of counsel!
making an objection in light of well settled law (A 6). Aside
from the fact that counsel in Robinson did make the objection
and was successful on appeal, the present case is not O'Connor.
in O'Connor, trial took place prior to the time that the consti-
tutional provision relied upon had even been applied to the
states. Here, O.R.C. Section 2901.05 had been enacted, and
Mullaney and in re Winship, 397 U.S. 358 (1970) had been
decided. Thus, while the decision may not generally have
been anticipated, it was not unanticipatable.
The problem with the plurality's analysis is that it relieves
counsel from any obligation to attempt to change the law and
removes any possibility of waiver, Presumably if the objection
is well known, the failure to make it will be deemed ineffective-
ness of counsel. Beas/ey v. United Statos, 481 F. 2d 687 (6th
Cir, 1974), On the other hand, if the objection is not perceived
until a subsequent decision is rendered, then “cause” is found
in the lack of anticipation. Such interpretation renders Wain-
wright a nullity,
In dissent, Judge Kennedy correctly stated:
if, as this court holds, a change in interpretation of the law
provides “cause” for a defendant's failure to object at trial
sufficient to satisfy the cause and prejudice exception of
Wainwright, then the impact on the administration of justice
of making that interpretation retroactive can never be mitigated
by application of the state's contemporaneous objection
rules, | do not believe that the suggestion in Hankerson to the
contrary can be 80 freely ignored
(A22) See also: Cole v. Stevenson, supra. As the appellate court
“freely ignored” Hankerson, certiorari should be granted.
ll, WHETHER THE “PREJUDICE” REQUIREMENT OF
WAINWRIGHT V. SYKES, SUPRA, FOR OBVIATING A STATE
PROCEDURAL WAIVER MAY BE FOUND BY CONSTRUING,
CONTRARY TO THE STATE COURT'S OWN INTERPRETA-
TION OF ITS LAW, A STATE COURT DECISION ELIMINATING
A DEFENDANT'S TRADITIONAL COMMON LAW ULTIMATE
BURDEN ON AFFIRMATIVE DEFENSES. TO CREATE A
FUNCTIONAL ELEMENT OF THE CRIME OF "ABSENCE OF
THE AFFIRMATIVE DEFENSE”.
1
In Carterv.Jago, F.2d = (No, 79-3317, 6th Cir, 1980),
(A), the same appellate court as decided the cases sought
to be reviewed herein held in a pre 1974 trial, that the traditional
common law instruction on the affirmative defense of self
defense does not impermissably shift the burden of proof on
the elements of crime. See also: Krzeminski v. Perini, supra at
124:
Patterson makes it clear that so long as the jury is instructed
that the state has the burden of proving every element of the
crime beyond a reasonable doubt, there is no due process
violation, The state may 4. operly place the burden of proving
affirmative defenses such as self defense, extreme emotional
disturbance or insanity upon the defendant
This holding creates the bottom line analysis that a trial in Ohio
in 1973 with the same instruction as given in these cases is
constitutionally fair, whereas in these cases the instruction is
constitutionally unfair. That the time parameters of the trial
should make a difference in constitutional terms underscores
the error of the court below.
in Carter, the appellate court correctly analyzed the
dichotomy between this Court's decisions in Mullaney, supra
and Patterson v. New York, 432 U.S. 197 (1977). In Mullaney,
the state had presumed the very factor —malice—which made
a distinction between degrees of culpability as defined by the
state law whereas in Patterson, the state bore the burden of
proof as to each element of the crime and nothing required for
a finding of criminal liability was presumed, See also: Rivera v.
Delaware, 429 U.S. 877 (1976); State v. Frost, 57 Ohio St. 2d
121 (1979). The traditional instruction that failure of the
affirmative defense did not relieve the state of its burden of
proof as to the elements of the crime drew the same dichotomy.
No element of the crime was presumed.
To reconcile the fact that the instruction given is not per se
violative of due process (But Cf Judge Edward's concurring
opinion and Judge Merritt's dissent A10, 20)° the plurality in
isaac held that the enactment of O.R.C. Section 2901.05 in
1974 created a functional element of the crime of ‘absence of
the affirmative defense.”
12
As we read Mullaney and Patterson, while the states are largely
free to define crimes as they choose, fundamental fairness
and therefore due process require that they prove the elements
of the crimes as the states have chosen to define them beyond
a reasonable doubt. We further conclude that once a state
assumes the burden of proving the absence of an affirmative
defense beyond a reasonable doubt, fundamental fairness and
therefore due process require it to meet the burden that it
chose to assume.
(AQ). Simply stated, the court converted a change in the burden
of proof with respect to an affirmative defense into an additional
element of crime not included within the statutory definition of
that crime. In so doing, the appellate court violated the admonition
of this Court in Mullaney, supra at 691:
... that state courts are the ultimate expositors of state law,
... and that we are bound by their constructions except in ex-
treme circumstances not present here.
Self defense has traditionally been an affirmative defense
under the law of Ohio. As such, the existence or non existence
of the defense is collateral to the elements of crime:
This court has consistently recognized that there are certain
“justification(s) for admitted conduct” allowed to a defendant
in a criminal case, provable for the most part under the plea
of not guilty, which are referred to as ‘affirmative defenses”.
As characterized by one authority, they represent not a mere
denial or contradiction of evidence which the prosecution has
offered as proof of an essential element of the crime charged,
but rather, they represent a substantive or independent
matter” which the defendant claims exempts him from liability
even if it is conceeded that the facts claimed by the prosecu-
tion are true”. Among those defenses in Ohio are self defense,
duress, insanity, and intoxication.
3The Carter court rejected the notion that due process requires the negation of
self defense:
Allowing a State to treat self defense as an affirmative defense is consistent
with the concerns expressed in Patterson for allowing the legisiature branch
sufficient latitude to define mitigating factors that affect criminality
(A82) Thus, while noted in Patterson that some limits may be placed on a
legislature's definition of crime, making self defense an affirmative defense is not
violative of this principle.
13
State v. Poole, 33 Ohio St. 2d 18, 19 (1973). Nothing in the
enactment of O.R.C. Section 2901.05 in 1974 changed the
characterization of self defense as an affirmative defense.
While Robinson was intended to lessen the defendant's obliga-
tion to raise the affirmative defense, it still remains collateral
to the question of whether the elements of the crime have
been proved.
That the appellate court chose to rewrite Ohio law is most
clearly seen by their failure to even cite State v. Abner, 55
Ohio St. 2d 251 (1978). In Abner, the Ohio Supreme Court
rejected the contention that a defendant under Robinson was
entitled to a specific instruction on the state’s burden to disprove
the absence of self defense. By doing so, the Ohio Supreme
Court reaffirmed that even under Robinson self defense is an
affirmative defense, not an element of the crime. As found by
Judge Lively in dissent:
The jury does not reach a defense of self defense until it finds
that all elements of an offense have been established beyond
a reasonable doubt.
(A18).
Petitioners do not minimize the notion that changing the
burden of proof on the affirmative defense of self defense may
in some cases alter the outcome of a trial. The question before
the Court however is whether the trial of these respondents
was fundamentally unfair. While Robinson adopted a benefit
for defendants to the extent it lessened their burden on the
affirmative defenses, Robinson was itself not constitutionally
required. Carter v. Jago, supra. As such, the appellate court
below found prejudice in the failure of the state courts to apply
a state statutory and non constitutionally required benefit.
Such holding reflects a misperception of the role of a federal
court upon habeas corpus—to correct errors of constitutional
dimension. As the court below reached its result by rejecting
the Ohio Supreme Court's own construction of its law, certiorari
should be granted.
14
CONCLUSION
In Wainwright v. Sykes, this Court adopted a standard of
“cause and prejudice” for reviewing whether a state procedural
waiver would be an independent state ground precluding review.
Little direction was given to the lower courts as to the definition
of cause and prejudice and as illustrated by these cases, the
lower appellate courts have struggled to give meaning to such
phrases. As the instant cases present a viable model in which
to further define “cause” and “prejudice”, certiorari should be
granted. As the decision of the court below is erroneous on
both “cause and prejudice” reversal is required. By that means,
Ohio will not suffer the vacation of numerous final and
fundamentally fair convictions.
Respectfully submitted,
WILLIAM J. BROWN
Attorney General
SIMON B. KARAS
Counsel of Record
RICHARD DAVID BRAKE
Assistant Attorneys General
State Office Tower, 26th Fioor
30 East Broad Street
Columbus, Ohio 43215
(614) 466-5414
Attorneys for Petitioners
15
CERTIFICATE OF SERVICE
Pursuant to Rule 28.5(b), Rules of the Supreme Court, |
hereby certify that the requisite number of copies of the
foregoing petition for writ of certiorari have been served on
respondents Lincoln Isaac, Kenneth Bell, and Howard Hughes
by forwarding such copies to the offices of their respective
counsel, James R. Kingsley, 157 W. Main Street, Circleville,
Ohio 43113 and Jay McKirahan, Suite 330, 22 East Gay Street,
Columbus, Ohio 43215, counsel for Isaac; Richard L. Aynes,
Appellate Review Office, School of Law, The University of
Akron, Akron, Ohio 44325, counsel for Bell; and J. Dean
Carro, Appellate Review Office, School of Law, The University
of Akron, Akron, Ohio 44325, counsel for Hughes, by U.S.
Mail, postage paid, this day of February, 1981. | further
certify that all parties required to be served have been so
served. The respondents’ addresses are Lincoln Isaac, 310
Ray Avenue, Circleville, Ohio 43113; Kenneth Bell, #141-727,
Marion Correctional Institution, P.O. Box 57, Marion, Ohio 43302,
Howard Hughes, c/o Beasley Surles, 163 Rhodes Avenue,
Akron, Ohio 44302.
SIMON B. KARAS
Counsel of Record
16
APPENDIX
Isaac v. Engle, F.2d (No. 78-3488, 6th Cir. 1980), Opinion,
December 12, 1980 (en banc.)
Isaac v. Engle, supra
Order, December 16, 1980 clarifying en banc decision.
Isaac v. Engle, supra
Opinion, February 8, 1980 (panel).
Isaac v. Engle, supra
Order, March 24, 1980 granting rehearing en banc.
Isaac v. Engle, supra
Order, December 31, 1980 staying the mandate pending certiorari
Isaac v. Engle, No. C-2-78-278 (S.D. Ohio, June 26, 1978)
Opinion
Bell v. Perini, F.2d (No. 79-3153, 6th Cir. 1980)
Opinion, December 12, 1980
Bell v. Perini, supra
Order, December 31, 1980 staying the mandate pending certiorari
Beil v. Perini, No. C78-343 (N.D. Ohio, December 26, 1978)
Opinion.
Bell v. Perini, No. C78-343, supra
Order, January 23, 1979, denying reconsideration.
Hughes v. Engle, No. 79-3570, 6th Cir.
Opinion, December 18, 1980
Hughes v. Engle, supra
Order, January 21, 1981 staying the mandate pending certioran
Hughes v. Engle, No. C77-156A (N.D. Ohio, June 26, 1979)
Opinion
Carter v. Jago, F.2d (No. 79-3317, 6th Cir. 1980)
Opinion, December 22, 1980.
Al
A23
A24
A36
A37
A38
A42
A48
A4g
AS6
A60
A61
A62
A69
Al
No. 78-3488
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LINCOLN ISAAC, f
Petitioner-Appeliant, United States District
vs.
TED ENGLE, Superintendent, peng Ha ge
Respondent-Appellee. Eastern Division.
On Appeal from the
[Decided and Filed December 12, 1980)
Before: Edwards, Chief Judge; Weick, Lively, Engle, Keith,
Merritt, Brown, Kennedy, Martin and Jones, Circuit Judges,
sitting En Banc.
Brown, Circuit Judge, delivered the opinion of the Court
in which Weick, Keith, and Martin, Circuit Judges, concurred;
Edwards, Chief Judge (p. 12) and Jones, Circuit Judge (pp. 13-
16) delivered separate concurring opinions, and Lively, Circuit
Judge (pp. 17-21), Merritt, Circuit Judge (p. 22) and Kennedy,
Circuit Judge, (pp. 23-25) delivered dissenting opinions.
Bailey Brown, Circuit Judge. In this appeal, we are
confronted with the difficult task of determining the federal
constitutional consequence, if any, of two decisions by the
Supreme Court of Ohio. One of these decisions for the first
time construed an Ohio statute to place the burden on the
state in criminal cases of proving the absence of affirmative
defenses, and the other decision held that only those defendants
who had objected at the trial to jury instructions placing the
burden on defendant to prove an affirmative defense could
avail themselves on appeal of this interpretation of the statute.
Prior to 1974, Ohio followed the traditional common law
rule that the defendant in a criminal case not only had the
A2
burden of going forward with evidence to create an issue as to
an affirmative defense but also had the ultimate burden of
proving such affirmative defense by a preponderance of the
evidence. State v. Seliskar, 35 Ohio St. 2d 95 (1973). As of
January 1, 1974, however, a new statutory provision became
effective, That provision, codified as Ohio Revised Code Section
2901.05(A), stated:
(A) Every person accused of an offense is presumed innocent
until proven guilty beyond a reasonable doubt, and the burden
of proof is upon the prosecution. The burden of going forward
with the evidence of an affirmative defense is upon the
accused.
The language of the new statute was not free of ambiguity. As
a result Section 2901.05(A) was not initially considered to
effect any change in the previous common law rule. As late as
1975, the Supreme Court of Ohio reaffirmed at least in a
dictum the principle that a defendant must bear the burden of
proving affirmative defenses by a preponderance of the
evidence. State v. Rogers, 43 Ohio St. 2d 28 (1975).'
In 1975, appellant, Lincoln Isaac, was indicted in Ohio for
felonious assault. At his trial, lsaac asserted that he had acted
in self-defense. The trial court instructed the jury without any
objection by Isaac that it was incumbent on Isaac to demonstrate
self-defense by a preponderance of the evidence. The jury
found Isaac guilty of the lesser included offense of aggravated
assault. Isaac was sentenced to a term of six months to five
years imprisonment.
‘In Rogers, the Ohio Supreme Court stated
The defense of using reasonable force to effect a citizen arrest necessarily
involves an allegation of excuse or justification, and is, therefore, an affirmative
defense (R.C. 2901. 05{(C] (2]) which places the burden of going forward with
the evidence upon the accused (RC. 2901 OS/A)) to prove that issue by a pre-
ponderance of the evidence. See State v. Seliskar, supra, 35 Ono St 2d 95.
298 NE. 2d 582
A3
Prior to any appeal by Isaac, the Supreme Court of Ohio,
in State v. Robinson, 47 Ohio St.2d 103 (1976), concluded that
Section 2901.05(A) had changed the previously accepted
common law rule allocating the burden of proof in criminal
cases. The court construed Section 2901.05(A), effective
January 1, 1974, to adopt the majority rule that a defendant
only has the burden of coming forward with sufficient evidence
to create an issue as to an affirmative defense and that once
such evidence is presented, the prosecution then must demon-
strate beyond a reasonable doubt the guilt of the defendant
even to the extent of disproving such affirmative defense.
