Filed: Aug. 17, 2009
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Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0569n.06 No. 07-3828 FILED Aug 17, 2009 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT CHAD BEACH, ) ) Petitioner-Appellant, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ERNIE L. MOORE, ) NORTHERN DISTRICT OF OHIO ) Respondent-Appellee. ) ) ) Before: CLAY and GIBBONS, Circuit Judges; GREER, District Judge.* JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Chad Beach appeals the denial
Summary: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 09a0569n.06 No. 07-3828 FILED Aug 17, 2009 UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk FOR THE SIXTH CIRCUIT CHAD BEACH, ) ) Petitioner-Appellant, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ERNIE L. MOORE, ) NORTHERN DISTRICT OF OHIO ) Respondent-Appellee. ) ) ) Before: CLAY and GIBBONS, Circuit Judges; GREER, District Judge.* JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Chad Beach appeals the denial ..
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0569n.06
No. 07-3828
FILED
Aug 17, 2009
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
CHAD BEACH, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ERNIE L. MOORE, ) NORTHERN DISTRICT OF OHIO
)
Respondent-Appellee. )
)
)
Before: CLAY and GIBBONS, Circuit Judges; GREER, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Chad Beach appeals the
denial of his petition for a writ of habeas corpus. An Ohio jury convicted Beach of aggravated
murder, and he received a sentence of life imprisonment with eligibility for parole after twenty years.
The Court of Appeals of Ohio affirmed his conviction, and the Supreme Court of Ohio denied leave
to appeal. Beach then filed this petition pursuant to 28 U.S.C. § 2254 arguing, inter alia, that certain
statements he made to police officers were involuntary and admitted against him in violation of due
process. The United States District Court for the Northern District of Ohio found that Beach’s
involuntariness claim was procedurally defaulted and dismissed the petition. For the reasons that
follow, we affirm the judgment of the district court.
*
The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
Beach v. Moore
No. 07-3828
I.
The Court of Appeals of Ohio made the following factual findings, which we must presume
to be correct:1
On September 13, 2001, [Beach] was indicted and charged with one count of
aggravated murder, in violation of R.C. 2903.01(B), with the specification that he
had a firearm . . . . The indictment was filed following the death of Joshua Buck,
whose body was discovered in a manhole in a wooded area behind Bowsher High
School in Toledo, Ohio on December 26, 1999. Over approximately the next month,
[Beach] spoke to police officers investigating the case four times, each time making
statements that increasingly showed his involvement in the events surrounding the
murder. On January 18 and 24, 2000, [Beach] made statements to Sergeant Steve
Forrester and Detective James Scott with his attorney Paul Accettola present.
[Beach] was not under arrest and made the statements voluntarily. Thereafter,
believing that [Beach] had not been entirely forthcoming in his statement to the
officers, Accettola arranged the January 24 interview but asked Lucas County
Assistant Prosecutor Weglian for assurances that [Beach] could have a deal. Weglian
indicated that if [Beach] was truthful and passed a polygraph exam, then he would
be in a position to recommend that [Beach] could plead guilty to a theft offense. That
polygraph exam, which was administered on January 25, 2000, resulted in an
“inconclusive with probable deception” reading. Thereafter, the state indicated that
the most it would be willing to offer [Beach] in terms of a plea bargain was
involuntary manslaughter.
On December 17, 2001, [Beach] filed a motion to enforce plea agreement and a
motion to determine the admissibility of statements pursuant to Evid.R. 410.
Regarding the alleged plea agreement, [Beach] sought to enforce an agreement to
allow him to plead guilty to a theft offense. The lower court held a hearing and
denied the motions, concluding that neither of the interviews of January 18 or 24
were induced by a plea agreement. Thereafter, the case proceeded to trial.
