When petitioner Terrell sought postconviction relief in the Ohio
courts, they held that he had defaulted his ineffective assistance
of counsel claim by failing to raise it on direct appeal, as
required by State v. Cole,
2 Ohio St.3d 112. Before
Ohio had permitted such claims in collateral
challenges even if they had not been presented on direct appeal.
Terrell then petitioned for a federal writ of habeas corpus,
arguing that the Cole
rule postdated his appeal and that
he could not have known that he would default his claim if he
failed to raise it on direct appeal. The District Court agreed,
finding that Ohio could not invoke its procedural default rule
retroactively, but proceeded to deny Terrell's claim on the merits.
The Court of Appeals affirmed on the ground that the District Court
properly determined that the ineffective assistance claim was not
reviewable because of Terrell's failure to raise it in the state
The Court of Appeals affirmed a decision that the
District Court never made, and so never reviewed that court's
actual decision. The District Court reached the merits of Terrell's
claim after it determined that the only applicable default rule
postdated his conviction. However, the Court of Appeals neither
noted nor addressed the retroactivity issue. Review of the
procedural bar and retroactivity issues should be undertaken based
on a correct formulation of the District Court's ruling.
Certiorari granted; 872 F.2d 1029 vacated and remanded.
Page 493 U. S. 2
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. § 2264
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
postdated Terrell's appeal, which was decided December 30, 1981.
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 post-conviction
ineffective assistance claim to go forward despite a failure to
raise the issue on direct appeal); see also Cole, supra,
at 113-114, 443 N.E.2d, at 171 (expressly modifying
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
in a per curiam,
unpublished opinion. Terrell v.
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. A to Pet. for
Cert. 2. The District Court had, however, made no
Page 493 U. S. 3
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. *
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
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.
* The author of the Court of Appeals' unpublished opinion may
have relied on the Magistrate's conclusion that petitioner's
ineffective assistance of counsel claim was barred by procedural
App. C to Pet. for Cert. 4. The Magistrate,
however, had neither noted nor addressed the retroactivity issue
that the District Court resolved in petitioner's favor. Because the
question whether the Ohio Supreme Court's decision in State v.
2 Ohio St.3d 112, 443 N.E.2d 169 (1982), should be given
retroactive effect may govern the disposition of a significant
number of ineffective assistance of counsel claims, the question
clearly merits the attention of the Court of Appeals. Moreover,
since the answer to the question requires a familiarity with Ohio
law, it should not be addressed in this Court before we have the
benefit of the Court of Appeals' views.
Chief Justice REHNQUIST, with whom Justice WHITE, Justice
O'CONNOR, and Justice SCALIA join, dissenting.
The Court summarily vacates an unpublished per curiam
opinion of the Court of Appeals for the Sixth Circuit without
indicating that the Sixth Circuit committed legal error or that
intervening circumstances require reconsideration of its decision.
Because I view this action as an unwarranted use of the Court's
resources and an unjustified imposition on the Court of Appeals, I
Page 493 U. S. 4
As the Court explains, the Sixth Circuit concluded that "the
district court properly determined" that Terrell's ineffective
assistance claims were procedurally barred. The Court's sole stated
reason for vacating that decision is that the Court of Appeals
erroneously attributed to the District Court a conclusion it never
made. Although the Court of Appeals appears to have been wrong as
to the basis of the District Court's ruling, the appellate court's
statement unequivocally expresses agreement with the view that the
claims were procedurally barred. This, then, is simply a case of an
appellate court affirming a district court's dismissal on a legal
basis different from that adopted by the district court -- a not
Underlying the Court's summary disposition of this case appears
to be an assumption that the Sixth Circuit did not consider the
adequacy of the Ohio courts' procedural bar holding. The Court of
Appeals, however, had before it and made reference to the
Magistrate's report and the District Court's decision, both of
which discussed the issue. It is not our place to vacate a Court of
Appeals opinion on the supposition that the court failed to give
sufficient thought to its own holding, merely because we would
prefer a more extended discussion. Unless the Court is prepared to
reverse the Court of Appeals' reliance on procedural bar, there is
no basis for setting aside the decision below. This Court has
debated the appropriateness of performing an "error-correcting
function," see, e.g., Pennsylvania v. Bruder, 488 U. S.
, 488 U. S. 12
(1988) (STEVENS, J., dissenting). But I have no doubt that vacation
of unpublished lower court opinions without any suggestion of error
or intervening change in the law is an unwise use both of our
resources and of those of the Court of Appeals.