Swidas v. Sloan

Filing 15

Memorandum of Opinion and Order overruling Petitioner's Objections 13 and the Report and Recommendation 12 of the magistrate judge is adopted. Michael T. Swida's Petition for a Writ of Habeas Corpus 1 is denied. The Court c ertifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Judge Benita Y. Pearson 3/29/17(C,KA)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL T. SWIDAS,
Petitioner,
v.
BRIGHAM SLOAN, Warden,
Respondent.

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CASE NO. 1:13CV2260

JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 13]

Petitioner Michael T. Swidas, an Ohio prisoner at the Lake Erie Correctional Institution,
through counsel, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF
No. 1), alleging two (2) grounds for relief which challenge the constitutional sufficiency of his
convictions in Lake County, Ohio Court of Common Pleas Case No. 08CR000719. The case
was referred to Magistrate Judge Kathleen B. Burke for a Report and Recommendation pursuant
to 28 U.S.C. § 636 and Local Rule 72.2. The magistrate judge subsequently issued a Report &
Recommendation (ECF No. 12). In her Report, the magistrate judge recommends that the Court
deny the petition on the merits. Petitioner filed timely Objections to the Magistrate Judge’s
Report (ECF No. 13). The Court, after reviewing the Objections, hereby adopts the Report and
denies the Petition.
I. Facts
In January 2009, Petitioner was indicted on one count of attempted murder, with firearm
specifications as set forth in Ohio Rev. Code §§ 2941.145 and 2941.146 (“Count One”); two
counts of felonious assault, each with firearm specifications as set forth in §§ 2941.145 and

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2941.146 (“Counts Two and Three”); one count of tampering with the evidence (“Count Four”);
and one count of carrying concealed weapons (“Count Five”), with an additional finding that
Petitioner had previously been convicted of an offense of violence. ECF No. 6-1 at PageID #:
73-76. The case proceeded to a jury trial on Monday, June 15, 2009. On Friday, June 19, 2009,
the jury found Petitioner guilty of Counts Two, Three, Four, and Five. Petitioner was found not
guilty on Count One. ECF No. 6-1 at PageID #: 82-93. In July 2009, Petitioner was sentenced
to an eight-year term of imprisonment on Count Two; a three-year term of imprisonment on
Count Three; a three-year term of imprisonment on Count Four; and a one-year term of
imprisonment on Count Five. The trial court ordered that Counts Two, Three, and Four be
served consecutive to each other but concurrent to Count Five. Petitioner was also sentenced to
an additional eight-year term of imprisonment as to the firearm specifications attached to Count
Two (three years as to § 2941.145 and five years as to § 2941.146) as a mandatory prison term to
be served consecutive to each other but prior to and consecutive to the 14-year term for the
underlying felonies. The firearm specifications attached to Count Three merged with the firearm
specifications attached to Count Two. Therefore, the trial court sentenced Petitioner to an
aggregate term of 22 years. ECF No. 6-1 at PageID #: 94-97.
In December 2010, the Eleventh District Court of Appeals of Ohio affirmed Petitioner’s
convictions. State v. Swidas, No. 2009-L-104, 2010 WL 5550223 (Ohio App. 11th Dist. Dec.
23, 2010) (ECF No. 6-1 at PageID #: 186-214). In October 2012, the Ohio Supreme Court held
that the Ohio Rev. Code § 2941.146 firearm specification attached to Count Two was not
applicable to Petitioner who fired a weapon while standing with both feet planted on the ground

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with no substantial physical connection with the motor vehicle, State v. Swidas, 133 Ohio St.3d
460 (2012) (ECF No. 6-1 at PageID #: 318-29), and Petitioner was resentenced by the trial court
to an aggregate prison term of 17 years (ECF No. 6-1 at PageID #: 330-34). Petitioner did not
further appeal to the United States Supreme Court.
On October 11, 2013, Petitioner filed the instant Petition for a Writ of Habeas Corpus
(ECF No. 1).
II. Standard of Review for a Magistrate Judge’s Report and Recommendation
When objections have been made to the Magistrate Judge’s Report and
Recommendation, the District Court standard of review is de novo. Fed. R. Civ. 72(b)(3).
A district judge:
must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.
Id.
Accordingly, this Court has conducted a de novo review of the portions of the Magistrate
Judge’s Report to which Petitioner has properly objected.
III. Law & Analysis
Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), a writ of habeas corpus may not be granted unless the state
court proceedings:
(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
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(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.
28 U.S.C. § 2254(d)(1)-(2); see also Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000), cert.
denied, 532 U.S. 947 (2001). The task of the Court is not to determine whether the Eleventh
District Court of Appeals of Ohio’s decision was right or wrong. Instead, under the AEDPA, the
Court must decide whether the state appellate court’s adjudication of Petitioner’s claim “resulted
in a decision that was contrary to, or involved an unreasonable application of, clearly established
Federal law.” 28 U.S.C. § 2254(d)(1). As the United States Supreme Court has explained:
an unreasonable application of federal law is different from an incorrect
application of federal law. Indeed, a federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must be objectively unreasonable. This
distinction creates a substantially higher threshold for obtaining relief than de
novo review. AEDPA thus imposes a highly deferential standard for evaluating
state-court rulings, and demands that state-court decisions be given the benefit of
the doubt.
Renico v. Lett, 559 U.S. 766, 773(2010) (internal citations and quotations omitted) (emphasis in
original).
A. Ground One
“Considering the deference accorded state court determinations under AEDPA,” the
magistrate judge concluded that Petitioner “has not demonstrated that the state court’s
determination of his claim that the trial court erred in not finding the jury irreconcilably
deadlocked was contrary to or an unreasonable application of clearly established federal law or
that the state court of appeals’ decision was based on an unreasonable determination of the facts
in light of evidence presented.” ECF No. 12 at PageID #: 1003. Petitioner argues the magistrate
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judge’s determination is not supported by the record. ECF No. 13 at PageID #: 1011. The Court
disagrees.
The jury in this case heard testimony from 16 witnesses spanning three days. Swidas,
2010 WL 5550223, at *7, ¶ 57. On the afternoon of Wednesday, June 17, 2009, the case was
submitted to the jury and they deliberated “for an hour, an hour and a half, something like that.”
Trial Transcript (ECF No. 6-5) at PageID #: 809. They resumed their deliberations the next day
at 8:30 a.m. At 10:55 a.m., the jury posed the following question for the trial court to answer:
“What do we do if we are hung on two charges and agree on three charges?” ECF No. 6-5 at
PageID #: 809. The following discussion was had:
MR. PARTLOW:
Well Judge, for the record, I’ve got to say that I
think we’ve got a hung jury, to preserve my record. On the other hand, I
recognize the Court’s probably not going to agree with me, and the real question
is, what instruction are you going to give them? Without waiving anything, of
course.
JUDGE LUCCI:
I think, at this point, it should be just a two-worder.
Keep deliberating.
MR. CONDON:
The State’s fine with that.
MR. PARTLOW:
That’s fine. Here again, without waiving my
position that we have a hung jury.
ECF No. 6-5 at PageID #: 810-11.
At 2:25 p.m. that Thursday afternoon, the jury posed another question: “We are
hopelessly deadlocked on two of the five charges. No amount of deliberation will change this
outcome. Do we have to stay ‘till 5:00 p.m.?” ECF No. 6-5 at PageID #: 811. The trial court
decided it would give the first two sections of the current charge from Ohio Jury Instructions,
CR 429.09 “Possibility of a verdict.” 2 OJI-CR 429.09. ECF No. 6-5 at PageID #: 811.
Petitioner concedes that this is the proper jury instruction in the event the jury could possibly
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render a verdict. State v. Howard, 42 Ohio St.3d 18 (1989) (holding that a traditional Allen
charge was not a proper supplemental instruction to be given to juries deadlocked on the
question of conviction or acquittal).1 Petitioner objects, however, that “this instruction should
not have been given at all in light of the facts and circumstances of the case.” ECF No. 13 at
PageID #: 1013. The trial court determined that it would give a remaining section(s) of the
current version of 2 OJI-CR 429.09, the Howard charge, that addresses the situation where a
verdict may be impossible to achieve “if they come back and again say that they can’t do it.”
ECF No. 6-5 at PageID #: 813. The following discussion occurred:
MR. PARTLOW:
Well, Your Honor, obviously, I would state my
objection. As I’ve said before, it sounds like we have a deadlock. They’ve said,
for lack of a better term, the magic words “helplessly deadlocked,” “no amount of
time.” Under those circumstances, I would say that we do indeed have a deadlock
and the Court should treat it as such and bring them back. If the Court is asking
me as far as the form of that instruction-JUDGE LUCCI:
The legal accuracy of it, you have no objection.
MR. PARTLOW:
I don’t have-- I mean, it seems to conform with,
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essentialy, an Allen charge, so I don’t have any-* * *
objection to the form.
JUDGE LUCCI:
The way I look at it, we’ve been here now, you
know, almost four complete days. . .
* * *
So I’m going to give them that instruction, and we’ll see what they come back
with.

