Duhamel v. Miller

Filing 14

Order Adopting 10 Report and Recommendation. Judge Jack Zouhary on 4/12/2018. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Jason Duhamel,

Case No. 1:16 CV 2758
Petitioner,

ORDER ADOPTING
REPORT AND RECOMMENDATION

-vsJUDGE JACK ZOUHARY
Warden Mary Potter,
Respondent.

Petitioner Jason Duhamel, a state prisoner represented by counsel, filed a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1). The Warden filed a Return of Writ (Doc. 8). The
case was referred to Magistrate Judge William Baughman for a Report and Recommendation (R&R).
The R&R (Doc. 10) recommends this Court deny the Petition on the merits. Duhamel timely objected
(Doc. 11). This Court reviews de novo those portions of the R&R challenged in the Objection. See
28 U.S.C. § 636(b)(1); Hill v. Duriron Co., 656 F.2d 1208 (6th Cir. 1981).
BACKGROUND
As Duhamel does not meaningfully object to most of the procedural history and facts set forth
in the R&R, this Court incorporates them by reference, briefly summarizing the timeline of his state
conviction and appeals and noting disputes where they arise.
In September 2012, Duhamel was indicted on 35 counts of pandering sexually oriented matter
involving a minor, as well as one count each of illegal use of a minor in nude material or performance
and possession of criminal tools (Doc. 10 at 2). Duhamel requested $5,000 to hire an expert witness
at the state’s expense (Doc. 9-1 at 12). The trial court granted the request in part, initially allotting

$2,500. The court also granted a second request in part, for an additional $1,000. The court denied
Duhamel’s third request for additional funds (id.). Duhamel objects to the R&R’s finding that he was
not indigent at the time the trial court denied his third request for expert witness funds (Doc. 11 at 6).
In preparation for trial, Duhamel moved to suppress evidence of any statements he made to
police during the search of his home (Doc. 10 at 3). Following an evidentiary hearing -- including
review of the video recorded interview -- the trial court concluded that Duhamel was not in custody
at the time, and therefore Miranda warnings were not required (id. at 4–5). The video was admitted
into evidence at trial, and the jury found Duhamel guilty on 29 counts of pandering, as well as the
charges for nude material and criminal tools; and not guilty on the remaining charges (id. at 6).
The state appellate court sua sponte dismissed Duhamel’s initial direct appeal for lack of a
final appealable order and reinstated the case on the trial court docket (id. at 7). The trial court then
sentenced Duhamel to 15 years in prison (id. at 8). Duhamel timely appealed, and the state appellate
court affirmed the judgment (id. at 9). The Ohio Supreme Court declined jurisdiction (id. at 10), and
the United States Supreme Court denied the petition for a writ of certiorari (id. at 11).
Duhamel then filed this federal habeas corpus action.
STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a district court
may not grant a habeas petition with respect to any claim adjudicated on the merits in the state courts,
unless the adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court; or (2) was based
on an unreasonable determination of the facts in light of the evidence presented to the state courts.
28 U.S.C. § 2254(d). To determine whether a state court decision is contrary to or an unreasonable

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application of clearly established Supreme Court precedent, courts look only to the holdings of
Supreme Court decisions as of the time of the relevant state court decision. Lockyer v. Andrade, 538
U.S. 63, 71–72 (2003). State court factual findings are presumed correct unless rebutted by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir.
2013).
DISCUSSION
The Petition asserts five grounds for relief: (1) the state court erred in ruling that the police
interview in Duhamel’s home was non-custodial, and therefore did not require Miranda warnings; (2)
the failure to provide sufficient expert witness fees violated Duhamel’s due process rights; (3) the
prosecution failed to present any evidence on the element of knowledge, in violation of due process;
(4) the evidence was insufficient to sustain a conviction; and (5) the sentence in this case violated
Duhamel’s Eighth Amendment right to be free from cruel and unusual punishment.
Ground One: Miranda Violation
Duhamel contends he was in custody when he spoke with police while they executed a search
warrant on his home. He highlights the fact that the officers “denied him movement around his
residence, the use of a mobile phone or his request to retrieve a cough drop” from his bedroom while
the search and interview took place (Doc. 1 at 22; Doc. 11 at 2–3). Because Duhamel was not advised
of his Miranda rights before the interview, he argues the trial court erred in denying his motion to
suppress.
The question of whether an interrogation is “custodial” focuses on the perception of a
reasonable person under the circumstances. Stansbury v. California, 511 U.S. 318, 325 (1994).
Whether a reasonable person would believe they were “in custody” depends on “all of the

