Steele v. Warden London Correctional Facility

Filing 18

SUBSTITUTED REPORT AND RECOMMENDATIONS ON FIRST GROUND FOR RELIEF - The Magistrate Judge respectfully recommends that the First Ground for Relief be dismissed with prejudice. The Magistrate Judge has already recommended that the other Grounds for Re lief be similarly dismissed and Petitioner filed no objections. 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 10/14/2016. Signed by Magistrate Judge Michael R. Merz on 9/26/2016. (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.

SUBSTITUTED REPORT AND RECOMMENDATIONS ON FIRST
GROUND FOR RELIEF

This habeas corpus case is before the Court for decision on the merits of Petitioner’s First
Ground for Relief.

Petitioner has Forfeited His Objections on Ground Four

Represented by retained counsel, Julian Steele filed a Petition asserting ten grounds for
habeas corpus relief (Petition, ECF No. 1, PageID 8-12).

The undersigned recommended

dismissing the entire Petition with prejudice (Report and Recommendations, ECF No. 6).
Petitioner objected only as to the First Ground for Relief (Objection, ECF No. 8). See, for
example,
The record establishes that the decision of the First District was an
objectively unreasonable application of Jackson v. Virginia, 443
1

U.S. 307 (1979) in its determination that Petitioner’s convictions
for abduction were based upon sufficient evidence. The
procedural postures of Petitioner’s state case reveals how the Ohio
state courts failed to properly apply Jackson v. Virginia, and
instead engaged in a game of hot potato with the abduction
convictions.

(Objection ECF No. 8, PageID 533, emphasis supplied)

CONCLUSION
Thus, this Court should overrule the Report & Recommendations
as it relates to ground one.
Id. at PageID 537 (emphasis supplied). The intimidation conviction, the basis of the Fourth Ground
for Relief, is mentioned nowhere in the Objection.

After Petitioner filed his Objection, Judge Barrett recommitted the case for
reconsideration based on the Objection (ECF No. 9). In a Supplemental Report and
Recommendations, the Magistrate Judge addressed the sole remaining Ground for Relief,
Ground One, specifically noting that it was the only Ground on which objection was made (ECF
No. 10, PageID 540). In objecting to the conclusions in the Supplemental Report, Steele again
addressed only the abduction conviction challenged in the First Ground for Relief (See, e.g., ECF
No. 11, PageID 552, stating “[t]his Court should overrule the Supplemental R&R as it relates to
ground one, . . .”)
The recommendation on the First Ground was then withdrawn because the record was
incomplete and the Warden was directed to supplement the record (ECF No. 13). That has now
occurred (ECF No. 14), the Warden has filed a Supplemental Answer (ECF No. 15), and the
Petitioner has filed a Reply (ECF No. 16).
2

In the Reply, however, the Petitioner argues both the First and Fourth Grounds for Relief,
arguing that “[t]he intimidation conviction is not supported by sufficient evidence.” (Reply, ECF
No. 16, PageID 1891-93.)
As noted above, the original Report recommended dismissing Ground Four with
prejudice (ECF No. 6, PageID 519). Petitioner’s time to object to that recommendation expired
on May 23, 2016, and no objection was made. Although Steele objected on Ground One, that
objection does not preserve possible objections to other portions of the Report.
The Sixth Circuit has held that a general objection has the same effect as a failure to file
altogether. Howard v. Sec. of HHS, 932 F.2d 505 (6th Cir. 1991). The reason is that failure to
focus the district court’s attention on any specific issues makes the initial reference useless and
undermines the purpose of the Magistrate’s Act. Howard, 932 F.2d at 509. A petitioner who
fails to make specific objections to a magistrate judge’s report forfeits his right to appeal the
aspects of the report to which he did not object. See Thomas v. Arn, 474 U.S. 140, 155 (1985);
Frontier Ins. Co. v. Blaty, 454 F.3d 590, 596-97 (6th Cir. 2006). The failure to file specific
objections is a waiver of right to raise issues on appeal. Alspaugh v. McConnell, 643 F.3d 162,
166 (6th Cir. 2011); Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004); Miller v. Currie, 50
F.3d 373, 380 (6th Cir. 1995); United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Mattox v.
City of Forest Park, 183 F.3d 515, 519 (6th Cir. 1999).

By failing to object to any portion of

the initial Report except that portion dealing with Ground One, Steele has forfeited any
objections to the recommendation that Ground Four be dismissed.
Substituted Report will therefore discuss only Ground One.

