Thoma v. Warden, Pickaway Corr. Inst., Case No. 1:20-cv-282

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtMagistrate Judge Michael R. Merz
PartiesBRIAN THOMA, Petitioner, v. WARDEN, Pickaway Correctional Institution, Respondent.
Decision Date28 October 2020
Docket NumberCase No. 1:20-cv-282

BRIAN THOMA, Petitioner,
v.
WARDEN, Pickaway Correctional Institution, Respondent.

Case No. 1:20-cv-282

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

October 28, 2020


District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought by Petitioner Thoma with the assistance of counsel, is before the Court for decision on the merits. Relevant filings are the Petition (ECF No. 1), the State Court Record (ECF No. 9), the Return of Writ (ECF No. 10), and Petitioner's Reply (ECF No. 15).

The Magistrate Judge reference in the case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the District. Final decision of the case remains with District Judge Black.

Litigation History

The March 2016 term of the Warren County Grand Jury indicted Thoma on eight counts of sexual battery in violation of Ohio Revised Code § 2907.03(A)(5) (Counts 1, 2, 4, 6, 8, 10, 12, & 14) and seven counts of gross sexual imposition in violation of Ohio Revised Code §

Page 2

2907.05(A)(5) (Counts 3, 5, 7, 9, 11, 13, & 15). (Indictment, State Court Record, ECF No. 9, PageID 51-57.) The alleged victim on each count was his fifteen-year-old adopted daughter, H.T. Thoma waived his right to jury trial and the case was tried to the bench. After he was convicted on all counts, the trial court merged the sexual battery and gross sexual imposition charges and sentenced Thoma to forty-two months on each count, to be served consecutively for a total of 336 months.

Thoma appealed to the Ohio Twelfth District Court of Appeals which affirmed the conviction, but remanded for resentencing. State v. B.J.T., 2017-Ohio-8797 (Ohio App. 12th Dist. Dec. 4, 2017), appellate jurisdiction declined, 152 Ohio St. 3d 1464 (2018). On remand he received the same sentence which was then affirmed on appeal, State v. B.J.T., 2018-Ohio-4720 (Ohio App. 12the Dist. Nov. 26, 2018), appellate jurisdiction declined, 2019-Ohio-944 (2019).

On February 15, 2018, Thoma filed through counsel a petition for post-conviction relief under Ohio Revised Code § 2953.21. The trial court denied relief (Order, State Court Record, ECF No. 9, Ex. 30). The court of appeals again affirmed. State v. B.J.T., 2019-Ohio-1049 (12th Dist. Mar. 25, 2019), appellate jurisdiction declined, 2019-Ohio-2982 (2019).

Thoma then filed the instant Petition, pleading the following grounds for relief:

Ground One: Trial counsel committed ineffective assistance of counsel at trial in violation of the Sixth Amendment right to counsel.

Supporting Facts: Trial counsel failed to present exculpatory witnesses and evidence in support of the defense.

Ground Two: Trial counsel committed ineffective assistance of counsel in plea bargaining in violation of the Sixth Amendment right to counsel.

Supporting Facts: Trial counsel failed to effectively negotiate in plea bargaining and to communicate with Thoma about his plea options.

Page 3

Ground Three: Thoma's sentence was disproportionate in violation of the Eighth Amendment.

Supporting Facts: Thoma was sentenced disproportionately to similarly situated offenders convicted of similar crimes.

Ground Four: Thoma's convictions were against the manifest weight of evidence and supported by insufficient evidence in violation of the Fourteenth Amendment.

Supporting Facts: Weighing evidence as a whole, there was insufficient evidence to support the required elements of penetration, sexual conduct, and sexual gratification.

(Petition, ECF No. 1.)

Analysis

Ground One: Ineffective Assistance of Counsel

In his First Ground for Relief, Thoma claims he received ineffective assistance of trial counsel when his attorney did not present exculpatory witnesses. Respondent defends this Ground for Relief on the merits, asserting that the Twelfth District's rejection of the claim is entitled to deference (Return, ECF No. 10, PageID 867-71).

The governing standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the

Page 4

defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held: "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to overcome confidence in the outcome." 466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland, supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v. Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. "The likelihood of a different result must be substantial, not just conceivable." Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).

Page 5

In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. See Wong v. Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328 (2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674. Instead, Strickland asks whether it is "reasonably likely" the result would have been different. Id., at 696, 104 S. Ct. 2052, 80 L. Ed. 2d 674. This does not require a showing that counsel's actions "more likely than not altered the outcome," but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters "only in the rarest case." Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The likelihood of a different result must be substantial, not just conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).

Uncalled Lay Witnesses

In his Reply, in support of his First Ground for Relief, Thoma summarizes the evidence he believes should have been presented from a number of uncalled lay witnesses as follows:

Numerous witnesses were available to testify on Thoma's behalf at trial to dispute the characterization of him as a violent person. See D. Thoma Aff. ¶ 8; Sue Thoma Aff. ¶ 13; J. Logan Aff. ¶ 8; M. Carrancejie Aff. ¶¶ 14-15 PAGEID 323-35. These witnesses frequently observed Thoma's interactions with H.T. and H.T.'s behavior around her father during the time he was supposedly digitally penetrating her on a weekly basis. According to the witnesses, Thoma was not violent, to the point of not fighting back when Wendy was physically aggressive towards him. See M. Carrancejie Aff. ¶ 10 PAGEID 332. In addition, H.T. had a close, warm, and loving relationship with her father and did not seem afraid of him in any way. See id. at ¶¶ 4, 5, 11; D. Thoma Aff. ¶¶ 5, 7; J. Logan Aff. ¶ 6 PAGEID 329-30, 331-2, 335.

For example, shortly before Thoma was arrested, Thoma's sister Michelle Carrancejie and her family visited the Thoma[']s. See M. Carrancejie Aff. ¶ 3 PAGEID 331. During the trip, H.T. was

Page 6

laughing and cutting up with her dad, was sitting close by him, and asked for his help in learning to drive. Id. at ¶ 3 PAGEID 331. H.T. voluntarily went alone with Thoma in his vehicle to practice driving. Id. at ¶¶ 4-5 PAGEID 331.

In addition, either one or two nights before Thoma was arrested, he and H.T. visited his Uncle Doug, who lived about 10 minutes away. See D. Thoma Aff. ¶¶ 4, 7 PAGEID 329-30. There were a lot of people in the living room, and Thoma was sitting on the couch with his legs slightly spread. Id. at ¶ 7 PAGEID 330. H.T. voluntarily sat on her dad's knee and put her arm around him. Id. The night before Thoma was arrested, H.T. told Thoma's friend what a great dad he is and how appreciative she was of him teaching her how to drive. See J. Logan Aff. ¶¶ 3-4 PAGEID 334. And. H.T. reported that she was much more afraid of her mother than her father, and that no one was afraid of her father. See Sue Thoma Aff. ¶ 8 PAGEID 326. These are hardly the words and actions of a child who was afraid of her father or feared for her life.

In addition, numerous family members were present in H.T.'s life from whom
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT