Hunter v. Attorney General of State of Ohio

Filing 41

REPORT AND RECOMMENDATION that petitioner's 1 Petition for Writ of Habeas Corpus be Denied with prejudice. A certificate of appealability should issue only with respect to the prosecutorial misconduct claims in Ground One, which were address ed on the merits herein, challenging the prosecutor's remarks during rebuttal closing argument that were objected to at trial. On the other hand, a certificate of appealability should not issue with respect to the prosecutorial misconduct claim s alleged in Ground One, which this Court has concluded are waived and thus procedurally barred from review. Similarly, a certificate of appealability should not issue with respect to the claim alleged in Ground Three, which this Court has concluded is waived and thus procedurally barred from review. Finally, a certificate of appealability should not issue with respect to the claim alleged in Ground Two, which was addressed on the merits herein, because petitioner has not stated a "viable claim of the denial of a constitutional right," nor are the issues presented in that ground for relief "adequate to deserve encouragement to proceed further." Any appeal of this matter would be taken in good faith, and therefore should Grant petitioner leave to appeal in forma pauperis upon a showing of financial necessity. Objections to R&R due by 5/23/2017. Signed by Magistrate Judge Karen L. Litkovitz on 5/9/2017. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TRACIE M. HUNTER,
Petitioner,

Case No. 1:16-cv-561
Black, J.
Litkovitz, M.J.

vs.
OHIO ATTORNEY GENERAL, et al.,
Respondents.

REPORT AND
RECOMMENDATION

Petitioner, Tracie M. Hunter, a former judge on the Hamilton County, Ohio, Juvenile
Court, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the
assistance of counsel. In the petition, petitioner challenges her conviction and sentence for
“Having An Unlawful Interest in a Public Contract” as charged in Count 6 of the indictment
returned in Hamilton County Court of Common Pleas Case No. B-1400110. 1 (Doc. 1; see also
Doc. 12, Exs. 25-26). Respondents are the Ohio Attorney General, the Hamilton County Court
of Common Pleas, and Hamilton County Common Pleas Court Judge Patrick Dinkelacker. (See
Doc. 8 n.1, at PAGEID#: 60; Doc. 21). This matter is before the Court on the petition; the Ohio
Attorney General’s return of writ with exhibits; the return of writ filed by the Hamilton County
Court of Common Pleas and the Honorable Patrick Dinkelacker; petitioner’s brief in reply to the
respondents’ returns of writ; the sur-reply brief filed by the Hamilton County Court of Common
Pleas and the Honorable Patrick Dinkelacker; and petitioner’s sur-rebuttal brief. (Docs. 1, 12,
27, 32, 39, 40). 2
1

Petitioner, who was sentenced to a six-month jail term and one year of community control (see Doc. 12,
Exs. 25-26), has not yet begun to serve her sentence. Execution of sentence was stayed during the pendency of
petitioner’s state appeal and is now stayed during the pendency of the instant habeas corpus proceeding. (See Doc.
1, at PAGEID#: 1-2; Doc. 4).
2

In addition, the Ohio Attorney General has separately filed the trial transcript, and petitioner has filed

I. PROCEDURAL BACKGROUND
State Trial Proceeding
In January 2014, the Hamilton County grand jury returned an eight-count indictment in
Case No. B-1400110 charging the petitioner with two counts of tampering with evidence in
violation of Ohio Rev. Code § 2921.12(A)(2) (Counts 1 and 3); two counts of forgery in
violation of Ohio Rev. Code § 2913.31(A)(2) (Counts 2 and 4); two counts of having an
unlawful interest in a public contract in violation of Ohio Rev. Code § 2921.42(A)(1) (Counts 56); and two counts of theft in office in violation of Ohio Rev. Code § 2921.41(A)(2) (Counts 78). (Doc. 12, Ex. 1). The grand jury issued a second indictment in Case No. B-1400199
charging petitioner with the additional offense of misuse of credit cards in violation of Ohio Rev.
Code § 2913.21(B)(2). (Id., Ex. 2). The two indictments were consolidated. (See id., Ex. 12).
The matter proceeded to trial before a jury, which was unable to reach a verdict on eight
of the nine criminal charges. 3 Petitioner was convicted only of the offense charged in Count 6 of
the indictment in Case No. B-1400110. That count charged that “from on or about [July 25,
2013] to on or about [August 30, 2013],” petitioner, “a public official, knowingly authorized, or
employed the authority or influence of her office to secure the authorization of any public
contract, to wit: AN EMPLOYMENT CONTRACT, in which [petitioner], a member of her
family, or any of her business associates had an interest.” (Id., Ex. 1, at PAGEID#: 115-16)
(emphasis in original omitted). The Ohio Court of Appeals, First Appellate District, provided
the following summary of the trial proceedings leading to petitioner’s conviction on Count 6,
which includes a summary of the evidence presented at trial to establish petitioner’s guilt on that
exhibits to supplement the record provided as part of the Ohio Attorney General’s return of writ. (See Docs. 13, 2829).
3

Those eight charges were eventually dismissed by the State, with leave of the trial court, on January 19,
2016. (See Doc. 12, Exs. 28-29).

2

charge, the proceedings that were held after the verdict on Count 6 was returned, and the
sentence that was ultimately imposed: 4
In 2010, Hunter ran for a judgeship in the Hamilton County Juvenile Court.
Following litigation over the counting of provisional ballots, she was determined
to have won the election and was sworn in on May 25, 2012.
Over time, employees in the prosecutor’s office noticed what they believed to be a
pattern of Hunter backdating certain entries. These employees suspected that
Hunter was backdating the documents with the specific intention of depriving
their office of the ability to timely appeal the decisions. After an internal
investigation concluded, the Hamilton County prosecuting attorney asked the
common pleas court to appoint special prosecutors to investigate the activity. The
common pleas court appointed two special prosecutors, who conducted their own
investigation and eventually convened a special grand jury to assist them. At the
conclusion of the investigation, the grand jury indicted Hunter on nine counts
involving several alleged instances of illegal conduct while in office.
The Termination Proceedings against Steven Hunter
The sixth count of the indictment alleged that Hunter had an unlawful interest in a
public contract. . . . According to the testimony presented during trial, the charge
stemmed from the termination proceedings against Steven Hunter, an employee of
the Hamilton County Juvenile Court’s Youth Center (“Youth Center”) and
Hunter’s brother.
Steven Hunter was employed as a juvenile corrections officer. On July 7, 2013,
Steven Hunter was involved in an incident in which he was alleged to have hit a
youth in the intake department of the detention center. As a result of that
incident, Dwayne Bowman, the superintendent of the Youth Center,
recommended that the court terminate Steven Hunter and that a hearing be
scheduled for that purpose.
Steven Hunter was informed of the decision on July 25, 2013. Shortly after 10:30
that evening, Hunter sent an email to all employees of the Youth Center in which
she identified a number of safety concerns, which she said had been brought to
her attention as a result of an email she had sent out previously. She said that she
would schedule a closed meeting to discuss the issues with the corrections
4

The Ohio appellate court summarized the facts in its direct appeal decision issued January 15, 2016. (See
Doc. 12, Ex. 56). 28 U.S.C. § 2254(e)(1) 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 the petitioner rebuts the presumption by “clear and
convincing evidence.” In the absence of clear and convincing evidence to rebut the Ohio Court of Appeals’ factual
findings quoted below, the appellate court’s findings are presumed to be correct. See McAdoo v. Elo, 365 F.3d 487,
493-94 (6th Cir. 2004).

3

officers.
Bowman testified that the email was troubling. He said that he was concerned
that the email “would cause confusion with the staff at the youth center. Mr.
Hunter’s termination process was still occurring and I believe that it could
jeopardize that process.” Bowman noted that many of the items on Hunter’s list
echoed the main explanations that Steven Hunter had given for his actions during
the July 7 incident, suggesting that the email was Hunter’s way of inserting
herself into the proceedings. Brian Bell, assistant superintendent of the Youth
Center, had similar concerns, testifying that he felt that “she was going to speak to
the residents about it to conduct basically her own investigation.”
On July 29, 2013, Hunter sent an email to Bowman in which she requested that he
send her a number of documents. The email demanded
copies of all incident reports related to [the youth] and any and all
JCOs involving [the youth] and other staff, prior or subsequent to
alleged incident with JCO Hunter. All incidents reported during
any time frame that [the youth] was detained at the Youth Center,
shall be included.
Please provide copies of all drug tests performed of [the youth]
during all times at Youth Center. Medical reports of any positive
drug tests shall also be included, including the substance detected.
Please forward all copies of all incidents reported involving [the
youth] with police.
Bowman replied by asking Hunter if she wanted only the incident reports, or if
she also wanted “other documents related to our investigation.” Bowman testified
that he had asked that clarifying question because Hunter was requesting
documentation that was “above and beyond the information that we would
normally provide to someone not directly involved in the investigation or
someone from the investigative team.” He was concerned at that point and was
“trying to protect the integrity of the disciplinary process, of the investigation, ***
and also to give the judge the opportunity to clarify that she was not asking for
that kind of information, but just the information of the incident.” Rather than
restraining her query, Hunter replied that she wanted “all documentation of every
incident and every employee pertaining to [the youth] during his stay at the Youth
Center ***.”
Bowman testified that this exchange was very stressful for him. He said that he
was greatly concerned because “[i]t was something that I had not experienced
before for a judge to be directly involved in an incident here at the Youth Center.
Certainly the fact that this was the brother of the judge.” Likewise, Bell testified
that he had never seen a judge directly involved in the disciplinary process of a
4

Youth Center employee. According to Bell, the types of documents provided to
Hunter would not have been provided to an employee under any circumstances.
Bowman provided the documents to Hunter that day. Steven Hunter testified that
Hunter then provided the documents to him, which he in turn brought to his
attorney that evening. His attorney testified that she only accepted some of the
documents. His attorney testified that she refused to accept some of the
documents because it would have been “unethical” for her to take them and that
she was “concerned that [she] might have to make an ethical report to the
Supreme Court about the person that gave him” the documents.
The next morning, Steven Hunter appeared with his attorney for the hearing. Bell
testified that, under normal circumstances, the first hearing is continued because
the employee receives his discovery packet at the first hearing and usually
requires time to review the documents. Steven Hunter’s counsel was able to
proceed with the hearing that day, which concluded after several hours. Steven
Hunter was eventually terminated.
The Trial and Verdict Return
After Hunter’s indictment, the case proceeded to a lengthy jury trial. After five
weeks of testimony, the jury received the case. Jury deliberations began the
afternoon of Wednesday, October 8, 2014. On Friday at 4 p.m., the jurors said
that they had reached a verdict on Count 6, but were unable to reach a verdict on
the other counts. The foreperson gave the completed verdict form to the trial
court. In open court, the trial court reviewed the document and ordered the jury to
be polled as to whether the verdict was theirs. Each member of the jury answered
affirmatively without equivocation. The trial court then said:
I’m going to - - I have indicated that this verdict will be in. We are
not indicating what the verdict is, but this verdict will be entered.
And I’m going to hand this verdict to the court reporter, . . . and
I’m going to ask him if he would seal this verdict.
Defense counsel entered no objection to the procedure employed by the trial
court. The jury then received the Howard charge—a supplemental instruction for
the court to give a deadlocked jury designed to encourage the jurors to reach a
verdict. See State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188 (1989). The trial
court dismissed the jury for the holiday weekend.
The jury returned Tuesday morning and resumed deliberations. Shortly after
noon, the jury returned to the courtroom and the foreperson informed the trial
court that the jurors could not reach a verdict on the remaining counts. Once the
trial court was satisfied that further deliberations would be fruitless, the clerk read
the verdict for Count 6 in open court. After the trial court thanked the jury for its
service, but before the jurors were excused, counsel for Hunter asked that the jury
5

be polled as to Count 6.
THE COURT: The jury has been polled. They were previously
polled and that’s it. They were polled. They were polled.
[DEFENSE COUNSEL]: I thought until the verdict was
published.
THE COURT: They were polled and they were asked whether
Count 6 was their true verdict and they indicated yes and so it’s
over. I indicated that.
The matter was continued to allow for a presentence investigation, after which
Hunter was placed on community control for one year, and was ordered to serve
180 days in the Hamilton County Justice Center.
(Id., Ex. 56, pp. 2-6, at PAGEID#: 613-17).
Petitioner was sentenced on December 5, 2014. (See id., Exs. 25-26). Prior to the
imposition of sentence, petitioner’s counsel filed a post-conviction motion for judgment of
acquittal and two motions for a new trial, which were denied by the trial court in entries filed on
November 20 and December 3, 2014. (See id., Exs. 15, 19, 20, 21, 23). In one of the motions
for new trial, petitioner contended that “the court denied her a fair trial by refusing to poll the
jury, at defense counsel’s request, after the jury’s verdict on Count 6 of the indictment was
announced in open court.” (Id., Ex. 15). The trial court denied that motion for the following
stated reasons:
1.

Once a Jury has returned a verdict and that Jury has been polled, a juror may
not later rescind the verdict.

2.

To rule otherwise would cause chaos by jeopardizing the integrity of jury
deliberations and the finality of jury verdicts.

(Id., Ex. 20).
State Appeal Proceedings
Petitioner’s trial counsel filed notices of appeal to the Ohio Court of Appeals, First
Appellate District, from the trial court’s entries filed on November 20 and December 3, 2014
6

denying petitioner’s post-conviction motions for judgment of acquittal and new trial, and new
counsel for appeal purposes filed a third notice of appeal from the trial court’s December 5, 2014
final judgment entry. (See Doc. 12, Exs. 30-32). The appeals were consolidated and placed on
the court’s accelerated calendar. (See id., Exs. 33-34).
Petitioner’s new appellate counsel filed a motion to remove the case from the accelerated
calendar and place it on the appellate court’s regular calendar. (Id., Ex. 35). Counsel contended
that given the number and importance of the issues to be raised on appeal, the parties and court
would “benefit from a full briefing” of the issues and that “a fifteen-page page limit would be
insufficient” to address them. (See id.). The court overruled petitioner’s motion, but granted
“leave for the parties to file briefs not to exceed 25 pages.” (Id., Ex. 36). 5
Thereafter, petitioner’s counsel filed a 35-page brief on petitioner’s behalf, in which three
assignments of error were asserted challenging the trial court’s (1) denial of petitioner’s motion
for judgment of acquittal, (2) refusal to poll the jury after the verdict was unsealed and
announced in open court, and (3) failure “to meaningfully cure the prosecution’s pervasive
misconduct during its rebuttal closing argument.” (See id., Ex. 39). Because the appellate brief
exceeded 25 pages, counsel also filed a motion requesting “the court to accept [petitioner’s]
brief.” (Id., Ex. 40). The court of appeals overruled the motion, struck the appellate brief that
had been filed by counsel, and ordered petitioner to file another brief that complied with the 25page limit. (Id., Ex. 42).
On July 24, 2015, petitioner’s counsel complied with the appellate court’s order by filing

5

Petitioner’s appellate counsel also filed a motion requesting disqualification of the First District Court of
Appeals and to have the Ohio Supreme Court assign an appellate court panel from outside Hamilton County to hear
petitioner’s appeal. (See Doc. 12, Ex. 37). The court denied counsel’s affidavit of disqualification and allowed the
case to “proceed before the judges of the First District Court of Appeals.” (Id., Ex. 38).

7

an amended appellate brief limited to 25 pages, 6 raising the same assignments of error that had
been presented in the stricken brief. (See id., Ex. 49). However, counsel also filed an
“Emergency Complaint for Writs of Mandamus” with the Ohio Supreme Court. (Id., Ex. 43).
Petitioner complained in that matter that her constitutional rights to due process, equal protection
and effective assistance of counsel were violated by the 25-page limit set by the Ohio Court of
Appeals. (See id., p. 9, at PAGEID#: 470). As relief, she requested the issuance of a writ of
mandamus compelling the court of appeals “to allow Judge Hunter to file her brief as originally
submitted, or in the alternative an edited brief of thirty pages.” (Id., p. 10, at PAGEID#: 471).
The State responded by filing a motion to dismiss on the grounds that (1) mandamus was “not
warranted” given that “page limits are procedural matters that fall within the sound discretion of
the court and mandamus may not be used to control judicial discretion”; and (2) petitioner “ha[d]
a remedy by way of an appeal.” (Id., Ex. 45). On January 20, 2016, the Ohio Supreme Court
granted the State’s motion to dismiss without opinion. (Id., Ex. 48).
In the meantime, the State filed a brief responding to petitioner’s amended appellate
brief. (Id., Ex. 50). Petitioner filed a motion for leave to file a reply to the State’s responsive
pleading, which was overruled on October 30, 2015. (Id., Exs. 51-52). Thereafter, on December
23, 2015 and January 3 and 13, 2016, petitioner filed three notices of additional authority. (Id.,
Exs. 53-55). On January 15, 2016, the Ohio Court of Appeals issued a Judgment Entry and
Opinion overruling petitioner’s assignments of error and affirming the trial court’s judgment.
(See id., Ex. 56).
Petitioner’s appellate counsel next timely appealed on petitioner’s behalf to the Ohio
Supreme Court. (See id., Ex. 58). In the memorandum in support of jurisdiction, counsel
6

It is noted, however, that although the appellate brief was 25 pages in length, an appendix was attached
to the brief, which included a chart detailing the 51 instances of alleged prosecutorial misconduct in the State’s
rebuttal closing argument. (See Doc. 12, Ex. 49).

