Thompson v. Bracy

• Docket Number: 1:19-CV-58
• Decision Date: 14 January 2022
• Parties: LONNIE THOMPSON, Petitioner, v. CHARMAINE BRACY, Warden, Respondent.
• Court: U.S. District Court — Northern District of Ohio

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LONNIE THOMPSON, Petitioner, v. CHARMAINE BRACY, Warden, Respondent.

No. 1:19-CV-58

United States District Court, N.D. Ohio, Eastern Division

January 14, 2022

SARA LIOI, JUDGE.

REPORT AND RECOMMENDATION

David A. Ruiz, United States Magistrate Judge.

Petitioner Lonnie Thompson ("Petitioner"), challenges the constitutionality of his conviction in the case of State v. Tlwrnpson, Cuyahoga County Court of Common Pleas Case No, CR-11-553649-A. Petitioner, pro se, filed his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C § 2254. (R. 1). Warden Charmaine Bracy ("Respondent") filed her Answer/Return of Writ (R 10), and Petitioner filed a Traverse. (R 25), to which Respondent did not file a reply. This matter is before the undersigned Magistrate Judge pursuant to Local Rule 72.2. For reasons set forth in detail below, it is recommended that the habeas petition be DENIED.

I. Summary of Facts

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F, 3d 439, 447 (6^th Cir. 2012) ("State-court factual findings are presumed correct unless rebutted by clear and convincing evidence."). The Eighth District Court of Appeals ("state appellate court") summarized the facts underlying Petitioner's conviction as follows:

[*P5] The state offered substantial evidence to show that Thompson, in conjunction with Janell Calloway, recruited people to take payroll checks that Thompson created and cash them at area locations of a national retail store. Calloway testified that her involvement with Thompson began in late 2006 or early 2007 when he provided her with two counterfeit payroll checks that she was able to cash in exchange for $500. A few days later, Calloway and another person met with Thompson and watched him fill out checks using a typewriter. Calloway was successful in cashing those checks and subsequently agreed to recruit other people to cash Thompson's counterfeit payroll checks.

[*P6] As the enterprise grew, Calloway persuaded others to give her photocopies of their paychecks so Thompson could use those checks as templates for his counterfeit checks. In addition to real paychecks, Thompson would sometimes use business cards and duplicate them onto checks to make them look official. When Calloway found the recruits, she would give their names to Thompson and he would prepare the counterfeit checks. At the height of the operation, during the period from March 2008 to October 2008, Calloway estimated that she recruited approximately 100 people for Thompson's counterfeit check cashing scheme.

[*P7] The police first learned about the fraud when one of the recruits gave them information in the hopes of lenient treatment in an unrelated criminal case. The recruit told police that Calloway accompanied her as she cashed two counterfeit payroll checks. The police spoke with the retailer's fraud investigator and learned that the retailer had been monitoring an unusually high number of counterfeit payroll checks that it had cashed. Because those checks sometimes used the name of the person cashing the checks (and either a driver's license or social security number), the police were able to work with the retailer and track down a number of the recruits and piece together the enterprise, including Calloway's participation.

[*P8] The police spoke with Calloway and she agreed to cooperate with them and set up a sting in which she would give Thompson names provided to her by the police. She had second thoughts, however, and told Thompson about the sting. Two days later she told the police that she wanted to back out. The police hastily obtained a search warrant for Thompson's premises. They found a computer and printer, along with a black book containing names, addresses, and social security numbers of various individuals. They also found copies of legitimate payroll checks taped to the underside of a dresser drawer.

[*P9] Viewing the evidence most favorably to the state, we conclude that a rational trier of fact could find that the state offered evidence going to each element of forgery as charged under R.C. 2913.31(A)(3). Importantly, Thompson was not charged with forging the writing of another under subdivision (A)(1) of R.C. 2913.31 - he was only charged with uttering, or delivering, a writing that he knew to have been forged. So rather than having to offer evidence to show that Thompson actually forged the checks, the state only had to offer evidence to show that Thompson, in facilitating a fraud, knew the checks he gave to Calloway were forged. That being the case, the state offered ample evidence to show that during the time frame from March 2008, to September 2008, Thompson knew the checks he gave to Calloway were forged.

[*P10] The object of the criminal enterprise was to negotiate counterfeit payroll checks. Evidence showed that Thompson prepared the checks using information that he asked Calloway to obtain from her recruits. At the beginning of the enterprise, he drove Calloway and her recruits to the retail locations to cash the counterfeit checks. Even after his relationship with Calloway strengthened to the point where she alone accompanied the recruits, he kept track of the checks and told Calloway to return all uncashed checks to him. This was done so that he could record check numbers to ensure that they were not repeated. Not wanting to repeat check numbers was evidence that Thompson knew that the checks were counterfeit.

[*P11] On one occasion, Calloway was arrested while using a phony identification when trying to cash one of the counterfeit checks. She called Thompson to tell him that she and the recruits had been stopped by the police. Thompson told her, "whatever [you] do, don't let them get that paper." She said that the recruits actually ate the checks. Thompson's directive that Calloway and her recruits not let the checks fall into the hands of the police manifested his understanding that the checks were counterfeit.

[*P12] In addition to evidence regarding the nature of the criminal enterprise, Thompson instructed Calloway on how to fabricate accounts for the checks. For example, he told her to find someone with a legitimate payroll check and photocopy the paycheck so he could use it as a template for a counterfeit check. The police were able to confirm this testimony when a search of Thompson's residence uncovered two legitimate paychecks, from different companies, that he had hidden. Thompson did not work for either company, so the jury could have considered the checks as circumstantial evidence that he was using them in furtherance of a scheme to cash counterfeit payroll checks.

State v. Thompson ("Thompson I"), 2014-Ohio-202, Iflf 5-12, 2014 Ohio App. LEXIS 186, 2014 WL 4748364 (Ohio Ct. App., Jan. 23, 2014).

II. Procedural History

A. CoDviction

On August 29, 2011, the Cuyahoga County Grand Jury issued an indictment charging Thompson and twenty-four (24) co-defendants with the following: one count of Engaging in a Pattern of Corrupt Activity in violation of Ohio Revised Code ("O.R.C.") § 2923.32(A)(1); thirty counts of Forgery in violation of O.R.C. § 2913.31(A)(3); one count of Telecommunications Fraud in violation of O.R.C. § 2913.05(A); twelve counts of Identity Fraud in violation of O.R.C. § 2913.49(B)(1); five counts of Identity Fraud in violation of O.R.C. § 2913.49(B)(2); and, one count of Theft in violation of O.R.C. § 2913.02(A)(3). (R. 10-1, PageID# 95-118; Exh. 1). Thompson, represented by counsel, pleaded not guilty to all charges. (R. 10-1, Exh. 2). Except for two forgery counts for which the State entered a Nolle Prosequi, the jury found Thompson guilty as charged. (R. 10-1, PageID# 120-121; Exh. 3).

On February 26, 2013, the court then sentenced Thompson to an aggregate prison term of thirty-two (32) years and six months. (R 10-1, PageID# 120-121; Exh. 3).

B. Direct Appeal

On March 11, 2013, Petitioner, through new counsel, filed a Notice of Appeal with the state appellate court. (R. 10-1, PageID# 122, Exh. 4). Petitioner raised the following assignments of error:

1. The trial court erred in denying Appellant's motion for acquittal pursuant to Criminal Rule 29 where there was insufficient evidence.

2. Appellant's convictions were against the manifest weight of the evidence.

3. The trial court erred in not finding Appellant's convictions arise from a continuing course of conduct that requires their merger for sentencing purposes under R.C. 2941.25 and Johnson.

4. The trial court abused its discretion in imposing a sentence of 32% years on the Defendant and the trial court erred in imposing sentence upon the Defendant that was not consistent with sentences for similar offenders.^[1]

(R. 10-1, PageED# 129-145, 164-171; Exhs. 5 & 7).

On January 23, 2014, the state appellate court affirmed the convictions but reversed in part and remanded to the trial court for resentencing consistent with the appellate court's opinion. (R. 10-1, PageID# 181-195; Exh. 9). Specifically, the state appellate court found that Counts 30 and 31 should have merged at sentencing and remanded "for resentencing at which time the state may choose which of the two offenses it will pursue for sentencing." Id. at PageID# 192.

On March 5, 2014, Petitioner, pro se, filed a notice of appeal with the Ohio Supreme Court. (R. 10-1, PageID# 196). In his Memorandum in Support of Jurisdiction, Petitioner set forth the following seven propositions of law:

I. The Appellant is prejudicially deprived of his Sixth and Fourteenth Amendment right to a criminal appeal without effective assistance of appellate counsel.

II. The Appellant is

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