Interpreting Section 2901.05(A) in this manner, the Supreme
Court of Ohio held that any jury instruction placing the burden
of proving an affirmative defense on the defendant constituted
prejudicial error.
Relying on Robinson, \saac appealed his conviction. The
Court of Appeals for Pickaway County held that Isaac had
waived any error in the jury instruction on burden of proof by
failing to object to that instruction. Accordingly, it affirmed
Isaac's conviction. Isaac thereafter filed an appeal in the Supreme
Court of Ohio. That appeal was dismissed in 1977 for lack of a
substantial constitutional question.
On the same day that it dismissed Isaac's appeal, the
Supreme Court of Ohio reaffirmed the interpretation of Section
2901.05(A), placing the burden on the state to prove absence
of affirmative defenses, that it had made in Robinson. State v.
Humphries, 51 Ohio St.2d 95 (1977). At the same time, however,
the court held that appellant Humphries could not avail himself
of this interpretation of the statute because he had not objected
to the charge to the jury on this ground, relying on Ohio
Criminal Rule 30. The court, nevertheless, in the same opinion,
held that appellant Meyer, who had had a bench trial, could
effecitvely raise the question on appeal since Criminal Rule 30
did not apply to such trials. Ohio has continued to so apply its
contemporaneous objection rule. State v. Long, 53 Ohio St.2d
91 (1978).
in 1978, Isaac sought habeas corpus relief in federal district
court. Without reaching the merits of Isaac's claim, the district
court dismissed his petition. The court, relying on Wainwright
v. Sykes, 433 U.S. 72 (1977), held that federal habeas corpus
A4
review was precluded by an adequate state procedural ground,
specifically, the Ohio rule that the failure to object to a jury
instruction waived any error in such instruction.
Inisaacv. Engle, F.2d (decided February 8, 1980)a
panel of this court reversed the decision of the district court,
Judge Celebrezze writing a concurring opinion. The focus of
the panel opinion was on the constitutionality of Ohio's use of
its cogtemporaneous objection rule as a means of limiting the
benefits of the Robinson decision. The panel opinion concluded,
preliminarily, that Wainwright v. Sykes was simply not applicable
and therefore there was no bar to consideration of this
constitutional claim since such claim was not directed at the
substantive validity of the jury instructions allocating the burden
of proof. As to the merits of the claim, all three members of the
panel determined that Ohio's failure to grant Isaac the benefits
of Robinson represented a denial of due process. The panel
divided, however, as to the appropriate basis for reaching
such a conclusion. Judges Peck and Phillips determined that
Ohio's use of its contemporaneous objection rule was arbitrary
and capricious and therefore a denial of federal due process
under the circumstances of this case because there was no
basis for objection to the jury instruction at the time of Isaac's
trial. Judge Celebreeze, adopting a somewhat broader approach,
aintained that the placing of the burden of proof is so critical
n the truth-finding process that the change in interpretation of
the law allocating that burden must have “retroactive application”
without any limitations based on state procedural rules.
We granted a petition for rehearing en banc to consider
the important issues presented by this case.
We recognize that the use of a contemporaneous objection
rule as a procedural device to deny a defendent the retro
active benefits of an important change in state law is arguably
arbitrary and capricious when there did not exist a reasonable
basis for an objection at the time of the trial. The Supreme
Court, however, has at least suggested that such a use of a
procedural rule may be a valid means of limiting the retro-
AS
active benefit of a new constitutional principle. Hankerson v.
North Carolina, 432 U.S. 233, 244 n. 8 (1977). Moreover, as a
matter of comity, states are entitled to some deference in the
manner that they apply their own procedural rules. We are
therefore hesitant to hold, as did the panel opinion, that this
use of a contemporaneous objection rule to limit the retroactive
benefits of a new statutory interpretation is, ipso facto, violative
of due process.
We believe that the more appropriate focus is on the
underlying claim, in this case the constitutional validity of the
jury instructions given at Isaac's triai as considered in light of
Robinson and Humphries. \n this context, the threshold question,
then, is not whether the state's limiting of the retroactive
benefits of a new statutory interpretation through the use of a
procedural rule is constitutional but whether that state procedural
rule effectively precludes federal habeas corpus review of the
underlying constitutional claim.
IV
In Wainwright v. Sykes, 433 U.S. 72 (1977), the Supreme
Court held that a petitioner's failure to comply with a state
procedural rule represents an independent and adequate state
ground barring habeas corpus review of a constitutional claim
absent a showing of cause for the noncompliance and a showing
of prejudice resulting from the constitutional violation.? The
Court, however, declined to define precisely what would
constitute “cause” and “prejudice.” That task was feft for
development in subsequent cases. While the “cause” and
“prejudice” standards of Wainwright still remain somewhat
undefined, we conclude that the circumstances of this case
satisfy both of those standards.
At the time of Isaac's trial, there was no indication that the
jury instruction given by the trial court was contrary to state
law. Ohio had traditionally placed the burden of proving
?See also Hockenbury v. Sowders, F.2d , No. 79-3339 (6th Cir. April 17,
1980).
A6
affirmative defenses on the defendant. Moreover, the Supreme
Court of Ohio had in a dictum stated that the recently enacted
statute, Ohio Revised Code Section 2901.05(A), did not change
the previous common law rule. See State v. Rogers, supra.
Confronted with such well-established law, it would have seemed
futile for Isaac to object to a jury instruction allocating to the
defendant the burden of proving self-defense. A defendant
cannot be expected to predict a change in the interpretation of
state law when the law is so well-established and there has
been no hint of a change in that law. See O'Connor v. Ohio,
385 U.S. 92 (1966). Moreover, it was not, as will be seen
hereafter in dealing with the merits of Isaac's constitutional
claim, until the later decision of the Supreme Court of Ohio in
Robinson, supra, interpreting Ohio Revised Code Section
2901.05(A) as placing the burden on the state to prove the
absence of affirmative defenses, could Isaac know that the
charge to the jury violated federal due process. Therefore,
Isaac had legitimate cause for his failure to object to the jury
instruction allocating the burden of proof.
The resulting prejudice is clear. The burden of proof is a
critical element of the fact-finding process in a criminal trial.
See In re Winship, 397 U.S. 358 (1970). An error in the allocation
of that burden, here shifting from the state its burden of proving
absence of self-defense beyond a reasonable doubt to the
defendant to prove self-defense by a preponderance of the
evidence, profoundly affects the basic fairness of a defendant's
trial. In such cases, prejudice may be presumed. Rachel v.
Bordenkircher, 590 F.2d 200 (6th Cir. 1978).°
Having found both “cause” and “prejudice,” we are not
precluded under Wainwright v. Sykes, supra, from considering
whether it was a denial of due process to place on Isaac the
burden of proving that he had acted in self-defense.
3Since at trial Isaac by his testimony made a substantial issue as to his self-
defense contention, he was in fact prejudiced by the court's charge to the jury and
therefore Isaac need not rely on such presumption
A7
Vv
In in re Winship, 397 U.S. 358, 364 (1970), the Supreme
Court held that due process requires that the prosecution prove
beyond a reasonable doubt “every fact necessary to constitute
the crime,” The underlying principle of Winship is clear. A
heavy burden of proof must be imposed in criminal cases in
order to minimize the chances of innocent persons being
convicted. But while its principle is clear, the application of
Winship has proved somewhat difficult in determining to what
extent the prosecution must prove the absence of any affirmative
defenses raised by a defendant.
in Mullaney v. Wilbur, 421 U.S, 684 (1975), the Supreme
Court held unconstitutional a Maine law placing on the defendent
the burden of proving that, in killing a person, he had acted in
the heat of passion. The Court seemed to suggest that a state
could not, consistent with due process, shift to the defendant
the burden of demonstrating any fact which decreased the
degree of culpability, Under this interpretation of Mullaney,
the prosecution would be required to prove beyond a reasonable
doubt the absence of any affirmative defense raised by the
defendant, regardiess of whether that affirmative defense
negated an element of the crime as defined by state law.
Such a broad interpretation of Mullaney was rejected in
Patterson v. New York, 432 U.S. 197 (1977). In that decision,
the Court upheld the validity of a New York statute allocating
to the defendant the burden of proving that he had killed a
person while he was under the influence of extreme emotional
distress, saying:
We thus decline to adopt as a constitutional imperative, opera-
tive countrywide, that a State must disprove beyond a reason-
able doubt every fact constituting any and all affirmative
defenses related to the culpability of an accused, Traditionally,
due process has required that only the most basic procedural
safeguards be observed; more subtle balancing of society's
interests against those of the accused have been left to the
legislative branch, We therefore will not disturb the balance
struck in previous cases holding that the Due Process Clause
requires the prosecution to prove beyond a reasonable doubt
all of the elements included in the definition of the offense of
which the defendant is charged. Proot of the nonexistence of
A8
all affirmative defenses has never been constitutionally re-
quired; and we perceive no reason to fashion such a rule in this
case and apply it to the statutory defense at issue here
Id, at 210,
We construe Mullaney and Patterson together to hold that
due process requires that a state prove all elements of the
crime as the state has defined the crime, that there are due
process limits on the extent to which a state may shift the
burden to defendant by the way in which it defines crimes, but
that a state may, consistent with due process, place the burden
on defendants to prove defenses that have traditionally been
treated as affirmative defenses if such defense does not negate
an element of the crime, Krzeminski v. Perini, 614 F. 2d 121
(6th Cir, 1980),
vil
The indictment charged Isaac with felonious assault under
Ohio Revised Code Section 2903.11. This crime is defined by
the statute as follows:
Felonious assault
(A) No person shall knowingly:
(1) Cause serious physical harm to another
However, Isaac was convicted of the lesser included offense
of aggravated assault under Ohio Revised Code Section
2903.12. This crime is defined by the statute as follows:
Aggravated assault
(A) No person, while under extreme emotional stress brought
on by serious provocation reasonably sufficient to incite him
into using deadly force, shall knowingly:
(1) Cause serious physical harm to another
At trial it was Isaac's contention that he was not guilty of
any crime because he had acted in self-defense. in this
connection the trial court charged the jury, stated succinctly,
that, in order to establish this defense, it was necessary that he
show by the preponderance of the evidence that, in striking
the other party, Isaac reasonably believed that such action
was necessary to protect himself from great bodily harm.
AY
The defense of self-defense as defined in the charge to
the jury at Isaac's trial does not negate an element of the crime
of felonious assault or aggravated assault as such are defined
in Ohio Revised Code Section 2903.11 and Section 2903, 12.
This is true since one could act knowingly (felonious assault)
or knowingly and while under extreme emotional distress
brought on by serious provocation reasonably sufficient to
incite him into using deadly force (aggravated assault), and yet
act in self-defense. Moreover, while according to Mullaney
and Patterson, as we have noted, there are due process limits
to the extent to which a state may redefine the elements of a
crime and thereby reallocate the burden of proof to the
defendant, Patterson holds that in failing to make absence of
self-defense an element of the crimes of felonious or aggravated
assault as defined in Section 2903.11 and Section 2903.12,
Ohio did not violate due process.
Although the statutes defining felonious and aggravated
assault did not make absence of self-defense an element of
the crime, it is arguable that, in enacting the statute that was
construed to place the burden on the state of proving absence
of self-defense, Ohio had so made it an element of the crime.
In State v. Humphries, supra, at 111, one of the Ohio justices
did say that, in so construing Ohio Revised Code Section
2901,05(A), absence of affirmative defenses had been made
an element of the crimes. (Locher, J., concurring in part and
dissenting in part), We believe, however, that, under Mullaney
and Patterson, the proper question to ask is: Can Ohio, having
by statute assumed the burden of proof with respect to absence
of self-defense, consistently with due process convict a
defendant by applying a different and lesser standard of proof.
As we read Mullaney and Patterson, while the states are
largely free to define crimes as they choose, fundamental
fairness and therefore due process require that they prove the
elements of the crimes, as the states have chosen to define
them, beyond a reasonable doubt. We further conclude that,
once a state assumed the burden of proving the absence of an
affirmative defense beyond a reasonable doubt, fundamental
fairness and therefore due process require it to meet the
burden that it chose to assume, From the point of view of
fairness and due process, there is no practical difference
A10
between requiring a state to prove the elements of crimes
beyond a reasonable doubt and requiring it to meet its assumed
burden of proving absence of affirmative defenses beyond a
reasonable doubt. Thus we conclude that, in Isaac's trial, placing
the burden on him to prove self-defense by a preponderance
of the evidence constituted a denial of federal due process.
vil
Following the decisions of the Supreme Court of Ohio in
Robinson and Humphries, the Ohio legislature amended Ohio
Revised Code Section 2901.05(A) so as to readopt the common
law rule that a defendant must prove any affirmative defense
by a preponderance of the evidence. On any retrial, Isaac is
entitled to jury instructions consistent with Ohio law in 1975 as
construed in Robinson. Any other result would give ex post
facto effect to the 1978 amendment of Section 2901.05(A).
See Breest v. Helgemoe, 579 F. 2d 95 (1st Cir.), cert. denied,
439 U.S. 933 (1978); United States v. Williams, 475 F. 2d 355
(D. C. Cir. 1973).
Accordingly, the judgment of the district court is reversed
and the case is remanded. The district court is directed to
order that Isaac be released from custody unless Ohio chooses
to retry him within a reasonable time to be determined by the
district court.
Edwards, Chief Judge, concurring. Few cases in the history
of this court have resulted in as much soul-searching thought
and debate as has this case. | write to express concurrence in
the result reached by Judge Bailey Brown's opinion for the
majority of the en banc court. In my view, however, under /n re
Winship, 397 U.S. 358 (1970), and Mullaney v. Wilbur, 421
U.S. 684 (1975), cited with approval and distinguished on the
facts in Patterson v. New York, 432 U.S. 197 (1977), the due
process clause of the United States Constitution commands
that the burden of proof of criminal intent—clearly an element
of Ohio's aggravated assault law —be placed on the prosecution.
Here the burden of proof of self-defense was definitely placed
on the defendant. Criminal intent of aggravated assault and
self-defense are, in my view, completely irreconcilable. To
All
require a defendant to carry the burden of proof on self-
defense is to require him to disprove criminal intent.'
As to the retroactivity and the cause and prejudice issues
discussed by the Supreme Court in Wainwright v. Sykes, 433
U.S. 72 (1977); see also Hankerson v. North Carolina, 432 U.S.
233 (1977), | join fully in Judge Brown's careful analysis showing
that Isaac is entitled to a new and fair trial.
‘A full understanding of this record has convinced me that this case is not a
satisfactory medium for decision of the difficulties inherent in the collision between
Ohio's tangled laws pertaining to self-defense and federal due process standards
as exemplified in in re Winship, Mullaney v. Wilbur, and Patterson v. New York. A
motion to vacate the motion for en banc consideration as improvidently granted
has, however, failed.
A12
Jones, Circuit Judge Concurring.