8

presented five propositions of law, which included the following three claims for the court’s
consideration:
1. A criminal defendant has a statutory and constitutional right to poll the jury
after the court has unsealed a verdict and announced it in open court.
2. A criminal defendant is entitled to a new trial when the prosecution’s rebuttal
closing argument contains extensive improper comments—including making
inflammatory remarks, interjecting personal opinion, citing unsworn
testimony, asking the jury to draw negative inferences from uncalled
witnesses, and impugning the defense.
3. The First District Court of Appeals denies appellants due process and equal
protection of the law by placing cases on the accelerated calendar by default
and refusing to allow full briefing in complicated cases.
(Id., Ex. 60, at PAGEID#: 633). On May 18, 2016, the Ohio Supreme Court declined to accept
jurisdiction of the appeal. (Id., Ex. 62).
Federal Habeas Corpus Petition
In May 2016, petitioner commenced the instant federal habeas corpus action with the
assistance of counsel who had represented her in the state appeal proceedings, as well as new
counsel. (See Doc. 1). In her petition, petitioner presents three grounds for relief:
Ground One: Denial of the Fifth and Fourteenth Amendment[] right to due
process resulting from extensive prosecutorial misconduct.
Ground Two: Denial of the right to due process under the Fourteenth
Amendment to the United States Constitution as a result of the state court of
appeals’ abuse of its accelerated calendar to restrict briefing in complicated cases.
Ground Three: Denial of the right to a jury trial under the Sixth and Fourteenth
Amendments because of the trial court’s failure to poll the jury upon
announcement of the verdict in open court.
(Id., at PAGEID#: 3, 5, 7).
The respondents—the Ohio Attorney General, the Hamilton County Court of Common
Pleas, and the Honorable Patrick Dinkelacker—have filed returns of writ in response to the

9

petition. (Docs. 12, 27). Petitioner has filed a brief in reply to the returns of writ. (Doc. 32). In
addition, the Hamilton County Court of Common Pleas and the Honorable Patrick Dinkelacker
were permitted to file a “sur-reply” in response to petitioner’s reply brief, and petitioner was
permitted to file a “sur-rebuttal” brief. (Docs. 39-40; see also Docs. 33-36).
II. OPINION
A. Petitioner Is Not Entitled To Relief Based On The Claim In Ground One That She
Was Denied A Fair Trial As A Result Of Prosecutorial Misconduct
In Ground One of the petition, petitioner alleges that she was denied a fair trial when the
“special prosecutor engaged in fifty-one instances of prosecutorial misconduct” during the
State’s rebuttal closing argument. (Doc. 1, at PAGEID#: 10). Respondents contend that (1)
petitioner procedurally defaulted and has waived most of the allegations of misconduct because
she “failed to contemporaneously object at trial,” and (2) petitioner’s remaining allegations of
misconduct “are without merit.” (Doc. 12, p. 12, at PAGEID#: 82; see also Doc. 27, pp. 8-10, at
PAGEID#: 5044-46).
The Ohio Court of Appeals, First Appellate District, was the only state court to issue a
reasoned decision addressing the claim of prosecutorial misconduct that was presented by
petitioner as an assignment of error on direct appeal. In overruling the assignment of error, the
court reasoned in pertinent part as follows:
In her third assignment of error, Hunter claims that numerous instances of
prosecutorial misconduct occurred during the state’s closing argument that
deprived her of a fair trial. We disagree.
Generally, prosecutorial misconduct will not provide a basis for overturning a
criminal conviction, unless, on the record as a whole, the misconduct can be said
to have deprived the appellant of a fair trial. . . . “The touchstone of the analysis
‘is the fairness of the trial, not the culpability of the prosecutor.’” State v. Hanna,
95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 61, quoting Smith v.
Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). The test is
whether the remarks were improper and, if so, whether they prejudicially affected
substantial rights of the defendant. . . .
10

A prosecuting attorney has wide latitude to summarize the evidence and zealously
advocate the state’s position during closing argument. . . . The propriety of a
specific remark by a prosecutor must not be judged in isolation, but in light of the
tenor and context of the entire closing argument. . . . In almost all of the instances
cited by Hunter, there was no objection. She, therefore, has waived all but plain
error. . . .
We have reviewed Hunter’s argument, and the chart of 51 specific instances of
alleged improper comment, from the perspective of not just the lengthy closing
arguments presented by both sides, but also in light of the lengthy trial that
preceded them. In many of the instances, Hunter’s counsel opened the door to
comments made by the state in rebuttal with his own closing remarks. . . .
Further, the trial court repeatedly admonished the jury that closing arguments are
not evidence. . . .
The trial in this case was long and intense. The closing arguments of both sides
were equally intense. And while some of the comments may have stretched the
bounds of what is acceptable in closing arguments, the record does not support the
conclusion that the arguments of the state deprived Hunter of a fair trial.
(Doc. 12, Ex. 56, pp. 12-13, at PAGEID#: 623-24) (most Ohio case citations omitted).
1. Petitioner Procedurally Defaulted And Has Waived Most Of The Allegations Of
Prosecutorial Misconduct Because She Did Not Object To Those Specific Instances
of Alleged Impropriety That Occurred During Rebuttal Closing Argument
As an initial matter, as respondents have argued and the Ohio Court of Appeals found,
petitioner procedurally defaulted most of her allegations of prosecutorial misconduct because she
failed to object to the majority of the special prosecutor’s allegedly improper remarks at the time
they were made. The chart detailing the 51 specific instances of misconduct, which is attached
as “Exhibit A” to petitioner’s habeas petition and which was also attached as “Appendix B” to
petitioner’s state appellate brief, reflects that only sixteen of the special prosecutor’s challenged
comments were objected to by the defense at trial. (See Doc. 1, Ex. A; Doc. 12, Ex. 49,
Appendix B, at PAGEID#: 556-64).
In recognition of the equal obligation of the state courts to protect the constitutional rights
of criminal defendants, and in order to prevent needless friction between the state and federal
11

courts, a state defendant with federal constitutional claims must fairly present those claims to the
state courts for consideration before raising them in a federal habeas corpus action. See 28
U.S.C. § 2254(b)(1), (c); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard
v. Connor, 404 U.S. 270, 275-76 (1971). If the petitioner fails to fairly present her constitutional
claims through the requisite levels of state appellate review to the state’s highest court, or
commits some other procedural default that prevents a merit-based review of the federal claims
by the state’s highest court, she may have waived the claims for purposes of federal habeas
review. See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 847-48 (1999); Harris v. Reed, 489 U.S.
255, 260-62 (1989); McBee v. Grant, 763 F.2d 811, 813 (6th Cir. 1985); see also Weaver v.
Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989).
It is well-settled under the procedural default doctrine that the federal habeas court may
be barred from considering an issue of federal law from a judgment of a state court if the
judgment rests on a state-law ground that is both “independent” of the merits of the federal claim
and an “adequate” basis for the state court’s decision. See Harris, 489 U.S. at 260-62. The
Supreme Court has stated:
In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review of the claims is barred unless the prisoner can demonstrate cause for the
default, and actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner
fails to comply with a state procedural rule that required her to have done something to preserve
the issue for appellate review. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v.
Sparkman, 94 F.3d 199, 202 (6th Cir. 1996).
The Sixth Circuit employs a three-prong test, which was initially established in Maupin v.
12

Smith, 785 F.2d 135, 138 (6th Cir. 1986), to determine if a claim is procedurally defaulted under
the adequate and independent state ground doctrine:
First, the court must determine that there is a state procedural rule that is
applicable to the petitioner’s claim and that the petitioner failed to comply with
the rule. . . . Second, the court must decide whether the state courts actually
enforced the state procedural sanction. . . . Third, the court must decide whether
the state procedural forfeiture is an “adequate and independent” state ground on
which the state can rely to foreclose review of a federal constitutional claim.
Hoffner v. Bradshaw, 622 F.3d 487, 495 (6th Cir. 2010) (quoting Jacobs v. Mohr, 265 F.3d 407,
417 (6th Cir. 2001) (in turn quoting Maupin)); see also Johnson v. Bradshaw, 493 F. App’x 666,
669 (6th Cir. 2012). Under Maupin and as discussed above, if the three prerequisites are met for
finding a claim is procedurally defaulted under the adequate and independent state ground
doctrine, federal habeas corpus review of the defaulted claim is precluded unless the petitioner
can demonstrate cause for and prejudice from her procedural default or that failure to consider
the defaulted claim will result in a “fundamental miscarriage of justice.” Hoffner, 622 F.3d at
495 (citing Maupin, 785 F.2d at 138); Johnson, 493 F. App’x at 669. See also Coleman, 501
U.S. at 750; Harris, 489 U.S. at 262; Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v.
Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In this case, petitioner committed a procedural default when she failed to object to most
of the remarks cited as examples of misconduct at the time those comments were made. Ohio’s
contemporaneous objection rule is a firmly-established, adequate and independent state
procedural rule, which serves to foreclose federal habeas review when relied on by the state
courts as a basis for denying relief. See, e.g., Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir.
2011) (citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001)); White v. Mitchell, 431 F.3d
517, 525 (6th Cir. 2005) (citing Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir. 2003)); see also
State v. Murphy, 747 N.E.2d 765, 788 (Ohio 2001) (pointing out that Ohio’s “waiver rule,”
13

which “requires that a party make a contemporaneous objection to alleged trial error in order to
preserve that error for appellate review,” is “of long standing” and “goes to the heart of the
adversary system of justice”). The Sixth Circuit has repeatedly held that plain-error review by
the state appellate court “constitutes enforcement of Ohio’s contemporaneous objection rule.”
See, e.g., Williams v. Bagley, 380 F.3d 932, 968-69 (6th Cir. 2004) (and Sixth Circuit cases cited
therein); see also Goodwin, 632 F.3d at 315.
In this case, the Ohio Court of Appeals clearly and expressly enforced the state
procedural bar to review when it concluded that because petitioner did not object to “almost all
of the [cited] instances” of prosecutorial misconduct, she “waived all but plain error.” (See Doc.
12, Ex. 56, p. 13, at PAGEID#: 624). Under well-settled Sixth Circuit precedents, the state
appellate court’s plain-error review did “not constitute a waiver of state procedural default
rules.” See, e.g., Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (citing Paprocki v. Foltz,
869 F.2d 281, 284-85 (6th Cir. 1989)); see also Goodwin, 632 F.3d at 315. Cf. Buchanan v.
Bunting, No. 5:14cv1656, 2015 WL 12803743, at *8 (N.D. Ohio Sept. 8, 2015) (Report &
Recommendation) (and numerous cases cited therein) (holding that the habeas petitioner waived
his claim of prosecutorial misconduct, which was reviewed for plain error by the Ohio Court of
Appeals, because the petitioner “never objected to the prosecution’s statements during closing
arguments”), adopted, 2016 WL 6995343, *4 (N.D. Ohio Nov. 30, 2016), appeal filed, No. 164726 (6th Cir. Dec. 15, 2016). Although the Ohio Court of Appeals also arguably alternatively
reached the merits of the federal claim in this case when it found that the record did not support
petitioner’s claim that she was deprived of a fair trial, the Supreme Court has made it clear that
“the adequate and independent state ground doctrine requires the federal court to honor a state
holding that is a sufficient basis for the state court’s judgment, even when the state court also

14

relies on federal law.” See Harris, 489 U.S. at 264 n.10; see also Sochor v. Florida, 504 U.S.
527, 533-34 (1992). Cf. Wilkins v. Warden, Chillicothe Corr. Inst., No. 1:09cv781, 2010 WL
5795505, at *9 (S.D. Ohio Sept. 2, 2010) (Report & Recommendation) (citing Harris, Sochor,
and Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998)) (“If the state court clearly and expressly
relies on a procedural bar as an adequate and independent state ground for its decision, federal
habeas review is foreclosed even if the state court alternatively rules on the merits of the federal
claim.”), adopted, 2011 WL 549916 (S.D. Ohio Feb. 8, 2011). Therefore, the allegations of
misconduct that were not preserved for appeal by way of objection are waived and barred from
review unless petitioner has demonstrated cause for and prejudice from her default of those
specific claims or that a fundamental miscarriage of justice will occur if such claims are not
considered herein. See Hoffner, 622 F.3d at 497 (quoting Coleman, 501 U.S. at 750).
Petitioner has not demonstrated cause for her default in this case. She is unable to prevail
on any argument that her trial counsel’s failure to object at trial constitutes cause, because the
claim of ineffectiveness of counsel was itself defaulted by petitioner, who never raised such a
claim in the state courts. See Edwards v. Carpenter, 529 U.S. 446, 450-54 (2000).
Finally, petitioner has not demonstrated that failure to consider the defaulted claims of
misconduct will result in a “fundamental miscarriage of justice,” or in other words, that the
alleged errors “probably resulted in the conviction of one who is actually innocent.” See
Murray, 477 U.S. at 495-96; see also Schlup v. Delo, 513 U.S. 298, 327 (1995). Actual
innocence in this context requires a showing of factual innocence, not mere legal insufficiency.
See House v. Bell, 547 U.S. 518, 538 (2006); Carter v. Mitchell, 443 F.3d 517, 538 (6th Cir.
2006) (citing Bousley v. United States, 523 U.S. 614, 623 (1998)); see also Vanwinkle v. United
States, 645 F.3d 365, 369 (6th Cir. 2011). Furthermore, the Supreme Court has stated that

15

“tenable actual-innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold
requirement unless he persuades the district court that, in light of . . . new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a reasonable doubt.’” McQuiggin
v. Perkins,

U.S.

