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Hunter v. Ohio Attorney General

United States District Court, S.D. Ohio, Western Division

May 9, 2017

TRACIE M. HUNTER, Petitioner,
v.
OHIO ATTORNEY GENERAL, et al., Respondents.

          Black, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz United States Magistrate Judge

         Petitioner, Tracie M. Hunter, a former judge on the Hamilton County, Ohio, Juvenile Court, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the assistance of counsel. In the petition, petitioner challenges her conviction and sentence for “Having An Unlawful Interest in a Public Contract” as charged in Count 6 of the indictment returned in Hamilton County Court of Common Pleas Case No. B-1400110.[1] (Doc. 1; see also Doc. 12, Exs. 25-26). Respondents are the Ohio Attorney General, the Hamilton County Court of Common Pleas, and Hamilton County Common Pleas Court Judge Patrick Dinkelacker. (See Doc. 8 n.1, at PAGEID#: 60; Doc. 21). This matter is before the Court on the petition; the Ohio Attorney General's return of writ with exhibits; the return of writ filed by the Hamilton County Court of Common Pleas and the Honorable Patrick Dinkelacker; petitioner's brief in reply to the respondents' returns of writ; the sur-reply brief filed by the Hamilton County Court of Common Pleas and the Honorable Patrick Dinkelacker; and petitioner's sur-rebuttal brief. (Docs. 1, 12, 27, 32, 39, 40).[2]

         I. PROCEDURAL BACKGROUND

         State Trial Proceeding

         In January 2014, the Hamilton County grand jury returned an eight-count indictment in Case No. B-1400110 charging the petitioner with two counts of tampering with evidence in violation of Ohio Rev. Code § 2921.12(A)(2) (Counts 1 and 3); two counts of forgery in violation of Ohio Rev. Code § 2913.31(A)(2) (Counts 2 and 4); two counts of having an unlawful interest in a public contract in violation of Ohio Rev. Code § 2921.42(A)(1) (Counts 5-6); and two counts of theft in office in violation of Ohio Rev. Code § 2921.41(A)(2) (Counts 7-8). (Doc. 12, Ex. 1). The grand jury issued a second indictment in Case No. B-1400199 charging petitioner with the additional offense of misuse of credit cards in violation of Ohio Rev. Code § 2913.21(B)(2). (Id., Ex. 2). The two indictments were consolidated. (See id., Ex. 12).

         The matter proceeded to trial before a jury, which was unable to reach a verdict on eight of the nine criminal charges.[3] Petitioner was convicted only of the offense charged in Count 6 of the indictment in Case No. B-1400110. That count charged that “from on or about [July 25, 2013] to on or about [August 30, 2013], ” petitioner, “a public official, knowingly authorized, or employed the authority or influence of her office to secure the authorization of any public contract, to wit: AN EMPLOYMENT CONTRACT, in which [petitioner], a member of her family, or any of her business associates had an interest.” (Id., Ex. 1, at PAGEID#: 115-16) (emphasis in original omitted). The Ohio Court of Appeals, First Appellate District, provided the following summary of the trial proceedings leading to petitioner's conviction on Count 6, which includes a summary of the evidence presented at trial to establish petitioner's guilt on that charge, the proceedings that were held after the verdict on Count 6 was returned, and the sentence that was ultimately imposed:[4]

In 2010, Hunter ran for a judgeship in the Hamilton County Juvenile Court. Following litigation over the counting of provisional ballots, she was determined to have won the election and was sworn in on May 25, 2012.
Over time, employees in the prosecutor's office noticed what they believed to be a pattern of Hunter backdating certain entries. These employees suspected that Hunter was backdating the documents with the specific intention of depriving their office of the ability to timely appeal the decisions. After an internal investigation concluded, the Hamilton County prosecuting attorney asked the common pleas court to appoint special prosecutors to investigate the activity. The common pleas court appointed two special prosecutors, who conducted their own investigation and eventually convened a special grand jury to assist them. At the conclusion of the investigation, the grand jury indicted Hunter on nine counts involving several alleged instances of illegal conduct while in office.

