Steele v. Warden, Mansfield Correctional Institution

Filing 22

OPINION AND ORDER adopting Report and Recommendations re 18 Report and Recommendations.; denying 21 Objection to Magistrate Judge Order. Signed by Judge James L Graham on 7/31/2015. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSHUA J.M. STEELE,
Petitioner,
Case No. 2:13-cv-1267
Judge Graham
Magistrate Judge King

v.
WARDEN, MANSFIELD
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On May 19, 2015, the United States Magistrate Judge recommended that this action for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Report and Recommendation,
ECF No. 18. Petitioner has objected to that recommendation. Objection, ECF No. 21. This Court
has conducted a de novo review. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b). For the reasons
that follow, Petitioner’s Objection is OVERRULED. The Report and Recommendation is
ADOPTED and AFFIRMED. This action is hereby DISMISSED.
The Magistrate Judge recommended that claims one, two and four be dismissed because
Petitioner had not fairly presented those claims to the state courts on direct appeal and that, as a
consequence, Petitioner has waived his right to this Court’s consideration of those claims. In his
objections, Petitioner argues that, in making that recommendation, the Magistrate Judge applied
an overly restrictive interpretation of the exhaustion doctrine. Petitioner maintains that the issues
he raised before this Court serve only to clarify or supplement claims presented to the state
courts and that these claims are therefore properly addressed in these proceedings.
Petitioner was convicted on a number of charges of unlawful sexual conduct with a
minor, rape and gross sexual imposition through the use of or threat of force. In his first claim
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before this Court, Petitioner alleges that the amendment of the Indictment to change the time
period during which the alleged offenses took place denied him a fair trial. Traverse, ECF 16,
PageID# 1483. Although Petitioner presented this claim to the state courts primarily as one
based on a claimed violation of state law, the Magistrate Judge concluded that Petitioner had also
sufficiently raised in the state court proceedings a federal claim based on a claimed denial of fair
notice of the charges, ability to present a defense, and protection against double jeopardy.
Report and Recommendation, PageID# 1553. However, Petitioner also alleges for the first time
before this Court that the Indictment improperly charged him with multiple undifferentiated
counts of rape and that the amendment of the Indictment caused him prejudice in the form of
interference with his theory of defense (i.e., that he had not lived in the residence when the acts
were originally alleged to have occurred), and because he was forced to testify on his own
behalf.1
A “state prisoner must give the state courts an opportunity to act on his claims before he
presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999); see 28 U.S.C. § 2254(b). “[I]t is not enough that all the facts necessary to
support the federal claim were before the state courts, or that a somewhat similar state-law claim
was made.” Anderson v. Harless, 459 U.S. 4, 6-7 (1982)(claim that the trial court improperly
instructed the jury on an element of the charge does not encompass a claim that the jury
instruction had unconstitutionally shifted the burden of proof)(citations omitted).
Obviously there are instances in which “the ultimate question for
disposition,” United States ex rel. Kemp v. Pate, 359 F.2d 749, 751
(CA7 1966), will be the same despite variations in the legal theory

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 Petitioner represents that he was prepared to argue at trial that he did not live in the home at the time of the alleged
charges, Traverse, ECF 16, PageID# 1496, and that amendment of the Indictment therefore required him to testify in
his own defense, since the expanded date range included a period during which he had admitted to living in the
victim’s home. Id. at PageID# 1500.

