KAREN L. LITKOVITZ, Magistrate Judge.
Petitioner, currently on a pre-trial release bond,
In June 2013, the Adams County, Ohio, Grand Jury returned a four-count indictment against petitioner. (See Doc. 12, Ex. 1). The first count alleged rape involving petitioner's granddaughter, M.S., with a specification that the victim was under ten years old; the second count alleged sexual battery involving Heather (petitioner's daughter and M.S.'s mother); and the third and fourth counts alleged rape involving Heather. (See id.; see also Doc. 12, Ex. 5; Doc. 1, at PageID 7, 10-11). Prior to trial, one of the counts of rape involving Heather (Count Four) was dismissed. (Doc. 12, Ex. 6). On July 29, 2014, the case proceeded to a jury trial on the remaining three counts. (See Docs. 6, 7).
At trial, the State's first witness was M.S. She was then ten years old. (Doc. 6, at PageID 320). M.S. testified about the allegations that formed the basis of Count One of the indictment. More specifically, M.S. testified that she called the "part [of the body] that a girl goes pee out of a "cookie" and a "kitty cat." (Doc. 6, at PageID 332, 334-35). She also testified that she knew the same part is also called a vagina. (Doc. 6, at PageID 334). According to M.S., the alleged incident occurred on the day of her fourth birthday party. (Doc. 6, at PageID 340, 344-45). M.S. testified that she was "sitting in the living room watching Winnie the Poo" and was wearing a princess shirt and pajama pants. (Doc. 6, at PageID 347, 349-50). M.S. testified that her grandmother and sister had gone to get her birthday cake and that when the alleged incident occurred she and petitioner were alone in the living room. (Doc. 6, at PageID 345-46). M.S. further testified that "[petitioner] grabbed [her] by [her] arms and [her] legs together and tied them up together and put duck tape on [her] mouth and stuck his finger in [her] kitty cat." (Doc. 6, at PageID 350). She testified that petitioner only stopped when he heard a car door slam. (Doc. 6, at PageID 354). M.S. testified that when petitioner heard the car door he untied her, washed his hands, hid the rope he had used to bind her arms and legs, and threated to spank her if she told anyone. (Doc. 6, at PageID 354-55).
On cross-examination, the following exchange occurred between M.S. and defense counsel as to the timing of the alleged incident:
(Doc. 6, at PageID 359). Later during cross-examination M.S testified that the incident occurred "a couple hours before" her birthday party. (Doc. 6, at PageID 373). She then corrected herself, saying: "No, it was around, it was around 4 hours, something like that." (Doc. 6, at PageID 374). When asked on cross-examination if she knew "what time in the afternoon" the alleged incident occurred, she said: "No." (Doc. 6, at PageID 374). M.S. did testify that it was the "day of [her] birthday party" and as to the date of party. (Doc. 6, at PageID 374). Further, M.S. testified that she "didn't tell anyone about [the alleged incident] for a long time." (Doc. 6, at PageID 355). When asked why she waited, M.S. testified that she "was afraid [petitioner] was going to punish [her]." (Doc. 6, at PageID 355). M.S. testified that eventually she told her friend. (Doc. 6, at PageID 355). M.S. further testified that the only other people she told about the alleged incident were her mom, the prosecutor, and "Doctor's Officer, Cincinnati Children's." (Doc. 6, at PageID 357, 365-66).
The State then proceeded to call as witnesses the social worker (Linda Smets-Ullrich) at Children's Hospital who interviewed M.S. (see Doc. 6, at PageID 387-421); the investigator at the Prosecutor's Office (Kenneth Dick) who investigated the allegations of sexual abuse against petitioner (Doc. 6, at PageID 423-460); and Heather, the alleged victim in Counts Two and Three of the indictment (Doc. 7, at PageID 472-559).
Following Heather's testimony, the State indicated that it had no additional witnesses. (Doc. 7, at PageID 559). Thereafter, defense counsel moved for acquittal, which the trial court denied. (Doc. 7, at PageID 567-76).
