Thoma v. Warden, Pickaway Corr. Inst.
Decision Date | 28 October 2020 |
Docket Number | Case No. 1:20-cv-282 |
Parties | BRIAN THOMA, Petitioner, v. WARDEN, Pickaway Correctional Institution, Respondent. |
Court | U.S. District Court — Southern District of Ohio |
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.
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 § 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:
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 thedefendant 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."
As to the second prong, the Supreme Court held: 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).
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.
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:
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