Steele v. Warden London Correctional Facility

Filing 10

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is therefore again respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 7/25/2016. Signed by Magistrate Judge Michael R. Merz on 7/6/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JULIAN T. STEELE,
Petitioner,

:

- vs -

Case No. 1:15-cv-349
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

TERRY TIBBALS, Warden,
London Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 8) to the
Magistrate Judge’s Report and Recommendations (“Report,” ECF No. 6). Judge Barrett has
recommitted the case for reconsideration in light of the Objections (Recommittal order, ECF No.
9).
The Petition pleads ten grounds for relief, but the Objections relate only to Ground One
which reads:
GROUND ONE: The Abduction Convictions Violated The Due
Process Clause Of The Fifth And Fourteenth Amendment Of The
U.S. Constitution Because There Was Insufficient Evidence To
Establish Each And Every Element Of The Offense Of Abduction
Pursuant To O.R.C. § 2905.02 Beyond A Reasonable Doubt.

In the Report, the Magistrate Judge noted the two levels of deference that federal habeas
courts are required to give to state court findings of sufficiency of the evidence (Report, ECF No.

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6, PageID 515-17). Then the Report quoted verbatim the First District Court of Appeals decision
on the merits of this claim of insufficiency:
Steele first challenges the sufficiency of the evidence in support of
his abduction convictions under R.C. 2905.02(A)(1) and
2905.02(A)(2), respectively. The Ohio Supreme Court implicitly
overruled Steele's sufficiency argument in State v. Steele, 2013Ohio-2470 (June 18, 2013). As it pertains to the R.C.
2905.02(A)(1) charge, the court determined that Steele had taken
R.M. into custody when he took the child from school, in
handcuffs, and transported him to a police station in "the caged
back seat of a police cruiser." Id. at ¶ 4. The court further
determined that "there is nothing in the record to support the
proposition that Steele had anything even approaching probable
cause to arrest when he took • • • [RM.] out of school in
handcuffs." Id. at ¶ 35. Thus, we are compelled to conclude that
there was sufficient evidence to support Steele's conviction for
abduction under R.C. 2905.02(A)(1). See State v. Jenks 61 Ohio
St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
(Report, ECF No. 6, PageID 517, quoting State v. Steele, Case No. 100637 (1st Dist. Dec. 13,
2013)(unreported, copy at State Court Record, ECF No. 3, PageID 307-08.)) The Report noted
further that the Petition had made “no argument as to why this decision of the First District is an
objectively unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979) . . .” Id. at
518. The Report also noted that Steele, although represented by counsel, had never filed a reply
to the Return of Writ. Id.
Now, however, Steele makes a Jackson argument in his Objections. Steele first notes
that the First District did not deal with his sufficiency of the evidence of abduction assignment of
error the first time that court had the case. Instead, having granted Steele relief on his Fourth
Assignment of Error, it found this First Assignment moot and declined to address it. State v.
Steele, 2011-Ohio-5479, ¶ 23, 2011 Ohio App. LEXIS 4543 (1st Dist. Oct. 28, 2011),, citing
Ohio R. App. P. 12(A)(1)(c).
The State of Ohio appealed and the Ohio Supreme Court reversed the appeals court
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decision on the Fourth Assignment of Error and “remand[ed] the cause to the First District Court
of Appeals for consideration of the additional assignments of error that were mooted by its
original holding.” State v. Steele, 2013-Ohio-2470, ¶ 38, 138 Ohio St. 3d 1, (2013).
After the First District rendered this opinion, Steele moved for reconsideration. On the
sufficiency of the evidence assignment of error, it wrote:
Steele first challenges the sufficiency of the evidence in support of
his abduction convictions under R.C. 2905.02(A)(1) and
2905.02(A)(2). The Ohio Supreme Court implicitly overruled
Steele's sufficiency arguments in State v. Steele, Slip Opinion No.
2013-Ohio-2470 (June 18, 2013). As it pertains to the R.C.
2905.02(A)(1) charge, the court determined that Steele had taken
R.M. into custody when he took the child from school, in
handcuffs, and transported him to a police station in "the caged
back seat of a police cruiser." Id. at 4. The court further
determined that "there is nothing in the record to support the
proposition that Steele had anything even approaching probable
cause to arrest when he took•• • [R.M.] out of school in handcuffs."
Id. at 35. Thus, we are compelled to conclude that there was
sufficient evidence to support Steele's conviction for abduction
under R.C. 2905.02(A)(1). See State v. Jenks 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus.
State v. Steele, Case No. 100637 (1st Dist. Jan. 29, 2014)(unreported, copy at State Court Record,
ECF No. 3, PageID 355.)