* * *
No where in either of these statements [made on January 18 and 24, 2000] is there
any indication that [Beach] was induced to make them with the promise of a plea
1
See Franklin v. Bradshaw, 545 F.3d 409, 413 n.3 (6th Cir. 2008). The presumption of
correctness may be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2
Beach v. Moore
No. 07-3828
bargain. To the contrary, all indications are that [Beach] made the statements of his
own free will. Moreover, Attorney Accettola testified at the motion hearing that no
plea negotiations induced the January 18 or 24 statements and that no specific plea
negotiations had been undertaken until January 25, 2000. Rather, Accettola testified
that “Everything I did was in the furtherance of putting Mr. Beach in a posture that
would render him a proper subject for a plea negotiation.” In light of the facts
surrounding the January 18 and 24 statements, we cannot say that [Beach] had a
subjective expectation that a plea was being negotiated. As such, the trial court did
not abuse its discretion in allowing the statements to be used as evidence in the trial
below.
State v. Beach, 2004-Ohio-5232, at ¶¶ 20-21, 43 (Ct. App.). A jury found Beach guilty of the
aggravated murder charge, and the trial court sentenced him to a term of life imprisonment with
eligibility for parole after twenty years. Beach appealed, raising nine assignments of error including:
THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. BEACH BY
DENYING HIS MOTION TO EXCLUDE STATEMENTS OF THE DEFENDANT
MADE IN THE COURSE OF NEGOTIATING A PLEA AGREEMENTS [sic] IN
VIOLATION OF EVID.R. 410 AND IN VIOLATION OF HIS DUE PROCESS
RIGHTS GUARANTEED UNDER THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
The Court of Appeals of Ohio rejected the above-cited assignment of error, finding that Beach did
not have a subjective expectation that a plea was being negotiated under the circumstances. State
v. Beach, 2004-Ohio-5232, at ¶ 43 (Ct. App.). The court also rejected the eight other assignments
of error and affirmed Beach’s conviction. Beach then filed a notice of appeal in the Supreme Court
of Ohio arguing three propositions of law including:
Statements made by a criminal defendant to law enforcement officers at the direction
of the defendant’s criminal defense attorney and in consultation with a prosecutor in
the context of plea negotiations are privileged under Evid.R. 410.
The Supreme Court of Ohio summarily denied leave to appeal. State v. Beach, 823 N.E.2d 456
(Ohio 2005) (table).
3
Beach v. Moore
No. 07-3828
Beach then filed this habeas corpus petition in the United States District Court for the
Northern District of Ohio, again raising three claims. Relevant to this appeal is his first claim:
THE PETITIONER’S STATEMENTS TO POLICE WERE INVOLUNTARILY
MADE, AND AS SUCH, THEIR ADMISSION DURING TRIAL VIOLATED DUE
PROCESS[.]
The matter was referred to United States Magistrate Judge George J. Limbert, who issued a Report
and Recommendation concluding that the petition should be dismissed with prejudice. The district
court entered an order adopting the Report and Recommendation in its entirety, dismissing the
petition with prejudice, and denying a certificate of appealability. A motions panel of this court,
however, issued a certificate of appealability on the questions of (I) “whether Beach procedurally
defaulted his claim that his statements to police officers were involuntarily made” and (II) “whether
such claim states a valid claim of the denial of a constitutional right [i.e., due process].”
II.
Procedural default is a question of law, which we review de novo. Burroughs v. Makowski,
411 F.3d 665, 667 (6th Cir. 2005) (per curiam).
A federal court may not entertain a petition for a writ of habeas corpus unless the petitioner
has first exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A); see also Ex parte Royall,
117 U.S. 241, 252-53 (1886). In order to exhaust his claims, the petitioner “must ‘fairly present’
his claim in each appropriate state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin v.
Reese,
541 U.S. 27, 29 (2004) (quoting Duncan v. Henry,
513 U.S. 364, 365 (1995) (per curiam)).
If a claim is not fairly presented, and the time to present the claim to the state court has run, then the
4
Beach v. Moore
No. 07-3828
claim is deemed procedurally defaulted. Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004). We
may not review a procedurally defaulted claim unless the petitioner can show cause and actual
prejudice or federal court review is necessary “to correct ‘a fundamental miscarriage of justice,’” as
when the petitioner is actually innocent. Coleman v. Thompson,
501 U.S. 722, 748 (1991) (quoting
Engle v. Isaac,
456 U.S. 107, 135 (1982)).
A.
