Opposition Brief — O'NEAL v. McAninch

otto ORIGINAL

ey Supreme Court, U S.

FILED

a\gitit CASE NO. 93-7407 a in

OFFICE OF THE Ciire

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

on ROBERT O’ NEAL,

nee Petitioner,

v.

FRED McCANINCH, WARDEN,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION TO PETITION

LEE FISHER

Attorney General

TIMOTHY J, MANGAN (0025430)

(Counsel of Record)

STUART A. COLE (0020237)

Assistant Attorney General

State Office Tower, 26th Floor

30 East Broad Street

Columbus, Ohio 43215-3428

614/644-7233

yHE CLERK ATTORNEYS FOR RESPONDENT

E OF

SUPREME

—_—_

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

ARGUMENT

I. NO CONFLICT CURRENTLY EXISTS AMONG THE

CIRCUITS WITH RESPECT TO THE HARMLESS

ERROR STANDARD THAT IS TO BE APPLIED IN

FEDERAL HABEAS REVIEW “it Sh ae ee

II. ALTHOUGH IT IS NOT DETERMINATIVE IN THE

CASE AT BAR, BRECHT V. ABRAHAMSON PLACES THE

BURDEN OF PROVING HARMLESS ERROR ON THE

ar rea ie oe ie ee

III. THE SIXTH CIRCUIT CORRECTLY APPLIED THE STANDARD

OF REVIEW SET FORTH IN ESTELLE V. MCGUIRE,

U.S. , 112 S.Ct. 475 (1991) IN ITS

EVALUATION OF PETITIONER’S INSTRUCTION CLAIM

IV. THE SIXTH CIRCUIT’S DECISION IS EXPLICITLY

PREDICATED UPON A CAREFUL COLLECTIVE REVIEW

OF PETITIONER’S CONSTITUTIONAL ALLEGATIONS

CONCLUSION :

CERTIFICATE OF SERVICE

ii

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TABLE OF AUTHORITIES

Cases:

Boyde v. California, 494 U.S. 370 (1990)

Brecht v. Abrahamson, U.S. , 113 S. Ct. 1710 (1993)

Chapman v. California, 386 U.S. 18 (1967)

Clark v. Jago, 676 F.2d 1099 (6th Cir. 1982),

cert. denied, 466 U.S. 977 (1984) Biba

Estelle vy. McGuire, __U.S.__, 112 S.Ct. 475 (1991) . 14,1

Francis v. Franklin, 471 U.S. 307 (1985)

Lockhart v. Fretwell, __U.S.__, 113 S.Ct. 838 (1993).

O'Neal v. Morris, 3 F.3d 143 (6th Cir. 1993) . 1,3,6,13,15,

Ordndorff v. Lockhart, 998 F.2d 1426 (8th Cir. 1993

Walker v. Engle, 703 F.2d 959 (6th Cir.),

cert. denied, 464 U.S. 951 (1983) Pa ae

28 U.S.C. Section 2254

O.R.C. Section 2945.20

‘Ohio Criminal Rule 14

ii

12,1

ui

CASE NO. 93-7407

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

ROBERT O’ NEAL,

Petitioner,

v.

FRED McANINCH, WARDEN’,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION TO PETITION

OPINION BELOW

The decision of the United States Court of Appeals for the

Sixth Circuit is reported at Q’Neal v. Morris, 3 F.3d 143 (6th Cir.

1993) and is reproduced in the Appendix to Petitioner’s certiorari

petition at A-1l. The entry of the Court of Appeals denying

rehearing and rehearing en banc is reproduced in the Appendix to

Petitioner’s certiorari petition at A-8.

The judgment and opinion of the United States District Court

‘Terry Morris, the original Respondent in this action, is no

longer employed in the Chillicothe Correctional Institution. Fred

McAninch, the current Warden of the Chillicothe Correctional

Institution, is thus the proper Respondent in this action.

for the Southern District of Ohio, Western Division, is unreported

and reproduced in the Appendix to Petitioner’s certiorari petition

at A-9. The Magistrate Judge’s Supplemental Report and

Recommendation is unreported and reproduced in the Appendix to

Petitioner’s certiorari petition at A-14. The district court’s

Original remand order is unreported, and reproduced in the Appendix

to Petitioner’s certiorari petition at A-23. The Magistrate

Judge’s Report and Recommendation is unreported and reproduced in

the Appendix to Petitioner’s certiorari petition at A-28.

