Butler v. Warden, Chillicothe Correctional Institution

Filing 12

REPORT AND RECOMMENDATION that petitioner's 3 Petition for Writ of Habeas Corpus be Denied with prejudice. A certificate of appealability should not issue in this matter. Any appeal of this matter would not be taken in good faith, and therefore Deny petitioner leave to appeal in forma pauperis. Objections to R&R due by 9/17/2012. Signed by Magistrate Judge Karen L. Litkovitz on 8/30/2012. (art)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
THOMAS B. BUTLER,
Petitioner,
vs.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

Case No. 1:11-cv-734
Barrett, J.
Litkovitz, M.J.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custody at the Chillicothe Correctional Institution in
Chillicothe, Ohio, has filed a prose petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. The case is now before the Court on the petition, respondent's return of writ with exhibits,
and petitioner's brief in reply to the return of writ. (Docs. 3, 8, 11).

I. PROCEDURAL HISTORY
State Trial Proceedings
On August 9, 2009, the Lawrence County, Ohio, grand jury returned an indictment in
Case No. 09-CR-180 charging petitioner with three counts of rape in violation of Ohio Rev.
Code§ 2907.02(A)(2) and three counts of sexual battery in violation Ohio Rev. Code§
2907.03(A)(5). (Doc. 8, p. 3 & Ex. 1). The indictment was based on incidents involving a single
victim, which allegedly occurred "on or about June 29, 2009." (See id., Ex. 1). In the sexual
battery counts, petitioner was specifically charged as a "person in loco parentis" to the victim.
(!d.).

On January 26, 2010, petitioner's counsel filed a motion to dismiss the sexual battery
charges. (!d., Ex. 4). In the memorandum submitted in support of the motion, counsel argued
that no "in loco relationship" existed between petitioner and the victim because petitioner did not
assume a parental role, nor did the victim rely on petitioner for support, when the victim was a

guest at his home for the purpose of visiting his son. (See id. ).
Soon thereafter, on February 22, 2010, the Lawrence County grand jury returned a second
indictment in Case No. 10-CR-38 charging petitioner with three counts of sexual battery in
violation of Ohio Rev. Code§ 2907.03(A)(5). (!d., p. 4 & Ex. 2). The new charged offenses,
which occurred "on or about June 29, 2009" against the same victim, arose from the "same
factual circumstances as the previous indictment." (See id.). However, unlike the first
indictment, the second indictment alleged that petitioner's "in loco parentis" status was obtained
"by virtue of the fact that [the victim] was a minor staying in the home of said Defendant who
had been given authority over the said minor by her grandmother custodian, the said Defendant
providing support, care and supervision of said minor." (See id. ).
Petitioner's counsel, who represented petitioner in both criminal cases, filed a motion to
dismiss the indictment in Case No. 10-CR-38 based on the same arguments previously asserted
in support ofthe motion to dismiss filed in Case No. 09-CR-180. (See id., Ex. 3). In the
memorandum in support of the motion to dismiss, counsel summarized the defense position
regarding the new sexual battery charges as follows:
As the Court is aware, this is a second indictment on the same charges and
stemming from the same fact pattern. The State determined to seek a new
indictment on the Sexual Battery allegations after the Defendant challenged the
sufficiency of the Sexual Battery counts in the original indictment. The State's
new indictment adds a one sentence rationale for a finding of in loco parentis.
[T]he defendant contends that this second effort is also insufficient, that a finding
of in loco parentis can not be made, and that the Indictment must be dismissed.
(!d., p. 1).

On March 5, 2010, the State filed a motion for the court "to enter a nolle prosequi" of the
sexual battery counts in Case No. 09-CR-180 given that petitioner had been charged in Case No.
10-CR-38 with the same offenses. (!d., Ex. 5). That same date, the trial court entered a
2

