Petitioner Terrell is incarcerated in a state prison in Ohio. After applying for state-law postconviction relief, he petitioned for a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982 ed.).
Terrell's habeas petition includes an ineffective-assistance-of-counsel claim. The Ohio courts held in postconviction proceedings that Terrell had defaulted this claim by failing to raise it when represented by new counsel on direct appeal. In so doing, the Ohio courts relied upon State v. Cole, 2 Ohio St. 3d 112, 113-114, 443 N.E.2d 169, 171 (1982). The Cole rule postdated Terrell's appeal, which was decided on December 30, 1981. Before Cole, Ohio had permitted ineffective-assistance claims in collateral challenges even if a petitioner had not raised those claims when represented by new counsel on direct appeal. See State v. Hester, 45 Ohio St.2d 71, 71-72, 74-75, 341 N.E.2d 304, 305, 307 (1976) (permitting a postconviction ineffective-assistance claim to go forward despite a failure to raise the issue on direct appeal); see also Cole, supra, 2 Ohio St.3d, at 113-114, 443 N.E.2d, at 171 (expressly modifying Hester ).
Terrell thus could not have known that he would default his ineffective-assistance claim by his new counsel's failure to raise it on direct appeal. Terrell argued to the Federal District Court that the State could not invoke its procedural default rule retroactively. The District Judge agreed and proceeded to the merits of Terrell's ineffective-assistance claim.
The Sixth Circuit disposed of Terrell's pro se appeal in a per curiam, unpublished opinion. Terrell v. Marshall, 872 F.2d 1029 (1989) (judgment order). The Court of Appeals held that "the District Court properly determined that Terrell's" ineffective-assistance claim, as well as several other claims, "were not reviewable" because of Terrell's "failure to raise these claims in state court proceedings." App. to Pet. for Cert. A-2. The District Court had, however, made no such determination: the District Court reached the merits of the ineffective-assistance claim because the only applicable procedural default rule postdated Terrell's conviction. The Court of Appeals neither noted nor addressed the retroactivity issue. #fn-s [1]
The Sixth Circuit, by its unpublished opinion, affirmed a decision that the District Court never made, and so never reviewed that court's actual decision. Review of the procedural bar and retroactivity issues should be undertaken based on a correct formulation of the ruling in the District Court. Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted. The judgment of the Court of Appeals is vacated, and the case is remanded to that Court for further proceedings consistent with this opinion.
It is so ordered.
Chief Justice REHNQUIST, with whom Justice WHITE, Justice O'CONNOR, and Justice SCALIA join, dissenting.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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