, 133 S.Ct. 1924, 1928 (2013) (quoting Schlup, 513 U.S. 298, 329 (1995));

see also House, 547 U.S. at 538 (pointing out that the Schlup actual-innocence standard is
“demanding and permits review only in the extraordinary case”) (internal citation and quotation
marks omitted). To establish a credible gateway claim of actual innocence, the petitioner must
present “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513
U.S. at 324; see also Connolly v. Howes, 304 F. App’x 412, 417 (6th Cir. 2008). No such
showing has been made in this case.
Accordingly, in sum, to the extent petitioner bases her claim of prosecutorial misconduct
on specific remarks by the special prosecutor that were not preserved for appeal by way of
objection, those particular allegations of misconduct are barred from review by this Court. The
defaulted instances of alleged misconduct may be considered only in evaluating whether any
improper, objected-to comments, when viewed in the context of the entire record, deprived
petitioner of a fair trial.
2. Petitioner Is Not Entitled To Relief Based On The Merits Of The Remaining NonDefaulted Allegations Of Prosecutorial Misconduct
Before the merits of petitioner’s remaining claims of prosecutorial misconduct may be
addressed, the Court must first determine the applicable standard of review. Petitioner has
asserted two arguments in support of her position that the claims are subject to de novo review
and are not governed by the deferential standard of review set forth in 28 U.S.C. § 2254(d),
which is applicable to claims that are adjudicated on the merits by the state courts. First,
16

petitioner contends that the Ohio Court of Appeals did not adjudicate any of her prosecutorial
misconduct claims on the merits because she was “forced to reduce her original fourteen-page
argument addressing fifty-one alleged instances of prosecutorial misconduct into fewer than four
pages in order to comply with the court’s accelerated calendar limiting her brief to twenty-five
pages.” (Doc. 40, p. 2, at PAGEID#: 5477; see also Doc. 32, pp. 55-56, at PAGEID#: 5409-10).
The undersigned is not persuaded by that argument. As discussed below in greater detail in
addressing petitioner’s corollary claim in Ground Two that she was denied a meaningful appeal,
it appears from the record that petitioner was able to present most, if not all, of her arguments in
the 25-page brief that she was permitted to file with the court and that the Ohio Court of Appeals
considered those arguments, as well as the 51 instances of alleged misconduct, in rejecting the
assignment of error. (See Doc. 12, Ex. 49, pp. 21-24, at PAGEID#: 545-48 & Appendix B; Doc.
12, Ex. 56, p. 13, at PAGEID#: 624). The fact that petitioner was limited in the presentation of
her arguments does not mean that the Ohio Court of Appeals did not adjudicate the claims of
error as argued in the brief and presented in the attached chart.
Second, petitioner contends that “even if the First District’s rejection of her prosecutorial
misconduct argument constitutes an adjudication on the merits,” the remaining claims are subject
to de novo review because the Ohio Court of Appeals made an “unreasonable determination”
under 28 U.S.C. § 2254(d)(2) by “treat[ing] the record as if defense counsel had made no
objections to any of the alleged instances of misconduct” and applying “plain error review even
for the sixteen instances of misconduct defense counsel preserved for appellate review by
objecting.” (See Doc. 40, p. 3, at PAGEID#: 5478 (emphasis in original); see also Doc. 32, pp.
56-57, at PAGEID#: 5410-11). As petitioner has pointed out, the Ohio Court of Appeals did not
separately address the merits of the instances of prosecutorial misconduct that were

17

contemporaneously objected to by defense counsel; nor did the court even attempt to distinguish
those non-defaulted claims of misconduct from the other claims of error discussed above, which
this Court has concluded were procedurally defaulted by petitioner and are barred from review as
waived. (See Doc. 12, Ex. 56, pp. 12-13, at PAGEID#: 623-24). However, contrary to
petitioner’s contention, § 2254(d)(2) applies only when the state court’s ruling involves an
unreasonable determination of the facts based on the evidence presented at trial. In this case,
however, the state court’s error arises from the court’s application of the same legal standard of
review to both the non-defaulted and defaulted allegations of misconduct. Therefore, the
remaining non-defaulted claims are not subject to de novo review under § 2254(d)(2).
The closer question, which respondents have raised, is whether the Ohio Court of
Appeals’ plain-error review amounted to an adjudication “on the merits” of petitioner’s federal
claim for the purpose of triggering deferential review under the standard set forth in 28 U.S.C. §
2254(d), which was established by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). In Fleming v. Metrish, 556 F.3d 520 (6th Cir. 2009), a Sixth Circuit panel applied the
deferential AEDPA standard in ruling on a Fifth Amendment claim that was erroneously
reviewed by the state court of appeals for plain error only. See Fleming, 556 F.3d at 530-32.
However, the panel was split on the issue, as the dissenting judge argued that the state court’s
decision was not entitled to deference and that the claim was subject to de novo review because
“the controlling rule in this circuit is that no deference is due under AEDPA where a state court
reviews a claim for plain error only, regardless of whether the court’s plain-error inquiry may
have delved into the merits of the claim.” Id. at 538-44 (Clay, J., concurring in part and
dissenting part) (citing numerous Sixth Circuit decisions). In rejecting the dissent’s position, the
majority of the court reasoned in pertinent part:

18

First, none of the cases cited by the dissent decide the question of whether a claim
reviewed for plain error by a state court dispenses with our obligation to apply
AEDPA deference to the merits of the decision reached by that court. They
instead discuss the analytically prior question of whether a federal court is
permitted to hear an issue in the first place under the doctrine of procedural
default. . . . We of course agree with these cases to the extent that they stand for
the well-established rule that a state court’s application of plain-error review does
not revive a habeas petitioner’s otherwise procedurally defaulted claim on
collateral review. But we disagree with our colleague’s view that they control not
only this court’s ability to address a habeas petitioner’s claim, but also the
appropriate standard of review to apply once we have determined that the claim is
reviewable on the merits.
Second, the question of whether a claim should be addressed on collateral review
under the judicially created doctrine of procedural default is independent of the
question of whether Congress requires deference pursuant to AEDPA. This court
declines to review procedurally defaulted claims out of respect for state-court
enforcement of state procedural rules. . . . Similarly, Congress enacted AEDPA
“to further principles of comity, finality, and federalism.”. . . But the fact that
similar concerns motivate both the procedural-default doctrine and the AEDPA
does not permit us to ignore the latter simply because the former doctrine is
deemed inapplicable. Instead, we believe that this court’s jurisprudence is
reasonably clear about when a state-court’s consideration of a claim is to be
considered “adjudicated on the merits” for the purpose of triggering our review
under AEDPA.
Id. at 530-31 (case citations omitted). The court further found that, as distinguished from other
prior Sixth Circuit precedents, the state court did not “bypass the merits” of the federal claim
when reviewing it for plain error. See id. at 531-32. While acknowledging that “there is no
authority squarely on point that decides this key issue,” the court stated:
We are persuaded . . . that we would be acting contrary to Congress’s intent to
have AEDPA “further the principles of comity, finality, and federalism” . . . if we
simply ignored the [state] Court of Appeals’ evaluation of [the petitioner’s] Fifth
Amendment claim by reconsidering the issue de novo. In sum, we see no inherent
contradiction in applying AEDPA deference to the [state] Court of Appeals’
reasoning on the merits of [the petitioner’s] claim despite our disagreement with
its ruling that the issue was procedurally defaulted. The state court’s substantive
reasoning does not simply vanish along with its erroneous procedural-default
determination. Nor does AEDPA.
Id. at 532.

19

In a subsequent case, a different Sixth Circuit panel, which was also split on the issue,
stated in a footnote that “[w]e have repeatedly held that plain-error review is not equivalent to
adjudication on the merits, which would trigger AEDPA deference.” Frazier v. Jenkins, 770
F.3d 485, 496 n.5 (6th Cir. 2014), cert. denied, 135 S.Ct. 2859 (2015). 7 Since Frazier, Sixth
Circuit panels confronted with the issue have recognized that because of the conflicting panel
decisions “there is some ambiguity over whether we apply AEDPA deference” to claims
reviewed for plain error by the state courts. Leonard v. Warden, Ohio State Penitentiary, 846
F.3d 832, 851 (6th Cir. 2017); see also Trimble v. Bobby, 804 F.3d 767, 777 (6th Cir. 2015), cert.
denied, 137 S.Ct. 41 (2016). The conflict in the Sixth Circuit case law has yet to be resolved.
Therefore, as the Leonard and Trimble panels did in the face of the prior conflicting decisions,
the undersigned will assume, without deciding, that petitioner’s remaining non-defaulted claims
were not addressed on the merits and are subject to de novo review in this proceeding. Cf.
Leonard, 846 F.3d at 851; Trimble, 804 F.3d at 777.
As the Ohio Court of Appeals recognized, petitioner is not entitled to relief unless the
special prosecutor’s alleged errors “so infected the trial with unfairness as to render the resulting
conviction a denial of due process.” See Donnelly v. DeChristoforo, 416 U.S. 637, 642-43
(1974); see also Darden v. Wainwright, 477 U.S. 168, 181 (1986) (“it is not enough that the
7

In a separate concurring opinion, one of the circuit judges in Frazier disagreed with the majority on that
point, stating that “[i]n the course of enforcing a state-law procedural-default rule, a state court may well address the
merits of the federal claim.” Frazier, 770 F.3d at 506 (Sutton, J., concurring in judgment). Judge Sutton further
opined:
We have been down this road before, and Fleming . . . tells us how to navigate it. It makes clear
as day that a state court’s plain-error review of an issue may receive AEDPA deference when the
state court addresses the merits of the federal claim. . . . As it reminds us, the question of
procedural default is “independent of the question of whether Congress requires deference
pursuant to AEDPA.” . . . The one question concerns whether we can review the claim at all; the
other concerns how we review it. The majority’s approach not only conflicts with our precedent
but also with precedent from other circuits. Lee v. Comm’r, Ala. Dep’t of Corrs., 726 F.3d 1172,
1207-10 (11th Cir. 2013); Douglas v. Workman, 560 F.3d 1156, 1170-71, 1177-79 (10th Cir.
2009).
Id.

20

prosecutor’s remarks were undesirable or even universally condemned[;]” rather, the “relevant
question” is whether the prosecutor’s challenged conduct rendered the trial fundamentally unfair
in violation of due process). The alleged misconduct must be examined within the context of the
entire trial to determine whether it deprived the defendant of a fair trial. United States v. Young,
470 U.S. 1, 11-12 (1985).
The Sixth Circuit has held that in order to prevail on a claim of prosecutorial misconduct,
the petitioner must show that the alleged misconduct was “both improper and flagrant.” See,
e.g., Smith v. Mitchell, 567 F.3d 246, 255 (6th Cir. 2009) (and Sixth Circuit cases cited therein).
Improper conduct may be found where prosecutors make statements inciting the passions and
prejudices of the jury; inject their personal beliefs and opinions into the record; argue based on
evidence not in the record; and inappropriately criticize defense counsel for objecting to
improper arguments. Bates v. Bell, 402 F.3d 635, 641 (6th Cir. 2005) (and cases cited therein).
Factors to be considered in weighing whether a prosecutor’s improper conduct is flagrant or
amounts to a due process violation are: (1) the degree to which the misconduct has a tendency to
mislead the jury and to prejudice the accused, see Darden, 477 U.S. at 182, and Young, 470 U.S.
at 12; (2) whether the misconduct is isolated or extensive, see Donnelly, 416 U.S. at 646; (3)
whether the misconduct is deliberate, see id. at 647; and (4) the strength of the competent proof
to establish the guilt of the accused, see Darden, 477 U.S. at 182. See also Smith, 567 F.3d at
256 (citing Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006); Boyle v. Million, 201 F.3d 711,
717 (6th Cir. 2000)). In addition, because the challenged remarks in this case were made in
response to defense counsel’s opening statement and closing argument, the court “must not only
weigh the impact of the prosecutor’s remarks, but must also take into account defense counsel’s
opening salvo.” United States v. Henry, 545 F.3d 367, 381 (6th Cir. 2008) (quoting Young, 470

21

U.S. at 12). If found that the special prosecutor’s challenged remarks were “‘invited,’ and did no
more than respond substantially in order to ‘right the scale,’ such comments would not warrant
reversing a conviction.” Id. (quoting Young, 470 U.S. at 12-13). The invited response rule is not
intended to excuse the improper comments made by the special prosecutor, but to determine their
effect on the trial as a whole. Young, 470 U.S. at 13. Furthermore, under the harmless-error
standard required to be applied on federal habeas review of a state conviction, the petitioner is
not entitled to relief unless the special prosecutor’s misconduct had a “substantial and injurious
effect or influence in determining the jury’s verdict.” See Broom, 441 F.3d at 412-13 (quoting
Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
It is difficult to determine from the parties’ briefs the specific instances of prosecutorial
misconduct that remain for review on the merits. However, in the chart submitted by petitioner
specifying each alleged improper remark by the special prosecutor during rebuttal closing
argument, petitioner quoted the comments subject to challenge, which were objected to by
defense counsel, and generally grouped those particular remarks into three categories involving
(1) “[i]rrelevant and inflammatory language”; (2) improper references to “unsworn statements as
evidence”; and (3) improper “[b]urden-shifting” remarks. (See Doc. 1, Ex. A; Doc. 12, Ex. 49,
Appendix B, at PAGEID# 556-58, 562-64). The undersigned will address each category of
alleged impropriety separately below, but before doing so, it is important to understand the
background of the case.
As discussed above, in addition to the charge for which petitioner was convicted, the
consolidated indictments contained eight other counts. Those eight charges involved (1) counts
of forgery and tampering with evidence, which were based on petitioner’s alleged backdating of
court documents; (2) counts of theft in office and misuse of credit cards, which were based on

22

petitioner’s use of her work credit card to pay appellate filing fees in lawsuits brought against her
in her official judicial capacity by the Hamilton County Public Defender to address her delay in
issuing rulings in certain cases; and (3) one count of having an unlawful interest in a public
contract, which stemmed from the employment of petitioner’s brother to work overtime hours for
petitioner’s chambers on April 2, 2013. (See Doc. 12, Exs. 1-2).
Petitioner’s primary defense at trial was that the criminal charges were “politically
motivated, wrong, unfair,” and “unfounded.” (See Doc. 13, Trial Tr. 870, 3582, at PAGEID#:
1573, 4285). Essentially, it was the defense’s position that baseless charges were brought
against petitioner for retaliatory and vindictive reasons, and for the sole purpose of obtaining her
removal from the Hamilton County Juvenile Court bench, because (1) petitioner, the first
African-American, female Democrat on that bench, was the successful plaintiff in a contentious,
lengthy federal lawsuit filed against the Hamilton County Board of Elections, with the Hamilton
County Prosecutor’s Office serving as the Board of Elections’ counsel, which ultimately resulted
in petitioner being declared the winner of the election for the juvenile court judgeship instead of
the initial victor, “a well–known, connected Republican”; (2) petitioner had requested an
investigation of the Hamilton County Prosecutor’s Office and had filed grievances against the
Hamilton County Prosecutor and other attorneys in that office for unethical conduct in various
matters, including their representation of petitioner in lawsuits filed against her in her official
capacity as a judge on the juvenile court; 8 and (3) as a judge, petitioner alienated many

8

Specifically, the Cincinnati Enquirer and another media outlet filed a series of lawsuits against petitioner
to challenge her rulings restricting media access to juvenile court proceedings and prohibiting the publication of
certain juveniles’ names. (See Doc. 13, Trial Tr. 1016-18, 1056-79, at PAGEID#: 1719-21, 1759-82). The
Hamilton County Prosecutor’s Office eventually withdrew as petitioner’s counsel and requested the appointment of
new independent counsel in that matter after petitioner filed grievances with the Ohio Supreme Court against the
Hamilton County Prosecutor and two assistant prosecuting attorneys in the Hamilton County Prosecutor’s Office.
(See id., Trial Tr. 1080-81, at PAGEID#: 1783-84). Additional complaints against petitioner in her official capacity
were filed by the Hamilton County Public Defender to force her to issue rulings in 13 cases pending before her.
(See id., Trial Tr. 1468-72, at PAGEID#: 2171-75). Apparently, in those lawsuits, independent counsel was

23

“powerful people” in Republican-controlled Hamilton County because she “would not submit to
arbitrary political authority” and “had the audacity and . . . the constitution to reprimand high
ranking officials in the Hamilton County . . . Juvenile Court, to challenge influential people and
even file grievances against the most powerful politician in Hamilton County” in her quest to
seek reform and change in the juvenile court system. (See id., Trial Tr. 868-70, 878-81, 887-94,
at PAGEID#: 1571-73, 1581-84, 1590-97).
In arguing for petitioner’s acquittal on all counts, defense counsel made numerous
statements in both opening statement and closing argument emphasizing petitioner’s “exemplary
life” and stellar character, as distinguished from the vindictive conduct of Hamilton County
officials who unfairly targeted petitioner for punishment because of her “noncriminal,
unprecedented, confrontational, litigious and . . . truculent behavior and attitude” in seeking
“reform and change in juvenile court to accomplish” the court’s purpose of “positive
development of children” and the “preservation of the family unit.” (See id., Trial Tr. 866-78,
3624-25, 3675-77, 3781-83, at PAGEID#: 1569-81, 4327-28, 4378-80, 4484-86). It is against
that backdrop that the special prosecutor’s challenged remarks must be evaluated.
a. Irrelevant and Inflammatory Remarks.
Five statements by the special prosecutor during rebuttal closing argument, which were
objected to at trial, have been cited by petitioner as examples of prosecutorial misconduct
involving “[i]rrelevant and inflammatory language.” They are:
1. “Maybe what Deters has to listen to is the social worker who says this child is
being sexually abused and we can’t get this child out of the home because we
can’t get Judge Hunter to rule on the case.” (Doc. 13, Trial Tr. 3816, at
PAGEID#: 4519).
2. “And the people that are adversely affected can’t appeal it because she won’t
put on the final appealable order, so the child who is still stuck in the home where
appointed to represent petitioner. (See id., Trial Tr. 1591, at PAGEID#: 2294).

