        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2     Roberts v. Carter                            No. 01-3851
   ELECTRONIC CITATION: 2003 FED App. 0240P (6th Cir.)
                File Name: 03a0240p.06                    Falasca, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio,
                                                          for Appellant. Stuart W. Harris, KEGLER, BROWN, HILL
                                                          & RITTER, Columbus, Ohio, for Appellee.
UNITED STATES COURT OF APPEALS
                                                                              _________________
              FOR THE SIXTH CIRCUIT
                _________________                                                 OPINION
                                                                              _________________

 CLARENCE D. ROBERTS,             X                          KENNEDY, Circuit Judge. Clarence Roberts was
                                                          convicted of aggravated robbery and murder in the Court of
          Petitioner-Appellant, -
                                   -                      Common Pleas for Guernsey County, Ohio.                    After
                                   -  No. 01-3851         unsuccessfully appealing his case in the Ohio state courts,
           v.                      -                      Roberts filed a petition for a writ of habeas corpus under 28
                                    >                     U.S.C. § 2254 in the United States District Court for the
                                   ,                      Southern District of Ohio. The district court denied the writ.
 HAROLD E. CARTER , Warden, -
         Respondent-Appellee. -                           This Court granted Roberts a certificate of appealability with
                                                          respect to the following claims: (1) whether Roberts was
                                  N                       deprived of a fair trial, a trial by jury, and due process when
      Appeal from the United States District Court        the trial court ordered that alternate jurors be present during
     for the Southern District of Ohio at Columbus.       deliberations; and (2) whether Roberts was deprived of the
    No. 00-00409—George C. Smith, District Judge.         effective assistance of appellate counsel when his appellate
                                                          counsel failed to raise as error the trial court’s order that
                 Argued: May 8, 2003                      alternate jurors be present during deliberations. We
                                                          AFFIRM the district court’s denial of Roberts’ petition for
           Decided and Filed: July 23, 2003               the following reasons.

   Before: KENNEDY, SILER, and GILMAN, Circuit                                           I.
                    Judges.
                                                            Clarence Roberts was charged with one count of aggravated
                 _________________                        robbery and one count of aggravated murder with a death
                                                          penalty specification. At the time of Roberts’ trial, Ohio Rule
                      COUNSEL                             of Criminal Procedure 24(F) stated that “[a]n alternate juror
                                                          who does not replace a regular juror shall be discharged after
ARGUED: James R. Foley, PUBLIC DEFENDER’S                 the jury retires to consider its verdict.” Over the objection of
OFFICE, Columbus, Ohio, for Appellant. Norman E. Plate,   defense counsel, the state trial court ordered the two alternate
O F F IC E O F T H E A T T O RN E Y G E N E R A L,        jurors to join the twelve regular jurors in the jury room so that
CORRECTIONS LITIGATION SECTION, Columbus, Ohio,           they would know what happened during deliberations, in case
for Appellee. ON BRIEF: David H. Bodiker, Tina M.         an alternate needed to be substituted for a regular juror. The

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No. 01-3851                            Roberts v. Carter       3    4      Roberts v. Carter                          No. 01-3851

