Suntoke v. Warden, Case No. 2:15-cv-1354

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtMagistrate Judge Michael R. Merz
PartiesKALI S. SUNTOKE, Petitioner, v. Warden, Chillicothe Correctional Institution Respondent.
Docket NumberCase No. 2:15-cv-1354
Decision Date02 August 2018

KALI S. SUNTOKE, Petitioner,
Warden, Chillicothe Correctional Institution Respondent.

Case No. 2:15-cv-1354


August 2, 2018

District Judge James L. Graham
Magistrate Judge Michael R. Merz


This habeas corpus case was brought pro se by Petitioner Kali Suntoke to obtain relief from his conviction in the Muskingum County Court of Common Pleas on multiple counts of pandering obscenity involving a minor. The case is before the Court for decision on the merits on the Petition (ECF No. 8), the Return of Writ and State Court Record (ECF No. 14), and Petitioner's Traverse (ECF No. 57). The Magistrate Judge reference in the case was recently transferred to the undersigned to help balance the Magistrate Judge workload in this District (ECF No. 65).

Procedural History

Petitioner was indicted by the Muskingum County Grand Jury on April 26, 2012, on thirty-two counts of pandering obscenity involving a minor as a second degree felony in violation of Ohio Revised Code § 2907.321(A)(1) and one count of pandering obscenity involving a minor as a fourth degree felony in violation of Ohio Revised Code § 2907.321(A)(5)(Indictment, State

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Court Record, ECF No. 14-1, PageID 651, et seq.). On the date set for trial, April 9, 2013, Petitioner agreed to plead no contest to Counts 1-9, 14-15, 20-21, 28-29, and 32 with the remainder of the charges to be dismissed with an agreed sentence of seven years' imprisonment. (Plea Agreement, State Court Record, ECF No. 14-1, PageID 716-18.) Without any explanation of his reasons, Suntoke moved pro se to withdraw his no contest plea before sentencing (Motion, State Court Record, ECF No. 14-1, PageID 719-20). The trial court denied that request and on June 13, 2013, imposed the agreed sentence. (Entry, State Court Record, ECF No. 14-1, PageID 725-27.)

Represented by new counsel, Petitioner appealed to the Fifth District Court of Appeals which affirmed the conviction. State v. Suntoke, 2014-Ohio-1431, 2014 Ohio App. LEXIS 1333 (5th Dist. Apr. 2, 2014), appellate jurisdiction declined, 140 Ohio St. 3d 1416 (2014). Suntoke filed an application to reopen his direct appeal to raise claims of ineffective assistance of appellate counsel which the Fifth District rejected for procedural defects. State v. Suntoke, Case No. CT2013-0032 (Ohio App. 5th Dist. Jul. 24, 2014)(unreported; copy at State Court Record, ECF No. 14-1, PageID 876-77.)

Petitioner filed a motion for delayed appeal which was denied because he had already had a direct appeal. State v. Suntoke, Case No. CT2014-0036 (Ohio App. 5th Dist. Sep. 22, 2014)(unreported; copy at State Court Record, ECF No. 14-1, PageID 920-21).

Suntoke filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 raising claims of ineffective assistance of trial counsel. The trial court dismissed the petition and the Fifth District affirmed. State v. Suntoke, 2014-Ohio-3320, 2014 Ohio App. LEXIS 3248 (5th Dist. Jul 21, 2014)(copy at State Court Record ECF No. 14-1, PageID 1047-53), appellate jurisdiction declined, 140 Ohio St. 3d 1522 (2014). After filing an unsuccessful motion to dismiss the indictment, Suntoke filed his Petition in this Court on July 6, 2015. The Petition comprises 410

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pages (ECF No. 8). While it includes the standard form required to be used for § 2254 cases (PageID 185-203), the substance of the pleading comprises the almost four hundred pages of attachments, which intermix arguments and exhibits. Amongst those pages, Suntoke pleads the following Grounds for Relief, denominated as "Assignment of Errors":

GROUND ONE: The Grand Jury was prejudiced and biased due to the prosecutorial misconduct which led to the prejudice of the Petitioner.

GROUND TWO: Petitioner' sentence of Seven years is grossly disproportionate and inconsistent to the sentences imposed on similar offenders for similar offenses, hence the State of Ohio fails to comply with the United States Supreme Court's proportionality analysis in violation of the 8th and the 14th Amendments of the United States Constitution.

GROUND THREE: The Trial Judge was completely biased and prejudiced against the Petitioner on account of his race and religion.

GROUND FOUR: Both the Trial Counsels and the Appellate Counsel were ineffective and inadequate pursuant to Strickland v/s. Washington to the prejudice of the Petitioner.