3

The balance of this

Ground One: Insufficient Evidence to Support Conviction for Abduction

In his First Ground for Relief, Steele asserts there is insufficient evidence to support his
conviction for abduction. That Ground 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.
(Petition, ECF No. 1.) The Warden defends this claim on the merits.
In his Reply, Petitioner divides his First Ground for Relief into three sub-claims. First of
all, he claims he was denied due process of law because the First District (1) decided his
insufficient evidence claim without examining the trial record and (2) did not give him notice
and a meaningful opportunity to defend his insufficient evidence claims. Next, he asserts that
there is on the record as a whole insufficient evidence to convict. This Report will consider
those sub-claims seriatim.

Sub-claim One: Denial of Due Process in State Court Consideration of the Insufficient
Evidence Claim

Steele was indicted on one count of abduction in violation of Ohio Revised Code §
2905.02(A)(1) and one count of abduction in violation of Ohio Revised Code §
2905.02(A)(2)(Counts 1 and 2 of the Indictment, State Court Record, ECF No. 3, Exh. 1, PageID
23-24). This of course provided him with notice of the charges and his initial opportunity to

4

defend as required by the Due Process Clause of the Fourteenth Amendment. 1
Steele was convicted by a jury and appealed to the First District Court of Appeals, raising a
number of evidence-based assignments of error including that the trial court should have granted
a motion for judgment of acquittal and that there was insufficient evidence to convict
(Assignments of Error One and Two, Appellant’s Brief, ECF No. 3, Exh. 6, PageID 47).
Steele’s Brief contains numerous record citations (See, e.g., PageID 52). Because it reversed and
remanded the abduction convictions, the First District found these two assignments of error moot
and declined to address them. State v. Steele, 2011-Ohio-5479, ¶ 23, 2011 Ohio App. LEXIS
4543 (1st Dist. Ohio 2011).
The State of Ohio appealed to the Ohio Supreme Court on the questions of law embedded
in the reversal: the jury instruction on privilege, the application of the crime of abduction to a
police officer, and the plain error question (Memorandum in Support of Jurisdiction, State Court
Record, ECF No. 3, Exh. 16, PageID 124). Steele requested and received the right to file a
delayed appeal and raised as a Proposition of Law that “the conviction is against the manifest
weight of the evidence.” Id. at PageID 172. However, the Ohio Supreme Court did not accept
jurisdiction on that Proposition (Entry, State Court Record, ECF No. 3, Exh. 22, PageID 194). In
deciding the issues before it, the Ohio Supreme Court wrote
[**P3] On May 26, 2009, police officer Julian Steele was
indicted on ten counts, including abduction, intimidation,
extortion, rape, and sexual battery. The charges stemmed from
Steele's investigation of a series of six robberies that occurred in
the same neighborhood in Cincinnati, Ohio. Shortly after one of
the robberies, a resident in the neighborhood saw a vehicle driving
suspiciously. The resident provided the vehicle's license-plate
1

There is no Due Process requirement for a state to use a grand jury to initiate felony proceedings. Hurtado v.
California, 110 U.S. 516 (1884); Branzburg v. Hayes, 408 U.S. 665, 687-88 n. 25 (1972); Gerstein v. Pugh, 420
U.S. 103 (1975).

5

number

to

police,

who

linked

the

vehicle

to

A.M.

[**P4] The state presented evidence at trial that once Steele
became aware that A.M. had children, he went to their school,
arrested three children, and had their lockers searched. One of
those children was R.M. Steele took R.M. into custody by
handcuffing him and placing him in the caged back seat of a police
cruiser.
State v. Steele, 138 Ohio St. 3d 1 (2013). The Ohio Supreme Court then reversed the judgment
of the Court of Appeals 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.” Id.
On remand the First District considered the four remaining, previously mooted,
assignments of error. As to the sufficiency of evidence assignment, 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), 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.
State v. Steele, Case No. C-100637 (1st Dist. Dec. 12, 2013)(unreported, copy at ECF No. 3, Exh.
32, PageID 307, et seq.)
Steele again appealed to the Ohio Supreme Court, but did not raise insufficient evidence
as a proposition of law. Instead he claimed that as a matter of law “[i]t is a violation of the Due
Process Clause to treat the offense of abduction as a strict liability offense when it is applied to a
6

