Suntoke v. Warden Chillicothe Correctional Institution

Filing 80

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the case upon recommittal, the Magistrate Judge again respectfully recommends the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusi on, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 1/3/2019. Signed by Magistrate Judge Michael R. Merz on 12/20/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
KALI S. SUNTOKE,
Petitioner,

:

- vs -

Case No. 2:15-cv-1354
District Judge James L. Graham
Magistrate Judge Michael R. Merz

Warden,
Chillicothe Correctional Institution
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on recommittal from District Judge Graham
(ECF No. 79) to reconsider the case in light of Petitioner’s Objections (ECF No. 78) to the
Magistrate Judge’s original Report and Recommendations (“Report,” ECF No. 70).
The Petition was filed pro se and pleads nineteen Grounds for Relief as follows:
GROUND ONE: The Grand Jury was prejudiced and biased due to
the prosecutorial misconduct which led to the prejudice of the
Petitioner.
GROUND TWO: Petitioner' sentence of Seven years is grossly
disproportionate and inconsistent to the sentences imposed on
similar offenders for similar offenses, hence the State of Ohio fails
to comply with the United States Supreme Court’s proportionality
analysis in violation of the 8th and the 14th Amendments of the
United States Constitution.
GROUND THREE: The Trial Judge was completely biased and
prejudiced against the Petitioner on account of his race and religion.
GROUND FOUR: Both the Trial Counsels and the Appellate
Counsel were ineffective and inadequate pursuant to Strickland v/s.
Washington to the prejudice of the Petitioner.
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GROUND FIVE: The Petitioner was deprived of his liberty without
an Arrest Warrant in violation of Illinois v/s Gates, 462 US 213.
GROUND SIX: Detective Hill misled the Judge in his Affidavit for
the issue of a Search Warrant in violation of United States v/s Leon,
468 US 897.
GROUND SEVEN: There is no evidence in the Plea Colloquy
regarding a factual basis for the Plea.
GROUND EIGHT: The Trial Court failed to state the elements of
the offense during the Petitioner's Plea Colloquy in violation of
Henderson v/s Morgan, 426 US 637.
GROUND NINE: The Trial Court violated North Carolina v/s
Alford 400 US 25 by not convicting the Petitioner on a lesser
included offense which was supported by the evidence offered by
the State.
GROUND TEN: The Trial Court failed to comply with Ohio
Criminal Rule 11 (C)(2)(c) and thus failed to comply with the strict
mandates of Boykin v/s Alabama, 395 US 336.
GROUND ELEVEN: Detective Hill violated Gerstein v. Pugh 420
US 103, by not obtaining a determination of probable cause after the
warrantless arrest of the Petitioner.
GROUND TWELVE: The Trial Court violated the Petitioner's
Speedy Trial Rights.
GROUND THIRTEEN: Denial of a Continuance by the Trial
Judge violated the Petitioner's Constitutional Rights.
GROUND FOURTEEN: Trial Counsels were ineffective and
committed prejudicial errors.
GROUND FIFTEEN: Prejudicial error was committed against the
Petitioner by the Zanesville Police Department and Agent Bryant
when they violated the Petitioner's Article 36 of the Vienna
Convention to which treaty the United States is a signatory.
GROUND SIXTEEN: The Petitioner's “reasonable expectation of
privacy” rights were violated when the Franklin County Task Force
hacked into the Petitioner's personal home laptop computer.

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GROUND SEVENTEEN: Trial Counsel were ineffective and
inadequate and then committed prejudicial error when they failed to
file a Motion pursuant to Criminal Rule No. 12(C) regarding an
‘Ignorantia Facti Excusat’ Issue on Petitioner's behalf.
GROUND EIGHTEEN: The Petitioner’s constitutional rights
under the Eighth Amendment were violated as the Petitioner’s
sentence amounted to cruel and unusual punishment under the
totality of circumstances.
GROUND NINETEEN: The Zanesville Municipal Court made an
unreasonable factual determination pertaining to Petitioner’s
Waiver of the Preliminary hearing.
(Petition, ECF No. 8-2, PageID 230-31.)
The Report discusses each Ground for Relief individually after devoting space to
discussing general habeas corpus law in light of the fact that the Petition is 410 pages long and the
Traverse is 475 pages long.
Since the Report was filed, Petitioner has acquired retained counsel who filed the
Objections. Having repeated the Grounds for Relief and the standard for review of a Magistrate
Judge’s report and recommendations, counsel divides his argument into three sections:
III.

