Smith v. Warden, Southern Ohio Correctional Facility

Filing 12

REPORT AND RECOMMENDATIONS - It is respectfully recommended 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 s hould 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 11/3/2016. Signed by Magistrate Judge Michael R. Merz on 10/17/2016. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
THEODORE W. SMITH, III,
Petitioner,

:

- vs -

Case No. 3:16-cv-308
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

RONALD ERDOS, Warden,
Southern Ohio Correctional Facility
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought by Petitioner Theodore Smith pro se under 28
U.S.C. § 2254. After initial review of the Petition (ECF No. 1-1), the Court ordered Respondent
to file an answer and the state court record, which has been done (ECF Nos. 8, 9). Petitioner has
now filed a Response to the Return of Writ (ECF No. 10), making the case ripe for decision.
Mr. Smith seeks relief from his kidnapping convictions in the Montgomery County
Common Pleas Court in June 2014. He pleads the following grounds for relief:
Ground One: Double Jeopardy
Supporting Facts: August 25, 2008, I was acquitted of Count II
kidnapping of Cassie Davis 2905.01(A)(2). May 2, 2014, I was
retried/convicted of the Count I kidnapping of Cassie Davis
2905.01(A)(3). Both forms of kidnapping resulted from a State
allied offense. Both Count I and Count II relied upon the same
evidence to sustain them (at trial). Thus, they are the same offense
for the purpose of double jeopardy protections.
Ground Two: Trial court lacked subject matter jurisdiction.

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Supporting Facts: Because of prior acquittal on the Count I
kidnapping of Cassie Davis the trial court lacked jurisdiction to try
the case a second time.

(Petition, ECF No. 1-1, PageID 17, 19.)

Procedural History

The procedural history of this case is quite lengthy and complex. The portions essential to
deciding this case were recited by the Ohio Second District Court of Appeals in its most recent
decision on this case:
I. Background
The crime
[*P2] Cassie Davis testified that on November 28, 2007, around
9:00 a.m. Smith woke her up by dragging her by the hair down the
hallway of her apartment into the living room. Smith then tossed
her on the couch. Davis's 18-month-old son was in his crib
screaming, so Davis went to the child's room, with Smith
following closely. She picked up her son and sat down. Smith told
her to "'[f]ix it. Shut him up now.'" (Trial Tr. 132). Davis said that
the child was hungry, so Smith allowed Davis to go into the
kitchen and get a bottle. After Davis fed her son, she put him in
front of the television to watch cartoons. She sat down, and Smith
asked her, "'Where's Anthony?'" (Id. at 133). Davis told Smith that
she did not know where Anthony was. Smith then said, "'Well,
Anthony owes me some money.'" (Id.). At this point, Davis was
"scared out of [her] mind." (Id.).
[*P3] Davis testified that while she was talking to Smith, he was
standing in her living room blocking the front door—the only door
to the apartment. Davis reminded Smith that she had talked to
Anthony the previous night and gave him Smith's number. Smith
said, "'Well, he's not there. I can't find him. He owes me money.
And if I don't get my money from him, I'm going to get it from
you.'" (Id. at 134). Davis testified that Smith kept threatening her
and demanding money from her. At one point Smith said, "'I
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should hurt you right now.'" (Id. at 143). Davis said, "'No, no.'"
(Id.). Smith then said, "'Well * * * [y]ou better get my money. I
want my money.'" (Id.).
[*P4] Wanting to get to a phone and call 911, Davis lied and told
Smith that she worked at Lee's Chicken and had to call there to see
about her paycheck. Davis did not have a phone in her apartment.
She told Smith that her sister, who lived in a downstairs apartment,
had a phone. Smith told her to go use the phone. Davis grabbed her
son and started walking towards the door. But Smith stood in front
of her, pointed to the boy, and said, "'You're not taking him.'" (Id.
at 146). Smith then grabbed Davis's arm and led her to the couch,
where she sat down. Smith went into the kitchen and grabbed a
knife. When he came back, Smith held the knife about six inches
from her son's throat and said, "'If you don't come back with my
money, I'm going to hurt him.'" (Id. at 147).
[*P5] Smith led Davis to the door and pushed her out. She ran
downstairs to her sister's apartment and started banging on the
door. When her sister opened the door, Davis told her, "'There's
somebody in my apartment. He's going to hurt [my son].'" (Trial
Tr. 147). Davis ran to the phone and called 911. Afterwards, she
then went back upstairs to her apartment.
[*P6] Smith asked Davis where her check was. She told him that
she had to go and get it. Davis said that she had to call first and
that her sister was on her phone. She asked Smith if she could use
his phone. Smith told her that she had to be quick using his phone
because he was on a minute phone. As Davis walked to the
kitchen, the police burst into the apartment.
[*P7] Davis testified that Smith was in her apartment that day for
about three hours. And while she was in the apartment Smith was
never more than six feet away from her.
The charged offenses
[*P8] Smith was indicted on one count of kidnapping with purpose
to terrorize or to inflict serious physical harm, in violation of R.C.
2905.01(A)(3) (Count I); one count of kidnapping to facilitate the
offense of aggravated robbery, in violation of R.C. 2905.01(A)(2)
(Count II); one count of aggravated robbery with a deadly weapon,
in violation of R.C. 2913.01(K) and 2911.01(A)(1) (Count III); and
one count of kidnapping of a person under the age of thirteen with
purpose to hold for ransom or as a shield or hostage, in violation of
R.C. 2905.01(A)(1) (Count IV).
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Smith's original trial and appeal
[*P9] Following a jury trial, Smith was convicted on Counts I and
IV and on Count II's lesser-included offense of unlawful restraint.
He was found not guilty on the indicted kidnapping charge in
Count II and the charge in Count III. Smith was sentenced to a
total of 15 years in prison. On appeal, we reversed his convictions
because there had been a violation of his constitutional right to
confront one of the witnesses against him. State v. Smith, 2d Dist.
Montgomery No. 22926, 2010-Ohio-745.
Smith's second trial and appeal
[*P10] Following a second jury trial, Smith was again convicted
on Counts I and IV and on Count II's lesser-included offense. He
was again sentenced to 15 years in prison. On appeal, Smith's
appointed counsel filed a brief under Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that he
could find no potential assignments of error having arguable merit.
We agreed and affirmed. State v. Smith, 2d Dist. Montgomery No.
24402, 2012-Ohio-734.
Smith's reopened appeal
[*P11] Smith moved to reopen his second appeal under App.R.
26(B), arguing that his prior appellate counsel was ineffective for
not raising certain assignments of error having potential merit. We
agreed and reopened the appeal. We then reversed his convictions
because the trial court erroneously excluded a prospective juror.
State v. Smith, 2d Dist. Montgomery No. 24402, 2013-Ohio-1586.
Smith's third trial and current appeal
[*P12] The third time around, only Counts I and IV were tried to a
jury. And a different judge presided over the case. The jury found
Smith guilty on both counts, and the trial court imposed two
concurrent 8-year prison terms.
[*P13] Smith appealed, and the State cross-appealed. Smith's
appointed appellate counsel filed a brief under Anders stating that
he could find no potential assignments of error having arguable
merit, and Smith filed a brief pro se. We appointed new appellate
counsel, who filed a merit brief.