24

there is sexual abuse until she –” (Doc. 13, Trial Tr. 3857-58, at PAGEID#:
4560-61).
3. “Now he [defense counsel] says she didn’t want juveniles identified by their
names under any circumstances and guess who had a problem immediately?
Well, of course, these juveniles just happen to be the six kids who beat some guy
up and hospitalized him in North College Hill because they were bored. It just so
happens that those kids –” (Doc. 13, Trial Tr. 3810, at PAGEID#: 4513).
4. “July was not a very good month for Tracie Hunter because on July 9th her
brother beat up an inmate at the detention center. And, of course, it’s awfully
coincidental when people look at whether Hunter cares if a juvenile gets beat up
in the detention center and how much she cares about everybody and her first hire
was the bailiff who had been terminated for beating children.” (Doc. 13, Trial Tr.
3861, at PAGEID#: 4564).
5. “And I would suggest to you in this case, there is no question everybody is
watching this case. Everybody is watching. And everybody is wondering what is
our system of justice about in this community?” (Doc. 13, Trial Tr. 3916, at
PAGEID#: 4620). 9
The undersigned finds that the fifth statement quoted above was not sufficiently
inflammatory to pose a risk that the jury would have been misled by it to find petitioner guilty of
the unlawful-interest-in-a-public-contract offense charged in Count 6 of the indictment in Case
No. B-1400110. The statement about “everybody” watching the case and wondering about the
“system of justice” in the community is simply too vague to trigger any concerns that petitioner
was prejudiced by it. Statements appealing to the community conscience are permissible unless
they are “calculated to incite the passions and prejudices of the jurors” or appeal “to a need to

9

In the chart listing the 51 instances of alleged impropriety, petitioner also included with that comment the
following subsequent remark by the prosecutor, which was not objected to by defense counsel: “People are looking
at this. And the real question is this: All these people I told you about downstairs on the theft cases, all these people
I told you about, all these people going to be held accountable. The question is, is a judge going to be held
accountable?” (See Doc. 1, Ex. A, at PAGEID#: 18; see also Doc. 13, Trial Tr. 3916-17, at PAGEID#: 4620-21).
Because the subsequent remark was not objected to at trial, any claim based on that statement was procedurally
defaulted and is waived. See supra pp. 11-16. Therefore, this Court will address only the comment that was
objected to by counsel. However, it is noted that both remarks were made as part of the same argument directed at
the theft-in-office and misuse-of-credit-card charges. As discussed below in addressing the objected-to comment,
the special prosecutor’s remarks were “invited” and did not rise to the level of a due process violation. They also
did not have a substantial and injurious effect or influence on the jury in determining petitioner’s guilt or innocence
on the unlawful-interest-in-a-public-contract charge involved in this case.

25

solve a wider social problem.” United States v. Lawrence, 735 F.3d 385, 432 (6th Cir. 2013)
(citing United States v. Solivan, 937 F.2d 1146, 1150, 1153 (6th Cir. 1991) (finding improper
prosecutor’s appeal to the jury’s “fear surrounding the War on Drugs” in a calculated attempt to
“arouse passion and prejudice and to inflame jurors’ emotions . . . by urging them to send a
message and strike a blow to the drug problem.”)); see also Hicks v. Collins, 384 F.3d 204, 219
(6th Cir. 2004) (holding that prosecutor’s statement that “the people in the community have the
right to expect that you will do your duty” was not improper, but was considered a “proper
general references to the societal need to punish guilty people.”). The comment in this case was
not calculated to incite the passion of the jury by appealing to the need to solve a wider social
problem. Rather, the special prosecutors’ comment did no more than request jurors to act as the
community conscience. Moreover, it appears from the record that the comment was made in the
context of arguing that petitioner should not be held to a lower standard than the general public
on the theft-in-office and misuse-of-credit-card charges. (See Doc. 13, Trial Tr. 3911-17, at
PAGEID#: 4615-21). That argument was “invited” and did no more than substantially “right the
scale,” see Young, 470 U.S. at 12-13; Henry, 545 F.3d at 381, because defense counsel had
suggested when addressing petitioner’s use of her work credit card in closing argument that a
judge in a “responsible position” of “honor and integrity” should be accorded “the benefit of
doubt with respect to credibility.” (See id., Trial Tr. 3648, at PAGEID#: 4351). In any event,
even assuming that the special prosecutor’s general remark could have inflamed the jury, which
is highly doubtful, it had no prejudicial effect because the charges of theft in office and misuse of
credit card, to which the special prosecutor’s argument was aimed, did not result in a verdict of
guilty. Rather, the trial resulted in a hung jury on those charges, which were ultimately
dismissed. The comment had no substantial and injurious effect or influence on the jury in

26

reaching its verdict of guilty on the “Having An Unlawful Interest in a Public Contract” charge
involved in this case.
As petitioner has argued, the four remaining remarks directed at attacking petitioner’s
character and conduct as a juvenile court judge were improper. The remarks were inflammatory
and thus had a tendency to mislead the jury. Moreover, as petitioner has argued (see Doc. 40, p,
8, at PAGEID#: 5483), the Court must consider the numerous other defaulted instances of
alleged misconduct by the special prosecutor that were not objected to at trial in evaluating the
following additional factors governing the flagrancy determination: (1) whether the remarks
were isolated or extensive; and (2) whether the remarks were deliberately or accidentally made. 10
See Donnelly, 416 U.S. at 646-47; Smith, 567 F.3d at 256 (and cases cited therein). Upon review
of the entire record, including the defaulted instances of alleged misconduct, the undersigned
concludes that the four inflammatory statements were not isolated and were deliberately made.
However, as the Ohio Court of Appeals also generally found (see Doc. 12, Ex. 56, p. 13,
at PAGEID#: 624), the challenged remarks were “invited” responses to the many hyperbolic
statements that defense counsel made in his own opening statement and closing argument. Cf.
Young, 470 U.S. at 12-13; Henry, 545 F.3d at 381. As discussed above, petitioner’s counsel
made numerous remarks portraying petitioner as an exemplary person who did nothing wrong
while serving as a Hamilton County Juvenile Court judge, but rather was unjustly targeted for
punishment by the “status quo” powers-that-be simply because she was assertive and stood up to
the Republican-controlled Hamilton County Board of Elections, Hamilton County Prosecutor’s
10

Petitioner has suggested that this Court should also consider a press release that the Hamilton County
Prosecutor, Joe Deters, issued two business days before trial, which allegedly “accused Judge Hunter of bearing
responsibility for the murders of two people, one of whom she refused to commit to serve detention.” (Doc. 32, p.
48, at PAGEID#: 5402; see also Doc. 40, p. 5, at PAGEID#: 5480). However, this Court’s review of the allegations
of prosecutorial misconduct is limited to the record of events that took place during the trial in the jury’s presence.
Because the press release took place before the trial and was not referred to during the trial before the jury, it is not
subject to consideration in determining whether or not petitioner was deprived of a fair trial by the special
prosecutor’s alleged misconduct during the rebuttal closing argument.

27

Office, Hamilton County Juvenile Court, media, and Hamilton County Public Defender to do
what was “right” in the best interest of children and the preservation of the family unit. (See,
e.g., Doc. 13, Trial Tr. 865-95, 919, 3671-72, 3674-78, 3760, 3781-84, at PAGEID#: 1568-98,
1622, 4342-4351, 4374-75, 4377-81, 4463, 4484-87). In addition, petitioner’s counsel made
numerous remarks impugning the conduct and motives of the Hamilton County Prosecutor and
attorneys in the prosecutor’s office as wrong, unfair, retaliatory, vindictive, politically motivated,
arrogant and hypocritical not only with respect to their participation in the bringing of the
criminal charges against petitioner, but also with respect to the Board of Elections lawsuit and
interactions between petitioner and the prosecutor’s office after she won that lawsuit and became
a judge on the juvenile court. (See, e.g., id., Trial Tr. 880-81, 888-91, 894-95, 919, 3639-60,
3684-3705, 3771-73, 3777-78, 3782-83, at PAGEID#: 1583-84, 1591-94, 1597-98, 1622, 434263, 4387-4408, 4474-76, 4480-81, 4485-86).
When viewed in that context, the prosecutor’s first two challenged remarks insinuating
that petitioner’s delay in ruling on cases posed a danger to children placed in homes where
sexual abuse was occurring constituted a direct response to defense counsel’s extensive attack on
the allegedly vindictive motives of the Hamilton County Prosecutor’s Office and Hamilton
County Public Defender and defense counsel’s contrasting portrayal of petitioner as the innocent
victim who had been unfairly sued by the public defender. Specifically, in responding to defense
counsel’s claims that Hamilton County Prosecutor Joe Deters was vindictive and motivated by
politics to seek petitioner’s ouster from the juvenile court bench, the special prosecutor presented
an alternative view of the county prosecutor’s actions and motivations. He discussed the role of
the county prosecutor whose obligations include the protection and removal of children from
homes where they are physically and sexually abused and whose duty it is to aggressively

28

prosecute those who would do harm to these children. (See id., Trial Tr. 3812-3815, at
PAGEID#: 4515-4518). The special prosecutor’s comment about Deters’ inability to remove
children from sexually abusive homes due to petitioner’s delayed rulings was made in this
context and in response to the defense’s theory of Deters’ improper political motivation. The
comments were therefore invited and mitigated against the likelihood that the jury was adversely
affected in its ability to fairly evaluate the evidence. (See id., Trial Tr. 3815-16, at PAGEID#:
4518-19).
Petitioner’s counsel also devoted a substantial part of his arguments to impugning the
conduct and motives of the Hamilton County Public Defender, Ray Faller, who was portrayed as
a “partisan” State witness who had acted unfairly and solely for political reasons with respect to
the filing of complaints against petitioner in her official capacity for delays in issuing rulings in
cases. (See id., Trial Tr. 915, 3670-83, at PAGEID#: 1618, 4373-86). In so arguing, defense
counsel emphasized that before Faller filed the lawsuits, petitioner had provided him with
“meritorious, legitimate reasons” as to why her cases were pending. (See id., Trial Tr. 3671-74,
at PAGEID#: 4374-77). The special prosecutor’s statement about petitioner’s delays in entering
final appealable orders and the impact on children living in homes where there is sexual abuse
was made in response to the defense’s argument that the Hamilton County Public Defender’s
actions against petitioner were motivated by politics and partisanship and not for any legitimate
reason:
Ray Faller, as he told you, we have got children waiting to be adopted. We have
got children waiting to go get services. We have got children waiting to be taken
out of homes or placed in homes. We have got people who want finality and we
can’t get her to rule on it.
And the people that are adversely affected can’t appeal it because she won’t put
on the final appealable order, home where there is sexual abuse until she –

29

(Id., Trial Tr. 3857, at PAGEID#: 4560). The special prosecutor’s comments were an invited
response to defense counsel’s assertion that the public defender was motivated by politics and
not for legitimate reasons.
In the remaining two statements challenged by petitioner, the special prosecutor made
remarks about (1) petitioner’s hiring of a bailiff who had previously “been terminated for beating
children,” and (2) the violent conduct of six juveniles whose identities petitioner sought to
protect from publication, which led to the lawsuits filed by the media against petitioner in her
official judicial capacity. (Id., Trial Tr. 3810, 3861, at PAGEID#: 4513, 4564).
It appears from the record that the special prosecutor’s challenged remark about
petitioner’s bailiff was made in response to many statements by defense counsel in both his
opening statement and final argument to the effect that petitioner’s actions, including those
pertaining to the Hamilton County Youth Center where the incident occurred that led to her
brother’s termination as a juvenile corrections officer (JCO), were done out of concern for the
juveniles’ safety and their welfare. (See id., Trial Tr. 883-86, 3677, 3733, 3782, at PAGEID#:
1586-89, 4380, 4436, 4485). The special prosecutor’s comment suggesting otherwise, therefore,
was invited. In any event, it is highly doubtful that the jury was misled to convict petitioner for
having an unlawful interest in her brother’s employment termination proceedings on the basis of
that comment rather than the evidence, particularly given that the trial court responded to defense
counsel’s objection by giving the following curative instruction:
What counsel says in closing argument is not evidence. The evidence that you
will decide this case is what you heard from the mouths of witnesses on the
witness stand, plus the exhibits.
You could make reasonable inferences based upon what the evidence is. You are
the sole determiner of the evidence so I will let you determine whether or not you
can make reasonable inferences based upon what the evidence is.

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(Id., Trial Tr. 3862, at PAGEID#: 4565). As discussed below in addressing the other categories
of prosecutorial misconduct alleged by petitioner, see infra pp. 38, 44, 46, that instruction was
one of many such instructions given by the trial court during the course of the parties’ closing
arguments, as well as in its final instructions to the jury, which is another factor that weighs
against a finding that the special prosecutor’s inflammatory remarks prejudicially affected the
jury’s verdict of guilty in this case.
The remark about the six juveniles was made during the course of the special
prosecutor’s rebuttal argument attacking the defense’s position that the charges were “politically
motivated” and vindictive because petitioner had taken certain actions as a juvenile court judge
that alienated “high-ranking” and “influential people” in Hamilton County, including
representatives of the news media who sued petitioner for restricting access to her courtroom.
(See id., Trial Tr. 869, 3807-10, at PAGEID#: 1572, 4510-13). The remark was specifically
directed at comments made by petitioner’s counsel in his opening statement essentially claiming
that petitioner alienated “the media” in Hamilton County when, in an effort “to protect children
and develop children positively,” she refused to permit the publication of juveniles’ names
“under any circumstances.” (See id., Trial Tr. 887, at PAGEID#: 1590). In those comments,
defense counsel also impugned the motive of the media in filing the lawsuits against petitioner
by suggesting that the media had a “problem” with petitioner’s protective order not because the
“crimes were so egregious that we want to protect the public by knowing their name[s],” but
“because we want to sell papers.” (See id.).
Defense counsel’s comments about the political nature of the charges against petitioner
and the motive of the media in filing suit against petitioner opened the door for the special
prosecutor’s remarks and lessened the effect the statement had on the jury’s ability to evaluate

31

the evidence fairly. Even if the special prosecutor’s remarks were not invited, the Court finds the
remark did not have a substantial and injurious effect on petitioner’s conviction. Following the
defense’s objection, the trial court admonished both counsel and instructed the jury, “Same
instruction, ladies and gentleman” (Id., Trial Tr. 3811, 4514), meaning the instruction that the
court reiterated numerous times during the course of closing arguments: that counsels’
arguments were not evidence and that the jury was to make its decision based on the testimony
of the witnesses and exhibits admitted into evidence. See Donnelly, 416 U.S. at 644 (stressing
curative instruction issued by trial court that arguments of attorneys were not evidence and
holding petitioner was not deprived of fair trial); United States v. Warshak, 631 F.3d 266, 306
(6th Cir. 2010) (any prejudice caused by prosecutor’s comments was either extinguished entirely
or diminished drastically by curative instructions that closing arguments were not evidence and
to disregard personal opinions of counsel); United States v. Roberts, 986 F.2d 1026, 1031 (6th
Cir. 1993) (“the prejudicial effect of improper comments may be negated by curative instructions
to the jury”). Any potential prejudice from the special prosecutor’s remarks was likely dispelled
by the court’s instruction. Indeed, the fact that the jury did not convict petitioner on the eight
other charges against her militates against a finding that the special prosecutor’s remark inflamed
the jury against petitioner or prejudicially affected the jury in reaching its guilty verdict on the
one charge contained in Count 6.
Finally, strong and substantial evidence was introduced to establish petitioner’s guilt on
the charge set forth in Count 6 of the indictment in Case No. B-1400110, which was based on
petitioner’s alleged interference with the employment termination proceedings involving her
brother, Steven Hunter. Petitioner has suggested in her reply to the returns of writ that
petitioner’s conduct was not proscribed by the applicable criminal statute, Ohio Rev. Code §

32

2921.42(A)(1). (See Doc. 32, p. 65, at PAGEID#: 5419). However, the Ohio Court of Appeals
rejected that claim on direct appeal, holding that (1) the state statute criminalizes interference by
a public official not only in the “initial hiring of a family member,” but also in “other areas of
employment, including termination proceedings”; and (2) regardless of the outcome of the
employment proceeding, the crime is complete at the moment one uses her authority or the
influence of her office to secure a family member’s continued employment. (Doc. 12, Ex. 56,
pp. 7-9, at PAGEID#: 618-20). In this federal habeas proceeding, the Court must defer to and is
bound by the state court’s ruling on those state-law issues. See, e.g., Bennett v. Warden,
Lebanon Corr. Inst., 782 F. Supp.2d 466, 478 (S.D. Ohio 2011) (and cases cited therein)
(“[B]ecause the state courts are final authority on state-law issues, the federal habeas court must
defer to and is bound by the state court’s rulings on such matters.”); Meyers v. Ohio, No.
1:14cv1505, 2016 WL 922633, at *7 (N.D. Ohio Jan. 21, 2016) (Report & Recommendation)
(citing Olsen v. McFaul, 843 F.2d 918, 929 (6th Cir. 1988)) (“federal habeas courts are bound by
decisions of intermediate state courts on questions of state law unless convinced that the state’s
highest court would decide the issue differently”), adopted, 2016 WL 916602 (N.D. Ohio Mar.
9, 2016). See also Wilson v. Corcoran, 562 U.S. 1, 5 (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”).
In this case, the following evidence was introduced to establish that petitioner committed
the offense charged in Count 6. Evidence was presented that late in the evening on July 25,
2013, the same date petitioner’s brother received notice that a recommendation had been made
for his termination as a JCO at the Hamilton County Youth Center due to an incident with a
youth that had occurred earlier that month, petitioner sent an email to employees at the youth

