Parker v. Bagley (CA6)

Parker v. Bagley, No. 06-4355 — Ohio’s rule on the timeliness of applications to reopen an appeal was firmly established and regularly followed in noncapital cases as of June of 2001, and so the district court properly denied the § 2254 petition as procedurally defaulted.

The petitioner had been convicted on child molestation charges and sentenced to 30-50 years in prison.  While his direct appeal was pending, he filed a petition for post-conviction relief, which was denied.  The direct appeals process for both the conviction and post-conviction relief petition ended in February 2001.  In June 2001, he filed an application to reopen his direct appeal, claiming ineffective assistance of appellate counsel.  The Ohio Court of Appeals denied the application, ruling he had not shown “good cause” for doing so more than 90 days after the direct appeal was final.  The federal district court denied the IAC of appellate counsel claim as procedurally defaulted.

The Sixth Circuit ruled that, in noncapital cases, Ohio’s “good cause” rule was independent of federal law and adequate to support the procedural default because it was firmly established and regularly followed in 2001, when the state courts actually imposed the bar.  Prior Sixth Circuit cases, including Scuba v. Brigano, 527 F.3d 479 (6th Cir. 2007), had settled the issue, although those cases had been decided after the district court issued its decision in this case.  Because the petitioner’s argument against procedural default was foreclosed by prior precedent, the court affirmed.

Payne v. Allen (CA11)

Payne v. Allen, No. 06-15674 (CA11, capital case) — Payne had been convicted of three counts of capital murder, one for each of three discrete theories charged under Alabama law.  Protracted trial, direct appeal, state post-conviction, and federal habeas proceedings ensued.  The Eleventh Circuit certified three claims for appeal.

The court first ruled that Alabama’s rule requiring claims of IAC at trial to be brought on direct appeal, established in Ex parte Jackson, 598 So. 2d 895 (Ala. 1992), was firmly established and regularly followed so as to be adequate to support procedural default.  The Eleventh CIrcuit identified seven published opinions in which the Alabama Court of Criminal Appeals followed the Jackson rule between 1992 and 1996, when the Alabama Supreme Court overruled it.  Payne’s direct appeal took place in 1994, during the Jackson regime.  Accordingly, the district court correctly ruled that the claim was procedurally defaulted.  Even so, the court examined the merits of the claim under the guise of the cause-and-prejudice inquiry.  However, the Eleventh Circuit concluded that the Alabama courts’ rejection of his IAC of appellate counsel claim — which accused direct appeal counsel of failing to raise the trial-level IAC claim — was not unreasonable.

CA10 — memorandum decision

Payne v. Miller, No. 08-7008 — The court denied a COA to appeal the denial of a 2254 petition brought by an Oklahoma state prisoner.  The district court had ruled that three of the claims were procedurally defaulted because the petitioner had failed to raise them on direct appeal.  The Tenth Circuit denied the COA in light of its rule that this procedural bar in Oklahoma law was independent and adequate to support procedural default.  Furthermore, arguing the merits of the claims is insufficient to demonstrate cause and prejudice to excuse the procedural default.