Procedural Default (Grounds 1-2, 4-16, 19) (Objections, ECF No. 78, PageID 2237-39).

IV.

No Contest Plea (Ground 1, 6, 11-12, 15-16, 18). Id. at PageID 2239-40

V.

Objections Relating to Grounds One, Seven, and Eight. Id. at PageID 2240-52.
This Supplemental Report will respond to the Objections in the way they are organized by

Petitioner’s counsel.

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III.

Procedural Default (Grounds 1-2, 4-16, 19)

In this section of the Objections, Petitioner cites the general standard for procedural default
stated in Guilmette v. Howes, 624 F.3d 286 (6th Cir. 2010)(en banc):
A habeas petitioner procedurally defaults a claim if:
(1) the petitioner fails to comply with a state procedural rule; (2) the
state courts enforce the rule; (3) the state procedural rule is an
adequate and independent state ground for denying review of a
federal constitutional claim; and (4) the petitioner cannot show
cause and prejudice excusing the default.
Id. at 690, quoting Tolliver v. Sheets, 594 F.3d 900, 928 n.11 (6th Cir. 2010)(citing Maupin v.
Smith, 785 F.2d 135, 138 (6th Cir. 1986)). Petitioner notes that the Magistrate Judge found “that
almost all claims presented in the petition were procedurally defaulted in various ways in the state
courts.” (Objections, ECF No. 78, PageID 2238). Petitioner then makes a blanket claim that his
procedural defaults are excused because “[t]hese claims could not have been discovered by the
Petitioner because he was denied ineffective [sic] assistance of counsel.” Id. at PageID 2239.
Attorney error amounting to ineffective assistance of counsel can constitute cause to excuse
a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1985); Howard v. Bouchard, 405
F.3d 459, 478 (6th Cir. 2005); Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999); Gravley v. Mills,
87 F.3d 779, 785 (6th Cir. 1996). However, Murray v. Carrier also holds that the exhaustion
doctrine "generally requires that a claim of ineffective assistance of counsel be presented to the
state courts as an independent claim before it may be used to establish cause for a procedural
default in federal habeas proceedings." 477 U.S. at 489; See also Ewing v. McMackin, 799 F.2d
1143, 1149-50 (6th Cir. 1986). Attorney error cannot constitute cause where the error caused a
petitioner to default in a proceeding in which he was not constitutionally entitled to counsel, e.g.,

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a discretionary appeal or state post-conviction proceeding. Coleman v. Thompson, 501 U.S. 722
(1991). "Attorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's
agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear
the risk of attorney error.'" Murray v. Carrier, 477 U.S. 478, 488 (1985), quoted in Coleman v.
Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640, 671 (1991). The ineffective
assistance claim cannot be presented as cause if it was itself procedurally defaulted in the state
courts, unless one of the standard excuses for that procedural default exists, to wit, actual innocence
or cause and prejudice. Edwards v. Carpenter, 529 U.S. 446 (2000).
The Report recommends relying on procedural default, at least as an alternative holding,
to dismiss the following Grounds for Relief on the bases cited:
Ground One: Grand Jury Bias Caused by Prosecutorial Misconduct. Defaulted because never
presented to the state courts. The Report also notes Suntoke never presented an ineffective
assistance claim related to Ground One to the Ohio courts. (Report, ECF No. 70, PageID 2178).
Ground Two: Disproportionate Sentence. Defaulted because apparent on direct appeal but not
raised. “Suntoke blames this on ineffective assistance of appellate counsel, but procedurally
defaulted that excuse when he failed to properly file his Ohio R. App. P. 26(B) application. See
Edwards v. Carpenter, 529 U.S. 446, 453 (2000), supra.” (Report, ECF No. 70, PageID 2181.)
Ground Three: Judicial Bias. Defaulted because never presented in a motion for disqualification
to the Chief Justice of the Supreme Court of Ohio and not raised on direct appeal. Id. at PageID
2184. Claim of ineffective assistance of appellate counsel to excuse already discussed.
Ground Four: Ineffective Assistance of Both Trial and Appellate Counsel. Defaulted because
Suntoke failed to properly file his 26(B) Application to Reopen and failed to appeal from denial
of reopening. Id. at PageID 2186.

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Ground Five: Warrantless Arrest. Found defaulted because never raised in the state courts.
Ground Six: Improperly Issued Search Warrant. Found defaulted because not raised in
petition for post-conviction relief, since it depends on facts outside the record. Id. at PageID 2201.
Ground Seven: No Record of a Factual Basis for the Conviction. Found defaulted because
available on direct appeal and never raised. Id. at PageID 2201-02.
Ground Eight: Failure of the Trial Court to State the Elements of the Offense. Same as
Ground Seven. Id.
Ground Nine: Failure to Convict of Lesser Included Offense. Same as Ground Seven. Id. at
PageID 2203. Same as Ground Seven. Id. at PageID 2203.
Ground Ten: Invalid No Contest Plea. Same as Ground Seven. Id. at PageID 2204.
Ground Eleven: Failure to Obtain Determination of Probable Cause Post-Arrest. Same as
Ground Seven, Id.
Ground Twelve: Violation of Speedy Trial Rights. Same as Ground Seven. Id. at PageID 2205.
Ground Thirteen: Denial of a Continuance to Obtain New Counsel. Same as Ground Seven.
Id. at PageID 2206.
Ground Fourteen: Ineffective Assistance of Trial Counsel/Motion to Suppress. Duplicates
Ground Four and was recommended to be dismissed on the same basis. Id.
Ground Fifteen:

Violation of the Vienna Convention.

Found defaulted because never

presented to the Ohio courts. Id.
Ground Sixteen: Violation of Privacy Rights by Hacking into Petitioner’s Computer. Same
as Ground Fifteen. Id. at PageID 2207.
Ground Seventeen: Ineffective Assistance of Trial Counsel: Failure to File a Motion
Regarding a Defense. Not found procedurally defaulted.

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Ground Eighteen: Cruel and Unusual Punishment. Same as Ground Seven. Id. at PageID
2208-09.
Ground Nineteen: Unreasonable Factual Determination by Zanesville Municipal Court.
Same as Ground Seven and also not raised in post-conviction. Id. at PageID 2209.
In the Objections, Petitioner’s counsel asserts Suntoke could not have discovered these
claims because he did not have the effective assistance of counsel (Objections, ECF No. 78,
PageID 2239). However he cites no place in the record where the claims of ineffective assistance
of trial counsel or ineffective assistance of appellate counsel were properly presented to the Ohio
courts, i.e., where those claims were not themselves defaulted. Suntoke’s position, if accepted,
would effectively overrule the procedural default doctrine established in Wainwright v. Sykes, 433
U.S. 72 (1977), and put habeas jurisprudence back where it was under Fay v. Noia, 372 U.S. 391,
438 (1963), where any claim could be raised in habeas unless the State could prove a deliberate
bypass of state procedure.
Suntoke’s claim that his failure to file is excused by his ignorance of American law and
lack of proficiency in English is barred by precedent. Bonilla v. Hurley, 370 F.3d 494, 497 (6th
Cir. 2004)(citations omitted).

IV.

No Contest Plea (Ground 1, 6, 11-12, 15-16, 18)

Petitioner concedes the correct analysis of whether the no contest pleas can stand turns on
the voluntariness of the plea (Objections, ECF No. 78, PageID 2239). Petitioner also admits the
trial judge asked the appropriate questions to determine if the plea was knowingly and intelligently
made. Id. at PageID 2240. But then Petitioner turns to matters which are not supported by

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evidence:
Petitioner felt frightened and bullied by counsel to Plea based upon
conversation regarding the consequences of not placing the plea.
Petitioner also was not fully advised in regard to the deportation
issue. While the Judge properly addressed it in the plea colloquy he
did not fully understand the ramifications as it was briefly addressed
nor what would happen if he chose to withdraw his plea since his
counsel made him fearful that he would be facing over three hundred
years in prison.
Id. at PageID 2240. Petitioner’s counsel gives no evidentiary references for these asserted facts at
all. The proper place to present such facts would have been in post-conviction, but counsel gives
no citation to show that they were thus presented. This Court cannot consider them now in the
first instance because of the bar of Cullen v. Pinholster, 563 U.S. 170 (2011).
Moreover, when a state court judge properly inquires with respect to a tendered no contest
plea and the defendant answers that he understands, the federal courts will hold him to his
representations. A plea-proceeding transcript which suggests that a guilty or no contest plea was
made voluntarily and knowingly creates a “heavy burden” for a petitioner seeking to overturn his
plea. Garcia v. Johnson, 991 F.2d 324, 326–28 (6th Cir. 1993). Where the transcript shows that
the guilty or no contest plea was voluntary and intelligent, a presumption of correctness attaches
to the state court findings of fact and to the judgment itself. Id. at 326–27.
A court cannot rely on the petitioner’s alleged “subjective impression” “rather than the
bargain actually outlined in the record,” for to do so would render the plea colloquy process
meaningless. Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999). If the plea colloquy process
were viewed in this light, any defendant who alleged that he believed the plea bargain was different
from that outlined in the record would have the option of withdrawing his plea despite his own
statements during the plea colloquy indicating the opposite. Id.

