Rucker v. Warden Lebanon Correctional Institute

Filing 7

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the case in light of the Objections, the Magistrate Judge again respectfully recommends that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with th is 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. Objections to R&R due by 11/22/2013. Signed by Magistrate Judge Michael R Merz on 11/5/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SIDNEY RUCKER,
Petitioner,

:

- vs -

Case No. 3:13-cv-344
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

ERNIE MOORE,WARDEN,
Lebanon Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 5) to the
Magistrate Judge’s Report and Recommendations (the “Report,” Doc. No. 3) recommending
dismissal of the Petition. Judge Black has recommitted the case for reconsideration in light of
the Objections (Doc. No. 6).
The Petition pleads four Grounds for Relief.

Rucker only objects to the proposed

disposition of Grounds One, Three, and Four.

Ground One: Violation of the Fourth Amendment

In his First Ground for Relief Rucker asserts various Fourth Amendment violations in his
initial detention and arrest and complains that the state courts did not sanction those violations by
suppressing the resulting evidence.

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The Report noted that Fourth Amendment violations are not cognizable in habeas corpus
if the petitioner has been given a full and fair opportunity to litigate those issues in the original
state court prosecution. (Report, Doc. No. 3, PageID 45), citing Stone v. Powell, 428 U.S. 465
(1976).
Rucker admits that he was given a full opportunity to litigate these questions in the state
courts, but claims that a state prisoner is still entitled to habeas relief if the:
claims previously adjudicated on the merits by a state court resulted in a decision that (1) "was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States" or (2) "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).While that is true for other constitutional claims, it is not true for Fourth
Amendment claims. Stone v. Powell, supra, prevents this Court from reaching the merits of a
Fourth Amendment claim if the petitioner had a full and fair opportunity to litigate it in the state
courts. Van Poyck v. Florida Dept. of Corrections, 290 F.3d 1318 (11th Cir. 2002), the authority
relied on by Rucker, is not a Fourth Amendment case and does not consider the Stone v. Powell
rule. The First Ground for Relief should be dismissed with prejudice.

Ground Two: Prosecutorial Misconduct

Rucker makes no objection to the proposed dismissal of this Ground for Relief.

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Ground Three: Trial Judge Mishandling of Deliberations

In his Third Ground for Relief, Rucker asserts his constitutional rights under the Fifth,
Sixth, and Fourteenth Amendments were violated when the trial judge answered a question from
the jury during deliberations without first consulting with counsel.
In deciding Rucker’s direct appeal, the Second District Court of Appeals found that the
jury did send the judge a set of questions on the second day of deliberations. The judge
attempted unsuccessfully to reach Rucker’s counsel, then answered the question in writing,
without consulting either counsel, as follows: "Focus on action, if you find it occurred. Look at
page 7, Count II of the instructions[.]" State v. Rucker, 2012 Ohio 4860, 2012 Ohio App. LEXIS
4254, ¶ 38 (2nd Dist. Oct. 19, 2012). Rucker does not dispute that this is an accurate account of
what happened. (Objections, Doc. No. 5, PageID 65.)
The Second District also agreed that a criminal defendant has a constitutional right under
the Fourteenth Amendment to have his counsel present during a court conference regarding a
jury question. State v. Rucker, supra, ¶¶ 41-43. The fact that such communication happened is
trial court error, but not conclusively presumed to be prejudicial. Id. at ¶ 44. The Second
District concluded:
the answer given to the question was the same both before and
after hearing from the attorneys. Because the trial court's response
essentially reiterated the instructions previously provided, albeit
not in the same words, we conclude that the court's erroneous
communication with the jury during deliberations was harmless.

Id., ¶ 45.
Rucker argues in his Objections that “[t]he U.S. Supreme Court has clearly established
that the actual or constructive denial of counsel during a critical state [sic] of a judicial
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proceedings [sic] mandates a presumption of prejudice.” (Objections, Doc. No. 5, PageID 67),
citing Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). Under these circumstances, he
claims, neither Strickland v. Washington, 466 U.S. 668 (1984), nor harmless error analysis
applies. Id. Thus Rucker asserts both the Second District and the Magistrate Judge misapplied
this controlling Supreme Court case.
In Roe, the Supreme Court relied on its prior cases, United States v. Cronic, 466 U.S. 648
(1984); Penson v. Ohio, 488 U.S. 75 (1988); and Smith v. Robbins, 528 U.S. 259 (2000), to hold:

the complete denial of counsel during a critical stage of a judicial
proceeding mandates a presumption of prejudice because "the
adversary process itself " has been rendered "presumptively
unreliable." Cronic, supra, at 659. The even more serious denial of
the entire judicial proceeding itself, which a defendant wanted at
the time and to which he had a right, similarly demands a
presumption of prejudice. Put simply, we cannot accord any
"'presumption of reliability,'" Robbins supra, at (slip op., at 24),
to judicial proceedings that never took place.
Id. at 483. The issue in Roe was failure of counsel to file a notice of appeal, which deprived the
defendant of any appeal whatsoever. However, the Supreme Court reversed the Ninth Circuit’s
adoption of a per se prejudice rule under these circumstances; the defendant was still required to
prove prejudice, i.e., that counsel failure to file the notice had actually deprived him of the
appeal.

