Steele v. Jenkins

Filing 20

Memorandum Opinion: Petitioner's objections to the Report and Recommendation are all overruled and the Report and Recommendation is accepted. The petition for writ of habeas corpus is denied and the case is dismissed. Further, the Court c ertifies 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. Section 2253(c); Fed. R. App. P. 22(b).(Related Doc. No. 17 ). Judge Sara Lioi on 10/3/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHARLES M. STEELE,

PETITIONER,
vs.
CHARLOTTE1 JENKINS, Warden,

RESPONDENT.

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CASE NO. 1:15-cv-1374

JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge
Kathleen B. Burke recommending the denial of this pro se petition for writ of habeas corpus
filed under 28 U.S.C. § 2254. (Doc. No. 17; see Doc. No. 1 (Petition [“Pet.”]).) Petitioner
Charles Steele (“petitioner” or “Steele”) has filed objections. (Doc. No. 18.) Respondent
Charlotte Jenkins (“respondent”) has filed neither objections nor any response to petitioner’s
objections. For the reasons discussed below, the objections—to the extent they are properly
filed—are overruled, the R&R is accepted, and the petition for writ of habeas corpus is denied
and dismissed.
I. BACKGROUND
In 2013, while serving time in a state penitentiary for multiple convictions of rape with a
firearm specification, petitioner was indicted by the grand jury on one count of rape, in violation
of Ohio Rev. Code § 2907.02(A)(2); and one count of kidnapping, in violation of Ohio Revised

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Respondent’s first name is misspelled in the petition. (Pet. at 1.)

Code § 2905.01(A)(4). (Doc. No. 11-1 (Indictment, dated Mar. 5, 1993) at 1212.) The newly
indicted crimes took place in 1993, and the delay in bringing charges was attributed to a backlog
of untested DNA rape kits. On-going testing by the State of Ohio on other previously untested
DNA rape kits resulted in three additional hits on petitioner for crimes committed between 1993
and 1994, eventually leading to a superseding indictment charging petitioner with four counts of
rape and four counts of kidnapping, all with firearm specifications. (Doc. No. 11 (Return of
Writ) at 99-100, record cites omitted.)
By election, and with the assistance of stand-by counsel, petitioner proceeded pro se to
trial on the superseding indictment, and the jury returned guilty verdicts on all charges. After a
direct appeal and a remand for re-sentencing, petitioner was ultimately sentenced to a term of
imprisonment of 72 years. (Doc. No. 11-1 (Journal Entry of Judgment) at 428.) The R&R
thoroughly sets out the state procedural history of the case following re-sentencing, to which
petitioner takes no exception, and the Court adopts the same without repeating it herein. (R&R at
1423-27.)
In the present habeas application that followed the proceedings in state court, petitioner
raised five grounds for relief:
GROUND ONE: Deprived the right to a reliable jury. The determination of the
jury was steered, and not beyond reasonable doubt. The jury clearly lost its way.
GROUND TWO: Actual [sic] innocent of the indicted charge[s]. The facts
show a clear claim of innocence of the indicted charge[s].
GROUND THREE: Sentence is contrary to law and [C]onstitution. The
sentence does not constitutionally meet the facts.

All page number references are to the page identification number generated by the Court’s electronic docketing
system.
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GROUND FOUR: Insufficient evidence which caused [a] miscarriage of
justice. The evidence is insufficient to render guilty, when in all actuality renders
a favorable showing of innocence of the indicted charge.
GROUND FIVE: [F]raud upon the court in the withholding of data, and records
of the trial.3
(Pet. at 7, 12, bolding in original, headings added.)
Contemporaneous with the filing of this action, petitioner filed a motion for discovery
(Doc. No. 2) and a motion for expansion of the record.4 (Doc. No. 3.) The motion for discovery
sought the transcripts from the state trial court (Doc. No. 2 at 67), and the motion to expand the
record sought to include “the documents that were never presented at his trial namely the BCI
DNA Profile which the State claims is the basis of the charges that couples Petitioner to the 4
Rapes that were alleged to have been committed by Mr. Steele.”5 (Doc. No. 3 at 72,
capitalization and number in original.) In an order dated October 15, 2015, the magistrate judge
denied the motion for discovery as moot because respondent agreed to provide petitioner with
the trial transcripts. (Doc. No. 15 at 1394; see Doc. No. 12 (Notice of Filing Transcripts).) The
magistrate judge also denied without prejudice the motion to expand the record to include
evidence not available at trial because it was “not pertinent to the question of whether
[petitioner’s] grounds [for habeas relief were] procedurally defaulted[.]”6 (Id. at 1395.)