In order to preserve his involuntariness claim, Beach must have fairly presented it both to the
Supreme Court of Ohio and to the Court of Appeals of Ohio. See Baldwin, 541 U.S. at 29. Put
differently, if Beach failed to fairly present his claim to either state court, it is unexhausted. We
therefore begin by examining his presentation to the Supreme Court of Ohio. If Beach failed to fairly
present his claim to that court, our inquiry ends.
A claim is “fairly presented” where the petitioner “asserted both the factual and legal basis
for his claim to the state courts.” McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (citation
omitted). There are four ways a petitioner can “fairly present” his claim to the state courts:
(1) reliance upon federal cases employing constitutional analysis;
(2) reliance upon state cases employing federal constitutional analysis;
(3) phrasing the claim in terms of constitutional law or in terms sufficiently
particular to allege a denial of a specific constitutional right; or
(4) alleging facts well within the mainstream of constitutional law.
Whiting v. Burt, 395 F.3d 602, 613 (6th Cir. 2005) (paragraph breaks inserted).2
2
Contrary to the dissent, there is no indication that Baldwin supplanted the four-factor test.
See Dye v. Hofbauer, 546 U.S. 1, 3-4 (2005) (per curiam) (post-Baldwin case finding that petitioner
fairly presented his federal claim where he cited to four federal cases employing federal
constitutional analysis, identified the federal constitutional provisions upon which he relied, and
5
Beach v. Moore
No. 07-3828
Beach relied upon four cases–three federal and one state–in support of his claim that the
statements he made to the police should have been excluded. Each of the cases focuses on the
interpretation of Federal Rule of Evidence 410 (or its Ohio counterpart), which governs the
admissibility of statements made during plea negotiations. See United States v. Robertson, 582 F.2d
1356, 1365-69 (5th Cir. 1978) (adopting two-tiered test to determine admissibility under Fed. R.
Evid. 410); United States v. Swidan,
689 F. Supp. 726, 727-29 (E.D. Mich. 1988) (applying
Robertson); United States v. Gentry,
525 F. Supp. 17, 19-21 (M.D. Tenn. 1980) (same); State v.
Frazier,
652 N.E.2d 1000, 1010-1013 (Ohio 1995) (applying Robertson to Ohio Evid. R. 410).
Nothing in the text of the rule refers to any constitutional right.3 See Fed. R. Evid. 410; Ohio Evid.
R. 410. Nor do the cases interpreting it employ any federal constitutional analysis. Consequently,
these citations do not support Beach’s argument that he fairly presented his federal constitutional
claim to the Supreme Court of Ohio.
made specific factual allegations of prosecutorial misconduct); see also Scuba v. Brigano,
527 F.3d
479, 485-86 (6th Cir. 2007) (post-Baldwin case applying four-factor test); Gonzales v. Wolfe, 290
F. App’x 799, 810 (6th Cir. 2008) (Clay, J.) (unpublished) (same).
3
Federal Rule of Evidence 410 provides in relevant part:
Except as otherwise provided in this rule, evidence of the following is not, in any
civil or criminal proceeding, admissible against the defendant who made the plea or
was a participant in the plea discussions: . . .
(4) any statement made in the course of plea discussions with an attorney for the
prosecuting authority which do not result in a plea of guilty or which result in a plea
of guilty later withdrawn.
The version of the rule adopted in Ohio is substantially the same. See Ohio Evid. R. 410.
6
Beach v. Moore
No. 07-3828
As to the third factor, Beach’s Table of Contents identified the following proposition of law
for review:
Statements made by a criminal defendant to law enforcement officers at the direction
of the defendant’s criminal defense attorney and in consultation with a prosecutor in
the context of plea negotiations are privileged under Evid.R. 410.
While this proposition is factually specific, it is neither phrased in terms of federal constitutional law,
nor does it bring to mind a specific constitutional right. The Argument section of the brief
elaborated on the above-quoted proposition of law as follows:
It is urged that this Court accept jurisdiction on this issue and find that statements
made by a criminal defendant to law enforcement officers in the context of plea
negotiations and at the direction of his counsel are inadmissible under Evid.R. 410
and the due process clause of the United States Constitution and the Amendments
Five, Six and Fourteen of the same constitution, as well as the applicable provision
of the Ohio Constitution.