         The Termination Proceedings against Steven Hunter

The sixth count of the indictment alleged that Hunter had an unlawful interest in a public contract. . . . According to the testimony presented during trial, the charge stemmed from the termination proceedings against Steven Hunter, an employee of the Hamilton County Juvenile Court's Youth Center (“Youth Center”) and Hunter's brother.
Steven Hunter was employed as a juvenile corrections officer. On July 7, 2013, Steven Hunter was involved in an incident in which he was alleged to have hit a youth in the intake department of the detention center. As a result of that incident, Dwayne Bowman, the superintendent of the Youth Center, recommended that the court terminate Steven Hunter and that a hearing be scheduled for that purpose.
Steven Hunter was informed of the decision on July 25, 2013. Shortly after 10:30 that evening, Hunter sent an email to all employees of the Youth Center in which she identified a number of safety concerns, which she said had been brought to her attention as a result of an email she had sent out previously. She said that she would schedule a closed meeting to discuss the issues with the corrections officers.
Bowman testified that the email was troubling. He said that he was concerned that the email “would cause confusion with the staff at the youth center. Mr. Hunter's termination process was still occurring and I believe that it could jeopardize that process.” Bowman noted that many of the items on Hunter's list echoed the main explanations that Steven Hunter had given for his actions during the July 7 incident, suggesting that the email was Hunter's way of inserting herself into the proceedings. Brian Bell, assistant superintendent of the Youth Center, had similar concerns, testifying that he felt that “she was going to speak to the residents about it to conduct basically her own investigation.”
On July 29, 2013, Hunter sent an email to Bowman in which she requested that he send her a number of documents. The email demanded
copies of all incident reports related to [the youth] and any and all JCOs involving [the youth] and other staff, prior or subsequent to alleged incident with JCO Hunter. All incidents reported during any time frame that [the youth] was detained at the Youth Center, shall be included.
Please provide copies of all drug tests performed of [the youth] during all times at Youth Center. Medical reports of any positive drug tests shall also be included, including the substance detected.
Please forward all copies of all incidents reported involving [the youth] with police.
Bowman replied by asking Hunter if she wanted only the incident reports, or if she also wanted “other documents related to our investigation.” Bowman testified that he had asked that clarifying question because Hunter was requesting documentation that was “above and beyond the information that we would normally provide to someone not directly involved in the investigation or someone from the investigative team.” He was concerned at that point and was “trying to protect the integrity of the disciplinary process, of the investigation, *** and also to give the judge the opportunity to clarify that she was not asking for that kind of information, but just the information of the incident.” Rather than restraining her query, Hunter replied that she wanted “all documentation of every incident and every employee pertaining to [the youth] during his stay at the Youth Center ***.”
Bowman testified that this exchange was very stressful for him. He said that he was greatly concerned because “[i]t was something that I had not experienced before for a judge to be directly involved in an incident here at the Youth Center. Certainly the fact that this was the brother of the judge.” Likewise, Bell testified that he had never seen a judge directly involved in the disciplinary process of a Youth Center employee. According to Bell, the types of documents provided to Hunter would not have been provided to an employee under any circumstances.
Bowman provided the documents to Hunter that day. Steven Hunter testified that Hunter then provided the documents to him, which he in turn brought to his attorney that evening. His attorney testified that she only accepted some of the documents. His attorney testified that she refused to accept some of the documents because it would have been “unethical” for her to take them and that she was “concerned that [she] might have to make an ethical report to the Supreme Court about the person that gave him” the documents.
The next morning, Steven Hunter appeared with his attorney for the hearing. Bell testified that, under normal circumstances, the first hearing is continued because the employee receives his discovery packet at the first hearing and usually requires time to review the documents. Steven Hunter's counsel was able to proceed with the hearing that day, which concluded after several hours. Steven Hunter was eventually terminated.

         The Trial and Verdict Return

After Hunter's indictment, the case proceeded to a lengthy jury trial. After five weeks of testimony, the jury received the case. Jury deliberations began the afternoon of Wednesday, October 8, 2014. On Friday at 4 p.m., the jurors said that they had reached a verdict on Count 6, but were unable to reach a verdict on the other counts. The foreperson gave the completed verdict form to the trial court. In open court, the trial court reviewed the document and ordered the jury to be polled as to whether the verdict was theirs. Each member of the jury answered affirmatively without equivocation. The trial court then said:
I'm going to - - I have indicated that this verdict will be in. We are not indicating what the verdict is, but this verdict will be entered. And I'm going to hand this verdict to the court reporter, . . . and I'm going to ask him if he would seal this verdict.
Defense counsel entered no objection to the procedure employed by the trial court. The jury then received the Howard charge-a supplemental instruction for the court to give a deadlocked jury designed to encourage the jurors to reach a verdict. See State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188 (1989). The trial court dismissed the jury for the holiday weekend.
The jury returned Tuesday morning and resumed deliberations. Shortly after noon, the jury returned to the courtroom and the foreperson informed the trial court that the jurors could not reach a verdict on the remaining counts. Once the trial court was satisfied that further deliberations would be fruitless, the clerk read the verdict for Count 6 in open court. After the trial court thanked the jury for its service, but before the jurors were excused, counsel for Hunter asked that the jury be polled as to Count 6.
THE COURT: The jury has been polled. They were previously polled and that's it. They were polled. They were polled.
[DEFENSE COUNSEL]: I thought until the verdict was published.
THE COURT: They were polled and they were asked whether Count 6 was their true verdict and they indicated yes and so it's over. I indicated that.
The matter was continued to allow for a presentence investigation, after which Hunter was placed on community control for one year, and was ordered to serve 180 days in the Hamilton County Justice Center.

