Klusty v. krueger

Filing 29

ORDER ADOPTING the Magistrate Judges Report and Supplemental Report; Overrulling Petitioners Objections. DENYING Petitioner a certificate of appealability and the Court certifies to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Signed by Chief Judge Algenon L. Marbley on 6/23/2022. (cw) Modified on 6/23/2020 (cw).

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
GARY KLUSTY,
Petitioner,

:

- vs -

Case No. 2:17-cv-062
Chief Judge Algenon L. Marbley
Magistrate Judge Michael R. Merz

JEFF NOBLE, Warden,
London Correctional Institution
:
Respondent.

OPINION AND ORDER

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 28) to the
Magistrate Judge’s Supplemental Report and Recommendations (“Supplemental Report,” ECF
No. 27).
As required by Fed.R.Civ.P. 72(b)(3), the District Judge has conducted a de novo review
of those portions of the Supplemental Report to which a specific objection has been made. To the
extent Petitioner makes a “general” objection in his Objections to Supplemental Report (ECF No.
28, PageID 1624), that general objection is overruled as inconsistent with the requirements of
Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b).

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Litigation History

Petitioner was indicted August 21, 2003, on three counts of rape in violation of Ohio
Revised Code § 2907.02 with force specifications, and two counts of gross sexual imposition in
violation of Ohio Revised Code § 2907.05. The case was dismissed without prejudice prior to trial
because of the unavailability of Klusty’s wife as a witness. Ten years later, on August 23, 2013,
a Delaware County grand jury re-indicted Klusty, charging him with five counts of gross sexual
imposition in violation of Ohio Revised Code § 2907.05(A)(4) and three counts of rape in violation
of Ohio Revised Code § 2907.02(A)(1)(b). A jury convicted Klusty on all charges except one
count of rape and he was sentenced to a term of ten years to life imprisonment.
The conviction and sentence were affirmed on direct appeal State v. Klusty, Delaware No.
14 CAA 07 0040, 2015-Ohio-2843 (Ohio App. 5th Dist. Jul. 13, 2015), appellate jurisdiction
declined, 144 Ohio St. 3d 1459 (2016). With the assistance of his original counsel, Petitioner filed
his Petition for Writ of Habeas Corpus pleading the following grounds for relief:
Ground One: Pre-indictment Delay/Due Process
Supporting Facts: Defendant was originally indicted in 2003. On
April 21, 2004, the State dismissed the case without prejudice, citing
unavailability of a witness due to pregnancy, and indicated that the
case would be refiled once the witness was available. The State then
failed to refile the case until August 23, 2013. By that time, the
alleged victim’s therapist, to whom she had made statements
regarding Petitioner’s conduct, had passed away. Additionally, the
therapist’s notes regarding her sessions with the alleged victim had
been lost. Defendant was thus unable to make any inquiry as to the
alleged victim’s date of disclosure to the therapist, her description
of events, or any other pertinent details of their interactions.
Notably, the witness originally cited by the State in its dismissal was
never utilized in 2013.
Ground Two: Failure to Instruct/Due Process

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Supporting Facts: When numerous jury questions were received
regarding the age of the case relative to the dates of the alleged
conduct, the trial court failed to advise the jury that the delay was
due to the State’s dismissal of the original case. Rather, the trial
court merely advised that any history of the case was irrelevant to
their deliberations. Thus, the jury was permitted to operate under the
false impression that the delay could have been due to the actions of
Petitioner.
Ground Three: Failure to Separate Witnesses/Due Process
Supporting Facts: The trial court permitted the alleged victim to
remain present in the courtroom during the testimony of other fact
witnesses despite Petitioner’s request the witnesses be separated
during the trial.

(Petition, ECF No. 1, PageID 5, 7-8.)
In his original Report and Recommendations, the Magistrate Judge recommended
dismissing all three grounds for relief on the merits (“Report,” ECF No. 12, PageID 1523, 1525,
1528). Petitioner’s original counsel did not file objections and the Court adopted the Magistrate
Judge’s Report (ECF No. 13, 14). When Petitioner learned that objections had not been filed, he
substituted current counsel (ECF No. 18, 19). On new counsel’s Motion (ECF No. 17), the
judgment was reopened (ECF No. 22) and Petitioner’s new counsel filed Objections to the original
Report (ECF No. 24). The Court recommitted the case to the Magistrate Judge (ECF No. 25), the
Magistrate Judge filed a Supplemental Report and Recommendations (“Supplemental Report,”
ECF No. 27) and Petitioner through counsel filed his current Objections (ECF No. 28).
Respondent’s time to reply to those Objections expired February 10, 2020, but no response was
filed.