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V.

Objections Relating to Grounds One, Seven, and Eight.

The gravamen of this set of Objections is that the facts recited in the plea colloquy will not
support conviction of the crimes as indicted.
As the Report notes, Petitioner was indicted on thirty-two counts of pandering obscenity
involving a minor as a second degree felony in violation of Ohio Revised Code § 2907.321(A)(1)1
(Indictment, State Court Record, ECF No. 14-1, PageID 651, et seq.).
Ohio Revised Code § 2907.321 (A) provides:
No person, with knowledge of the character of the material or
production involved, shall do any of the following:
(1)
Create, reproduce, or publish any obscene material that has
a minor as one of its participants or portrayed observers;

The Indictment charges offenses in the words of the statute. For example, Count One reads:
THE JURORS OF THE GRAND JURY of the State of Ohio, within
and for the body of the County aforesaid, on their oaths, in the name
and by the authority of the State of Ohio, do find and present that on
or about 03/25/2012, in the County of Muskingum, Ohio, Kali S.
Suntokc did. with knowledge of the character of the material or
performance involved, create, reproduce or publish any obscene
material. to-wit: Video titled Pedo Boy-Man F*** and Rape Preteen
Boys Really Deep Enter PI 0 I.mpg., that has a minor as one of its
participants or portrayed observers: in violation of Ohio Revised
Code, Title 29, Section 2907.32l(A)(l) and against the peace and
dignity of the State of Ohio (emphasis added).

On the date set for trial, April 9, 2013, Petitioner agreed to plead no contest to Counts 1-9,
14-15, 20-21, 28-29, and 32 with the remainder of the charges to be dismissed and with an agreed

1

The Indictment also charges one count of violating Ohio Revised Code § 2907.321(A)(5), but that count was
dismissed as part of the Plea Agreement.

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sentence of seven years’ imprisonment. (Plea Agreement, State Court Record, ECF No. 14-1,
PageID 716-18.) Each of those counts is a charge of pandering obscenity involving a minor and
Suntoke pleaded no contest to each of those counts separately. The prosecutor then read the
following stipulation into the record:
The defense and State would stipulate that if Special Agent Cameron
Bryant were called as a witness the following facts would be
presented before the Court or a jury for purposes of a trial. That on
November 15th, 2011, investigators with the Franklin County
Internet Crimes Against Children Task Force discovered that a
computer in Zanesville, Ohio, was accessing and sharing images of
sexually exploited children via the internet.
Special Agent Cameron Bryant obtained a search warrant for the
residence of Kali Suntoke as a result of this investigation. The search
warrant led to the discovery of multiple computers containing more
than 2,000 videos and images that showed children under the age of
18 engaged in numerous sexual activities that included fellatio,
cunnilingus, vaginal intercourse, and anal intercourse. Included in
those files were files downloaded between January 15th of 2004 and
March 27th of 2011, were those -- within those dates were the
sixteen counts the defendant is pleading no contest to today. These
images all contained underage victims engaging in sexual conduct
that appeal to prurient interest, depicts sexual conduct in a patently
offensive way, and lacks serious literary, artistic, political, or social
value. This occurred in Muskingum County, State of Ohio.
(Plea Transcript, State Court Record, ECF No. 14-2, PageID 1157-58.) Suntoke’s attorney at the
time agreed that there were no objections to the indictment as returned. Id.
By accepting this stipulation, Suntoke admitted downloading images of child pornography
from the Internet. He had been caught with over two thousand such images on his computer.
“Downloading” consists of copying something from an internet website onto a storage medium,
either a computer hard drive or a removable medium. United States v. Romm, 455 F.3d 990, 1006,
n. 3 (9th Cir. 2006). Downloading is sufficient to constitute reproducing, thereby satisfying the
statutory element. Cooper v. Smith, Case No. 1:11-cv-699, 2013 WL 6119223 at *14 (N.D. Ohio

