Clarence D. Roberts v. HAROLD E. CARTER, Warden

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0240P (6th Cir.)
File Name: 03a0240p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CLARENCE D. ROBERTS,
Petitioner-Appellant,
v.
HAROLD E. CARTER, Warden,
Respondent-Appellee.
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No. 01-3851
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 00-00409—George C. Smith, District Judge.
Argued: May 8, 2003
Decided and Filed: July 23, 2003
Before: KENNEDY, SILER, and GILMAN, Circuit
Judges.
_________________
COUNSEL
ARGUED: James R. Foley, PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellant. Norman E. Plate,
O F F IC E OF THE ATTORN E Y G E N E R A L,
CORRECTIONS LITIGATION SECTION, Columbus, Ohio,
for Appellee. ON BRIEF: David H. Bodiker, Tina M.
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Falasca, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio,
for Appellant. Stuart W. Harris, KEGLER, BROWN, HILL
& RITTER, Columbus, Ohio, for Appellee.
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OPINION
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KENNEDY, Circuit Judge. Clarence Roberts was
convicted of aggravated robbery and murder in the Court of
Common Pleas for Guernsey County, Ohio. After
unsuccessfully appealing his case in the Ohio state courts,
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.
This Court granted Roberts a certificate of appealability with
respect to the following claims: (1) whether Roberts was
deprived of a fair trial, a trial by jury, and due process when
the trial court ordered that alternate jurors be present during
deliberations; and (2) whether Roberts was deprived of the
effective assistance of appellate counsel when his appellate
counsel failed to raise as error the trial court’s order that
alternate jurors be present during deliberations. We
AFFIRM the district court’s denial of Roberts’ petition for
the following reasons.
I.
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
of Criminal Procedure 24(F) stated that “[a]n alternate juror
who does not replace a regular juror shall be discharged after
the jury retires to consider its verdict.” Over the objection of
defense counsel, the state trial court ordered the two alternate
jurors to join the twelve regular jurors in the jury room so that
they would know what happened during deliberations, in case
an alternate needed to be substituted for a regular juror. The

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

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No. 01-3851 Roberts v. Carter 5
applied clearly established law erroneously or incorrectly.
Rather, that application must also be unreasonable.” Id. at
411.
A.
As his first ground for relief, Roberts claims that by
permitting the alternate jurors to be present during jury
deliberations, the trial court deprived him of his rights to a
fair trial, a trial by jury, and due process. The State argues
that Roberts defaulted this claim when he failed to raise it on
direct appeal to the Ohio state courts. Roberts counters that
the issue was raised and addressed on the merits by the Ohio
Court of Appeals in its consideration of his application to
reopen his direct appeal. Roberts’ Application to Reopen
under Ohio Appellate Rule 26(B), however, was limited to
the claim that “Appellate counsel renders constitutionally
ineffective assistance of counsel on the appeal as of right
where such counsel fails to recognize, assign, argue and
properly brief the clear violation of [Ohio Rule of Criminal
Procedure] 24(F), permitting alternate jurors to be present
during jury deliberations, over Defendant’s objection.”
Roberts’ Rule 26(B) application presented an intertwined
claim of a constitutional violation (ineffective assistance of
appellate counsel) and a state procedural rule violation
(alternate jurors presence in jury deliberations). Roberts’ first
ground for habeas relief presents two intertwined
constitutional claims (ineffective assistance of appellate
counsel and deprivation of fair trial, jury trial and due process
rights). Because Roberts never raised the due process
component of his first claim for habeas relief to the Ohio
courts, this claim is procedurally defaulted and may not be
considered on federal habeas review. Teague v. Lane, 489
U.S. 288, 297-98 (1989) (holding that a procedural default
6 Roberts v. Carter No. 01-3851
1As we explain in Part B , the Ohio C ourt of Appeals 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.
occurs when petitioner fails to present an issue to a state
appellate court when provided the opportunity to do so).1
Roberts’ Final Reply Brief contends that this claim is not
barred because he can show cause and actual prejudice
sufficient for this Court to reach the merits of the claim. This
Court may consider a procedurally defaulted claim if Roberts
can demonstrate cause for his procedural default and
prejudice resulting from the constitutional error asserted by
the claim. Wainright v. Sikes, 433 U.S. 72, 86-87 (1977).
Roberts, however, fails to advance any argument in support
of a finding of cause and prejudice. As such, we consider
Roberts’ cause and actual prejudice argument abandoned. See
United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000)
(court of appeals will not consider merits of error assignment
when defendant fails to advance any arguments in support of
claimed error).
B.
As his second ground for relief, Roberts claims that he was
deprived the effective assistance of appellate counsel when
his appellate counsel failed to raise as error the trial court’s
order that the alternate jurors be present during jury
deliberations. To show a violation of the Sixth Amendment
right to counsel, clearly established Supreme Court precedent
requires a defendant to demonstrate (1) that his or her
attorney “made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment,” and (2) “that the attorney’s deficient
performance was so prejudicial that it deprive[d] the
defendant of a fair trial, a trial whose result is reliable.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). To
demonstrate that counsel’s performance was deficient, a