Thus, the Argument section of Beach’s brief does allege a denial of a specific constitutional right,
i.e., due process. However, the quoted sentence is the sole reference to federal constitutional law.
“While a petitioner need not cite chapter and verse of constitutional law, general allegations of the
denial of rights to a fair trial and due process do not fairly present claims that specific constitutional
rights were violated.” Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006) (internal quotation
marks and citation omitted). The references in Beach’s brief are precisely the type of “general
allegations” that we have found do not “fairly present” the substance of a federal claim to a state
court. See
id. (finding claim of “denial of due process and a fair trial” in violation of “14th and 6th
Amendments” without citation to federal constitutional cases insufficient for fair presentation); see
also Katt v. Lafler, 271 F. App’x 479, 481 (6th Cir. 2008) (unpublished) (finding claim that
7
Beach v. Moore
No. 07-3828
admission of hearsay “violated the rules of evidence [and] denied [the petitioner’s] constitutional
rights to due process and a fair trial. US Const, Ams V, VI, XIV” not sufficient for fair
presentation); Smith v. Tate, 7 F.3d 235,
1993 WL 339724, at *2 (6th Cir. 1993) (per curiam)
(unpublished) (finding claim that admission of certain evidence violated Ohio Rules of Evidence and
right to a “fair trial” and “due process” insufficient for fair presentation).
The fourth factor is whether Beach has “alleg[ed] facts well within the mainstream of
constitutional law.” Whiting, 395 F.3d at 613. It is well settled that a statement is involuntary, and
its admission violates due process, where “the police engaged in objectively coercive activity, the
coercive activity was sufficiently severe to overcome the defendant’s will and the defendant’s
statements stemmed from the coercion.” See United States v. Craft,
495 F.3d 259, 263 (6th Cir.
2007). The element of police coercion is essential to any involuntariness claim. See Colorado v.
Connelly,
479 U.S. 157, 169-71 (1986). Beach argued in the state court that his statements were
inadmissible because he acted at the direction of his lawyer and with the belief that his lawyer was
negotiating a plea for him. What is missing, however, is any allegation of coercion by the police.
Without any such allegations, it cannot be said that Beach alleged facts well within the mainstream
of federal due process jurisprudence.
None of the four factors support Beach’s argument that he fairly presented a federal due
process claim to the Supreme Court of Ohio. Consequently, we find that he did not sufficiently alert
that court to the federal nature of his claim. See McMeans, 228 F.3d at 682. Analysis of his
presentation to the Court of Appeals of Ohio is thus unnecessary to conclude that Beach never “fairly
presented” his involuntariness claim to the Ohio courts on direct appeal. Moreover, Beach cannot
8
Beach v. Moore
No. 07-3828
now remedy this failure by raising his involuntariness claim in state post-conviction proceedings
because Ohio law does not allow prisoners to raise for the first time on collateral review a claim that
could have been brought on direct appeal. See State v. Szefcyk, 671 N.E.2d 233, 235 (Ohio 1996).
In sum, no state court remedies are available to Beach at this time, and procedural default bars
federal review of his involuntariness claim. See Williams v. Anderson,
460 F.3d 789, 806 (6th Cir.
2006).
B.
Beach argues in the alternative that his procedural default should be excused because of
ineffective assistance of appellate counsel in failing to preserve the involuntariness claim.4
Ineffective assistance can establish cause for failure to raise a claim on direct appeal. See Murray
v. Carrier, 477 U.S. 478, 492 (1986). The Warden responds that Beach’s ineffective assistance
claim is itself procedurally defaulted. See Edwards v. Carpenter,
529 U.S. 446, 450-51 (2000).
Here, Beach never raised an ineffective assistance claim in any form in the state courts;
therefore, he could not have “fairly presented” it. Because the time for Beach to present the claim
to the Ohio courts has run, his ineffective assistance claim is procedurally defaulted. See Ohio App.