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Nov. 21, 2013).
Suntoke argues the stipulation of facts is not enough for conviction. He claims that to be
convicted of pandering obscenity, one must guilty of creating and reproducing and publishing the
obscene matter (Objections, ECF No. 78, PageID 2243). But that is not the Ohio law. Ohio
Revised Code § 2907.321(A)(1) reads in the disjunctive: “create, reproduce, or publish.” The
Report makes this point, but Suntoke argues “Magistrate Merz missed what the Grand Jury
‘actually did.’ . . . . The Grand Jury ‘fully and clearly’ set out that Petitioner committed all three
elements for each count.” (Objections, ECF No. 78, PageID 2246). That is simply not so. The
Indictment uses exactly the same language as the statute, “create, reproduce, or publish” (See
Count One, quoted above from the Indictment (State Court Record, ECF No. 14-1, PageID 658).)
Petitioner correctly notes that, as a matter of due process, the State must prove every
element of the charged crime. In re Winship, 397 U.S. 358 (1970). But it is state law that
determines what the elements of the crime are. Here the Ohio General Assembly has determined
that a person can commit pandering of obscenity involving a minor by creating the obscene
material or reproducing it or by publishing it. The plain language of the statute is disjunctive and
nothing in the United States Constitution prevents a State from legislating alternative elements of
a crime.
Petitioner includes several pages of citations about the importance of the grand jury in
Anglo-American jurisprudence (ECF No. 78, PageID 2244-47). However, he fails to explain why
that is relevant to this case. The grand jury here charged Petitioner in the words of the statute
which are disjunctive. Petitioner stipulated to facts which admit he reproduced child pornography.
His right to grand jury indictment is not in issue.2

2

Petitioner’s counsel continues to assert that the Grand Jury Clause of the Fifth Amendment applies to the States.
Borrowing language from bankruptcy practice, he asserts the Fourteenth Amendment “crammed the Federal Bill of

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Petitioner makes much of the fact that this case began with a complaint filed in the
Zanesville Municipal Court which resulted in the arrest warrant that brought Mr. Suntoke into
custody. Counsel purports3 to quote the Complaint as charging Petitioner in the words of the
statute -- “create, reproduce, or publish” – and then asserts the Zanesville Police Officer who filed
the Complaint intended to charge all these elements (Objections, ECF No. 78, PageID 2243). The
language, assuming the quotation is accurate, hardly supports Petitioner’s argument – the officer
used the same disjunctive language that appears in the statute. Moreover, the governing charging
document is the Indictment which supersedes the Complaint in a felony case. Petitioner actually
admits that point at ECF No. 78, PageID 2244.
Mr. Suntoke argues the Supreme Court has invalidated the Magistrate Judge’s analysis of
the statute and indictment as being disjunctive (Objections, ECF No. 78, PageID 2249, citing
Turner v. United States, 396 U.S. 398 (1970). The language quoted – “It is less than fantastic” –
is from the dissent of Justices Black and Douglas and has nothing to do with a statute or indictment
that reads in the disjunctive.
Objecting to the proposed disposition of Ground Eight, Petitioner claims the trial judge
never mentioned the elements of the offenses in the plea colloquy, in violation of Henderson v.
Morgan, 426 U.S. 6374 (Objections, ECF No. 78, PageID 2250). The holding in Henderson is not
about the plea colloquy, but whether there was a finding or admission of the mens rea element.
The requisite mens rea in this case is knowing the nature of the obscene material downloaded. The

Rights down on every state throughout, and the Fifth Amendment was but one of them” The courts usually speak of
“incorporation” rather than “cram down.” And the Supreme Court has recently confirmed that the Grand Jury Clause
is a part of the Bill of Rights not incorporated into the Fourteenth Amendment. McDonald v. Chicago, 561 U.S. 742
(2010).
3
Petitioner gives no record reference to allow checking the correctness of the quotation.
4
Petitioner’s counsel miscites Henderson as appearing at 426 U.S. 437. The case that actually appears
at that citation is Oil, Chemical & Atomic Workers v. Mobil Oil Corp., 426 U.S. 407 (1976)

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stipulation describes the content of the more than 2,000 videos and images recovered in terms of
the age of participants and the nature of the sexual conduct displayed. This is not material an adult
male can look at and say he did not know it was children engaged in sexual conduct. There are
therefore facts in the stipulation to ground a finding of mens rea. The Report rejected Ground
Eight on this same analysis and also noted it was procedurally defaulted by omission on direct
appeal.

Conclusion

Having reconsidered the case upon recommittal, the Magistrate Judge again respectfully
recommends the Petition be dismissed with prejudice. Because reasonable jurists would not
disagree with this conclusion, Petitioner should be denied a certificate of appealability and the
Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and
therefore should not be permitted to proceed in forma pauperis.
December 20, 2018.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
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Judge otherwise directs. A party may respond to another party=s objections within fourteen days
after being served with a copy thereof. Failure to make objections in accordance with this
procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947, 949-50 (6th
Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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