Petitioners Brief — Thomas v. Arn

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OcTorerR Term, 1984

KaTuy THOMAS,

Petitioner,

-Vs-

Dorotuy ARN, Superintendent, Ohio Reformatory for

Women.

Respondent

On Writ Of Certiorari To The United States

Court Of Appeals For The Sixth Circuit

BRIEF FOR PETITIONER

Curisrorner D. STANLEY

(Counsel of record)

902 Rockefeller Building

Cleveland, Ohio 44113

(216) 861-1409

Lous A. sacons

Clinical Programs

College of Law

The Ohio State University

1659 North High Street

Columbus, Ohio 43210

(614) 422-6821

Counsel for petitioner

1. Whether a United States Court of Appeals may,

consistent with either the allocation of constitutional au-

thority in Articles I and III or legislation governing the

role of magistrates, adopt a rule precluding appeal from

conclusions of law when an appellant did not file objec-

tions to 4 magistrate’s report and recommendation’

2. Whether a United States Court of Appeals rule

precluding appeal from conclusions of law when an appel-

lant has failed to file objections to a magistrate’s report

and recommendation violates the due process clause of

the Fifth Amendment?

TABLE OF CONTENTS

I nnn eeeeeecesegoonsests iii

ein nn ee eennngngnehenceeeet 1

ET 1

ConstrrutionaL, Statutory. ano RuLe PRovisions 2

on carcasecesocces 3

ae rac ewsens 6

EERE 5 SE 6

EE SE ee 17

TABLE OF AUTHORITIES

CASEs: Page

Boddie v. Connecticut, 401 U.S. 371 ("971) ........ 14-15

ameron v.

poy edith demctamooeteen aa

ey . United States District Court, 01 F.2d 196

Cir.), cert. denied, 419 U.S. 879 (1974) comane 9

Cohens v. Virginia, 6 Wheat. 264 (1821) ............. 6

Colorado River Water Conserv. Dist. v. United States,

TEL ETT 7-8

Douglas v. California, 372 U.S. 353 (1963) .......... 14

Johnson v. Zerbst, 304 U.S. 458 (1988) .............. 16

Lorin Corp. v. Goto & Co., Ltd., 700 F.2d 1202 (8th cir.

SEY 4nb0b40060060660600000606dds cccccocccscs 8, 15

Martin v. Hunter's Lessee, 1 Wheat. 304 (1816) ...... 6

Mathews v. Weber, 423 U.S. 261 (1976) ......... 9, 11, 12

Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) .. 11

Northern Constr. Co. v. Marathon Pipe Line

Co., 8 er ere 12

Pacemaker Diagnostic Clinic of America v. In-

stromediz, F.2d 537 (9th Cir. 1983) (er. banc) . 10

Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603

ET nad nc oicneeeaneasns pidiamecaets 14

Stanley v. Illinois, 405 U.S. 645 (1972) .............. 15

State v. Thomas, 66 Ohio St. 2d 518 (1981) .......... l

Sumner v. Mata, 449 U.S. 539 (1981), reaff'd, 455 U.S.

EE RE NAL RE aD Ee 16

eo HHS, No. 82-1733 (6th Cir. Jun. 1, ,

United States v. Raddatz, 447 U.S. 667 (1980)... 9, 12, 13

United States v. Sherwood, 312 U.S. 584 (1941) ...... 7

United States v. Walters, 639 F.2d 947 (6th Cir. 1981) 7, 11

Whitehead v. Califano, 596 F.2d 1315 (6th Cir. 1979). 13

Wilcox v. Consolidated Gas Co., 212 U.S. 19 (1909) .. x

Table of Authorities Continued

Page

Wingo v. Wedding, 418 U.S. 461 (1974) ............. 14

CONSTITUTIONS, STATUTES AND RULES

FN ETI ee a Oe 1, 12, 13, 14

U.S. Const. art. III sbibdddbabebdtndéodsdasenield passim

I sg oc coccdededescsedea leas 2,17

I i i 2, 10

BD WEG, GOBBI ono cccccccccccccccccceccees 9

BP ete POI 6 cc ccccccccececececceence passim

TTI RR A IE. 2, 10

GT REE LOS oie I ro 3, 14

PIII Sacesaceéaccconcecdscsaide 1

I a i aS ee 3,7

8, eae ee win eeu 7

N.D. Obelo Local R. 19.0608) ........cccccccccccccccs 3, 4

N.D. Ohio Local R. 19.08(3) 2.2.00... cece cece eece 3. 4

The decision of the United States Court of Appeals for

the Sixth Circuit denying the Petitioner's Motion for

Rehearing is unreported and reproduced in the (J.A. 65).