33

center scheduling a “closed” meeting to discuss certain issues, “several” of which had been
raised by her brother as defenses in response to the incident. (See Doc. 13, Trial Tr. 2136-41,
2334-35, at PAGEID#: 2839-44, 3037-38). Both the superintendent and assistant superintendent
of the youth center, who were excluded from the meeting, testified of concerns they had in
reaction to petitioner’s email. Specifically, the superintendent, Dwayne Bowman, testified that
the email was concerning as it exhibited a “conflict of interest” on the part of petitioner, “would
cause confusion with the staff,” and could “jeopardize” Steven Hunter’s ongoing “termination
process.” (Id., Trial Tr. 2141, at PAGEID#: 2844). The assistant superintendent, Brian Bell,
who recognized the “familial relationship between Steven Hunter and Judge Hunter,” testified
that because the administration was excluded from the meeting, he “felt as though the judge had
some direct concerns about our actions and she was going to speak to the residents about it to
conduct basically her own investigation. The staff, pardon me.” (Id., Trial Tr. 2336, 2338, at
PAGEID#: 3039, 3041).
In addition, evidence was presented that on July 29, 2013, a few days before Steven
Hunter’s August 1 termination hearing, petitioner asked Bowman to provide her with “all
incident reports” related to the individual youth involved in the incident with her brother and
“any and all JCOs” and staff involved with that youth “prior or subsequent to the incident with
JCO Hunter,” including “all incidents reported during any timeframe that [the youth] was
detained at the Youth Center.” (Id., Trial Tr. 2143-45, 2147, at PAGEID#: 2846-48, 2850).
Petitioner also asked Bowman to provide her with “copies of all incidents recorded involving
[the youth’s] encounter with police,” as well as “copies of all drug tests performed” on the youth
“during all times at the Youth Center” and “medical reports of any positive drug tests . . .
including substances detected.” (Id., Trial Tr. 2144, at PAGEID#: 2847). Bowman, who

34

testified that he was concerned about “even more of a conflict of interest” and was “trying to
protect the integrity of the disciplinary process,” replied that he would forward the “incident
reports and medical documents,” but also asked petitioner to clarify whether she wanted him to
include “the secondary documents” related to the investigation, which were “above and beyond
the information . . . normally provide[d] to someone not directly involved in the investigation.”
(Id., Trial Tr. 2147-49, 2151-52, at PAGEID#: 2850-52, 2854-55). In her response, petitioner
stated: “I would like all documentation of every incident and every employee pertaining to [the
youth] during his detention at the Youth Center, including reports made to any staff by police.”
(Id., Trial Tr. 2152, at PAGEID#: 2855). Thereafter, on July 30, Bowman provided petitioner
with the documents she had requested. (Id., Trial Tr. 2153, at PAGEID#: 2856).
Steven Hunter testified that on July 31, the night before his termination hearing and the
day after Bowman forwarded to petitioner the documents she had requested, he met with his
attorney and provided her with documents that his sister had given him. (Id., Trial Tr. 2328-30,
at PAGEID#: 3031-33). The attorney, who was called as a defense witness, testified on direct
examination that at that meeting, Steven Hunter only gave her copies of documents provided to
him at his initial hearing in the employment matter. (See id., Trial Tr. 3162-63, at PAGEID#:
3865-66). However, on cross-examination, the attorney admitted that she rejected other
documents that Steven Hunter showed her that night because she “didn’t want to be . . . involved
in anything unethical and because [she] was going to look at the documents [that would be
provided by the hearing officer] the next morning.” (See id., Trial Tr. 3171, 3174, 3177, at
PAGEID#: 3874, 3877, 3880). Moreover, the attorney affirmed that she had previously testified
before the grand jury that Steven Hunter told her where those documents came from and that she
did not accept them because she was “concerned that [she] might have to make an ethical report

35

to the Supreme Court about the person that gave him the documents.” (Id., Trial Tr. 3175-76,
3178-79, 3181, at PAGEID#: 3878-79, 3881-82, 3884).
Such evidence, when viewed as a whole, constitutes strong and substantial evidence that
petitioner “knowingly authorized, or employed the authority or influence of her office” as a
Hamilton County Juvenile Court judge “to secure the authorization” of her brother’s continued
employment at the Hamilton County Youth Center. (See Doc. 12, Ex. 1, at PAGEID#: 115-16).
Petitioner argues in her reply to the returns of writ that the evidence of guilt is weak because
three jurors, who had voted to convict petitioner, changed their minds “immediately post-trial”
and because the State “did not produce any alleged document that [petitioner] gave her brother
before his termination hearing, nor did it elicit testimony describing such document’s contents.”
(Doc. 32, pp. 65-66, at PAGEID#: 5419-20). The undersigned is not persuaded by those
arguments. The determination regarding the strength of the evidence is based on an assessment
of the evidence in the trial record, not on any reevaluation by individual jurors of their initial
verdicts. Bowman gave detailed testimony about the content of the documents requested by
petitioner. He also stated that he secured and delivered the requested documents to petitioner on
July 30, 2013. Steven Hunter testified that the next night, he provided his attorney with
documents given to him by petitioner, his sister. Steven Hunter’s attorney further testified that
she refused on ethical grounds to accept documents from Steven Hunter that had not been
previously provided at an initial hearing in the employment termination matter. Such evidence
was sufficient to show that petitioner’s conduct not only involved the delivery to her brother of
documents that had been provided to her by Bowman the previous day, but also involved, as the
Ohio Court of Appeals reasonably found in ruling on petitioner’s claim challenging the
sufficiency of the evidence, the delivery of documents “to which Steven Hunter was not

36

entitled.” (See Doc. 12, Ex. 56, p. 9, at PAGEID#: 620). Because, as a matter of Ohio law, the
criminal offense was “complete, at the latest, when [petitioner] delivered the documents to her
brother” (see id.), the evidence discussed above was more than sufficient to demonstrate that
petitioner used her authority or influence of her office as a Hamilton County Juvenile Court
judge to secure a favorable ruling in the termination proceedings pertaining to her brother.
Accordingly, in sum, upon review of the entire record and after weighing all the
applicable factors, the undersigned concludes that the five objected-to comments by the special
prosecutor during rebuttal closing argument, which have been challenged by petitioner as
“irrelevant” and “inflammatory,” did not deprive the petitioner of a fair trial and, in any event,
did not have a “substantial and injurious effect or influence in determining the jury’s verdict.”
See Broom, 441 F.3d at 412-13 (quoting Brecht, 507 U.S. at 638).
b. References to Unsworn Statements as Evidence.
Two remarks by the special prosecutor during rebuttal closing argument, which were
objected to by defense counsel at trial, have been challenged by petitioner on the ground that
they constitute improper references to “unsworn statements as evidence”:
“And you know that to be true because [defense counsel] told you that. Here’s
what he told you in his opening statement. When you listen to all of the evidence
in this case it will be clear that the charges –” (Doc. 13, Trial Tr. 3806, at
PAGEID#: 4509).
“[B]y January 25th, 2013 Tracie Hunter had established a reputation in this
community, not just in juvenile court, but in this community of exactly what
[defense counsel] says she was in his opening statement which was a judge who
won’t be controlled by –” (Doc. 13, Trial Tr. 3865, at PAGEID#: 4568). 11
Upon review of the record, it appears that the special prosecutor’s remarks sought to

11

It is noted that although the transcript refers to a date of January 25, 2013, either the special prosecutor
or the court reporter erred in that regard because it appears from the record that the statement was made in response
to arguments pertaining to events that occurred on July 25, 2013, after petitioner’s brother was informed of his
employment termination hearing.

37

emphasize the lack of evidence supporting defense counsel’s theory that the charges were
politically motivated, as well as the fact that defense counsel had himself characterized the
petitioner as confrontational and as a judge who would not be controlled or restricted by the
powers-that-be in his opening statement and closing argument. (See Doc. 13, Trial Tr. 3805-07,
3865-66, at PAGEID#: 4508-10, 4568-69). Because both were alluded to in counsel’s opening
statement, the special prosecutor’s remarks, when viewed in context, do not appear to be
improper but appear to be “appropriate comments on the ‘quantitative and qualitative
significance of the evidence.’” United States v. Gonzalez, 512 F.3d 285, 293 (6th Cir. 2008). It
was not improper for the special prosecutor to refer to statements that defense counsel had made
in arguing the defense’s position. Id.
In any event, even assuming that there was any impropriety, the special prosecutor’s first
remark was invited to “right the scale” as it was made to counter defense counsel’s extensive
arguments essentially portraying petitioner as having done nothing wrong and the Hamilton
County Prosecutor’s Office as the “poor loser” in the Board of Elections lawsuit that participated
in the bringing of baseless criminal charges against petitioner for politically motivated,
vindictive reasons in order to obtain her removal from the bench. (See id., Trial Tr. 3804-09, at
PAGEID#: 4507-12; see also id., Trial Tr. 865-82, 888-95, 919, 3639-42, 3652-55, 3659-60,
3697-98, 3704-05, 3760, 3771-72, 3777-78, 3781-83, at PAGEID#: 1568-85, 1591-98, 1622,
4342-45, 4355-58, 4362-63, 4400-01, 4407-08, 4463, 4474-75, 4480-81, 4484-86). As
distinguished from the first comment, the special prosecutor’s second remark was asserted in the
context of a different argument. Specifically, the statement was made in support of the State’s
position that there was a valid basis for Dwayne Bowman’s and Brian Bell’s concerns that
petitioner was interfering in the employment termination matter involving her brother, Steven

38

Hunter, when she sent an email on July 25, 2013 scheduling a “closed” meeting with Hamilton
County Youth Center employees, three or four hours after her brother received notice of his
recommended termination and hearing on August 1, 2013. (See id., Trial Tr. 3864-68, at
PAGEID#: 4566-71). The comment was also invited to the extent that defense counsel had
asserted in his own closing argument that the meeting referred to in petitioner’s email “was
planned months ago” and that the special prosecutor’s attempt to prove that petitioner “just came
up with this idea of a . . . meeting so that she could . . . get information to help Steve” was
“nonsense.” (See id., Trial Tr. 3729, 3731-32, at PAGEID#: 4432, 4434-35).
After defense counsel objected to the remarks, the jury was instructed, as the court
reiterated numerous times during the course of closing arguments, that counsel’s arguments were
not evidence and that the jury was to make its decision “based upon what you hear from the
mouths of the witnesses sitting on the witness stand, plus the exhibits which have been admitted
during the course of the trial.” (See id., Trial Tr. 3806-07, 3866, at PAGEID#: 4509-10, 4569).
Upon review of the entire record, and for the reasons discussed above in addressing the
prosecutor’s improper inflammatory remarks, the undersigned concludes that the two challenged
remarks generally referring to defense counsel’s own characterization of the petitioner were not
improper and, in any event, did not deprive petitioner of a fair trial or have a substantial and
injurious effect or influence in determining the jury’s verdict in this case.
c. Burden-shifting Remarks.
Finally, petitioner claims that the following statements by the special prosecutor during
rebuttal closing argument, which were objected to at trial, improperly shifted the burden of proof
from the State to the defendant:
1. “And the case we presented to you all proves that we’re not involved in the
politics because we have not put the politics into play here and we have not put
39

the people to come in here to bad mouth her and we have not brought the people
from Juvenile Court that [defense counsel] is anxious to get in here. If he wanted
all those people in here to tell you what they knew about it why didn’t he bring
them?” (Doc. 13, Trial Tr. 3808-09, at PAGEID#: 4511-12).
2. “If he [defense counsel] wants to be critical of why we didn’t do what we
would do, he had all opportunity to call anybody he wanted.” (Doc. 13, Trial Tr.
3810, at PAGEID#: 4513).
3. “[Defense counsel] keeps wanting to know why I didn’t call Joe Deters. Why
didn’t he call Joe Deters and ask him about the conspiracy?” (Doc. 13, Trial Tr.
3817, at PAGEID#: 4520).
4. “The reason he [defense counsel] didn’t call him [Joe Deters] is because he
didn’t want to hear what he had to say. More importantly, he didn’t want you to
hear what he had to say. And it’s the reason he didn’t call any of the other
witnesses that he criticized us for not calling because he didn’t want you to hear
what they had to say.” (Doc. 13, Trial Tr. 3818, at PAGEID#: 4521).
5. “Now what do you think the other judges in this county think about that? I
didn’t see any of them come to her defense and let her pick her own lawyers.”
(Doc. 13, Trial Tr. 3890, at PAGEID#: 4594).
6. “Do not believe that if there was anyone anyplace that would say as either as a
judge I could put any date on there that they would not be here?” [sic] (Doc. 13,
Trial Tr. 3907-08, at PAGEID#: 4611-12).
7. “She has been entitled to put any document in the record that she wanted. She
has been entitled, and she didn’t have to, but she was entitled to put any witness
on.” (Doc. 13, Trial Tr. 3917, at PAGEID#: 4621).
8. “He [defense counsel] has or not been given the opportunity to bring anybody
he wants.” [sic] (Doc. 13, Trial Tr. 3919, at PAGEID#: 4623).
9. “But I am the one that could tell you, and he [defense counsel] could object to
it, that if he has got that much for them and these people know that much and
these people had this case so much he had a duty to call them and he should have
called them and he should have proven it to you.” (Doc. 13, Trial Tr. 3922, at
PAGEID#: 4626).
As an initial matter, contrary to petitioner’s contention, the special prosecutor’s seventh
and eighth remarks quoted above were not burden-shifting, and it is highly unlikely that the jury
would have interpreted them as shifting the burden of proof from the State to the defense. The

40

prosecutor merely stated that the petitioner was provided the opportunity during the trial to
introduce documents and call any witness she wanted to testify on her behalf. The remarks were
made in the context of arguing that petitioner had received a fair trial. Moreover, the special
prosecutor did properly point out in one of the challenged comments that petitioner was not
required to call any witnesses.
In the first, second, sixth and ninth remarks quoted above, the special prosecutor was
essentially responding to statements that defense counsel made during his closing argument
regarding the State’s failure to call “people from Juvenile Court,” including judges, whom
counsel claimed were the only witnesses who could have established that petitioner committed
the charged crimes stemming from the backdating of certain documents and the hiring of
petitioner’s brother for overtime work at petitioner’s office. When a defendant “implie[s] at
closing that the government failed to [present certain evidence] because the evidence would be
favorable to the defendant,” the prosecutor may properly comment that the “defense [too] could
have [presented that evidence] if desired.” United States v. Newton, 389 F.3d 631, 638 (6th Cir.
2004), vacated on other grounds, 546 U.S. 803 (2005); see also United States v. Williams, 662 F.
App’x 366, 379 (6th Cir. 2016) (prosecutor’s suggestion that defendant could have called
particular witness not improper when made in rebuttal to defense implication during closing
argument that government failed to call a witness where evidence would be favorable to the
defendant); United States v. Hunt, 278 F. App’x 491, 497 (6th Cir. 2008) (“[P]rosecutor’s
remarks were not intended to shift the burden of proof or otherwise mislead the jury or prejudice
the defendant. They were intended simply to dispel the notion, suggested by defendant, that the
government had improperly withheld information.”); United States v. Brown, 66 F.3d 124 (6th
Cir. 1996) (holding that prosecution’s observation in rebuttal argument that defense counsel had