! concur in the result. A majority of the en banc Court
agrees on only one point: that Isaac's imprisonment is in violation
of due process of law. This result was reached by the original
panel. The en banc Court does not agree on precise issues to
be decided as well as their correct resolution. | reluctantly
write separately because | believe that the plurality opinion
does not provide a rationale to support its conclusion and to
explain my disagreement with Judge Lively'’s and Judge
Kennedy's dissenting opinions.
Ohio Rev. Code Ann. Section 2901.05(A) became effective
on January 1, 1974. in 1976 the Ohio Supreme Court held that
Section 2901.05(A) required defendants only to proffer evidence
sufficient to raise the affirmative defense of self-defense. State
v. Robinson, 47 Ohio St. 2d 103, 351 N.E.2d 88 (1976). Isaac
was convicted in 1975. At Isaac's trial the jury was instructed
that defendant had the burden of proving the affirmative defense
of self-defense. Isaac did not object to such a jury instruction.
The decision in State v. Humphries, 51 Ohio St.2d 95, 364
N.E.2d 1354 (1977) limits the retroactive application of Robinson
to defendants who objected to the jury instruction at trial
requiring defendants to prove self-defense. Isaac's petition for
a writ of habeas corpus challenges only the use of Ohio's
contemporaneous objection rule to deny him the benefit of
the retroactive application of Robinson.
The plurality opinion defines the issue to be decided as
whether Ohio can convict a defendant by applying a different
or lesser standard of proof than that required by statute. The
plurality opinion holds that it is “unfair for a state not to meet
the burden of proof assumed by it. However, we are not told
the reasons why.
A13
The Ohio Supreme Court justified applying a ‘different or
lesser standard of proof" than that required by statute because
isaac failed to object to the jury instructions at trial. State v.
Humphries, supra.
The contemporaneous objection rule presupposes the
existence of an alleged error to be corrected. Isaac's jury
instructions were in accord with well-settled Ohio law at the
time of his trial. Thus, the panel's decision held that Ohio's use
of the contemporaneous objection rule in Isaac's case did not
have a “real and substantial relation to the ends sought to be
attained by the use of" such a rule. This approach recognizes
that state judicial decisions as well as state legislative deter-
minations are subject to due process scrutiny. This analysis
also implicitly recognizes that a state's failure to follow its own
procedural rules raises due process claims cognizable under
28 U.S.C. Section 2254.
The concurring panel opinion stated that Isaac's jury
instructions could have been objected to at trial on the principal
enunciated in Mullaney v. Wilbur, 421 U.S. 684 (1975).'
However, it correctly relied upon Hankerson v. North Carolina,
432 U.S. 233 1977, to hold that a state cannot deny full
retroactive effect to a change substantially affecting the truth-
finding process of a criminal trial.
The plurality opinion rejects these two plausible rationales,
but offers none in their place.”
Judge Lively's dissent contends that the Robinson court's
interpretation of Section 2901.05(A) to require defendants
only to proffer evidence sufficient to raise a defense of self-
defense “merely reduces the quantum of proof necessary to
‘See discussion of Mullaney in part III, infra.
?isaac has not challenged the constitutionality of his jury instructions because
Robinson holds such instructions were improper as a matter of state law. Nor has
isaac challenged the constitutionality of the statute under which he was convicted.
Thus, the lengthy discussion of Parts V and VI of the plurality opinion is dicta.
A14
sustain such a defense.” Assuming Judge Lively’'s interpretation
of Robinson is correct, Issac was entitled to a jury charge that
if the jury had a reasonable doubt as to whether he acted in
self-defense he should be found not guilty. Or, to state it
differently, this is the equivalent of charging that the burden is
on the state to prove the absence of self-defense beyond a
reasonable doubt. Additionally, Judge Lively's interpretation
of Robinson has an untenable result; the burden of proof of
the affirmative defense of self-defense is on neither the
defendant nor the prosecution.
Judge Lively also argues that “the quantum of proof
necessary to sustain the defense of self-defense is a state
procedural rule” which the state need not follow. However, a
change in the “quantum of proof necessary to sustain the
defense of self-defense” affects the truth-finding process at a
criminal trial." Hankerson holds that such a change must be
retroactively applied.
Judge Kennedy's dissent asserts that the application of
Ohio's contemporaneous objection rule bars federal review.®
The decision in Wainwright v. Sykes, 433 U.S. 72 (1977) holds
that a defendant's failure to object to error at trial will not bar
federal review of his conviction if he had “cause” not to object
and the alleged error is prejudicial. |lsaac had “cause” not to
object to the jury instructions at his trial. Isaac neither knew
nor could have known that the jury instructions at his trial were
improper under Robinson, decided two years after his trial.
There is no better “cause” for Isaac's failure to object to jury
instructions than that the jury instructions were proper at the
time of his trial.
Judge Kennedy mistakenly argues that the decision in
Mullaney was a predicate for Isaac to object to jury instructions
at his trial. Mullaney decided the issue of the constitutionality
of the definition of a substantive offense. Neither Isaac nor the
defendant in Robinson challenge Ohio's definition of a sub-
*’The question of when and how defaults in compliance with state procedural
rules can preclude our consideration at a federal question is itself a federal
question.” Henry v. Mississippi, 379 US 443, 447 (1965)
A15
stantive offense. Isaac, as well as the defendant in Robinson
argue only that their jury instructions were inconsistent with a
state law, ORC Section 2901.05(A).
A16
Lively, Circuit Judge, dissenting.
| respectfully dissent. Judge Brown's opinion recognizes
that a state may place the burden of proving an affirmative
defense upon a defendant so long as it does not require the
defendant to prove an essential element of the crime. This is
the holding of Patterson v. New York, 432 U.S. 197 (1977).
However, the opinion of Judge Brown appears to treat O.R.C.
Section 2901.05(A),' in which the legislature reduced the burden
on a criminal defendant relying upon the affirmative defense
of self-defense, as the equivalent of making the absence of
self-defense an element of the crime of felonious assault. Thus
the opinion holds that the State of Ohio violated Isaac's due
process rights by permitting his conviction under instructions
which placed upon him the burden of proving by a preponder-
ance of the evidence matters as to which it had, by statute,
assumed the burden of proof.
In State v. Robinson, 47 Ohio St. 103 (1976), the Ohio
Supreme Court construed O.R.C. Section 2901.05(A) and
specifically declined to consider constitutional arguments based
on Mullaney v. Wilbur, 421 U.S. 684 (1975). The syllabus in
Robinson, which contains the holding of the court under Ohio
practice, states:
In a criminal case involving the aftirmative defense of self-
defense, the defendant has only the burden of going forward
with evidence of a nature and quality sufficient to raise that
defense, and does not have the burden of establishing such
defense by a preponderance of the evidence. (R.C. 2901.05{A)
construed.)
i do not read O.R.C. Section 2901.05(A) and the Robinson
holding as placing on the state a burden which is the equivalent
of its burden of proving beyond a reasonable doubt each
element of a charged cffense. The statute and decision merely
reflect the state's determination that a verdict of not guilty by
‘Ohio Revised Code Section 2901.05(A), effective January 1, 1974, provided
(A) Every person accused of an offense is presumed innocent until proven
guilty beyond a reasonable doubt, and the burden of proof is upon the prosecu-
tion. The burden of going forward with the evidence of an affirmative defense is
upon the accused
Ai7
reason of self-defense may be based on “evidence of a nature
and quality sufficient to raise that defense.’ Robinson, supra.
They eliminate the former requirement that self-defense be
established by a preponderance of the evidence. In reducing
the quantum of proof required to permit an acquittal on grounds
of self-defense, the state did not make a determination that
absence of the facts necessary to sustain a plea of self-defense
“must be either proved or presumed.” Patterson, supra, 432
U.S. at 215.
| base this interpretation of Ohio's action upon my under-
standing of the nature of the defense of self-defense. In
Patterson, supra, the Supreme Court recognized that there is a
type of affirmative defense which does not seek to negative
any facts which the state is required to prove in order to
convict; that is, it does not put into issue any of the elements of
the offense. Instead, such an affirmative defense constitutes
“a separate issue." 432 U.S. at 207. This is clearly true of self-
defense under Ohio law.
In State v. Poole, 33 Ohio St. 2d 18 (1973), the Ohio court
recognized that all affirmative defenses to criminal charges
are not the same. Some, such as accident or alibi, deny the
existence of one or more elements of an offense. Affirmative
defenses such as these put in issue an element of the charge
and have no effect on the burden of proof. The burden is on
the state to prove every element of an offense beyond a
reasonable doubt whether the issue is joined by a plea of not
guilty or by reliance on an affirmative defense of the type
which controverts the existence of a particular element. To
require a defendant to prove an affirmative defense of this
type would be a violation of due process.
in Poole the Supreme Court of Ohio also defined self-
defense under Ohio law. It stated that the defense of self-
defense admits the existence of the elements of an offense
but claims an independent ground for escaping conviction. It
is in the nature of a civil plea of confession and avoidance —it
admits the facts claimed by the prosecution to establish an
offense but relies on the existence of a separate set of facts or
circumstances which the law recognizes as an excuse. When
established, this excuse exempts the defendant from liability.
As the Supreme Court in Patterson recognized, it does not
A18
violate due process to require the defendant to prove the
existence of these facts or circumstances by a preponderance
of the evidence. The jury does not reach a defense of self-
defense until it finds that all elements of an offense have been
established beyond a reasonable doubt. Thus there is no
impermissible shifting of the state's burden.
Hankerson v. North Carolina, 432 U.S. 233 (1977), does
not require us to reverse the district court. In Hankerson the
state court construed the plea of self-defense as putting in
issue an element of the offense of murder—the element of
unlawfulness. For a trial court to require a defendant to prove
self-defense, thus defined, by a preponderance of the evidence,
was clearly a violation of the rule laid down in Mullaney v.
Wilbur. Since the Ohio Supreme Court has defined self-defense
is just the opposite way in Poole—as not controverting an
element of the charge —Hankerson does not control this Ohio
habeas case. The jury charge at Isaac's trial did not shift the
burden of proof as to any element of the offense, and thus did
not violate the Winship-Mullaney rule. All that occurred was
that a state court failed to follow a state procedural statute as it
was subsequently construed by the state supreme court. No
constitutional error occurred at Isaac's trial, in my opinion.
Nor do | perceive a constitutional violation in the Ohio
Supreme Court's decision to limit the benefit of a retroactive
application of its construction of the Ohio statute to those
persons who objected to an erroneous instruction at trial.
Though the Ohio court interpreted O.R.C. Section 2901.05(A)
in such a way as to make the instruction at Isaac's trial on the
burden of proving the affirmative defense erroneous, the Consti-
tution of the United States did not require such a construction.
| believe it was within the authority of the court which construed
the statute to determine the extent of its retroactive application.’
The state did not violate Isaac's due process rights by requiring
In Linkletter v. Walker, 381 U.S. 618 (1965), the Supreme Court held that the
decision whether to apply a new constitutional holding retroactively is largely one
of policy. If this is so with respect to constitutional holdings, it cannot be argued
that a stricter standard applies where a state court issues a new statutory interpre-
tation.
A19
him to abide by a longstanding state rule of practice in order to
obtain appellate review. Shortly before the Ohio Supreme
Court determined in State v. Humphries, 51 Ohio St. 95 (1977),
to limit retroactive application of its Robinson decision to
those defendants who had objected to an erroneous instruction,
the Supreme Court appeared to invite such treatment by state
courts in dealing with constitutional errors.* If a state has this
option in dealing with a constitutional requirement, surely it is
not a violation of due process to so limit retroactive benefit of
a decision which merely construes a state procedural statute.
The Supreme Court reminded us in Patterson of considera-
tions which should guide federal courts in deciding habeas
corpus cases involving the administration by states of their
own criminal justice systems:
It goes without saying that preventing and dealing with
crime is much more the business of the States than it is of the
Federal Government, /rvine v. California, 347 U.S. 128, 134
(1954) (plurality opinion), and that we should not lightly con-
strue the Constitution so as to intrude upon the administration
of justice by the individual States. Among other things, it is
normally “within the power of the State to regulate procedures
under which its laws are carried out, including the burden of
producing evidence and the burden of persuasion,” and its
decision in this regard is not subject to proscription under the
Due Process Clause unless “it offends some principle of
justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental." Speiser v. Randall,
357 U.S. 513, 523 (1958); Leland v. Oregon, 343 U.S. 790, 798
(1952); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).
432 U.S. at 201-02.
| would affirm the judgment of the district court.
‘Humphries was decided on July 20, 1977. The opinion in Hankerson v. North
Carolina, issued June 17, 1977, contained the following footnote:
*Moreover, we are not persuaded that the impact on the administration of
justice in those States that utilize the sort of burden-shifting presumptions in-
volved in this case will be as devastating as respondent asserts. If the validity of
such burden-shifting presumptions were as well settled in the States that have
them as respondent asserts, then it is unlikely that prior to Mullaney many
detense lawyers made appropriate objections to jury instructions incorporating
those presumptions. Petitioner made none here. The North Carolina Supreme
Court passed on the validity of the instructions anyway. The States, if they wish,
may be able to insulate past convictions by enforcing the normal and valid rule
that failure to object to a jury instruction is a waiver of any claim of error. See, e.g.
Fed. Rule Crim. Proc. 30
A20
Merritt, Circuit Judge, dissenting. On the merits of this
case, | believe that the Constitution prohibits a state from
eliminating the justification of self-defense from its criminal
law and requires the state to prove as an element of the crimes
of assault and homicide that no such self-defense justification
exists. But | also believe that Judge Kennedy's analysis of
Wainwrigtit v. Sykes, 433 U.S. 72 (1977) and footnote 8 in
Hankerson v. North Carolina, 432 U.S. 233, 244 (1977) is
correct and requires us to affirm the District Court without
reaching the merits.
A21
Kennedy, Circuit Judge, dissenting. Were | to reach the
merits of petitioner's constitutional ciaim, | would concur with
Judge Lively. However, | would affirm the District Court's
denial of the writ of habeas corpus without reaching the merits,
since | agree with the District Court that petitioner's claim
does not fall within the “cause” and “prejudice” exception to
the rule in Wainwright v. Sykes, 433 U.S. 72 (1977).
Petitioner objects to Ohio's failure to apply retroactively
its determination that Ohio law removed from defendant the
burden of proving self-defense by a preponderance of the
evidence or, as the majority holds, its determination that Ohio
law made the absence of self-defense an element of the crime
of murder.
In Mullaney v. Wilbur, 421 U.S. 684 (1975), and /n re
Winship, 397 U.S. 358 (1970), the Supreme Court held that the
Due Process Clause requires the prosecution to prove beyond
a reasonable doubt all of the elements included in the state's
definition of the offense with which the defendant is charged.
Hankerson v. North Carolina, 432 U.S. 233 (1977), held that
the rule established in Mullaney and Winship was to be applied
retroactively.