To put it another way, the defendant was required to prove prejudice under the

Strickland standard.

Roe, supra, at 484.

Although there is a mandatory presumption of

prejudice, it is not a conclusive presumption; instead, it is a presumption which can be rebutted.
By deciding that counsel’s absence at the time the trial judge answered the jury’s
question was harmless, the Second District in effect determined that there was no prejudice to
Rucker’s case from counsel’s absence. Rucker fails to overcome that finding, entitled as it is to
deference under 28 U.S.C. § 2254(d)(1). The Second District found that the trial judge’s answer
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was, in essence, the same instruction defense counsel requested, but in different words. Rucker
argues that “[t]here is no way for this Court to go into the minds of the jurors and determine how
they interpreted this answer or how the answer had an effect on the verdict.” (Objections, Doc.
No. 5, PageID 68.) However, that is always the case with jury instructions – neither the original
trial court nor any reviewing court learns what impact certain words had on a jury because jurors
may not testify about their deliberations. Ohio R. Evid. 606(B). Reviewing courts can only
determine whether the instructions properly state the law or are misleading. Here the Second
District determined that the words the trial judge used were essentially the instruction defense
counsel asked to be given and there was no issue whether that was a correct statement of Ohio
law. Rucker has offered no basis on which to find under these circumstances that giving the
answer without counsel present was anything but harmless. Ground Three for Relief should be
denied.

Ground Four: Ineffective Assistance of Trial Counsel

In his Fourth Ground for Relief, Rucker asserts he received ineffective assistance of trial
counsel when his trial attorney failed to raise “all meritorious issues presented above.” As noted
in the Report, the Second District decided this claim on the merits. (Report, Doc. No. 3, PageID
55-59, quoting State v. Rucker, supra, ¶¶ 56-71.) The actual allegedly deficient performance
which Rucker argues in his Objections is the failure to file a motion to suppress the improper
show-up identification. (Objections, Doc. No. 5, PageID 74.) Rucker did not argue in the state
appeals court that the show-up procedure itself was illegal, but rather that the initial detention
and arrest were illegal. State v. Rucker, supra,. ¶ 66. He repeats this position in his Objections:

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“[t]his claim is solely based on the fact that petitioner was illegally arrested and if the arrest was
illegal then the identification was illegal. In short, petitioner could not have been identified by
anyone if he was never illegally [sic] arrested.” (Objections, Doc. No. 5, PageID 74.) However,
in the very next sentence, he states “[p]etitioner ask [sic] this Court to find that the procedures
used to identify him were improper and unduly suggestive in violation of the Fourth, Fifth, and
Fourteenth Amendment [sic] to the United States Constitution.” Id. at PageID 75. This appears
to be a challenge – albeit without any supporting argument or detail – about the show-up
procedures rather than the original arrest.
As noted by the Second District, in ¶ 66 of its opinion, Rucker raised a claim about the
show-up procedures in the trial court but did not pursue in the court of appeals. If that is the
claim he is now making, it is procedurally defaulted by his failure to present it on direct appeal.
O’Sullivan v. Boerckel, 526 U.S. 838, 846-47 (1999).
On the other hand, if Rucker is pursuing a claim that the original detention was unlawful
and his counsel was ineffective for failing to raise that claim, this claim of ineffective assistance
of trial counsel was pursued on appeal and the Second District determined it was without merit
because any such motion to suppress would likely not have been granted. State v. Rucker, supra,
¶¶ 68-69, quoted in the Report, Doc. No. 3, PageID 58. In the Report, the Magistrate Judge
concluded this Fourth Ground for Relief was without merit because the Second District’s
decision was not an objectively unreasonable application of the relevant United States Supreme
Court precedent, Terry v. Ohio, 392 U.S. 1 (1968). In his Objections, Rucker cites no Supreme
Court authority to the contrary. The Fourth Ground for Relief should therefore be denied.

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Conclusion

Having reconsidered the case in light of the Objections, the Magistrate Judge again
respectfully recommends that 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.

November 5, 2013.
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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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