In petitioner's case in chief, defense counsel called Joan Disher (Heather's former mother-in-law) (Doc. 7, at PageID 597-07), John Yates (an ex-boyfriend of Heather's) (Doc. 7, at PageID 627-31), John Dodds (an acquaintance of Heather's) (Doc. 7, at PageID 632-38), Karen Rowe (Heather's aunt) (Doc. 7, at PageID 644-49), James Scott (an ex-husband of Heather's) (Doc. 7, at PageID 652-55), Eli Hill (Hill) (an ex-husband of Heather's) (Doc. 7, at PageID 656-62), and Paul Carter, Jr. (Heather's brother and petitioner's son) (Doc. 7, at PageID 664-77) to testify that Heather had a reputation for being untruthful. Hill also testified that he was at petitioner's house on the day of the birthday party from about 10:00 or 11:00 a.m. until the party, which started at about 6:00 p.m., ended. Hill testified that when he left the house after the party he took M.S., M.S.'s sister, and Heather with him. (Doc. 7, at PageID 658-661). Petitioner's son testified generally about his parents' work schedules as of the time of the events alleged in Counts Two and Three of the indictment. (Doc. 7, at PageID 665-67; 672-75). Petitioner's son also testified that "[n]othing about whether [petitioner] was taking a day off would really stick out in [his] mind" (Doc. 7, at PageID 674) "unless [they] had plans to do something" (Doc. 7, at PageID 675).
Petitioner also called Larry Baker (petitioner's pastor) (Doc. 7, at PageID 610-14), Calvin Daniel (an individual who attended church with petitioner) (Doc. 7, at PageID 615-17), James Crase and Sandy Crase (neighbors of petitioner who also share grandchildren with him) (Doc. 7, at PageID 619-26), and Lisa Tumbleson (a former day care provider for M.S. and her sister) (Doc. 7, at PageID 638-43) to testify that petitioner had a reputation for being truthful. Chancy Carter, petitioner's daughter-in-law, testified that she had left her own children with petitioner and his wife. (Doc. 7, at PageID 683). The defense's final witness was Gladys Elaine Carter (Gladys) (petitioner's wife, mother of Heather, and grandmother of M.S.).
In regard to M.S.'s fourth birthday party, the following exchange occurred on direct examination between defense counsel and Gladys:
(Doc. 7, at PageID 697).
Following Gladys's answer, the State objected on the ground that the defense had violated Ohio Criminal Rule 12.1 by failing to file a notice of alibi. (Doc. 7, at PageID 697). The trial court then held a hearing outside the presence of the jury. During the hearing, Gladys stated that petitioner got home from work on the day of the party around 3:30 p.m. (Doc. 7, at PageID 702). Thereafter, the following exchange occurred between defense counsel (Mr. Hapner) and the trial court as to why defense counsel had not disclosed Gladys's testimony as an alibi:
(Doc. 7, at PageID 706-08).
Following the above exchange, the State moved for a mistrial. (Doc. 7, at PageID 708-09). Defense counsel did not explicitly object to the granting of the mistrial at this time but offered as an alternative to a mistrial that the court could "order us just to go around when he got home and what time he got home." (Doc. 7, at PageID 709). Implicitly rejecting defense counsel's suggestion, the trial court called the jury back to the courtroom and declared a mistrial. (Doc. 7, at PageID 710).
After discharging the jury, the court explained, in part:
(Doc. 7, at PageID 710-11). Defense counsel asked the court to note his exception to the declaration of mistrial on the basis that "[t]he notice of alibi ... is not prejudicial error to such extent that would require a mistrial." (Doc. 7, at PageID 711). In response, the trial court further explained:
(Doc. 7, at PageID 712). Defense counsel did not request a severance of the other two counts of the indictment.
The mistrial was journalized on August 12, 2014. (Doc. 12, Ex. 9). On May 6, 2015, defense counsel filed a notice of alibi. (Doc. 12, Ex. 11). Prior to the second trial date, petitioner, through new counsel, filed a motion to dismiss based on double jeopardy grounds. (Doc. 12, Ex. 15). The trial court denied the motion, explaining in relevant part:
(Doc. 12, Ex. 18, at PageID 860).
Petitioner appealed the trial court's denial of his motion to dismiss to the Ohio Court of Appeals, Fourth Appellate District, raising the following two grounds for relief:
(Doc. 12, Ex. 21, at Page ID 877).