Respondent Fred McAninch (hereinafter Respondent) is the

Warden of the Chillicothe Correctional Institute located in

Chillicothe, Ohio. As the Warden, Respondent has custody of

Petitioner Robert O’Neal, (hereinafter Petitioner). This custody

is maintained pursuant to the journal entry of sentence issued by

the Court of Common Pleas of Cuyahoga County in the case of State

v. O’Neal, CR-163540 (CCP Cuy.Cty. 1981), wherein Petitioner was

indicted and found guilty after a jury trial of one (1) count of

aggravated murder in violation of Ohio Revised Code Section

2903.01, one (1) count of robbery in violation of Ohio Revised Code

Section 2911.01,and one (1) count of kidnapping in violation of

Ohio Revised Code Section 2905.01. Upon conviction the trial court

sentenced Petitioner to consecutive terms of life imprisonment on

the aggravated murder conviction, seven (7) years to twenty-five

(25) years imprisonment on the aggravated robbery conviction and

seven (7) years to twenty-five (25) years imprisonment on the

kidnapping conviction. gos:

' Petitioner appealed the decision of the trial court to the

Court of Appeals of Ohio for the Eighth Appellate District

alleging through counsel the following assignments of error:

1. The appellant was denied a fair trial and his

right to trial by a jury drawn from a

representative cross-section of the community

when the state used its preemptory challenges

to remove prospective jurors on the sole

ground of group racial bias.

2. The appellant was denied his constitutional

right to a fair trial by the admission of

gruesome, inflammatory photographs.

3

a: The appellant was denied his right to a fair

trial and his right to confront and cross-

examine an adverse witness when the trial

judge permitted an FBI agent to refuse to

answer questions directed at him under cross-

examination.

4. The court erred in permitting the introduction

of evidence of other crimes, wrongs or acts.

S. The appellant was denied a fair trial by the

court’s instructions on complicity and

conspiracy.

6. Trial court erred in overruling the motion for

separate trial.

On January 25, 1985, the Court of Appeals affirmed in all respects.

A subsequent motion for leave to appeal was denied by the Ohio

Supreme Court on January 29, 1986.

Petitioner filed an application for writ of habeas corpus

pursuant to 28 U.S.C. Section 2254 in the United States District

Court for the Southern District of Ohio, Western Division, alleging

the following grounds for relief:

Re Petitioner could not be jointly tried absent

strict compliance with Criminal Rule 14 and

O.R.C. §2945.20.

2. The prosecutor exercised his (preemptory)

challenges to excuse jurors solely on the

basis of their racial affiliation.

3. Petitioner was denied the right to a fair

trial by improper jury instructions by the

trial court.

4. Petitioner was denied the right to a fair

trial and due process by continued reference

to conspiracy and the trial court instruction

on conspiracy.

s. Petitioner was denied due process and the

right to a fair trial by deliberate

prosecutorial misconduct.

4

6. Petitioner was denied his right to a fair

trial and his right to confront and cross-

examine an adverse witness. _

- Petitioner was deprived of his due process

rights to a fair trial by the trial court

allowing inflammatory physical evidence to be

viewed by the jury.

8. Petitioner was denied equal protection of the

law where the appellate court did not address

an issue raised on appeal by Petitioner.

After the filing of extensive pleadings as well as an evidentiary

hearing, and oral argument, the Magistrate Judge issued a Repor*

and Recommendation on January 19, 1992. Respondent filed untimely

objections to the Report and Recommendation on February 19, 1992.

The district court thereafter granted a Petitioner motion to strike

and remanded the case to the Magistrate Judge on the claims of

constitutionally defective jury instructions, prosecutorial

misconduct and erroneously admitted evidence.

The Magistrate Judge then filed a Supplemental Report and

Recommendation which recommended granting the writ of habeas

corpus. Although timely objections to the Magistrate Judge’s

Supplemental Report were thereafter filed, on June 26, 1992 the

district court adopted the Magistrate Judge’s Supplemental Report

in its entirety and conditionally granted Petitioner’s habeas

corpus petition.

Respondent next obtained a stay of the district court’s

judgment and perfected a timely appeal to the Sixth Circuit Court

of Appeals. On May 6, 1993, the Sixth Circuit issued a unanimous

opinion reversing the district court’s writ granting decision.