Petitioner did not object to the erroneous jury instruction
during his trial, and thus ran afoul of Ohio's contemporaneous
objection rule. In Wainwright, the Supreme Court held that
where failure to comply with a state's contemporaneous
objection requirement precludes direct review of a constitutional
issue, it likewise precludes federal habeas corpus review,
absent a showing that defendant had “cause” not to object and
that “prejudice” resulted from his not objecting. This failure to
comply with the state's contemporaneous objection rule amounts
to an independent and adequate state procedural ground for
affirming the conviction with regard to that issue. Wainwright,
supra, 433 U.S. at 81-82, 86-87. The majority in this case finds
that petitioner had cause for the failure to object to the violation
of Mullaney because Mullaney was unarticipated at the t: ne
of petitioner's trial.
The cause and prejudice exception to the Wainwright rule
is not well-defined; in fact, there is little to guide the Court in
its interpretation. See Rachel v. Bordenkircher, 590 F. 2d 200,
A22
204 (6th Cir. 1978). However, when the Supreme Court in
Hankerson made Mullaney retroactive, it observed that the
resulting impact on the administration of justice would not be
burdensome. The Court reasoned that if the validity of the
burden-shifting instructions in cases of this type had been well
settied, it would be unlikely that many defense lawyers would
have made appropriate objections to those instructions. The
Court then declared that
The States, if they wish, may be able to insulate past con-
victions by enforcing the normal and valid rule that failure
to object to a jury instruction is a waiver of any claim of
error.
Hankerson, 432 U.S. at 244 n. 8.
| believe, as the Fourth Circuit recently decided, that this
language in Hankerson was intended to protect states whose
rule might have violated Mullaney from a flood of new trials.
See Cole v. Stevenson, No. 78-6211 (4th Cir., May 5, 1980)
(en banc). If, as this Court holds, a change in interpretation of
the law provides “cause” for a defendant's failure to object at
trial sufficient to satisfy the cause and prejudice exception of
Wainwright, then the impact on the administration of justice of
making that interpretation retroactive can never be mitigated
by application of the states’ contemporaneous objection rules.
1 do not believe that the suggestion in Hankerson to the
contrary can be so freely ignored.
Further, the trial in this case was held three months after
Mullaney was decided, and more than five years after /n re
Winship. Although it may have been difficult to anticipate
when the Ohio courts would recognize that their procedure
may violate Mullaney and Winship, or the exact manner in
which the rule of those cases would be applied, the rule itself
was not new or unanticipated.
It is clear that Ohio applied its contemporaneous objection
rule in this case. It is also clear that Ohio intends to apply the
contemporaneous objection rule generally in burden of proof
cases. State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804
(1978). Thus, | would hold that petitioner does not fall within
the cause and prejudice exception of Wainwright, and that
federal habeas corpus review on this issue is precluded.
A23
NO. 78-3488
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LINCOLN ISAAC,
Petitioner-Appellant,
vs.
TED ENGLE, Superintendent,
Respondent-Appellee
[FILED DEC. 18, 1980)
ORDER
The opinion of the Court in the above-captioned cause,
decided and filed December 12, 1980, shall be modified as
follows:
In the first line listing the members of the en banc Court,
“Engle” should read “Engel”;
The dissenting opinion of Judge Lively, beginning on page
17 of the slip opinion, is joined in by Judge Engel.
IT 1S SO ORDERED.
ENTERED BY ORDER OF THE COURT
Signed by
John P. Hehman, Clerk
A24
No. 78-3488
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
toe ef Appell Appeal from the
sdondant Chineotngl Oot ia Po a
TED ENGLE, Superindendent Chillicothe} ern pistrict of Ohio.
Correctional Institute Eastern Division.
Respondent-Appellee.
[DECIDED AND FILE FEB. 8, 1980)
Before: Celebreeze, Circuit Judge, and Phillips and Peck,
Senior Circuit Judges. «
Peck, Senior Circuit Judge, delivered the opinion of the
Court, in which Phillips, Senior Circuit Judge, joined. Cele-
brezze, Circuit Judge, (pp.11-13) filed a separate concurring
opinion.
Peck, Senior Circuit Judge. The principal issue in this appeal
is whether the Due Process Clause limits the selective denial of
retroactive benefits of a new statutory interpretation, where
denial is based upon failure to comply with a State's contemp-
oraneous objection rule.
In 1975, petitioner Lincoln Isaac was convicted by an Ohio
jury of one count of aggravated assault. At his trial, appellant
relied on Ohio's affirmative defense of self-defense. The trial
court instructed the jury that defendant bore the burden of
proving his affirmative defense by a preponderance of the
evidence.' This charge accorded with the prevailing law in
Ohio, and petitioner made no objection. Subsequently, the
Supreme Court of Ohio held that the Ohio legislature had
changed the burden of proof for all affirmative defenses in
Ohio, including self-defense. Interpreting Ohio Revised Code
Section 2901.05 (A),? enacted in 1974 (but amended in 1978;
see p. 9 infra), the court held that when a defendant pleads the
affirmative defense of self-defense, he has only the burden of
A25
going forward with evidence sufficient to raise the defense, and
does not have the burden of establishing the defense by a pre-
ponderance of the evidence. State v. Robinson, 47 Ohio St. 2d
103 (1976).
In the Ohio court of appeals, petitioner argued that the trial
court's jury instruction was erroneous, citing Robinson. That
court of appeals affirmed Isaac's conviction, holding that his
failure to object at trial waived any error in the jury instructions.
An appeal to the Ohio Supreme Court was dismissed sua sponte
for want of a substantial constitutional question. State v. /saac,
No. 77-412 (Ohio Sup. Ct., July 20, 1977). On the same day that
petitioner's appeal was dismissed, however, the Ohio Supreme
Court, in another case, held its Robinson decision to be applicable
retroactively to all criminal trials held after the effective date of
the statute. State v. Humphries, 51 Ohio St. 2d 95 (1977).
However, despite that holding, the Court refused to extend the
benefits of retroactivity to Humphries because of his failure to
object to the erroneous jury charge at trial. /d. at 102.
After exhausting his state court remedies, Isaac turned to
the federal courts for relief, filing a petition for a writ of habeas
corpus, asserting that he was entitled to the retroactive application
of State v. Robinson, supra, as a matter of federal constitutional
law. The district court dismissed the petition on the grounds
that appellant had shown neither cause for his failure to object
to the jury instructions nor prejudice as a result of the faulty
charge. This appeal followed.
‘The trial judge instructed the jury as follows:
The burden of proving the defense of self-defense is upon the cefendant
He must establish such defense by a preponderance of the evidence Nowa pre-
ponderance of the evidence is the greater weight of the evidence, that is, evi-
dence that you believe because it outweighs or overbalances in your mind the
evidence that is opposed to it __. If the weight of the evidence is equally balanced
or if you are unable to determine which side of an issue has the preponderance,
then the defendant has not established such issue of self-defense (Transcript
at 227-228)
?“Every person accused of an offense is presumed innocent until proven guilty
beyond a reasonable doubt, and the burden of proof is upon the prosecution. The
burden of going forward with the evidence of an affirmative defense is upon the
accused." Ohio Rev. Code. Section 2901 O5(A).
A26
Asa preliminary matter, we note that the Constitution does
not ordinarily require the retroactive application of a new
interpretation of a statute. See, e.g., Halliday v. United States,
394 U.S. 831 (1969). On the other hand, where the statute
pertains to an affirmative defense and the statute is construed
to make the absence of the affirmative defense an element of
proof of the crime itself a different result is mandated. In such a
case, the constitutional doctrine announced in Mullaney v.
Wilbur, 421 U.S. 684 (1975), and in /n re Winship, 397 U.S. 358
(1970), requiring the prosecution to prove every element of a
crime beyond a reasonable doubt, has application. Berrier v.
Egeler, 583 F. 2d 515 (6th Cir.), cert. denied, 439 U.S. 955
(1978), and the Due Process Clause requires that the new
interpretation be applied retroactively. Hankerson v. North
Carolina, 432 U.S. 233(1977). In State v. Humphries, supra, the
Ohio Supreme Court decided to apply State v. Robinson, supra,
retroactively as a matter of state law.* Accordingly, we need not
grapple with the question of whether Ohio was obligated to do
sO as a matter of due process.
In our view, the single issue in this appeal is whether the
decision of the Supreme Court of Ohio to withhold from petitioner
the benefits of Section 2901.05(A), as established in State v.
Robinson, for failure to comply with Ohio's contemporaneous
objection rule was a deprivation of due process.
The decision to apply a new rule retroactively or prospectively
is essentially one of policy, and is thus a determination to be
made by appropriate state action. Once the determination to
give retroactive effect to a new rule has been made, however,
the benefits of the right conferred may not be withheld arbitrarily.
See generally, American Ry. Express Co. v. Kentucky, 273 U.S.
269 (1931); City of Cincinnati v. Vester, 33 F. 2d 242 (6th Cir.),
aff'd, 281 U.S. 439 (1930).
Respondent insists that the criterion used by the Ohio
‘Paragraph four of the syllabus in State v. Humphries read: ‘The General Assembly
enacted R.C. 2901 05 to be effective January 1, 1974. Every criminal trial held on
and after that date is required to be conducted in accordance with the provisions
of that section.”
A27
Supreme Court in State v. Humphries, supra, 51 Ohio St. 2d 95,
at 102, to limit the application of State v. Robinson was approved
by the Supreme Court of the United States in Hankerson v.
North Carolina, supra. In Hankerson, the Supreme Court of
North Carolina held that a jury instruction that imposed the
burden of proving self-defense upon the defendant was violative
of due process under the Supreme Court's decision in Mullaney
v. Wilbur, 421 U.S. 684 (1974). Hankerson was tried before the
date on which Mullaney was decided. Concluding that it was not
required to apply Mullaney v. Wilbur retroactively to a conviction
that occurred before the date on which the Supreme Court's
decision was handed down, the North Carolina court affirmed
Hankerson’'s conviction. The Supreme Court reversed. It held
that where a new constitutional rule is designed " ‘to overcome
an aspect of a criminal trial that substantially impairs its truth-
finding function,’ the rule must be applied retroactively. 432
U.S. at 243, quoting Ivan V. v. City of New York, 407 U.S. 203,
204 (1972).
The language in Hankerson, supra, relied on by respondent
in the case at bar, came in partial response to the state's contention
that retroactivity would have a devastating effect on the
administration of justice. To this argument, the Court replied in
a footnote that a State ‘may be able to insulate past convictions
by enforcing the normal and valid rule that failure to object toa
jury instruction is a waiver of any claim of error. See. e.g., Fed.
Rule Crim. Pro 30." 432 U.S. at 244n. 8. Ohio hasa similar rule.‘
The footnote cited by respondent was dictum. The petitioner
in Hankerson, like the appellant here, failed to object to the jury
instructions at trial. The North Carolina Supreme Court chose
to pass on the validity of the instructions, nevertheless. Thus,
the question of whether a state may constitutionally utilize its
procedureal rules to bar the application of a retroactive ruling
was not before the Court.
“Rule 30, Ohio Rules of Criminal Procedure, expressly provides that, ‘[a] party
may not assign as error the giving or the failure to give any instructions unless he
objects thereto before the jury retires to consider its verdict... stating specifically
the matter to which he objects and the grounds of his objection.” See a/so State v.
Glaros, 170 Ohio St. 471 (1960).
A28
This Court, of course, is not controlled by dicta. Moreover,
we need not pass on the question of whether, as a general rule,
defendants may be required to raise their objections to jury
instructions at trial. We are confronted here with a specific
factual situation in which we are required to decide whether the
state court's decision in the instant case was arbitrary or
capricious. Thus, the test to be applied on this appeal is whether
the means selected by the Ohio Supreme Court in Humphries,
supra, bear a real and substantial relation to the ends sought to
be attained by the use of its procedural rule to deny the benefits
of retroactivity to the petitioner. Therefore, we turn to the
justification for Ohio's procedural rule that requires a defendant
to challenge jury instructions at trial or not at all.
In State v. Williams, 51 Ohio St. 2d 112 (1977), vacated in
part sub nom. Williams v. Ohio, 439 U.S. 955 (1978), handed
down on the same day that petitioner's appeal was dismissed,
the Supreme Court of Ohio, in paragraph one of the syllabus,®
said:
An appellate court need not consider an error which a
party complaining of the trial court's judgment could have
called, but did not call, to the trial court's attention at a time
ey such error could have been avoided or corrected by the
trial court.
In the text of the Williams opinion, the court went on to say:
Any other rule would relieve counsel from any duty or
responsibility to the court and place the entire responsibility
upon the trial court to give faultless instructions upon every
possible feature of the case, thereby disregarding entirely the
true relation of court and counsel which enjoins upon counsel
the duty to exercise diligence and to aid the court rather than
by silence mislead the court into commission of error. [citation
omitted] /d. at 117.
Thus, it is clear that the end which the contemporaneous
objection rule seeks to achieve is to make trial proceedings as
‘Under Ohio Law, only the points of law set out in the syllabus are considered to
have the force of law, unless the opinion is per curiam. The statements made in
the body of the opinion are the conclusions of the judge writing the opinion. See,
@.g., Haas v. State, 103 Ohio St. 1(1921)
A29
error free as possible. Wainwright v. Sykes, 433 U.S. 72, 90
(1977). The rule does not assume that a trial court will always
avoid or correct the error asserted; if it did, appellate courts
would not be needed. But, as State v. Williams, supra, suggests,
the rule does assume that some basis for the assertion of error
exists, however tenuous, that can be discovered through due
diligence of counsel and presented in good faith to the trial
court for its consideration. Stated another way, the contemp-
oraneous objection rule presupposes the contemporaneous
existence of some legal principle that is applicable to the
proceedings at trial.
In the present case, the principle that the defendant must
bear the burden of proving the affirmative defense of self-
defense was well-settled in Ohio prior to the enactment of Ohio
Revised Code Section 2901.05(A). See, e.g., Silvus v. The
State, 22 Ohio St. 90( 1871); see also, State v. Seliskar, 35 Ohio
St. 2d 94 (1973), and cases cited therein. At the time of appellant's
trial, no Ohio court had held or even indicated that the statute
had modified the common law. The committee notes that
accompanied the new statute reflected no alteration in existing
law. Nor was the statute accompanied by a transition table,
sometimes used to explain the effect of a new statute on prior
law, including the date the new law is to be phased in and the
old phased out. See, e.g., Ohio Rev. Code Ann. Sections 2903.01
and 2929.04 (Page 1975). The standard Ohio Jury Instructions,
which placed the burden of proving the affirmative defense of
self-defense by a preponderance of the evidence on the
defendant, remained unchanged after the enactment of Section
2901 .05(A). 4 O.J./. Criminal 409.60 (1970 ed.). Further, the
leading treatises perceived no variation from prior law. 1
Anderson's Ohio Criminal Practice and Procedure Section 52.15
(1975 ed.); 10. Schrader and L. Katz, Ohio Criminal Law Practice,
Tit. 29 at 14 (1974 ed.). Finally, the Ohio Supreme Court gave
credence to the view that Section 2901.05 (A) had not altered
the common law when, in State v. Rogers, 43 Ohio St. 2d 28
(1975), cert. denied, 423 U.S. 1061 (1976), it said: “[Slelf defense
is an affirmative defense, which must be established by a pre-
ponderance of the evidence (State v. Seliskar [1973], 35 Ohio
St. 2d 95, 96)... ." /d. at 30. With respect to Section 2901.05, the
Court further stated: “The defense of using reasonable force to
effect a citizen arrest. ..is... an affirmative defense (R.C.