On August 9, 2016, the state court of appeals affirmed the decision of the trial court. State v. Carter, No. 15-CA-1015, 2016 WL 4268774, at *1 (Ohio Ct. App. Aug. 9, 2016) (Doc. 12, Ex. 24). The Ohio Supreme Court denied further review. State v. Carter, 71 N.E.3d 298 (Ohio 2017) (table). Thereafter, the trial court stayed proceedings pending decision in this habeas case. (See Doc. 12, Ex. 29, at PageID 996).
In the instant habeas petition, petitioner raises three grounds for relief:
(Doc. 1, at PageID 6-7, 10-11).
In the respondent's Answer/Return of Writ, respondent asserts that petitioner's grounds for relief are either procedurally defaulted or fail on the merits. (Doc. 14). Petitioner has filed a reply in support of his petition (Doc. 18) and respondent has filed a sur-reply (Doc. 22).
In this federal habeas case, brought under 28 U.S.C. § 2241, the applicable standard of review is de novo. The Sixth Circuit Court of Appeals has explained:
Phillips v. Court of Common Pleas, Hamilton Cty., Ohio, 668 F.3d 804, 809-10 (6th Cir. 2012) (footnotes omitted).
In Ground One, petitioner asserts that: "The trial court granted the state's motion for mistrial over defense objection and without a manifest necessity for mistrial." (Doc. 1, at PageID 6). Respondent asserts that this ground does not present any constitutional basis. (Doc. 14, at PageID 1048-49). Petitioner clarifies in his reply that Ground One presents a federal due process claim under the Fourteenth Amendment. (Doc. 18, at PageID 1079-82).
"[A] claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the Petitioner to relief." Edwards v. Johns, 450 F.Supp.2d 755, 756 (E.D. Mich. 2006) (quoting Gray v. Netherland, 518 U.S. 152, 162-63 (1996)). See also Rule 2(c) of the Rules Governing Section 2254 Cases (providing that a habeas petition must "specify all the grounds for relief available to the petitioner" and "state the facts supporting each ground").
As set forth above, the trial court ordered a mistrial in this case after finding that defense counsel proffered testimony in violation of Ohio Criminal Rule 12.1. Pursuant to Rule 12.1, a defendant who intends to offer alibi testimony:
Ohio Crim. R. 12.1. Petitioner concedes that he did not file a notice of alibi. It is his position, however, that the trial court violated his due process rights under Wardius v. Oregon, 412 U.S. 470 (1973), by enforcing Rule 12.1 because the State failed to inform him prior to trial of the timing of the alleged offense and provided no explanation for that failure. (Doc. 18, at PageID 1079-82).
"[E]rrors in the application of state law, especially rulings regarding the admission or exclusion of evidence, are usually not to be questioned in a federal habeas corpus proceeding." Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988). "A federal court may not issue the writ [of habeas corpus] on the basis of a perceived error of state law" unless the error is "sufficiently egregious" as to amount to a denial of fundamental fairness. Pulley v. Harris, 465 U.S. 37, 41 (1984). In Wardius, the Supreme Court held that "the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants." Wardius, 412 U.S. at 472.
The record establishes that the parties engaged in reciprocal discovery. (See, e.g., Doc. 12, Ex. 4, PageID 734-802). Although petitioner complains that the State did not furnish the timing of the allegations underlying Count One prior to trial and that it was unfair for the trial court to enforce Rule 12.1 without first inquiring as to when the State obtained such information (see Doc. 1, at PageID 7, 10; Doc. 18, at PageID 1079-82), the Due Process Clause "speaks `to the balance of forces between the accused and his accuser.'" United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988) (quoting Wardius, 412 U.S. at 474). The trial court did not fault petitioner for not disclosing the alibi evidence prior to the commencement of trial, but for not disclosing it prior to Gladys's testimony. (See Doc. 7, at PageID 708, 711-12). Further, counsel acknowledged that he could have filed a notice of alibi in the morning or afternoon prior to petitioner's wife's testimony but did not do so. (Doc. 7, at PageID 708). Under these circumstances, petitioner has not established that the trial court's enforcement of Rule 12.1 tipped "the balance of forces" in favor of the State.