Judgment Entry ruling, as requested by the State "and for good cause shown," that the sexual
battery charges in Case No. 09-CR-180 "are hereby nollied without prejudice." (!d., Ex. 6). On
March 10,2010, the trial court also granted the State's request to consolidate the two criminal
cases for trial purposes. (!d., Exs. 7-8).
On March 12, 2010, the trial court denied petitioner's motion to dismiss the sexual
battery counts. (See id., Ex. 9; Ex. 15, p. 3). In ruling on the motion, the court made findings of
fact, which are presumed correct under 28 U.S.C. § 2254(e)(1), 1 and reasoned in pertinent part as
follows:
The fact pattern in this case was that the victim ... had come from out of town to
visit her boyfriend who was either the son or stepson of the Defendant. . . . At
some point in time during the visit, the boyfriend left for a previously planned trip
to the beach and [the victim] was left in the home with the Defendant, whereupon
two events of sexual conduct occurred and [the victim] was a minor throughout
that period in time.
The indictment alleges those facts, together with the statement, "That the said
[victim] was a minor, staying in the home of said Defendant, who had been given
authority over the said minor by her grandmother custodian, the said Defendant
providing support, care and supervision of the said minor."
.... This Court finds that the State's indictment makes a sufficient allegation of
facts and elements against the Defendant, including the domina[nt] parental role,
from the allegation that authority over this minor child had been given to the
Defendant by her grandmother custodian while she stayed at the Defendant's
home; and further, that the issue of support is met by the allegation that the
Defendant was providing support, care and supervision of the said minor while
upon extended stay in the Defendant's home.
(!d., Ex. 9).

On September 15, 2010, petitioner entered a plea of no contest to one of the sexual
1

28 U.S.C. § 2254(e)(l) provides that "[i]n a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a
State court shall be presumed correct" unless petitioner rebuts the presumption by "clear and convincing evidence."
Because petitioner has neither cited nor presented clear and convincing evidence to rebut the Ohio Court of Appeals'
factual findings quoted herein, the state appellate court's factual findings are presumed to be correct. See McAdoo v.
Elo, 365 F.3d 487, 493-94 (6th Cir. 2004).

3

battery counts in exchange for the dismissal of the two remaining sexual battery counts and the
three rape counts charged in Case No. 09-CR-180. (See id., Exs. 10, 11). At the plea hearing
held the same date, the trial court granted the State's motion for entry of a "nolle prosequi" to the
two remaining sexual battery counts and the three rape counts in Case No. 09-CR-180. (See id.,
Ex. 11 ). The court also accepted petitioner's no contest plea and found him guilty of one of the
sexual battery offenses after conducting an inquiry of petitioner and his counsel regarding the
plea, as well as an inquiry of counsel for both parties "regarding the factual situation involved"
and their "recommendations." (!d.). In the final judgment entry filed on September 20,2010, the
court determined that petitioner was a "Sexually Oriented Offender" and sentenced him to a fiveyear term of imprisonment. (!d.).

State Appeal Proceedings
With the assistance of his trial counsel, petitioner filed a timely notice of appeal to the
Ohio Court of Appeals, Fourth Appellate District. (!d., Ex. 12). In the brief filed by counsel on
petitioner's behalf, petitioner claimed as the sole assignment of error that the trial court erred in
denying his motion to dismiss the three sexual battery counts charged in Case No. 10-CR-38
because his "interactions with the alleged victim did not rise to the level of an in loco parentis
relationship." (!d., Ex. 13). On March 30, 2011, the Ohio Court of Appeals issued a Decision
and Judgment Entry overruling the assignment of error and affirming the trial court's judgment.
(!d., Ex. 15).

Petitioner's counsel pursued a timely appeal on petitioner's behalf to the Ohio Supreme
Court based on the same claim of error that had been raised on direct appeal. (See id., Exs. 1617). On July 8, 2011, the Ohio Supreme Court declined jurisdiction to hear the case. (!d., Ex.
19).

4

Federal Habeas Corpus

Petitioner commenced the instant federal habeas action in October 2011. He alleges two
grounds for relief:
Ground One: Conflict between Courts/Jurisdictions.
Supporting Facts: The Fourth District Appellate Court arbitrarily ruled against
the Eighth District Appellate Court. It created a conflict of jurisdiction between
two appellate courts. This denies the petitioner his basic rights of Due Process
(Fifth Amendment- U.S. Constitution) and Equal Protection under the Law
(Fourteenth Amendment- U.S. Constitution).
Ground Two: Failure to define "in loco parentis."
Supporting Facts: Disagreement among District Appellate Courts, i.e. - the
Fourth District has found a very minimal relationship to be sufficient whereas the
Eighth District has found a far more pervasive to be insufficient. Depriving
petitioner ofhis rights of Due Process (Fifth Amendment- U.S. Constitution) and
of Equal Protection under law (Fourteenth Amendment- U.S. Constitution).

