Thacker v. Warden, Noble Corr. Inst.

• Decision Date: 27 September 2022
• Docket Number: 1:21-cv-704
• Parties: FRANK J. THACKER, Petitioner, v. WARDEN, Noble Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

FRANK J. THACKER, Petitioner, v. WARDEN, Noble Correctional Institution, Respondent.

No. 1:21-cv-704

United States District Court, S.D. Ohio, Western Division

September 27, 2022

Matthew W. McFarland, District Judge.

REPORT AND RECOMMENDATION

Michael R. Merz, United States Magistrate Judge.

This habeas corpus case, brought pro se by Petitioner Frank J. Thacker under 28 U.S.C. § 2254, seeks relief from Thacker's 2018 conviction in the Common Pleas Court of Lawrence County. It is ripe for decision on the merits on the Petition (ECF No. 1), the State Court Record (ECF No 11), the Return of Writ (ECF No. 13), and Petitioner's Reply (ECF No. 18).

Litigation History

The Lawrence County Grand Jury indicted Thacker on three counts of rape in violation of Ohio Revised Code § 2907.02(A)(2), first-degree felonies; one count of burglary in violation of Ohio Revised Code § 2911.12(A)(1), a second-degree felony; two counts of kidnapping in violation of Ohio Revised Code § 2905.01(A)(3) and (A)(4) second-degree felonies; and one count of abduction in violation of Ohio Revised Code § 2905.02(A)(1), (B), a third-degree felony. All seven counts included firearm specifications. Thacker pleaded not guilty and the case was tried to a jury which returned guilty verdicts on one count of rape, one count of burglary, one count of kidnapping, and one count of abduction with a firearm specification, and not guilty on the two remaining rape counts, the one remaining kidnapping count and the remaining firearm specifications. The trial court sentenced Thacker to a total prison term of twenty-seven years. State v. Thacker, 2020 Ohio 4620 (Ohio App. 4^th Dist., Sept. 16, 2020). The Fourth District affirmed the conviction and sentence. Id., appellate jurisdiction declined, 161 Ohio St.3d 1408 (2021).

Petitioner certified under penalty of perjury that he placed his habeas corpus Petition in the prison mail system on November 4, 2021 (Petition, ECF No. 1, PageID 16). It was received and docketed by the Court on November 10, 2021. Petitioner pleads the following grounds for relief:

Ground One: Convictions were against the sufficiency of the evidence.

Supporting Facts: There was insufficient evidence in the record to convict petitioner of the one count of rape, one count of burglary, one count of kidnapping and one count of abduction with a firearm specification. When the Jury had found petitioner not guilty of the remainder charges and evidence of an alibi was present. The jury lost its way. Reasonable doubt existed.

Ground Two: Trial court abused its discretion.

Supporting Facts: Denied petitioner's motion to continue his jury trial, denied motion for rule 29 acquittal, denied petitioner's motion to exclude other acts.

Ground Three: Ineffective assistance of counsel.

Supporting Facts: Failed to make timely objections, failed to impeach witness, inexperience (had not dealt with a case like this before).

Ground Four: Misconduct of the state

Supporting Facts: improper statements during closing arguments, Discovery violation Ground Five: Double Jeopardy

Supporting Facts: Multiple sentences for crimes with same animus.

Ground Six: A mistrial should have been declared

Supporting Facts: The jury became privy to evidence not admitted during the course of the trial.

(Petition, ECF No. 1).

Analysis

Grounds One through Five: Procedural Default

Respondent contends Grounds One through Five are barred from merits consideration because Thacker did not appeal to the Supreme Court of Ohio from the adverse decisions on those claims made by the Fourth District Court of Appeals (Return, ECF No. 13 PageID 1484-85).

Respondent is correct that issues raised unsuccessfully on direct appeal and not thereafter presented to the State's highest court are procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). The State Court Record shows Thacker did not present Grounds One through Five to the Supreme Court of Ohio (Memorandum in Support of Jurisdiction, State Court Record, ECF No. 11, Ex. 20). They are therefore procedurally defaulted.

A procedural default can be excused by showing it results from ineffective assistance of appellate counsel, but that claim itself must be first presented to the state courts in the ordinary way required for such claims. Edwards v. Carpenter, 529 U.S. 446 (2000). In Ohio that method is by way of an application to reopen the direct appeal under Ohio R. App. P. 26(B). State v. Murnahan, 63 Ohio St.3d 60 (1992). The State Court Record shows Thacker has not filed such an application and the time within which he could have done so has expired.

