The Advocate
Volume 22, No. 4, 
July 2000

6th Circuit Review

by Emily Holt, Assistant Public Advocate

Austin v. Mitchell
200 F.3d 391 (6th Cir. 2/25/00)

This case involves interpretation of 28 U.S.C. § 2244(d)(2), the provision of the Antiterrorism and Effective Death Penalty Act (AEDPA) that allows tolling of the federal habeas statute of limitations by pending state collateral review.

Austin was convicted in an Ohio state court of aggravated murder and received a life sentence. His indictment did not contain the phrase "against the peace and dignity of Ohio," language that must be in all criminal indictments pursuant to the Ohio Constitution. Although this issue was raised at trial, Austin’s appellate attorney failed to include the issue on direct appeal.

On December 1, 1994, Austin filed a petition for state post-conviction relief, the grounds being that failure to include the indictment issue on direct appeal constituted ineffective assistance of appellate counsel and that the indictment was invalid due to the omission of the necessary constitutional language. Summary judgment was granted to Ohio by the trial court. It is clear under Ohio case law that failure to include the language in question is not prejudicial. Further, the trial court held that it had no jurisdiction to consider ineffective assistance of appellate counsel. The Ohio Court of Appeals upheld the trial court’s grant of summary judgment and stated in dicta that the ineffective assistance of appellate counsel claim was raised in the wrong court and that, regardless, appellate counsel was not ineffective in failing to raise an issue constituting harmless error.

Under AEDPA, a state prisoner has one year from conclusion of the state appeal to file for federal habeas relief. 28 U.S.C. § 2244(d)(1). If the state appeal concluded prior to the passage of AEDPA, the Sixth Circuit has held that there is a one-year grace period, which expired on April 24, 1997, one year after passage of AEDPA. Nooks v. Collins, 173 F. 3d 856 (mem.) (6th Cir. 1/29/99) (unpublished opinion; Full Text available at: 1999 U.S. App. LEXIS 1557). Austin thus had until April 24, 1997, to file his federal habeas petition.

However, "the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this section." 28 U.S.C. § 2244(d)(2). Austin asserted that his petition, filed January 29, 1998, was timely because the statute of limitations was tolled. The district court disagreed.

The Sixth Circuit first analyzed whether a properly filed state post-conviction petition must raise a federal constitutional issue to toll the AEDPA statute of limitations. The Court determined that it must.

Appellate Ineffective Assistance of Counsel

Austin’s post-conviction petition contained a federal constitutional issue: ineffective assistance of appellate. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). The problem, the Court observed, was that this claim was filed in the wrong state court.

The Court determined that it was unnecessary to reach the issue of whether a petition filed in the wrong state court is properly filed for the purpose of tolling AEDPA but indicated in dicta that it would follow the Fourth Circuit and hold that such a habeas petition would have to be dismissed as being "time-barred on grounds that ‘properly filed’ implies notice to the respondent, proper place of filing, and timeliness." Holloway v. Corcoran, 980 F.Supp. 160, 161 (D.Md.1997), appeal dismissed by Holloway v. Corcoran, 162 F.3d 1155 (4th Cir. 1998)

Austin’s federal habeas petition did not contain ineffective assistance of appellate counsel as a ground. Thus, the final issue analyzed by the Sixth Circuit was whether the state post-conviction proceeding must address at least one of the federal habeas grounds to toll AEDPA’s statute of limitations. The Court adopted the rule that the state post-conviction review must address one or more of the federal habeas grounds to toll the one-year AEDPA statute of limitation. Thus, in Austin’s case, his state claim failed to toll the AEDPA statute of limitations, and his federal habeas petition was properly dismissed.

The question remains as to how a Kentucky defendant can properly preserve an ineffective assistance of appellate counsel claim for federal habeas review. In Hicks v. Commonwealth, 825 S.W.2d 280 (Ky.1992), the Kentucky Supreme Court held that it would not consider claims of ineffective assistance of appellate counsel. Where can a defendant raise this issue?

Boyle v. Million
201 F.3d 711 (6th Cir. 3/13/00)

Prosecutorial Misconduct Infected Integrity of Proceeding

This case represents a victory for defendants in the area of prosecutorial misconduct, although it must be noted that appellant is a wealthy physician and the inappropriate comments made by the prosecutor primarily addressed his wealth and social status. However, public defenders could apply the rationale used by the Court to argue for exclusion of comments about indigent defendants' lack of money and status in society.

Boyle, an ophthalmologist in Mayfield, Kentucky, was tried in Graves County, for first-degree assault stemming from an altercation with his office assistant, her husband, and their neighbor. Because of a conflict, the regular prosecuting attorney for Graves County was disqualified, and Thomas Osborne served in his stead. The circuit court judge also recused himself, and a jury from a neighboring county was brought in because of pretrial publicity. What followed at trial was a "mockery of constitutional principles and protections."

During cross-examination of Boyle, Osborne "launched into theatrics" and accused Boyle of lying, threw a deposition in his lap, and told him he needed a psychiatrist. During closing argument Osborne told the jurors that Boyle received special treatment because of his social status, and cited as evidence of this the fact that the prosecutor and judge recused themselves, and the jury came from another county.

Osborne then informed the jury that Boyle's attorneys were expensive. He said that "Medicare payments for surgeries that weren't needed" paid for the defense, and that the doctor who testified for the defense "told the biggest whopper in the world."

Osborne implied that the jurors could be the next victims of assault by Boyle because his victims were selected at "random" (an obvious misstatement of the facts of the case). He stated that Boyle "committed a murder: it's just that Bob [the victim] got saved in that emergency room."

Boyle was convicted of first-degree assault and sentenced to ten years. Boyle failed to prevail on the issue on direct appeal. Boyle v. Commonwealth, No. 93-SC-193-D (Ky., 10/22/93)(order denying discretionary review).

Kentucky Supreme Court Reversed by Federal Court

The Sixth Circuit applied analysis from United States v. Francis, 170 F.3d 546, 549-50 (6th Cir. 1999), to determine that the statements made by Osborne constituted prosecutorial misconduct: "badgering and interrupting a witness, name-calling, predicting that the defendant will lie on the stand, and stating before the jury that the defendant is in need of psychiatric help are tactics so deplorable as to define the term 'prosecutorial misconduct.' Furthermore, closing arguments that appeal to class prejudices, encourage juror identification with crime victims, or vouch for the defendant's guilt would each be deemed beyond ethical bounds."

United States v. Hall
200 F.3d 962 (6th Cir. 1/19/00)
Actual Conflict of Interest:
Representation of Co-Defendants

In this case, the Sixth Circuit examined a claim of ineffective assistance of counsel where an attorney represented two brothers in a jury trial. The Court held that despite the fact that both brothers waived their right to separate counsel, the trial court should have intervened to protect Stanley Hall’s sixth amendment rights when an actual conflict developed and prejudice was obvious.

Rex and Stanley Hall were convicted of conspiracy to possess with intent to distribute marijuana and cocaine and possession with intent to distribute marijuana and cocaine in federal district court. Rex and Stanley were caught driving a vehicle with marijuana in it. In a search of Rex's home, the police found marijuana and cocaine.

Before trial, the court, numerous times, informed the Halls of the dangers of dual representation. The day before trial, at the request of the U.S. Attorney's office, the court conducted a hearing on the matter. The attorney representing the Halls advised the court that if not allowed to represent both, he would continue with his representation of Rex, a long-time client. Stanley said he wished to remain with the attorney after being advised so by him. The Court endorsed Stanley's decision.

A jury convicted both men of the charges. Rex was sentenced to life imprisonment, and Stanley was sentenced to prison for 10 years and 3 months.

Conflict of interest cases involve a slight departure from normal Strickland analysis of ineffective assistance of counsel claims. There must be "specific instances in the record" suggesting conflict, and the defendant must demonstrate the attorney "made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to another." Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir.), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987)

Because the attorney failed to negotiate a plea agreement, the Sixth Circuit held that there was an actual conflict: "foregoing plea negotiations is proof of an actual conflict of interest." Plea agreements were signed, but were withdrawn at the last moment. Rex would have received life so it was clearly in his best interest to proceed to trial. Stanley would have received between three and four years imprisonment as he had no prior record. It was obviously in his best interest to enter a guilty plea.

The Court then considered whether the attorney's performance was "adversely affected by the conflict," Foltz, 818 F.2d at 480, and concluded that the jury's confusion (evidenced by a question from the jury involving the lack of evidence linking Stanley to the cocaine found in Rex’s home) and the general lack of evidence implicating Stanley "should have indicated to the court not only that an actual conflict existed, but also that the conflict had prejudiced Stanley Hall's defense." In such a case, the trial court had a duty to intervene and sever the case.

White v. Schotten
201 F.3d 743 (6th Cir. 1/26/00)
Defines Cause for Failure to Follow Procedural Rule

White’s federal habeas petition alleged ineffective assistance of appellate counsel. The district court dismissed the petition on the ground of state procedural default; the issue was not raised within the time limit set by Ohio App.R. 26(B) and the petitioner could not show cause and prejudice for the procedural default. The Sixth Circuit held that ineffective assistance of appellate counsel in filing an application to reopen a direct appeal (the method by which appellate ineffective assistance of counsel is raised in Ohio) constituted cause and remanded the petition to the district court to determine prejudice.

Ohio App.R. 26(B) provides that an application to reopen a direct appeal must be filed within 90 days "from journalization of the appellate judgment." White’s application was filed three years after the statute of limitations had tolled. The Ohio Court of Appeals refused to reopen the appeal, despite the fact that applicant’s current attorney, an Ohio public defender, attached an affidavit to the application stating that he received the case in time to file the application but failed to do so due to his office’s "overwhelming caseload" and his own "personal heavy caseload."

Overwhelming Public Defender Caseload
Can Equal Cause

The Sixth Circuit applied Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), analysis to determine if the federal habeas petition was procedurally defaulted in state court. The Court determined that White established cause for his failure to follow the Ohio procedural rule. White did not comply with the rule because of problems within the Ohio Public Defender’s office. "The failure of the Ohio Public Defender to offer such constitutionally-mandated counsel excuses the failure of the petitioner to abide by the timing requirements of applicable procedural rules." The Court concluded that the case must be remanded to federal district court for a determination of whether White can establish prejudice. If so, he would be entitled to federal habeas review of the merits of his claim.

U.S. v. Buchanan
207 F.3d 344 (6th Cir. 2/17/00)

Racial Makeup of Jury: Batson Challenge and "Fair Cross-Section" Requirement

Although this is a federal district court drug conspiracy case, it involves analysis of important constitutional jury issues and evidentiary issues.

Appellants first challenged the racial makeup of the jury and the jury selection process. The government used a peremptory challenge to strike the only African-American selected for the jury. Appellants argued that the challenge must be racially motivated since they are all African-American. The government’s alleged basis for challenge was the juror’s "general distrust of what she read or saw or heard." It derived this belief from her answer to a written question: "What newspapers, magazines, and kinds of books do you read? Grand Rapids press. . . I read mysteries, romances, and my Bible. I listen to CNN. I really don’t trust our newspaper." The district court overruled the Batson objection, finding the government’s basis for challenge to be "logical" and race-neutral.

The Sixth Circuit, acknowledging that the government’s justification was "not ‘particularly persuasive,’" held that this was "at least plausible and a sufficiently neutral justification to overcome the defendant’s Batson challenge." This ruling is a further weakening of Batson in that it allows an unbelievable justification for a jury strike to overcome a legitimate Batson claim.

The appellants also objected at trial to the racial makeup of the entire jury panel, asserting that it did not represent the population of the Western District of Michigan. The jury clerk testified about the assembling of venires, and the trial court overruled the objection.

The Sixth Circuit noted that the Sixth Amendment requires a "fair cross-section of the community." United States v. Allen, 160 F.3d 1096, 1103 (6th Cir. 1998), quoting Taylor v. Louisiana, 419 U.S. 522, 528, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The Court looked at the statistics presented by the jury clerk at trial: African-Americans comprise 4.58% of the population of the area that the jury was pulled from; only 2.49% of the residents who qualified for jury service were African-American; in this case, 2.86% of the venire were African-American. The Court thus concluded that the fair cross-section requirement was not violated.

"Drug-Sniffing Dogs"

Another issue raised on appeal was the admission of evidence regarding drug-sniffing dogs’ positive reaction to currency seized from two of the appellants. The Court declined to decide the issue of whether there is a presumption against the admission of such evidence. However, it did indicate that because such a high percentage of money is tainted with the scent or residue of drugs, FRE 403 would support a holding that the probative value of such evidence is outweighed by the danger of unfair prejudice.

In the concurrence, Judge Jones, joined by Judge Moore, expressed his opinion that the drug-sniffing dog evidence should have been excluded and that there should be a presumption against the admissibility of such evidence "unless the government offers other evidence showing a direct nexus between illegal narcotics, the currency in question, and the defendant. Further, when circumstances of the dog-sniff detection in any way cast doubt on the reliability of that evidence. . .we believe courts should find such evidence inadmissible."

The Court also concluded that it was not error for the government to use actual packages of powder cocaine and crack cocaine to aid in testimony since the jury was informed that the drugs exhibited were not actually seized from the defendants in the case.

U.S. v. Moody
206 F.3d 609 (6th Cir. 1/25/00)

No Right to Counsel During
Pre-Indictment Plea Negotiations

In Moody, the Sixth Circuit dealt a harsh blow to the sixth amendment right to counsel. The Court held that a defendant is not entitled to counsel during pre-indictment plea negotiations.

Moody was a participant in a conspiracy to deal cocaine. Evidence connecting Moody to the conspiracy, including cocaine, was found in a search of his home and business. Mr. Moody approached the FBI and volunteered to cooperate. Over a two-month period, Moody met with agents, without counsel, provided information about the conspiracy, and made numerous self-incriminating statements. In two of the six interviews, an Assistant U.S. Attorney was present.

Mr. Moody was offered a deal, before indictment, in which he would receive 5 years in prison in exchange for pleading guilty to conspiracy, continuing to cooperate, and testifying at trial. Moody expressed some concerns, and the FBI and U.S. Attorney suggested he speak to an attorney. He did, and the attorney, a month later, declined the offer. The attorney never inquired about the substance of the interviews.

Moody was subsequently indicted on conspiracy and other related charges. Several months later, his attorney advised him to enter into a plea agreement. He was sentenced to 120 months imprisonment, five years supervised release, and a special assessment of $50.

On appeal of the district court's determination that the 6th amendment right to counsel attached pre-indictment, the Sixth Circuit acknowledged that "logic, justice, and fundamental fairness favor the district court's position." However, the Court held that a bright-line test for the determination of when the right to counsel attaches was announced in Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972): only "at or after the initiation of judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment."

Sixth Circuit Regrets Having to Follow Kirby v. Illinois

The Sixth Circuit, in strong language, expressed disagreement with the prevailing rule. It acknowledged that the dangers that gave rise to the right to counsel--confrontation with the procedural system, the prosecutor, or both--were present in this case and that this was a "triumph of the letter over the spirit of the law." However, it held that in accordance with both Supreme Court and Sixth Circuit precedent [U.S. v. Sikora, 635 F.2d 1175 (6th Cir. 1980)], it was bound to hold that Moody was not entitled to counsel during pre-indictment plea negotiations and reversed the district court.

Judge Wiseman, in a concurring opinion, echoed the Court’s unhappiness with the result in this case. He noted that pre-indictment plea bargains have become increasingly important to defendants since the advent of the Federal Sentencing Guidelines. He argued that the sixth amendment right to counsel should evolve "to meet the challenges presented by a changing legal paradigm" and urged the Supreme Court to reconsider the Kirby bright-line test for attachment of the right to counsel.

U.S. v. Marks
209 F.3d 577 (6th Cir. 4/6/00)

Admissibility of Post-Plea Statements

In this case, the Sixth Circuit interpreted FRCP 11(e)(6), which deals with the inadmissibility of pleas, plea negotiations, and related statements, to not extend to statements made post-plea. This is important to Kentucky state court practitioners because under KRE 401(3) "any statement made in the course of formal plea proceedings, under either state procedure or Rule 11 of the Fed.R.Crim.P, regarding either of the foregoing pleas" is inadmissible.