A30
2901.05[C] [2]) which places the burden of going forward with
the evidence upon the accused R.C. 2901.05[A] to prove that
issue by a preponderance of the evidence. See State v. Seliskar,
supra, (35 Ohio St. 2d 95).” Id. at 33.
The language quoted from Rogers was dictim. Therefore,
at the time of petitioner's trial, the question of who must bear
the burden of proving the affirmative defense of self-defense
had not been definitively answered. Nevertheless, we believe
the decision to apply State v. Robinson, supra, retroactively is
strong evidence that the Ohio Supreme Court recognized that
its Robinson decision had changed the law substantially.
We hold that in these circumstances, the failure to object at
trial cannot bar the petitioner from the retroactive application of
State v. Robinson, supra.
As previously stated, the contemporaneous objection rule
presupposes the existence of a legal principle capable of being
advanced to support an objection. Yet, in the case at bar, every
recognized authority on affirmative defenses in Ohio as well as
dictum from the Ohio Supreme Court reinforced the propriety
of the trial court's charge to the jury. Thus, existing law provided
no basis for an objection to the court's jury instructions at the
time of trial. To require an objection in these circumstances
would be to require the doing of a vain act. We are, therefore,
led to the conclusion that there was no real or substantial
relation between the use of the contemporaneous objection
rule as a bar to retroactivity in the instant case and the rule's
avowed purpose. In O'Connor v. Ohio, 385 U.S. 92 (1966), the
Supreme Court held that the failure to object at trial to a practice
that Ohio had long allowed could not deprive the petitioner of
his right to attack that practice in the state courts following its
subsequent invalidation by the Supreme Court. The Court
reasoned that defendants cannot be charged with anticipating
future decisions invalidating past practices. Though O'Connor
involved the attempted assertion of a federal claim, we believe
the logic of that decision to be equally persuasive in the context
of the present case.
The district court's reliance on Wainwright v. Sykes, 433
U.S. 72 (1977), to dismiss appellant's petition was misplaced.
Insofar as petitioner claims that he was entitled to attack
A31
collaterally the constitutionality of the jury instructions on the
basis of Mullaney v. Wilbur, supra, 421 U.S. 684, despite his
failure to preserve properly the issue at his state trial, Wainwright
v. Sykes provides the initial test for federal habeas review.
Absent a showing of cause for the noncompliance with Ohio's
contemporaneous objection rule and some showing of actual
prejudice, federal habeas corpus review of his Mullaney claim
is barred. See, e.g., Berrier v. Egeler, 583 F. 2d 515 (6th Cir),
cert. denied, 439 U.S. 955 (1978). It was proper for the district
court to apply the cause and prejudice test to this branch of
petitioner's claim, though we express no opinion as to the
soundness of its conclusion. Having applied the test, however,
the court's task was only half finished.
The major thrust of petitioner's claim was, and is, not directed
to the constitutionality of the jury instruction itself; but rather, it
centers upon and challenges the constitutionality of the Ohio
Supreme Court's selective application of its State v. Robinson
decision while petitioner's conviction was still pending on review
in the state courts. Wainwright v. Sykes, supra, is not applicable
to this second prong of appellant's petition.
Since we find petitioner's selective retroactivity claim to be
meritorious, we do not deem it necessary to address appellant's
further assertion that the jury instructions at his trial were
unconstitutional. Consequently, it is also unnecessary to pass
upon the question of whether Isaac established cause and
prejudice as a predicate to habeas review of that latter claim.
In our disposition of this case we are not unmindful of the
amendment by the Ohio General Assembly of Ohio R.C. Section
2901.05(A), effective November 1, 1978. That section again
requires affirmative defenses to be established by a preponder-
ance of the evidence. If this section were to have application in
any retrial which might result from our holding, that conclusion
might be considered senseless since on retrial the pertinent
jury instruction would be identical to that given at the original
trial. However, it is apparent that any such retrial would not fall
under the purview of amended section 2901.05(A) because
such procedure would clearly be impermissible on ex post
facto grounds. U.S. Const., art. |, Section 10, cl. 1. See United
States v. Williams, 475 F. 2d 355 (DC. Cir. 1973), and cases
A32
therein cited.* This circumstances would require, in our view,
an instruction to the jury that the raising of the affirmative
defense of self-defense does not relieve the state of its obligation
of proving every element of the offense beyond a reasonable
doubt and that the defendant does not bear the burden of
proving such defense by a preponderance of the evidence.
The judgment of the district court is reversed and the case
is remanded with directions to grant a writ of habeas corpus to
the petitioner unless the State of Ohio shall grant him a new trial
within a reasonable time to be fixed by the district court.
* Every law that alters the legal rules of evidence, and receives less, or different
testimony, than the law required at the time of the commission of the offense, in
order to convict the offender [is ex post facto).” Calder v. Bull, 3U.S. 305, 309, 3
Dall. 386, 390 (1798). “Any statutory alteration of the legal rules of evidence
which would authorize conviction upon less proof, in amount of degree, than was
required when the offense was committed, ought, in respect of that offense, to be
obnoxious to the constitutional inhibition upon ex post facto laws.” Mallett v.
North Carolina, 161 U.S. 589, 595 (1900), quoting Hopt. v. Utah, 110 U.S. 574
(1884); see also Landay v. United States, 108 F.2d 698, 705(6th Cir. 1939). "(T)he
legislature may not, under the guise of establishing modes of procedure __.
violate the accepted principles that protect an accused person against ex post
facto enactments.” 181 U.S. at 596. See a/so Malloy v. South Carolina, 237 U.S
180 (1915); Duncan v. Missouri, 152 U.S. 377 (1894); Hopt v. Utah, 110 U.S. 574
(1884), Kring v. Missouri, 107 U.S. (7 Otto) 221 (1883); Ex Parte Garland, 71 US.
(4 Wall.) 333 (1867); Frisby v. United States, 38 App. D.C. 22 (1912). See also,
generally, Croseky, The True Meaning of the Constitutional Provision of Ex Post
Facto Laws, 14 U.Chi.L. Rev. 539 (1947).
A33
Celebrezze, J., concurring.
The primary focus in this case is whether Ohio may,
consistent with due process, utilize its contemporaneous
objection rule to bar retroactive effect to its Robinson decision.
Having concluded in State v. Humphries, 51 Ohio St. 2d 95
(1977), that Robinson should apply retrospectively, Ohio now
attempts to deny Isaac the benefits of the retroactive application
of Robinson because his counsel failed to object at trial to the
jury instructions on the issue of self-defense.
In analyzing Ohio's failure to accord Isaac the retroactive
benefit of Robinson, the majority employs a standard of review
which seeks to discover some rational relationship between the
purposes that Ohio's contemporaneous objection rule is designed
to serve and the reason for which that rule was involked in this
case. The majority concludes that the utilization of the
contemporaneous objection rule to bar retroactive application
of Robinson is an arbitrary exercise of state procedural law
which constitutes a deprivation of due process. This is so, the
majority reasons, because the contemporaneous objection rule
presupposes the existence of a palpable objection, and here
Isaac's counsel had no valid reason to object to the trial judge's
instructions on the issue of self-defense. To the contrary, however,
an objection based on the constitutional infirmity subsequently
isolated in Mullaney v. Wilbur, 421 U.S. 684 (1975) was always
available; that is, Isaac could have objected that the instructions
placed upon him the burden of proof in violation of the principles
of due process expressed in /n re Winship, 397 U.S. 358, 364
(1970).
| write separately because | believe that such speculation
as to whether Isaac's counsel could or should have raised an
objection at trial is too hypothetical a predicate for federal
interdiction of a state procedural rule. It is an equally uncertain
ground for denying Isaac a new trial in which the burden of
proof as defined by Robinson applies. Admittedly, federal
interference with Ohio's contemporaneous objection rule should
proceed cautiously in light of the Supreme Court's deference to
the application of state procedural rules. See e.g. Wainwright v.
Sykes, 433 U.S. 72 (1977). This deference takes on an added
dimension in light of Justice White's observation in Hankerson
A34
v. North Carolina, 432 U.S. 233, 244 n. 8 (1977), that a state
might be able to use its procedural rules to insulate past
convictions from collateral attack.' From a legal technician's
viewpoint, this dicta offers a viable avenue for avoiding the full
impact of Mullaney.
Although i believe that, despite Mullaney v. Wilbur, it is
constitutionally permissible for a state to treat self-defense as
an affirmative defense that the prosecution need not negate
beyond a reasonable doubt, see Patterson v. New York, 433
U.S. 197, 210(1977); Berrier v. Egeler, 583 F.2d 515, 524 (6th
Cir. 1978) (Engel, J., dissenting), cert. denied, 439 U.S. 955; cf.
Hankerson v. North Carolina, 432 U.S. 233, 245 (whether due
process requires the prosecution to disprove self-defense beyond
a reasonable doubt under North Carolina law left undecided),
the Ohio Supreme Court has interpreted O.R.C. Section
2901.05(A) so as to place upon the defendant only the burden
of going forward with evidence sufficient to raise the defense.
State v. Robinson, 47 Ohio St. 2d 103 (1976).
As expressed by a unanimous Court in Hankerson, the
definition and placement of the burden of proof is a fundamental
aspect of the truth-finding process of a criminal trial. Hankerson,
supra at 243-44, See also Winship at 370-72 (Harlan, J.,
concurring); Speiser v. Randall, 357 U.S. 513, 525-26 (1958);
see generally, Jefferies & Stephen, Defenses, Presumptions
and Burden of Proof in the Criminal Law, 88 Yale L..J. 325
(1979). Protecting that truth-finding function must take pre-
cedence over a state's procedural concerns expressed in an
contemporaneous objection rule. As such, denying to a defendant
a trial under what the Ohio Supreme Court has concluded to be
the proper allocation of the burden of proof amounts to a denial
of due process of law.
Redefining the burden of proof placed upon a defendant,
whether it be by a new constitutional rule or by a new statutory
‘Were the challenge here directed to the substance of the jury instructions, use of
a contemporaneous objection rule to preciude habeas corpus review might be
justified. See Frazier v. Weatherholtz, 572 F.2d 992, 997-98 (4th Cir 1978). See
also United States v. Jackson, 569 F.2d 1003, 1008-09 (7th Cir. 1978)
A35
interpretation of constitutional dimension, has a substantial
impact upon a criminal trial’s truth-finding function. In such
situations retroactive application is imperative. Hankerson, supra,
at 241 quoting /van V. v. City of New York, 407 U.S. 203, 204-05
(1972).
Since the Ohio Supreme Court's decision in Robinson
significantly effects the burden of proof to be placed upon a
defendant, due process requires that Isaac receive the benefits
of that court's interpretation. Accordingly, | concur in the judg-
ment of the court awarding the writ.
A36
No. 78-3488
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LINCOLN ISAAC,
Petitioner-Appellant,
vs.
TED ENGLE, SUPERINTENDENT,
CHILLICOTHE CORRECTIONAL INSTITUTE,
Respondent-Appellee
ORDER
[FILED MAR. 24, 1980)
A majority of the Judges of this Court in regular active
service have voted for rehearing of this case en banc. Sixth
Circuit Rule 14 provides as follows:
The effect of the granting of a hearing en banc shall be to
vacate the previous opinion and judgment of this Court, to stay
the mandate and to restore the case on the docket pending
appeal.
Accordingly, itis ORDERED that the previous decision and
judgment of this Court is vacated, the mandate is stayed and
this case is restored to the docket as a pending appeal.
The Clerk will direct the parties to file supplemental briefs
and the case will be scheduled for oral argument during the
June, 1980 session.
ENTERED BY ORDER OF THE COURT
Signed By
John P. Hehman, Clerk
A37
No. 78-3488
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
[FILED DEC. 31, 1980)
LINCOLN ISSAC,
Petitioner-Appelliant,
vs.
TED ENGLE, SUPERINTENDENT,
CHILLICOTHE CORRECTIONAL INSTITUTE,
Respondent-Appellee
ORDER STAYING MANDATE
ORDERED, That motion to stay mandate herein pending
application to the Supreme Court for writ of certiorari is hereby
granted and the mandate is stayed for thirty days from this date;
provided that, if within such thirty days, the applicant shall file
with the Clerk of this Court the certificate of the Clerk of the
Supreme Court that the certiorari petition, record, and brief
have been filed, the stay shall continue until the final disposition
of the case by the Supreme Court. Unless this condition is
complied with within such thirty days or any extension thereof
made by the Court or any judge thereof, or if the condition is
complied with, then upon the filing of copy of an order denying
the writ applied for, the mandate shall issue.
ENTERED BY ORDER OF THE COURT
Signed by
John P. Hehman, Clerk
A38
No. C-2-78-278
UNITED STATES DISTRICT COURT
FOR
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
[FILED JUN. 26, 1978)
LINCOLN ISAAC
VS.
TED ENGLE SUPERINTENDENT
JUDGMENT
This action came on for consideration before the Court, The
Honorable Robert M. Duncan United States District Judge,
presiding. The issues having been duly considered and a decision
having been duly rendered,
IT |S ORDERED AND ADJUDGED THAT: the petition is with-
out merit, and it is DENIED. This action is hereby DISMISSED.
Judgment is entered for the respondent.
Signed by
John D. Lyter, Clerk
A39
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Civil Action C-2-78-278
[FILED JUN. 26, 1978)
LINCOLN ISAAC,
Petitioner
vs.
TED ENGLE, Superintendent
Respondent
OPINION AND ORDER
Petitioner, a State prisoner, brings this action for a writ of
habeas corpus under the provisions of Title 28, United States
Code, Section 2241 (c) (3). This matter is before the Court on
the petition, return of writ, and briefs and exhibits of the parties.
Petitioner was indicted by the April, 1975 Term of the
Pickaway County, Ohio Grand Jury for felonious assault in
violation of R.C. 2903.11. He was tried to a jury which returned
a verdict of guilty of aggravated assault in violation of R.C.
2903.12. The trial court sentenced petitioner to a term of six (6)
months to five (5) years imprisonment.
Petitioner alleges that he is in the custody of respondent in
violation of the due process clause of the Fourteenth Amendment
to the Constitution of the United States, in that:
The trial court charged petitioner had the burden of proving
self-defense. After conviction and during the first appeal the
Ohio Supreme Court declared the instructions to be pre-
judicial error under Robinson. This case was immediately
raised to the Appellate Court. They held any error was waived.
The Ohio Supreme Court then held Robinson retroactive.
Petitioner had raised retroactivity in its leave to appeal and was
denied leave to appeal the same day Humphries was declaring
retroactivity. The Ohio Supreme Court refuses to give relief
despite its own pronouncement. The holding of the Court is
contrary to the Supreme Court of the United States in regard
to proving self-defense.