41

not called a handwriting expert was appropriate rebuttal to defense’s reference in closing to
prosecution’s failure to call such a witness); United States v. Clark, 982 F.2d 965 (6th Cir. 1993)
(holding that no improper burden shifting occurred when prosecutor remarked upon defendant’s
failure to call a witness in response to defense counsel’s assertion that the witness would not
have corroborated testimony of another government witness). The special prosecutor’s
responsive remarks were invited given that defense counsel devoted a large part of his closing
argument to pointing out all of the witnesses that the State failed to call to prove its case.
Specifically, petitioner’s counsel argued in reference to the forgery and tampering-with-evidence
charges:
And before I forget, if you want to say that she’s the only person that’s doing this
over at the juvenile court, bring them over here. Call Judge Williams, call Judge
Grady, call Judge Lipps, call another judge over here, just one. Prove your case
so that there would be evidence that Judge Hunter is the only person that
backdated. You’ve got the burden of proof. You’re saying what she did is
atypical, unusual and fraudulent. Call just one other judge to prove their case to
show me what she is doing is not done in juvenile court. Why didn’t I do it?
Because I don’t have the burden of proof.
(Doc. 13, Trial Tr. 3607-08, at PAGEID#: 4310-11). At another point in closing argument,
defense counsel stated: “But what you won’t hear and what you won’t see is factual, objective,
neutral testimony from witnesses who know all about this case that were over at the Juvenile
Court and that should have been subpoenaed and should have c[o]me in here to prove their case
beyond a reasonable doubt besides getting a selective person who can testify in a fashion
consistent with your case.” (Id., Trial Tr. 3668-69, at PAGEID#: 4371-72). Later, defense
counsel argued at even greater length as follows:
And I’ll tell you one thing too. When they rested you were surprised. You were
surprised. You thought more was coming. You thought more was coming. . . .
You know why you thought more was coming? Because more should have
c[o]me to prove their case beyond a reasonable doubt. And you were waiting, but
it didn’t happen. They rested. You thought, wow. And, yes, I was surprised
42

when they rested. You were too because you expected more evidence.
So what evidence wasn’t proven? Well, number one, [the prosecutor] didn’t call
Lisa Miller[, a journal clerk at the Hamilton County Juvenile Court and
petitioner’s case manager who was called as a defense witness,] to testify about
backdating, about this purpose to mislead, the purpose to defraud when they’re
doing a judicial entry.
I already told you they didn’t call Judge Lipps, Judge Grady, Judge Hendon,
Judge Williams. They didn’t call one judge from the Juvenile Court. It’s real
simple. Just call one judge to say, you know what, . . . if you sign your name to a
backdated judicial entry you are misleading the prosecutor under these
circumstances. You are trying to corrupt a proceeding. One judge. Not one.
What is that? That’s a half-baked cake. Just like everything else from the
investigation all the way up to the charges, all the way up to their presentation at
trial. Why not call them?
****
Now, not only do they not call a judge, they didn’t call anybody from the
Hamilton County Juvenile Court that could say backdating a judicial entry was
not routinely done or that backdating a judicial entry is wrong.
. . . .What does Judge Williams do? Does he backdate judicial entries? . . . Ask
Judge Williams that. If this is so wrong, if it’s an attempt to mislead, ask Judge
Williams. Why wasn’t he called? He’s a sitting judge right now. He does the
exact same thing Judge Hunter does. Where is the evidence? I don’t have the
burden of proof. . . .
****
You needed Connie Murdock to say - - Connie Murdock. Where’s Connie
Murdock? Connie Murdock is the case management executive at the Hamilton
County Juvenile Court. She is the mother of backdating. . . .
So why don’t they call her to say, no, no, no, no, no, I didn’t teach anybody no
backdating. I didn’t train anybody on backdating. We don’t backdate judicial
entries. Why didn’t they get her to say if you [were] signing a backdated judicial
entry you were trying to mislead the court[?] Why couldn’t she say that? She
would be the person that would be more competent to do so than just a hired gun
from the assistant Hamilton County Prosecutor’s Office.
What evidence did they fail to prove with respect to unlawful interest in a public
contract, Count 5? They failed to call Avery Corbin[, petitioner’s bailiff,] to
prove that the judge told him or made him contact Mr. Bowman regarding Steve
Hunter. That’s what you needed and that’s what you did not get.
43

****
Why didn’t you call Karen Oakley Everson, Lisa Miller, Erica Farris that was
there that day that could say that the judge had something to do with Steve
coming over? They would know this. Ask them whether or not the judge, as
compared to Avery Corbin, secured his presence, instead of just making the
argument. . . .
(Id., Trial Tr. 3749-46, at PAGEID#: 4442-47).
The undersigned finds that in light of defense counsel’s extensive arguments, the four
responsive remarks by the special prosecutor did not rise to the level of a due process violation.
They also were not prejudicial because the comments pertained to charges upon which the jury
did not convict and which were ultimately dismissed. In any event, it is highly unlikely the jury
would have been misled by the special prosecutor’s remarks to shift the burden of proof from the
State in reaching its verdict on Count 6, particularly given the numerous times petitioner’s
counsel emphasized that the defense did not have the burden to prove anything, which was
corroborated by the court’s final instruction that the burden of proof rested “entirely” on the
State. (See, e.g., id., Trial Tr. 865, 895, 920, 3647, 3652, 3705, 3706, 3720, 3741, 3746, 3759,
3766, 3784, 3917, 3918, 3919, 3922, at PAGEID#: 1568, 1598, 1623, 4355, 4384, 4408, 4409,
4423, 4444, 4449, 4462, 4469, 4487, 4621, 4622, 4623, 4626; see also id., Trial Tr. 3931, at
PAGEID#: 4635). Indeed, when his first remark was objected to by defense counsel, the special
prosecutor himself confirmed that the defense “has no burden of proof” (id., Trial Tr. 3809, at
PAGEID#: 4512), and he reiterated at another point that the State bore the burden of proof to
establish beyond a reasonable doubt that petitioner committed the offenses charged against her.
(Id., Trial Tr. 3896, at PAGEID#: 4600).
The fifth statement challenged by petitioner was made by the special prosecutor in the
context of arguing about petitioner’s wanting her own lawyers in lawsuits filed against her in her
44

official capacity, as opposed to the attorney who was appointed to represent her after the
Hamilton County Prosecutor’s Office withdrew as her counsel in those cases. (See id., Trial Tr.
3890, at PAGEID#: 4594). The comment as to what “the other judges,” who did not come to her
defense, might think about her “pick[ing] her own lawyers” was a vague, passing remark
directed at countering defense counsel’s arguments portraying petitioner as having done nothing
wrong in alienating the powers-that-be while serving as a judge on the juvenile court. It is highly
unlikely that the comment would have been construed as shifting the State’s burden of proof to
the defense on any of the criminal charges. In any event, following defense counsel’s objection
that “we have no burden,” (Id., Trial Tr. 3890, at PAGEID#: 4594), the trial court reiterated its
previous instruction: “What counsel says to you in final argument is not evidence. The evidence
on which you will make your decisions is what comes from the mouths of the witnesses sitting
on that witness stand, plus the exhibits. . . . You are the sole determiner of the evidence. . . .
[W]hat they say about the law is not necessarily the law. What I say the law is, it is. And I will
instruct you on the law. . . .” (Id., Trial Tr. 3891, at PAGEID#: 4595). Following the special
prosecutor’s rebuttal argument, the trial court explicitly instructed the jury that “[t]he burden of
proof rests entirely on the State of Ohio.” (See id., Trial Tr. 3931, at PAGEID#: 4635). Any
concerns of impropriety with the special prosecutor’s comment were diminished through the trial
court’s instructions. See Wogenstahl v. Mitchell, 668 F.3d 307, 332 (6th Cir. 2012).
Finally, the third and fourth remarks challenged herein were improper to the extent that
the special prosecutor commented on defense counsel’s failure to call the Hamilton County
Prosecutor as a witness to prove the defense theory that the charges brought against petitioner
were politically motivated. Those comments were not invited because defense counsel never
suggested in his arguments to the jury that the State should have called the prosecutor as a

45

witness to show lack of political motivation in pursuing the criminal charges. Although “[i]t is
improper for the prosecutor to suggest that the defendant has the burden of proof or any
obligation to produce evidence to prove his innocence,” Joseph v. Coyle, 469 F.3d 441, 474 (6th
Cir. 2006); see also Wogenstahl, 668 F.3d at 332, the undersigned is convinced that the jury was
not misled by the special prosecutor’s remarks to shift the burden of proof from the State to the
defense in determining its verdict in this case. As discussed above, defense counsel emphasized
numerous times during closing argument that the State had the burden of proving the criminal
charges beyond a reasonable doubt and “we do not have to prove anything.” (See id., Trial Tr.
3584, 3585-86, 3594, 3596, 3597, 3608, 3635, 3647, 3652, 3676, 3681, 3696, 3706-07, 3741,
3748, 3783-84, at PAGEID#: 4287, 4288-89, 4297, 4299, 4300, 4311, 4338, 4350, 4355, 4379,
4384, 4399, 4409-10, 4444, 4449, 4486-87). Even more specifically, defense counsel stated:
“Political motivation is not a defense. I don’t have to prove political motivation in order for
[petitioner] to be found not guilty of all the charges.” (Id., Trial Tr. 3583-84, at PAGEID#:
4286-87). Defense counsel also reiterated when objecting to some of the prosecutor’s remarks
that “[t]he defense has no burden of proof.” (See id., Trial Tr. 3817-18, at PAGEID#: 4520-21,
4594, 4612, 4621-22, 4623). Furthermore, the trial court explicitly instructed the jury before it
retired to deliberate that “[t]he burden of proof rests entirely on the State of Ohio” and “[a]
defendant must be acquitted unless the State provides evidence which convinces you beyond a
reasonable doubt of every essential element of the crime charged in the indictment.” (See id.,
Trial Tr. 3931, at PAGEID#: 4635). In addressing the many objections that were lodged by both
parties during closing arguments, as well as in its final instructions to the jury, the court also
reiterated numerous times that “[w]hat counsel says to you in argument is not evidence”; that
“[t]he evidence upon which you will base your decision is what you heard from the witness stand

46

from the mouths of witnesses sitting on the witness stand, plus the exhibits which have been
admitted during the course of the trial”; and that “what the Court tells you when we instruct you
is the law” to follow when determining the verdict. (See id., Trial Tr. 3495-96, 3505-06, 3530,
3577, 3610, 3754-55, 3782, 3806-07, 3810, 3816, 3830, 3862-63, 3891, 3924-26, at PAGEID#:
4198-99, 4208-09, 4233, 4280, 4313, 4455-56, 4485, 4509-10, 4513, 4519, 4533, 4564-65, 4595,
4628-30). See Wogenstahl, 668 F.3d at 332 (giving nearly identical curative and final
instructions in response to comment on defendant’s failure to subpoena witnesses and finding
“instruction immediately following the prosecution’s potentially improper comments as well as
the final instructions assuage any concerns of misleading the jury”). Finally, the jury is
presumed to have followed the court’s instructions on the burden of proof. See, e.g., Brenson v.
Coleman,

F. App’x

, No. 15-4015, 2017 WL 722003, at *3 (6th Cir. Feb. 23, 2017); see also

Weeks v. Angelone, 528 U.S. 225, 234 (2000); Washington v. Hofbauer, 228 F.3d 689, 706 (6th
Cir. 2000) (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)).
As discussed above in addressing the prosecutor’s inflammatory remarks, strong
evidence was presented at trial to establish petitioner’s guilt for the offense charged in Count 6.
In light of that evidence, the numerous statements that were made by counsel and the court
properly relaying to the jury that the State had the burden of proof, the court’s numerous
admonitions to the jury that it was to apply only the court’s instructions in determining the
petitioner’s guilt or innocence on the criminal charges and that counsels’ arguments were not
evidence upon which the jury could base the verdict, the undersigned concludes that petitioner’s
claim challenging the nine remarks by the special prosecutor during rebuttal closing argument as
“burden-shifting” lacks merit.
d. Conclusion.
In sum, petitioner has not demonstrated that she is entitled to habeas relief based on the
47

claims of prosecutorial misconduct alleged in Ground One that remain for review on the merits.
Although as a general rule the federal habeas court must apply a deferential standard of review,
the undersigned has assumed, without deciding, in petitioner’s favor that the remaining claims
are subject to de novo review. However, even under that standard, petitioner’s claim challenging
two remarks allegedly containing references to “unsworn statements” lacks merit. Those
remarks were not improper, nor did they deprive petitioner of a fair trial or have a substantial and
injurious effect or influence in determining the jury’s verdict in this case. Moreover, although
some of the special prosecutor’s remarks challenged by petitioner as “burden-shifting” may have
been improper, the undersigned is convinced upon review of the record that the jury was not
misled by those comments to shift the burden from the State to the defense in deciding
petitioner’s guilt or innocence on the criminal charges. Finally, four of the special prosecutor’s
comments challenged as involving “irrelevant and inflammatory language” were improper, not
isolated and deliberately made. However, upon review of the record, because the remarks were
invited responses to the many hyperbolic statements that defense counsel made in his own
opening statement and closing argument and because strong and substantial evidence was
presented to establish petitioner’s guilt for the offense charged in Count 6 of the indictment in
Case No. B-1400110, the undersigned concludes that they did not deprive petitioner of a fair trial
and, in any event, did not have a substantial and injurious effect or influence in determining the
jury’s verdict of guilt with respect to that charge.
B. Petitioner Is Not Entitled To Relief Based On The Claim In Ground Two
Challenging Restrictions On Briefing In The Accelerated Direct Appeal Proceeding
In Ground Two of the petition, petitioner alleges that she was denied the effective
assistance of appellate counsel under the Sixth Amendment and her due process right to a
meaningful appeal when, in accordance with standards governing accelerated appeals, the Ohio
48

Court of Appeals placed restrictions on the length of her appellate brief and did not provide her
with an opportunity to submit a reply brief. (Doc. 1, at PAGEID#: 5-7, 11-13).
As discussed above in setting forth the procedural background regarding petitioner’s
direct appeal, after the Ohio Court of Appeals placed petitioner’s consolidated appeals on its
accelerated calendar, petitioner’s counsel filed a motion requesting that the matter be removed to
the court’s regular calendar because the “fifteen-page page limit” for briefs in accelerated
appeals “would be insufficient” to address the issues involved in the case. (See Doc. 12, Ex. 35,
at PAGEID#: 329). Although the Ohio Court of Appeals denied the motion, the parties were
granted leave to “file briefs not to exceed 25 pages.” (Id., Ex. 36).
Thereafter, petitioner’s counsel filed a 35-page brief on petitioner’s behalf, in which three
assignments of error were asserted challenging the trial court’s (1) denial of petitioner’s motion
for judgment of acquittal, (2) refusal to poll the jury after the verdict was unsealed and
announced in open court, and (3) failure “to meaningfully cure the prosecution’s pervasive
misconduct during its rebuttal and closing argument.” (See id., Ex. 39). Because the brief
exceeded 25 pages, counsel also filed a motion requesting “the court to accept [petitioner’s]
brief.” (Id., Ex. 40). In that motion, petitioner’s counsel stated that although he initially believed
25 pages “would be sufficient” for presenting “the two strongest issues counsel anticipated
raising at that time: the jury-poll issue and denial of Judge Hunter’s Rule 29 motion,” he
“realized that a third issue needed to be raised: prosecutorial misconduct in the rebuttal closing
argument.” (Id., p. 2, at PAGEID#: 446). Counsel expressly argued:
If the court does not allow this brief to be filed as is, undersigned counsel would
have to either eliminate the third assignment of error, or reduce the argument to
the point of ineffectiveness. Restricting Judge Hunter’s brief to twenty-five
pages, given the issues she is raising on appeal, would deny her due process of
law under . . . the Fourteenth Amendment . . . and would also deny her the
effective assistance of counsel under the Sixth and Fourteenth Amendments.
49

(Id., p. 3, at PAGEID#: 447). The court of appeals summarily overruled the motion, struck the
35-page appellate brief, and ordered petitioner to file another brief that complied with the 25page page limit. (Id., Ex. 42).
Petitioner’s counsel next filed an amended appellate brief limited to 25 pages raising the
same assignments of error that had been presented in the 35-page brief. (See id., Ex. 49). In that
brief, counsel specifically contended that because petitioner had “not been given the opportunity
to fully brief” certain listed issues of prosecutorial misconduct that were argued in the prior brief,
“her due process rights to a meaningful direct appeal and effective assistance of counsel are
being violated.” (Id., pp. 24-25, at PAGEID#: 548-49). Counsel also attached an appendix to
the amended brief, which included a chart detailing the 51 instances of alleged prosecutorial
misconduct in the State’s rebuttal closing argument. (See id., Appendix B). Including the
appendix, the document filed with the court was 45 pages in length. (See id., at PAGEID#: 519).
After the State filed a brief responding to petitioner’s amended appellate brief (see id.,
Ex. 50), petitioner’s counsel next filed a motion for leave to file a reply brief. (Id., Ex. 51). In
that motion, counsel argued:
Because Appellant’s brief was restricted to twenty-five pages in length, Appellant
had only four pages in which to discuss fifty-one instances of egregious
prosecutorial misconduct. In this space, Appellant was unable to analyze the law
applying to each category of prosecutorial misconduct and to discuss the
application of that law to her case. Without the ability to respond to the State’s
arguments in a reply brief, Appellant will be deprived of Due Process under . . .
the United States Constitution because she will be unable to present meritorious
grounds of relief.
(Id., p. 2, at PAGEID#: 597). The Ohio Court of Appeals summarily overruled that motion
without opinion. (Id., Ex. 52).
As a threshold matter, petitioner contends that her claim challenging the restrictions that

50

were placed on her appellate counsel by the Ohio Court of Appeals is subject to de novo review,
as opposed to review under the deferential standard set forth in 28 U.S.C. § 2254(d), because
“no state court has adjudicated this claim on the merits.” (Doc. 32, pp. 69-70, at PAGEID#:
5423-24). The undersigned disagrees.
Petitioner’s counsel presented the federal claim to the Ohio Court of Appeals in the
motion for leave to file a 35-page brief, the amended appellate brief, and the motion for leave to
file a reply brief. (See Doc. 12, Exs. 40, 49, 51). The Ohio Court of Appeals overruled
petitioner’s motions as “not well taken” without explicitly addressing petitioner’s arguments and
it did not address the issue raised in the amended appellate brief in its direct appeal decision.
(See id., Exs. 42, 52, 56). Although the Ohio Court of Appeals denied the non-dispositive
motions for leave to file a 35-page brief and reply brief without opinion and did not address the
issue in its direct appeal decision, the Supreme Court has held that “[w]hen a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99-100 (2011)
(holding that when a state court issues an order summarily rejecting a federal claim that is
subsequently asserted as a ground for federal habeas relief, the federal habeas court must
presume that the federal claim was adjudicated on the merits by the state court absent a showing
that “some other explanation for the . . . court’s decision is more likely”). The Harrington
presumption also applies “when the state court addresses some of the claims raised by a
defendant but not a claim that is later raised in a federal habeas proceeding.” Johnson v.
Williams,

U.S.