(Id., Ex. 56, pp. 2-6, at PAGEID#: 613-17).

         Petitioner was sentenced on December 5, 2014. (See id., Exs. 25-26). Prior to the imposition of sentence, petitioner's counsel filed a post-conviction motion for judgment of acquittal and two motions for a new trial, which were denied by the trial court in entries filed on November 20 and December 3, 2014. (See id., Exs. 15, 19, 20, 21, 23). In one of the motions for new trial, petitioner contended that “the court denied her a fair trial by refusing to poll the jury, at defense counsel's request, after the jury's verdict on Count 6 of the indictment was announced in open court.” (Id., Ex. 15). The trial court denied that motion for the following stated reasons:

1. Once a Jury has returned a verdict and that Jury has been polled, a juror may not later rescind the verdict.
2. To rule otherwise would cause chaos by jeopardizing the integrity of jury deliberations and the finality of jury verdicts.

(Id., Ex. 20).

         State Appeal Proceedings

         Petitioner's trial counsel filed notices of appeal to the Ohio Court of Appeals, First Appellate District, from the trial court's entries filed on November 20 and December 3, 2014 denying petitioner's post-conviction motions for judgment of acquittal and new trial, and new counsel for appeal purposes filed a third notice of appeal from the trial court's December 5, 2014 final judgment entry. (See Doc. 12, Exs. 30-32). The appeals were consolidated and placed on the court's accelerated calendar. (See id., Exs. 33-34).

         Petitioner's new appellate counsel filed a motion to remove the case from the accelerated calendar and place it on the appellate court's regular calendar. (Id., Ex. 35). Counsel contended that given the number and importance of the issues to be raised on appeal, the parties and court would “benefit from a full briefing” of the issues and that “a fifteen-page page limit would be insufficient” to address them. (See id.). The court overruled petitioner's motion, but granted “leave for the parties to file briefs not to exceed 25 pages.” (Id., Ex. 36).[5]

         Thereafter, petitioner's counsel filed a 35-page brief on petitioner's behalf, in which three assignments of error were asserted challenging the trial court's (1) denial of petitioner's motion for judgment of acquittal, (2) refusal to poll the jury after the verdict was unsealed and announced in open court, and (3) failure “to meaningfully cure the prosecution's pervasive misconduct during its rebuttal closing argument.” (See id., Ex. 39). Because the appellate brief exceeded 25 pages, counsel also filed a motion requesting “the court to accept [petitioner's] brief.” (Id., Ex. 40). The court of appeals overruled the motion, struck the appellate brief that had been filed by counsel, and ordered petitioner to file another brief that complied with the 25-page limit. (Id., Ex. 42).

         On July 24, 2015, petitioner's counsel complied with the appellate court's order by filing an amended appellate brief limited to 25 pages, [6] raising the same assignments of error that had been presented in the stricken brief. (See id., Ex. 49). However, counsel also filed an “Emergency Complaint for Writs of Mandamus” with the Ohio Supreme Court. (Id., Ex. 43). Petitioner complained in that matter that her constitutional rights to due process, equal protection and effective assistance of counsel were violated by the 25-page limit set by the Ohio Court of Appeals. (See id., p. 9, at PAGEID#: 470). As relief, she requested the issuance of a writ of mandamus compelling the court of appeals “to allow Judge Hunter to file her brief as originally submitted, or in the alternative an edited brief of thirty pages.” (Id., p. 10, at PAGEID#: 471). The State responded by filing a motion to dismiss on the grounds that (1) mandamus was “not warranted” given that “page limits are procedural matters that fall within the sound discretion of the court and mandamus may not be used to control judicial discretion”; and (2) petitioner “ha[d] a remedy by way of an appeal.” (Id., Ex. 45). On January 20, 2016, the Ohio Supreme Court granted the State's motion to dismiss without opinion. (Id., Ex. 48).

