Shuster v. Warden

• Decision Date: 02 November 2018
• Docket Number: Case No. 2:18-cv-211
• Court: U.S. District Court — Southern District of Ohio
• Parties: MICHAEL SHANE SHUSTER, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

MICHAEL SHANE SHUSTER, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

Case No. 2:18-cv-211

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

November 2, 2018

Judge Michael H. Watson

Magistrate Judge Kimberly A. Jolson

ORDER AND REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Undersigned RECOMMENDS that this action be DISMISSED. In addition, Petitioner's request for discovery and for an evidentiary hearing are DENIED.

I. FACTS AND PROCEDURAL HISTORY

This case has a lengthy procedural history summarized below as follows:

{¶ 4} This case arose on March 5, 2012, when a high school student overheard the victim tell a friend she was being molested by her stepfather. The student told his parents, who called the school guidance counselor immediately. The guidance counselor brought the victim into her office and asked whether the allegation was true. The victim broke down crying uncontrollably and said yes, it was true, but she didn't want her mom to know and she didn't want to tell because the family would lose everything. The guidance counselor obtained more details from the victim and contacted Children's Services and the Morgan County Sheriff's Department.

{¶ 5} The victim was interviewed by law enforcement and a forensic interviewer at Nationwide Children's Hospital. The victim stated the sexual abuse began in 2006 when the family moved into a new home they built on South Street in Stockport, Ohio when she was 10 years old. The abuse occurred regularly in her bedroom; her stepfather touched her over and under her clothes, on her buttocks, breasts, and genitals. The abuse included digital penetration and sexual intercourse, meaning penetration of the vagina with the penis. The sexual assaults continued until the Monday before the victim disclosed. The victim stated her mother was unaware of the abuse.

{¶ 6} Sheriff's deputies told the victim's mother her daughter was being molested by her stepfather and the mother became physically ill. She told law enforcement she had no idea the abuse was taking place and never observed anything unusual about her husband's relationship with her daughter.

Appellant's Admissions

{¶ 7} Appellant is the victim's stepfather. He was first interviewed by the Morgan County Sheriff's Office on March 5, 2012 and waived his Miranda rights. In the first interview, deputies confronted appellant with the victim's allegations, including touching over and under the clothes and intercourse. Appellant stated he didn't want to accuse the victim of lying and admitted he intentionally touched the victim's breasts and genitals, but denied "sex." He stated he was trying to get "closer" with the victim as his stepchild because he is not her "blood father" and claimed there were only two incidents during which the contact occurred.

{¶ 8} Appellant was interviewed again on March 6, 2012 and waived his Miranda rights. Appellant was more forthcoming but claimed the victim initiated the sexual contact. He admitted placing his penis in the victim's vagina and that sexual contact occurred on multiple occasions, maybe "a dozen times." He also admitted the victim told him to stop and he was aware she wanted him to stop, but he held her down and prevented her from getting away. While acknowledging penetration occurred, appellant insisted it was not "sex" because he did not ejaculate, that being the "bridge [he] did not want to cross."

{¶ 9} After his arrest appellant wrote a number of incriminating letters from jail to his wife, the victim's mother. The letters state, e.g., appellant and the victim were "caught up in evil" but no "extreme lines" were crossed; the "truth might hurt and be hard to accept;" he did not realize what the victim was "put[ting] into place" until it was too late and he thought they were "bonding." He stated "[he] knew what took place was wrong but it was not intentional it just happened (sic )" and he didn't know the law.

Victim's Trial Testimony

{¶ 10} At trial the victim recounted incidents of abuse and approximate dates with the help of a scrapbook of her hunting achievements, dated by year and age. Appellant conditioned certain things the victim wanted, such as a new gun, a hunting trip, and a dog, on acts of abuse. Eventually the victim was old enough to try to get away from appellant but he held her down. Appellant asked her if she thought "it" was wrong and said without him her family would have nothing.

Appellant's Trial Testimony

{¶ 11} Appellant testified at trial and denied all sexual contact with the victim. He stated on one occasion he was in the victim's bedroom when she had an earache and she laid her head on his chest. He fell asleep and awoke to find the victim's hand in his shorts. He stated he did not place the victim's hand there. He denied making any threats to kill the victim's dog. He said he was only trying to cooperate during his interviews with law enforcement and in trying to protect his family he allowed deputies to put words in his mouth. On cross examination, appellant acknowledged he demonstrated his penis going "up and down" instead of "in and out" on videotape and acknowledged he wrote the letters his wife read in court.

{¶ 12} A number of charges were dismissed pursuant to a Crim.R. 29(A) motion at trial because the victim was unable to recall certain time periods in the indictment.

