Jordan v. Warden

• Decision Date: 22 April 2016
• Docket Number: Case No. 1:14-cv-068
• Parties: RUBEN JORDAN, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

RUBEN JORDAN, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.

Case No. 1:14-cv-068

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

April 22, 2016

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 19) to the Magistrate Judge's Report and Recommendations which recommended that the Petition be dismissed with prejudice (the "Report," ECF No. 16). District Judge Barrett has recommitted the case for reconsideration in light of the Objections (ECF No. 20).

Petitioner has filed thirteen separately-numbered Objections (Roman numerals I through XIII). Most of them are quite prolix and contain a number of sub-claims. For example, Objection III fills two-thirds of a page single-spaced and contains arguably five asserted errors in the Report. Because Fed. R. Civ. P. 72(b)(3) requires the District Judge to "determine de novo any part of the magistrate judge's disposition that has been properly objected to," this Supplemental Report must of necessity be quite detailed and considers the Objections seriatim. Objection I:

The Report and Recommendations incorrectly concludes that Petitioner Jordan did not point to specific facts as facts unreasonably determined by the state courts.

(Objections, ECF No. 19, PageID 1517.)

Each of Jordan's six Grounds for Relief begins with the statement "[t]he state courts unreasonably determined the facts. . . ." The Report noted that "Jordan's counsel has devoted four pages of the Petition (PageID 26-29) to a Statement of Facts without attempting to show how the evidence recited there proves by clear and convincing evidence that the court of appeals made an unreasonable determination of any particular fact." (Report, ECF No. 16, PageID 1397.)

Jordan objects that there are at least sixteen places in his Petition and fourteen places in his Traverse where he argued "how the courts unreasonably determined the facts." (Objections, ECF No. 19, PageID 1526, citing Petition, ECF No. 1, PageID 25, 30, 32, 36, 42, 43, 44, 46, 49, 50, 51, 54, 56, 59, 60, 61 and Traverse, ECF No. 14, PageID 1304, 1316, 1330, 1340, 1354, 1355, 1365, 1375, 1379, 1381, 1382, 1383, 1384 and 1386.)

Jordan's counsel apparently misunderstands the Report on this point. While she has used the phrase "unreasonable determination of the facts" forty-three times in the Petition, Traverse, and Objections, at no point in her Statement of the Facts (ECF No. 1-1, PageID 26-29) does she relate what she says are the facts of the case to findings by the state courts and argue why the state courts were clearly wrong. Instead she gives her own narrative of the facts, supported by record references. This is what is meant by the language in the Report that the Statement of Facts does not attempt to show how the state court determinations were unreasonable.

Objection II and II.A

The Report and Recommendations incorrectly finds that the contemporaneous objection rule was enforced against Jordan with respect to Ground One. Instead, the state appellate court did not enforce the contemporaneous objection rule; even if this Court agrees with the Report and Recommendations that the state court enforced the rule, the Harris presumption (which the Report and Recommendations failed to address) applies such that the rule is not an adequate and independent state procedural bar. Therefore, Ground One is properly before this Court and should be considered on the merits.

A. The First District's purported "plain error analysis" demonstrates that it did not actually enforce the contemporaneous objection rule against Jordan for two reasons: (1) the First District applied the same two-part merits analysis that the Supreme Court of Ohio uses to address the merits and prejudicial impact of preserved prosecutorial misconduct claims of the exact same nature as those involved in Ground One; and (2) the First District used the same merits/prejudice analysis for Ground One as it did when considering Grounds Two and Three (the errors to which trial counsel objected and which the Report and Recommendations correctly found to be properly before this Court/not procedurally defaulted).

Applying the governing standard from Maupin v. Smith, 785 F.2d 135, 138 (6^th Cir. 1986), the Report concluded Ground One (prosecutorial misconduct) was procedurally defaulted because trial counsel made no objection to the prosecutor's argument about public safety and the First District enforced the contemporaneous objection rule by evaluating the prosecutor's conduct under the Ohio plain error rule (Report, ECF No. 16, PageID 1400-03).