In any event, it is not clear that any alleged discovery delay on the part of the State caused petitioner's failure to provide a notice of alibi. Counsel told the trial court that he did not file the required notice because he did not consider the pertinent testimony of Gladys to be an alibi. (Doc. 7 at PageID 707) ("No, I did not notify the State as to an alibi because I did not then or today consider it an alibi."). Petitioner appears to advance the same argument in this court. (See Doc. 18, at PageID 1082-83). His argument is unpersuasive.
The Ohio Supreme Court has defined "alibi" as: "[a] defense based on the physical impossibility of a defendant's guilt by placing the defendant in a location other than the scene of the crime." State v. Davis, 880 N.E.2d 31, 74 n.1 (Ohio 2008) (quoting Black's Law Dictionary (8th Ed. 2004)). On cross examination, M.S. testified that the alleged conduct occurred "in the morning" of her birthday party. (Doc. 6, at PageID 359). After further questioning from defense counsel, she testified that it occurred four hours before the start of her birthday party, or at about 2:00 p.m. (Doc. 6, at PageID 359). Although M.S. later testified that the offense occurred "a couple hours before" her party (Doc. 6, at PageID 359, 373), she corrected herself by saying: "No, it was around, it was around 4 hours, something like that" (Doc. 6, at PageID 374). Defense counsel asked: "Do you know what time in the afternoon?" and M.S. responded: "No." (Doc. 6, at PageID 374).
On the issue as to whether Gladys's testimony constituted an alibi, the trial court inquired:
(Doc. 7, at PageID 706-07).
Given M.S.'s testimony that the offense occurred "around, it was around 4 hours, something like that" before her birthday party (Doc. 6, at PageID 374) and Gladys's testimony that petitioner "wasn't there until later on in the afternoon" (Doc. 7, at PageID 701), which she clarified to be around 3:30 p.m. in her in camera testimony (Doc. 7, at PageID 702), petitioner has not shown that the trial court was fundamentally unfair in concluding that Gladys's testimony was a potential alibi subject to disclosure under Rule 12.1. See Pulley, 465 U.S. at 41. See also State v. Barnes, 896 N.E.2d 1033, 1048 (Ohio App. 2008) (noting difficulty of pinpointing timing where child victims are involved and applying Rule 12.1 to "any potential alibis that [the defendant] might have").
Ground One does not warrant habeas relief.
In Ground Two, petitioner asserts that: "The trial court declared a mistrial without allowing both parties to state their positions on the issue of manifest necessity[,] without considering the respective interests, and with [sic] exploring reasonable alternatives to a declaration of mistrial." (Doc. 1, at PageID 7). Respondent again asserts that this ground does not present a constitutional claim. (Doc. 14, at PageID 1048-49). Alternatively, respondent argues that this claim fails on the merits. (Doc. 14, at PageID 1054-59).
Petitioner has not stated a cognizable claim for federal habeas relief to the extent that he alleges that the granting of the state's motion for mistrial amounted to an abuse of discretion or a reversible error under Ohio law. The federal court has jurisdiction to review a state prisoner's habeas petition only on the ground that the challenged confinement violates the Constitution, laws or treaties of the United States. See Pulley, 465 U.S. at 41; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, petitioner's claim is subject to review only to the extent he alleges a constitutional violation. Although petitioner does not specifically mention the Fifth Amendment in his second ground for relief, this Court understands petitioner's claim to be that his retrial is barred by the Double Jeopardy Clause because there was no manifest necessity to declare a mistrial. The claim should be denied, however, because the trial court's declaration of a mistrial survives the "manifest necessity" standard.
The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, "protects a criminal defendant from repeated prosecutions for the same offense." Oregon v. Kennedy, 456 U.S. 667, 671 (1982). "[I]t is well-settled that once jeopardy attaches, prosecution of a defendant other than before the original jury is barred unless `(1) there is a `manifest necessity' for a mistrial or (2) the defendant either requests or consents to a mistrial.'" Colvin v. Sheets, 598 F.3d 242, 252 (6th Cir. 2010) (quoting Johnson v. Karnes, 198 F.3d 589, 594 (6th Cir. 1999)). As there is no dispute that petitioner did not consent to the state court's declaration of a mistrial, the Court must determine whether there was manifest necessity for the mistrial.
