Thomas v. Knab

• Decision Date: 22 March 2012
• Docket Number: Case No. 1:11-cv-333
• Parties: MICHAEL THOMAS, Petitioner, v. ROBIN KNAB, Warden, Chillicothe Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

MICHAEL THOMAS, Petitioner,

v.ROBIN KNAB, Warden, Chillicothe Correctional Institution, Respondent.

Case No. 1:11-cv-333

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

Dated: March 22, 2012

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought by Petitioner Michael Thomas pro se to obtain relief from his conviction in the Hamilton County Common Pleas Court for trafficking in cocaine and having a weapon while under disability. After a trial by jury, the trial court imposed a sentence of ten years on the trafficking count and five years consecutive on the weapons under disability count, resulting in the fifteen year sentence Petitioner is now serving in Respondent's custody.

Petitioner pleads four grounds for relief:

Ground One: The Sixth Amendment guarantees disclosure of a confidential informant as mandatory when the degree of participation of the informant is such that the informant virtually becomes a state witness.

Supporting Facts: In the case sub judice the facts are 1) The trial court allowed the State to use testimonial hearsay to procure its conviction and 2) The trial court overruled petitioner's motion to disclosure to reveal informant when it was clear the State would use his/her statements to procure a conviction and support its prosecution of petitioner.

Ground Two: The Sixth Amendment guarantees an accused the right to have effective assistance of counsel during an adversarial judicial proceeding.

Supporting Facts: In the case at bar petitioner contends that it was clearly obvious from the testimony of defense witness Ms. Beasley that there was an issue requiring immediate attention in regards to her consent to search. Petitioner's trial counsel intentionally circumvented inquiring further into Ms. Beasley testimony in order to shift a winning advantage to the State.

Ground Three: The Sixth and Fourteenth Amendment guaranteed reopening, App. 26(B), when petition [sic] raised a winning genuine issue in his application.

Supporting facts: In the case at hand petitioner contends that his appellate counsel was ineffective for failing to raise the issue that testimonial hearsay was used in his trial. While the court of appeals acknowledge appellant counsel's ineffectiveness the court chose to say the error was harmless. Petitioner points out the fact that his guilt was not proven beyond a reasonable doubt because without the testimonial hearsay there was no other evidence to convict him. In addition the court of appeals argued for the State concerning the genuine issue instead of appointing petitioner new counsel to litigate his testimonial hearsay claim.

Ground Four: The Fourteent [sic] Amendment Equal Protection Clause guarantees that no person shall be denied protection of laws including State application of laws.

Supporting Facts: Petitioner was convicted for violating O.R.C. 2923.13(A)(3) which lacks a mental state. Indictment was defective for failing to give notice of essential mens rea element recklessness in accordance with O.R.C. 2901.21(B).

(Petition, Doc. No. 1, PageID 5-10.) On Judge Barrett's Order (Doc. No. 3), Respondent has filed a Return of Writ (Doc. No. 8). Although a date was set for Petitioner to file a reply or traverse, he has not done so.

The background facts of the case as recited by the Hamilton County Court of Appeals are as follows:

The evidence presented during a jury trial established that the Cincinnati police department had received a tip from a confidential informant that Thomas possessed a loaded firearm and was selling drugs in the Bond Hill area of Cincinnati. Cincinnati police officer Jason Hubbard, dressed in plainclothes, acted on this tip. Hubbard witnessed Thomas as he exited from an apartment building previously identified by the confidential informant, engaged in several hand-to-hand drug transactions, and then entered a parked vehicle that had also been mentioned in the informant's tip. A known prostitute was in the passenger seat of this vehicle. Thomas then engaged in several more drug transactions through his car window.

Uniformed officers initiated a traffic stop of Thomas. Marijuana and a large sum of money were found on his person. A loaded firearm, found to be operable, was found beneath the vehicle's passenger seat, but within reach of the driver's seat. Thomas was wearing a chain containing several keys. One key opened the door to 5725 Carthage Avenue in Norwood. The informant had previously told the police that Thomas stored his crack cocaine and marijuana at this home in Norwood.

Bridgette Beasley, the mother of Thomas' child, lived at this location, and she gave police permission to search the residence. The search resulted in the discovery of approximately 46 grams of crack cocaine that had been hidden in the basement ceiling, a digital scale containing cocaine residue, and a box of sandwich bags. In addition, the police found clothing and personal papers belonging to Thomas and a lock box in a closet. One of the keys that had been found on Thomas' neck opened this box, which contained ammunition similar to that found in the weapon during the traffic stop.

After being read his Miranda rights, Thomas admitted ownership of the crack cocaine, but denied any knowledge or ownership of the loaded weapon.

Thomas testified on his own behalf at trial and denied engaging in any drug transactions. Rather, Thomas asserted that he had been about to make a purchase from a street stand when the police pulled up, pointed a gun on him, and forced him to enter a car that had been parked on the street. He further denied that he had admitted ownership of the crack cocaine.

State v. Thomas, Case No. C-090229 (Ohio App. 1st Dist. Dec. 16, 2009)(copy at Return of Writ,Doc. No. 8, Ex. 22, PageID 195-196).

Ground One

In his First Ground for Relief, Petitioner complains that the trial court allowed the admission of hearsay from an informant as a part of the prosecution's case, but would not reveal the identity of the informant, despite Petitioner's request. There are thus two sub-claims here, failure to identify the informant and allowance of the hearsay.

1. Failure to identify the informant:

The court of appeals analyzed this sub-claim under the Compulsory Process Clause which provides that a criminal defendant shall have the benefit of the court's compulsory process (usually subpoena or writ of habeas corpus ad testificandum for an incarcerated witness) to obtain the presence of witnesses at trial.

The court of appeals decided this claim on the merits and held:

The identity of a confidential informant must be disclosed when "the degree of participation of the informant is such that the informant virtually becomes the state's witness." But the identity of an informant need not be disclosed when "disclosure would not be helpful or beneficial."

[D]isclosure would not have aided Thomas in his defense. The informant directed police to the location at which Thomas had been selling drugs. But the police verified all information proved by the informant, found a large quantity of drugs that Thomas admitted ownership of, and personally witnessed Thomas engaging in several drug transactions.

State v. Thomas, supra, PageID 197.

When a state court decides on the merits a federal constitutional claim later presented to afederal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. _, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).

The state has a qualified privilege to maintain the secrecy of an informant's identity. In a criminal case, the trial court must balance "the public interest in protecting the flow of information against the individual's right to prepare his defense." Roviaro v. United States, 353 U.S. 53, 62 (1957).

In this case, the court of appeals found on the basis of the evidence presented that the informant's identity and testimony would not have been helpful to Petitioner because everything the informant told the police had been confirmed by them. There is no showing that the informant was an active participant in Petitioner's crime or that anything he might have had to say would have been exculpatory. The informant here merely provided tips, albeit very good ones, which the police verified on their own.

Petitioner has therefore not shown that the court of appeals' decision on this first sub-claim was an objectively unreasonable application of Roviaro and the first sub-claim should be dismissed. See also United States v. Jenkins, 4 F.3d 1338, 1341 (6th Cir. 1993).

2. Admission of Hearsay - Confrontation Clause Violation

In his second sub-claim in Ground One, Petitioner asserts he was convicted on the basis ofhearsay testimony from the informant admitted through the testifying police officer in violation of his rights under the Confrontation Clause.

Respondent asserts Petitioner procedurally defaulted on this claim by not presenting it on direct appeal. Petitioner attempted to overcome this omission by filing an application to reopen the direct appeal on grounds that his appellate attorney had provided ineffective assistance by failing to raise this issue. The court of appeals denied the 26(B) application, holding:

Thomas also challenges appellate counsel's effectiveness in failing to submit an assignment of error contending that the trial court, by admitting a police officer's testimony concerning a confidential informant's statements to the officer, denied Thomas the right of confrontation secured by the Sixth and Fourteenth Amendments to the United States Constitution, as interpreted by the United States Supreme Court in Crawford v.

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