, 133 S.Ct. 1088, 1091 (2013).

This presumption is warranted given that it is “by no means uncommon for a state
court to fail to address separately” every potential claim raised by a defendant.
51

[Johnson, 133 S.Ct.] at 1096. For example, a court in a state that interprets a
parallel state and federal constitutional provision identically may decide that a
discussion of the state claim adequately disposes of the duplicative federal claim.
Id. at 1094–95. Similarly, state courts have discretion to decide that a “fleeting
reference to a provision of the Federal Constitution” does not merit its attention,
or that a claim may simply be “too insubstantial to merit discussion.” Id. at 1095.
While the Richter/Johnson presumption is not irrebuttable, it is a “strong one that
may be rebutted only in unusual circumstances,” id. at 1096, such as “when there
is reason to think some other explanation for the state court’s decision is more
likely.” Richter, 562 U.S. at 99, 131 S.Ct. 770. One example of when the
presumption may be rebutted occurs when a state court rejects a federal claim “as
a result of sheer inadvertence.” Johnson, 133 S.Ct. at 1097.
Brown v. Romanowski, 845 F.3d 703, 711 (6th Cir. 2017). Because “‘a state court need not state
its reasoning or provide any explanation for its conclusions’ to adjudicate a federal claim on the
merits,” the state court’s “silence” or failure to “directly invoke the federal standard” is
insufficient to overcome the presumption that the claim was adjudicated on the merits. Davis v.
Johnson, 661 F. App’x 869, 878 (6th Cir. 2016) (quoting Brown v. Bobby, 656 F.3d 325, 329
(6th Cir. 2011)), petition for cert. filed, No. 16-8403 (U.S. Jan. 12, 2017).
Here, petitioner has not made any showing to rebut the presumption that the Ohio Court
of Appeals’ direct appeal decision, as well as its decisions overruling counsel’s motions for leave
to file a 35-page brief and for leave to file a reply brief, constituted an adjudication of the merits
of the constitutional issues that were raised by petitioner in her various pleadings filed in the
accelerated appeal. Petitioner explicitly raised her Sixth and Fourteenth Amendment claims in
her motions for leave to file a 35-page brief and for leave to file a reply brief. It cannot be said
that the Ohio Court of Appeals’ finding that the motions were “not well taken” overlooked those
claims. Nor can it be said that some other explanation for the court’s ruling is more likely.
Thus, the Harrington presumption of an adjudication on the merits stands and this federal habeas
court must apply the § 2254(d) deferential standard of review in assessing petitioner’s second

52

ground for relief.
Pursuant to the applicable standard set forth in 28 U.S.C. § 2254(d), this Court’s review
of petitioner’s claim of constitutional error is limited. Under § 2254(d), a writ of habeas corpus
may not issue with respect to any claim adjudicated on the merits by the state courts unless the
adjudication either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the United States
Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d).
“A decision is ‘contrary to’ clearly established federal law when ‘the state court arrives
at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v.
Taylor, 529 U.S. 362, 412-13 (2000)). “A state court’s adjudication only results in an
‘unreasonable application’ of clearly established federal law when ‘the state court identifies the
correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.’” Id. at 599-600 (quoting Williams, 529 U.S. at
413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600.
As the Sixth Circuit explained in Otte:
Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA’s
standards. See, e.g., Cullen v. Pinholster, [563] U.S. [170], 131 S.Ct. 1388, 1398,
179 L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to the
53

record before the state court where a claim has been adjudicated on the merits by
the state court). It is not enough for us to determine that the state court’s
determination is incorrect; to grant the writ under this clause, we must hold that
the state court’s determination is unreasonable. . . . This is a “substantially higher
threshold.”. . . To warrant AEDPA deference, a state court’s “decision on the
merits” does not have to give any explanation for its results, Harrington v.
Richter, [562] U.S. [86, 98-99], 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor
does it need to cite the relevant Supreme Court cases, as long as “neither the
reasoning nor the result of the state-court decision contradicts them.” Early v.
Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam).
Id. (emphasis in original).
Although the standard is difficult to meet, § 2254(d) “stops short of imposing a complete
bar on federal-court relitigation of claims already rejected in state proceedings” and “preserves
authority to issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington, 562 U.S.
at 102. In other words, to obtain federal habeas relief under that provision, the state prisoner
must show that the state court ruling on the claim presented “was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
The Supreme Court has made it clear that in assessing the merits of a constitutional claim
under § 2254(d), the federal habeas court must apply the Supreme Court precedents that
controlled at the time of the last state-court adjudication on the merits, as opposed to when the
conviction became “final.” Greene v. Fisher, 565 U.S. 34, 39-40 (2011); cf. Otte, 654 F.3d at
600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a claim
addressed by the state courts, the federal habeas court must “look to Supreme Court cases
already decided at the time the state court made its decision”). The writ may issue only if the
application of clearly-established federal law is objectively unreasonable “in light of the
holdings, as opposed to the dicta, of the Supreme Court’s decisions as of the time of the relevant
54

state court decision.” McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529
U.S. at 412); see also White v. Woodall,

U.S.

, 134 S.Ct. 1697, 1702 (2014) (quoting Howes

v. Fields, 565 U.S. 499, 505 (2012) (internal citation and quotation marks omitted)) (“‘[C]learly
established Federal law’ for purposes of § 2254(d)(1) includes ‘only the holdings, as opposed to
the dicta, of this Court’s decisions.’”). Decisions by lower courts are relevant only “to the extent
[they] already reviewed and interpreted the relevant Supreme Court case law to determine
whether a legal principle or right had been clearly established by the Supreme Court.” Otte, 654
F.3d at 600 (quoting Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)).
In this case, petitioner has not demonstrated that the Ohio Court of Appeals’ refusal to
allow her counsel to file a brief in excess of 25 pages or to file a reply brief is either contrary to
or involves an unreasonable application of Supreme Court precedents applicable to her claim.
As petitioner has argued, although there is no constitutional right to an appeal, once the
state grants the right of appeal, it must “act in accord with the dictates of the Constitution and, in
particular, in accord with the Due Process Clause” of the Fourteenth Amendment. See Evitts v.
Lucey, 469 U.S. 387, 401 (1985). Due process concerns are implicated when a state that affords
an appeal as of right denies the defendant “a fair opportunity to obtain an adjudication on the
merits of his appeal.” Id. at 405. The Supreme Court has recognized that the due process right to
a meaningful appeal includes the right to the effective assistance of counsel guaranteed by the
Sixth Amendment. Id. at 404-05. However, by the same token, “the Supreme Court has never
held that the constitutional right to effective assistance of counsel on direct appeal implies a right
to file a brief longer than fifteen pages or a reply brief.” Whipple v. Warden, S. Corr. Inst., No.
1:14cv119, 2014 WL 4986448, at *17 (S.D. Ohio Oct. 6, 2014) (Merz, M.J.) (Report &
Recommendation) (holding in an analogous case that there was no merit to the habeas

55

petitioner’s claim that he was denied his rights under the Fifth, Sixth and Fourteenth
Amendments when the Ohio Court of Appeals, First Appellate District, “refused to remove his
case from their accelerated calendar which meant he was limited to fifteen pages in his principal
brief and allowed no reply brief at all”), adopted, 2014 WL 7228021 (S.D. Ohio Dec. 17, 2014)
(Black, J.).
Petitioner’s attempts to distinguish Whipple from the case-at-hand are unavailing. (See
Doc. 32, pp. 74-76, at PAGEID#: 5428-30). First, contrary to petitioner’s contention,
petitioner’s due process claim is subject to the same deferential standard of review that was
applied in Whipple. Second, to the extent that petitioner has pointed out that the claim in
Whipple was procedurally defaulted, the court in Whipple rejected the claim not only because it
was defaulted, but also because it was “without merit.” See Whipple, supra, 2014 WL 4986448,
at *17. Third, the “flexible,” “case specific” inquiry for due process claims that petitioner has
contended is applicable here supports the court’s conclusion in Whipple that the Supreme Court
has never held as a matter of clearly-established federal law that due process concerns are
triggered by the limitations on briefing for accelerated appeals that are enforced by the Ohio
Court of Appeals, First Appellate District. Indeed, the Supreme Court has acknowledged that in
cases such as this, where the constitutional standard “is a very general one,” courts have “more
leeway . . . in reaching outcomes in case-by-case determinations.” Parker v. Matthews, 567 U.S.
37, 132 S.Ct. 2148, 2155 (2012) (per curiam) (involving a claim of a denial of due process due to
the prosecutor’s “improper comments” during closing argument); see also Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004) (“Applying a general standard to a specific case can demand
a substantial element of judgment. . . . The more general the rule, the more leeway courts have
in reaching outcomes in case-by-case determinations.”). Fourth, to the extent petitioner claims

56

the Ohio appellate court’s system of setting cases on the accelerated calendar deprives
defendants in complicated cases such as this of a meaningful appeal, she has not cited, nor could
the Court find, any authority that would suggest the system is subject to constitutional challenge
under clearly established federal law as determined by the Supreme Court.
Finally, even under the “flexible,” “case specific” inquiry petitioner has asserted should
be applied here, petitioner has not demonstrated that she was denied a meaningful appeal.
Indeed, if the “case specific” inquiry were applicable here, a strong argument can be made that
the 15-page page limit that was enforced in Whipple was more likely to trigger concerns about
the lack of a meaningful appeal than the 25-page page limit that was enforced in the instant case.
In her mandamus petition to the Ohio Supreme Court, as well as in her motion for permission to
file a 35-page brief, petitioner conceded that the 25-page page limit “would have been more than
sufficient” for asserting the two assignments of error challenging the denial of her motion for
judgment of acquittal and the trial court’s refusal to poll the jury after the verdict was unsealed
and announced in open court. (See Doc. 12, Ex. 40, at PAGEID#: 446; Ex. 43, ¶ 21, at
PAGEID#: 467-68). Indeed, counsel devoted the same number of pages in both the initial 35page brief and the amended 25-page brief to those two assignments of error. (See id., Exs. 39,
49). It, therefore, appears from the record that the sole basis for Ground Two of the petition is
petitioner’s claim that she was unable to adequately present her third claim of prosecutorial
misconduct in the four pages that remained within the 25-page limit. (See id., Ex. 40, at
PAGEID#: 447; Ex. 51, at PAGEID#: 597). 12

12

In her memorandum in support of jurisdiction to the Ohio Supreme Court from the Ohio Court of
Appeals’ direct appeal decision, petitioner argued that her appellate counsel was “unable to comply with the briefing
limit without seriously compromising the overall quality of the arguments in support of the three assignments of
error.” (Doc. 12, Ex. 60, p. 13, at PAGEID#: 646). She also argued that she was deprived of the opportunity to
present “other claims such as ineffective assistance of counsel and juror misconduct.” (Id., p. 14, at PAGEID#:
647). By making those assertions, petitioner suggested that she was deprived of a meaningful appeal not only with

57

Here, it was not unreasonable for the Ohio Court of Appeals to conclude that the page
limitation of 25 pages without an opportunity to file a reply brief did not deprive petitioner of a
meaningful appeal or effective assistance of counsel on appeal. The restrictions that were
imposed merely limited the manner in which petitioner could present her claims; they did not
wholly prevent petitioner from presenting her arguments. Cf. Seymour v. Walker, 224 F.3d 542,
551 (6th Cir. 2000) (in rejecting the petitioner’s argument that a page-limit restriction on
appellate briefs excused the petitioner’s procedural default of pro se claims that were not
asserted in the brief filed by counsel, the Sixth Circuit relied on Weeks v. Angelone, 176 F.3d
249, 271 (4th Cir. 1999), wherein the court held that the petitioner’s procedural default of claims
that were withdrawn from his appellate brief was not excused because of a page limit that
petitioner claimed “physically prevented” him from presenting all the assignments of error he
wished to raise); see also Valentine v. Huffman, 285 F. Supp.2d 1011, 1022 (N.D. Ohio 2003),
rev’d in part on other grounds, 395 F.3d 626 (6th Cir. 2005); Tolen v. Norman, No. 4:10cv2031,
2014 WL 2765282, at *9 (E.D. Mo. June 18, 2014); Darby v. North Dakota, No. 1:11cv71, 2013
WL 542082, at *30-31 (D. N.D. Feb. 12, 2013) (Report & Recommendation), adopted, 2013 WL

respect to her claim of prosecutorial misconduct, but also with respect to her other two assignments of error as well
as additional claims that she was prevented from raising on appeal. However, petitioner made it clear in her prior
motions to the Ohio Court of Appeals and Ohio Supreme Court that her claim of denial of a meaningful appeal was
based solely on her inability to adequately present the prosecutorial-misconduct assignment of error in the limited
number of pages permitted to her. (See id., Exs. 40, 43, 51). Petitioner is unable to prevail on any claim that she
was denied a meaningful appeal with respect to her first two assignments of error, particularly given that those
claims were argued in the same number pages in both petitioner’s initial 35-page brief and amended 25-page brief.
(See id., Exs. 39, 49). Petitioner is also unable to prevail on any claim that she was denied a meaningful appeal with
respect to any “other claims” not mentioned in those prior motions as additional assignments of error that she was
prevented by the page limit from raising. (See id.). By failing to bring those issues to the Ohio Court of Appeals’
attention when it was considering whether to grant or deny petitioner’s requests in the accelerated appeal, petitioner
procedurally defaulted and has waived them as grounds for granting relief. Cf. Seay v. Warden, Oakwood Corr.
Inst., No. 1:10cv828, 2013 WL 228019, at *10 (S.D. Ohio Jan. 22, 2013) (Merz, M.J.) (Report & Recommendation)
(holding that because a claim asserted in a notice of appeal to the Ohio Supreme Court had not been presented to the
Ohio Court of Appeals, it was subject to dismissal with prejudice on procedural default grounds), adopted, 2013 WL
1438019 (S.D. Ohio Apr. 9, 2013) (Spiegel, J.); see also Berry v. Warden, S. Ohio Corr. Facility, No. 3:14cv2518,
2016 WL 4177174, at *4 (N.D. Ohio Aug. 8, 2016) (holding that the petitioner had defaulted a ground for relief that
was not fairly presented to the Ohio Court of Appeals), appeal filed, No. 16-4028 (6th Cir. Sept. 8, 2016).