(Doc. 3, pp. 6, 8). 2 Petitioner essentially claims that he is entitled to habeas reliefbased on the
two grounds that he has asserted in the petition "[b]ecause the count to which he has pled no
contest is insufficient to show 'in loco parentis' relationship," an essential element ofthe sexual
battery offense. (See id., p. 12).
In the return of writ filed in response to the petition, respondent contends that to the

extent that plaintiffs claims raise issues of state-law, his grounds for relief are not cognizable in
this federal habeas proceeding. (See Doc. 8, pp. 8-11). Respondent also argues that petitioner
waived any claim challenging the sufficiency of evidence supporting the in loco parentis element
of the sexual battery offense when he entered his no contest plea. (!d., p. 11). Finally,

2

It is noted that although petitioner alleges that the Court of Appeals' decision in the instant case conflicted
with a decision by a court in Ohio's Eighth Appellate District, the conflicting state-court decision that he has cited in
support of his claims for relief was actually issued by a court in Ohio's Third Appellate District. (See Doc. 3,
"Memorandum In Support," pp. I, 6-7) (citing State v. Stout, No. 8-07-12,2008 WL 170034 (Ohio Ct. App. 3 Dist.
Jan. 22, 2008)).

5

----------------------------------------------------

respondent contends that to the extent petitioner alleges as a federal constitutional matter that the
indictment in Case No. 10-CR-38 was insufficient to inform him of the sexual battery charges
lodged against him, his claim lacks merit. (!d., pp. 12-13).

II. OPINION
A. Petitioner Is Not Entitled To Relief To The Extent He Claims That The Ohio Court Of
Appeals Misapplied State Law And Created A Conflict Among The State Appellate Courts
By Ruling That The Indictment's Allegations Were Sufficient To Charge In Loco Parentis
In Grounds One and Two of the petition, petitioner claims that he was denied due process
and equal protection because the Ohio Court of Appeals found the in loco parentis allegations
contained in Case No. 10-CR-38's indictment were sufficient under Ohio law to charge a sexual
battery offense whereas another intermediate appellate court in Ohio reached the opposite
conclusion in an even more compelling case. (See Doc. 3, pp. 6, 8). As support for that claim,
petitioner relies on a decision by the Ohio Court of Appeals, Third Appellate District, in State v.

Stout, No. 8-07-12, 2008 WL 170034 (Ohio Ct. App. Jan. 22, 2008). (See id., "Memorandum In
Support," pp. 1, 6-7).
In both the instant case and Stout, the state appellate courts were presented with and
addressed an issue of state-law-i.e., whether the trial court properly ruled on the defendant's pretrial motion to dismiss sexual battery charges based on the "special in loco parentis pleading
requirements" enunciated by the Ohio Supreme Court in State v. Noggle, 615 N.E.2d 1040 (Ohio
1993). (See id., Ex. 15, pp. 6-9; Stout, supra, 2008 WL 170034, at *3-6). Specifically, in

Noggle, the Ohio Supreme Court held that "[t]he phrase 'person in loco parentis' in R.C.
2907.03(A)(5) applies to a person who has assumed a dominant parental role and is relied upon
by the child for support," and "was not designed for teachers, coaches, scout leaders, or any other
persons who might temporarily have some disciplinary control over a child." Noggle, 615

6

N.E.2d at 1042. 3 Noting that the "[t]he phrase 'person in loco parentis' is a general phrase
demanding specificity," the court also held that indictments "based upon the alleged offender's
status as a person in loco parentis should at least state the very basic facts upon which that status
is based." !d.
In Stout, the Third Appellate District court held that the trial court did not err in granting

a motion to dismiss an indictment, which charged that the offender's in loco parentis status was
based on his "ongoing relationship" with the victim "as she confided to him her problems and
family issues;" the fact that the victim's parents entrusted defendant with the victim's "care and
protection as he was listed on the High School emergency contact list, above other family
members, as a person who could travel to [the victim's] school to sign her out;" the fact that the
victim "was permitted by her parents and the school to go home with the Defendant," and that
while in his company, was "routinely entrusted" to his "care and protection, given her significant
medical needs;" and the fact that the victim's parents regularly relied on the defendant to help
with the victim's "emotional, psychological, and physical healing process." Stout, supra, 2008
WL 170034, at *5-6. In so ruling, the Stout court acknowledged in accordance with a Tenth
Appellate District court decision, which the majority found was "not inconsistent" with Noggle
and could be considered together with Noggle as establishing "a consistent and functional
framework for evaluating allegations of in loco parentis," that (1) "provision for the material
needs of the child" is not required to satisfY the Noggle pleading standard; and (2) "temporary

3

As the Ohio Court of Appeals noted in the instant case (Doc. 8, Ex. 15, p. 7 n.2), after the Ohio Supreme
Court issued its decision in Noggle, the Ohio legislature amended Ohio Rev. Code § 2907.03 to extend sexual
battery "offender" status to those who are teachers, coaches, scout leaders, and persons "with temporary or
occasional disciplinary control" over the minor victim. See Ohio Rev. Code § 2907.03(A)(7)-(9).