Grounds One through Five are procedurally defaulted because they were not presented to the Supreme Court of Ohio and Thacker has not offered excusing cause and prejudice. These five grounds should therefore be dismissed with prejudice. Because merits review of these five grounds is barred procedurally, the Magistrate Judge will not offer a merits analysis unless the District Court overrules the procedural default recommendation.

Ground Six: Jury Misconduct

In his Sixth Ground for Relief, Thacker asserts a mistrial should have been declared because the jury considered physical evidence - a shotgun shell - which was not admitted into evidence.

Thacker presented this claim to the Fourth District as his Sixth Assignment of Error and that court decided the issue as follows:

B. Trial Court's Denial of Motion for Mistrial

{¶41} For his sixth assignment of error, Thacker contends that the trial court erred in failing to declare a mistrial when, during jury deliberations, a shotgun shell which had not been introduced into evidence, fell from the pocket of the victim's sweatpants, which had been admitted into evidence.

1. Evidence and Testimony Concerning Shotgun Shell

{¶42} M.C. [the victim] testified that on the evening of the attack, she was armed with a 20-gauge shotgun and carried it around her house with her from room to room because she was afraid Thacker was going to come to her house and harm her. She testified that the shotgun held one shell. She testified that when Thacker finally returned her to her home she changed out of the sweatpants she was wearing and put on another pair of pants because during the ordeal she had urinated in her sweatpants. Law enforcement collected the urine-soiled sweatpants that she had been wearing and the state introduced the sweatpants into evidence. The victim did not give any testimony about whether she carried a second shotgun shell in her sweatpants pocket, the second shell was not discovered during the investigation, and it was not admitted into evidence.

{¶43} Detective Brad Layman, an investigator for the Lawrence County Sheriff Department, testified that he collected M.C.'s shotgun, which was a Rossi 20-gauge single shot hinge action shotgun, with an external manual safety. Detective Layman inspected the shotgun and found that it contained an unfired Remington shotgun shell, which he removed and preserved. The state introduced both the shotgun and the unspent shotgun shell into evidence.

{¶44} The trial court gave instructions to the jury about the presentation of evidence. The trial court instructed the jury that the attorneys would present evidence and the court would enforce the rules of evidence to determine admissibility. If an objection to certain evidence is sustained, the jury would be instructed to disregard that evidence and draw no inferences from it. The jury was also admonished not to attempt to obtain any additional information about the case outside the courtroom. They were instructed, “You may only consider and decide this case upon the evidence received at the trial. If you acquire any information from an outside source, you must report it to the Court.”

{¶45} The trial court also instructed the jury, “Evidence is all the testimony received from the witnesses, any exhibits admitted during trial, facts agreed to by counsel and any facts which the court requires you to accept as true.” The jury was instructed to consider the exhibits that had been introduced and whether they are in the same condition as originally taken by police officers.

{¶46} The trial court informed the jury that if they wanted to see the sexual assault kit, the shotgun or the shotgun shell, they could ask the bailiff and those exhibits would be brought into the jury room. During deliberations, the jury requested to see certain medical records that had not been admitted into evidence. The trial court instructed, “In response to your question, be advised that you may only consider the evidence presented at trial. * * * Those matters include * * * the exhibits admitted during the trial.”

{¶47} The jury requested a pair of nitrile gloves, which the trial court provided, and they opened the evidence bag containing the urine-soiled sweatpants from which a second, unspent shotgun shell fell. Outside the presence of the jury, the court explained:

COURT: * * * The jury had sent a request out in writing for a pair of nitrile gloves. I responded affirmatively, had those gloves provided. * * * it was my understanding that after the gloves were given they opened up the evidence bag containing the sweatpants that were admitted into evidence and from within an unspent yellow shotgun shell of twenty gauge caliber fell out onto the floor. And that was then sent via the bailiff from the jury room to the main office of the Court. * * * It is not evidence in this case as it was not individually admitted into the record and shall not come into the record at any point in this case.

Thacker's attorney moved for a mistrial on all counts, “because an unsecured physical object that was not evidence was considered and seen by the jurors uh, outside of the case

...