         In the meantime, the State filed a brief responding to petitioner's amended appellate brief. (Id., Ex. 50). Petitioner filed a motion for leave to file a reply to the State's responsive pleading, which was overruled on October 30, 2015. (Id., Exs. 51-52). Thereafter, on December 23, 2015 and January 3 and 13, 2016, petitioner filed three notices of additional authority. (Id., Exs. 53-55). On January 15, 2016, the Ohio Court of Appeals issued a Judgment Entry and Opinion overruling petitioner's assignments of error and affirming the trial court's judgment. (See id., Ex. 56).

         Petitioner's appellate counsel next timely appealed on petitioner's behalf to the Ohio Supreme Court. (See id., Ex. 58). In the memorandum in support of jurisdiction, counsel presented five propositions of law, which included the following three claims for the court's consideration:

1. A criminal defendant has a statutory and constitutional right to poll the jury after the court has unsealed a verdict and announced it in open court.
2. A criminal defendant is entitled to a new trial when the prosecution's rebuttal closing argument contains extensive improper comments-including making inflammatory remarks, interjecting personal opinion, citing unsworn testimony, asking the jury to draw negative inferences from uncalled witnesses, and impugning the defense.
3. The First District Court of Appeals denies appellants due process and equal protection of the law by placing cases on the accelerated calendar by default and refusing to allow full briefing in complicated cases.

(Id., Ex. 60, at PAGEID#: 633). On May 18, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (Id., Ex. 62).

         Federal Habeas Corpus Petition

         In May 2016, petitioner commenced the instant federal habeas corpus action with the assistance of counsel who had represented her in the state appeal proceedings, as well as new counsel. (See Doc. 1). In her petition, petitioner presents three grounds for relief:

Ground One: Denial of the Fifth and Fourteenth Amendment[] right to due process resulting from extensive prosecutorial misconduct.
Ground Two: Denial of the right to due process under the Fourteenth Amendment to the United States Constitution as a result of the state court of appeals' abuse of its accelerated calendar to restrict briefing in complicated cases.
Ground Three: Denial of the right to a jury trial under the Sixth and Fourteenth Amendments because of the trial court's failure to poll the jury upon announcement of the verdict in open court.

(Id., at PAGEID#: 3, 5, 7).

         The respondents-the Ohio Attorney General, the Hamilton County Court of Common Pleas, and the Honorable Patrick Dinkelacker-have filed returns of writ in response to the petition. (Docs. 12, 27). Petitioner has filed a brief in reply to the returns of writ. (Doc. 32). In addition, the Hamilton County Court of Common Pleas and the Honorable Patrick Dinkelacker were permitted to file a “sur-reply” in response to petitioner's reply brief, and petitioner was permitted to file a “sur-rebuttal” brief. (Docs. 39-40; see also Docs. 33-36).

         II. OPINION

         A. Petitioner Is Not Entitled To Relief Based On The Claim In Ground One That She Was Denied A Fair Trial As A Result Of Prosecutorial Misconduct

         In Ground One of the petition, petitioner alleges that she was denied a fair trial when the “special prosecutor engaged in fifty-one instances of prosecutorial misconduct” during the State's rebuttal closing argument. (Doc. 1, at PAGEID#: 10). Respondents contend that (1) petitioner procedurally defaulted and has waived most of the allegations of misconduct because she “failed to contemporaneously object at trial, ” and (2) petitioner's remaining allegations of misconduct “are without merit.” (Doc. 12, p. 12, at PAGEID#: 82; see also Doc. 27, pp. 8-10, at PAGEID#: 5044-46).

