Kuck v. Robinson

Decision Date11 January 2019
Docket NumberCase No. 3:18-cv-157
PartiesKLINT KUCK, Petitioner, v. NORM ROBINSON, Warden, London Correctional Institution Respondent.
CourtU.S. District Court — Southern District of Ohio

District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus is before the Court for decision on the merits on the Amended Petition (ECF No. 7), Petitioner's initial Brief in Support (ECF No. 6), the State Court Record (ECF No. 13), the Return of Writ (ECF No. 14), and Petitioner's Traverse/Reply (ECF No. 21).

Procedural History

On September 29, 2014, the Darke County grand jury indicted Petitioner Klint Kuck on charges of sexual assault, kidnapping, and furnishing alcohol to two underage customers, "Sara" and "Jane," on separate occasions in July 2012 and February 2013. Over Kuck's objection, the charges were tried together. Kuck was convicted of two counts of rape and on the alcohol charges, but acquitted of kidnapping, and sentenced to seven years imprisonment. Kuck appealed and his convictions were affirmed. State v. Kuck, 2016-Ohio-8512, 79 N.E. 3d 1164, 2016 Ohio App. LEXIS 5349 (Dec. 29, 2016), appellate jurisdiction declined, 150 Ohio St. 3d 1444 (2017).

Kuck also filed a petition for post-conviction relief claiming ineffective assistance of trial counsel and that the verdicts were against the manifest weight of the evidence. The trial court denied the petition and Kuck appealed, but the trial judgment was affirmed. State v. Kuck, 2018 Ohio App. LEXIS 3545 (2nd Dist. Aug. 17, 2018). When the Return of Writ was filed, Kuck's time to appeal to the Supreme Court of Ohio had not yet expired but was due to expire October 9, 2018. A check of that court's docket on December 21, 2018, showed no appeal had been taken.

Kuck, represented by counsel, filed his Petition for writ of habeas corpus in this Court on May 9, 2018, pleading the following Grounds for Relief:

Ground One: Petitioner was denied his right to a fair trial when the trial court refused to dismiss a potential juror for cause when she stated that she could not judge Petitioner fairly.
Supporting Facts: During voir dire, a potential juror told the trial court that she had had a sin [sic] who was raped, who had since passed away. Although the trial court tried to rehabilitate her, she stated that she was not sure that she would be able to listen to form her own opinion about what had happened. When trial counsel questioned her, she stated "I don't think I could be fair." When trial counsel moved to dismiss her for cause, the trial court denied the motion, forcing counsel to use Mr. Kuck's last peremptory challenge.
Ground Two: Petitioner was denied his right to effective assistance of counsel.
Supporting Facts: Trial counsel failed to move for acquittal at the close of the State's case and the close of evidence; failed to prepare to cross examine the complaining witnesses by having their recorded statements transcribed; failed to object to improper jury instructions; failed to object to incorrect statements by the trial court as to the elements and standards of proof; failed to object to the admission of improper evidence regarding the alleged victims, and Mr. Kuck's own sexual history; and failed to object to prosecutorialmisconduct through leading questions, hearsay, and blatant appeals to the jury's emotions.
Ground Three: Petitioner was denied his right to a fair trial by prosecutorial misconduct.
Supporting Facts: The prosecutor introduced irrelevant personal information from the complaining witnesses in order to bolster their testimony and appeal to the jury's emotions; introduced testimony about Mr. Kuck dating younger women, to make Mr. Kuck look untrustworthy; accused Mr. Kuck of treating women like "a piece of meat", looking for "another notch in the belt", and not intending to date or even call either of the complaining witnesses after having sexual encounters with them in an effort to appeal to the jury's emotions; used leading questions; and solicited salacious hearsay testimony from a witness in an effort to make Mr. Kuck look bad.
Ground Four: Petitioner was denied his right to a fair trial when the trial court refused to sever unrelated charges.
Supporting Facts: Petitioner's interaction with complaining witness D.D. happened on July 13th, 2012, in Darke County, Ohio. Petitioner's interaction with complaining witness L.C. happened February 23, 2013, in Preble County, Ohio. The two incidents happened seven months apart, in different counties. When trial counsel moved the trial court to sever the charges for trial, the trial court refused.
Ground Five: Petitioner was denied his right to a fair trial when the trial court allowed the introduction of evidence that the complaining witnesses "blacked out" to be considered evidence that the complaining witnesses' ability to consent to sexual conduct was impaired.
Supporting Facts: Both complaining witnesses testified that they did not remember portions of their interactions with Petitioner. Evidence of loss of memory is not evidence of an impaired ability to consent to sexual conduct. However, the trial court allowed the jury to consider evidence of lack of memory as evidence of impaired ability to consent to sexual conduct.
Ground Six: Petitioner was denied his right to a fair trial when the trial court gave an instruction that created a mandatory presumption.
Supporting Facts: The trial court gave a jury instruction that read, in pertinent part, "The consumption of large amounts of alcohol ina short period of time is evidence that voluntarily [sic] intoxication caused substantial impairment." Another portion of the jury instructions stated that "Stumbling, falling, slurred speech, passing out and vomiting are all evidence that an intoxicated person is substantially impaired." These instructions created the presumption that if the jury found any of these things: consumption of large amounts of alcohol in a short period of time, stumbling, falling, slurred speech, passing out, or vomiting, they must find that the complaining witness' ability to consent to sexual conduct was substantially impaired.
Ground Seven: Petitioner was denied his right to a fair trial when the trial court gave an instruction on sexual battery as a lesser included offense of rape, but did not instruct the jury on the difference in the elements of the crimes.
Supporting Facts: The trial court instructed the jury on the supposed "lesser included offense" of sexual battery with regard to the rape charges regarding both complaining witnesses. However, under Ohio law, the elements of sexual battery are indistinguishable from the elements of rape: sexual conduct, with a person who is not the defendant's spouse, while that person's ability to resist or consent is substantially impaired, and the defendant knows or has reason to Code Sections 2902(A)(1)(c), 2907.03(A)(2); OJI CR 507.02(A)(1); OJI CR 507.03. The trial court did not instruct the jury on the additional element that distinguishes rape from sexual battery, and the Ohio Courts do not agree on the nature of that element.

