ROSS v. PINEDA

• Decision Date: 07 April 2011
• Docket Number: Case No. 3:10-cv-391
• Parties: THOMAS L. ROSS, Petitioner, v. FRANCISCO PINEDA, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

THOMAS L. ROSS, Petitioner,

v.FRANCISCO PINEDA, Warden, Respondent.

Case No. 3:10-cv-391

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

Dated:April 7, 2011

Magistrate Judge Michael R. Merz

DECISION AND ORDER

This habeas corpus case brought under 28 U.S.C. § 2254 is before the Court for decision on the merits. The parties have unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) and the case has been referred on that basis (Doc. No. 8).

Mr. Ross filed his Petition with a Brief in support on October 19, 2010 (Doc. Nos. 1, 3). On the Court's Order (Doc. No. 5), Respondent has filed a Return of Writ with accompanying state court record (Doc. No. 9). Petitioner has filed no reply to the Return and the time for doing so set in the Order for Answer has expired. Therefore the case is ripe for decision.

Petitioner was convicted in the Montgomery County Common Pleas Court on four counts of gross sexual imposition on a person under the age of thirteen, one count of rape of a person under ten, and one count of possession of less than five grams of powder cocaine (Petition, Doc. No. 1, ¶ 5). He was sentenced to life imprisonment with a possibility of parole after ten years. Id. at ¶ 3. His conviction was affirmed on appeal by the Ohio Second District Court of Appeals and the Ohio Supreme Court denied leave for a further appeal. Id. at ¶ 9.

Petitioner, who is represented by counsel, pleads the following grounds for relief:GROUND ONE: The cumulative effect of prosecutorial misconduct during the trial resulted in Petitioner's unlawful conviction.

SUPPORTING FACTS: During rebuttal closing argument, the

Prosecution made repeated emotional appeals to the jury, violated the "Golden Rule" by asking the jury to identify with the parents of the alleged victims, misstated the evidentiary standard, accused defense counsel of coaching Petitioner, commented on the credibility of both the Petitioner's and the State's witnesses, and misinterpreted the testimony of the State's expert. During other portions of the trial, the Prosecution repeatedly used leading questions after being admonished by the trial court, and refused to release exculpatory evidence to Petitioner and his counsel in time for its effective use at trial. The cumulative effect of this prosecutorial misconduct denied Petitioner his right to Due Process and a fair trial.

GROUND TWO: The State's failure to disclose exculpatory materials resulted in Petitioner's unlawful conviction.

SUPPORTING FACTS: The Prosecution failed to disclose or release several types of exculpatory materials in time for those materials to be effectively used at trial, and in some cases failed to disclose those materials at all. Those materials include medical records regarding examinations of the alleged victims; interview records regarding the alleged victims; protocols used by the CARE House, the quasi-governmental entity which interviewed the alleged victims; and the alleged victims' grand jury testimony, which likely conflicted with their trial testimony. The late disclosure or non-disclosure of these exculpatory materials denied Petitioner his right to Due Process and a fair trial.

GROUND THREE: The trial court's failure to order production of the grand jury testimony resulted in Petitioner's unlawful conviction.

SUPPORTING FACTS: The testimony of the alleged victims at trial conflicted with accusations of anal rape in both the Indictment and the Bill of Particulars. At trial, the alleged victims all denied that any anal rape had occurred. Because both the Indictment and the Bill of Particulars contained allegations of anal rape, the alleged victims' testimony before the Grand Jury must have included testimony that anal rape occurred. Petitioner moved the trial court to perform an in camera inspection of the Grand Jury testimony to determine whether the alleged victim's testimony before the Grand Jury conflicted with the testimony at trial, as such a conflict would allow Petitioner to impeach his accusers. The trial court refused to order the production of the Grand Jury testimony, or to even perform an in camera inspection in order to determine whether the testimony conflicted.

GROUND FOUR: The "Cookie Cutter" indictment issued against Petitioner was structurally defective.

SUPPORTING FACTS: The Indictment was so defective that the trial court dismissed one charge and attempted [to] make six other charges more specific through the use of jury instructions. The trial court concluded that because the Indictment failed to give Petitioner sufficient notice of the acts he was alleged to have committed, so as to allow him to present a defense and avoid double jeopardy, the Indictment was structurally defective. However, the trial court did not dismiss the indictment, as it was required to do under the law, and instead attempted to cure the Indictment, which is prohibited.

GROUND FIVE: Petitioner's conviction was contrary to the weight of the evidence.

SUPPORTING FACTS: The facts that: a sixteen-year-old who admitted to having sex with the younger children was not prosecuted; the children were angry with Petitioner before making the accusations against him, the children met at a park to discuss getting Petitioner "in trouble," the children's grandmother had unrelated personal reasons to want Petitioner to suffer; along with the State's use of purely prejudicial materials and evidence; along with the trial court's refusal to allow Petitioner to impeach his accusers using their own statements in medical records, prejudiced the jury against Petitioner, and led to the jury's guilty verdict, which was contrary to the weight of the evidence.

(Return of Writ, Doc. No. 9, Page ID 241-242.)

Ground Five: Conviction Against the Manifest Weight of the Evidence

In Ground Five Petitioner asserts that his convictions are against the manifest weight of the evidence. Respondent correctly argues that this claim is not cognizable in federal habeas corpus.

Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. §2254(a); Wilson v. Corcoran, 562 U.S.____, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010);Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state courtdeterminations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991).

Whether a conviction is against the manifest weight of the evidence is purely a question of Ohio law. In State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E. 2d 541 (1997), the Ohio Supreme Court reaffirmed the important distinction between review for insufficiency of the evidence and review on the claim that the conviction is against the manifest weight of the evidence. It held:

In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102, 387 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief." (Emphasis added.)

When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a " 'thirteenth juror' " and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ("The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighsheavily against the conviction.").

78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172, 485 N.E. 2d 717 (Hamilton Cty. 1983)(cited approvingly by the Supreme Court in Thompkins), Judge Robert Black contrasted the manifest weight of the evidence claim:

In considering the claim that the conviction was against the manifest weight of the evidence, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

485 N.E. 2d at 718, ¶3 of the syllabus. The...