Rucker v. Moore, Case No. 3:13-cv-344

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Parties: SIDNEY RUCKER, Petitioner, v. ERNIE MOORE,WARDEN, Lebanon Correctional Institution, Respondent.
• Docket Number: Case No. 3:13-cv-344
• Decision Date: 08 October 2013

SIDNEY RUCKER, Petitioner,
v.
ERNIE MOORE,WARDEN, Lebanon Correctional Institution, Respondent.

Case No. 3:13-cv-344

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

October 8, 2013

District Judge Timothy S. Black Magistrate Judge Michael R. Merz
REPORT AND RECOMMENDATIONS

This habeas corpus case, brought by Petitioner Sidney Rucker pro se under 28 U.S.C. § 2254, is before the Court for initial review pursuant to Rule 4 of the Rules Governing § 2254 Cases. That Rule provides in pertinent part: "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner."

Procedural History

Rucker was convicted in the Montgomery County Common Pleas Court in October 2010 of aggravated robbery and kidnapping with a three-year firearm specification and sentenced to seven years imprisonment (Petition, Doc. No. 2, ¶¶ 2, 3, 5). He appealed to the Ohio Second District Court of Appeals which affirmed the conviction. State v. Rucker, 2012 Ohio 4860, 2012 Ohio App. LEXIS 4254 (2^nd Dist. Oct. 19, 2012) The Ohio Supreme Court declined jurisdiction

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over a further appeal. State v. Rucker, 134 Ohio St. 3d 1471 (2013). This Petition for writ of habeas corpus followed.

ANALYSIS

Rucker pleads the following Grounds for Relief:

Ground One: Failure to grant motion to suppress [in] violation of 4^th Amendment.
Supporting Facts: The deputy that effectuated the stop of appellant lacked a reasonable articulable suspicion to do so. The deputies that effectuated the arrest of appellant lacked probable cause to do so. Officers also conducted an illegal show up identification.
Ground Two: Reversible prosecutorial misconduct. 5^th and 14^th Amendment.
Supporting Facts: During closing arguments the prosecutor said "We don't reward defendants for getting rid of the gun. We don't do it."
Ground Three: Jury misconduct. 5^th, 6^th, and 14^th Amendments.
Supporting Facts: The trial court errored [sic] and improperly answered a jury question during deliberations without counsel present.
Ground Four: Ineffective Assistance. 6^th and 14^th Amendment.
Supporting Facts: Counsel was ineffective for failing to raise all meritorious issues presented above.

(Petition, Doc. No. 2, PageID 32-37.)

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Ground One

In his First Ground for Relief, Rucker asserts his Fourth Amendment rights were violated in various ways in his initial detention and arrest.

Federal habeas corpus relief is not available to state prisoners who allege they were convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district court to determine whether state procedure in the abstract provides full and fair opportunity to litigate, and Ohio procedure does. The district court must also decide if a Petitioner's presentation of claims was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an unanticipated and unforeseeable application of procedural rule prevents state court consideration of merits. Riley v. Gray, 674 F.2d 522 (6^th Cir. 1982). The Riley court, in discussing the concept of a "full and fair opportunity," held:

The mechanism provided by the State of Ohio for resolution of Fourth Amendment claims is, in the abstract, clearly adequate. Ohio R. Crim. P. 12 provides an adequate opportunity to raise Fourth Amendment claims in the context of a pretrial motion to suppress, as is evident in the petitioner's use of that procedure. Further, a criminal defendant, who has unsuccessfully sought to suppress evidence, may take a direct appeal of that order, as of right, by filing a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P. 5(A). These rules provide an adequate procedural mechanism for the litigation of Fourth Amendment claims because the state affords a litigant an opportunity to raise his claims in a fact-finding hearing and on direct appeal of an unfavorable decision.

Id. at 526.

As the opinion of the Second District indicates, Rucker had a full and fair opportunity to litigate his Fourth Amendment issues in both the trial and appellate courts. The First Ground for

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Relief should therefore be dismissed with prejudice.

