United States District Court, S.D. Ohio, Western Division
TRACIE M. HUNTER, Petitioner,
OHIO ATTORNEY GENERAL, et al., Respondents.
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge
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. (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,
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).
matter proceeded to trial before a jury, which was unable to
reach a verdict on eight of the nine criminal
charges. 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
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.
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
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
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.
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).
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
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
(Id., Ex. 20).
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.
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).
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).
24, 2015, petitioner's counsel complied with the
appellate court's order by filing an amended appellate
brief limited to 25 pages,  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).
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).
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).
Habeas Corpus Petition
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
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
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).
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).
Petitioner Is Not Entitled To Relief Based On The Claim In
Ground One That She Was Denied A Fair Trial As A Result Of
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#:
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
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).
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
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).
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).
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.
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
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
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 ...