The decision of that court rejecting the appeal of the

judgment of the United States District Court for the

Northern District of Ohic , Eastern Division, is reported

at 728 F.2d 813 (6th Cir. 1984), and reproduced in the

(J.A. 60).

The decision of the district court denying the petition

for a writ of habeas corpus is unreported and is renro-

duced in the (J.A. 51). The Report and Recommendation

of the magistrate recommending denial of the writ is also

unreported and reproduced in the (J.A. 37).

The decision of the Ohio Supreme Court reinstating

Petitioner’s conviction is reported at State v. Thoma | 66

Ohio St. 2d 518 (1981), and is reproduced in the (J.A. 33).

The decision of the Eighth District Ohio Court of Appeals

reversing Petitioner’s conviction is reported at 17 Ohio

Op. 2d 397 (1980). The judgment of the Cuyahoga County

Court of Common Pleas finding the Petitioner guilty of

murder is unreported and is reproduced in the (J.A. 9).

JURISDICTION

The order of the United States Court of Appeals for the

Sixth Circuit denying Petitioner's Motion for Rehearing

was entered on June 25, 1984. A timely petition for a writ

of certiorari was subsequently gianted by this Court.

This Court’s jurisdiction is invoked pursuant to 28 U.S.C.

2101.

CONSTITUTIONAL, STATUTORY, AND RULE

PROVISIONS EXCERPTS

United States Constitution, Article I, Section 8: The

Congress shall have power . . . to constitute tribunals

inferior to the Supreme Court.

United States Constitution, Article III, Section 1: The

judicial power of the United States shall be vested . . . in

such inferior courts as the Congress may from time to

time ordain and establish.

United States Constitution, Amendment V: No person

shall. . . be deprived of life, liberty, or property, without

due process of law, ... .

United States Code, Title 28, Section 636(b)(1)(A): A

judge may designate a magistrate to hear and determine

any (non-dispositive] pretrial matter pending before the

court, ... . A judge of the court may reconsider any

pretrial matter under subparagraph (A) where it has

been shown that the magistrate’s order is clearly errone-

ous or contrary to law.

United States Code, Title 28, Section 636(b)(1)(C):

Within ten days after being served with a copy, any party

may serve and file written objections to such proposed

findings and recommendations as provided by rules of

court. A judge of the court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection

is made. A judge of the court may accept, reject, or

modify, in whole or in part, the findings or recommenda-

tions made by the magistrate. The judge may also receive

further evidence or recommit the matter to the magis-

United States Code, Title 28, Section 636(c)(4); (5):

Notwithstanding the provisions of paragraph (3) of this

subsection, at the time of reference to a magistrate, the

parties may further consent to appeal on the record to a

judge of the district court. . . . [Such cjases . . . may be

reviewed by the appropriate United States court of

appeals upon petition for leave to appeal by a party stat-

ing specific objections to the judgment.

United States Code, Title 28, Section 1291: The courts

of appeals . . . shall have jurisdiction of appeals from all

final decisions of the district courts of the United States,

"United States Code, Title 28, Section 2253: In a habeas

corpus proceeding before a circuit or district judge, the

final order shall be subject to review, on appeal, by the

court of appeals for the circuit where the proceeding is

had.

Federal Rules of Appellate Procedure, Rule 1(b):

These rules shall not be construed to extend or limit the

jurisdiction of the courts of appeals as established by law.

Local Rules of Northern District of Ohio, Rule 19.04(3):

An aggrieved party may object to the Magistrate's pro-

posed findings, recommendation or report issued under

this rule within ten (10) days after being served with a

copy thereof.