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or factual allegations urged in its support. A ready example is a
challenge to a confession predicated upon psychological as well as
physical coercion. See Sanders v. United States, 373 U.S. 1, 16, 83
S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963).
Picard v. Connor, 404 U.S. 270, 277 (1971)(claim of improper indictment under state law does
not encompass a claim that the method of obtaining the indictment violated equal protection of
the law). Even where a petitioner presents all the facts relating to a claim, he must also present
the federal claim arising from those facts. Id. Moreover, even the same federal claim, if raised
on different grounds, is not exhausted for the purpose of federal habeas review. Rayner v. Mills,
685 F.3d 631, 643 (6th Cir. 2012). See also Pillette v. Foltz, 824 F.2d 494, 497–98 (6th Cir. 1987)
(finding that the “doctrine of exhaustion requires that the same claim under the same theory be
presented to state courts before raising it in a habeas petition”; submission of different grounds
for ineffective assistance claim in state than in federal court did not constitute exhaustion). The
Court is not persuaded that Petitioner has met this standard.
Petitioner’s claim, presented to this Court, that the Indictment improperly charged him
with multiple undifferentiated acts is unrelated to his claim, presented to the state courts, that the
trial court improperly permitted amendment of the dates during which the alleged offenses took
place. Petitioner could have, but did not, raise an independent claim challenging the validity of
the Indictment based on multiple undifferentiated acts even without a challenge to any claimed
amendment of the Indictment. Further, nothing in Petitioner’s state appellate court brief would
have alerted the state appellate court of this claim. Under these circumstances, this Court cannot
conclude that Petitioner fairly presented this claim to the state courts.
Similarly, Petitioner never articulated to the state appellate court the manner in which he
now alleges that amendment of the Indictment caused him prejudice. Again, nothing in his state
appellate court brief even remotely suggests the allegations of prejudice now raised before this
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Court. The appellate court noted as much in its denial of Petitioner’s claim, stating, “Steele has
not demonstrated that the inclusion of March and April 2009 in the case was material to any
defense theory he put forth at trial; rather he makes only a generalized assertion.” State v. Steele,
No. 2011-CA-110, 2012 WL 3574716, at *6 (Ohio App. 5th Dist. Aug. 17, 2012). The state
appellate court could not address arguments that were not before it. This Court is therefore not
persuaded that it should do so now.
Petitioner also alleges that the evidence was constitutionally insufficient to sustain his
convictions on the charges of rape and gross sexual imposition as charged in Counts 5, 9, and 11
of the Indictment. On direct appeal, Petitioner argued before the state appellate court only that
inconsistent and contradictory testimony of prosecution witnesses provided an insufficient basis
for these convictions. In this Court, however, Petitioner now argues that the State failed to
proffer sufficient evidence on the element of “use or the threat of force.” In this regard, Petitioner
also argues that this Court should not consider Ohio Supreme Court cases clarifying the
definition of this term as it applies to crimes against minors, but instead should consider only the
trial court’s actual jury instructions. Again, this Court is not persuaded that it may consider these
new legal theories or arguments in support of Petitioner’s claim of insufficiency of the evidence.2
Petitioner relies on Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007), in support of his
objections. In Richey, however, the federal habeas petition “pleaded the same theory of
ineffective assistance of counsel as [Petitioner] had in his state post-conviction petition, often
using the identical language.” Id. at 352. Although Richey presented new facts to support his
claim after being granted the right to take discovery in the district court, “[h]e presumably would
have adduced the same facts in the state court, had that court not denied his request for an

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 In any event, the state appellate court determined that the record adequately established the “use or threat of force”
as that element is defined under Ohio law, and this Court is bound by a state court’s interpretation of its own laws.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).  

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evidentiary hearing.” Id. at 353. Moreover, “the district court expressly found that ‘Richey did
attempt to develop the factual basis for his claims in state court.” Id. “Where the legal basis for
Richey's claim has remained constant, and where the facts developed in the district court merely
substantiate it, we cannot say that the claim has been so ‘fundamentally alter[ed]’ from that
presented to the state court as to preclude our review.” Id. This Court is not persuaded that
these are the circumstances here. Simply put, this case does not involve Petitioner’s inability to
present new facts or legal arguments that he was prevented from raising in the state appellate
court.
The Magistrate Judge also recommended that Petitioner’s claim 3, which alleges a
violation of Brady v. Maryland, 373 U.S. 83 (1963), be dismissed because Petitioner had not
established that “the State appellate court was unreasonable in its conclusion that the State
committed no violation of Brady.” Report and Recommendation, PAGEID# 1568.

Petitioner

also objects to that recommendation. Petitioner’s third claim is based on the prosecution’s
disclosure, at the close of the first day of trial, of test results of DNA recovered from a couch
cover, a sleeping bag, a washcloth, and sheets located in Petitioner’s living quarters. Petitioner
complains that he was denied the opportunity to compare the DNA used in the tests with that of
the victim’s father. However, the state appellate court found that the prosecutor had sought a
continuance of the trial in order to provide Petitioner with the results of the DNA evidence, but
that Petitioner had objected to that request.

In his objections, Petitioner raises the same

arguments that were presented to and rejected by the Magistrate Judge.

For the reasons

discussed by the Magistrate Judge, this Court is not persuaded by these arguments.
For all these reasons, and for the reasons detailed in the Magistrate Judge’s Report and
Recommendation, Petitioner’s Objection, ECF No. 21, is OVERRULED. The Report and

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Recommendation, ECF No. 18, is ADOPTED and AFFIRMED.

This action is hereby

DISMISSED.
The Clerk is DIRECTED to enter FINAL JUDGMENT in this action.
Date: July 31, 2015
______s/James L. Graham __
JAMES L. GRAHAM
United States District Judge

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