Q’Neal v. Morris, 3 F.3d 143 (6th Cir. 1993). In so ruling the

Sixth Circuit held that since all evidence upon which the jury

could have relied pointed to Petitioner’s guilt as a principal,

error, if any, in the trial court’s jury instructions was harmless.

It is significant that the Sixth Circuit did not hold, as

Petitioner mistakenly claims, "that the constitutional and

nonconstitutional error findings made by the lower courts were

correct." (Petitioner certiorari petition, p. 6). Indeed to the

contrary, the Sixth Circuit explicitly recognized that the trial

court’s instructions were not error of any kind as it held:

when read against the background of Ohio

complicity law, the court’s reference to

"defendant’s or co-defendant’s or aiders and

abettors" appears to be nothing more than an

unartful boilerplace reiteration that the same

individuals could be found guilty as either

principals ("defendants or co-defendants") or

as "“aiders and abettors".

Id. at 146.

In response to the Sixth Circuit’s decision, Petitioner filed

a petition for rehearing with suggestion for en banc rehearing.

The Sixth Circuit denied Petitioner’s motion on October 4, 1993.

Petitioner has now filed a timely petition for writ of certiorari

in this Court.

STATEMENT OF THE FACTS

The plot to kill Henry Podborny, (hereinafter Henry) began as

a confidence game to bleed money from Henry’s wife, Dimple Podborny

(hereinafter Dimple). In the spring of 1980, Dimple asked her

daughter-in-law, Lola Gail Toney (hereinafter Toney) if Toney knew

someone who could provide "protection" from Henry. (Tr. 1763).

After meeting with Dimple in Chicago, Toney returned to Cleveland

where she contacted her long time friend and business associate,

James McLean. (Tr. 1764, 2946). Toney and McLean met three times

and devised a plan to extort money from Dimple by charging her for

"protection" from Henry. (Tr. 1769).

In June, 1980, Dimple met with Toney, McLean and another

Gaughter at a Cleveland area Holiday Inn. Dimple agreed to a

$5,00C protection fee of which she paid $2,500. In the months that

followed, Toney and McLean concentrated on milking Dimple for

"protection" money, rather than harming Henry. By mid-August,

1980, Dimple was anxious for results and approached Toney to

arrange for Henry’s killing. (Tr. 2952). Soon thereafter, Dimple

paid Toney $24,600.

In August of 1980, Petitioner, who had known Toney over the

previous eight years as a lover and part-time bookkeeper, entered

the scheme. (Tr. 1750). Petitioner’s job, for which Toney paid

him $6,500, was to accompany Toney to Chicago to soothe Dimple’s

fears and convince her that plans for Henry’s death were being

made. (Tr. 1809, 1818, 1820). In the months that followed

Petitioner and Toney were in constant contact. (Tr. 1823).

By January of 1981, Dimple had become very impatient. A plan

was then devised to lure Henry to Cleveland, where Toney would drop

him off at Petitioner’s restaurant. Petitioner agreed to hold

Henry while Toney and others went to Chicago and robbed Henry’s

residence.

On January 6, 1981, Petitioner received a .38 caliber Smith

and Wesson gun which belonged to him and had been confiscated

earlier in East Cleveland.’ (Tr. 4051). Thereafter, on January 29,

1981, the robbery conspiracy proceed as planned and Toney took

Henry to Petitioner’s bar and drove down the block to a gas station

as prearranged with Petitioner. (Tr. 1858). Approximately 10

minutes later, Petitioner arrived at Toney’s car and gave her

Henry’s keys and wallet. (Tr. 1859). Petitioner and Toney drove

up the block where they were met by another accomplice (Lloyd

Allen) who informed them that he had hit Henry with a lead pipe so

he couldn’t run.

Henry was never seen alive again. His body was ultimately

found on April 23, 1981. It was undisputed that Henry’s death was

caused by five blows to the head with a blunt instrument and a shot

in the forehead. (Tr. 3710-3712).

Subsequent to Henry’s murder, Toney, McLean and others

attempted to get at Henry’s assets. By February of 1981, however,

McLean agreed to cooperate with the FBI who had earlier arrested

? Later tests confirmed that Henry was shot by a_.38 caliber

bullet. (Tr. 3893).

him. From March 17, 1981 through March 25, 1981, McLean, with the

help of the FBI, taped several conversations with Toney in which

they discussed Petitioner’s extortion of money from Toney. (Tr.

1939, 3064, 3068, 3111). At the FBI’s suggestion,. McLean offered

to help Toney get money. In a series of taped conversations, Toney

and McLean arranged and delivered approximately $500 to Petitioner.