***

{¶ 13} The counts were indicted in groups of three offenses based upon the time period in which they occurred, each group consisting of one count each of gross sexual imposition, sexual battery, and rape. The trial court determined in each group, the offenses of G.S.I. and sexual battery merged into the rape offense, therefore in each group appellant was sentenced only upon the rape conviction (with the exception of Count 1, in which group the counts of sexual battery and rape were dismissed). Counts 1 through 15 charged offenses against a child under the age of 13; Counts 16 through 30 were premised upon force and/or the fact the offender was the stepparent of the victim. The sentences for Counts 1 and 29 were ordered to be served concurrently with Counts 6, 9, 15, 18, 21, and 27, which were ordered to be served consecutively.

{¶ 14} Appellant was found to be a Tier III sex offender.

{¶ 15} Appellant raises six assignments of error:

ASSIGNMENTS OF ERROR

{¶ 16} "I. THE TRIAL COURT ERRED BY ENTERING CONVICTIONS AND IMPOSING SENTENCES THAT ARE NOT SUPPORTED BY THE JURY'S VERDICT."

{¶ 17} "II. THE TRIAL COURT ERRED BY RUNNING SENTENCES CONSECUTIVELY IN THE ENTRY WITHOUT FIRST ORDERING THEM TO RUN CONSECUTIVELY AT THE SENTENCING HEARING."

{¶ 18} "III. THE TRIAL COURT ERRED BY RELYING ON IMPROPER SENTENCING FACTORS."

{¶ 19} "IV. THE TRIAL COURT ERRED BY DENYING MR. SHUSTER'S MOTION FOR NEW TRIAL."

{¶ 20} "V. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY PROFFERING A POTENTIAL EXPERT WITNESS WHO WAS NOT SUFFICIENTLY PREPARED TO PROVIDE AN ADMISSIBLE PROFESSIONAL OPINION."

{¶ 21} "VI. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE THAT WOULD IMPEACH THE CREDIBILITY OF A WITNESS."

State v. Shuster, 5th Dist. No. 13AP0001, 13AP0002, 2014 WL 3936283, at *1-3 (Ohio Ct. App. Aug. 6, 2014).

On August 6, 2014, the appellate court affirmed the judgment of the trial court. Id. However, on October 9, 2014, the appellate court granted Petitioner's motion for reconsideration on the fourth assignment of error,¹ and reversed and vacated the trial court's decision on Petitioner's motion for a new trial to correctly indicate that it was void for lack of jurisdiction. Judgment Entry (Doc. 6, PAGEID #: 263-64). On March 11, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal and, on May 20, 2015, denied Petitioner's motion for reconsideration. State v. Shuster, No. 2014-1631, 141 Ohio St.3d 1489 (Ohio 2015); State v. Shuster, No. 2014-1631, 142 Ohio St.3d 1469 (Ohio 2015). On November 2, 2015, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. Shuster v. Ohio, 136 S.Ct. 404 (2015).

Petitioner re-filed his motion for a new trial upon completion of his direct appeal. The appellate court summarized those proceedings as follows:

{¶ 2} On June 5, 2013, appellant filed a motion for new trial, alleging juror misconduct. Attached to the motion was an unsworn statement of a juror, Richard Cooper. A hearing was held on July 5, 2013. By journal entry filed July 10, 2013, the trial court denied the motion, finding it was divested of jurisdiction because the case was pending on appeal. In addition, the trial court determined an affidavit was not filed with the motion which was a fatal flaw under Crim.R. 33(C).

{¶ 3} Following the appellate decisions, appellant filed in the trial court a sworn affidavit of Richard Cooper on November 17, 2014, claiming it to be a substitute for the previously filed handwritten statement. On June 22, September 4, and October 5, 2015, appellant filed motions to amend and supplement his motion for new trial. By journal entry filed October 30, 2015, the trial court denied appellant's motion for new trial.

{¶ 4} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:

I

{¶ 5} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED THE APPELLANT'S MOTION FOR A NEW TRIAL."

II

{¶ 6} "THE TRIAL COURT ERRED WHEN IT FOUND THAT THE STATEMENTS MADE BY THE JUROR VIOLATED EVIDENCE RULE 606."

III

{¶ 7} "APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO ATTACH AN AFFIDAVIT TO HIS MOTION FOR A NEW TRIAL."

State v. Shuster, No. 15AP0017, 2016 WL 3961964, at *1 (Ohio Ct. App. July 18, 2016). On July 18, 2016, the appellate court affirmed the judgment of the trial...