As will be readily seen, this is a verbatim copy of the original ruling

in December 2013 quoted above. The court then added, as it had in the December decision:
In regard to the R.C. 2905.02(A)(2) charge, the Supreme Court
determined that Steele had knowingly coerced a false confession
from R.M., and that Steele had used the confession to form the
basis for a criminal complaint that culminated with R.M. being
placed in a juvenile detention facility. And R.M. testified that he
was fearful at the time. This was sufficient evidence to sustain a
conviction for the R.C. 2905.02(A)(2) charge. See id. Based on the
Supreme Court's decision in Steele, we overrule Steele's first
assignment of error.

In his Objections, Steele makes two constitutional claims about this decision. First of all
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he asserts the First District committed constitutional error when it “relied on the Ohio Supreme
Court decision rather than the trial record when it decided there was sufficient evidence to
support the abduction convictions.

Its failure to examine the trial record amounted to an

objectively unreasonable application of Jackson v. Virginia.” (Objections, ECF No. 8, PageID
536.)
Secondly, he asserts “the First District’s reliance on the Ohio Supreme Court’s decision
to hold that the evidence was sufficient violated Petitioner’s due process rights because he never
had the notice nor the opportunity to brief and argue that issue before the Ohio Supreme Court.”
Id. at PageID 537.
Steele cites no authority for the proposition that a state appeals court, considering a
Jackson issue on remand from a state supreme court, must, as a matter of constitutional law,
examine or re-examine the trial court record to decide a sufficiency question. Nothing in
Jackson prescribes the process that a state appeals court must follow in deciding a sufficiency of
the evidence issue. Steele would be entitled to habeas corpus relief on this Objection only if he
could show that the First District’s application of Jackson violated the holding in Jackson. In
determining whether a state court decision is contrary to or an unreasonable application of
clearly established Supreme Court precedent, a federal court may look only to the holdings, as
opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state court
decision. Lockyer v. Andrade, 538 U.S. 63, 71, (2003); Goodell v. Williams, 643 F.3d 490 (6th
Cir. 2011).
Steele’s second constitutional objection is flatly contradicted by the record. After the
First District made its decision on reconsideration, Steele could and did appeal to the Ohio
Supreme Court (Notice of Appeal, State Court Record, ECF No. 3, PageID 311; Memorandum in

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Support of Jurisdiction, State Court Record, ECF No. 3, PageID 313-23). Thus Steele had every
opportunity to raise his sufficiency of the evidence claim in the Ohio Supreme Court.
Entirely apart from these two Objections, Steele’s actual argument about sufficiency of
the evidence is very sketchy. At the beginning of the Objections, he makes the argument that
“the mental state of an offender is part of every criminal offense in Ohio, except those that
explicitly impose strict liability.” (Objections, ECF No. 8, PageID 533, citing State v. Colon,
118 Ohio St. 3d 26 (2008).1) The Objections then proceed to assert that the required mens rea
for abduction is knowingly and it is not a strict liability offense. Id. at PageID 534. That
assertion is of course well taken – the face of the statute requires proof that the offender acted
knowingly. But Steele makes no argument that record does not support a finding that he acted
knowingly. The Ohio Supreme Court found as a matter of fact that Steele “took R.M. out of
school in handcuffs, placed him in an interrogation room, and blatantly intimidated him with dire
threats directed at his entire family, including his school-aged siblings.” Steele, 2013-Ohio2470, ¶ 34. What evidence in the record makes that an unreasonable determination of fact, given
the evidence presented? See 28 U.S.C. § 2254(d)(2).

Conclusion

Steele has not established that the Report is contrary to law.

It is therefore again

respectfully recommended that the Petition be dismissed with prejudice. Because reasonable
jurists would not disagree with this conclusion, Petitioner should be denied a certificate of
appealability and the Court should certify to the Sixth Circuit that any appeal would be
1

This decision was substantially modified at 119 Ohio St. 3d 204, but not on this point.

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objectively frivolous and therefore should not be permitted to proceed in forma pauperis.

July 6, 2016.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of 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 fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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