A40
In the Fourth Appellate District Court of Appeals for Pickaway
County, Ohio petitioner raised the following relevant claim for
relief:
The Court committed prejudicial error by instructing the
jury that the defendant had to prove the affirmative defense of
self defense by a preponderance of the evidence
The Court of Appeals rejected the assignments of error with the
following ruling:
In support of his argument Defendant-Appeliant cites
State v. Robinson, 47 O.S. 2d 103,...arecently decided Ohio
Supreme Court case, eliminating the degree of proof referred
to above. A review of the transcript reveals that in his opening
statement and closing statement, Defendant's counsel stated
to the jury that the burden of proof was by a ‘preponderance
of the evidence.’ Further, Defendant-Appellant made no objec-
tion to that portion of the charge dealing with that burden of
proof, as required for review under the terms of Ohio Rules of
Criminal Procedure, Rule 30. The failure to make such an objec-
tion waives any error not called to the attention of the trial
court. As noted by Plaintiff-Appellee, see also, State v. G/aros,
1700S. 471, State v. Slone, 45 O. App. 2d 24. The fifth assign-
ment of error is not well taken and overruled; the verdict of the
jury is affirmed.
Petitioner then filed a motion for leave to appeal to the
Supreme Court of Ohio, alleging the following relevant errors:
3. Acourt instruction placing the burden of proof of self-defense
on defendant is plain error under Criminal Rule 52(d) and a
failure to object will bar raising the Court's instruction for the
first time on appeal.
4. It is denial of the due process clause of the United States
Constitution to place the burden of proof of self-defense on the
defendant and failure to make a timely objection does not bar
the defendant from asserting an error for the first time on
— the Court's instruction placing the burden of proof upon
im.
Respondent contends that petitioner has not exhausted his
available State court remedies by fairly presenting his federal
constitutional claim for relief to the appropriate State courts. 28
U.S.C. Section 2254 (b), (c). Picard v. Connor, 404 U.S. 270,
275-276 (1971). Petitioner did not raise his federal constitu-
tional claim for relief in the trial court. On the present record, it
A41
is unclear whether he raised a federal constitutional claim for
relief in the Court of Appeals for Pickaway County, Ohio. The
claim for relief presented to the Court of Appeals was based
upon the Supreme Court of Ohio's decision in State v. Robinson,
47 Ohio St. 2d 103 (1976). Robinson did not decide the federal
constitutional question of whether, under Ohio law, placing the
burden of proving the affirmative defense of self-defense upon
the defendant violates the defendant's due process right to
have the State prove each essential element of the crime
beyond a reasonable doubt. See, Mullaney v. Wilbur, 421 U.S.
684 (1975); Patterson v. New York, 45 U.S.L.W., 4708, 4711-
4713 (1977). The Court in Robinson held that as a matter of
State law R.C. 2901.05(A) did not put the burden of proof of the
affirmative defense of self-defense upon the defendant.
Petitioner's brief in the Court of Appeals is not u part of the
record in this Court, so the Court is unable to say whether
petitioner fairly presented his federal due process claim to the
Court of Appeals. The mere invocation of Robinson does not
necessarily mean the federal claim was presented.
The Court need not determine whether petitioner has fairly
presented his federal constitutional question to the appropriate
State courts because the record clearly establishes that petitioner
waived his constitutional claim by failing to present it to the trial
court. State v. Long, 53 Ohio St. 2d 91, 95-97 (1978); State v.
Humphries, 51 Ohio St. 2d at 103. The State court procedural
waiver bars presentation of the federal constitutional claim in
habeas corpus unless the petitioner makes a showing of cause
and actual prejudice. Francis v. Henderson, 425 U.S. 536, 542
(1976); Estelle v. Williams, 425 U.S. 501, 512 (1976). Petitioner
has not rade a showing of either cause or actual prejudice.
Accordingly, the Court HOLDS that he has waived his federal
constiiutional claim.
WHEREUPON, the Court FURTHER '4OLDS that the
petition is without merit, and itis DENIED. This action is hereby
DISMISSED. The Clerk of Court shall enter JUOGMENT for
respondent.
SIGNED BY
ROBERT M. DUNCAN, JUDGE
UNITED STATES DISTRICT COURT
A42
No. 79-3153
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KENNETH L. BELL,
Petitioner-Appellant,
eS
On Appeal from the
V. < United States District
E.P. PERINI, Superintendent, Court for the North-
Marion Correctional Institute. ern District of Ohio
-
Respondent-Appellee.
Decided and Filed December 12, 1980
Before: Merritt, Brown and Martin, Circuit Judges.
Bailey Brown, Circuit Judge, delivered the opinion of the
Court in which Martin, Circuit Judge, joined. Merritt, Circuit
Judge, (p. 7) filed a separate dissenting opinion.
Bailey Brown, Circuit Judge. The petitioner, Kenneth L.
Bell, appeals from the district court's denial of his petition fora
writ of habeas corpus. Bell contends that the jury instructions
given at his state criminal trial in Ohio shifted to him, in violation
of due process, the burden of disproving an element of the
offense for which he was indicted. More specifically, Bell
contends that at his murder trial he was denied due process
because the jury was instructed that the burden was on him to
prove self-defense by a preponderance of the evidence. In
resolving this contention, we first must review the development
of Ohio law in this area in the recent past.
A43
Prior to 1974, Ohio followed the traditional common law
rule that the defendant in a criminal case not only had the
burden of going forward with evidence in support of an affirmative
defense but also had the burden of proving such affirmative
defense by a preponderance of the evidence. State v. Seliskar,
35 Ohio St. 2d 95( 1973). As of January 1, 1974, however, anew
statutory provision became effective. That provision, codified
as Ohio Revised Code 2901.05(A), stated:
(A) Every person accused of an offense is presumed innocent
until proven guilty beyond a reasonable doubt, and the burden
of proof is upon the prosecution. The burden of going forward
with the evidence of an affirmative defense is upon the accused.
Apparently, R.C. 2901.05(A) was not initially considered to
effect any change in the previous common law rule. In fact, the
Ohio Supreme Court, as late as 1975, reaffirmed at least in a
dictum the principle that a defendant must bear the burden of
proving affirmative defenses by a preponderance of the evi-
dence’ State v. Rogers, 43 Ohio St. 2d 28 (1975).
The petitioner in this case was indicted in 1975 for aggravated
murder. At his trial, Bell testified that he had acted in self-
defense. The trial court instructed the jury without objection by
Bell that it was incumbent on Bell to demonstrate self-defense
by a preponderance of the evidence. The jury found Bell guilty
of murder. He was sentenced to a term of fifteen years to life
imprisonment.
Bell appealed his conviction to the Cuyahoga County Court
of Appeals. That appeal, however, did not question the validity
of the jury instruction concerning self-defense. In April, 1976,
the Court of Appeals affirmed Bell's conviction.
‘In Rogers, the Ohio Supreme Court in dictum stated
The defense of using reasonable force to effect a citizen arrest necessarily
involves an allegation of excuse or justification, and is, therefore, an affirmative
defense (RC. 2901 05/C} (2]) which places the burden of going forward with the
evidence upon the accused (RC 2901 O5{A]) to prove that issue by a pre-
py of the evidence See State v. Seliskar, supra, 35 Ohio St. 2d 95. 298
NE 2d 582
A44
In July, 1976, the Supreme Court of Ohio, in State v.
Robinson, 47 Ohio St. 2d 103 (1976), held that R.C. 2901.05 (A)
had substantially altered the previously accepted common law
rule defining the burden of proof in criminal cases. The court
construed R.C. 2901.05 (A) to require that a defendant go
forward with sufficient evidence to raise the affirmative defense
but that if the defendant presented such evidence, the prosecu-
tion then must demonstrate beyond a reasonable doubt the
guilt of the defendant even to the extent of disproving such
affirmative defense. Interpreting R.C. 2901.05 (A) in this manner,
the Ohio Supreme Court held that any jury instruction placing
the burden of proving an affirmative defense on the defendant
constituted prejudicial error.
Nonetheless, Beil's conviction was subsequently affirmed
by the Ohio Supreme Court when it dismissed Bell's appeal for
lack of a substantial constitutional question. The question of the
validity of the jury instructions was not presented to or considered
by the court in rendering its decision.
In 1977, the Ohio Supreme Court determined as a matter of
state law that State v. Robinson, supra, should be applied
retroactively to all criminal cases tried subsequent to January
1, 1974. State v. Humphries, 51 Ohio St. 2d 95 (1977). In
Humphries, however, the court also held that the failure to
object to a jury instruction effectively waived any claim of error
based on Robinson.’
In 1978, Bell filed a petition for a writ of habeas corpus in
the proper federal court challenging the constitutional validity
of the jury instructions.’ The district court held that the jury
instructions imposing on Bell the burden of proving self-defense
were consistent with the Ohio law at the time of Bell's trial. It
also concluded, relying on Patterson v. New York, 432 U.S. 197
"Effective November 1, 1978, R.C. 2901 O5(A) was amended to adopt once again
the common law rule that the defendant has the burden of proving affirmative
defenses by a preponderance of the evidence
‘The district court determined that, since Bell has no available state remedy by
which he could raise the issue presented here, he has exhausted his remedies
Respondent does not challenge this ruling
A45
(1977), that a state could constitutionally so impose the burden
of proving self-defense on a defendant. The district court also
held that Bell had no due process right to the retroactive
application to his case of the decision in Robinson. Accordingly,
the district court denied the petition, and Bell brought the
instant appeal.
The appeal in this courtinisaacv.Engle, F.2d (6th
Cir. 1980) raised essentially the same issue as is raised here.
The habeas petitioner there, Lincoln Isaac, was convicted of
felonious assault in Ohio in 1975 while Ohio Revised Code
Section 2901.05(A) was in effect. At trial, Isaac had relied ona
defense of self-defense, offering sufficient evidence to create
such issue, and the trial court instructed the jury, without objection
from isaac, that the burden was on Isaac to prove self-defense
by a preponderance of the evidence. Isaac, on appeal, relied on
State v. Robinson, supra, in which the Supreme Court of Ohio
had held that Section 2901.05 (A) had effectively placed the
burden on the state, when the issue is effectively raised, of
proving absence of self-defense beyond a reasonabale doubt.
The Ohio Court of Appeals held that Isaac had waived his claim
of error in the jury instruction by failing to object thereto, citing
an Ohio procedural rule. The Ohio Supreme Court dismissed
Isaac's appeal for lack of a substantial constitutional question.
On the same day it dismissed Isaac's appeal, it decided in State
v. Humphries, supra, that Robinson would be given retroactive
effect but that, relying on the Ohio contemporaneous objection
rule, held that failure to object to the charge to the jury would
constitute a waiver.
isaac sought habeas relief in federal district court, but such
relief was denied on the ground that Isaac had not shown
“cause” for his failure to object to the charge and “prejudice as
a result of such charge as is required by Wainwright v. Sykes,
433 U.S. 72 (1977).
On appeal, in an en banc decision,‘ a majority of this court
‘The panel opinion in /saac v. Engle isreportedin F 2dat
A46
voted to reverse the district court and to grant relief to Isaac
The majority were of the opinion that Isaac had shown cause,
as is required by Wainwright, since, at the time of his trial, Isaac
neither knew nor reasonably could have known that the charge
to the jury with respect to burden of proof as to self-defense was
contrary to Ohio law or that such charge constituted a denial of
federal due process. The majority also held that Isaac had
shown actual ‘prejudice’ since Isaac had by his testimony
made self-defense a live issue in his trial. The plurality opinion
in /saac, authored by the writer of this opinion, held that Isaac
had been denied federal due process by placing on him, contrary
to Ohio law, the burden of proving self-defense. The plurality
opinion reached this result on the theory that, since Ohio had by
statute assumed the burden of proving absence of self-defense,
placing such burden on Isaac was, for practical purposes, the
‘the equivalent of placing on Isaac the burden of proving the
absence of an element of the crime of felonious assault. See: /n
re Winship, 397 U.S. 358 (1970); Mullaney v. Wilbur, 421 U.S.
684 (1975); and Patterson v. New York, 432 U.S. 197 (1977). In
opinions concurring in the result, Chief Judge Edwards and
Judge Jones were of the opinion that, in view of the definition of
felonious assault in the Ohio statute, absence of self-defense is
an element of the crime that federal due process requires that
the state prove.
We believe that Bell, in the instant case, has likewise shown
“cause” and “prejudice” as is required by Wainwright for the
reasons stated in the plurality opinion in /saac. We further
believe that Bell was denied federal due process for the reasons
stated in the plurality opinion in /saac. Lastly, we believe that,
for the reasons stated in the plurality opinion in /saac, Bel! is
entitled to jury instructions that are consistent with Ohio law in
1975 as construed in Robinson, supra.
The judgment of the district court is reversed and the case
is remanded. The district court is directed to order that petitioner
be released from custody unless Ohio chooses to retry him
within a reasonable time to be determined by the district court.
A47
Merritt, Dissenting. | dissent from the opinion of the Court
for the same reasons expressed in my dissenting opinion in
Isaac v. Engle, F. 2d (6th Cir. 1980). The basic reason
expressed there was that Ohio's contemporaneous objection
rule provides an independent state ground for the state court's
decision under Wainwright v. Sykes, 433 U.S. 72 (1977). That
same reasoning applies to the instant case.
A48
No. 79-3153
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
[FILED DEC. 31, 1980)
KENNETH L. BELL,
Petitioner-Appellant,
vs.
E.P. PERINI, SUPERINTENDENT,
MARION CORRECTIONAL INSTITUTE,
Respondent-Appellee
ORDER STAYING MANDATE
ORDERED, That motion to stay mandate herein pending
application to the Supreme Court for writ of certiorari is hereby
granted and the mandate is stayed for thirty days from this date;
provided that, if within such thirty days, the applicant shall file
with the Clerk of this Court the certificate of the Clerk of the
Supreme Court that the certiorari petition, record, and brief
have been filed, the stay shall continue until the final disposition
of the case by the Supreme Court. Unless this condition is
complied with within such thirty days or any extension thereof
made by the Court or any judge thereof, or if the condition is
complied with, then upon the filing of copy of an order denying
the writ applied for, the mandate shall issue.
ENTERED BY ORDER OF THE COURT
Signed by
John P. Hehman, Clerk
A49
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO WESTERN DIVISION
Civil Action File No. C 78-343
[FILED DEC. 26, 1978)
KENNETH L. BELL
VS.
E.P. PERINI, Supt.
JUDGMENT
This action came for trial (hearing) before the Court,
Honorable Nicholas J. Walinski, United States District Judge,
presiding, and the issues have been duly (heard) and a decision
having been duly rendered,
it is Ordered and Adjudged petition dismissed.
Signed by
James S. Gallas
ASO
No. C 78-343
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN D!STRICT OF OHIO
WESTERN DIVISION
[FILED DEC. 26, 1978)
KENNETH L. BELL,
Petitioner,
VS.