police officer that makes an arrest without probable cause.” (Memorandum in Support of
Jurisdiction, ECF No. 3, Exh. 34, PageID 317.) The Ohio Supreme Court declined jurisdiction
on May 14, 2014 (Entry, ECF No. 3, Exh. 36, PageID 339).
In the meantime, Steele had filed a motion for reconsideration in the First District,
claiming the court of appeals was required to “analyze the evidence that relates to what the
defendant knew at the time Maxton was detained, otherwise the abduction offense is treated as a
strict liability offense for police officers that make arrests without probable cause.” (Motion,
ECF No. 3, Exh. 37, PageID 340.) The First District set aside its December 13, 2013, judgment
but then overruled the sufficiency of the evidence of abduction assignment using the same
language it had used in its prior decision. State v. Steele, Case No. 100637 (1st Dist. Jan. 29,
2014)(unreported, copy at ECF No. 3, Exh. 39, PageID 354 et seq.) Steele again appealed to the
Ohio Supreme Court, but that court again declined jurisdiction (Entry, State Court Record, ECF
No. 3, Exh. 43, PageID 400).
Steele’s claim is that the First District affirmed his abduction convictions without
examining the trial record. He asserts in his Reply that he made the following argument in his
Motion for Reconsideration to the First District, “[t]he remand to address the sufficiency of the
evidence argument requires this court to address the evidence for each and every element of the
offense, including the requisite mental state.” (Reply, ECF No. 16, PageID 1879, citing “APX,
Exhibit 37, Doc. No. 3, PageID 326.”) What actually appears in the State Court Record at
PageID 326 is a page of the First District’s Judgment of December 12, 2013. Obviously, the
purportedly quoted language does not appear at the cited place.
The quoted language actually appears in the body of the Motion and concludes “[t]hus
this Court is required to address what Steele knew and when he knew it. If this Court fails to

7

address the requisite mental state, at the time Maxton was arrested, this Court is treating the
abduction offenses as strict liability offenses.” (Motion for Reconsideration, ECF No. 3, Exh. 37,
PageID 343.) That is a very different argument from claiming, as Steele does in his Reply, that
Jackson supra, requires an appellate court, in reviewing a sufficiency claim, to follow some
specified process and then “show its work” by producing an opinion that shows it followed the
required steps.
Steele claims in conclusory fashion that “failure to examine the trial court record to
determine evidence sufficiency was an unreasonable application of Jackson v. Virginia, (Reply,
ECF No. 16, PageID 1880). However, his Reply does not point to any portion of the Jackson
decision in which the Supreme Court mandated that an appellate court prove it had reviewed the
whole record. Steele admitted that the trial court record was in fact before the First District when
it decided the case on remand (Motion for Reconsideration, State Court Record, ECF No. 3, Exh.
37, PageID 346: “There is a sufficient record for this Court to examine Steele’s mental state at
the time he made the arrest . . .”) Nothing in Jackson requires a state appellate court to
memorialize its sufficiency finding in a particular way. Steele’s first sub-claim is therefore
without merit.

Sub-claim Two: Lack of Sufficient Notice and Opportunity to Defend

Steele also claims he lacked constitutionally sufficient notice that the Ohio Supreme
Court was going to “decide” his sufficiency of the evidence claim. This claim centers on the
language in the First District’s decision on remand that “[t]he Ohio Supreme Court implicitly
overruled Steele’s sufficiency arguments . . .” (1st Dist. Judgment Entry of Jan. 29, 2014, ECF

8

No. 3, Exh. 39, PageID 355).
That language should not be overread. The First District clearly understood that the
sufficiency of the evidence question had been remanded to it for its decision in the first instance.
Immediately before the quoted language from the Supreme Court, the First District wrote:
It is necessary to address the issues on remand from the Ohio
Supreme Court that we had held to be moot in Steele’s direct
appeal to this court. Specifically, we must address (1) whether
defendant-appellant Julian Steele’s abduction convictions were
supported by sufficient evidence. . . .

