Sarr v. Cook

• Decision Date: 24 October 2020
• Docket Number: Case No. 3:20-cv-429
• Parties: SAMBA SARR, Petitioner, v. BRIAN COOK, Warden, Southeastern Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

SAMBA SARR, Petitioner, v. BRIAN COOK, Warden,Southeastern Correctional Institution, Respondent.

Case No. 3:20-cv-429

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

October 24, 2020

District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Samba Sarr to obtain relief from his conviction in the Common Pleas Court of Montgomery County, Ohio, on two counts of kidnapping, one count of gross sexual imposition, and one count of assault (Petition, ECF No. 1, PageID 1).

Sarr neither paid the filing fee nor formally applied to proceed in forma pauperis. Because he is incarcerated, the Court sua sponte grants him leave to proceed in forma pauperis.

Under Rule 4 of the Rules Governing § 2254 Cases, the clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If 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.

Litigation History

Sarr was indicted by a Montgomery County grand jury on two counts of kidnapping, one count of gross sexual imposition, and one count of assault arising from a sexual encounter with a woman identified as T.W. Following a trial, the jury convicted Sarr on all charges. At sentencing, the trial court merged the two kidnapping convictions and the State elected to proceed on the second count of kidnapping (sexual activity) for purposes of sentencing. The trial court imposed a four-year prison term for kidnapping and a six-month term for gross sexual imposition; the two sentences were ordered to be served consecutively. The court imposed a concurrent 180-day sentence on the assault conviction for an aggregate prison term of four years and six months.

Sarr appealed to the Ohio Second District court of Appeals which affirmed the conviction, except that it remanded for merger under Ohio Revised Code § 2941.25 of the kidnapping and gross sexual imposition counts and resentencing. State v. Sarr, 2019-Ohio-3398 (Ohio App. 2d Dist. Aug. 23, 2019). The Supreme Court of Ohio then granted leave to file a delayed appeal. State v. Sarr, 2020-Ohio-313 (Feb. 4, 2020). However, appellate jurisdiction was then declined. 158 Ohio St. 3d 1487 (Apr. 28, 2020), and Sarr filed the instant Petition.

Sarr pleads the following grounds for relief

Ground One: Counsel for the defendant was ineffective as trial counsel failed to make proper objection.

Supporting Facts: The prosecutor engaged in misconduct during closing arguments by commenting that the jury "needs to do [their] job and find the defendant guilty," of which trial counsel failed to object to and further did not request that the jury disregard such statement. This statement indicated to the jury that the reason they were their [sic] was to find Petitioner guilty without regard to what the evidence might determine.

Ground Two: The trial court erred when it found Petitioner guilty of kidnapping (sexual activity), gross sexual imposition by force, and assault as such findings are insufficient to support the conviction.

Supporting Facts: Petitioner's charges all consisted of elements of force of which can be negated by consent, especially regarding consensual sexual encounters as such was the case here. The State must have provided evidence to suffice each element of the offenses. Because the evidence presented at trial was insufficient to support a conviction against Petitioner, a guilty verdict was against the sufficiency of the evidence.

Ground Three: Trial Court erred in denying to provide the Consent and Instruction to the jury and failure to provide the Petitioner with a fair and impartial trial, in violation of the Sixth Amendment.

Supporting Facts: The failure to include the consent instruction negates and greatly diminishes the effect of a defendant's asserting his constitutional right not to testify and asserts his innocensem [sic] thus depriving him of an adequate defense to the State's accusations.

Ground Four: The Trial Court erred by denying to provide the jury with instructions on lesser included offenses of abduction and unlawful restraint.

Supporting Facts: Abduction and Unlawful Restraint is the lesser included offense of Kidnapping, thus the trial court failed to give the lesser include[d] offense instruction to the jury.

(Petition, ECF No. 1, PageID 6, 8, 9, 11.)