E.P. PERINI, Supt.,
Respondent.
OPINION AND ORDER
WALINSKI, J:
This cause came to be heard on a petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. Section 2254. Petitioner
presently is incarcerated in respondent's custody at the Marion
Correctional Facility, Marion, Ohio, where he is serving a sentence
of fifteen years to life imposed by the Cuyahoga County Court
of Common Pleas. Petitioner's sentence was imposed on April
18, 1975, pursuant to a jury determination that he was not guilty
of Aggravated Murder, the indicted crime, but guilty of a lesser
offense of Murder, a violation of Ohio Revised Code Section
2903.02. Petitioner appealed his conviction to the Cuyahoga
County Court of Appeals where he urged five assignments of
error. On April 8, 1975, the court overruled each of petitioner's
claims and affirmed the conviction. An appeal to the Ohio
Supreme Court was dismissed sua sponte in September, 1976,
for want of a substantial constitutional question.
Petitioner then brought the instant action in habeas corpus.
Petitioner claims, respondent acknowledges, and this Court so
A51
finds that petitioner has exhausted his state remedies.' The
sole question presented is whether the trial judge's instruction
to the jury that petitioner must prove self-defense by a pre-
ponderance of the evidence was a violation of due process.
Petitioner does not now challenge the correctness of the
instruction with respect to the elements of self-defense. Petitioner
further admits that the charge reflected Ohio practice as it then
existed concerning the burden of proof and which party must
prove the elements of the defense.? See State v. Sekiskar, 35
Ohio St. 2d 95 (1973); State v. Rogers, 43 Ohio St. 2d 28(1975),
cert. denied, 423 U.S. 1061 (1976). See generally Comment,
Affirmative Defenses in Ohio After Mullaney v. Wilbur, 36 Ohio
St. L.J. 828 (1975). Relying principally on Mullaney v. Wilbur,
421 U.S. 684 (1975), petitioner claims, however, that Ohio
practice was in conflict with the requirements of due process.*
‘It does not appear that petitioner has ever raised in the courts of Ohio the issue
he now raises in this Court. Nonetheless, the Court is not aware of any presently
available state remedy where petitioner could yet present to the state courts this
issue. See Riley v. Havener, 391 F. Supp. 117 (N.D. Ohio 1974). Moreover, this
Court construes respondent's silence with respect to the issue of “exhaustion”
and respondent's argument on the merits (or more appropriately, his quoting
three paragraphs from Patterson v. New York, 432 U.S. 197 (1977) as proof that
petitioner's failure to raise the issue was not a “deliberate bypass.” Fay v. Noia,
372 U.S. 341 (1963), Wainwright v. Sykes, 433 U.S. 72 (1977)
?Under Ohio Revised Code Section 2901 .05(A):
Every person accused of an offense is presumed innocent until proven guilty
beyond a reasonable doubt, and the burden of proof is upon the prosecution. The
burden of going forward with the evidence of an affirmative defense is upon the
accused
Subsequent to petitioner's trial, this provision has been interpreted to
remove from a defendant the burden of proving an affirmative defense. See State
v. Robinson, 47 Ohio St. 2d 103 (1976); State v. Chase, 55 Ohio St. 2d 237 (1978),
State v. Abner, 55 Ohio St. 2d 251 (1978).
*For reasons best known to respondent, the Court does not have a transcript of
petitioner's trial. As such, the Court emphasizes that the issue decided in this
Opinion is simply whether it was unconstitutional to place on petitioner the
burden of proving self-defense by a preponderance of the evidence. Thus, this
decision in no way affects a decision that someday may have to be made with
respect to any other issue concerning the judge's instructions. Should petitioner
raise such a Claim in a subsequent petition, the Court trusts that respondent will
see fit to provide the Court with the transcript it ought to have provided in the
instant petition.
A52
The Supreme Court held in /n re Winship, 397 U.S. 358
(1970), that due process requires the state to prove beyond a
reasonable doubt all elements of the offense with which a
defendant is charged. Drawling upon Winship, the Court, in
Mullaney v. Wilbur, supra, found constitutionally invalid a Maine
homicide rule that required the accused to demonstrate by a
preponderance of evidence that he acted in the heat of passion
before he could be convicted of manslaughter instead of murder.
More specifically, the Court found that under Maine law absence
of provocation was a necessary element of murder, and, as
such, the state must prove it beyond reasonable doubt once the
issue has been properly raised. Mullaney v. Wilbur, supra, at
703-04.
To be sure, there is some dicta in Mullaney that suggests
the states cannot constitutionally place the burden of proving
any affirmative defense on a criminal defendant. That such
dicta was intended as a constitutional standard, however, was
specifically rejected in Patterson v. New York, 432 U.S. 197
(1977). Patterson involved a New York procedure permitting a
defendant to assert as an affirmative defense “extreme emotional
disturbance”, which is proven by a preponderance of the
evidence, reduces the offense from murder to manslaughter. In
upholding the New York scheme, the Court noted:
It goes without saying that preventing and dealing with
crime is much more the business of the States than it is of the
Federal Government, and that we should not lightly construe
the Constitution so as to intrude upon the administration of
justice by the individual States. Among other things, it is normal-
ly “within the power of the State to regulate procedures under
which its laws are carried out, including the burden of producing
evidence and the burden of persuasion,” and its decision in
this regard is not subject to proscription under the Due Process
Clause unless “it offends some principle of justice so rooted in
the traditions and conscience of our people as to be ranked as
fundamental. Patterson v. New York, supra, at 201-02 (citations
omitted).
The fundamental principle which limits the otherwise wide
latitude a state has in regulating the enforcement of its criminal
law is that “a State must prove every ingredient of an offense
beyond a reasonable doubt, and that it may not shift the burden
of proof to the defendant by presuming that ingredient upon
AS3
proof of the other elements of the offense.” Patterson v. New
York, supra, at 215. See also id. at 206-07, 210, 211 n. 12. The
procedure involved in Mullaney, therefore, was unconstitutional
because it required a defendant to negate an essential element
of the crime. Patterson v. New York, supra, at 215. On the other
hand, the defense involved in Patterson was a true affirmative
defense —a defense that instead of negating an element of the
crime offers an excuse. Patterson v. New York, supra, at 206-
07.
The Court notes that the issue presented in the instant
petition— whether a defendant can constitutionally be made to
carry the burden of proving self-defense—is a question the
Supreme Court specifically refused to answer in Hankerson v.
North Carolina, 432 U.S. 233 (1977). In view of Patterson, the
Court doubts that the constitutionality of this issue can be
answered removed from the context of a particular jurisdiction's
substantive law. But whatever the constitutionality of the practice
may be elsewhere, the Court believes that Ohio practice, as it
existed at the time of petitioner's trial, was not “fundamentally
unfair.”
Petitioner was convicted of murder, which Ohio Revised
Code Section 2903.02 (A) defines as (1) purposely‘ (2) causing
(3) the death (4) of another. The prosecution must prove all
these elements beyond a reasonable doubt before a defendant
can be convicted. No other elements are presumed or inferred.
By virtue of its common law, Ohio, at least at the time of
petitioner's trial, exused what otherwise would be murder if the
defendant could prove self-defense by a preponderance of the
evidence.
Unlike the defense involved in Mullaney, however, evidence
supporting a defendant's claim of self-defense “bears no
necessary relationship to the existence or nonexistence of the
required mental elements of the crime.” Mullaney v. Wilbur,
“Section 2901 .22(a) of the Ohio Revised Code defines ‘purposely as follows
A person acts purposely when it is his specific intention to cause a certain
result, or, when the gist of the offense is a prohibition against conduct of a certain
nature, regardless of what the offender intends to accomplish thereby, it is his
specific intention to engage in conduct of that nature
AS4
supra, at 706 (Rehnquist, J., concurring). When petitioner was
convicted, self-defense in Ohio was a true affirmative defense
like the defense involved in Patterson and the insanity defense
involved in Leland v. Oregon, 343 U.S. 790 (1952). Instead of
negating an element of the crime, the defense admitted the
commission of the act charged with the necessary mental element
but sought to avoid the consequences by showing a lawful
excuse or justification. In this sense the defense was likened to
the common law concept of confession and avoidance. See
Comment, Affirmative Defenses in Ohio After Mullaney v. Wilbur,
36 Ohio St. L.J. 828, 840-41 (1975); 27 O. Jr. 2d, Homicide
Section 89 at 630.
As the Court in Patterson noted:
The Due Process Clause, as we see it does not put [the States)
to the choice of abandoning [affirmative] defenses or undertaking
to disprove their existence in order to convict of a crime which
otherwise is within [their] constitutional powers to sanction by
substantial punishment.
Patterson v. New York, supra, at 207-08. Due process, however,
does require the state to prove every element of the crime
beyond a reasonable doubt. Thus, a procedure that allows a
defendant to prevail in his “affirmative defense” only if he
negates a necessary element of the crime by a preponderance
of the evidence unconstitutionally puts the state's burden on
the defendant. But in Ohio, proof of self-defense did not negate
or otherwise bear a necessary relationship with any element of
the crime the state had to prove beyond a reasonable doubt in
order to convict. As such, the Court concludes that Ohio's
decision to put the burden of proving the defense on petitioner
did not unconstitutionally shift to petitioner the burden of proof.
Due process was satisfied when the state proved beyond a
reasonable doubt that petitioner purposely caused the death of
another.
Petitioner contends, however, that this line of reasoning is
in conflict with Berrier v. Egeler, 583 F. 2d 515 (6th Cir. 1978),
which held that the petitioner was denied due process when a
Michigan trial court instructed the jury that the burden of proving
self-defense was on the petitioner. But the procedure challenged
in the instant petition is fundamentally different from the
A55
procedure involved in Berrier; namely, Berrier dealt with a
situation in which absence of self-defense was an essential
element of the crime. See Berrier v. Egeler, supra, at 521.
Berrier did not hold that due process always requires the
prosecution to prove the absence of self-defense, or to phrase
it differently, that a defendant can never be saddled with the
burden of persuasion. See Berrier v. Egeler, supra, at 524
(Engel, concurring). Rather, Berrier simply stands for the
proposition that the state must prove the absence of self-defense
once the state has made the absence of self-defense an element
of the crime. As previously mentioned, absence of self-defense
was not an element of the crime in Ohio when petitioner was
convicted, nor was proof of the defense in any way related to
any fact the prosecution was required to prove.
For the foregoing reasons,
IT1S ORDERED thatthe instant petition for a writ of habeas
corpus must be and hereby is denied.
Signed by
UNITED STATES DISTRICT JUDGE
Toledo, Ohio.
December 19, 1978.
AS6
No. C 78-343
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
[FILED JAN. 23, 1979)
KENNETH L. BELL,
Petitioner,
vs.
E.P. PERINI, Supt.,
Respondent.
OPINION AND ORDER
WALINSKI, J:
This cause came to be heard on petitioner's motion for
reconsideration. By Order filed December 26, i378, the Court
denied the petition for a writ of habeas corpus as to the sole
ground for relief presented. More specifically, the Court held
that it was not unconstitutional for the State to place on petitioner
the burden of proving self-defense by a preponderance of the
evidence since “proof of self-defense did not negate or otherwise
bear a necessar relationship with any element of the crime
which the State had to prove beyond a reasonable doubt in
order to convict.” Petitioner now states that the Court mis-
understood the “real issue” presented in his earlier petition.
Conceding for the sake of argument the constitutionality of a
procedure which places the burden of proving an affirmative
defense on the defendant, plaintiff maintains that Ohio did not
have such a procedure at the time of his trial.
Petitioner's argument is based on Ohio Revised Code Section
2901.05 (A), which provides:
Every person accused of an offense is presumed innocent
until proven guilty beyond a reasonable doubt, and the burden
of proof is upon the prosecution. The burden of going forward
with the evidence of an affirmative defense is upon the
accused.
AS7
In State v. Robinson, 47 Ohio St. 2d 103 (1976), the Ohio
Supreme Court held that this provision requires the State to
prove the absence of self-defense once a defendant has raised
the issue by going forward with evidence suggesting self-defense
But at the time of petitioner's trial, the meaning which the Court
in Robinson attached to Ohio Revised Code Section 2901.05(A)
was not, as petitioner contends, the law in Ohio. In every
meaningful sense, the law was that Section 2901.05 (A) had not
altered Ohio's common law practice of placing on a defendant
the burden of proving an affirmative defense by a preponderance
of the evidence.’
‘At the time of petitioner's trial no court in Ohio (at least, no court in a written
opinion) had held or even indicated that Ohio Revised Code Section 2901.05(A)
had modified the common law. The leading treatises certainly saw no change in
the law. 1 Anderson's Ohio Criminal Practice and Procedure Section 52.15(1975
ed.); 1 O. Schrader and L. Katz, Ohio Criminal Law Practice, Titl. 29 at 14 (1974
ed.). The Ohio Supreme Court gave credence to this view when, in State v.
Rogers, 43 Ohio St. 2d 28 (1975), it said:
(Slelf-defense is an affirmative defense, which must be established by a pre-
ponderance of the evidence (State v. Seliskar (1973), 35 Ohio St. 2d 95, 96)
id. at 30. With respect to Section 2901.05, the Court further stated:
The defense of using reasonable force to effect a citizen arrest *** is *** an
affirmative defense (R.C. 2901.05{C} (2]) which places the burden of going for-
ward with the evidence upon the accused (R_C. 2901 .05/A) to prove that issue by
a preponderance of the evidence. See State v. Seliskar, supra (35 Ohio St. 2d
95). (Emphasis added.)
Id. at 33. One commentator, after the Ohio Supreme Court's decision in Rogers,
noted:
If past treatment of the issue by the courts and legislative intent were the
only considerations to weigh in determining who will bear the burden of per-
suasion on affirmative defenses in future trials, it is likely that Ohio defendants
will continue to shoulder that burden
Comment, Affirmative Defenses in Ohio After Mullaney v. Wilber, 36 Ohio St. LJ.
828, 829-30 (1975).
To be sure, the language quoted from Rogers was dicta, and, as a consequence,
at the time of petitioner's trial the question of who must bear the burden of proving
an affirmative defense had not been definitively answered. But one need not
adopt the radical position, attributed to Gray and Salmond, that a statute is not a
law until interpreted by the courts, to conclude that the law at the time of
petitioner's trial was not what Robinson later held it to be. Compare Holmes, The
Path of the Law, 10 Harv. L. Rev. 457, 460-61 (1897) with HLA. Hart, The
A58
Thus, the “real issue” presented in the instant petition is not
whether the trial judge's instruction to the jury as to who had the
burden of proving self-defense was inconsistent with Ohio law.
It is instead whether petitioner is entitled to the retroactive
application of State v. Robinson. The Courtconcludes he is not.