Jordan objects that, while the First District said it was applying plain error analysis, in fact it "use[d] the same standard to address the merits . . . and prejudice as the state supremecourt uses to address preserved prosecutorial misconduct claims on the merits." (Objections, ECF No. 19, PageID 1528.) Jordan argues the relevant supreme court case is State v. Jackson, 92 Ohio St. 3d 436 (1977), and that the First District used Jackson to evaluate the prosecutorial misconduct claims in both Ground One and in Grounds Two and Three (Objections, ECF No. 19, PageID 1528).

Jackson is a post-1995 capital case, so the Supreme Court of Ohio was sitting as the first appellate court to review the case. In considering a claim that the trial court erred in allowing alternate jurors to remain in the jury room during deliberations, the court stated the standard for evaluating plain error: "an error 'does not constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly would have been otherwise."' Jackson, supra, at 438, quoting State v. Long, 53 Ohio St. 2d 91, paragraph two of the syllabus (1978). That is the exact standard the First District applied to Jordan's Fourth Assignment of Error: "Jordan did not object to these comments about collusion and therefore must demonstrate that, but for the misconduct, the outcome of the trial would have been different." State v. Jordan, 2012-Ohio-3793, ¶ 25 , 2012 Ohio App. LEXIS 3415 (1^st Dist. Aug. 24, 2012). While the First District does not cite to Jackson for the plain error standard, it does cite its own plain error precedent, State v. Rucker, 2012-Ohio-185, ¶ 20, relying on the Ohio Supreme Court's post-Jackson precedent to the same effect, State v. Williams, 79 Ohio St. 3d 1, 12 (1997).

Jordan argues the First District defines the plain error standard as meaning "whether Jordan was deprived of a fair trial due to the misconduct." (Objections, ECF No. 19, PageID 1528.) But the Objections provide no citation for the purported quotation nor any place in which the First District says it is defining one test as the equivalent of the other. Furthermore, Jordan argues the Ohio Supreme Court used this "same two-part analysis" . . . "to address the merits ofpreserved [i.e. by contemporaneous objection] prosecutorial misconduct claims" in Jackson. Not so. As to the two prosecutorial misconduct claims related to comments by the prosecutor, the Jackson court noted as to each of them that "defense counsel did not object to these questions" (Sixth Proposition of Law) and "defense counsel did not object to these comments" (Seventh Proposition of Law) and applied plain error analysis to deny each of them. Jackson, supra, at 442-43.

In order to show a constitutional violation resulting from prosecutorial misconduct, a habeas petitioner must show that the prosecutor's conduct was improper and that it was so flagrant as to deny the defendant as fair trial.

"In the evaluation of a claim for prosecutorial misconduct, it is not enough that the prosecutor's comments were improper, but '[t]he relevant question is whether the prosecutors' comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process."'" Smith, 567 F.3d [246] at 255 [6^th Cir. 2009] (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). In other words, "[i]n order to satisfy the standard for prosecutorial misconduct, the conduct must be both improper and flagrant." Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir.2006), cert. denied, 549 U.S. 1255, 127 S.Ct. 1376, 167 L.Ed.2d 165 (2007). To determine whether improper conduct is flagrant, we consider four factors:

(1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) the total strength of the evidence against the defendant.

Bates v. Bell, 402 F.3d 635, 641 (6th Cir.), cert. denied, 546 U.S. 865, 126 S.Ct. 163, 163 L.Ed.2d 150 (2005).

Goff v. Bagley, 601 F.3d 445, 480 (6^th Cir. 2010). Any court deciding this constitutional claim is supposed to apply this standard in determining the merits of the claim, in other words, indetermining whether there is error in what the prosecutor did. Beyond that, when there has been no contemporaneous objection but the error is nonetheless raised on appeal, Ohio courts under Ohio R. Crim. P. 52(B), must determine if the error was "plain."

Petitioner wants this Court to ignore the fact that the First District said it was engaged in plain error analysis and noted the absence of a contemporaneous objection which required that, to decide the assignment of error, it engage in plain error analysis, because the First District used the same merits standard to undergird its plain error analysis. But what other standard would it have used? Petitioner does not cite any different "merits + plain error" standard adopted by the Ohio courts that the First District would have used if it was "really" engaged in plain error analysis. The...