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Ground One: Denial of Due Process by Pre-Indictment Delay

In his First Ground for Relief, Klusty claims he was denied due process of law by the
State’s lengthy delay prior to re-indictment (Petition, ECF No. 1, PageID 5). Respondent defended
on the merits, asserting the Ohio Fifth District Court of Appeals’ decision of this claim is entitled
to deference (Return of Writ, ECF No. 6, PageID 339-40).
The offenses in this case happened in 1998-99 (Report, ECF No. 12, PageID 1520, citing
Klusty, 2015-Ohio-2843). Klusty was first indicted for these crimes in 2003; the same offenses
formed the basis of the reindictment in 2013. Id. Thus, the Fifth District and the Magistrate Judge
concluded, Petitioner was on notice of the charges and had a motive to collect evidence at the time
of the original indictment. Id. Applying the appropriate federal standard, the Fifth District
concluded the State had not delayed the matter for tactical reasons and Klusty had shown no actual
prejudice from the delay. The Report determined that was a finding of fact, entitled to deference
under 28 U.S.C. § 2254(d)(2) because it was not an unreasonable determination of the facts based
on the evidence. Id. at PageID 1523. The Magistrate Judge adhered to this position in the
Supplemental Report.
The instant Objections reargue the possible sources of actual prejudice to Petitioner from
the delay (Objections, ECF No. 28, PageID 1605-12). However, as the original Report notes, the
Fifth District Court of Appeals considered each of these possible sources of actual prejudice and
found that no actual prejudice occurred for reasons it fully explained. This Court’s task in habeas
corpus is not to reweigh that evidence, but to determine whether the state court’s weighing was
unreasonable.
In his instant Objections, Petitioner relies on Doggett v. United States, 505 U.S. 647 (1972),

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as providing the relevant Supreme Court standard against which the state court decision must be
measured. In Doggett a five-Justice majority of the court held that an 8 ½ year delay from
indictment to trial was presumptively prejudicial and that no actual prejudice was required to be
shown. At the time of the original Report, however, both parties had agreed that the relevant
precedent was United States v. Lovasco, 431 U.S. 783 (1977)(Report, ECF No. 12, PageID 151920). In that case the Court distinguished between pre-indictment delay and speedy trial issues
post-indictment. The Magistrate Judge discussed the distinctions between Doggett and Lovasco
in his Supplemental Report (ECF No. 27, PageID 1598-99). The Court agrees that Lovasco
continues to be the relevant precedent here and that the Fifth District’s decision is not an
unreasonable application of that decision.

Ground Two: Failure to Properly Instruct the Jury

In his Second Ground for Relief, Petitioner claims that when the jury asked questions about
the age of the case, the trial judge should have “advise[d] the jury that the delay was due to the
State’s dismissal of the original case.” In fact, the trial judge responded to the jury’s questions by
instructing them:
First of all, there have been no previous trials in this case, and you're
not to consider whether any prior proceedings occurred in this
matter. Any procedural history of legal proceedings is irrelevant to
your determination in this case after the time of disclosure.
(Quoted at Klusty, 2015-Ohio-2843, ¶ 26.)
Petitioner claimed that the instruction the trial judge gave, quoted above, misled the jury
into believing that the delay between the initial dismissal and the trial was Klusty’s fault. The
Report concluded, however, that this instruction told the jury that the history was irrelevant, not
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that either side was responsible (Report, ECF No. 12, PageID 1524-25). There was no suggestion,
the Magistrate Judge found, that the prosecutor even hinted at imputing to Klusty any fault for the
delay from dismissal to trial. Id. Thus, the Respondent was entitled, he concluded, to the usual
presumption that the jury followed the instructions they were given and did not consider the delay
one way or the other. Id. In the Supplemental Report, the Magistrate Judge adhered to his
conclusions on Ground Two and found Klusty’s assertion that the jury attributed the delay to him
to be purely speculative. (Supplemental Report, ECF No. 27, PageID 1600.)
Petitioner objects that the jury was bound to be curious about the delay and the parties
should have anticipated that (Objections, ECF No. 28, PageID 1614). He also argues the jury
could have inferred he was responsible for the delay because it learned he had lived in
Pennsylvania and South Carolina for some parts of the ten years between indictments. Id. at
PageID 1615.
The Court disagrees. Any explanation by the Court of the facts relevant to the delay risked
having the jury focus on a question which was irrelevant to the issues they had to decide. Because
the cause of the delay has been properly determined pretrial to be irrelevant, the judge correctly
told the jury that indeed it was irrelevant.
In order for habeas relief to be warranted on the basis of incorrect jury instructions, a
petitioner must show more than that the instructions are undesirable, erroneous, or universally
condemned; taken as a whole they must be so infirm that they rendered the entire trial
fundamentally unfair. Waddington v. Sarausad, 555 U.S. 179, 192-94 (2009); Henderson v. Kibbe,
431 U.S. 145, 154 (1977). The only question for a habeas court to consider is "whether the ailing
instruction by itself so infected the entire trial that the resulting conviction violates due process."
Estelle v. McGuire, 502 U.S. 62, 72 (1991), quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973).