R. 26(B) (motion to reopen based on ineffective assistance of appellate counsel must be filed within
90 days of appellate judgment); Parker v. Bagley, 543 F.3d 859, 862 (6th Cir. 2008). Although
4
Beach also argues that federal court review is necessary to correct “manifest injustice”
because, in Beach’s view, there was no just reason for him to give statements to the police absent
a plea agreement. However, this is not the kind of injustice of which Coleman speaks. Fundamental
miscarriage of justice refers to the conviction of an actually innocent person. See Schlup v. Delo,
513 U.S. 298, 316 (1995). Because Beach has not presented any new evidence of innocence, his
claim remains barred unless he can show cause and prejudice.
9
Beach v. Moore
No. 07-3828
Beach could overcome the procedural default of his ineffective assistance claim by showing cause
and prejudice, see Edwards, 529 U.S. at 453, he has not shown–or even argued–either prong.
Therefore, Beach’s ineffective assistance claim is itself procedurally defaulted and cannot excuse
the procedural default of his involuntariness claim.
III.
Even were we to reach the merits, we would find that Beach’s federal constitutional claim
is so “plainly meritless [that] it would be a waste of time and judicial resources” to hold an
evidentiary hearing. See Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999).
We review the denial of a petition for a writ of habeas corpus de novo. Burton v. Renico,
391 F.3d 764, 770 (6th Cir. 2004). Beach filed this petition pursuant to 28 U.S.C. § 2254 after the
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214. Therefore, AEDPA’s now-familiar standards apply to this case. See
Woodford v. Garceau,
538 U.S. 202, 210 (2003). Ordinarily, AEDPA limits our review of the Ohio
courts’ resolution of Beach’s claims. Where, however, a state court has not passed on the merits of
the claim, there is no state court decision to which AEDPA deference would attach. Hawkins v.
Coyle,
547 F.3d 540, 546 (6th Cir. 2008). In that case, we review the claim de novo. Morales v.
Mitchell,
507 F.3d 916, 929 (6th Cir. 2007). Nonetheless, a presumption of correctness attaches to
any factual findings made by the state court. Matthews v. Ishee,
486 F.3d 883, 891-92 (6th Cir.
2007).
Here, the Court of Appeals of Ohio made the following findings with respect to the
admissibility of the January 18 and 24, 2000 statements:
10
Beach v. Moore
No. 07-3828
[Beach] contends [that the January 18 and 24, 2000 statements] were made in the
course of negotiating a plea agreement and, therefore, were inadmissible pursuant to
Evid.R. 410. . . . No where in either of these statements is there any indication that
[Beach] was induced to make them with the promise of a plea bargain, to the
contrary, all indications are that [Beach] made the statements of his own free will.
. . . In light of the facts surrounding the January 18 and 24 statements, we cannot say
that [Beach] had a subjective expectation that a plea was being negotiated. As such,
the trial court did not abuse its discretion in allowing the statements to be used as
evidence in the trial below.
Beach, 2004-Ohio-5232, at ¶¶ 37, 43 (emphasis added). Thus, the state court found that Beach’s
statements were voluntary within the meaning of the Ohio Rules of Evidence, but it did not reach
the due process question. Arguably, the state court’s finding of voluntariness could be a legal
conclusion entitled to AEDPA deference in relation to a due process claim. Even applying de novo
review, however, Beach’s involuntariness claim fails, as demonstrated below.
Beach argues that his statements were involuntary under the Due Process Clause of the Fifth
Amendment to the United States Constitution. Whether a statement is involuntary depends upon the
totality of the circumstances. See United States v. Fowler, 535 F.3d 408, 416 (6th Cir. 2008). A
statement is involuntary if “(i) the police activity was objectively coercive; (ii) the coercion in
question was sufficient to overbear the defendant’s will; and (iii) the alleged police misconduct was
the crucial motivating factor in the defendant’s decision to offer the statement.” United States v.