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As the magistrate judge observed, the fifth ground for relief was not clearly set forth in the petition, but, affording
a liberal interpretation to this pro se pleading, it appears that petitioner intended to advance this argument as a
separate ground for relief.
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This action was originally filed in the United States District Court for the Southern District of Ohio. It was
transferred to this Court on July 9, 2015. (Doc. No. 4 (Order).)
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Based upon subsequent filings, it appears that petitioner was not seeking to expand the record to include the DNA
profile evidence, which clearly was offered at trial, but was requesting that the DNA raw data be included in the
record. (See, e.g., Obj. at 1443-44.)
On September 28, 2015, petitioner filed a second “request” to receive the trial transcripts. (Doc. No. 13.) This
motion was also denied as moot. (See Doc. No. 15 at 1394.)
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In her R&R, the magistrate judge recommends that the Court dismiss all five grounds as
procedurally defaulted, finding that petitioner never presented any of his grounds for relief to the
state courts. (R&R at 1432.) With respect to the final ground—fraud upon the court—the
magistrate judge found that petitioner had arguably presented the alleged withholding of trial
transcripts to the state courts, but had not litigated the alleged denial of DNA evidence he
discussed for the first time in his federal habeas petition. (Id. at 1432-33.) Further, the magistrate
judge concluded that petitioner was unable to show cause, prejudice, or a miscarriage of justice
sufficient to overcome the procedural bar. (Id. at 1433-35.) Alternatively, the R&R
recommended dismissal of the asserted grounds because they were not cognizable, failed to state
a claim, or failed on the merits. (Id. at 1435-39.)
II. STANDARD OF REVIEW
Under 28 U.S.C. § 636(b)(1), “[a] judge of the court shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” See Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at *1
(6th Cir. Sept. 30, 1994) (“Any report and recommendation by a magistrate judge that is
dispositive of a claim or defense of a party shall be subject to de novo review by the district court
in light of specific objections filed by any party.”) (citations omitted). “An ‘objection’ that does
nothing more than state a disagreement with a magistrate’s suggested resolution, or simply
summarizes what has been presented before, is not an ‘objection’ as that term is used in this
context.” Aldrich v. Bock, 327 F. Supp. 2d 743, 747 (E.D. Mich. 2004); see also Fed. R. Civ. P.
72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.”); L.R. 72.3(b) (“any objecting party shall file
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“written objections which shall specifically identify the portions of the proposed findings,
recommendations, or report to which objection is made and the basis for such objections”). After
review, the district judge “may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3).
When undertaking its de novo review of any objections to the R&R, this Court must be
additionally mindful of the standard of review applicable in the context of habeas corpus. “Under
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, a federal
court may grant habeas relief only when a state court’s decision on the merits was ‘contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined by’
decisions from [the Supreme] Court, or was ‘based on an unreasonable determination of the
facts.’ 28 U.S.C. § 2254(d).” Woods v. Donald, --U.S.--, 135 S. Ct. 1372, 1376, 191 L. Ed. 2d
464 (2015) (per curiam). This standard is “intentionally difficult to meet.” Id. (internal quotation
marks and citations omitted). “To satisfy this high bar, a habeas petitioner is required to ‘show
that the state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.’” Id. (quoting Harrington v. Richter, 562 U.S. 86,
103, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011)).
“[F]ederal judges are required to afford state courts due respect by overturning their
decisions only when there could be no reasonable dispute that they were wrong.” Id. “Federal
habeas review thus exists as a guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through appeal.” Harrington, 102-03
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(further quotation marks and citation omitted).
III. PETITIONER’S OBJECTIONS
In his “objections,” petitioner offers the following observation:
[T]he Northern District of Ohio is still in the business of the Protection Racket.
The Report and Recommendation clearly pays no attention to [anything] that
Petitioner has stated in his Complaint and Traverse and Request for A Petition for
Habeas Corpus Relief. There are errors in the Report that simply take the
Respondent’s side of events and take no he[ed] to [anything] that Petitioner has
claimed in his Petition.
(Obj. at 1441, capitalization in original, spacing and line breaks omitted.)
While he alludes to “errors” in the R&R, petitioner fails to identify those errors.
Specifically, petitioner fails to challenge the magistrate judge’s proposed findings that his claims
are procedurally defaulted, or that each claim is non-cognizable, fails to state a claim, or is
meritless. Instead, he simply repeats the arguments advanced in his petition and traverse, and
urges this Court to reach a conclusion contrary to that advanced by the magistrate judge. Even
affording petitioner’s filing a liberal interpretation that is appropriate for pro se filings, see
Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), the vast majority of
the document cannot be interpreted as raising legitimate objections to the R&R. See Spencer v.
Bouchard, 449 F.3d 721, 725 (6th Cir. 2006) (“[O]bjections disput[ing] the correctness of the
magistrate’s recommendation but fail[ing] to specify the findings . . . believed [to be] in error are
too general.”) (quotation marks and citation omitted), abrogated on other grounds by Jones v.
