United States District Court, S.D. Ohio, Western Division, Cincinnati
District Judge Susan J. Dlott.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
habeas corpus case is before the Court for decision on the
merits. Petitioner has filed the Petition (ECF No. 5) and a
Traverse (ECF No. 11). Respondent filed the state court
record (“Record, ” ECF No. 9) and the
Answer/Return of Writ (ECF No. 10).
Magistrate Judge reference in the case has been transferred
to the undersigned to help balance the workload among
Magistrate Judges in the Western Division.
pleads the following Grounds for Relief:
GROUND ONE: The trial court erred as matter
of law by allowing hearsay evidence to be admitted in
violation of Petitioner's right to fair trial and
Supporting Facts: Detective Dunaway was
permitted to testify as to what Mr. Madden told him about the
event over Petitioner's objection. Detective Dunaway
testified that that he spoke with Mr. Madden after Petitioner
had already been arrested which was about an hour after the
incident, the statement made at that point was not excited
utterance, and therefore prejudiced the Petitioner.
GROUND TWO: The trial court erred by
overruling Petitioner's motion for a new trial.
Supporting Facts: Defendant filed his motion
on the basis that the trial court admitted hearsay which
affected his substantial rights to a fair trial, and that the
trial court did not provide a full and fair hearing on the
motion in violation of the 6th, and 14th Amendments to the
Unites States Constitution to due process and equal
protection, as the trial court failed to give findings on the
GROUND THREE: The evidence was insufficient
as a matter of law and was against the manifest weight of
evidence to sustain the conviction.
Supporting Facts: The State failed to prove
beyond a reasonable doubt that Petitioner recklessly
inflicted, attempted to inflict or, threatened to inflict
physical harm to Mr. Madden while committing a theft offense
under R.C. 2911.02(A)(2).
GROUND FOUR: The trial court erred as a
matter of law in sentencing petitioner.
Supporting Facts: The trial court violated
R.C. 2929.11(A)(B), 2929.12 and 2929.12 (B) and (C)(3) by
failing to consider the court's own findings of the
Petitioner being a first time violent type offender, and
still imposed a significant prison sentence making the
sentence contrary to law.
GROUND FIVE: The appellate court denied
Petitioner due process and equal protection of the law under
the 5th and 14th Amendments to the United States Constitution
where the appellate failed to rule on all Petitioner's
assigned constitutional claims, assigned errors.
Supporting Facts: Once an error is raised,
it may only be waived by the party submitting the brief. Here
counsel raised four issues, the appellate addressed two.
(Petition, ECF No. 5, PageID 56.)
and Factual History
was indicted by the Hamilton County Grand Jury in 2014 on one
count of robbery (Ohio Revised Code §
2911.02(A)(2)(State Court Record (“Record”), ECF
No. 9, PageID 82). Pointer, through counsel, waived a trial
by jury and a bench trial was held. After the bench trial,
Pointer immediately moved for a new trial pursuant to
Criminal Rule 33(A)(1) and (A)(5), arguing that the court had
erred by admitting hearsay statements made by the victim to
police as excited utterances which prevented him from
receiving a fair trial. Id. The court denied the
motion; found Pointer guilty as charged, and sentenced him to
6 years in prison (Record, ECF No. 9, PageID 91).
appealed to the Court of Appeals of Ohio, First Appellate
District, Hamilton County, which set forth the facts of this
case as follows:
[*P3] Steve Madden parked his truck on a
street in downtown Cincinnati and smoked a cigarette while
waiting to appear for a court hearing scheduled for later
that morning. Pointer walked by and asked Madden for a
cigarette and to sit in his truck. Madden obliged. The two
conversed for a while and then, after a struggle, Pointer
took Madden's wallet and ran. According to Madden,
Pointer had told him that he had a gun, and Pointer had
beaten him on his head with a hard object that Madden had
first believed was a gun, but later realized was a cellular
[*P4] Moments after the attack, Cincinnati
Police Office Jennifer Ventre appeared on the scene, and
Madden excitedly told her what had occurred. About an hour
later, a still agitated Madden related his information to
Cincinnati Police Detective Jeff Dunaway in response to
investigative questioning. Pointer was apprehended and
admitted to taking Madden's wallet, but he denied using
or threatening any force. He testified accordingly, but he
was impeached with his previous convictions, in accordance
with Evid. R. 609.
(Record, ECF No. 9, PageID 121.) Following briefing on the
appeal, the court of appeals affirmed the judgment of the
trial court. State v. Pointer, Case No. C-140422
(Ohio App. May 20, 2015.)(unreported; copy at Record, ECF No.
9, PageID 121, et seq.), appellate jurisdiction declined,
State v. Pointer, 143 Ohio St.3d 1465 (2015).
Pointer timely filed his habeas corpus petition in this Court
on March 14, 2016.
One: Admission of ...