         The Ohio Court of Appeals, First Appellate District, was the only state court to issue a reasoned decision addressing the claim of prosecutorial misconduct that was presented by petitioner as an assignment of error on direct appeal. In overruling the assignment of error, the court reasoned in pertinent part as follows:

In her third assignment of error, Hunter claims that numerous instances of prosecutorial misconduct occurred during the state's closing argument that deprived her of a fair trial. We disagree.
Generally, prosecutorial misconduct will not provide a basis for overturning a criminal conviction, unless, on the record as a whole, the misconduct can be said to have deprived the appellant of a fair trial. . . . “The touchstone of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.'” State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 61, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). The test is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. . . .
A prosecuting attorney has wide latitude to summarize the evidence and zealously advocate the state's position during closing argument. . . . The propriety of a specific remark by a prosecutor must not be judged in isolation, but in light of the tenor and context of the entire closing argument. . . . In almost all of the instances cited by Hunter, there was no objection. She, therefore, has waived all but plain error. . . .
We have reviewed Hunter's argument, and the chart of 51 specific instances of alleged improper comment, from the perspective of not just the lengthy closing arguments presented by both sides, but also in light of the lengthy trial that preceded them. In many of the instances, Hunter's counsel opened the door to comments made by the state in rebuttal with his own closing remarks. . . . Further, the trial court repeatedly admonished the jury that closing arguments are not evidence. . . .
The trial in this case was long and intense. The closing arguments of both sides were equally intense. And while some of the comments may have stretched the bounds of what is acceptable in closing arguments, the record does not support the conclusion that the arguments of the state deprived Hunter of a fair trial.

(Doc. 12, Ex. 56, pp. 12-13, at PAGEID#: 623-24) (most Ohio case citations omitted).

         1. Petitioner Procedurally Defaulted And Has Waived Most Of The Allegations Of Prosecutorial Misconduct Because She Did Not Object To Those Specific Instances of Alleged Impropriety That Occurred During Rebuttal Closing Argument

         As an initial matter, as respondents have argued and the Ohio Court of Appeals found, petitioner procedurally defaulted most of her allegations of prosecutorial misconduct because she failed to object to the majority of the special prosecutor's allegedly improper remarks at the time they were made. The chart detailing the 51 specific instances of misconduct, which is attached as “Exhibit A” to petitioner's habeas petition and which was also attached as “Appendix B” to petitioner's state appellate brief, reflects that only sixteen of the special prosecutor's challenged comments were objected to by the defense at trial. (See Doc. 1, Ex. A; Doc. 12, Ex. 49, Appendix B, at PAGEID#: 556-64).

         In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state defendant with federal constitutional claims must fairly present those claims to the state courts for consideration before raising them in a federal habeas corpus action. See 28 U.S.C. § 2254(b)(1), (c); see also Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If the petitioner fails to fairly present her constitutional claims through the requisite levels of state appellate review to the state's highest court, or commits some other procedural default that prevents a merit-based review of the federal claims by the state's highest court, she may have waived the claims for purposes of federal habeas review. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 847-48 (1999); Harris v. Reed, 489 U.S. 255, 260-62 (1989); McBee v. Grant, 763 F.2d 811, 813 (6th Cir. 1985); see also Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989).

         It is well-settled under the procedural default doctrine that the federal habeas court may be barred from considering an issue of federal law from a judgment of a state court if the judgment rests on a state-law ground that is both “independent” of the merits of the federal claim and an “adequate” basis for the state court's decision. See Harris, 489 U.S. at 260-62. The Supreme Court has stated:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default, and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Such a default may occur if the state prisoner fails to comply with a state procedural rule that required her to have done something to preserve the issue for appellate review. United States v. Frady, 456 U.S. 152, 167-69 (1982); Simpson v. Sparkman, 94 F.3d 199, 202 (6th Cir. 1996).

         The Sixth Circuit employs a three-prong test, which was initially established in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986), to determine if a claim is procedurally defaulted under the adequate and independent state ground doctrine:

First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule. . . . Second, the court must decide whether the state courts actually enforced the state procedural sanction. . . . Third, the court must decide whether the state procedural forfeiture is an “adequate and independent” state ground on which the state can rely to foreclose review of a federal constitutional claim.

Hoffner v. Bradshaw, 622 F.3d 487, 495 (6th Cir. 2010) (quoting Jacobs v. Mohr,265 F.3d 407, 417 (6th Cir. 2001) (in turn quoting Maupin)); see also Johnson v. Bradshaw, 493 F. App'x 666, 669 (6th Cir. 2012). Under Maupin and as discussed above, if the three prerequisites are met for finding a claim is procedurally defaulted under the adequate and independent state ground doctrine, federal habeas corpus review of the defaulted claim is precluded unless the petitioner can demonstrate cause for and prejudice from her procedural default or that failure to consider the defaulted claim will result in a “fundamental miscarriage of justice.” Hoffner, 622 F.3d at 495 (citing Maupin, 785 F.2d at 138); Johnson, 493 F. App'x at 669. See also ...


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