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State v. Smith, 2016-Ohio-1269, 2016 Ohio App. LEXIS 1340 (2nd Dist. Mar. 25, 2016),
appellate jurisdiction declined, 146 Ohio St. 3d 1430 (2016).

Ground One: Double Jeopardy

In his First Ground for Relief, Mr. Smith asserts his conviction at his third trial on the
charge of kidnapping Cassie Davis with purpose to terrorize or to inflict serious physical harm,
in violation of R.C. 2905.01(A)(3), as charged in Count I of the indictment is precluded under
the Double Jeopardy Clause of the Federal and Ohio Constitutions1 by his acquittal at his first
trial on the charge of kidnapping Cassie Davis to facilitate the offense of aggravated robbery, in
violation of R.C. 2905.01(A)(2) as charged in Count II.
Although the Court reads the Petition as preserving Smith’s Ohio constitutional claim,
the Court has no authority to grant relief on the basis of a state constitutional violations,
assuming one occurred. Federal habeas corpus is available only to correct federal constitutional
violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497
U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida, 463 U.S. 939
(1983).

"[I]t is not the province of a federal habeas court to reexamine state court

determinations on state law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

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As a pro se litigant, Mr. Smith is entitled to a liberal reading of his pleadings. Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976); McNeil v. United States, 508 U.S. 106, 113 (1993). The
Petition mentions “double jeopardy protections” and Smith made an Ohio constitutional argument in the state
courts. The Court presumes he did not intend to abandon it and indeed he argues that claim in his Response (ECF
No. 10, PageID 775-77).

