Kuck v. Robinson

Filing 25

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Conclusion Having reviewed the case in light of the Objections, the Magistrate Judge again recommends the Petition be dismissed with prejudice, and that Petitioner be denied a certificate of appealability. 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 2/8/2019. Signed by Magistrate Judge Michael R. Merz on 1/24/2019. (srb)

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

:

- vs -

Case No. 3:18-cv-157
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

NORM ROBINSON, Warden,
London Correctional Institution
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus action is before the Court on Petitioner’s Objections (ECF No. 23) to
the Magistrate Judge’s Report and Recommendations recommending dismissal (ECF No. 22).
District Judge Rose has recommitted the case for reconsideration in light of the Objections (ECF
No. 24).

First Objection: Incorrect Finding of Procedural Default

Petitioner first objects that the Magistrate Judge mistakenly found that subclaim six of the
Second Ground for Relief was procedurally defaulted (Objections, ECF No. 23, PageID 2265). In
that particular subclaim, Kuck asserted he received ineffective assistance of trial counsel when his
trial attorney failed to object to a number of instances of asserted prosecutorial misconduct. The
Report noted, “So far as the Court can determine, Kuck did not raise this subclaim on either direct
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appeal or appeal from denial of his petition for post-conviction relief. It is therefore subject to
analysis as procedurally defaulted.” (ECF No. 22, PageID 2253.) The Report recommended
dismissing this subclaim as procedurally defaulted. Id. at PageID 2254.
Petitioner now calls the Magistrate Judge’s attention to his Amended Brief on direct appeal
which presented the following issue: “Does trial counsel provide ineffective assistance when he
fails to object to hearsay, improper loaded questions, questions prohibited by the Rape Shield
Statute, and inadmissible, prejudicial character evidence regarding both the "bad character" of the
defendant and the "good character" of the alleged victims?” (Amended Brief, State Court Record,
ECF No. 13, PageID 373.) This issue was dealt with expressly by the Second District Court of
Appeals in its decision of December 29, 2016, reported at State v. Kuck, 79 N.E.3d 1164, 2016Ohio-8512 (Ohio Ct. App. 2nd Dist. 2016). That court wrote:
[*P87] Lastly, Kuck argues that trial counsel was ineffective for not
objecting to hearsay, to improper leading questions, to questions
prohibited by the rape-shield statute, and to character evidence
regarding both Kuck's bad character and the victims' good character.
We considered the underlying legal propositions in our review of
the fourth assignment of error. Once again, Kuck recasts
propositions of law as ineffective assistance. We rejected the
underlying propositions on their merits, so we reject Kuck's
ineffective assistance claim here.

Id. at 1189, ¶ 87. Petitioner preserved this claim for merits review in habeas by presenting to the
Ohio Supreme Court as his Seventh Proposition of Law in his Second Memorandum in Support of
Jurisdiction as follows:
PROPOSITION OF LAW NO. 7: It is ineffective assistance of
counsel for criminal trial counsel to repeatedly fail to object to
improper jury instructions, to repeatedly fail to object to improper
questioning by the prosecutor, to fail to call a favorable eye witness,
to fail to prepare to cross examine complaining witnesses with their
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own previous statements, and to fail to object to improper character
evidence, entitling the defendant to a new trial.
(State Court Record, ECF No. 13, PageID 642-43.)
Therefore, the Objection to the Magistrate Judge’s procedural default finding on this
subclaim is well taken and that portion of the Report is WITHDRAWN.
The question then is whether the Second District’s decision on the merits is contrary to or
an objectively unreasonable application of clearly established Supreme Court law. The relevant
standard is provided by Strickland v. Washington, 466 U.S. 668 (1984), quoted in the Report.
(ECF No. 22, PageID 2239-40.) The Second District concluded it was not ineffective assistance
of trial counsel to fail to object to the various asserted instances of prosecutorial misconduct
because the objections would have been without merit. In the Petition, Kuck raised his claims of
prosecutorial misconduct in Ground Three. (ECF No. 1, PageID 27.) The Report recommended
that Ground Three be dismissed with prejudice (ECF No. 22, PageID 2256). Petitioner has not
objected to that conclusion. As the Second District held, if the underlying conduct did not
constitute misconduct by the prosecutor, it cannot have been ineffective assistance of trial counsel
to fail to object to it. Therefore, this particular subclaim of ineffective assistance of trial counsel
should be dismissed on the merits, rather than as procedurally defaulted.

Second Objection: Denial of Certificate of Appealability on Ground One

In his First Ground for Relief, Kuck claims he was denied a fair trial because he was
required to use a peremptory challenge to remove a juror who had said she doubted her ability to
be fair in this rape case because her son had been raped as a young man. The Second District
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denied the claim and the Report found that decision was not an “unreasonable application of the
holdings in Supreme Court precedent,” (ECF No. 22, PageID 2237-39, principally relying on Ross
v. Oklahoma, 487 U.S. 81 (1988)).
The Report noted that this Court might reach the opposite conclusion if it were deciding
Kuck’s peremptory challenge de novo. Id. at PageID 2238. Petitioner argues that by denying a
certificate of appealability, “this issue will never come before any Court which does have that
authority if cases like this one are prevented from being appealed.” (Objections, ECF No. 23,
PageID 2267.)
In many ways the Supreme Court and Congress have limited the ability of the courts to
create new law in habeas corpus cases. One of those is by requiring a certificate of appealability.
But the law on that subject does not permit a trial judge to allow an appeal just because it would
be good to have an appellate pronouncement on a particular question of constitutional law. Rather,
the test is whether reasonable jurists disagree, not on what the law ought to be, but on what the
Supreme Court has said the law is. If there were reasoned opinions from other judges stating that
it is unconstitutional, under current precedent, to require a defendant to use a peremptory challenge
to remove a juror who should have been removed for cause, then presumably Petitioner would
have cited such decisions. But he has not. In the absence of proof that other judges have taken a
different position on what the Constitution requires in these circumstances, this Court is not
empowered to issue a certificate of appealability. Petitioner can, of course, apply for a certificate
from the Sixth Circuit which may have a different view of the matter.

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Conclusion

Having reviewed the case in light of the Objections, the Magistrate Judge again
recommends the Petition be dismissed with prejudice, and that Petitioner be denied a certificate of
appealability. 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.

January 24, 2019.
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
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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