Analysis

Ground One: Ineffective Assistance of Counsel: Failure to Object to Prosecutor's Comment

In his First Ground for Relief, Sarr asserts his trial attorney provided ineffective assistance of trial counsel when he failed to object to the prosecutor's comments in closing that the juryshould do its duty and convict. Sarr raised this claim as his First Assignment of Error on direct appeal and the Second District decided it as follows:

[*P16] Sarr's first assignment of error states as follows:

COUNSEL FOR THE DEFENDANT WAS INEFFECTIVE AS TRIAL COUNSEL DUE TO HIS FAILURE TO MAKE PROPER OBJECTIONS.

[*P17] Under this assignment of error, Sarr contends that trial counsel rendered ineffective assistance for failing to object to statements made by the prosecutor during closing argument.

[*P18] "Claims of ineffective assistance of trial counsel are reviewed under the analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989)." State v. Sewell, 2d Dist. Montgomery No. 27562, 2018-Ohio-2027, ¶ 63, 112 N.E.3d 1277. "Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance." Id., quoting Bradley at paragraph two of the syllabus. In order to establish prejudice, "the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." Id., quoting Bradley at paragraph three of the syllabus.

[*P19] The sole issue before us relates to whether counsel improperly failed to object to alleged prosecutorial misconduct during closing argument.

[*P20] In Ohio, "[t]he test for prosecutorial misconduct is whether the conduct complained of deprived the defendant of a fair trial." State v. Jackson, 92 Ohio St.3d 436, 441, 2001-Ohio-1266, 751 N.E.2d 946 (2001), citing State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). When reviewing a claim of prosecutorial misconduct in the context of closing argument, we note that prosecutors are given "wide latitude in closing argument, and the effect of any conduct of the prosecutor during closing argument must be considered in light of the entire case to determine whether the accused was denied a fair trial." (Citation omitted.) State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶149. "[T]he touchstone of a due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

[*P21] The specific portion of the prosecutor's argument to which Sarr objects occurred during rebuttal closing argument wherein the prosecutor stated, "Don't be afraid to go back into that room and do your job and find this man guilty." Tr. 472. Sarr argues that this statement indicated to the jurors that their only option following deliberation was to convict on all charges.

[*P22] The State, however, contends that Sarr fails to provide the context for the statement. Specifically, the State notes that, in his closing argument, Sarr's counsel made the following statement:

So here's the deal. Rough sex was her secret. That was her secret life. That was her private life. When she went home or went to work or met up with Dave and had these marks, these marks, she had to start explaining. She had to start explaining to somebody who went, where'd those come from? Now, I'm a victim.

* * *

The judge will tell you in a moment that in order to decide this case, you have to decide, if you can, what are the facts? What do we believe happened? Maybe you can, maybe you can't. You might go back and talk with each other and some of you might say I can't figure this out. I don't know what happened. I can't tell what happened. Guess what that is? It's called reasonable doubt.

* * *

[The judge] will tell you that you may not convict anyone of any crime unless and until you are firmly convinced of the truth of the charges. What's that mean? Firmly convinced. That means you don't convict him today or tomorrow and then go home and sit back and watch television and think you know, I wonder if there really was an aunt. I wonder if there really were ten people. I wonder if they really did have rough sex in the past. Too late. You found him guilty, too late.

If you have any doubts, it's right now. Now, or never. That's what firmly convinced means. Firmly convinced means you're so decisive, you can't change your mind. You can't wonder tomorrow night did I do the right thing. Too late for this man.

So you have more power right now than you'll ever have over another human being. Do you realize that? You are 12 judges. Each of you gets a vote and each vote is equal to every other vote. You decide for yourself what is the right thing to do here. You talk to each other, but you don't change your vote or change your mind or change your opinion or surrender just because you're outnumbered, just because someone tells you you don't know what you're talking about, just because someone tells you they know better than you. The judge will tell you that. He'll say don't surrender.

Tr.

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