(Tr. 1939).

On March 25-26, 1981, Toney, her brother Gary, Allen and

Petitioner were arrested. Allen made a written statement which

implicated Petitioner and himself in the kidnapping and robbery,

but denied any involvement in Henry’s death. (Tr. 4446, 4447,

4458-4461). After he was advised of his rights Petitioner made an

oral statement similar to Allen’s. (Tr. 4464, 4465).

Petitioner was further implicated in Henry’s murder by

admissions which he madé to Wilbur Higgins during an April 2, 1981

Cuyahoga County Jail visit. Although it would be weeks before the

police would find Henry’s body, Petitioner cohfessed to Higgins

that he and Allen had killed a man and placed the body in the field

next to 1150 Lakeview. (Tr. 3724-3728). - Petitioner then told

Higgins to cover up the’ body. Despite Petitioner’s request,

Higgins did not go to the body until weeks later when /ne was

accompanied by a city health inspector.

Higgins also testified that earlier that winter, Petitioner

and Allen were parked within twelve feet of where Henry’s body was

found. At that time Petitioner told Higgins to leave for a while

using the false excuse that they had women in the car. (Tr. 3733).

Petitioner’s involvement in the killing of Henry was also

demonstrated by evidence gleaned from Petitioner’s bar. Linda

Luke, trace evidence expert in the Cuyahoga County Coroner’s

Office, found blood splatters at Petitioner’s bar on a mirrored

panel and wooden paneling. (Tr. 3676). The blood splatters were

consistent with Henry’s blood type and enzyme make up. (Tr. 3684).

Luke also used photographic enlargements to show the shape of the

blood splatters. From these enlargements and ae to-scale

reconstruction of the paneling, it was determined that the blood

splattered at a high velocity and at a height consistent with

Henry’s. Additionally, physical evidence found with Henry’s body

was similar to items found in Petitioner’s bar. The pool table

covering was missing from Petitioner’s pool table and Henry’s body

was wrapped in green felt like covering. (Tr. 3665, 3701, 3712).

Paint chips found on Henry’s scalp hair were similar to paint in

Petitioner’s bar. (Tr. 3653).

At trial, Petitioner testified on his own behalf. While

making no effort to explain the $500 which he had extorted from

McLean, Petitioner characterized the $6,500 he received from Toney

was an "investment." (Tr. 4840). On cross-examination, Petitioner

admitted no loan papers had been signed and no liquor license

papers involved Toney’s name. (Tr. 4885-4886). The "investment"

fell through and Petitioner used the $6,500 to pay attorney fees

arising froma "little problem in East Cleveland with Judge Devine

to get a [Smith and Wesson .38 caliber) firearm back." (Tr. 4845).

Petitioner described his meetings with Dimple and Toney as social

10

occasions. (Tr. 4848, 4889).

Petitioner further testified the police roughed him up and

falsely attributed oral statements to him. (Tr. 4863-4865). On

cross-examination, Petitioner admitted the police never physically

touched him. (Tr. 4872). Petitioner claimed that Toney, McLean

and Higgins were liars and the statement made by Allen was a lie.

(Tr. 4892, 4917, 4918, 4926).

11

Be NO CONFLICT CURRENTLY EXISTS AMONG’ THE

CIRCUITS WITH RESPECT TO THE HARMLESS ERROR

STANDARD THAT IS TO BE APPLIED IN FEDERAL

HABEAS REVIEW.

In Brecht v. Abrahamson, _—SasU«. SS. ~ —,:«2113 S. Ct. 1710 (1993),

this Court recently held that a habeas corpus petitioner bears the

burden of demonstrating that a trial court’s error has substantial

and injurious effect or influence in determining the jury’s verdict

such that it results in actual prejudice. In his brief Petitioner

contends that a "conflict" exists because in Ordndorff v. Lockhart,

998 F.2d 1426 (8th Cir. 1993), the Eighth Circuit Court of Appeals

applied the Chapman v. California, 386 U.S. 18 (1967) harmless

error standard in a factually similar situation to the case at bar.

However, even a cursory review of Ordndorff shows Petitioner to be

in error.

In QOrndorff a capital defendant discovered after he had

pursued an appeal to the Arkansas Supreme Court that the key

prosecution witness had been hypnotized prior to trial in an

attempt to enhance her memory. For the sole reason that "the state

courts did not have the opportunity to review the error at all" Id.

at 1430, the Eighth Circuit applied the Chapman harmless error

standard.