Local Rules of Northern District of Ohio, Rule 19.08(3):

Objections to a Magistrate’s report and recommendation

with regard to a dispositive civil motion and all proceed-

ings thereafter shall be in accordance with Rule 19.04(3).

STATEMENT OF THE CASE

tioner Kathy Thomas sought a writ of habeas corpus

based on the exclusion at trial of expert testimony on the

“battered wife syndrome.” A lengthy memorandum of

law was filed in support of the habeas petition, and the

District Court referred the petition to a magistrate.

No evidentiary hearing was held before the magis-

trate. The central issue of the petition was whether “the

trial court’s exclusion of expert testimony on the ‘bat-

tered wife syndrome’ impugned the fundamental fairness

of the trial process thereby depriving Thomas of her

constitutional right to a fair trial.” Thomas v. Arn, 728

F.2d 813, 815 (6th Cir. 1984) (Jones, J., concurring).

Based on the memoranda of law and state court deci-

sions, the magistrate filed a report and recommendation

that the petition be denied on May 11, 1982. The magis-

trate’s report contained a warning that failure to file

objections within ten days would result in a waiver of the

right to appeal the judgment of the district court. Under-

signed counse! for Kathy Thomas secured an extension of

time in which to file objections.

After reviewing the magistrate’s report and recom-

mendation, undersigned counsel determined that fu~ther

briefing of the legal issues would have been repetitive and

serve no useful purpose. No objections wer~ filed, nor

was waiver of the appeal as of right discussed with Kathy

Thomas. The warning in the magistrate’s report had not

registered with undersigned counsel as a bar to an appeal

on the conclusions of law drawn by the magistrate.

Local rules in the United States District Court for the

Northern District of Ohio, Eastern Division, are permis-

sive in relation to the filing of objections. N.D. Rule

19.04(3); 19.08(3). Likew'se, the Magistrates Act, 28

U.S.C. § 636(b)1)(C), contains permissive language.

Undersigned counsel neither noticed nor understood the

warning to be in contravention of the local rules and

governing statute.

Even without objections being filed, the district judge

considered the record de novo and, on September 3, 1982,

denied the habeas petition on the same grounds used by

the magistrate. A timely appeal from that final order was

made to the United States Court of Appeals for the Sixth

Circuit.

The court deemed the appeal as of right to be waived by

failure to file objections to the magistrate’s report and

recommendation. Absent that waiver, at least one judge

on the panel would have granted the writ of habeas

corpus.

That judge concluded that “the expert testimony could

have clarified the unique psychological state of mind of

the battered woman and should have been admitted by

the trial judge” ee ee

and inability or failure to understand the

Thomas v. Arn, 728 F.2d at 815 (6th Cir. 1984) (Jones, J.,

concurring). Kathy Thomas had been trapped in the bat-

tered woman syndrome: “The evidence at trial estab-

lished that the decedent was a violent man who had

beaten Thomas on a number of occasions, including just

before the shooting.” 728 F.2d at 814.

She was nevertheless indicted for murder. At arraign-

ment she plead not guilty. At trial she admitted killing

her common law husband, but she contended that the

killing was in self defense. The exper -estimony was to

be elicited on her state cf mind.

Due to the waiver rule established by the United States

Court of Appeals for the Sixth Circuit, she has been

denied an appeal as of right on whether exclusion of that

expert testimony violated her constitutional guarantee to

a fair trial.

operates to reduce appellate jurisdiction by precluding an

appeal when the appellant has failed to file objections to a

ly treated differently. Thus, the rule violates due process

and the equal protection component of the Fifth Amend-

Court. Since Martin v. Hunters’ Lessee, 1 Wheat. 304

(1816), and Cohens v. Virginia, 6 Wheat. 264, 404 (1821),

congressional delineation of inferior federal court

jurisdiction has been controlling.

Walters, 639 F.2d 947 (6th Cir. 1981).