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

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No. 01-3851 Roberts v. Carter 9
2The Gross court subsequently held that a violation of Rule 24(F)
over objection creates a presumption of prejudice to the defendant that
may be rebutted by the state. 776 N.E.2d at 1098.
As the Ohio Supreme Court has observed recently, the
propriety of alternate jurors being present during jury
deliberations “was a subject of much misunderstanding” after
the court’s decision in State v. Hutton, 559 N.E.2d 432
(1990). State v. Gross, 776 N.E.2d 1061, 1109 (2002). In
1999, when the state appeals court denied Roberts’ Rule
26(B) application, a state appeals court had previously held
that the presence of alternate jurors during guilt phase
deliberations of a capital case did not violate Rule 24(F)
because Hutton made the rule inapplicable to capital cases.
State v. Voorhies, No. 94-CA-8, 1995 WL 495820 (Ohio App.
5 Dist. June 14, 1995). Because the Voorhies court had
determined that Rule 24(F) was not applicable to cases such
as Roberts, the appeals court that considered Roberts’ Rule
26(B) application could not have found that there was a
reasonable probability that, on direct appeal, a Rule 24(F)
violation over objection would have been found to constitute
reversible error.2
Roberts argues that Olano dictates that the Ohio courts find
that a violation of Rule 24(F) over objection places the burden
of proving the absence of prejudice on the government. The
Olano Court addressed the question of whether “the presence
of alternate jurors during jury deliberations was ‘plain error’
that a court of appeals could correct under Federal Rule of
Criminal Procedure 52(b).” 507 U.S. 725, 737 (1993). At the
time, Federal Rule of Criminal Procedure 24(c) required that
“[a]n alternate juror who does not replace a regular juror shall
be discharged after the jury retires to consider its verdict.”
The Court held that because “[t]he presence of alternate jurors
during jury deliberations is not the kind of error that ‘affect[s]
substantial rights independent of its prejudicial impact,” id. at
737, and Olano had not objected to the alternates presence in
the jury deliberations, he bore the burden of persuasion with
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respect to prejudice under Rule 52(b), id. at 734. The Court
declined to presume prejudice based on the alternates’ mere
presence because (1) alternate jurors were indistinguishable
from the regular jurors, and (2) the district court instructed the
alternates to not participate in jury deliberations and the law
assumes that jurors will follow their instructions. Id. at 740.
The Court made clear that its analysis did not reach a case in
which Rule 24(c) was violated over objection. Id. at 741
(“Whether the Government could have met its burden of
showing the absence of prejudice, under Rule 52(a), if
respondents had not forfeited their claim of error, is not at
issue here.”).
What Roberts’ argument overlooks is that Olano clearly
held that the mere presence of alternate jurors in jury
deliberations does not affect a defendant’s substantial rights.
Thus, Olano does not require the Ohio courts to find that a
violation of its similarly worded procedural rule deprives a
defendant of his or her constitutional rights. In fact, because
the Ohio Court of Appeals did not reach the merits of
Roberts’ claim regarding the alleged violation of Rule 24(F),
the court had no occasion to consider whether Olano should
or should not guide its interpretation of its rule. Further, the
fact that Olano suggests that the government has the burden
of proving the absence of prejudice when a defendant
preserves a Federal Rule 24(c) error does not shift the burden
of proving prejudice (or the absence thereof) when a
defendant claims a violation of his or her Sixth Amendment
right to counsel based on the violation of a state procedural
rule.
III.
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
district court’s denial of his petition for a writ of habeas
corpus.

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