(Petition ECF No. 1, Page ID 26-30.)

Analysis
Ground One: Failure to Excuse Unqualified Juror for Cause

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 tobe fair in this rape case because her son had been raped as a young man. The Second District upheld the trial judge's decision, holding

[*P56] Here, the trial court implicitly found, based on the prospective juror's answers, that despite her assertion to the contrary, she could be a fair and impartial juror. While the prospective juror believed that she would not be able to judge properly, the trial court, through its questions, was able to show that she would do her duty properly. We think that this conclusion is reasonable.

State v. Kuck, 2016-Ohio-8512. Assuming without conceding that this was error, Respondent notes that the loss of a peremptory challenge does not violate the constitutional right to an impartial jury so long as the biased juror does not sit. (Return, ECF No. 14, PageID 2154, relying on Ross v. Oklahoma, 487 U.S. 81 (1988), where the Court stated "so long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." Ross, 487 U.S. at 88 (citing Hopt v. Utah, 120 U.S. 430, 436 (1887), and Spies v. Illinois, 123 U.S. 131 (1887)).

Petitioner agrees that Ohio law, like that of Oklahoma, requires a defendant to use a peremptory challenge to remove a juror he has unsuccessfully challenged for cause. This case is different from Ross, Kuck argues, because he had to use his last peremptory to remove the challenged juror, whereas Ross had eight of his nine peremptory challenges left (Reply, ECF No. 21, PageID 2218, citing State v. Rowe, 1988 Ohio App. LEXIS 2123 (2nd Dist. Jun. 1, 1988)). The Magistrate Judge notes that in Rowe Judge Brogan dissented on the ground that, because the questionable juror had been excused, any error in not excusing her for cause was harmless since the deciding jury was impartial. Id. at *14-15, citing Gray v. Mississippi, 481 U.S. 648 (1987).

In any event, the analysis of this claim in the Reply reverses the standard for habeas corpus relief. To obtain relief, a petitioner must show that his conviction is contrary to or an unreasonable application of clearly established Supreme Court precedent, not that his case is distinguishable from a relevant Supreme Court case. To put it differently, the Supreme Court has never held that forcing a defendant to use his last peremptory to remove an unsuccessfully challenged venire man or woman is unconstitutional. The holding in Ross is that if the challenged juror does not sit, there is no...

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