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When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
The Second District decided Mr. Smith’s federal Double Jeopardy claim on the merits,
writing:
A. Double jeopardy

[*P15] The sole assignment of error alleges that Smith's
convictions violate the Double Jeopardy clauses of U.S.
Constitution and the Ohio Constitution.
[*P16] The Fifth Amendment guarantee against double jeopardy
"consist[s] of three separate constitutional protections. It protects
against a second prosecution for the same offense after acquittal. It
protects against a second prosecution for the same offense after
conviction. And it protects against multiple punishments for the
same offense." N. Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct.
2072, 23 L.Ed.2d 656 (1969). But "the Double Jeopardy Clause's
general prohibition against successive prosecutions does not
prevent the government from retrying a defendant who succeeds in
getting his first conviction set aside, through direct appeal or
collateral attack, because of some error in the proceedings leading
to conviction." [footnote omitted] (Citations omitted.) Lockhart v.
Nelson, 488 U.S. 33, 38, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).
[*P17] The Double Jeopardy Clause encompasses the doctrine of
collateral estoppel, under limited circumstances. In Ashe v.
Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970),
the U.S. Supreme Court held that "the Double Jeopardy Clause
precludes the Government from relitigating any issue that was
necessarily decided by a jury's acquittal in a prior trial." Yeager v.
United States, 557 U.S. 110, 119, 129 S.Ct. 2360, 174 L.Ed.2d 78
(2009). The Court explained that "'when an issue of ultimate fact
has once been determined by a valid and final judgment' of
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acquittal, it 'cannot again be litigated' in a second trial for a
separate offense." Id., quoting Ashe at 443. The Supreme Court of
Ohio has adopted this concept. State v. Thomas, 61 Ohio St.2d 254,
400 N.E.2d 897 (1980), paragraph four of the syllabus (holding
that "successive prosecutions [are] barred in certain circumstances
where the second prosecution requires the relitigation of factual
issues already resolved by the first"). The Ohio Supreme Court has
said that "a person may not be subjected to multiple prosecutions
when proof of the one offense is necessary, as a practical matter, to
prove the other, and both completed offenses arose out of the same
criminal conduct." Id. at 261. To determine what a jury
"necessarily decided" when a previous acquittal is based on a
general verdict, a court should "examine the record of a prior
proceeding, taking into account the pleadings, evidence, charge,
and other relevant matter, and conclude whether a rational jury
could have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose from consideration." Ashe
at 444.
[*P18] Here, Smith contends that he should not have been retried
on the kidnapping charges because they are the same offenses as
the kidnapping charge that he was acquitted of.
[*P19] The conduct prohibited by the kidnapping statute is
"remov[ing] another from the place where the other person is
found or restrain[ing] the liberty of the other person" "by force,
threat, or deception, or, in the case of a victim under the age of
thirteen or mentally incompetent, by any means." R.C. 2905.01(A).
To be guilty of kidnapping, one must engage in this prohibited
conduct with one of the six purposes listed in the statute. Relevant
here are the first three purposes:
(1) To hold for ransom, or as a shield or hostage;
(2) To facilitate the commission of any felony or flight
thereafter;
(3) To terrorize, or to inflict serious physical harm on the
victim or another.
R.C. 2905.01(A). Count I alleges that Smith's purpose in
restraining Davis's liberty was to terrorize her. Count II alleges that
his purpose in restraining Davis's liberty was to facilitate the
commission of aggravated robbery. And Count IV alleges that
Smith's purpose in restraining Davis's son's liberty was to hold him
for ransom or as a shield or hostage. The jury in the first trial found
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Smith not guilty of Count II. But that jury and two subsequent
juries found him guilty of Counts I and IV.
[*P20] The prosecutions for Counts I and IV do not require
relitigating any factual issue that the jury "necessarily decided" in
Smith's favor when it found him not guilty of Count II. By finding
him not guilty of Count II, the jury did not necessarily decide that
Smith did not engage in the prohibited conduct (restraining Davis's
liberty). Rather, the jury "necessarily decided" only that Smith's
purpose in engaging in the prohibited conduct was other than to
facilitate the commission of aggravated robbery. In other words,
the jury could reasonably have grounded its verdicts solely on the
issue of Smith's purpose. The jury found that Smith restrained
Davis's liberty and that his purpose in doing so was to terrorize her
(Count I), but not to facilitate the commission of aggravated
robbery (Count II). And the jury found that Smith restrained
Davis's son's liberty and that his purpose in doing so was to hold
him for ransom or as a shield or hostage (Count IV).
[*P21] The prosecution for Counts I and IV did not require
relitigating an issue that was necessarily decided by the jury's prior
acquittal on Count II. Neither Count I nor Count IV charges the
same offense as Count II. Therefore Smith's double-jeopardy
protections were not violated.
[*P22] Appellant's sole assignment of error is overruled.
State v. Smith, supra.
To prevail on his federal Double Jeopardy claim, then, Mr. Smith must show the Second
District’s decision was contrary to or an objectively unreasonable application of clearly
established United States Supreme Court law.
Mr. Smith makes an argument in his Response that Counts I and II of the Indictment,
both charging kidnapping but with different purpose, are allied offenses of similar of similar
import under Ohio Revised Code § 2941.25.

