                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.

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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



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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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