Rupp v. Warden, Lake Erie Corr. Inst.
| Decision Date | 03 December 2012 |
| Docket Number | CASE NO. 4:11-CV-2174 |
| Parties | FORREST RUPP, Petitioner, v. WARDEN, Lake Erie Correctional Institution, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
Forrest Rupp1 ("Petitioner") petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. [Doc. 1.] Magistrate Judge Vecchiarelli filed a Report and Recommendation ("R&R"), recommending that the petition should be denied. [Doc. 11.] Petitioner objects and says that the state trial court erred in its assessment of Ohio law and that the prosecution acted inappropriately. [Doc. 14.] The Court concludes that clearly established federal law was not violated, ADOPTS the R&R, and DENIES Rupp's Petition.
Neither Petitioner nor Respondent objects to the state appellate court's recitation of the facts, so the Court adopts those factual and procedural recitations. Accordingly, only a brief background summary is necessary. On March 18, 2004, Petitioner and D.F., along with D.F.'s infant daughter, went to a Wal-Mart. On the way back to a friend's home, Petitioner began touching D.F. in the car against her will. D.F. continually resisted Petitioner's advances, and Petitioner eventually put his hands down D.F's pants. Petitioner then asked D.F. to crawl across the car's center console and layon top of him. She did, but continued to protest. Petitioner and D.F. eventually had both vaginal and oral sex.
Petitioner was charged with two counts of rape in violation of Ohio Revised Code § 2907.02(A)(2) , which criminalizes sexual conduct of another by purposely compelling the other to submit by force or threat of force. During closing arguments, the state posited that the essential question was whether Petitioner overcame D.F.'s will by fear or duress from which the jury could infer a threat of force. The trial court instructed the jury to this effect as well. See Trial Tr. at 590 (). The defense objected to this instruction. The jury returned a guilty verdict on the second count, but could not come to an agreement on the first count.2 Petitioner was thereafter sentenced to ten years in prison and labeled a sexually oriented offender.
Petitioner unsuccessfully appealed his conviction to the Ohio Court of Appeals. State v. Rupp, 2007 WL 969069 (Ohio Ct. App. Mar. 27, 2007). The Ohio Supreme Court denied leave to appeal. State v. Rupp, 872 N.E.2d 953 (Ohio 2007). Petitioner's petitions for state post-conviction relief were also denied. State v. Rupp, 2010 WL 2249929 (Ohio Ct. App. June 4, 2010); State v. Rupp, 935 N.E.2d 46 (Ohio 2010).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a district court shall not issue the writ of habeas unless a state court's decision "was contrary to, or involvedan unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, 387 (2000) () (citation omitted).
The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of the Report and Recommendation to which the parties have made an objection. 28 U.S.C. § 636(b)(1). Here, Petitioner has filed objections to each of the Magistrate Judge's recommendations.
Petitioner raises three grounds for relief. All parties, as well as the Magistrate Judge, agree that each claim has been properly preserved for review. As the first and second grounds are considerably intertwined, this Court will address those claims together. A. Claims One and Two—The Inference of Force
Petitioner's first claim is that he was denied due process of law and did not receive a fair trial because he was convicted based upon insufficient evidence. [Doc. 1-1.] The basis for this claim is that no evidence produced at trial indicated that Petitioner used actual force at any point during the rape. [Id.] Rather, Petitioner argues, the trial court instructed the jury that it could infer force if the victim experienced fear or duress. This claim thus begets the second claim: Petitioner did not receive a fair trial because the trial court improperly issued a jury instruction that eased the prosecution's burden of proof on the element of force. [Id.]
These claims boil down to the same fundamental issue: whether the trial court's instructionto the jury on an issue of state law—the inference of force—was correct. The Magistrate Judge noted that an alleged error of state law serves as the basis for a successful habeas petition only if the error denied the petitioner fundamental fairness in the trial process. [Doc. 11, at 14 (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).] The alleged error must be so severe as to offend the due process clauses of the Fifth and Fourteenth Amendments of the United States Constitution. United States v. Agurs, 427 U.S. 97, 107 (1976). Generally, however, this Court is bound by an intermediate state appellate court's judgment on an issue of state law where the state's highest court has not spoken. Priest v. Hudson, 655 F. Supp. 2d 808, 829 (N.D. Ohio 2009) (citing Olsen v. McFaul, 843 F.2d 918, 929 (6th Cir. 1988)). If this Court is convinced that the state supreme court would decide the question differently than the state appellate court, such deference is unnecessary. Id.