Bock, 549 U.S. 199, 127 S. Ct. 910, 166 L. Ed. 2d 799 (2007).
The only argument that even touches upon the magistrate judge’s threshold finding that
petitioner’s claims are procedurally defaulted is petitioner’s repeated insistence that he is
innocent. (Obj. at 1442 [“The only issue that is of relevance in this action is that Petitioner[] is
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absolutely innocent of the Four Rapes that he was charged with in the Court of Common Pleas of
Cuyahoga County.”]; id. [“the bottom line is that I AM AN INNOCENT MAN”], capitalization
in original.) While petitioner did attempt to set forth a stand-alone claim of actual innocence, the
Court will generously construe these remarks as also attempting to overcome his procedural
default.
Generally, a federal court will not review a procedurally defaulted claim on habeas
corpus review “[o]ut of respect for finality, comity, and the orderly administration of justice[.]”
Dretke v. Haley, 541 U.S. 386, 388, 124 S. Ct. 1847, 158 L. Ed. 2d 659 (2004). “This is a
corollary to the rule that ‘federal courts will not disturb state court judgments based on adequate
and independent state law procedural grounds.’” Nelloms v. Jackson, 129 F. Appx. 933, 937 (6th
Cir. 2005) (quoting Dretke, 541 U.S. at 392)). “The only exceptions to this rule are when a state
prisoner can demonstrate cause for the procedural default and prejudice as a result of the alleged
constitutional violation, or can demonstrate that failure to review the constitutional claim will
result in a fundamental miscarriage of justice.” Id. (citing Coleman v. Thompson, 501 U.S. 722,
749-50, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991)); see Bousley v. United States, 523 U.S. 614,
622, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998) (citations omitted).
A prisoner can establish a fundamental miscarriage of justice by showing that “‘in light
of all the evidence, it is more likely than not that no reasonable juror would have convicted
him.’” Bousley, 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28, 115 S. Ct. 851,
130 L. Ed. 2d 808 (1995) (further quotation marks and citation omitted)); see Souter v. Jones,
395 F.3d 577, 589-90 (6th Cir. 2005) (a prisoner must “‘present[] evidence of innocence so
strong that a court cannot have confidence in the outcome of the trial unless the court is also
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satisfied that the trial was free of nonharmless constitutional error’”) (quoting Schlup, 513 U.S.
at 316). In other words, he must demonstrate that “‘a constitutional violation has probably
resulted in the conviction of one who is actually innocent.’” See Schlup, 513 U.S. at 324 (quoting
Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986) (further citation
omitted)). “To be credible, [a claim of actual innocence] requires petitioner to support his
allegations of constitutional error with new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Id. at 324.
At trial, the state offered DNA evidence that established that the DNA profiles present in
the swabs collected from the four rape victims were consist with petitioner’s profile, and that the
likelihood that an unrelated individual would have the same DNA profile was 1 in
1,039,000,000,000,000,000. These expert witnesses also testified that, based on the testing,
petitioner could not be ruled out as the source of the semen from which the DNA profile was
taken. (Doc. No. 12-2 (Trial Transcript, Volume 2) at 732, 794-95, 801-02, 803; Doc. No. 12-3
(Trial Transcript, Volume 3) at 833-35.) Petitioner does not challenge, and, in fact, endorses the
methodology used to test the samples. (Obj. at 1445.) Instead, he speculates, without any
support, that the raw DNA data supporting these tests would “show that he was not a participant
in any of the crimes he was charged with.” (Obj. at 1443.) He complains that the magistrate
judge erred in denying his motion to expand the record to include this evidence on habeas
review. (Id.)
The Court finds no error. Putting aside petitioner’s conclusory allegations that the raw
DNA evidence was exculpatory, petitioner was seeking evidence on habeas review that he was
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aware of at the time of trial and was available to him prior to the trial.7 Accordingly, it cannot
serve, on habeas review, as new reliable evidence that could have been utilized to demonstrate a
fundamental miscarriage of justice sufficient to permit him to overcome the procedural default of
his various grounds for relief. See Duffy v. Collins, No. 99-4251, 230 F.3d 1358 (6th Cir. Sept.
25, 2000) (Table), 2000 WL 1477226, at *2 (petitioner improperly “relies on allegedly
exculpatory DNA evidence which was available to him prior to trial” to attempt to establish the
potential for a miscarriage of justice).
Petitioner’s objections also raise a new argument that did not appear in his application
and was never presented to the magistrate judge. While he previously argued that various
government actors perpetrated a fraud upon the court by bringing charges against an innocent
man, he now posits that the prosecutor knowingly permitted the DNA experts and other
government witnesses to offer false testimony at trial. (Obj. at 1454.) “It is well established that a
party may not raise an argument, advance a theory, or marshal evidence before a District Judge
that was not fairly presented to the magistrate judge.” Marr v. Foy, No. 1:07-cv-908, 2010 WL
3061297, at *4 (W.D. Mich. Aug. 3, 2010) (quotation marks, citations, and bolding omitted).
“The Magistrates Act was not intended ‘to give litigants an opportunity to run one version of
their case past the magistrate, then another past the district court.’” Jones-Bey v. Caruso, No.
1:07-cv-392, 2009 WL 3644801, at *1 (W.D. Mich. Oct. 30, 2009) (quoting Greenhow v. United
States, 863 F.2d 633, 638-39 (9th Cir. 1988), rev’d on other grounds by United States v.
Hardesty, 977 F.2d 1347 (9th Cir. 1992) (en banc)). As such, this argument is not entitled to de