Unlike Orndorff, the above procedural summation of this case

reflects that the Ohio appellate courts unanimously considered and

rejected Petitioner’s jury instruction claim on the merits. See,

Appendix to Petitioner’s Certiatori petition at Al08 - Al09. Under

these circumstances no conflict whatsoever exists among the

12

circuits as to the appropriateness of the Brecht v. Abrahamson grant certiorari just to restate the burden of proving harmless

harmless error standard. error which it articulately set forth in Brecht. Petitioner’s

second argument for granting certiorari is meritless.

II. ALTHOUGH IT IS NOT DETERMINATIVE IN THE CASE

AT BAR, BRECHT V. ABRAHAMSON PLACES THE BURDEN

OF PROVING HARMLESS ERROR ON THE PETITIONER. III. THE SIXTH CIRCUIT CORRECTLY APPLIED THE STANDARD OF

REVIEW SET FORTH IN ESTELLE V. MCGUIRE, __—iU.S.

Petitioner next claims that there is a conflict within the 112 S.Ct. 475 (1991) IN ITS EVALUATION OF PETITIONER’ S

INSTRUCTION CLAIM.

Sixth and other circuits as to who has the burden of proving a ' ; aa

As his third ground for granting certiorari Petitioner

constitutional error to be harmless.’ In Brecht, this Court ;

. complains that the Sixth Circuit retroactively applied Lockhart v.

explicitly placed the burden of proving that a constitutional error

Fretwell, U.s. + 113 S.Ct. 838 (1993). The first problem

was harmless upon the inmate as it held,

with this argument is that the Sixth Circuit does not even mention

The test under Kotteakos is whether the error

"had substantial and injurious effect or Lockhart v. Fretwell, let alone use it as the basis of its holding

influence in determining the jury’s verdict." : : :

328 U.S., at 776, 66 S.Ct., at 1253. Under eethat the district court had relied upon the wrong test for

this standard, habeas petitioners may obtain re oe tg

plenary review of their constitutional claims, Li evaluating Petitioner’s instruction claim.

but they are not entitled to habeas relief : ; : : ee , ,;

based on trial error unless they can establish Moreover, the Sixth Circuit’s finding that the district court

that it resulted in "actual prejudice."

Brecht at 1722, emphasis added.

employed an outdated standard for evaluating Petitioner’s

instruction claim is eminently correct. As observed by the Sixth

In its decision the Sixth Circuit recognized that the trial

Circuit:

court’s instruction "captured the essence of how a jury might

The district court incorrectly relied upon the

properly infer an-aider™ atid abettor or conspirator’s purpose to test espoused in Francis v. Franklin, 471 U.S.

a7 307, 315-16 (1985), and Sandstrom, 442 U.S. at

kill as explained by the Ohio Supreme Court." Q’Neal at 146-147. 514, and followed by this court in Clark v.

- Jago, 676 F.2d 1099, 1102 (6th Cir. 1982),

As thus demonstrated, the Sixth Circuit’s placement of the burden cert. denied, 466 U.S. 977 (1984), that jury

instructions infringe a defendant’s due

of proving harmless error upon Petitioner was not determinative to process rights if a reasonable jury could have

interpreted the instruction as

its decision. Furthermore it is unnecessary for this Court to unconstitutionally shifting the burden of

proof. However, after reviewing its sometimes

inconsistent articulations of the test, the

Surpeme Court settled on a single standard of

review for jury instructions; "’whether there

* Respondent notes in passing that a rehearing in banc, rather is a reasonable likelihood that the jury has

than this Court, is the proper means by which to settle a conflict applied the challenged instruction in a way’

within a circuit.

13 14

that violates the Constitution." Estelle v.

McGuire, 112 S.Ct. 475, 482 & n.4 (1991)

(emphasis added) (quoting Boyde v. California,

494 U.S. 370, 380 (1990)).

Q’Neal at 145. As thus demonstrated, unlike the district court

which ignored this Court’s Estelle v. McGuire dictates, the Sixth

Circuit applied the correct standard of review for Petitioner’s

instruction claim. Petitioner’s assertion that the Sixth Circuit

retroactively applied the inappropriate standard of Lockhart v.

Fretwell is both factually and legally incorrect.

IV. THE SIXTH CIRCUIT’S DECISION IS EXPLICITLY

PREDICATED UPON A CAREFUL COLLECTIVE REVIEW OF

PETITIONER’S CONSTITUTIONAL ALLEGATIONS.

Petitioner’s final ground for certiorari contends that the

Sixth Circuit failed to review his constitutional allegations

collectively. Once again Petitioner appears to have misread the

.

Sixth Circuit’s decision which, in fact, considered and rejected

Petitioner’s assertion that the combined effect of trial "errors"

constituted a "structual defect". Indeed, as reflected by the

following, the Sixth Circuit explicitly held that Petitioner’s

constitutional allegations collectively asserted, at most,errors of

state law which would not be actionable in federal habeas corpus:

The district court also held that several

rulings of the trial court on the admission of

prejudicial evidence, together with the

prosecutor’s inflammatory closing remarks,

deprived petitioner of a fundamentally fair

trial. After a careful review of the record,

we conclude that these errors were not of

constitutional dimension, but were at most

errors in the application of state law. As

the decisions of both the Supreme Court and

this circuit make clear, "federal habeas

corpus relief does not lie for errors of state

15

law" because "it is not the province of a.

federal habeas court to reexamine state court

determines on state law questions." E.G.,

Estelle, 112 S.Ct. at 480; Walker v. Engle,

703 F.2d 959, 962 (6th Cir.), cert. denied,

464 U.S. 951 (1983). Under federal

constitutional wtandards, the trial court’s

evidentiary rulings and the prosecutor’s

comments were not so prejudicial, either

individually or in combination, that they

~ vrendered petitioner’s trial fundamentally

unfair.

Q’Neal at 145. As thus reflected, Petitioner’s habeas corpus

allegations were accorded the precise collective review to which

Petitioner feels they were entitled. Although Petitioner may be

disappointed at the appellate court’s rejection of these claims,

the Sixth Circuit’s opinion provides no support whatsoever for

Petitioner’s assertion that the consideration accorded his claims

was constitutionally deficient. Petitioner’s final ground for

certiorari is therefore unworthy of this Court’s attention.

16

CONCLUSION

For the foregoing reasons, Respondent submits that Petitioner

has failed to raise an issue deserving of review by this Court.

Therefore, the petition for writ of certiorari must be denied.

Respectfully submitted,

LEE FISHER

Attorney General

ge, —.

Nee 4 a J Na... —

IMOTHY J. MANGAN 25430)

(Counsel of Record

Assistant Attorney General

Chief, Criminal Justice Section

PF a Oe

>

STUART A. COLE (0040118)

Assistant Attorney General

State Office Tower, 26th Floor

30 East Broad Street

Columbus, Ohio 43215-3428

614/644-7233

ATTORNEYS FOR RESPONDENT

17

CASE NO. 93-7407

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

ROBERT O’ NEAL,

Petitioner,

v.

FRED McANINCH, WARDEN,

Respondent.

On Petition For Writ Of Certiorari To The

United States Court of Appeals

For The Sixth Circuit

CERTIFICATE OF SERVICE

I, Timothy J. Mangan, counsel of record for respondent, and a

member of the Bar of the Supreme Court of the United States, do

hereby certify that on the 20 day of February, 1994, I served

a copy of Respondent’s Brief In Opposition To Petition on each of

the parties to this action by mailing such copy in duly addressed

envelope, with first-class postage prepaid, to Thomas R. Wetterer,

Jr., Assistant State Public Defender, Ohio Public Defender

Commission, 8 East Long Street, 11th Floor, Columbus, Ohio 43215-

3428. it.

a

TIMOTHY 0. MANGAN

Assistant Attorney General

18

Attorney General

Lee Fisher

February 23, 1994

Clerk

Supreme Court of the United States

One First Street

Washington, D.C. 20543

Re: Q’Neal v. Morris

Case No. 93-7407

Dear Sir:

Enclosed please find the original and twelve c

Respondent’s Brief in Opposition to Petition which is to

with the Court in the above-captioned case.

Also enclosed is a cover page which we ask you to t:

and return in the envelope provided.

Your assistance in this matter is greatly appreciate

Sincerely,

LEE FISHER

Attorney General

; I ‘ “

STUART A. COLE

Assistant Attorney General

Criminal Justice Section

(614) 644-7233

SAC:dd

Enclosure

t~

.

State Office Tower / 30 East Broad Street / Columbus, Ohio 432 '

An Equal Opportunity Employer

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