Rutherford,
555 F.3d 190, 195 (6th Cir. 2009) (quoting United States v. Mahan,
190 F.3d 416, 422
(6th Cir. 1999)). In certain circumstances, illusory “promises of leniency[] coupled with threats of
immediate imprisonment” may be so coercive as to violate due process. See Williams v. Withrow,
944 F.2d 284, 290 (6th Cir. 1991), rev’d in part on other grounds,
507 U.S. 680 (1993). However,
not all offers of leniency are coercive. See
Craft, 495 F.3d at 263-64.
11
Beach v. Moore
No. 07-3828
Here, Beach contends that his statements were coerced because the police “informed [Beach]
that in exchange for his testimony, he would be offered a plea to a theft offense.” However, several
factual findings made by the Court of Appeals of Ohio foreclose this argument. We, of course, must
presume those factual findings to be correct. See 28 U.S.C. § 2254(e)(1). First, the court found that
Beach “made the statements of his own free will.” This finding directly contradicts any claim that
Beach’s will was overborne. See Rutherford, 555 F.3d at 198. Second, the court credited the
testimony of Beach’s attorney, Paul Accettola, that plea negotiations did not begin until January 25,
2000, the day after the second of the two challenged statements was made. If Beach gave the
statements before he received the alleged promise of leniency, then he could not have relied upon
the promise in making the statements. It follows that the promise was not the motivating factor in
Beach’s decision to make the statements. See
Craft, 495 F.3d at 263-64. Finally, the court
determined that Beach did not have a subjective expectation that a plea was being negotiated.
Because Beach lacked the subjective belief that plea negotiations were in progress, plea negotiations
could not have induced him to make the statements. Again, the lack of a causal connection between
the alleged promise of leniency and Beach’s decision to make the statements is fatal to Beach’s claim
that the promise was coercive. See
id.
Even if the offer had been extended before Beach made the statements, that circumstance
alone would fall far short of the rare case in which we have found coercion based upon a promise
of leniency. See
Williams, 944 F.2d at 289-90; see also United States v. Johnson,
351 F.3d 254, 261-
62 (6th Cir. 2003) (noting that “almost all of these claims [brought pursuant to Williams] have been
rejected” and collecting cases). In Williams, two police officers went to the defendant’s house,
12
Beach v. Moore
No. 07-3828
searched his person, took him to the police station in their vehicle, and repeatedly threatened him
with immediate arrest if he did not speak. See 944 F.2d at 289. These facts stand in stark contrast
to the instant case. Beach, unlike the defendant in Williams, was not in custody at the time he made
the statements. To the contrary, the January 24 interview took place at his attorney’s office and at
his attorney’s suggestion. Accettola was present both for that interview and for the January 18
meeting. Moreover, Beach has not argued that he faced any threat of immediate arrest if he did not
speak. Under the totality of the circumstances, any offer of leniency simply was not coercive.
IV.
For the foregoing reasons, we find that Beach’s involuntariness claim was procedurally
defaulted. We therefore affirm the judgment of the district court.
13
Beach v. Moore
No. 07-3828
CLAY, Circuit Judge, dissenting. Established Supreme Court precedent clearly provides
that citing the federal source of law underlying a federal claim or labeling a claim as “federal” is
sufficient to fairly present a federal constitutional claim to a state court for purposes of exhaustion
in the context of federal habeas review. Because Beach indicated the federal nature of his claim in
his submissions to the Ohio courts, he fairly presented his claim that the admission of his statements
to police violated his due process rights. On the merits of his claim, unresolved factual issues remain
as to whether police falsely promised Beach a plea to a theft offense in exchange for the statements
at issue. As a result, I would remand the case to the district court to conduct an evidentiary hearing
on Beach’s due process claim. Because I disagree with the majority’s conclusion that the district
court’s judgment should be affirmed, I respectfully dissent.
The majority finds that Beach failed to fairly present his claim that his statements to police
officers were involuntary. However, it is clear from Beach’s brief to the Ohio Court of Appeals and
his petition for review to the Ohio Supreme Court that Beach presented the claim that the trial court’s
decision to admit the statements he made to police on January 18, 2000 and January 24, 2000
violated his due process rights. On direct appeal, Beach argued:
The trial court erred to the prejudice of Mr. Beach by denying his motion to exclude
statements of the defendant made in the course of negotiating a plea agreements [sic]
in violation of [Rule 410 of the Ohio Rules of Evidence] and in violation of his due
process rights guaranteed under the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution.
14
Beach v. Moore
No. 07-3828
(J.A. 85.) Beach further contended that because the trial court erred in admitting the statements, a
new trial was necessary “to protect [his] due process rights as guaranteed under the fifth, sixth, and
fourteenth amendments to the United States constitution [sic] and the corresponding portions of the
Ohio constitution.” (J.A. 103.) Similarly, in petitioning for discretionary review in the Ohio
Supreme Court, Beach argued that the statements he made to police were “inadmissible” under “the
due process clause of the United States Constitution and the Amendments [sic] Five, Six, and
Fourteen of the same constitution.” (J.A. 201.)
These arguments fairly presented to the Ohio courts Beach’s claim that the trial court violated
his due process rights by admitting into evidence statements allegedly obtained by police coercion
based on false promises of leniency. The Supreme Court has stated that “[a] litigant wishing to raise
a federal issue can easily indicate the federal law basis for his claim . . . by citing in conjunction with
the claim the federal source of law on which he relies . . . or by simply labeling the claim ‘federal.’”
Baldwin v. Reese, 541 U.S. 27, 32 (2004). Thus, a petitioner need only label his claim as “federal”
or cite “the federal source of law” in connection with his claim.
Baldwin, 541 U.S. at 32; see Stuart
v. Wilson,
442 F.3d 506, 514 (6th Cir. 2006) (finding that the petitioner fairly presented his claim
because the “[p]etitioner stated that his claim as to the admission of the hearsay statements was
based in part on the United States Constitution”); Daniels v. Lafler, 192 F. App’x 408, 418 (6th Cir.
2006) (concluding that the petitioner “definitively placed a federal label on both his impeachment
and hearsay claims” by arguing that the trial court’s error “was not merely evidentiary” but also
15
Beach v. Moore
No. 07-3828
“negatively impacted on defendant’s constitutional right to a fair trial”).1 In his state court briefs,
Beach argued that the admission of the statements to police was contrary to the federal due process
clause, invoking the federal source of law of his involuntariness claim. Beach also cited the specific
federal constitutional amendments relevant to his due process claim, further identifying his claim
regarding the trial court’s admission of his statements as a federal one.
Moreover, as required by this Court’s decision in Newton v. Million, 349 F.3d 873 (6th Cir.
2003), Beach properly set forth the factual and legal basis for his federal habeas claim. See
id. at
877. First, regarding the factual basis of his claim, Beach stated that the trial court erroneously
admitted the statements that he made to police officers during the interviews of January 18, 2000 and
January 24, 2000. Beach also identified the allegedly false and coercive promise—a plea to a fourth-
degree felony theft offense. With respect to identifying the legal basis of his claim, Beach argued
that the trial court’s decision to admit his statements violated his federal due process rights.
1
The majority attempts to undermine the impact of Baldwin by arguing that Baldwin did not
“supplant[] the four-factor test” applied in this Circuit in assessing whether a petitioner fairly
presented his claim to the state courts. (Majority Op. at 5 n.2.) While several cases decided after
Baldwin have listed these four factors as considerations relevant to the fair-presentation inquiry, the
actions listed are only relevant or “significant” to—not determinative of—the ultimate inquiry of
whether a petitioner asserted the factual and legal basis of his claim. See Whiting v. Burt, 395 F.3d
602, 613 (6th Cir. 2005). Further, to the extent the majority suggests that the four-factor test controls
to the exclusion of the Supreme Court’s instruction in Baldwin that a petitioner may cite “the federal
source of law on which he relies,” we are bound by Baldwin. See Johnson v. City of Cinncinnati,
310 F.3d 484, 501 (6th Cir. 2002). Moreover, contrary to the majority’s implication, Dye v.
Hofbauer,
546 U.S. 1 (2005) (per curiam), does not set forth a four-factor test that courts must apply.
Instead, in reversing the determination below that the petitioner had failed to fairly present his claim,
the Supreme Court noted that the case was not one where the petitioner failed to “apprise the state
court” that the claim was “based, at least in part, on a federal right.”