7

custody or residence" as a visitor in the defendant's home does not preclude a finding of in loco

parentis. See id. at *4-5 (discussing State v. Funk, No. 05AP-230, 2006 WL 1102803 (Ohio Ct.
App. Apr. 27, 2006), appeal dismissed, 854 N.E.2d 1091 (Ohio 2006)). The court held,
however, that the indictment's allegations were insufficient "to meet the basic elements of in
loco parentis as set forth in the Noggle and Funk decisions" in the absence of any allegation "that
Stout assumed the dominant parental role and that he was relied upon by the child for support."

Id. at *6.
In the instant case, the Ohio Court of Appeals upheld the trial court's decision to deny the
petitioner's motion to dismiss. The court concluded that the indictment satisfied the Noggle
pleading standard because it expressly charged that petitioner "was a person in loco parentis to
the minor victim by virtue of the fact that the minor was staying in his home, that [he] had been
given authority over the minor victim by her grandmother custodian, and that [he] was providing
support, care and supervision of the minor victim." (Doc. 8, Ex. 15, p. 8). The court reasoned:
"These basic facts support an inference that Appellant assumed a dominant role over the child
and that the child relied upon the defendant for support." (!d., p. 9). In ruling that the trial court
"correctly denied" the motion to dismiss, the Ohio Court Appeals refused to consider additional
facts relayed by petitioner in his appellate brief regarding his relationship with the victim. (Id. ).
The court stated that petitioner's account "went beyond the facts that were before the [trial] court
at the time it ruled on [the] motion to dismiss" and, thus, was "more properly suited to a
challenge to the sufficiency of evidence, rather than to the sufficiency of the allegations of the
indictment." (!d.).
As an initial matter, as respondent has argued in the return of writ, this Court lacks
jurisdiction to consider petitioner's claims to the extent he contends that the Ohio Court of

8

Appeals' decision in this case is incorrect under Noggle and conflicts with other state court
interpretations and applications of Noggle. This Court has jurisdiction to review the state
prisoner's habeas petition only on the ground that his challenged confinement violates the
Constitution, laws or treaties of the United States. See 28 U.S.C. § 2254(a); Pulley v. Harris,
465 U.S. 37, 41 (1984); see also Wilson v. Corcoran,_ U.S._, 131 S.Ct. 13, 16 (2010) (quoting

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) ("it is not the province of a federal court to
reexamine state-court determinations on state-law questions"). Here, the Ohio Supreme Court's

Noggle decision, as well as the Third Appellate District's decision in Stout, concerned a pleading
issue governed by Ohio law. Therefore, to the extent petitioner seeks relief on the ground that
the state appellate court in the instant case misapplied Noggle or failed to issue a decision that
was consistent with Stout, he raises issues of state-law only that are not subject to review in this
federal habeas proceeding. Cf Watley v. Warden Bobby, No. 1:09cv306, 2010 WL 3257662, at
*2 (S.D. Ohio July 6, 2010) (Merz, M.J.) (Report & Recommendation) ("whether the Indictment
is defective under Ohio law is irrelevant in a federal habeas corpus case"), supplemented by 2010
WL 3257650 (S.D. Ohio July 15, 2010) (Merz, M.J.), adopted, 2010 WL 3257647 (S.D. Ohio
Aug. 17, 2010) (Beckwith, J.); see also Dobert v. Davis, No. 06-14031,2008 WL 5481185, at
*2-3 (E.D. Mich. Dec. 31, 2008) (holding that the habeas petitioner's contention that a state
parole board's decision to deny parole "conflict[ed] with [a state] statute and interpretative case
law" did not give rise to a cognizable claim for relief to the extent that the petitioner alleged that
the parole board misapplied state law).
Plaintiff has not cited, nor could the undersigned find, any cases even remotely suggesting
that the lack of uniformity in decisions by courts within a state on state-law issues gives rise to a
claim of federal constitutional dimension. Indeed, to the contrary, the Supreme Court has stated