On the morning of appellants’ first scheduled trial, all three men plead guilty and agreed to cooperate fully in the ongoing investigation. After they entered their plea agreements, a FBI Special Agent spoke to the defendants with defense counsel either present or informed of the interview. Sentencing was set for a future date. Several months later they moved pro se to withdraw their pleas. At the hearing, the government told the defendants that it would use their incriminating post-plea statements against them at trial. The court allowed all defendants to withdraw their pleas. At trial, the statements made post-plea were admitted.

The Sixth Circuit held that since the statements were made to FBI agents post-plea that FRCP 11(e)(6) did not apply. The Court pointed out that Congress expressly amended Rule 11(e)(6) in 1979 to provide that only statements made to prosecutors would be excluded. Furthermore, statements made after the finalization of a plea agreement could not be "made in the course of plea discussions." U.S. v. Watkins, 85 F.3d 498, 500 (10th Cir. 1996)

U.S. v. Webber
208 F.3d 545 (6th Cir. 3/31/00)

No Sua Sponte Inquiry Required
on Waiver of Right to Testify

In this case, the Sixth Circuit declined to hold that waiver of the right to testify must be put on the record by the trial court and instead adopted the majority rule that no sua sponte inquiry is required when a defendant fails to testify.

Webber was tried on several drug offenses. Before the close of the prosecution’s case, his attorney advised the court that they planned to raise an entrapment defense and that Webber would testify. The trial court then informed the defendant that if he testified and perjured himself, the court would enhance his sentence.

At the close of the prosecution's case, Webber's attorney advised the trial court that they had decided not to present an entrapment defense and that Webber would not testify.

On direct appeal to the Sixth Circuit, Webber argued that his right to testify was waived by his attorney, not him, and that the judge "chilled" his right to testify.

In holding that the trial court had no duty to sua sponte inquire of the defendant whether he was waiving his right to testify, the Court noted that such a requirement "might impede on an appropriate defense strategy, might lead the defendant to believe that defense counsel has been insufficient, or might inappropriately influence the defendant to waive the Fifth Amendment right not to testify."

Judge's Perjury Warning to Defendant Not Chilling

As to whether the trial court's discussion with the defendant regarding sentence enhancement for perjury was an unconstitutional "chilling" of his right to testify, the Court quickly dismissed this claim by noting that the "trial court's instruction here was neither excessive nor so egregious that Defendant's ability to knowingly and intentionally waive his right to testify was impaired." Further, the defendant and his attorney had a lunch break to discuss the matter and defendant never notified the court that he wanted to testify. "There is not a scintilla of evidence of judicial intimidation, threat, or overbearance in the record."

Riggs v. U.S.
209 F. 3d 828
(6th Cir. 4/11/00)

Defense Counsel's Employment as
Assistant U.S. Attorney Not Actual Conflict

Riggs alleged that he received ineffective assistance of appellate counsel because his attorney (Cox) was an Assistant United States Attorney (AUSA) at the time of Riggs' investigation and indictment; the grand jury transcript cover lists Cox as making an appearance on the U.S.'s behalf during Riggs' testimony; Cox represented a prosecution witness's ex-wife; and Cox shared office space with two other attorneys who represented co-defendants-turned-prosecution-witnesses.

The Sixth Circuit held that because Riggs could not demonstrate an actual conflict of interest that affected Cox’s performance at trial, Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir.), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987), his conviction must stand. In dicta, the Court distinguished this case from the situation where the trial court is informed of a potential conflict of interest and fails to make an inquiry. In such a case, prejudice is presumed and reversal is required.

Further, even if there was an actual conflict, appellant must show a causal connection between any omission on the part of counsel and the conflict.

The Court dismissed the suggestion that mere fact of prior employment as an AUSA automatically constitutes an actual conflict.

Assistant Public Advocate
Appellate Branch
100 Fair Oaks Lane, Ste.302
Frankfort, Kentucky 40601
Tel: (502) 564-8006;
Fax: (502) 564-7890

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