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Petitioner concedes that he was provided with DNA discovery materials prior trial, though he complains that he did
not have access to the materials until the Friday before trial. (Obj. at 1454.) There is no evidence that defendant
sought a continuance of the trial date or otherwise expressed to the trial court that he required more time in order to
effectively utilize or attack the DNA evidence at trial.
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novo review by this Court.
Even if the Court were to consider this new argument, it would not establish petitioner’s
entitlement to relief from his state court judgment. “To establish that the prosecution presented
false testimony, [petitioner] must show that (1) [the] statements were false, (2) that they were
material, and (3) that the prosecution knew they were false.” Amos v. Renico, 683 F.3d 720, 728
(6th Cir. 2012) (citing Brooks v. Tenn., 626 F.3d 878, 894-95 (6th Cir. 2010)); see Smith v.
Metrish, 436 F. App’x 554, 566 (6th Cir. 2011) (quotation marks and citation omitted). “In order
to satisfy the first two prongs of this test, [the petitioner] need not demonstrate that the
prosecution presented false testimony that at the time of the presentation he knew to be false.
Rather, it is sufficient that [the petitioner] show that the prosecutor used ‘testimony, whether
elicited or left uncorrected, that the prosecution kn[e]w [] or should [have known] is false.’”
Smith, 436 F. Appx. at 566 (quoting Foley v. Parker, 488 F.3d 377, 392 (6th Cir. 2007)); see
Abdus-Samad v. Bell, 420 F.3d 614, 626 (6th Cir. 2005) (“The statement must be indisputably
false rather than merely misleading.”) (quotation marks and citations omitted). To satisfy the
final prong, the petitioner must show that there exists “any reasonable likelihood that the false
testimony could have affected the judgment of the jury.” Rosencrantz v. Lafler, 568 F.3d 577,
584 (6th Cir. 2009) (quotation marks and citations omitted); see Brooks, 626 F.3d at 895
(quoting Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972)
(further citation omitted)).
It is not entirely clear from petitioner’s objections what trial testimony he believes to be
false. He seems to focus on the fact that one of the victims testified that she was raped vaginally,
while the test results purportedly showed petitioner’s semen in the victim’s rectum. (Obj. at
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1446.)8 This showing falls well short of establishing any of the prongs of a false testimony claim.
At best, petitioner has highlighted what he believes is an inconsistency between the testimonies
of two government witnesses. “While a prosecutor may not knowingly use perjured testimony, a
prosecutor is not required to ensure that prosecution witness’ testimony be free from all
confusion, inconsistency, and uncertainty. Additionally, [p]etitioner has failed to offer any
substantive argument that would call into doubt the validity of the DNA evidence offered at
trial.” Brown v. Romanowski, No. 2:06-cv-14341, 2010 WL 3905889, at *6 (E.D. Mich. Sept. 30,
2010). Because petitioner has failed to demonstrate that knowingly false and material testimony
was offered at trial, his false testimony claim—if properly presented—would fail.
IV. CONCLUSION
For the reasons discussed above, petitioner’s objections to the R&R are all overruled and
the R&R is accepted. The petition for writ of habeas corpus is denied and the case is dismissed.