1

A Howard charge is a jury instruction designed to be given to a jury that
believes it is deadlocked in order to “challenge [the jury] to try one last time to reach a
consensus.” State v. Robb, 88 Ohio St.3d 59, 81 (2000).
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Allen v. United States, 164 U.S. 492 (1896). When a jury is deadlocked, a trial
court may give a supplemental charge urging the jury to continue its deliberations in
order to arrive at a verdict. Id. at 501. An Allen charge is sometimes referred to as a
“dynamite” charge.
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ECF No. 6-5 at PageID #: 813-15.
The jury resumed their deliberations on Friday, June 19, 2009, at 8:40 a.m. Trial
Transcript (ECF No. 6-6) at PageID: #: 828, 829. Five minutes later, the jury posed another
question for the trial court to answer: “Should, in a month or three months, evidence come up
that was not brought up in this trial, if we were a hung jury, can Michael S. be retried versus
finding him not guilty, for which he cannot be retried?” ECF No. 6-6 at PageID: #: 823. The
trial court decided at 10:00 a.m. that it would give the last two sections of the current charge
from 2 OJI-CR 429.09 in response to the question:
JUDGE LUCCI:

Well, how about if I give them this one, the OJI. . . .
* * *
. . . I’m interested in knowing whether there’s a possibility of reaching a verdict
within a reasonable time. For that purpose, I will submit the question to that
possibility to the foreperson. When the question is submitted to the foreperson,
it’s to be answered by either yes or no, with no other comment. You are not to
reveal any other information regarding your deliberations, including the status of
them. When you are returned to the courtroom, I will now ask the foreperson,
After a reasonable additional period of time today or Monday, do you believe that
the jury might reach a verdict? Any problem with that from the State?
MR. CONDON:
JUDGE LUCCI:
MR. PARTLOW:
JUDGE LUCCI:
will come back for them?
MR. CONDON:
MR. PARTLOW:

No.
Any problem Mr. Partlow?
(No oral response.)
How long? Tell them fifteen minutes, [the bailiff]
That’s fair.
Sure.

ECF No. 6-6 at PageID #: 829-31. The trial court then brought the jury back into the courtroom
and questioned the foreperson as to whether the jury could reach a verdict if given additional
time to deliberate:

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JUDGE LUCCI:
. . . Mr. [Foreperson], after a reasonable additional
period of time today and Monday, do you believe that the jury might reach a
verdict?
[Foreperson]: Yes, Your Honor.
JUDGE LUCCI:
Then you are returned to the jury room to continue
your deliberations.
ECF No. 6-6 at PageID #: 832. The jury returned verdicts later that morning. Petitioner objects
that the Magistrate Judge was mistaken in the analysis in this area. According to Petitioner,
“[t]his immediate answer by the jury, followed by an almost immediate verdict within the hour
thereafter, is clearly indicative of a ‘compromise verdict’ reached by the jury.” ECF No. 13 at
PageID #: 1013.
The constitutionality of a deadlocked jury instruction depends upon whether the
instruction in question was “coercive.” Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). The
Lowenfield jury deliberated for only thirty more minutes after the Allen charge was given. Id. at
235. The Court made clear in that case that a trial court should not give the jury a “coercive”
instruction – though the Lowenfield Court actually held that the instruction in that case was not
coercive. Id. at 241 (“We hold that on these facts the combination of the polling of the jury and
the supplemental instruction was not ‘coercive’ in such a way as to deny petitioner any
constitutional right.”). “[C]oerciveness must be judged on the totality of the circumstances.”
Wong v. Smith, 562 U.S. 1021, 1023 (2010). Viewing the supplemental charge given by the trial
court in light of all the circumstances, the Court agrees with the recommendation of the
magistrate judge that Ground One be denied on the merits. See ECF No. 12 at PageID #: 998 n.
8.
B. Ground Two
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1. Felonious Assault Conviction (Joseph Naples)
The jury heard testimony that as the victims, Ulysses Altizer and Joseph Naples, exited
the bar, Petitioner began to fire toward them. Swidas, 2010 WL 5550223, at *9, ¶ 74. The Ohio
Court of Appeals held “a rational jury could conclude, beyond a reasonable doubt, that appellant
knowingly attempted to cause Naples physical harm by means of a deadly weapon, to wit: a
firearm.” Id.
The magistrate judge concluded “[e]ven though Joseph Naples was not physically
injured, considering the evidence presented to the jury, including the testimony of Joseph Naples
. . ., a rational trier of fact could have found that the prosecution had proven the essential
elements of felonious assault with respect to Joseph Naples beyond a reasonable doubt.” ECF
No. 12 at PageID #: 1007-1008. Petitioner argues his conviction for felonious assault against
Mr. Naples was not supported by sufficient evidence. ECF No. 13 at PageID #: 1014-16.
According to Petitioner, the discrepancy concerning this issue is whether there was any evidence
tending to show that he intended physical harm to Mr. Naples. ECF No. 13 at PageID #: 1015.
Mr. Naples testified:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

(By Ms. Neroda) How many shots did you hear?
Five or six, I believe.
And were you able to tell where they were in relation to you?
Um-- Close, very close.
How do you know that, Joe?
Actually, there [were] a few shots that came relatively close, where I
heard the bullet go by.
Okay; you heard the bullet go by.
Yes, ma’am.
Go by what?
My face; one on my right side and one on my left side.