alternate jurors, who were present during both the guilt and        United States Code sets forth the standard for granting a writ
penalty phase deliberations, were instructed to not participate     of habeas corpus:
in the deliberations. Neither alternate juror was ever called to
substitute for a regular juror.                                         An application for a writ of habeas corpus on behalf of a
                                                                        person in custody pursuant to the judgment of a State
  The jury convicted Roberts of aggravated robbery and                  court shall not be granted with respect to any claim that
murder. It did not return a death verdict. Roberts was                  was adjudicated on the merits in State court proceedings
sentenced to ten years on the robbery charge and life                   unless the adjudication of the claim–
imprisonment on the murder charge, with the sentences to be             (1) resulted in a decision that was contrary to, or
served consecutively. On direct appeal, the Ohio Court of               involved an unreasonable application of, clearly
Appeals affirmed the convictions, and the Ohio Supreme                  established Federal law, as determined by the Supreme
Court denied review. Roberts’ appellate attorney did not                Court of the United States; or
assign as error the trial court’s order that the alternate jurors       (2) resulted in a decision that was based on an
be present during jury deliberation.                                    unreasonable determination of the facts in light of the
                                                                        evidence presented in the State court proceeding.
  Roberts applied to reopen his direct appeal under Ohio Rule
of Appellate Procedure 26(B), claiming that “Appellate              Thus, to be entitled to relief under § 2254(d), this Court must
counsel renders constitutionally ineffective assistance of          find that the decision of the Ohio courts was either contrary
counsel on the appeal as of right where such counsel fails to       to, or an unreasonable application of, the Supreme Court’s
recognize, assign, argue and properly brief the clear violation     clearly established precedents, or was based on an
of [Ohio Criminal Procedure Rule] 24(F), permitting alternate       unreasonable determination of the facts. Price v. Vincent, 123
jurors to be present during jury deliberations, over                S.Ct. 1848, 1852-53 (2003).
Defendant’s objection.” The state appeals court denied the
motion, and the Ohio Supreme Court denied review.                     Because the parties do not contest the facts established in
                                                                    this case, Roberts’ claims must be analyzed under
  Roberts then filed a petition for a writ of habeas corpus in      § 2254(d)(1). A state court decision is contrary to clearly
the United States District Court for the Southern District of       established federal law “if the state court arrives at a
Ohio, claiming five grounds for relief. The district court          conclusion opposite that reached by [the Supreme] Court on
denied the petition, as well as Roberts’ request for a              a question of law or if the state court decides a case
certificate of appealability. Roberts filed a notice of appeal      differently than [the Supreme Court] has on a set of materially
and a motion for a certificate of appealability, which this         indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,
Court granted.                                                      412-13 (2000). A state court decision is an unreasonable
                                                                    application of clearly established federal law “if the state
                               II.                                  court identifies the correct governing legal principle from [the
                                                                    Supreme] Court’s decisions but unreasonably applies the
  This Court reviews de novo the disposition of a petition for      principle to the facts of the prisoner’s case.” Id. at 413. The
a writ of habeas corpus. Carpenter v. Mohr, 163 F.3d 938,           Supreme Court has cautioned that a “federal habeas court may
942-43 (6th Cir. 1998). Section 2254(d) of title 28 of the          not issue the writ simply because that court concludes in its
                                                                    independent judgment that the relevant state-court decision
No. 01-3851                            Roberts v. Carter       5    6       Roberts v. Carter                                   No. 01-3851

applied clearly established law erroneously or incorrectly.         occurs when petitioner fails to present an issue to a state
Rather, that application must also be unreasonable.” Id. at         appellate court when provided the opportunity to do so).1
411.
                                                                      Roberts’ Final Reply Brief contends that this claim is not
                               A.                                   barred because he can show cause and actual prejudice
                                                                    sufficient for this Court to reach the merits of the claim. This
   As his first ground for relief, Roberts claims that by           Court may consider a procedurally defaulted claim if Roberts
permitting the alternate jurors to be present during jury           can demonstrate cause for his procedural default and
deliberations, the trial court deprived him of his rights to a      prejudice resulting from the constitutional error asserted by
fair trial, a trial by jury, and due process. The State argues      the claim. Wainright v. Sikes, 433 U.S. 72, 86-87 (1977).
that Roberts defaulted this claim when he failed to raise it on     Roberts, however, fails to advance any argument in support
direct appeal to the Ohio state courts. Roberts counters that       of a finding of cause and prejudice. As such, we consider
the issue was raised and addressed on the merits by the Ohio        Roberts’ cause and actual prejudice argument abandoned. See
Court of Appeals in its consideration of his application to         United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000)
reopen his direct appeal. Roberts’ Application to Reopen            (court of appeals will not consider merits of error assignment
under Ohio Appellate Rule 26(B), however, was limited to            when defendant fails to advance any arguments in support of
the claim that “Appellate counsel renders constitutionally          claimed error).
ineffective assistance of counsel on the appeal as of right
where such counsel fails to recognize, assign, argue and                                                 B.
properly brief the clear violation of [Ohio Rule of Criminal
Procedure] 24(F), permitting alternate jurors to be present            As his second ground for relief, Roberts claims that he was
during jury deliberations, over Defendant’s objection.”             deprived the effective assistance of appellate counsel when
Roberts’ Rule 26(B) application presented an intertwined            his appellate counsel failed to raise as error the trial court’s
claim of a constitutional violation (ineffective assistance of      order that the alternate jurors be present during jury
appellate counsel) and a state procedural rule violation            deliberations. To show a violation of the Sixth Amendment
(alternate jurors presence in jury deliberations). Roberts’ first   right to counsel, clearly established Supreme Court precedent
ground for habeas relief presents two intertwined                   requires a defendant to demonstrate (1) that his or her
constitutional claims (ineffective assistance of appellate          attorney “made errors so serious that counsel was not
counsel and deprivation of fair trial, jury trial and due process   functioning as the ‘counsel’ guaranteed the defendant by the
rights). Because Roberts never raised the due process               Sixth Amendment,” and (2) “that the attorney’s deficient
component of his first claim for habeas relief to the Ohio          performance was so prejudicial that it deprive[d] the
courts, this claim is procedurally defaulted and may not be         defendant of a fair trial, a trial whose result is reliable.”
considered on federal habeas review. Teague v. Lane, 489            Strickland v. Washington, 466 U.S. 668, 687 (1984). To
U.S. 288, 297-98 (1989) (holding that a procedural default          demonstrate that counsel’s performance was deficient, a