9

that "the Constitution of the United States does not guarantee that the decision of state courts
shall be free from error, ... ; or require that pronouncements shall be consistent." Worcester

Cnty. Trust Co. v. Riley, 302 U.S. 292, 299 (1937) (emphasis added); see also Gray v. Pagano,
287 F. App'x 155, 158 (3rd Cir. 2008) (same). Therefore, the undersigned is persuaded that to
the extent petitioner contends that he is entitled to relief simply because the Ohio Court of
Appeals' decision in the instant case conflicted with another intermediate state appellate court's
decision, he has not stated a cognizable claim subject to review in this federal habeas proceeding.

Cf United States ex rel. Howard v. Uchtman, No. 04 C 2185,2005 WL 1498851, at *5 (N.D. Ill.
May 19, 2005) (rejecting the petitioner's claim that he was denied due process by a state
appellate court order that "was in conflict with prior decisions" of that court because, in the
absence of any factual allegations suggesting a violation of federal law, the mere allegation that
two appellate court decisions "were in conflict" did not give rise to a cognizable claim for federal
habeas relief).
In any event, even assuming, solely for the sake of argument, that petitioner had stated a
cognizable claim stemming from the alleged conflict between the two state appellate courts, the
undersigned finds the Third Appellate District's Stout decision to be factually distinguishable
from and not at all conflicting with the Ohio Court of Appeals' decision in the case-at-hand.
Both courts applied the Noggle standard. Moreover, the Stout court expressly held that in loco

parentis status could be found in cases such as this, where the defendant had only temporary
custody of the victim as a guest in his home and likely did not provide any financial support to
the victim. The two courts reached different outcomes because, in contrast to the instant case,
the Stout indictment did not allege facts from which an inference could be drawn that the
defendant had dominant parental authority over the victim or that the victim herself actually

10

relied on the defendant for support. Because the two cases are factually distinguishable and do
not involve the application of conflicting legal standards, petitioner is unable to prevail on any
claim that the different outcome reached in this case deprived him of his due process or equal
protection rights.
Accordingly, in sum, the undersigned concludes that petitioner is not entitled to habeas
corpus relief to the extent he claims in Grounds One and Two of the petition that he was denied
due process and equal protection when, in violation of state law and in conflict with another state
intermediate appellate court, the Ohio Court of Appeals affirmed the denial of his motion to
dismiss the sexual battery charges in Case No. 10-CR-38.

B. Petitioner Is Not Entitled To Relief To The Extent He Challenges The Sufficiency Of
The Indictment In Case No. 10-CR-38 On Federal Constitutional Grounds
In the petition, petitioner appears to raise an over-arching claim challenging the
sufficiency of the indictment pertaining to the in loco parentis element of the sexual battery
counts in Case No. 10-CR-38 on federal constitutional grounds. (See Doc. 3, p. 12).
As respondent has pointed out in the return of writ (Doc. 8, p. 12), it is well-settled that
there is no federal constitutional right to an indictment in state criminal proceedings. Hurtado v.

California, 110 U.S. 516, 537-38 (1884); see also Branzburg v. Hayes, 408 U.S. 665, 688 n.25
(1972); Koontz v. Glossa, 731 F.2d 365, 369 (6th Cir. 1984) ("The law is well settled that the
federal guarantee of a grand jury indictment has not been applied to the states. . . . It is also well
settled in this Circuit that the Constitution does not require any particular state indictment rule.").

Cf Watson v. Jago, 558 F.2d 330, 337 (6th Cir. 1977); Fears v. Miller, No. 1:09cv698, 2009 WL
6315341, at *9 (N.D. Ohio Dec. 1, 2009) (Report & Recommendation), adopted, 2010 WL
1258096 (N.D. Ohio Mar. 30, 2010); Harsh v. Warden, Chillicothe Carr. Inst., No. 1:08cv433,