In an appeal where issues of law predominate. the rule

barrier. Rather

nature of the rule's bar is likewise

clear. In Stutler v. Secretary of HHS, No. 82-1733 (6th

Cir. Jun. 1, 1984) (not recommended for full-text publica-

tion), an apparently tardy filing of objections to a Magis-

trate’s Report recommending summary judgment was

treated by the appellate court as a jurisdictional issue:

“At this juncture it is imperative for this court to deter-

mine whether the plaintiff filed a timely objection to the

magistrate’s report as such is a predicate to the jurisdic-

tion of this court to review the appellant's appeal.”

This conclusion disregards “the virtually unflagging

obligation of the federal courts to exercise the jurisdiction

given them.” Colorado River Water Conserv. Dist. v.

United States, 424 U.S. 800, 817-18 (1976). Accord, Wil-

coz v. Consolidated Gas Co., 212 U.S. 19, 40 (1909) (duty

of appellate court to exercise jurisdiction given by Con-

gress).

An appellate decision on a close question of law waa

totally denied Petitioner. The constitutional ramifica-

tions of «xclusion of expert testimony on battered women

were at the heart of the appeal and patently reflected

conclusions of law reached by both the magistrate and the

trial judge. To foreciose an appeal on issues of law proper-

ly raised below under the guise cf a procedural rule is an

arrogation of jurisdictional power in contravention of

Article III.

Il. The Statutory Language And Structure Of The Magie-

trates Act Refute Claimed Legisiative Authorization F or

A Barrier To Appeal Based On A Failure To File Objec-

tions To A Magistrate's Report.

The express language Congress used in referring to

objections to a magistrate’s report and recommendation

is permissive. “Within ten days. . ., any party may serve

and file written objections to such proposed findings and

recommendations... .” 28 U.S.C. § 636(bK1C) (em-

phasis noted).

Of equal importance, no mention is made of the impact

of failing to file objections on the right to an appeal. As the

court in Lorin Corp. v. Goto & Co., Lid., 700 F.2d 1202,

1206 (8th Cir. 1983), reasoned, “One would think that if

Congress had wished such a drastic consequence to follow

from the missing of the ten-day time limit, it would have

said so explicitly.”

To the contrary, Congress set in no uncertain terms

precisely what relationship the magistrate’s report and

recommendation has to the trial judge. Pursuant to 28

U. ..C. § 686(bX1C), the trial “court may accept, reject,

or modify, in whole or in part, the findings or recommen-

dations made by the ” The Act does not set a

condition precedent of objections; instead, “{t |he district

judge is free to follow it or wholly to ignore it, or, if he is

not satisfied, he may conduct the review in whole or in

part anew.” Mathews v. Weber, 423 U.S. 261, 271 (1976).

Conversely, Congress exacted a penalty for failure to

file objections. A “de novo determination” is triggered by

U.S.C. § 636(bX1 XC). Quite simply, the

effect of a failure to file objections is the waiver of a

mandatory de novo determination. Cf United States v.

Raddatz, 447 U.S. 667, 676 (1980) (de novo requirement

A review of the iegisiative scheme in the Magistrates

Act also demonstrates that Congress did not intend to

matters, Congress

at the option of a party to increase the <istrict judge's

supervision of the magistrate.

The entire thrust of the Magistrates Act is, therefore.

to increase the standard of review when dispositive or

post-trial matters are handled by the magistrate. Thus.

there can be no waiver of all review by the trial judge and,

accordingly, no waiver of an appeal as of right.

Under the rule at bar, the effect of a failure to file

ws far different than intended.

loss of the m@ht to an appeal. Yet, Congress chose to limit

that appeal mght under different and stringent stand-

ards.

Pursuant to 28 U.S.C. § 636(c), parties may consent to

trial by a magistrate and then may choose whether to

waive their appeal as a matter of right to a circuit court.

28 U.S.C. § 636(cX4). Litigant consent and choice are

Americe __ /nstromediz, 725 F.2d 537, 542-43 (9th Cir.,

1984) (en vane). That

decisionmaking. See, ¢.9

F.2d 947 (6th Cir. 1981);

404 (Sth Cir. 1982).

To ignore specific language and structure in the name

of pursuing a greater legislative purpose is, however. in

conflict with fundamental canons of statutory interpreta-

tion. Moreover. the empirical observation of efficiency is

made to the magistrate is <urely questionable.

s, No. 81-1484 (6th Cir.,

ings of fact and conclusions of law, the statutory purpose

has been fulfilled. At bar, the trial judge exercised his

discretion to engage in a de novo review, though he could

have refused to do so im light of the failure to file objec-

tions. Thus, the effect of the waiver of de novo determina-

tien, the only waiver attached by the Magistrates Act to

failure to file objections, was vitiated by the district

court. Under the Magistrates Act. the waiver cannot be

resurrected by the appellate court.

11. Legislation Interpreted Te Penaiize A Failure To File

Otpections By W arwer Of An Appeal As Of Right Violates

The Articte [1] Requirement (9 An Independent Judicia-

This Court has recently encountered legislative efforts

to vest in non-Article [II judges the exercise of Article II]

judicial power. Northern Pipeline Construction Co. v.

Marathon Pipe Line Co., 458 U.S. 50 (1982). The role of

magistrates has likewise been questioned. See, ¢.g.,

Uwited States v. Raddatz, supra; Mathews v. Weber,

supra

A common thread throughout the jurisprudence on the

exercise of Article [I] power by non-Article III judges is

the role of the Article [III judge as the constitutional

backstop. In Mathews v. Weber, supra, 423 U.S. at 271,

this Court se respended to the argument that Congress

had improperly converted the Article |! magistrate: “The

authortty—and the responsibility—to make an informed,

final determination, we emphasize, remains with the

judge.”

Canvassing legislative history, the Court found that

Congress shared the fear that Article I i

would exercise Article III power. To calm that fear,

Congress ensured that the Article III judge retained the

ultimate responsibility for matters referred to the magis-

trate. 423 U.S. at 269-70.

In a like manner, the Court explained in United States

v. Raddatz, supra, 447 U.S. at 681, that “the entire

process takes place under the district court’s total control

and jurisdiction.” The critical element in meeting an Arti-

cle III challenge based on the requirement of an indepen-

dent judiciary, then, is active and ultimate participation

of an Article III judge.

Were 28 U.S.C. § 636(b)(1)(C) construed to impose a

penalty of loss of an appeal as of right for failure to file

objections to a magistrate’s report and recommendation,

the Article I magistrate would be elevated to the position

of an Article III judge. Rather than service as an adjunct

oO eh etiketeaa>

take on independent . It would be the magis-

trate’s report and recommendation that an aggrieved

party must object to, not the judge’s final order, for an

appeal to be perfected.

An Article I magistrate may not, however, assume

such a role. Judicial power must reside in the Article III

judge and, without prior constraints, can neither be abdi-

cated to nor conclusively exercised by an Article I magis-

trate.

The Magistrates Act implemented a system whereby

non-Article III judges could deal with the often time-

consuming and peripheral issues that delay merits deci-

sions. Absent very specific and limited circumstances,

magistrates were not intended to issue merits decisions.

Congress has not equated the Article I magistrate with

an Article III judge.

Consequently, an appeal turns on the district judge’s

order, not the magistrate’s report and recommendations.

Whitehead v. Califano, 596 F.2d 1315, 1319 n.3 (6th Cir.

1979)(Magistrate’s Report not a final order). A final order

appealable under 28 U.S.C. § 1291 flows from judicial

power, and that judicial power has Article III’s guarantee

of independence.

In appealing from a final order entered by an Article III

judge, a party has satisfied 28 U.S.C. § 1291. An in-

of 28 U.S.C. § 636(b)(1)(C) that effectively

transmits finality to the magistrate’s report and recom-

mendation deprives a party of Article III protection. See

Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603

(1st Cir. 1980).

By filing the appeal, a party had clearly indicated an

unwillingness to waive the right to active and ultimate

participation by an Article III judge. No waiver can be

implied under a constitutionally construed statute from a

party’s failure to file objections to an Article I magis-

trate’s report and recommendation.

IV. ARule Compelling That Objections Be Filed To A Magis-

trate’s Report To Preserve An Appeal As Of Right

Violates Due Process.

Whatever the source for a rule conditioning an appeal

as of right on objections being filed to a Magistrate’s

Report, the rule must be adopted in a manner consistent

with the Fifth Amendment. Two branches of the Amend-

ment’s due process clause are implicated by such a rule.

First, the rule directly and severely impairs a fun-

damental right. The constitutional pedigree of the writ of

habeas corpus has been recognized by this Court. Wingo

v. Wedding, 418 U.S. 461, 468 (1974). The function of an

appeal as of right in preserving that writ is equally appar-

ent. See Douglas v. California, 372 U.S. 353 (1963).

Absent some countervailing interest, due process de-

mands that the fundamental right not be impaired. Bod-

die v. Connecticut, 401 U.S. 371 (1971). The only counter-

vailing interest, however, is that trial judges might be

able to more efficiently review magistrate reports.

That efficiency is not demonstrably served by a rule

requiring objections. A trial judge would be able to most

review a magistrate’s report when no chal-

lenge is made to it. For that matter, a perfunctory set of

objections, perhaps incorporating the very same ones

made to the magistrate with regard to the original peti-

tion, is of no utility.

Professionalism and self-interest constitute ample

motivation for filing meaningful objections. Lorin Corp.,

supra, 700 F.2d at 106. No reason exists to force a habeas

corpus petitioner to fully brief the legal questions first in

state courts and then before the magistrate and finally

waste the time, effort, and money to reargue the same

Once an issue, especially a legal issue, is raised before

The trial judge has a full record, consisting in part of a

petition, prior briefs and judicial decisions, and the

magistrate’s report and recommendation on the legal

issues, before him or her and is in no way bypassed when a

party does not file objections.

Beyond that, this kind of argument from efficiency is

too reminiscent of that rejected in Stanley v. Illinois, 405

U.S. 645 (1972), to withstand scrutiny. Governments may

always find it more efficient to burden citizens; the due

process clause stands as a bulwark against that.

Indeed, the burden is particularly inappropriate in

habeas corpus proceedings. Findings of fact made by

state courts are open to minimal challenge in a habeas

corpus proceeding. Sumner v. Mata, 449 U.S. 539, 550

(1981), reaff'd, 455 U.S. 591 (1982). Thus, most habeas

corpus petitions focus on legal issues, like the one at bar.

Moreover, the status of habeas corpus petitioners,

usually indigent inmates proceeding in forma pauperis,

renders the burden even more unseemly. Lawyers are

forced to needlessly waste time, energy, and money de-

spite the presence of fully briefed legal issues. Similarly,

the trial judge is not significantly more informed by

repetitive objections than he or she already was by the

initial memorandum of law in support of the habeas cor-

pus petition.

Second, the rule operates to create two groups of appel-

lants without regard to the merits of the appeals. In

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), an

administrative rule with similar effect was found by six

members of this Court to violate equal protection.

To justify treating Petitioner's ostensibly meritorious

appeal differently from other appeals, the rule asserts

efficiency, a matter addressed in the due process branch,

and waiver. Waiver should not be inferred from a reason-

able response to the notice provided Petitioner's counsel.

In light of the established distinction between findings of

fact and conclusions of law and the previous legal memor-

andum on the issues of law at bar, that notice was simply

ineffectual to induce waiver of an appeal as of right.

Under Johnson v. Zerbst, 304 U.S. 458 (1938), a waiver

must be intentional, knowing, and voluntary. Kathy

Thomas in no way made such a waiver. Undersigned

counsel has diligently pursued her case through six courts

and should not be held to have waived her appeal as of

right by operation of the warning in the magistrate’s

report. Absent waiver, no countervailing interest exists

CONCLUSION

The judge-made rule denying an appeal as of right from

a district court final order impermissably limits the

jurisdiction of inferior federal courts, ignores the plain

meaning of the Magistrates Act and congressional intent,

and violates the constitutional safeguards in Article III

and the Fifth Amendment. Petitioner respectfully re-

quests that this Court reverse and vacate the judgment of

the United States Court of Appeals for the Sixth Circuit

and remand for a full appellate review of the district

court’s denial of the writ of habeas corpus.

Respectfully submitted,

CHRISTOPHER D. STANLEY