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“[T]he category of infractions that violate fundamental fairness has been defined very narrowly.”
Levingston v. Warden, 891 F.3d 251 (6th Cir. 2018), quoting Dowling v. United States, 493 U.S.
342, 352 (1990); Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000), citing Dowling, supra.
Relying on Cupp, Petitioner argues:
[B]ecause the facts available to the jury would have led a reasonable
person to infer that Klusty was at fault for the delay between
investigation and trial, the trial court’s failure to give an instruction
to cure that prejudice deprived Klusty of due process of law because
it infected the entire trial. Instead of the instruction given, the trial
court should have explained the delay was caused by the State and
the court found no justifiable reason for the delay.
(Objections, ECF No. 28, PageID 1615-16.) However, he offers no authority for the proposition
that failure to explain pretrial delay to a jury so infects a trial as to render it fundamentally unfair.
Rather than risk giving the jury facts that could lead them to believe the delay was relevant to guilt
or innocence, the trial judge quite properly told them it was not. Klusty has cited no clearly
established Supreme Court precedent which the Fifth District unreasonably applied in reaching
that conclusion.

Ground Three: Failure to Separate Witnesses

In his Third Ground for Relief, Klusty asserts his right to due process of law was violated
when the victim was permitted to be present in the courtroom during all stages of the proceedings.
Respondent had asserted that question was presented to the Fifth District purely as a matter
of state law, but the Magistrate Judge concluded the appeal raised the question of whether the
victims’ rights statutes under which the victim was permitted to remain were unconstitutional
under the Due Process Clauses of the Fifth and Fourteenth Amendments (Report, ECF No. 12,
PageID 1527). He further concluded that, because the Fifth District had decided that question on
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the merits, its decision was to be reviewed deferentially under the AEDPA. Id., citing Harrington
v. Richter, 562 U.S. 86 (2011). Noting that the Supreme Court had never held that a separation of
witnesses was constitutionally required, he recommended dismissing Ground Three. Id. at PageID
1528. He adhered to that position in the Supplemental Report (ECF No. 27, PageID 1601).
Petitioner’s Objection on Ground Three recites at some length the functional value of a
separation of witnesses and then proceed to remind the Court of the Supremacy Clause under
which Ohio law, including its victims’ rights statutes and constitutional provision, are subordinate
to the United States Constitution. These points, although valid, do not carry the day. This habeas
corpus Court is not authorized to decide de novo whether permitting the victim to be present during
this trial violated Klusty’s due process rights. Rather we are limited to deciding whether the Fifth
District’s decision that it did not was an unreasonable application of some clearly established
Supreme Court precedent. It is not.

Conclusion

Based on the foregoing analysis, the Magistrate Judge’s Report and Supplemental Report
are ADOPTED and Petitioner’s Objections are OVERRULED. Because reasonable jurists would
not disagree with this conclusion, Petitioner is denied a certificate of appealability and the Court
certifies to the Sixth Circuit that any appeal would be objectively frivolous and should not be
permitted to proceed in forma pauperis.
DATED: June 23, 2020
______________________________________
Algenon L. Marbley
Chief United States District Judge

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