"Manifest necessity is not exclusively premised on protecting a defendant's rights; rather, manifest necessity balances the defendant's `valued right to have his trial completed by a particular tribunal,' [Arizona v.] Washington, [434 U.S. 497, 503 (1978)], with `the public's interest in fair trials designed to end in just judgments,' id. [at 516] (quoting Wade v. Hunter, [336 U.S. 684, 689 (1949)]." Donaldson v. Bova, 552 F. App'x 554, 562 (6th Cir. 2014).
Donaldson, 552 F. App'x at 560.
Reviewing courts must be satisfied that the trial judge exercised "sound discretion" before declaring a mistrial. Washington, 434 U.S. at 514. In determining whether a trial judge exercised "sound discretion" in declaring a mistrial, a reviewing court may consider several factors, none of which is outcome determinative. These include whether the judge acted irrationally or irresponsibly, Washington, 434 U.S. at 514; whether the trial judge acted deliberately or precipitately in response to the request for a mistrial, id., 434 U.S. at 515; whether the judge elicited the parties' opinions on the propriety of a mistrial, id. at 515-16, 517; and whether the judge considered the alternatives to a mistrial, id. at 514, n. 34, 517, n. 39. A trial judge exercises "sound discretion" when the judge engages in "careful consideration and solicitude for the serious consequences attendant upon mistrial." Johnson v. Karnes, 198 F.3d 589, 596 (6th Cir. 1999) (quoting Glover v. McMackin, 950 F.2d 1236, 1241 (6th Cir. 1991)).
In assessing whether there was manifest necessity for a mistrial, courts apply "a sliding scale of scrutiny." Colvin, 598 F.3d at 253. As the Sixth Circuit explained:
Colvin, 598 F.3d at 253. The level of scrutiny applied depends upon the issues on which the mistrial was based. United States v. Stevens, 177 F.3d 579, 583 (6th Cir. 1999).
Where, as here, a trial court's declaration of a mistrial is based on its assessment of defense counsel's performance, a more deferential standard of review is applied to the trial court's decision. Donaldson, 552 F. App'x at 563 ("A stricter scrutiny of the trial court's conduct is not called for here, because the trial court is more familiar with defense counsel and had the opportunity to observe defense counsel's conduct both for the trial and the pretrial proceedings as well."). A court should be "particularly reluctant to substitute its judgment for that of the trial court when a defendant's lawyer is at fault for the mistrial." Id. at 564 (citing Colvin, 598 F.3d at 255) ("Moreover, we should be especially reluctant to second-guess the judgment of the trial court in cases where, as here, the conduct of the defendant's own lawyer causes a mistrial.").
In the instant case, the trial court declared a mistrial after concluding that defense counsel willfully violated Rule 12.1 by not providing proper notice to the State of petitioner's alibi defense to Count One of the indictment. (Doc. 7, at PageID 712). On the "sliding scale of scrutiny," the trial court's assessment is entitled to deference. Donaldson, 552 F. App'x at 563. The record in this case also shows that the trial court reached its decision after hearing from both the State and defense counsel. (Doc. 7, at PageID 703-12). Thus, the trial court properly sought counsels' opinions on the propriety of a mistrial. Washington, 434 U.S. at 515-16, 517. Further, the record demonstrates that the trial court did consider the possibility of attempting to "cure" the prejudicial impact of Gladys's undisclosed alibi testimony but concluded that the prejudicial impact of the testimony could not be undone. (Doc. 7, at PageID 712) ("Maybe this morning had it been disclosed there could have been curative affects [sic]. But, there was no disclosure for reasons that are personal to [the defense] that has caused this mistrial. And the prejudicial affect [sic] of the testimony we can not [sic] unring this bell."). See Washington, 434 U.S. at 514, n. 34, 517, n. 39. After observing the trial proceedings up to the time of Gladys's testimony, the trial court found that the impact of the improper testimony could not be cured. (See Doc. 7, at PageID 712; Doc. 12, Ex. 18, at PageID 860). The trial court was in the best position to assess the prejudicial impact of defense counsel's failure to disclose the notice of alibi, having observed counsel's conduct within the context of the unfolding trial, and this assessment is entitled to great deference. Washington, 434 U.S. at 514. The trial judge, who is most familiar with the evidence and the background of the case on trial, "is far more `conversant with the factors relevant to the determination' than any reviewing court can possibly be.'" Id. (quoting Wade, 336 U.S. at 689). While petitioner questions the validity of the trial court's finding (see Doc. 1, at PageID 7), he offered no curative instruction other than defense counsel's suggestion at trial to "order us just to go around when [petitioner] got home and what time he got home" (Doc. 7, at PageID 709), which the trial court implicitly rejected. Under the totality of the circumstances, and giving the trial court appropriate deference, the undersigned finds that the trial court exercised "sound discretion" in declaring a mistrial. Washington, 434 U.S. at 514.
