Huffman v. Brunsman, Case No. 1:07cv266.

• Citation: 650 F.Supp.2d 725
• Decision Date: 14 November 2008
• Docket Number: Case No. 1:07cv266.
• Parties: Mark A. HUFFMAN, Petitioner, v. Timothy BRUNSMAN, Warden, Respondent.
• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

650 F.Supp.2d 725

Mark A. HUFFMAN, Petitioner, v. Timothy BRUNSMAN, Warden, Respondent.

Case No. 1:07cv266.

United States District Court, S.D. Ohio, Western Division.

November 14, 2008.

Mark Huffman, Cincinnati, OH, pro se.

Hilda Rosenberg, Office of the Ohio Attorney General, Cincinnati, OH, for Respondent.

ORDER

MICHAEL R. BARRETT, District Judge.

Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 29, 2007 (Doc. 3). Petitioner seeks relief from the sentence that Ohio imposed following his conviction on two counts of illegal use of a minor in nudity-oriented material or performance, five counts of voyeurism and two counts of pandering sexually oriented matters involving a minor. Petitioner was sentenced to three year prison terms on the two counts of illegal use of a minor in nudity-oriented material or performance and four year prison terms on both counts of pandering plus 180 days on three of the voyeurism counts and 60 days on two of the voyeurism counts for an aggregate term of four years in prison¹. Respondent filed a Return of Writ (Doc. 19). Petitioner filed an "answer" to the return of writ; however, such "answer" was untimely and stricken by Magistrate Judge Merz (See Doc. 29).

On August 18, 2008, Magistrate Judge Merz filed a Report and Recommendation (hereinafter, the "Report") (Doc. 30) that recommended the Court dismiss Petitioner's petition for a federal writ of habeas corpus. The Petitioner objected to the Report (Doc. 32). In response to the objections filed by Petitioner, Magistrate Judge Merz issued a Supplemental Report and Recommendation (hereinafter, the "Supplemental Report") (Doc. 33) addressing Petitioner's objections. The Supplemental Report again recommended dismissal. No objections were filed to the Supplemental Report. For the reasons provided below, the Court ADOPTS the Magistrate Judge's Report and the Supplemental Report.

I. Background

Petitioner was convicted at a bench trial and sentenced in the Hamilton County Common Pleas Court. The underlying facts that served as the basis for Petitioner's conviction are properly set forth by the Ohio Court of Appeals and are "presumed to be correct" as Petitioner has failed to rebut this presumption by "clear and convincing evidence."² McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004). The Court of Appeals stated the underlying facts to be as follows:

A young man and his parents contacted Reading Police Detective Terry Zimmerman to report a possible hidden camera in a tanning room at the Maximum Exposure Tanning Salon. The young man showed the detective a photograph of what appeared to be a camera lens hidden behind a circular fan. That afternoon, Detective Zimmerman went to the salon, where he encountered Huffman, the owner of the business. Detective Zimmerman pretended that he was interested in purchasing a tanning package for his wife. Huffman described the available tanning procedures and showed the detective the rooms where the procedures took place. As the detective entered one of the tanning rooms, he saw a camera hidden behind a circular fan in the wall, just as the young man's report had indicated.

Detective Zimmerman obtained a search warrant for the salon and executed it that evening with other police officers. During their search, the officers found a wireless camera mounted behind the wall fan as the detective had earlier observed. Another wireless camera was hidden behind a hole in the wall of a tanning-spray room. The officers determined that signals from the two cameras were fed through a wireless receiver into one of Huffman's DVD players.

The officers recovered camera equipment as well as numerous DVDs containing videos of female patrons using the tanning rooms. The officers compared the recording dates and times of the videos with the tanning visit dates on the salon's patron cards to identify Huffman's victims. The officers also recovered several DVDs that contained pornographic images of children.

As a result of the investigation, Huffman was indicted for three counts of illegal use of a minor in nudity-oriented material or performance, in violation of R.C. 2907.323(A)(1); three counts of voyeurism involving a minor, in violation of R.C. 2907.08(C); two counts of voyeurism, in violation of R.C. 2907.08(B); twenty counts of pandering sexually-oriented matter involving a minor, in violation of R.C. 2907.322(A)(1); and one count of illegal cultivation of marijuana, in violation of R.C. 2925.04(A).

Huffman filed a motion to dismiss the pandering counts, arguing that the pandering statute, R.C. 2907.322(A)(1), was unconstitutional. The trial court denied the motion.

Huffman then waived his right to a jury trial, and the case proceeded to a bench trial. The court found Huffman guilty of two counts of illegal use of a minor, each of the five voyeurism counts, and two of the pandering counts. Huffman was acquitted of the remaining counts. The court imposed three-year prison terms on both counts of illegal use of a minor, and four-year prison terms on both counts of pandering. The court imposed 180 days' incarceration on three of the voyeurism counts and 60 days' incarceration on two of the voyeurism counts. The court ordered all the sentences to be served concurrently, for an aggregate term of four years in prison.