11

2009 WL 3378246, at *1, *20 (S.D. Ohio Oct. 15, 2009) (Beckwith, J.; Black, M.J.). As long as
"sufficient notice of the charges is given in some ... manner" so that the accused may adequately
prepare a defense, the Fourteenth Amendment's Due Process Clause is satisfied. Koontz, 731
F.2d at 369; Watson, 558 F.2d at 338; see also Williams v. Haviland, 467 F.3d 527, 535 (6th Cir.
2006).
Petitioner has not alleged, nor does the record demonstrate, that the indictment in Case
No. 10-CR-38 failed to provide him with sufficient notice of the essential elements of the sexual
battery charges, including the in loco parentis element of the offenses, for the purpose of
preparing an adequate defense. Indeed, as respondent has argued in the return of writ (Doc. 8, p.
13), it appears clear from the record that the indictment contained sufficient factual allegations to
apprise petitioner of the charges he faced, as well as of the "very basic facts" required by state
law upon which his alleged "offender" status as a person in loco parentis was based. See Noggle,
615 N.E.2d at 1042.
Accordingly, in the absence of any allegations or evidence in the record even remotely
suggesting that petitioner lacked fair notice of the sexual battery charges brought against him, his
claim generally challenging the sufficiency of the indictment fails to give rise to a cognizable
federal constitutional claim subject to review in this federal habeas proceeding.
C. Petitioner Waived Any Claim Challenging The Sufficiency Of Evidence When He
Knowingly And Voluntarily Pleaded No Contest To The Sexual Battery Charge
In the memorandum submitted in support of his habeas corpus petition, petitioner
contends the evidence alleged by the State is insufficient to establish petitioner's in loco parentis
status because the 17-year-old victim was his adult step-son's "girlfriend" and "was present in
[his] home only as a guest of his adult step-son." (Doc. 3, "Memorandum In Support," p. 2).

12

Petitioner also appears to challenge the victim's claim that she was sexually assaulted by him
"over a period of several hours, once while [his] two pre-teen sons were in the same room
watching television, but oblivious to the supposed ongoing assault." (/d.). Plaintiffs claims
challenging the sufficiency of the evidence, as opposed to the sufficiency of the indictment, are
not subject to review in this proceeding.
A guilty or no-contest plea involves a waiver of many substantial constitutional rights,
including the right to a trial by jury where the State has the burden of proving the defendant's
guilt beyond a reasonable doubt, the right to confront adverse witnesses, and the right to present
evidence in one's defense. Fautenberry v. Mitchell, 515 F.3d 614, 636 (6th Cir. 2008) (citing

Boykin v. Alabama, 395 U.S. 238, 243 (1969)). There is "no constitutional requirement that the
State prove the guilt of a defendant who pleads no contest." Post v. Bradshaw, 621 F .3d 406,
427 (6th Cir. 2010), cert. denied, 131 S.Ct. 2902 (2011). By forfeiting one's right to a jury trial,
as well as the rights to confront adverse witnesses and to present evidence in one's defense, a
criminal defendant waives any objection to the sufficiency of the evidence. See id. at 426-27; see

also Render v. Warden, S. Ohio Carr. Facility, No. 1:10cv629, 2012 WL 3627766, at *4 (S.D.
Ohio Aug. 22, 2012) (Spiegel, J.); cf United States v. Whitelaw, 376 F. App'x 584, 592 (6th
Cir.), cert. denied, 131 S.Ct. 349 (2010).
Here, the Ohio Court of Appeals reasonably determined in affirming the trial court's
judgment that claims challenging the sufficiency of evidence are unrelated to and have no
bearing on the question whether the indictment's allegations are sufficient to charge a criminal
offense. (See Doc. 8, Ex. 15, pp. 9, 10). As discussed above, petitioner has not demonstrated he
is entitled to federal habeas relief to the extent he challenges the sufficiency of the indictment
either on state or federal constitutional grounds. Petitioner has never claimed that his no contest

13

plea was entered unknowingly, unintelligently, or involuntarily. Therefore, his plea forecloses
relief to the extent he also seeks to challenge the sufficiency of the evidence in the instant action.

IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 3)
be DENIED with prejudice.
2. A certificate of appealability should not issue in this case because petitioner's claims
for relief, which have been adjudicated on the merits herein, do not rise to the level of a "viable
claim of the denial of a constitutional right" and are not "adequate to deserve encouragement to
proceed further." See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle,
463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting
this Report and Recommendation would not be taken in "good faith," and, therefore, DENY
petitioner leave to appeal in forma pauperis upon any showing of financial necessity. See Fed.
R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date:

sj3o/; ;;z...
cbc

~X~

Karen L. LitkoVitZ
United States Magistrate Judge

14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
THOMAS B. BUTLER,
Petitioner
vs

Case No. 1: 11-cv-734

Barrett, J.
Litkovitz, M.J.

WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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