GROUND FIVE: The Petitioner was deprived of his liberty without an Arrest Warrant in violation of Illinois v/s Gates, 462 US 213.

GROUND SIX: Detective Hill misled the Judge in his Affidavit for the issue of a Search Warrant in violation of United States v/s Leon, 468 US 897.

GROUND SEVEN: There is no evidence in the Plea Colloquy regarding a factual basis for the Plea.

GROUND EIGHT: The Trial Court failed to state the elements of the offense during the Petitioner's Plea Colloquy in violation of Henderson v/s Morgan, 426 US 637.

GROUND NINE: The Trial Court violated North Carolina v/s Alford 400 US 25 by not convicting the Petitioner on a lesser included offense which was supported by the evidence offered by the State.

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GROUND TEN: The Trial Court failed to comply with Ohio Criminal Rule 11 (C)(2)(c) and thus failed to comply with the strict mandates of Boykin v/s Alabama, 395 US 336.

GROUND ELEVEN: Detective Hill violated Gerstein v. Pugh 420 US 103, by not obtaining a determination of probable cause after the warrantless arrest of the Petitioner.

GROUND TWELVE: The Trial Court violated the Petitioner's Speedy Trial Rights.

GROUND THIRTEEN: Denial of a Continuance by the Trial Judge violated the Petitioner's Constitutional Rights.

GROUND FOURTEEN: Trial Counsels were ineffective and committed prejudicial errors.

GROUND FIFTEEN: Prejudicial error was committed against the Petitioner by the Zanesville Police Department and Agent Bryant when they violated the Petitioner's Article 36 of the Vienna Convention to which treaty the United States is a signatory.

GROUND SIXTEEN: The Petitioner's "reasonable expectation of privacy" rights were violated when the Franklin County Task Force hacked into the Petitioner's personal home laptop computer.

GROUND SEVENTEEN: Trial Counsel were ineffective and inadequate and then committed prejudicial error when they failed to file a Motion pursuant to Criminal Rule No. 12(C) regarding an 'Ignorantia Facti Excusat' Issue on Petitioner's behalf.

GROUND EIGHTEEN: The Petitioner's constitutional rights under the Eighth Amendment were violated as the Petitioner's sentence amounted to cruel and unusual punishment under the totality of circumstances.

GROUND NINETEEN: The Zanesville Municipal Court made an unreasonable factual determination pertaining to Petitioner's Waiver of the Preliminary hearing.

(Petition, ECF No. 8-2, PageID 230-31.)

Without expressly discussing any review under Habeas Rule 4, Magistrate Judge Deavers issued an Order for Answer a week after the Petition was filed (ECF No. 9). The Answer/Return

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of Writ was filed October 29, 2015 (ECF No. 14). Petitioner took extensions of time for almost a year and a half until January 9, 2018, to file his Traverse (ECF No. 57) which is 475 pages long.

Generally Applicable Law

Scope of Habeas Relief

Because of the prolixity of the pleadings, the Magistrate Judge will set out here general principles of habeas corpus law which are applicable to many of the grounds for relief.

Petitioner complains at many places in his pleadings of failures of the Ohio courts to follow state law in processing his case. Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (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 court determinations 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, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall Ch. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar concurring).

Habeas relief may be available where a violation of state law "amounts to a fundamental miscarriage of justice or a violation of the right to due process in violation of the United States Constitution." Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008), cert denied, 129 S. Ct. 1991 (2009). "State law errors may warrant habeas relief if the errors 'rise for some other reason to the

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level of a denial of rights protected by the United States Constitution.'" Hoffner v. Bradshaw, 622 F.3d 487, 495 (2010), quoting Barclay v. Florida, 463 U.S. 939, 957-58 (1983). However, the burden of showing that a state law violation rises to the level of a federal constitutional violation is on the petitioner. Just because some process appears to be commanded by state statute or rule does not mean that it is required by the Due Process Clause of the Fourteenth Amendment.

Evidence Supporting Habeas Relief

Petitioner's pleadings have hundreds of pages of attachments, some of them generated in the state courts that handled his case and some from completely outside the record. In addition, he makes many factual assertions which do not reference any source at all. As the undersigned pointed out in recently denying Petitioner's Motion for Evidentiary Hearing, a federal habeas court must decide whether that state courts committed constitutional error by examining the record that was before those courts when they decided any federal constitutional claims presented to them. Cullen v. Pinholster, 563 U.S. 170 (2011). Pinholster also applies to matter sought to be added to the record by expanding what the Respondent has filed.

Procedural Default


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