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circumstances surrounding the interrogation” and “how a reasonable person in the position of the
individual being questioned would gauge the breadth of his or her freedom of action.” Yarborough
v. Alvarado, 541 U.S. 652, 663 (quoting Stansbury, 511 U.S. at 325). See also State v. Mason, 82
Ohio St. 3d 144, 154 (1998) (citations omitted). As the state appellate court noted, under this totality
of the circumstances approach, “[t]he ultimate inquiry is whether there is a ‘formal arrest or restraint
on freedom of movement’ of the degree associated with a formal arrest” (Doc. 8-1 at 273–74) (quoting
California v. Beheler, 463 U.S. 1121, 1125 (1983)).
Thus, encounters within a suspect’s home “often” will “not rise to the kind of custodial
situation that necessitates Miranda warnings.” United States v. Panak, 552 F.3d 462, 466 (6th Cir.
2009) (quoting United States v. Salvo, 133 F.3d 943, 950 (6th Cir. 1998)). The Supreme Court has
noted that Miranda requirements do not apply to non-custodial interviews within a suspect’s home
because an important factor in the Miranda rationale -- the isolation of a suspect in unfamiliar
surroundings for “no purpose other than to subjugate the individual to the will of his examiner” -- is
absent. Beckwith v. United States, 425 U.S. 341, 346 & n.7 (1976). However, in-home interrogations
may become custodial in nature depending on various factors, such as the number of officers present;
their display of authority, such as conspicuous brandishing of weapons; and their use of hostile
questioning. Panak, 552 F.3d at 466 (citing United States v. Craighead, 539 F.3d 1073, 1083 (9th
Cir. 2008)).
The R&R correctly concludes that Duhamel was not in custody at the time of the police
interview. Thirteen officers participated in executing the search warrant at Duhamel’s home that
morning. While some of the officers searched his bedroom, others questioned Duhamel at the kitchen
table. The state appellate court noted: (1) there was nothing “accusatorial” about the interview, (2)