Id. at 4. To support its holding,
the Supreme Court noted the petitioner’s citation of federal case law and constitutional
provisions—it did not impose a rigid four-factor test.
Id.
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No. 07-3828
Additionally, even though Beach was not required to cite the specific constitutional provision under
which his claim arose, see
id., Beach asserted that the admission of his statements violated the Fifth
and Fourteenth Amendments of the United States Constitution.
Because Beach set forth both the factual and legal basis for his federal habeas claim in the
state courts, and clearly labeled his claim as “federal,” see Baldwin, 541 U.S. at 32, he has fairly
presented his claim for purposes of federal habeas review. I would therefore conclude that the
district court erred in finding that Beach’s involuntariness claim is procedurally defaulted.2
I also disagree with the majority’s conclusion that requiring an evidentiary hearing on the
merits of Beach’s claim that his statements were coerced by false promises of leniency would be a
“waste of time and judicial resources.” (Majority Op. at 10.) Beach argues that his “will was
overborne by promises from investigating agents” that he could plead to a theft offense in exchange
for his statements on January 18, 2000 and January 24, 2000. Specifically, Beach asserts that
“Accettola and Weigian [sic] had conversations in which Accettola offered a statement from [Beach]
. . . in exchange for a plea to a theft offense. [Beach] agreed to this arrangement, and subsequently
met with detectives on a couple of occasions, providing them with information.” (J.A. 15). Beach
alleges that, in his meetings with officers on “January 19 [sic] and January 24, . . . . [Beach] was
informed that in exchange for his testimony, he would be offered a plea to a theft offense,” and “[i]t
was solely on this basis that [Beach] made a statement.” (Pet’r Br. 20.)
2
Because Beach fairly presented his involuntariness claim to the state courts, it is unnecessary
to address, as the majority does, Beach’s argument that the ineffective assistance of appellate counsel
excuses the procedural default of his involuntariness claim.
17
Beach v. Moore
No. 07-3828
“[P]romises of leniency may be coercive if they are broken or illusory.” United States v.
Johnson, 351 F.3d 254, 262 (6th Cir. 2003). “[W]hen promises of leniency . . . have a coercive
effect on a suspect, we are obliged to inquire whether the coercion in question was sufficient to
overbear the will of the accused.”
Id. at 261 (quoting Williams v. Withrow,
944 F.2d 284, 289 (6th
Cir. 1991)). Here, it is unclear from the record whether police offered Beach a plea to a theft offense
in exchange for his statements on January 18, 2000 and January 24, 2000. Although there is
evidence that police did not promise Beach a plea to a theft offense until January 25, 2000, the day
after Beach made the statements that he claims were coerced with a promise that he could plead to
a fourth-degree felony theft-offense, there is also evidence to the contrary. For example, a portion
of Accettola’s testimony during the state evidentiary hearing suggests that Beach was aware of the
possibility of a polygraph test, a condition of the alleged plea agreement, prior to making the
statements at issue. Specifically, Accettola testified that, during the interview with police on January
18, 2000, he encouraged Beach to be more forthcoming with police. In response, Beach “assur[ed]
[him that] he will [tell the truth] when he takes the polygraph.” (J.A. 292.)
Based on these unresolved factual issues regarding whether police offered Beach a plea to
a theft offense in exchange for his statements on January 18, 2000 and January 24, 2000, the record
is insufficient for this Court to determine whether Beach’s statements were involuntary based on
police coercion in making false promises of leniency. Accordingly, I would remand this case to the
district court, with instructions to conduct an evidentiary hearing so that a more fully developed
record can be made which would allow this Court to conduct meaningful appellate review of the
18
Beach v. Moore
No. 07-3828
merits of Beach’s habeas petition. I therefore respectfully dissent from the majority’s decision to
affirm the judgment of the district court dismissing Beach’s habeas petition.
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