                                                                        1
                                                                           As we explain in Part B , the Ohio C ourt of Ap peals did no t address
                                                                    the merits of Roberts’ claim regarding the presence of the alternate jurors
                                                                    in its consideration of his Rule 26(B) application. Thus, we also cannot
                                                                    say that the Ohio courts reached the merits of this claim.
No. 01-3851                            Roberts v. Carter      7    8     Roberts v. Carter                            No. 01-3851

defendant “must show that counsel’s representation fell below      circumstances. Roberts argued that the court should presume
an objective standard of reasonableness.” Id. at 688. To           prejudice to the defendant because the alternate jurors may
establish that counsel’s deficient performance was prejudicial,    have participated in deliberations through body language and
a defendant “must show that there is a reasonably probability      the alternate jurors presence may have had a chilling effect on
that, but for counsel’s unprofessional errors, the result of the   the regular jurors’ deliberations, citing United States v.
proceeding would have been different.” Id. at 694. Because         Olano, 507 U.S. 725 (1993), for support. Roberts, however,
the question of whether a defendant is deprived of effective       did not address the merits of his ineffective assistance of
counsel is a mixed question of law and fact, the “unreasonable     appellate counsel claim.
application” prong of § 2254(d)(1) controls our analysis.
French v. Jones, 2003 WL 21348339 (6th Cir. June 11,                  The Ohio Court of Appeals denied Roberts’ Rule 26(B)
2003). We, therefore, next consider whether the Ohio courts        application. The court affirmed that a claim of ineffective
unreasonably applied the Strickland test to Roberts’               assistance of appellate counsel is analyzed under the two-part
ineffective appellate counsel claim.                               Strickland test. In holding that Roberts’ failed to demonstrate
                                                                   that he was deprived constitutionally effective appellate
  Ohio Appellate Rule 26(B) permits a criminal defendant to        counsel, the court stated that “Appellant’s argument he was
apply to reopen the direct appeal based on a claim of              prejudiced by the presence of the alternate jurors during
ineffective assistance of appellate counsel. The application       deliberations is based purely upon speculation and is
consists of one or more assignments of error that were not         unsupported by the record. We find that the state of the
previously considered due to appellate counsel’s allegedly         present record does not support appellant’s assertion.” In
deficient representation. Ohio App. R. 26(B)(1)(c). When           light of the requirements of Rule 26(B), the court’s holding
considering an application to reopen, the state appeals court      must be read as pertaining to the merits of Roberts’
conducts a two-part inquiry. First, the court determines           ineffective assistance of appellate counsel claim, not his state
whether the applicant was deprived of the effective assistance     procedural rule claim.
of appellate counsel. Ohio App. R. 26(B)(5). If the defendant
makes a colorable ineffective assistance of appellate counsel        The state appeals court’s analysis of Roberts’ ineffective
claim, the court then considers the assigned error(s) as if        assistance of appellate counsel claim is not objectively
raised on an initial appeal. Ohio App. R. 26(B)(7).                unreasonable. Under the prejudice prong of the Strickland
                                                                   test, Roberts had the burden of proving that there is a
   Roberts’ Rule 26(B) application contended that “Appellate       reasonably probability that, but for his appellate counsel’s
counsel renders constitutionally ineffective assistance of         error in not raising the Rule 24(F) violation, his direct appeal
counsel on the appeal as of right where such counsel fails to      would have provided him with relief from his conviction.
recognize, assign, argue and properly brief the clear violation    Roberts did not argue, let alone prove, that the result of his
of [Ohio Rule of Criminal Procedure] 24(F), permitting             direct appeal would likely have been different if his original
alternate jurors to be present during jury deliberations, over     appellate counsel had raised the state trial court’s violation of
Defendant’s objection.” Because the Ohio courts had not            Rule 24(F). Rather, he argued that the state appeals court
addressed the issue of a Rule 24(F) violation in a case where      should adopt a rule that presumes prejudice when a Rule
defense counsel had timely objected, Roberts’ application          24(F) violation occurs over objection by defense counsel.
urged the state appeals court to find that a violation of Rule
24(F) constitutes prejudice as a matter of law under such
No. 01-3851                                Roberts v. Carter         9    10    Roberts v. Carter                             No. 01-3851