Id. at PageID 354-55. Thus the First District knew it had to decide the assignment of error.
There is nothing unconstitutional in its choice to quote language from the Ohio Supreme Court
opinion that accurately reflects what is in the record and embodies sufficient facts to support the
conclusion that there was sufficient evidence. The Ohio Supreme Court knew it had not decided
the issue because it remanded the assignment of error as undecided. The First District knew the
Ohio Supreme Court had not decided the issue as it says expressly that it must decide if there
was sufficient evidence. It does not treat the Supreme Court’s language as somehow establishing
the law of the case or the “implicit overrul[ing]” as somehow part of the mandate. Rather, it
decided the sufficiency of the evidence question itself but quoting Ohio Supreme Court
observations on the facts.
Moreover, Steele provides no authority for the proposition that he was entitled to any
more opportunity to defend. He had made his defense to the abduction charges at trial. He had
appealed, raising and briefing the sufficiency of the evidence question. That assignment of error
was first mooted by the First District, then rendered unmoot by the Ohio Supreme Court and
remanded, placing Steele in the same position he was in before the State of Ohio won reversal in
the Ohio Supreme Court. The Constitution does not even mandate a direct appeal in the first
9

instance. McKane v. Durston, 153 U.S. 684 (1894), cited as still good law in Lopez v. Wilson,
426 F.3d 339, 355 (6th Cir. 2005). “Due process does not require a State to provide appellate
process at all.” Goeke v. Branch, 514 U.S. 115, 120 (1995). A fortiori, it does not mandate an
opportunity to re-brief an assignment of error on remand from a state supreme court. Steele’s
second sub-claim is without merit.

Sub-claim Three: The Abduction Convictions Are Not Supported by Sufficient Evidence

Standard for Insufficiency of the Evidence Claims

An allegation that a verdict was entered upon insufficient evidence states a claim under
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc).
In order for a conviction to be constitutionally sound, every element of the crime must be proved
beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing 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 . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United
States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in
Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law which

10

determines the elements of offenses; but once the state has adopted the elements, it must then
prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge
should be assessed against the elements of the crime, not against the elements set forth in an
erroneous jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S. Ct. 709, 193 L. Ed.
2d 639 (2016).
In cases such as Steele’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to
groups who might view facts differently than we would. First, as in
all sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier
of fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir.
11

2011)(en banc); Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012). Notably, “a court may
sustain a conviction based upon nothing more than circumstantial evidence.” Stewart v.
Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, "it is the responsibility of
the jury -- not the court -- to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury's verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury."
Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d
311, 313 (2011) (per curiam). And second, on habeas review, "a
federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062 (2012)(per curiam).
The Warden raises no procedural defenses to this claim, but defends on the merits
(Supplemental Return, ECF No. 15, PageID 1860).

The Abduction Charges

Steele was convicted by a jury of violating Ohio Revised Code § 2905.02(A)(1) and
(A)(2) which provide
(A) No person, without privilege to do so, shall knowingly do any
of the following:
(1) By force or threat, remove another from the place where the
other person is found;

12

(2) By force or threat, restrain the liberty of another person under
circumstances that create a risk of physical harm to the victim or
place the other person in fear;

Steele begins by making the point that neither of these crimes is a strict liability crime.
Each requires that the alleged offender acted “knowingly.” Steele’s argument is that he cannot
have acted knowingly because he was following police policy:
A police officer that acts in accordance to policy cannot have the
mental state of “knowingly” to commit a criminal offense because
their mental state is to follow police policy. As a result, Petitioner,
as a police officer whose actions are consistent with policy, could
not have had the requisite mental state to criminally abduct
Maxton.
(Reply, ECF No. 16, PageID 1884.) That is not the law. Rather, the Ohio Supreme Court aptly
summarized the law of privilege for a police officer making an arrest when it wrote:
A police officer has a right conferred by law to execute a
warrantless arrest of any person who the police officer has
reasonable cause to believe is guilty of certain enumerated
offenses, including theft offenses and offenses of violence. R.C.
2935.03(B)(1). A police officer has reasonable or probable cause
to arrest when the events leading up to the arrest, "viewed from the
standpoint of an objectively reasonable police officer, amount to"
probable cause. Ornelas v. United States, 517 U.S. 690, 696, 116
S.Ct. 1657, 134 L.Ed.2d 911 (1996). Probable cause exists when
there are facts and circumstances within the police officer's
knowledge that are sufficient to warrant a reasonable belief that the
suspect is committing or has committed an offense. Beck v. Ohio,
379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), citing
Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed.
543, T.D. 3686 (1925). If an arrest is made without probable cause,
the arrest is constitutionally invalid. State v. Timson, 38 Ohio St.2d
122, 127, 311 N.E.2d 16 (1974). . . .
[A] police officer is not automatically stripped of statutory
privilege and exposed to criminal liability if a court finds in
hindsight that the officer made an arrest on less than probable
cause. When looking at a police officer's liability in the civil
context, privilege is lost when "a reasonable official would
understand that what he is doing violates [a clearly established]
13