(Doc. 10, Exhibit 18, p. 2-4).

As the Report more fully discusses, Petitioner appealed to the Court of Appeals asserting four assignments of error. They are as follows:

ASSIGNMENT OF ERROR NO. 1: Vague and overbroad laws are unconstitutional. A law is vague when it is unclear in its prohibitions, and overbroad when it reaches both protected and unprotected conduct. Section § 2907.322 is vague, and overbroad. Did the trial court violate Mark's due process guarantees by failing to dismiss counts 9 through 28?

ASSIGNMENT OF ERROR NO. 2: A conviction based on insufficient evidence is a denial of due process. A court may not convict a defendant where a rational trier-of-fact could not find all the elements were proven beyond a reasonable doubt. Were Mark's rights violated when he was convicted after the state failed to prove all essential elements?

ASSIGNMENT OF ERROR NO. 3: the Constitution prohibits a conviction which is against the manifest weight of the evidence. A court may not convict a defendant where the trier-of fact loses its way in weighing the evidence. Was Mark's conviction a manifest miscarriage of justice?

ASSIGNMENT OF ERROR NO. 4: The federal and Ohio Constitutions prohibit sentences based on facts not proven to a jury or admitted by the accused. Ohio law prohibits a non-minimum sentence when the defendant has never previously served a prison sentence. Were Mark's rights violated when the court imposed a sentence violating constitutional and Ohio law?

Doc. 10, Exh. 14. The Court of Appeals overruled the first three assignments of error and sustained the fourth, remanding the case for a new sentencing hearing under State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006). See State v. Huffman, 165 Ohio App.3d 518, 847 N.E.2d 58 (Ohio App. 1st Dist.2006). Petitioner then appealed to the Ohio Supreme Court asserting six propositions of law, the first three of which were accepted on appeal. They are as follows:

PROPOSITION OF LAW NO. I: The inference in § 2907.322(b)(3) renders § 2907.322(A)(1) unconstitutionally overbroad while impermissibly shifting the burden of production to the defendant.

PROPOSITION OF LAW NO. II: Overbroad laws improperly suppress lawful speech as a means to suppress unlawful speech. Section 2907.322 is unconstitutional because there are no standards for determining if the images contain actual minors and not standards for police enforcement, resulting in the suppression of material which enjoys First Amendment Protection.

PROPOSITION OF LAW NO. III: Because of advanced and widely available computer technology, § 2907.322 is unconstitutionally vague because it can only be enforced based on the subjective belief of a police officer.

PROPOSITION OF LAW NO. IV: To properly authenticate images in a prosecution under § 2907.323, the State must establish more than the images were recovered from the Defendants' possession, chain of custody. The State must establish the image is what the State claims it to be, an actual minor engaged in sexual activity.

PROPOSITION OF LAW NO. V: The judicially created element of "Lewd Exhibition and Graphic Focus of the Genitals" is overbroad and vague, while both are required to sustain a conviction of § 2907.323(A)(3).

Doc. 10, Exh. 22. Eventually, the Supreme Court affirmed the judgment of the Court of Appeals as to the first two propositions of law and dismissed the third as having been improvidently granted. See State v. Huffman, 114 Ohio St.3d 433, 872 N.E.2d 1213 (2007). While the above appeals were pending, on August 1, 2005, Petitioner filed a motion for post-conviction relief under O.R.C. § 2953.21 making the following claims:

CLAIM NO. 1: Unlawful Search

CLAIM NO. 2: Over Broad Search Warrant.

CLAIM NO. 3: No Arrest Warrant

CLAIM NO. 4: Invalid Service of the Return on the Search Warrant.

CLAIM NO. 5: Self-incrimination

CLAIM NO. 6: Speedy Trial.

Doc. 10, Exh. 34. The Court of Common Pleas denied this motion. See Doc. 10, Exh. 34. Petitioner again appealed. This appeal was dismissed as untimely and the Ohio Supreme Court declined jurisdiction. Ultimately, on March 29, 2007, Petitioner filed the instant petition for a writ of habeas corpus, in which he raises thirty-three grounds for relief. They are as follows:

GROUND FOR RELIEF NO. 1: VAGUE AND OVERBROAD LAWS ARE UNCONSTITUTIONAL.

GROUND FOR RELIEF NO. 2: A CONVICTION BASED ON INSUFFICIENT EVIDENCE IS A DENIAL OF STATE AND FEDERAL "DUE PROCESS."

GROUND FOR RELIEF NO. 3: THE CONSTITUTION PROHIBITS A CONVICTION WHICH IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

GROUND FOR RELIEF NO. 4: THE UNITED STATES AND OHIO CONSTITUTION...