  As the Ohio Supreme Court has observed recently, the                    respect to prejudice under Rule 52(b), id. at 734. The Court
propriety of alternate jurors being present during jury                   declined to presume prejudice based on the alternates’ mere
deliberations “was a subject of much misunderstanding” after              presence because (1) alternate jurors were indistinguishable
the court’s decision in State v. Hutton, 559 N.E.2d 432                   from the regular jurors, and (2) the district court instructed the
(1990). State v. Gross, 776 N.E.2d 1061, 1109 (2002). In                  alternates to not participate in jury deliberations and the law
1999, when the state appeals court denied Roberts’ Rule                   assumes that jurors will follow their instructions. Id. at 740.
26(B) application, a state appeals court had previously held              The Court made clear that its analysis did not reach a case in
that the presence of alternate jurors during guilt phase                  which Rule 24(c) was violated over objection. Id. at 741
deliberations of a capital case did not violate Rule 24(F)                (“Whether the Government could have met its burden of
because Hutton made the rule inapplicable to capital cases.               showing the absence of prejudice, under Rule 52(a), if
State v. Voorhies, No. 94-CA-8, 1995 WL 495820 (Ohio App.                 respondents had not forfeited their claim of error, is not at
5 Dist. June 14, 1995). Because the Voorhies court had                    issue here.”).
determined that Rule 24(F) was not applicable to cases such
as Roberts, the appeals court that considered Roberts’ Rule                  What Roberts’ argument overlooks is that Olano clearly
26(B) application could not have found that there was a                   held that the mere presence of alternate jurors in jury
reasonable probability that, on direct appeal, a Rule 24(F)               deliberations does not affect a defendant’s substantial rights.
violation over objection would have been found to constitute              Thus, Olano does not require the Ohio courts to find that a
reversible error.2                                                        violation of its similarly worded procedural rule deprives a
                                                                          defendant of his or her constitutional rights. In fact, because
  Roberts argues that Olano dictates that the Ohio courts find            the Ohio Court of Appeals did not reach the merits of
that a violation of Rule 24(F) over objection places the burden           Roberts’ claim regarding the alleged violation of Rule 24(F),
of proving the absence of prejudice on the government. The                the court had no occasion to consider whether Olano should
Olano Court addressed the question of whether “the presence               or should not guide its interpretation of its rule. Further, the
of alternate jurors during jury deliberations was ‘plain error’           fact that Olano suggests that the government has the burden
that a court of appeals could correct under Federal Rule of               of proving the absence of prejudice when a defendant
Criminal Procedure 52(b).” 507 U.S. 725, 737 (1993). At the               preserves a Federal Rule 24(c) error does not shift the burden
time, Federal Rule of Criminal Procedure 24(c) required that              of proving prejudice (or the absence thereof) when a
“[a]n alternate juror who does not replace a regular juror shall          defendant claims a violation of his or her Sixth Amendment
be discharged after the jury retires to consider its verdict.”            right to counsel based on the violation of a state procedural
The Court held that because “[t]he presence of alternate jurors           rule.
during jury deliberations is not the kind of error that ‘affect[s]
substantial rights independent of its prejudicial impact,” id. at                                       III.
737, and Olano had not objected to the alternates presence in
the jury deliberations, he bore the burden of persuasion with               In sum, because the Ohio Court of Appeals did not
                                                                          unreasonably apply the Strickland test to Roberts’ ineffective
                                                                          assistance of appellate counsel claim, we AFFIRM the
    2
                                                                          district court’s denial of his petition for a writ of habeas
     The Gross court subsequently held that a violation of Rule 24(F)     corpus.
over objection creates a presumption of prejudice to the defendant that
may be rebutted by the state. 776 N.E.2d at 1098.