right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034,
97 L.Ed.2d 523 (1987). We find this principle to be applicable to
the context of a police officer's authority to arrest, pursuant to R.C.
2935.03, and correspondingly, the officer's "privilege" as defined
in R.C. 2901.01(A)(12). Accordingly, a police officer does not lose
the privilege to arrest merely because probable cause is lacking.
However, the police officer loses the privilege to arrest when a
reasonable police officer would understand that probable cause is
lacking.
State v. Steele, 138 Ohio St. 3d 1 (2013). Steele offers no authority suggesting this is not a
correct statement of the law involved.

The Evidence

In his last set of Objections, Steele asserted that the trial record is “full of facts related to
what [he] was thinking prior to making a decision to arrest.” (ECF No. 11, PageID 551.)
However, counsel had given no record reference to those facts, either in the Petition or the
Objections. The Magistrate Judge accordingly ordered Steele to “file a reply which must contain
record references to any and all testimony on which Petitioner relies to show a violation of 28
U.S.C. § 2254(d)(2).” (Order, ECF No. 13, PageID 556.) In his Reply, Steele has filed numerous
references to (1) a secretly-recorded conversation between Steele and Police Officer Robert
Randolph (Reply, ECF No. 16, PageID 1883-84, 1897-1932 2) and the testimony of Detective
Calvin Mathis (Id. at PageID 1884, 1886-90). There is no testimony from Steele about probable
cause or what he was thinking at any given time because he did not testify at all.
The State’s first witness at trial was Detective Calvin Mathis (Trial Tr. ECF No. 14-1,

2

The document filed at ECF No. 17-1 appears to be a transcript of that conversation. As filed, it is not authenticated
in any way. It is not part of the State Court Record filed by the Warden and Petitioner has not moved to expand that
record. However, assuming the authenticity of the transcript as filed here, the conversation was heard by the jury
and there is no bar to its being considered here arising from Cullen v. Pinholster, 563 U.S. 170 (2011).

14

PageID 919). In the spring of 2009, he worked with Detective Steele. Id. at PageID 920. At
that time there had been a series of aggravated street robberies in the Northside area of
Cincinnati to which Steele was assigned. Id. Mathis and Steele had an apartment they rented
together at 5720 Winton Road, Apartment 305. Id. at PageID 921. Mathis identified an arrest
report for Ramone Maxton’s arrest that is in issue. Id. at PageID 927. Steele asked Mathis to go
with him to interview Ramone Steele. Id. at PageID 937. Other than the fact that the suspect
was identified as a black male, there was nothing to lead Mathis to believe Ramone Maxton
could have been involved in the robbery of Anthony Barrett. Id. at PageID 940-41. Likewise
there was nothing in the description of the person who robbed Todd Bronnert that led Mathis to
believe the suspect could have been Ramone Maxton. Id. at PageID 946-47.
Mathis went with Steele to take three young boys into custody at Riverside Academy on
May 7, 2009. Id. at PageID 951. All three, including Ramone Maxton, were taken to the police
district station in handcuffs in the rear of police cruisers. Id. at PageID 953. Mathis was of the
opinion that, even though these individuals were confined in the rear of police cruisers from
which they could not alight on their own, they were not under arrest. Id. at PageID 956. On their
way to pick up these three minors, Steele told Mathis nothing that would constitute probable
cause for arrest. Id. at PageID 983.
Assistant Prosecuting Attorney Meghan Shanahan presented the aggravated robbery case
against Marcus Miller to the grand jury. She learned from Steele that a license plate seen on a
car under suspicion in connection with these robberies came back registered to Alicia Maxton.
Id. at PageID 1039. Steele told her it was his experience that car used for this kind of crime
were often being used by the children of the registered owner. Id. Ramone Maxton, Lamont
Green, and Anthony Griffin were identified by Steele as teenage boys living with Alicia Maxton.

15

Id. at PageID 1039-40. After getting the minors pulled out of class and taking them to District
5, Steele told Shanahan he immediately excluded Green as a suspect. Id. at PageID 1042.
Ramone denied any involvement and Steele told him that if he didn’t tell Steele what Steele
“want[ed] to hear about these robberies, I am going to charge your mother. I am going to charge
you, I am going to lock your mother up, and she is going to get convicted of this.” Id. at PageID
1042-43. This persuaded Ramon to admit he was in the car that night. Id. at PageID 1043.
Then he went to Lamont Green who denied Ramone was involved. Id. at PageID 1044.
Steele told Shanahan that Alicia Maxton came in the next morning and brought her
boyfriend, Marcus Miller, whom she accused of the robberies. Id. at PageID 1046. During this
conversation before Shanahan presented the Miller case to the grand jury on May 15, 2009,
Steele told Shanahan on three occasions that he “knew Ramone was innocent, but I had to make
sure Alicia cooperated with this. He [Steele] repeatedly told me he knew that Ramone Maxton
had nothing to do with these aggravated robberies.” Id. at PageID 1047.
Immediately after talking to Steele, Shanahan learned from Alicia Maxton that Ramone
was still locked up. Id. at PageID 1051. Ms. Shanahan recounted what happened next:
I went back into what we call the bubble, the room where Julian
Steele was sitting. And I asked him in a very aggressive manner:
Under what theory and in what world he thought that it was
appropriate to leave a boy locked up for eight days when he knew
that child was innocent and had nothing do with these crimes.
Q. And what did he say?
A. Again, I was very aggressive and, therefore, he was very
defensive. He immediately said, well, you know, I wasn't sure that
he didn't have anything to do with it. And I said, what are you
talking about? You told me three times you knew that he was
innocent. And he said, well, I was 80 to 90 percent sure that he
didn't have anything to do with it, but I wasn't completely sure.

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I said, he told you he had nothing to do with it. Anthony Griffin
told you that he had nothing to do with it. His mother told you that
he had nothing to do with it. What left any question? And he went
on to say, well, Ramone knew how much money they had gotten in
the crime and how it went down. And I said that's because Ramone
Maxton and his mother told you that these two perpetrators came
home and bragged about their crime. That is how Ramone knew
about how much money the two actual perpetrators got and how
the crime had gone down. I said so why did you think that he had
anything to do with this? Why did you leave him locked up? And
he just looked at me and said, "well" -- and that was it.

Id. at PageID 1052-53. She also testified that what Steele had done to Ramone Maxton would
be “clearly” considered placing him in custody under the law of Ohio. The jury later learned
from Alicia Maxton that Steele had a sexual motive for keeping Ramone in jail and that by the
time he talked to Shanahan, he had already persuaded Ms. Maxton to perform oral sex on him.
Id. at PageID 1381.
The question of whether an arresting officer had probable cause to make an arrest is an
objective question, not a subjective one. Probable cause to make an arrest exists if the facts and
circumstances within the arresting officer’s knowledge “were sufficient to warrant a prudent man
in believing that the [arrestee] had committed or was committing an offense.” Beck v. Ohio, 379
U.S. 89, 91 (1964). In general, the existence of probable cause is a jury question unless there is
only one reasonable determination possible. Yancey v. Carroll County, Ky., 876 F.2d 1238 (6th
Cir. 1989). Probable cause is to be assessed from the perspective of the reasonable officer on the
scene, rather than with the 20/20 vision of hindsight. Kostrzewa v. City of Troy, 247 F.3d 633,
639 (6th Cir. 2001), quoting Graham v. Connor, 490 U.S. 386, 394 (1989).
“On habeas review pursuant to § 2254, a ‘court faced with a record of historical facts that
supports conflicting inferences [and a fortiori findings] must presume—even if it does not
affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of
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the prosecution, and must defer to that resolution.’” Blackmon v. Booker, 696 F.3d 536, 538 (6th
Cir. 2012), quoting McDaniel v. Brown, 558 U.S. 120 (2010). From the testimony it heard, the
trial jury concluded Steele took Ramone Maxton into custody without probable cause and
therefore lost the immunity which a police officer has when he arrests with probable cause. The
First District’s affirmance, though summary and couched in words quoted from the Ohio
Supreme Court’s decision, resolves the probable cause question against Steele. Steele has failed
to show that decision was an unreasonable determination of the facts in light of the evidence
presented. Therefore the Third Sub-claim of the First Ground for Relief should be dismissed
with prejudice.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
First Ground for Relief be dismissed with prejudice.

The Magistrate Judge has already

recommended that the other Grounds for Relief be similarly dismissed and Petitioner filed no
objections. 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.

September 26, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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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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