Kuck v. Robinson
Decision Date | 11 January 2019 |
Docket Number | Case No. 3:18-cv-157 |
Parties | KLINT KUCK, Petitioner, v. NORM ROBINSON, Warden, London Correctional Institution Respondent. |
Court | U.S. District Court — Southern District of Ohio |
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).
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:
(Petition ECF No. 1, Page ID 26-30.)
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 ( ).
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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