Ground Two does not warrant habeas corpus relief.
In Ground Three, petitioner contends that the trial court (1) "failed to inquire of the State when in [sic] gained knowledge of the child's midday time frame for the alleged sexual conduct, a fact essential to the determination of whether the State discharged the reciprocal disclosure obligation mandated by the due process clauses of the 5th and 14th Amendments"; (2) "failed to [c]onsider alternative sanctions which would not impinge on the defendant's right to be free from double jeopardy"; and (3) "failed to consider whether the affected count could be severed, permitting the remaining 2 counts involving a different alleged victim and disparate dates to be submitted to the jury." The first two sub-claims in Ground Three repeat claims from Grounds One and Two and fail to provide a basis for habeas relief for the reasons previously discussed. The third sub-claim also fails to provide a basis for habeas relief.
Severance is governed by state law. Hutchinson v. Bell, 303 F.3d 720, 731 (6th Cir. 2002). As such, petitioner's severance claim "will not warrant habeas relief unless the `error rises to the level of depriving the defendant of fundamental fairness in the trial process.'" Id. (quoting Serra v. Michigan Dep't of Corr., 4 F.3d 1348, 1354 (6th Cir. 1993)). Petitioner has failed to make such a showing.
M.S. and Heather, the two alleged victims in this case, were mother and daughter; M.S. testified that she had talked to Heather about the allegations underlying Count One (see Doc. 6, at PageID 365-66); and the investigator testified that he had talked to Heather about the allegations underlying Count One (see Doc. 6, at PageID 431). The investigator also testified that during the investigation Heather talked to petitioner about M.S.'s allegations. (See Doc. 6, at PageID 455-56). Petitioner has not shown that the trial court failed to exercise sound discretion in finding that the intertwined nature of the offenses required a mistrial as to the entire case, see Washington, 434 U.S. at 514, let alone that the trial court's finding was fundamentally unfair, see Hutchinson, 303 F.3d at 731.
Ground Three does not warrant habeas relief.
Respondent indicates (see Doc. 14, at PageID 1028 n.1) that certain documents from the state court record contain personal identifying information. Specifically, respondent states that personal identifying information is found in: (1) Doc. 6, PageID 286 (M.S.'s full name); (2) Doc. 12, Ex. 4, at PageID 740 (M.S.'s full name), 763 (M.S.'s full name and use of her first name), 777 (M.S.'s full name and use of her first name), and 799 (M.S.'s and her sister's full names and D.O.B.s); (3) Doc. 12, Ex. 8, at PageID 816 (M.S.'s and her sister's full names and D.O.B.s); (4) Doc. 12, Ex. 21 (Appellant's Brief) (M.S.'s and her sister's first names; M.S.'s D.O.B. at PageID 878; use of M.S.'s first name throughout brief); (5) Doc. 12, Ex. 26 (Jurisdictional Memorandum) (M.S.'s and her sister's first names; M.S.'s D.O.B. at PageID 941; use of M.S.'s first name throughout memorandum). The Clerk of Court is hereby
The Clerk of Court is further
The Clerk is also
1. Petitioner's petition for a writ of habeas corpus be
2. A certificate of appealability
3. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that with respect to any application by petitioner to proceed on appeal in forma pauperis, an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore
