Townsend v. Knipper

• Decision Date: 29 September 2016
• Docket Number: CASE NO.1:14-cv-02700
• Parties: NATASHA TOWNSEND, Petitioner, v. MARC KNIPPER, et al., Respondents.
• Court: U.S. District Court — Northern District of Ohio

NATASHA TOWNSEND, Petitioner, v. MARC KNIPPER, et al., Respondents.

CASE NO.1:14-cv-02700

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION

September 29, 2016

JUDGE DAN AARON POLSTER

MAGISTRATE JUDGE KATHLEEN B. BURKE

REPORT & RECOMMENDATION

Petitioner, Natasha Townsend ("Petitioner" or "Townsend"), acting pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 10, 2014, challenging the constitutionality of her conviction in City of Cleveland v. Natasha Townsend, Case No. 2012 CRB 018014 (Cleveland Municipal Court 2012). Doc. 1 ("Petition").¹

Townsend summarizes the conduct that led to her being charged in two misdemeanor complaints as follows:

Natasha Townsend ("Townsend") went to the Cleveland Hopkins International Airport to pick up her relatives. She encountered a City of Cleveland ("City") police officer directing traffic. After this encounter, she disobeyed his direct lawful orders; thereupon, he issued her a parking ticket. Furious with the parking ticket, Ms. Townsend became loud, defiant, uncooperative, non-compliant, and even more disobedient to this officer. She was so disorderly, the officer had to call backup for help. Her behavior was so combative, demonstrative, and such an egregious act; it took three male officers to effect arrest, to the point of almostbreaking her arm and tasing her, in the middle of the roadway of the baggage claim area.

Doc. 1-5, p. 7 (Memorandum of Points and Authorities in Support of Petition for Writ of Habeas Corpus and Request for Motion to Show Cause, Introduction).

Following a jury trial, Townsend was found guilty of Failure to Comply and Resisting Arrest as charged in two criminal complaints. Doc. 18-1, p. 373. At sentencing, the trial court imposed a fine of $1,000 and a jail term of 180 days for failure to comply and a fine of $750 and a jail term of 90 days for resisting arrest. Doc. 18-1, pp. 327-328, 373. The trial court placed Townsend on two years active probation and ordered 75 hours of Community Work Service.² Doc. 18-1, p. 328. On November 4, 2014, the trial court continued probation until March 31, 2015. Doc. 18-1, p. 17 (Cleveland Municipal Court docket).

This matter has been referred to the undersigned Magistrate Judge pursuant to Local Rule 72.2.

In their June 27, 2016, Reply to Townsend's Traverse, Respondents contend that this Court lacks jurisdiction, arguing that, "on May 1, 2015, Townsend's probation was terminated upon the completion of her probationary conditions . . . [and therefore] because she is no longer on probation, she is not 'in custody' for purposes of § 2254 . . . [and] Townsend's petition is moot because this Court does not have jurisdiction if the applicant it not in custody." Doc. 26, p. 2. However, "so long as the petitioner was in custody when the writ was filed, the habeas corpus court has jurisdiction, which it retains pending final disposition of the case." 45 Geo.L.J.Ann.Rev.Crim.Proc. 1024, n. 2768 (2016) (citing Carafas v. LaVallee, 391 U.S. 234, 237 (1968)); see also Lawrence v. 48th Dist. Court, 560 F.3d 475, 479 (6th Cir. 2009) ("Whether a habeas petitioner is 'in custody' is determined at the time of the filing of the petition.") (citingNorthrop v. Trippett, 265 F.3d 372, 375 n.1 (6th Cir. 2001) (citing Carafas, 391 U.S. at 239-40). Thus, since there is no dispute that, at the time Townsend filed this federal habeas petition, she was on probation for the convictions upon which she seeks federal habeas relief, the "in custody" requirement of § 2254 was met and jurisdiction attached at the time Townsend filed her Petition.³

For the reasons set forth below, the undersigned recommends that the Court DISMISS and/or DENY Townsend's Petition (Doc. 1). Townsend's requests for an evidentiary hearing and discovery (Doc. 25-2, pp. 6-8) are DENIED.

I. Factual Background

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, the state court's factual findings are presumed correct. The petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Railey v. Webb, 540 F. 3d 393, 397 (6th Cir. 2008) cert. denied, 129 S. Ct. 2878 (2009). The Ohio Court of Appeals summarized the facts underlying Townsend's conviction as follows:

{¶ 3} The facts presented at trial were as follows: On June 2, 2012, Cleveland police officer Robert Zubek was directing traffic at Cleveland Hopkins International Airport on the lower baggage claim roadway when he encountered Townsend driving a minivan. Townsend arrived at the airport to pick up her sister. Officer Zubek and Townsend spoke. Officer Zubek testified that he informed Townsend that she could not leave her vehicle unattended outside the baggage claim area and that she needed to park in the parking garage if she intended to go inside the airport. Pursuant to Transportation Security Administration ("TSA") safety regulations and mandates, no vehicles are permitted to be stopped or unattended near the terminal. Signs informing drivers of this mandate were posted throughout the area. Townsend testified that Officer Zubek instructed her to park outside the baggage claim area in contravention of the mandate.

{¶ 4} The baggage claim area was congested during this time, and Officer Zubek continued to direct traffic. Shortly after speaking with Townsend, Zubek observed a minivan parked and unattended at the curb. No one nearby claimed the vehicle.

Officer Zubek issued a parking ticket and proceeded to have the owner of the vehicle paged by airport personnel. Officer Zubek waited ten minutes before beginning the procedure to tow the vehicle. He pulled his zone car up next to the minivan and turned on the overhead lights. At that point, a female exited the airport yelling, "What are you doing to my van?" Officer Zubek recognized the female as Townsend, from their earlier conversation.

{¶ 5} Officer Zubek informed Townsend that he intended to cite her for failure to comply with his earlier parking instructions. To this end, Officer Zubek demanded her driver's license. Townsend refused to provide her license, and she entered the minivan, despite Officer Zubek informing her that he would arrest her if she refused his request. After three requests for Townsend's license, Officer Zubek called for backup. Townsend attempted to close the minivan door, but Zubek physically stopped her. As backup arrived on the scene, Officer Zubek informed Townsend that she was under arrest, and he ordered her to step out of the vehicle. Townsend refused and had to be forcefully removed. In the process of effecting the arrest, Townsend smacked Officer Zubek's arm away and shoved him back against his car. Townsend attempted to flee but was taken to the ground by Officer Zubek and another officer. Townsend struggled with the officers, preventing them from handcuffing her on the ground. Only upon threat of being subdued by a taser did Townsend submit to arrest.

Cleveland v. Townsend, 2013 WL 6571825, * 1, 2013-Ohio-5421, ¶¶ 3-5 (Ohio App. Dec. 12, 2013).

II. Procedural Background⁴

A. State Conviction

On June 5, 2012, a criminal complaint was filed against Townsend in the Cleveland Municipal Court charging Townsend with resisting arrest, to wit: "pushed officers away and ran" on or about June 2, 2012. Doc. 18-1, p. 19. Also, on June 5, 2012, a criminal complaint was filed against Townsend in the Cleveland Municipal Court charging Townsend with failure to comply with order/signal of a police officer, to wit: "left van unattended and refused to move van 30 minutes at airport" on or about June 2, 2012 Doc. 18-1, p. 20.

On June 19, 2012, Townsend, acting pro se, filed a motion to dismiss, arguing that thecharges against her should be dismissed on the grounds that the prosecution was barred by the doctrines of double jeopardy and collateral estoppel. Doc. 18-1, pp. 21- 24. On June 5, 2012, Townsend appeared in court regarding a June 4, 2012, misdemeanor criminal charge of refusal to display license that occurred on June 2, 2012. Doc. 18-1, pp. 22, 40-42. The trial court dismissed the charge concluding that Townsend's license was valid. Doc. 18-1, p. 41. The disposition was "no contest, not guilty." Doc. 18-1, p. 41. In her motion to dismiss, Townsend argued that, since the subsequent June 5, 2012, charges arose from the same June 2, 2012, occurrence that resulted in the June 4, 2012, charge that had been dismissed, her rights under the double jeopardy clause were being violated. Doc. 18-1, p. 22. The City filed a response to the motion to dismiss and Townsend filed a reply. Doc. 18-1, pp. 6, 45.

On June 20, 2012, Townsend entered a plea of not guilty to the failure to comply with order/signal of a police officer and resisting arrest charges. Doc. 18-1, p. 5. Also, on June 20, 2012, Townsend filed a motion for discovery, motion for bill of particulars, and request for specific intention to use evidence. Doc. 18-1, p. 5.

On July 10, 2012, Townsend, acting pro se, filed a motion to preserve evidence, requesting that evidence obtained in her case be preserved, including:

1. Any and all recorded statements made by the Defendant and/or Officers involved in the instant case, including 911 tapes;

2. Any and all videotapes, audiotapes, DVD that may not have been used in charging the Defendant;

3. The arresting officer's videotape/DVD from his/her in car camera from June 2, 2012 and/or any booking room videotape/DVD.

Doc. 18-1, p. 25.

On July 17, 2012, a hearing was held on Townsend's June 19, 2012, motion to dismiss the charges on the basis that charging her with resisting arrest and failure to comply withorder/signal of police officer following a not guilty finding on a charge of failure to display license amounted to a violation of double jeopardy. Doc. 18-1, pp. 45, 47-63. The court found no violation of the double jeopardy clause and denied Townsend's motion. Doc. 18-1, pp. 7, 47-63.

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