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1291625 (D. N.D. Mar. 26, 2013); Butler v. Booker, No. 2:09cv10898, 2009 WL 1010919, at *2
(E.D. Mich. Apr. 14, 2009). In the amended appellate brief, petitioner presented most, if not all,
of the arguments that had been presented in a lengthier fashion in the initial 35-page brief.
Specifically, in presenting the arguments in support of her claim of prosecutorial misconduct,
petitioner contended, with footnote citations to the record and other authorities, that the
prosecutor not only made numerous inflammatory remarks but also relied on “extra-record
evidence and unworn testimony,” engaged in “absent witness burden-shifting,” interjected his
“personal opinion about guilt and sentencing” and made “statements that defense counsel
believed Judge Hunter guilty,” which were “not cured by the trial court’s general curative
instruction.” (See Doc. 12, Ex. 39, pp. 21-34, at PAGEID#: 410-23; Ex. 49, pp. 21-24, at
PAGEID#: 545-48). Most importantly, counsel attached to the brief a chart detailing each
instance of prosecutorial misconduct that allegedly occurred during the rebuttal closing
argument, as well as each objection that was lodged and any curative instructions that were given
by the court. (See id., Ex. 49, Appendix B). In ruling on petitioner’s claim of prosecutorial
misconduct, the Ohio Court of Appeals stated it had considered both petitioner’s arguments “and
the chart of 51 specific instances of alleged improper comment.” (See id., Ex. 56, p. 13, at
PAGEID#: 624). This federal court takes the state court at its word. The Ohio Court of Appeals
did not specifically address each allegation of misconduct or provide a detailed analysis in
rejecting the claim of constitutional error. However, it appears from the record that petitioner
was not prevented from presenting her arguments to the state court and that the state court did
consider those arguments, as well as all of the allegations of misconduct contained in the chart,
in rejecting the assignment of error. (See id.).
Accordingly, in sum, the undersigned concludes under the applicable deferential standard

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of review set forth in 28 U.S.C. § 2254(d) that petitioner has not demonstrated she is entitled to
relief based on her claim that she was denied a meaningful appeal or effective assistance of
counsel on appeal because of the restrictions that were enforced by the Ohio Court of Appeals in
the accelerated appeal proceeding. Therefore, Ground Two should be denied with prejudice.
C. Petitioner Is Not Entitled To Relief Based On The Claim In Ground Three
Challenging The Trial Court’s Refusal To Poll The Jury After The Verdict On
Count 6 Was Unsealed And Announced In Open Court
In Ground Three of the petition, petitioner contends that she was denied her right to a
jury trial guaranteed by the Sixth and Fourteenth Amendments when the trial court refused to
poll the jury after the verdict on Count 6 was unsealed and announced in open court. (Doc. 1, at
PAGEID#: 7-9).
During the trial, when the court was informed that the jury was unable to reach a verdict
with respect to eight of the criminal charges, but had reached a verdict on Count 6, the jury was
polled in open court regarding that verdict without objection. (See Doc. 13, Trial Tr. 3993, at
PAGEID#: 4697). When polled, each juror unequivocally affirmed that the verdict on Count 6
was his or her “true verdict.” (Id., Trial Tr. 3993-94, at PAGEID#: 4697-98). Although the
verdict was not announced at that time, it was entered and sealed as a “done deal,” and the jury
continued its deliberations on the remaining counts following additional instructions. (See id.,
Trial Tr. 3994-4002, at PAGEID#: 4698-4706). Later in the proceeding, after the court was
informed that the jury could not reach a verdict on the remaining counts, the “previously
entered” verdict of guilt was read and recorded. (See id., Trial Tr. 4006-07, at PAGEID#: 471011). The court then thanked the jury for its service and stated that the jury was excused. (Id.,
Trial Tr. 4007-11, at PAGEID#: 4711-15). It was at that juncture that defense counsel asked that
the jury be polled again. (Id., Trial Tr. 4011, at PAGEID#: 4715). The court denied counsel’s

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request, stating: “They were polled and they were asked whether Count 6 was their true verdict
and they indicated yes and so it’s over. I indicated that.” (Id.). Petitioner filed a motion for new
trial, claiming that the trial court’s refusal of counsel’s request deprived her of a fair trial. (Doc.
12, Ex. 15). The trial court denied the motion, reasoning that “chaos” would ensue and the
“integrity of the jury deliberations and the finality of jury verdicts” would be jeopardized if a
previously polled juror were permitted to later rescind the verdict. (See id., Ex. 20).
Petitioner challenged the trial court’s ruling on direct appeal. The Ohio Court of
Appeals, which was the last state court to issue a reasoned decision addressing petitioner’s claim,
overruled the assignment of error, reasoning in relevant part as follows:
Because Hunter failed to object when the trial court polled the jury after it
received the verdict for Count 6, we will only reverse if the procedure below
amounted to plain error. To notice plain error, we must first find that an error
occurred, that the error was an obvious defect in the trial proceedings, and that the
error affected the outcome of the trial. . . .
On the record before us, we cannot conclude that the decision to poll the jury
prior to publication of the verdict was plain error. The Revised Code states that
“[b]efore the verdict is accepted, the jury may be polled at the request of either the
prosecuting attorney or the defendant.” R.C. 2945.77. Similarly, Crim. R. 31(D)
states that “[w]hen a verdict is returned and before it is accepted the jury shall be
polled at the request of any party or upon the court’s own motion.” Neither the
statute nor the rule requires that the jury verdict be read in open court prior to
polling the jury.
In support of her position, Hunter quotes a line from a 2003 decision of the Ohio
Supreme Court, which says that “[a] verdict is final if (1) the deliberations are
over, (2) the result is announced in open court, and (3) the jury is polled and no
dissent is registered.” See State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4396,
794 N.E.2d 27, ¶34, quoting United States v. White, 972 F.2d 590, 595 (5th Cir.
1992). But Williams does not support Hunter’s position.
In Williams, the court addressed the question of whether a juror could recant his
or her verdict at any time before it is journalized. Williams was a death-penalty
case in which a juror had asked to recant her verdict on one of the counts after the
guilt phase of the trial had concluded but before the penalty phase had begun.
The Williams court began its analysis by stating that “[n]umerous cases hold that
the verdict becomes final once the jury has been polled and each juror has
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assented to the verdict in open court.” Williams at ¶34. The Williams court then
quoted the White language cited by Hunter.
The language cited as it relates to the requirement of publication prior to finality
is dicta. It was not necessary to the court’s analysis. And it is not found in the
syllabus of Williams, which simply states that “[o]nce a poll of the jurors has been
completed and all have assented to the verdict, a juror may not thereafter rescind
or modify his or her vote.” Id. at syllabus. Additionally, the Williams court cited
another federal appellate decision, which stated that “[a] verdict becomes
immutable by the jury once announced in open court, or when it has been
confirmed by a poll, if ordered.” Id. at ¶35, quoting United States v. Dakins, 872
F.2d 1062, 1065 (D.C. Cir. 1989).
There is no reading of the rule or statute that requires that the jury be polled only
after the verdict is announced in open court. In fact, the Eighth Appellate District
has held that polling the jury before reading the verdict does not run afoul of
Crim. R. 31(D), because the rule requires the court to poll the jury for unanimity
before accepting the verdict. . . .
The Ohio Supreme Court has previously addressed the role of the jury poll. In
2000, the court stated
[a] jury poll’s purpose is to “give each juror an opportunity, before
the verdict is recorded, to declare in open court his assent to the
verdict which the foreman has returned and thus to enable the court
and the parties to ascertain with certainty that a unanimous verdict
has in fact been reached and that no juror has been coerced or
induced to agree to a verdict to which he has not fully assented.”
State v. Hessler, 90 Ohio St.3d 108, 121, 734 N.E.2d 1237 (2000), quoting
Miranda v. United States, 255 F.2d 9, 17 (1st Cir. 1958). The Williams court
concluded that:
the jury poll is well suited to serve as the benchmark of finality.
The poll is a solemn ceremony whose formality signals the
conclusive nature of the verdict to all who are present. The poll
focuses each juror’s attention on the verdict and gives each a clearcut opportunity to declare in open court her assent to or dissent
from the [verdict].
Williams at ¶36.
The procedure followed by the trial court did not violate any provision of Crim.
R. 31(D) or R.C. 2945.77, and its use did not run afoul of the Ohio Supreme
Court’s view on the role and import of the jury poll. Therefore, the trial court did
not commit plain error when it polled the jury prior to publication of the verdict.
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We overrule Hunter’s second assignment of error.
(Doc. 12, Ex. 56, pp. 9-12, at PAGEID#: 620-23) (some Ohio case citations omitted).
As discussed above with respect to petitioner’s allegations of prosecutorial misconduct
that were not objected to at trial, see supra pp. 11-16, it appears that petitioner procedurally
defaulted and has waived the claim that was reviewed by the Ohio Court of Appeals for “plain
error” because petitioner failed to contemporaneously object to the polling of the jury at the time
the polling occurred in the trial proceeding. Cf. Rhea v. Jones, 622 F. Supp.2d 562, 592-93
(W.D. Mich. 2008) (in an analogous case involving a challenge to the method used to poll the
jury, the district court held that the ground for habeas relief was “subject to procedural default
analysis” because the state court of appeals “found that appellate review was waived by the
failure to object at trial, limiting review to plain error affecting the defendant’s substantial
rights”).
In any event, petitioner is not entitled to relief to the extent she contends that, as a matter
of state law, the Ohio Court of Appeals erred in ruling that the polling of the jury prior to the
publication of the verdict did not violate Ohio law or “run afoul of the Ohio Supreme Court’s
view on the role and import of the jury poll.” (See Doc. 12, Ex. 56, p. 12, at PAGEID#: 623).
In this federal habeas proceeding, the Court has jurisdiction to review petitioner’s claim only to
the extent it is based on an alleged violation of the Constitution, laws or treaties of the United
States, and not “on the basis of a perceived error of state law.” 28 U.S.C. § 2254(a); Pulley v.
Harris, 465 U.S. 37, 41 (1984); see also Wilson v. Corcoran, 562 U.S. 1, 5 (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”). This Court must defer to and is
bound by the state court’s determination that the polling conducted in this case did not violate

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Ohio law. See, e.g., Bennett v. Warden, Lebanon Corr. Inst., 782 F. Supp.2d 466, 478 (S.D.
Ohio 2011) (and cases cited therein) (“[B]ecause the state courts are final authority on state-law
issues, the federal habeas court must defer to and is bound by the state court’s rulings on such
matters.”); Meyers v. Ohio, No. 1:14cv1505, 2016 WL 922633, at *7 (N.D. Ohio Jan. 21, 2016)
(Report & Recommendation) (citing Olsen v. McFaul, 843 F.2d 918, 929 (6th Cir. 1988))
(“federal habeas courts are bound by decisions of intermediate state courts on questions of state
law unless convinced that the state’s highest court would decide the issue differently”), adopted,
2016 WL 916602 (N.D. Ohio Mar. 9, 2016).
In addition, to the extent that petitioner contends that her Sixth Amendment right to a jury
trial was violated by the polling of the jury prior to the announcement of the verdict, her claim
lacks merit. Petitioner has not cited, nor could the undersigned find, any Supreme Court
precedent that even remotely suggests the method used to poll the jury in this case abridges any
constitutional right. As the district court stated in Rhea, 622 F. Supp.2d at 593, when rejecting
the habeas petitioner’s claim that he was denied due process by the state court’s use of a method
to poll the jury that failed to specify the count of conviction:
The Bill of Rights is silent on the issue of polling a jury, and the Supreme Court
has never articulated any constitutional requirements under the Due Process
Clause. To the extent that the Court has spoken on the subject its cases indicate
that a jury poll is not constitutionally required. See Humphries v. Dist. of
Columbia, 174 U.S. 190, 194, 19 S.Ct. 637, 43 L.Ed. 944 (1899). The lower
federal courts have squarely rejected any constitutional requirement for a jury
poll. See Cabberiza v. Moore, 217 F.3d 1329, 1336-37 (11th Cir. 2000)
(collecting cases).
Accord United States v. Tucker, 596 F. App’x 616, 618 (10th Cir. 2014) (and cases cited therein)
(denying a certificate of appealability on a claim challenging the trial court’s use of a jurypolling method that “fail[ed] to poll jurors individually”), cert. denied, 135 S.Ct. 2847 (2015);
Pearson v. Racette, No. 11 Civ. 3452, 2012 WL 4513468, at *10-11 (S.D.N.Y. Aug. 3, 2012)
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(Report & Recommendation) (and numerous cases cited therein) (holding that the petitioner’s
claim that he was “wrongfully denied a right to have the jury polled” was not a cognizable
ground for federal habeas relief because “[a]lthough polling the jury is a common practice, we
know of no constitutional right to have a poll conducted”) (internal quotation marks omitted),
adopted, 2012 WL 4513656 (S.D.N.Y. Oct. 2, 2012). Cf. Gau v. Kelly, No. 4:09-cv-2955, 2010
WL 5698451, at *7 (N.D. Ohio Aug. 11, 2010) (Report & Recommendation) (and numerous
cases cited therein) (pointing out that “there is no ingrained Constitutional right to polling the
jury” while recognizing that the “purpose of polling the jury is to enable the court and parties to
ascertain, with certainty, that each of the jurors approves of the verdict as returned”) (internal
quotation marks omitted), adopted, 2011 WL 400141 (N.D. Ohio Feb. 4, 2011).
Petitioner has not cited any Supreme Court precedent or other authority to suggest that
polling of the jury following the rendering of a partial verdict is subject to constitutional
challenge. Nor has petitioner provided any authority to support the argument that the poll
conducted in this case is subject to constitutional attack because three jurors stated in affidavits
that they would have repudiated their initial verdicts if the jury had been polled when the verdict
was unsealed and announced in open court. (See Doc. 1, at PAGEID#: 8). To the contrary, the
Third Circuit has held in addressing the issue under Fed. R. Evid. 606(b) that a jury poll
following a partial verdict, which became final when the twelfth juror on the jury panel
concurred with that verdict on the record, is not subject to attack by subsequent juror recantation.
See United States v. Stansfield, 101 F.3d 909, 916-17 (3rd Cir. 1996). In so ruling, the court
reasoned:
The jury poll is not a distinct entity that exists separate and apart from the verdict.
Rather, the poll is a mere reflection of the verdict. To attempt to impeach the poll
by reference to intimidation that jurors claim they felt during deliberations, or that
they feared they would again feel when they resumed their deliberations, is no
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different than attacking the verdict directly. Rule 606(b) forbids this.
Moreover, adopting [the defendant’s] position would mean that no jury poll
following the rendering of a partial verdict would be beyond attack through the
use of juror testimony, at least until the time that a complete verdict is rendered or
a partial mistrial declared. Since taking a jury poll at that time would thus
become a futile gesture, juries would not be polled (and the partial verdict would
not be validated) until it became certain that they would deliberate no longer.
Congress could not have intended Fed. R. Evid. 606(b) to so fully diminish the
beneficial effects of partial verdicts.
Id. Ohio R. Evid. 606(B) mirrors Fed. R. Evid. 606(b) to the extent that it similarly prohibits,
with limited exceptions, inquiry into the validity of a verdict by juror testimony “as to any matter
or statement occurring during the course of the jury’s deliberations.” Most importantly,
however, Stansfield supports the conclusion that no federal constitutional issues were triggered
by the polling of the jury after the partial verdict on Count 6 was reached and before the jury had
concluded its deliberations on the remaining counts.
Accordingly, in sum, the undersigned concludes that petitioner is not entitled to relief
based on the claim alleged in Ground Three of the petition. Petitioner procedurally defaulted and
has waived the claim to the extent that she did not object to the poll that was taken when the trial
court received the partial verdict. In any event, petitioner has not stated a cognizable ground for
federal habeas relief to the extent she contends that the Ohio Court of Appeals erred in ruling on
the polling issues governed by Ohio law. In addition, petitioner has not demonstrated that the
alleged error triggers federal constitutional concerns. Therefore, Ground Three should be denied
with prejudice.
IT IS THEREFORE RECOMMENDED THAT:
1. The petitioner’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
(Doc. 1) be DENIED with prejudice.
2. A certificate of appealability should issue only with respect to the prosecutorial
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misconduct claims in Ground One, which were addressed on the merits herein, challenging the
prosecutor’s remarks during rebuttal closing argument that were objected to at trial. See supra
pp. 16-48.
On the other hand, a certificate of appealability should not issue with respect to the
prosecutorial misconduct claims alleged in Ground One, which this Court has concluded are
waived and thus procedurally barred from review, because under the first prong of the applicable
two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85 (2000), “jurists of
reason” would not find it debatable whether this Court is correct in its procedural ruling. 13
Similarly, a certificate of appealability should not issue with respect to the claim alleged in
Ground Three, which this Court has concluded is waived and thus procedurally barred from
review, because under the two-part Slack test, “jurists of reason” would neither find it debatable
whether this Court is correct in its procedural ruling nor find it debatable that petitioner has not
stated a viable constitutional claim. Finally, a certificate of appealaiblity should not issue with
respect to the claim alleged in Ground Two, which was addressed on the merits herein, because
petitioner has not stated a “viable claim of the denial of a constitutional right,” nor are the issues
presented in that ground for relief “adequate to deserve encouragement to proceed further.” See
Slack, 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 be taken in “good faith,” and, therefore, should
GRANT petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See
13

Because the first prong of the Slack test has not been met, the Court need not address the second prong of
Slack as to whether “jurists of reason” would find it debatable whether petitioner has stated a viable constitutional
claim with respect to the defaulted allegations of misconduct set forth in Ground One. See Slack, 529 U.S. at 484.

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Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).

Date: 5/9/2017

s/Karen L. Litkovitz
Karen L. Litkovitz
United States Magistrate Judge

68

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

TRACIE M. HUNTER,
Petitioner,

Case No. 1:16-cv-561
Black, J.
Litkovitz, M.J.

vs.
OHIO ATTORNEY GENERAL, et al.,
Respondents.
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 of law 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).

69