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Trial Transcript (ECF No. 6-2) at PageID #: 386-87. Petitioner relies on the testimony of a
state’s witness, Robert A. Bendes (ECF No. 6-2 at PageID #: 338-52), to support his argument
that “it is quite clear that the Petitioner had no intention of harming Mr. Naples. Rather, he was
firing warning shots.” ECF No. 13 at PageID #: 1016.
The Ohio Court of Appeals’ reasoning on Petitioner’s conviction for felonious assault
against Mr. Naples is well-explained and is not shown to be unreasonable in any way. As the
magistrate judge correctly noted, deference is due the state court of appeals’ sufficiency
determination as long as it is not unreasonable. See Brown v. Konteh, 567 F.3d 191, 205 (6th
Cir. 2009); see also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009).
2. Tampering with Evidence

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The Ohio Court of Appeals stated:

The jury heard [Petitioner] testify that after he discharged five rounds of
ammunition, he immediately left the scene in his vehicle. While driving,
[Petitioner] observed emergency personnel coming toward his vehicle.
[Petitioner] stated that he knew the police were investigating or would be
investigating the shooting. Then, when one of the police vehicles made a U-turn
to follow him, he threw the firearm out the window. The police vehicle followed
[Petitioner’s] vehicle with its lights activated. When the officer conducted a
pat-down search of [Petitioner’s] person, [he] did not inform the officer that he
had thrown a firearm, containing live rounds, out of his vehicle window. [Petitioner], in fact, indic
Swidas, 2010 WL 5550223, at *9, ¶ 79. Therefore, the state court of appeals held “the jury could
have found beyond a reasonable doubt that [Petitioner] was attempting to conceal or remove the
firearm with the purpose to impair its availability as evidence in a legal proceeding or
investigation” Id.

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The magistrate judge concluded “considering the evidence presented to the jury, as
detailed by the state court of appeals [ECF No. 6-4 at PageID #: 661-62, 664-65, 670], a rational
trier of fact could have found that the prosecution had proven the essential elements of tampering
with evidence beyond a reasonable doubt.” Petitioner argues his conviction for tampering with
evidence was not supported by sufficient evidence. ECF No. 13 at PageID #: 1016-17. He
testified during direct examination that the only reason he threw the weapon from the vehicle
was to attempt to insure that the police authorities knew that he did not have a weapon.
Petitioner did not want to be the victim of an accidental shooting:
Q.
A.
Q.
A.

Okay, so why did you throw the gun out the window?
I didn’t want the police to shoot me.
You didn’t want what?
I didn’t want the police to shoot me. I didn’t want it to become an
accidental shooting because I had a gun in the car.

ECF No. 6-4 at PageID #: 662. According to Petitioner, “[t]here is simply nothing in the record
to indicate otherwise.” ECF No. 13 at PageID #: 1016. However, he testified on crossexamination:
Q.
A.
Q.

A.

. . .You testified that the reason you got rid of the gun is for your safety,
you didn’t want the police to shoot you.
Yes.
But when you were pulled over and brought out of the car and patted
down and indicated that you didn’t have a firearm on you, you never told
them, Hey, I ditched the gun back on 305 and it’s still got live rounds in
it? You never said that, did you?
No.

ECF No. 6-4 at PageID #: 670.

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As the magistrate judge correctly noted, deference is due the Ohio Court of Appeals’
sufficiency determination as long as it is not unreasonable. See Brown, 567 F.3d at 205; see also
White, 602 F.3d at 710.
Considering the deference due both a jury’s determination of guilt and a state court of
appeals’ sufficiency determination, Belmonte v. Cook, 567 Fed.Appx. 331, 334 (6th Cir. 2014),
the Court agrees with the recommendation of the magistrate judge that Petitioner has not
demonstrated an entitlement to federal habeas relief based on Ground Two – his sufficiency of
the evidence claims. See ECF No. 12 at PageID #: 1009-10.
IV. Conclusion
Petitioner’s Objections (ECF No. 13) are overruled and the Report & Recommendation
(ECF No. 12) of the magistrate judge is adopted. Michael T. Swidas’ Petition for a Writ of
Habeas Corpus is denied.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision
could not be taken in good faith, and that there is no basis upon which to issue a certificate of
appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

IT IS SO ORDERED.

March 29, 2017
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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