Under the Ohio Supreme Court’s current

interpretation of that statute in State v. Johnson, 128 Ohio St. 3d 153 (2010), Smith could be
correct. But the result of an allied offenses finding under § 2941.25 is that a person may be
convicted of both but punished for only one of such offenses. Smith was convicted of only one
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of these hypothetically allied offenses so § 2941.25 would provide him with no relief. And in
any event the questions of whether two offenses are allied for purposes of that statute is a
question of Ohio law, not federal constitutional law. The question of whether two statutes are
sufficiently different to permit conviction under both for Double Jeopardy purposes is
determined by the different elements test. United States v. Dixon, 509 U.S. 688, 696 (1993);
Blockburger v. United States, 284 U.S. 299, 304 (1932). The two portions of the kidnapping
statute under which Mr. Smith was indicted have disparate elements, to wit, regarding the
purpose of the offender, as the Second District found. Mr. Smith recognizes the applicability of
Dixon and Blockburger in his Response (ECF No. 10, PageID 778). However, he argues that
“the pertinent question is whether the Count II kidnapping of Cassie Davis and the Count I
kidnapping of Cassie Davis are the same offense.” Id. at PageID 780, arguing that both offenses
have the same mens rea element of acting purposely.
The analysis cannot, however, stop at that point. The statues involved in Count I and in
Count II require different purposes, to wit a purpose to “terrorize or to inflict serious physical
harm” (Count I) or a purpose “to facilitate the offense of aggravated robbery” (Count II). Those
are different elements under Blockburger.
An acquittal on Count II logically entails a jury finding that the State had not proven
beyond a reasonable doubt that Smith kidnapped Davis with the purpose of committing an
aggravated robbery.

That is not inconsistent with finding the State had proved beyond a

reasonable doubt that he acted with the purpose of terrorizing her. Thus the Second District’s
decision does not run afoul of the collateral estoppel corollary of Double Jeopardy recognized in
Ashe v. Swenson, 397 U.S. 436 (1970).
Mr. Smith asserts the Second District’s decision is an objectively unreasonable

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application of Grady v. Corbin, 495 U.S. 508 (1990). Grady has been expressly overruled by the
Supreme Court in Dixon, supra.
Mr. Smith’s First Ground for Relief is without merit and should be dismissed with
prejudice.

Ground Two: Lack of Subject Matter Jurisdiction

In his Second Ground for Relief, Mr. Smith claims his prior acquittal on Count II
deprived the Common Pleas Court of subject matter jurisdiction to try him again. This Ground
for Relief should also be dismissed with prejudice for a number of reasons.
First of all, it is barred by Smith’s procedural default in failing to present it to the Second
District Court of Appeals. Although Smith claims in his Petition (ECF No. 1-1, PageID 14,
¶9(f)) that he raised this claim on appeal, the Second District found that his sole assignment of
error was his Double Jeopardy claim. State v. Smith, supra, ¶ 15.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause of 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); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,

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433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a
federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright,
433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S.
391 (1963). Coleman, 501 U.S. at 724.
Secondly, the claim is without merit. Smith made the same claim in his prior habeas
corpus action regarding his prior conviction, Case No. 3:13-cv-065. The undersigned was
assigned that case and recommended the claim be dismissed:
The Sixth Ground for Relief [lack of jurisdiction] is without merit.
The offenses on which Smith was tried are felony offenses
occurring in Montgomery County, Ohio. The Montgomery County
Common Pleas Court has exclusive subject matter jurisdiction to
try such offenses. The fact that they had been tried before did not
deprive that court of jurisdiction after the court of appeals vacated
the first set of convictions.
Petitioner's Sixth Ground for Relief should be dismissed with
prejudice.
Smith v. Warden, So. Ohio Corr. Facility, 2013 U.S. Dist. 38586, *21-22 (S.D. Ohio, Mar. 20,
2013), adopted 2013 U.S. Dist. LEXIS 69596 (S.D. Ohio May 16, 2013). There has been no
intervening Supreme Court law to the contrary. Indeed, Mr. Smith does not argue his Second
Ground for Relief.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be
DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this
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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.

October 17, 2016.
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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