Ground Two

In his Second Ground for Relief, Rucker complains of a comment by the prosecutor in closing regarding Rucker's inferred disposal of the firearm that "[w]e don't reward defendants for getting rid of the gun." This issue was before the Second District as Rucker's second assignment of error which that court decided as follows:

[*P27] In his second assignment of error, Rucker claims that the prosecutor engaged in misconduct when he (1) asked the victim and the victim's mother about how their lives were affected by the alleged robbery and kidnapping and (2) told the jury during closing argument, "We do not reward defendants for getting rid of the gun. We don't do it."
[*P28] In reviewing claims of prosecutorial misconduct, the test is whether the prosecutor's remarks were improper and, if so, whether those comments prejudicially affected the substantial rights of the defendant. State v. Jones, 90 Ohio St.3d 403, 420, 2000 Ohio 187, 739 N.E.2d 300 (2000). "The touchstone of analysis 'is the fairness of the trial, not the culpability of the prosecutor.'" Id., quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct 940, 71 L.Ed.2d 78 (1982). Where it is clear beyond a reasonable doubt that the jury would have found the defendant guilty, even absent the alleged misconduct, the defendant has not been prejudiced, and his conviction will not be reversed. See State v. Underwood, 2d Dist. Montgomery No. 24186, 2011 Ohio 5418, ¶ 21. We review allegations of prosecutorial misconduct in the context of the entire trial. State v. Stevenson, 2d Dist. Greene No. 2007-CA-51, 2008 Ohio 2900, ¶ 42, citing Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
[*P29] Rucker did not object to the prosecutor's statement during closing argument or to the questions posed to Leigh and his mother concerning how the offenses affected them. Consequently, we review them for plain error. Plain error may be noticed if a manifest injustice is demonstrated. Crim.R. 52(B); State v. Lewis,

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2d Dist. Montgomery No. 23850, 2011 Ohio 1411, ¶ 54. In order to find a manifest miscarriage of justice, it must appear from the record as a whole that but for the error, the outcome of the trial clearly would have been otherwise. Id., citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).
[*P30] Rucker argues that the prosecutor's statement, "We do not reward defendants for getting rid of the gun. We don't do it," was an improper statement of the prosecutor's personal belief or opinion. We have previously addressed a similar comment by the prosecutor regarding the absence of a firearm, stating:

[T]he State correctly asserts — and the prosecutor correctly stated during voir dire — that the prosecution was not required to produce the weapon in order to prove the firearm specifications. Circumstantial evidence and direct evidence have equivalent probative value. Consequently, the State could prove the firearm specification solely on the basis of circumstantial evidence; the prosecutor could have reasonably informed the prospective jurors of that fact.
However, the prosecutor's proffered reason for not requiring the weapon to be produced, i.e., that "we don't reward people for shooting someone and getting rid of a firearm," was objectionable. Lewis was not charged with tampering with evidence, and no evidence was submitted at trial to support the contention that Lewis "got rid of" or "concealed or destroyed" the firearm. The mere fact that the gun was not recovered at the scene is insufficient to establish tampering with evidence. Nevertheless, in this case, the felonious assault and murder offenses arose out of the shooting death of [the victim]; there was overwhelming evidence that an operable firearm was used in the commission of the offenses. Accordingly, we find the prosecutor's statements to be harmless beyond a reasonable doubt.

(Citations omitted.) Lewis at ¶ 45-46.
[*P31] Here, the prosecutor stated during his closing argument, "Remember, just because the gun is not here today doesn't mean you cannot say the words guilty for a gun crime. We do not reward defendants for getting rid of the gun. We don't do it." This statement might be better characterized as an improper comment on the evidence rather than an improper statement of the

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prosecutor's personal opinion or belief. Regardless of the characterization, for the reasons we expressed in Lewis, the prosecutor's statement was objectionable.
[*P32] Nevertheless, we find that the prosecutor's statement was harmless beyond a reasonable doubt. Before the offending statement, the prosecutor detailed [**14] the evidence that had been presented about Rucker's possession of a gun. Three witnesses — Leigh, Leigh's mother, and Lewis — all testified that they saw Rucker with a gun, and both Leigh and Lewis described the gun for the jury. Most notably, Lewis, who had no prior relationship

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