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the conversation was casual in nature, (3) an officer informed Duhamel that he was not under arrest,
and (4) an officer reminded Duhamel several times that he was under no obligation to answer their
questions (Doc. 8-1 at 273–74; see also Docs. 12–13). Duhamel also initiated the conversation at
times and volunteered information to assist the police in their search (see Docs. 12–13).
During the search, the officers refused to allow Duhamel to retrieve a cough drop from his
bedroom (id.). One of the officers testified at trial that he refused to allow Duhamel to go to his
bedroom (where the search warrant was being executed) because he thought Duhamel might try to
hide evidence, and for safety reasons (Doc. 8-1 at 274). Regardless of the reasons, this minor
restriction does not rise to the level of restraint associated with a formal arrest. As the state appellate
court aptly concluded, “[u]nder these circumstances, a reasonable person would conclude that while
he was not under arrest, he could not go into the bedroom because his presence would interfere with
police business” (id.). Duhamel’s arguments to the contrary are not persuasive (see Doc. 11 at 2–5).
Thus, the state court decision was neither contrary to nor an unreasonable application of Supreme
Court precedent governing Miranda warnings. The Objection is overruled.
Ground Two: Expert Funds
Duhamel next argues that the trial court violated his due process rights by denying his third
request for supplemental funds to retain an expert witness. He also objects to the R&R’s finding that
he was not indigent at the time the request was denied (id. at 6).
In preparation for trial, the court awarded Duhamel $3,500 in expert witness fees, before
denying an additional request for funds (Doc. 9-1 at 12). At the time of the third request, the court
noted that although Duhamel filed an affidavit of indigency at the outset of the case, he had since
posted bond and retained counsel (id. at 13–16). The court offered to hold a hearing on the issue of
indigency (id. at 14):
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We can go forward with this hearing today, if you want to have a hearing on this
affidavit of indigency. We can perhaps have a hearing on that, in which case I’ll want
some tax return information, some employment information, if you [sic] want have a
true hearing on this -- on the level of indigency that he is. What’s your pleasure?
Duhamel elected not to proceed with the hearing, though he noted he was being supported financially
by his family (id. at 13–16). The state appellate court later concluded that the trial court did not abuse
its discretion in denying the request for additional funds because the application did not include an
affidavit of indigency (Doc. 8-1 at 277).
Indigent criminal defendants are entitled to “the basic tools of an adequate defense or appeal,
when those tools are available for a price to other prisoners.” Mason v. Mitchell, 320 F.3d 604, 615
(6th Cir. 2003) (citing Britt v. North Carolina, 404 U.S. 226, 227 (1971)). It is within the trial court’s
discretion to deny funding requests if a defendant fails to make a particularized showing of a
reasonable probability that both (1) the expert would aid in the defense, and (2) denying the requested
assistance would result in an unfair trial, in violation of due process. Mason, 320 F.3d at 615 (citing
Mason, 82 Ohio St. 3d at 150).
But even if he makes this showing, an indigent defendant is entitled to a competent expert, not
necessarily the expert of his personal liking. Smith v. Mitchell, 348 F.3d 177, 217 (6th Cir. 2003)
(citing Ake v. Oklahoma, 470 U.S. 68, 83 (1985)). Duhamel cites no authority -- factual or legal -to support his claim that $3,500 was insufficient to obtain a competent technology expert. Thus,
regardless of whether he was indigent, Duhamel fails to identify a violation of his due process rights.
The Objection is overruled.
Ground Three: Knowledge Element
Duhamel contends the state was required to prove he had “knowledge of the character of the
material or performance” contained in the video files that formed the basis for the indictment and
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conviction. The elements of a crime are a question of state law, but federal due process requires the
prosecution to prove each element beyond a reasonable doubt. See Fiore v. White, 531 U.S. 225,
228–29 (2001) (citing Jackson v. Virginia, 443 U.S. 307, 316 (1979)). Duhamel argues the state
failed to satisfy its burden on the knowledge element because it presented no evidence that he opened
and viewed any of the files at issue. And he objects that the R&R failed to consider testimony by the
state’s witnesses that he “could not possibly have known what was in the various seized video files
without having viewed them” (Doc. 11 at 6).
Ohio Revised Code § 2901.22(B) provides:
A person has knowledge of circumstances when the person is aware that such
circumstances probably exist. When knowledge of the existence of a particular fact is
an element of an offense, such knowledge is established if a person subjectively
believes that there is a high probability of its existence and fails to make inquiry or
acts with a conscious purpose to avoid learning the fact.
The state presented evidence that child pornography materials often have descriptive names,
like the titles on 28 of the video files found on Duhamel’s external hard drives (Doc. 8-1 at 275). The
jury returned verdicts of guilty corresponding to the files with descriptive titles and acquitted
Duhamel on all counts related to non-descriptive titles (id. at 275). Further, during the interview with
officers in his home, Duhamel admitted downloading such files and organizing them into folders
named according to content, including “kid” or “young” (id. at 266–67). Duhamel also gave officers
specific instructions on where the video files could be found on his devices and admitted being
familiar with -- and using -- search terms associated with child pornography (id.). See State v.
Fielding, 2014-Ohio-3105, at ¶ 54 (Ohio Ct. App. 2014) (“The fact remains that appellant input search
terms indicative of child pornography, and child pornography was discovered on appellant’s
computers.”). This was sufficient for a reasonable jury to conclude that Duhamel was aware that the
video files in question probably contained child pornography. The Objection is overruled.
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Ground Four: Insufficient Evidence
Duhamel contends the state presented insufficient evidence to sustain a conviction, essentially
rehashing his arguments and objections in support of Ground Three (see Doc. 11 at 8). A sufficiency
of the evidence claim requires a two-step inquiry. First, evidence is sufficient to support a conviction
if “after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S.
at 319. Second, if the evidence is insufficient, then this Court proceeds to apply AEDPA deference
in determining whether the state court determination was objectively unreasonable. Stewart v.
Wolfenbarger, 595 F.3d 647, 653 (6th Cir. 2010) (citing Tucker v. Palmer, 541 F. 3d 652, 656 (6th
Cir. 2008)). As discussed above, the prosecution presented sufficient evidence for a rational jury to
conclude that Duhamel knew certain files on his computer contained child pornography. The
Objection is overruled.
Claim Five: Eighth Amendment
Finally, Duhamel asserts his 15-year sentence is excessive and rises to the level of cruel and
unusual punishment. He bases this argument on the fact that “Ohio defendants causing physical harm
to other Ohio citizens, causing their death, sexually assaulting them and more” often receive lower
sentences than Duhamel (Doc. 1 at 38). He further argues that he is being denied access to the data
required to prove that his sentence is disproportionate because court records are not subject to
disclosure under the Ohio Public Records Act (id. at 39; Doc. 11 at 8–9).
To support an Eighth Amendment claim, a sentence must be “extreme” or “grossly”
disproportionate. Harmelin v. Michigan, 501 U.S. 957, 962 (1991). This standard is “rarely met.”
United States v. Young, 766 F.3d 621, 625 (6th Cir. 2014). This Court must give “substantial

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deference to the broad authority that legislatures necessarily possess . . . in sentencing convicted
criminals.” Solem v. Helm, 463 U.S. 277, 290 (1983). See also Austin v. Jackson, 213 F.3d 298, 302
(6th Cir. 2000) (“[A] sentence within the statutory maximum . . . generally does not constitute ‘cruel
and unusual punishment.’”) (quoting United States v. Organek, 65 F.3d 60, 62 (6th Cir. 1995)).
In his direct appeal, Duhamel argued the trial court erred in imposing consecutive sentences
and failing to merge allied offenses (see Doc. 8-1 at 282–87). He does not raise these claims here and
instead focuses on the proportionality (or lack thereof) of his sentence. As the R&R correctly notes,
the 15-year sentence fell within the statutory range. Under the “narrow proportionality principle,”
it was therefore neither contrary to state law, nor grossly disproportionate. See Harmelin, 501 U.S.
at 997–1001, 1004. Thus, this Court need not reach Duhamel’s argument that he was entitled to
access the court clerk’s electronic records database. The Objection is overruled.
CONCLUSION
The Objections (Doc. 11) are each overruled. This Court adopts the R&R (Doc. 10) and
denies the Petition (Doc. 1) on the merits. Further, this Court certifies an appeal from this decision
could not be taken in good faith, and there is no basis upon which to issue a certificate of
appealability. 28 U.S.C. § 2253(c).
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
April 12, 2018

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