Asa preliminary, the Court notes that the Constitution does
not require the retroactive application of a new interpretation of
a statute. See, e.g., Halliday v. United States, 394 U.S. 831
(1969). See a/so R. Dickerson, The /nterpretation and Application
of Statutes 255-57 (1975). The decision to apply a new rule
retroactive, effective immediately, or prospective is essentially
one of policy, the wisdom of which this Court is not in a position
to judge. Petitioner, therefore, is entitled to the benefits of
Section 2901.05 (A) as established in Robinson only if 1) he is
within that class of persons the Ohio Supreme Court has
determined Robinson applies to, or 2) (and the point is debatable)
he has been excluded from claiming the benefits of Robinson
by a decision which is arbitrary, capricious, or violative of the
equal protection clause.
The Ohio Supreme Court has decided to apply Robinson
retroactively, but only if the issue properly was preserved at
trial and raised on appeal. State v. Humphries, 51 Ohio St. 2d
95, 102-03 (1977). Asa matter of state law, therefore, petitioner
is not entitled to the benefits of the Robinson decision.? Moreover,
this Court can find nothing wrong, as a matter of federal
constitutional law, with the Ohio Supreme Court's decision to
apply Robinson only to those who did not waive the issue. Even
assuming this rule can be tested against principles of equal
protection or substantive due process, but see Milwaukee Electric
Ry. Co. v. Wisconsin, 252 U.S. 100(1920); Beck v. Washington,
369 U.S. 541 (1962); United States ex rel. Almeida v. Rundle,
Concept of Law 132-144 (1961). Indeed, the fact that the Ohio Supreme Court
had to decide whether to apply Robinson retroactively is, the Court believes,
strong evidence that the Ohio Supreme Court recognized it had worked a substantial
change in the law in Robinson.
?Though it is unclear whether petitioner raised the issue at trial, it is clear that he
did not raise it on appeal. See Rule 12(A), Ohio Rules of Appellate Procedure
AS9
255 F. Supp. 936 (E.D. Pa. 1966), aff'd, 383 F. 2d 421 (3rd Cir.
1967), cert. denied, 393 U.S. 863 (1968), certainly its application
substantially furthers the State's legitimate interest in the finality
of its decisions. See Blackledge v. Allison, 431 U.S. 63, 71-72
(1977). Indeed, the United States Supreme Court has indicated
that a rule such as the one adopted in Ohio is a legitimate
method of insulating past convictions against the retroactive
application of new constitutional standards. Hankerson v. North
Carolina, 432 U.S. 233, 244 n. 8 (1977).
For the reasons set out in this Court's prior Order, it was not
a denial of due process for the State to place the burden of
proving self-defense by a preponderance of the evidence on
petitioner. For the reasons set out above, petitioner was not
entitled to the benefits of State v. Robinson. Accordingly,
IT |S ORDERED that the petitioner's motion for reconsidera-
tion is overruled.
Signed By
UNITED STATES DISTRICT JUDGE
Toledo, Ohio.
January 22, 1979.
A60
No. 79-3570
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
[FILED DEC. 18, 1980)
HOWARD HUGHES,
Petitioner-Appellant,
vs.
TED ENGLE, SUPT.,
Respondent-Appellee.
ORDER
BEFORE: KENNEDY and MARTIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
Hughes appeals the denial of his petition for writ of habeas
corpus after conviction in a state court in Ohio in January 1975
of voluntary manslaughter. The state trial court charged the jury
that Hughes must establish his defense of self-defense by a
preponderance of the evidence.
In light of the decision of this Court in /saac v. Engle, No.
78-3488, (6th Cir., December 12, 1980) (en banc) (Kennedy, J.,
dissenting), the judgment of the District Court is reversed and
the action remanded to the District Court with directions to
grant the writ unless the State of Ohio chooses to retry Hughes
within a reasonable time.
ENTERED BY ORDER OF THE COURT
Signed by
John P. Hehman, Clerk
A61
No. 79-3570
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
[FILED JAN. 21, 1981
HOWARD HUGHES,
Petitioner-Appellant,
vs.
TED ENGEL, SUPERINTENDENT,
CHILLICOTHE CORRECTIONAL FACILITY,
Respondent-Appellee
ORDER STAYING MANDATE
ORDERED, That motion to stay mandate herein pending
application to the Supreme Court for writ of certiorari is hereby
granted and the mandate is stayed for thirty days from this date;
provided that, if within such thirty days, the applicant shall file
with the Clerk of this Court the certificate of the Clerk of the
Supreme Court that the certiorari petition, record, and brief
have been filed, the stay shall continue until the final disposition
of the case by the Supreme Court. Unless this condition is
complied with within such thirty days or any extension thereof
made by the Court or any judge thereof, or if the condition is
complied with, then upon the filing of copy of an order denying
the writ applied for, the mandate shall issue.
ENTERED BY ORDER OF THE COURT
Signed by
John P. Hehman, Clerk
A62
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Civil Action C77-156A
(FILED JAN. 26, 1979)
HOWARD HUGHES
Petitioner
vs.
TED ENGLE, Superintendent
Respondent
-
JUDGMENT ENTRY
The Court having denied the petition for habeas corpus
relief under 28 U.S.C. Section 2254,
IT |S ORDERED, ADJUDGED, AND DECREED that this
action is hereby dismissed.
Signed by
Leroy J. Contie, Jr.
U.S. District Judge
A63
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Civil Action C77-156A
[FILED JUN. 26, 1979)
HOWARD HUGHES
Petitioner
vs.
TED ENGLE, Superintendent
Respondent
ORDER
This is an action for habeas corpus relief under 28 U.S.C.
Section 2254. Pursuant to this Court's Order, the instant action
was referred to the U.S. Magistrate for a report and recommended
disposition of the matter. The Magistrate filed his report on
August 10, 1977, and recommended that the petition for writ of
nabeas corpus be denied. Thereafter, petitioner filed objections
to said report. Subsequently, the Court granted the parties
leave to file additional briefs.
Upon consideration of the Magistrate's Report and Recom-
mendation and independent review of the entire record in this
action, the Court concludes that an evidentiary hearing is not
required and that the petition shall be denied.
Petitioner was indicted by the Grand Jury of Summit County,
Ohio, September 1974 term, for aggravated murder in violation
of Ohio Revised Code Section 2903.01 (A). After entering a
plea of not guilty, he was found guilty by a jury on September
24, 1975 of the lesser included charge of voluntary manslaughter,
Ohio Revised Code Section 2903.03. Petitioner was sentenced
to imprisonment for a period of from six to twenty-five years.
The conviction was affirmed on appeal and the Supreme Court
of Ohio denied review.
A64
Thereafter, petitioner initiated the instant action for habeas
corpus relief. As grounds therefor he asserts that the trial court's
instruction placing upon him the burden of proving self-defense
violated his right to due process of law under the Fourteenth
Amendment. Petitioner also claims a denial of due process as a
result of allegedly highly prejudicial comments by the prosecution.
The Court, having found exhaustion of available state remedies
in its Order of June 4, 1979, shall separately address each of
petitioner's claims.
With regard to the first ground advanced in support of the
petition, the record shows that the trial court charged the jury
on aggravated murder, murder, and voluntary manslaughter.
He then stated that petitioner ‘claims that what he did was
justified on the basis of self-defense." After defining the elements
of self-defense, the trial court proceeded as follows:
The burden of proving the Defense of Self-defense is
upon the Defendant. He must establish such Defense by a pre-
ponderance of the evidence.
if the Defendant fails to establish the Defense of Self-
defense, the State still must prove all of the essential elements
of the crime charged or any lesser included offense by proof
beyond a reasonable doubt.
If you find that the State proved beyond a reasonable
doubt all of the essential elements of the crime of Aggravated
Murder, or of the lesser included charges, and that the Defendant
failed to prove by a preponderance of the evidence the Defense
of Self-defense, your verdict must be guilty as to the charge of
Aggravated Murder, or the lesser included charges.
If you find that the State failed to prove beyond a reason-
able doubt any one of the essential elements of the crime of
Aggravated Murder, or any of the lesser included charges, or
if you find the Defendant proved by a preponderance of the
evidence the Defense of Self-defense, then you must find the
Defendant not guilty.
(Tr. at 342-43). Petitioner claims that this instruction violates
due orocess.
Initially, at the time of petitioner's trial, Ohio law was
construed to require a defendant to prove an affirmative defense
by a preponderance of the evidence. See State v. Seliskar, 35
A65
Ohio St. 2d 95( 1973); State v. Rogers, 43 Ohio St. 2d 28( 1975),
cert denied, 423 U.S. 1061 (1976). Subsequently, however,
section 2901.05 of the Ohio Revised Code, effective January 1,
1974, was interpreted to place upon a defendant only the burden
of going forward with evidence sufficient to raise the affirmative
defense of self-defense. State v. Robinson, 47 Ohio St. 2d 103
(1976). Thereafter, said interpretation was held to apply to all
criminal trials conducted after January 1, 1974. State v.
Humphries, 51 Ohio St. 2d 95( 1977). itis thus apparent that the
trial court's instruction herein was erroneous under Ohio law.
Nevertheless, in order to prevail in a federal habeas corpus
action, this instruction must constitute constitutional error.
Due process requires that the state prove beyond a reason-
able doubt that every fact necessary to constitute the crime
with which an accused is charged. /n Re Winship, 397 U.S. 358,
364 (1970). The state cannot consistent with due process shift
the burden of proof to the accused by presuming an essential
element of the crime upon proof of the other elements. Mullaney
v. Wilbur, 421 U.S. 684 (1975). It is not required, however, to
prove beyond a reasonable doubt the nonexistence of an
affirmative defense which the state recognizes as an exculpatory
or mitigating circumstance affecting the degree of culpability
or punishment. Patterson v. New York, 432 U.S. 197, 207-209
(1977). As clearly stated by the Supreme Court:
We thus decline to adopt as a constitutional imperative,
operative countrywide, that a State must disprove beyond a
reasonable doubt every fact constituting any and all affirmative
defenses related to the culpability of an accused. Traditionally,
due process has required that only the most basic procedural
safeguards be observed; more subtle balancing of society's
interest against those of the accused have been left to the legis-
lative branch. We therefore will not disturb the balance struck
in previous cases holding that the Due Process Clause requires
the prosecution to prove beyond a reasonable doubt all of the
elements included in the definition of the offense of which the
defendant is charged. Proof of the nonexistence of all affirma-
tive defenses has never been constitutionally required; and we
perceive no reason to fashion such a rule in this case and apply
it to the statutory defense at issue here.
A66
ld. at 210. Rather, the state can constitutionally burden the
accused with proving an affirmative defense which does not
negate any facts of the crime that the state must prove in order
to convict. /d.
Petitioner was convicted of voluntary manslaughter which
is defined as “knowingly causing the death of another while
under extreme emotional stress, brought on by serious pro-
vocation reasonably sufficient to incite the Defendant into using
deadly force.” (Tr. 337-38). Ohio Rev. Code Section 2903.03.
The state was required to prove each of these elements beyond
a reasonable doubt. No other elements are either presumed or
inferred. In Ohio, the absence of self-defense is not an element
of aggravated murder, murder, or voluntary manslaughter. Cf.
Berrier v. Egeler, 583 F. 2d 515 (6th Cir. 1978). Rather, seif-
defense will excuse the unlawfulness of an act otherwise criminal.
State v. Gideons, 52 Ohio App. 2d 70, 74(1977). Itisajustification
or exculpatory circumstance whereby punishment for conduct
otherwise considered criminal is avoided. The elements or
facts constituting self-defense are independent of and do not
bear a necessary relationship to the required elements of
voluntary manslaughter, murder or aggravated murder. Further,
a jury instruction that the state must prove the absense of seif-
defense or disprove self-defense beyond a reasonable doubt is
not mandated. State v. Abner, 55 Ohio St. 2d 251 (1978). Thus
in Ohio, self-defense is a true affirmative defense which does
not negative any facts of the crime charged that the state must
prove beyond a reasonable doubt in order toconvict. This is and
was the law in Ohio at the time of petitioner's trial.
In view of the foregoing, the Court concludes that the trial
court's instruction placing the burden of proving self-defense
upon petitioner did not violate due process. See Henderson v.
Jago, Civil Action No. C78-503 (N.D. Ohio May 15, 1979); Bel/
v. Perini, Civil Action No. C78-343 (N.D. Ohio December 26,
1978); Hooper v. Perini, Civil Action No. C78-368 (N.D. Ohio
December 26, 1978). There was no unconstitutional shifting of
the state's burden to petitioner to negate an essential element
of voluntary manslaughter, murder, or aggravated murder. On
the contrary, due process was satisfied when the state proved
beyond a reasonable doubt the facts constituting voluntary
manslaughter.
A67
Further and alternatively, the Court concludes that petitioner
is not entitled to relief on his first claim for failing to specifically
object to the trial court's instruction regarding self-defense.
Failure to comply with Ohio's contemporaneous objection rule,
Rule 30, Ohio Rules of Criminal Procedure, precludes federal
habeas corpus review unless petitioner demonstrates cause for
noncompliance and actual prejudice. Wainwright v. Sykes. 433
U.S. 72 (1977). Petitioner has offered no explanation or
justification for failing to object to the trial court's instruction at
the time of trial. Nor has any actual prejudice to the petitioner
been shown; the Court has not found any constitutional error or
error that infected the fundamental fairness of the trial. Cf.
Berrier v. Egeler, 583 F.2d 515 (6th Cir. 1978); Canary v. Bland,
583 F. 2d 887 (6th Cir. 1978); Rachel v. Bordenkircher, 590 F.
2d 200 (6th Cir. 1978). Thus, the Court is of the opinion that
federal habeas corpus review of the petitioner's first claim
should be barred. Wainwright v. Sykes, supra.
As his second ground for relief, petitioner alleges a denial
of due process and fundamental fairness as a result of prejudicial
comments by the prosecutor. Specifically, he urges that certain
remarks of the prosecutor during cross examination of petitioner
and in final argument were extensive, and had a tendency to
mislead the jury and to prejudice petitioner. Further, petitioner
claims that the trial court's instructions to the jury to disregard
such comments were futile.
In order to constitute a constitutional violation, it is necessary
that the prosecutor's comments rendered petitioner's trial ‘so
fundamentally unfair as to deny him due process.” Donnelly v.
DeChristoforo, 416 U.S. 637 (1974). A determination of funda-
mental unfairness is to be made after careful review of the
totality of the circumstances. Hayton v. Egeler, 555 F. 2d 599,
604 (6th Cir. 1977).
Upon review of the transcript of petitioner's trial, the Court
cannot find that the prosecutor's conduct rises to the level of a
constitutional violation. The trial court sustained objections
made by petitioner's counsel to improper remarks of the
prosecutor, and admonished the jury to disregard such comments
and the inferences contained therein. Additionally, the trial
court in its charge instructed and cautioned the jury that:
A68
The evidence, however, does not include the Inc'ctment,
the Opening Statements of Counsel or the Closing Arguments
of Counsel. The Opening Statements and Closing Arguments
of Counsel are designed to assist you. They are not evidence.
Statements or answers that were stricken by the Court, or
which you were instructed to disregard, are not evidence and
must be treated as though you had never heard them.
You must not speculate as to why the Court sustained the
objection to any question, or what the answer to such question
might have been. You must noi draw a
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