Here, the Ohio Court of Appeals engaged in a lengthy discussion of whether the trial court's instruction on the inference of force was correct. Rupp, 2007 WL 969069, at *5-6. That court first cited to State v. Martin, 77 Ohio App. 553, 554 (Ohio Ct. App. 1946), which stated that a rape could occur "even though the victim might have used greater physical resistance or cried out, when it is shown that her will was overcome by the fear or duress." (emphasis added). The Rupp court also noted that the Ohio Supreme Court has held that "[a]s long as it can be shown that the rape victim's will was overcome by fear or duress, the forcible element of rape can be established." State v. Eskridge, 526 N.E.2d 304, 306 (Ohio 1988).
Petitioner asks this Court to disregard the Ohio Supreme Court's statement in Eskridge, because that case involved a rape of a child by her parent, rather than sexual contact between twoadults.3 He then points to the Ohio Supreme Court's subsequent holding in State v. Schaim, 600 N.E.2d 661 (Ohio 1992) which apparently disclaimed Eskridge's applicability to a rape between adults. This proposition is misleading for a number of reasons. First, Schaim cabins only the direct holding of Eskridge—that is, that coercion can be inferred from a parent-minor child relationship. It does not stand for a repudiation of Eskridge's reliance upon Martin, a rape case where there was no evidence of a relationship marked by such an imbalance of power. And second, the Ohio Supreme Court specifically stated in Schaim that "[a] threat of force can be inferred from the circumstances surrounding sexual conduct . . . ." Schaim, 600 N.E.2d at 663. Schaim more rightly stands for the proposition that a history of incest between a parent and minor child cannot satisfy the force inference in a rape between a parent and an adult child.
Further, the Ohio Supreme Court had the opportunity to correct any misjudgments of law in Rupp's state appellate and post-conviction proceedings. It twice declined to do so. State v. Rupp, 872 N.E.2d 953 (Ohio 2007); State v. Rupp, 935 N.E.2d 46 (Ohio 2010). This Court is not convinced that the Ohio Supreme Court would decide this issue differently if presented with it directly. Olsen therefore requires deferring to the state appellate court's judgment as articulated in Martin. In response, Petitioner says that the Ohio Supreme Court's refusal to review the appeals courts' judgments should not be a bar to relief, as that court reviews very few non-capital felony cases. This Court agrees that this factor is not particularly weighty, though it does lend some support to deferring to the Ohio Court of Appeals's decision in Martin.
Deciding whether the Ohio Court of Appeals made an incorrect pronouncement of state law is not usually for this Court to review. In certain circumstances, of course, such review is warrantedwhen there are serious concerns of unfairness or due process at issue. No such issues are present. Petitioner was convicted based on jury instructions in line with Ohio law and without conflict with Supreme Court authority. See Schaim, 600 N.E.2d at 665 (). Consequently, if the alleged error in the jury instructions is not cognizable on habeas review, the same fate must befall Petitioner's sufficiency of the evidence claim.4 That claim—that the appellate court erred in applying a diminished standard of force—is part and parcel of the jury instruction argument. Accordingly, Petitioner's first and second grounds for relief are denied. B. Claim Three—Prosecutorial Misconduct
Petitioner's final claim for relief is that the prosecutor acted improperly during the closing arguments phase of the trial. [Doc. 1-1 .] To successfully assert a prosecutorial misconduct claim in a habeas proceeding, it is not enough that the prosecutor acted improperly. The relevant question is whether the prosecution's conduct so infected the trial with unfairness as to render the trial fundamentally unfair or make the resulting conviction a denial of due process. See Darden v. Wainwright, ...
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