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Petitioner also appears to complain that one or more of the DNA experts failed to testify that this victim reported
that she had engaged in voluntary sexual intercourse with a different partner three days before the test sample was
collected and that no other profiles were considered. (Obj. at 1446-47.) Despite having access to the DNA evidence
prior to trial, and despite the fact that a nurse working the emergency room the night of the attack on this witness
testified that the victim advised her that her last voluntary sexual intercourse was March 3, 1994 (Doc. No. 12-3
(Trial Transcript, Volume 3) at 1009), petitioner did not attempt to cross-examined the DNA witnesses with regard
to this matter. More to the point, petitioner fails to identify any DNA testimony that was false or misleading, and
fails to demonstrate how this purported omission was material. Petitioner’s Brady claim—which was raised for the
first time in his traverse and involved the same evidence—would also fail. Petitioner was well aware that DNA
evidence was presented at trial, and he concedes that he was given access to it prior to trial. See Brooks, 626 F.3d at
896 (rejecting Brady claim where both prosecution and defense had access to the evidence) (citing Norris v.
Schotten, 146 F.3d 314, 334-35 (6th Cir. 1998) (concluding that there is no Brady violation where the defense had in
its possession evidence that demonstrated the witness’s inconsistent statements, and remarking that “there would be
no need for a jury if trials did not contain such inconsistencies”)). Petitioner has offered nothing to suggest that the
prosecution withheld the information regarding this victim’s prior voluntary sexual intercourse, of which the
prosecutor actually elicited testimony from another witness.

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Further, the Court certifies 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.

Dated: October 3, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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