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Duhamel v. Potter

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

February 2, 2018

JASON DUHAMEL, Petitioner,
v.
WARDEN MARY POTTER, Respondent.

          JACK ZOUHARY JUDGE.

          REPORT & RECOMMENDATION

          WILLIAM H. BAUGHMAN, JR. UNITED STATES MAGISTRATE JUDGE

         Introduction

         Before me[1] is the petition of Jason Duhamel for a writ of habeas corpus under 28 U.S.C. § 2254.[2] Duhamel was convicted by a Cuyahoga County Common Pleas jury in 2012 of pandering sexually-oriented matter involving a minor, illegal use of a minor in nudity oriented material or performance, and possession of criminal tools.[3] He is serving a sentence of 15 years[4] and is currently incarcerated at the Belmont Correctional Institution in Belmont, Ohio.[5]

         In his petition, Duhamel raises five grounds for habeas relief.[6] The State has filed a return of the writ arguing that the petition should be dismissed as it is without merit.[7]Duhamel has not filed a traverse.

         For the reasons that follow, I will recommend Duhamel's petition be denied.

         Facts

         A. Underlying facts, conviction, and sentence

         The facts that follow come from the decision of the appeals court.[8]

Duhamel was charged with 37 sex-related offenses.[9] Counts 1 through 35 of the indictment charged Duhamel with pandering sexually oriented matter involving a minor.[10]Counts 36 and 37 charged Duhamel with one count each of illegal use of a minor in sexually-oriented material and possession of criminal tools.[11] The charges stemmed from a search of Duhamel's home in which investigators found digital files containing child pornographic evidence on his computer.[12]

         In preparation for trial, Duhamel filed a motion to suppress evidence of any statements he made to police during the search of his home.[13] At a hearing on the motion, investigator David Frattare (“Frattare”) of the Cuyahoga County Prosecutor's Office and the Ohio Internet Crimes Against Children (“ICAC”) Task Force testified that he identified an IP address suspected of sharing 66 files of child pornography via the Ares peer-to-peer file sharing network.[14]

         File sharing networks allow program users to share filed on their personal computers with other program users.[15] The IP addresses Frattare identified in this case were linked to a computer located in a residence on West 126th Street in Cleveland, Ohio.[16] Investigators connected directly to Duhamel's computer and browsed numerous files with titles such as “Alicia 10 yo pthe little girl loves adult sex, ” and “10 yr boy with 12yr girl bufing.” Investigators downloaded two of the files and confirmed that they both contained child pornography.[17]

         Further investigation revealed that three adults live in the house associated with the IP Address, but investigators did not know which of the adults was pandering pornography.[18]Pursuant to a search warrant, investigators searched Duhamel's house early one morning.[19]Duhamel was the only adult in the home at the time of the search.[20]

         A Cuyahoga County Sheriff's Office detective interviewed Duhamel while other officers searched the house.[21] A video recording of the interview was played for the court and made part of the record.[22] The detective testified that before he posed any questions, he advised Duhamel that he was not under arrest and that he was not required to answer any questions if he did not want to.[23] Yet, Duhamel spoke freely with police and, at times, initiated conversation.[24]

         After hearing the testimony and reviewing the video of the interview, the trial court determined that because Duhamel was not in custody when he made statements to the police, Miranda warnings were not required.[25] Accordingly, the trial court denied the motion to suppress.[26]

         The evidence presented at the suppression hearing was reintroduced for the jury at trial.[27] Duhamel admitted to the detective that he had files that he knew were illegal.[28] He told police that whenever he downloaded files from Ares, he downloaded multiple files at once, transferred the downloaded files to folders on an external hard drive, and sorted through them later.[29] He denied looking at the downloaded files before transferring them to the external hard drive.[30] But, he advised the detective that any questionable material on his devices would likely be found in either folder titled “finished” that was within a folder titled “other” on the external hard drive, or within a folder titled “kid”or “young” that was within a folder called “movies.”[31]

         Investigator, Jason Howell (“Howell”) of the Cuyahoga County Prosecutor's Office and the Ohio ICAC Task Force, testified that he performed on-scene forensic scans of numerous digital devices in Duhamel's home during the search in order to confiscate only those devices that contained child pornography.[32] Investigators seized six items, all of those items were found in Duhamel's bedroom.[33]

         After the search, Howell conducted a more thorough forensic investigation of the devices in the lab, where he discovered more files of child pornography in addition to comics and animated videos of children having sex.[34]

         Duhamel moved for acquittal under Crim.R.29 after the state rested its case.[35] The court denied the motion, and the case was submitted to the jury.[36] The jury found Duhamel guilty on Counts 3 through 8, 10 through 30, 36, and 37, and not guilty of Counts 1, 2, 9, and 31 through 35.[37]

         B. Direct Appeal

         1. Ohio Court of Appeals

         Duhamel, through counsel, filed a timely[38] notice of appeal[39] with the Ohio Court of Appeals. In his brief, Duhamel raised six assignments of error:

1. The court erred in denying Duhamel's motion to suppress the statement extracted from him while in custody but in absence of Miranda warnings.[40]
2. The court erred in denying Duhamel's Rule 29 motions.[41]
3. The trial court erred in denying Duhamel additional funds for his computer forensics expert.[42]
4. The jury's verdict was against the manifest weight of the evidence.[43]
5. The State's evidence was insufficient to support a verdict of guilty on Counts 1-36 of in the indictment.[44]
6. The sentence in the matter was a violation of Duhamel's Eighth Amendment protection against cruel and unusual punishment.[45]

         The state filed a brief in response, [46] to which Duhamel replied.[47] The Ohio appeals court sua sponte dismissed Duhamel's appeal for lack of a final appealable order and reinstated the case to the trial court's active docket[48]

         On December 10, 2014, the trial court sentenced Duhamel to a 15 year aggregate sentence.[49]

         2. Direct appeal from resentencing

         On December 15, 2014, Duhamel, through counsel, timely filed[50] a notice of appeal[51] with the Ohio Court of Appeals. In his brief, Duhamel raised seven assignments of error:

1. The court erred in denying Duhamel's motion to suppress the statement extracted from him while in custody but in absence of Miranda warnings.[52]
2. The court erred in denying Duhamel's Rule 29 motions.[53]
3. The trial court erred in denying Duhamel additional funds for his computer forensics expert.[54]
4. The jury's verdict was against the manifest weight of the evidence.[55]
5. The State's evidence was insufficient to support a verdict of guilty on Counts 1-36 of in the indictment.[56]
6. The sentence in this matter was a violation of Duhamel's Eighth Amendment protection against cruel and unusual punishment.[57]
7. The imposition of costs and fines on Mr. Duhamel was unconstitutional.[58]

         The state filed a brief in response, [59] to which Duhamel replied.[60] The Ohio appeals court overruled all seven assignments of error and affirmed the decision of the trial court.[61]

         3. The Supreme Court of Ohio

         Duhamel, through counsel, thereupon filed a timely[62] notice of appeal with the Ohio Supreme Court.[63] In his brief in support of jurisdiction, he raised six propositions of law:

1. The court erred in denying Duhamel's motion to suppress.
2. The court erred in denying Duhamel's Rule 29 motions.
3. The trial court erred in denying Duhamel additional funds for his computer forensics expert.
4. Verdict was against the manifest weight of the evidence.
5. The State's evidence was insufficient to support a verdict of guilty on Counts 1-36 in the indictment.
6. The sentence in this matter was a violation of Duhamel's Eighth Amendment protection against cruel and unusual punishment under the Ohio and U.S. Constitutions.[64]

The State filed a memorandum in response.[65] On January 20, 2016, the Supreme Court of Ohio declined to accept jurisdiction of the appeal under S.Ct.Prac. Rule 7.08(B)(4).[66]

         Duhammel, through counsel, filed a petition for writ of certiorari to the United States Supreme Court which was denied on June 13, 2016.[67]

         C. Petition for writ of habeas corpus

         On November 12, 2016, Duhamel, through counsel, timely filed[68] a federal petition for habeas relief.[69] He raises five grounds for relief:

GROUND ONE:The State Ohio rulings were in direct conflict with the U.S. Supreme Courts Jurisprudence regarding custodial interrogations.[70]
GROUND TWO:State's failure to provide expert witness fees violated petitioner's due process rights.[71]
GROUND THREE:State's failure to present any evidence as to petitioner's knowledge violated petitioner's fair trial rights.[72]
GROUND FOUR:The State's evidence was insufficient to sustain the conviction of petitioner.[73]
GROUND FIVE:The sentence in this matter was a violation of petitioner's Eighth Amendment protection against cruel and unusual punishment under the Ohio and U.S. Constitutions.[74]

         Analysis

         A. Preliminary observations

         Before proceeding further, I make the following preliminary observations:

1. There is no dispute that Duhamel is currently in state custody as the result of his conviction and sentence by an Ohio court, and that he was so incarcerated at the time he filed this petition. Thus, he meets the “in custody” requirement of the federal habeas statute vesting this Court with jurisdiction over the petition.[75]
2. There is also no dispute, as detailed above, that this petition was timely filed under the applicable statute.[76]
3. In addition, my own review of the docket of this Court confirms, that this is not a second or successive petition for federal habeas relief as to this conviction and sentence.[77]
4. Moreover, it appears that these claims have been totally exhausted in Ohio courts by virtue of having been presented through one full round of Ohio's established appellate review procedure.[78]
5. Finally, Duhamel is represented by counsel, and has requested an evidentiary hearing to develop the factual bases of his claims.[79] As is detailed below, because all claims may be resolved on the current record, I deny the motion for evidentiary hearing.

         B. Standards of review

         1. AEDPA review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), [80] codified at 28 U.S.C. § 2254, strictly circumscribes a federal court's ability to grant a writ of habeas corpus.[81] Pursuant to AEDPA, a federal court shall not grant a habeas petition with respect to any claim adjudicated on the merits in state court unless the state adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.[82]

         The Supreme Court teaches that this standard for review is indeed both “highly deferential” to state court determinations, [83] and “difficult to meet, ”[84] thus, preventing petitioner and federal court alike “from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.”[85]

         a. “Contrary to” or “unreasonable application of” clearly established federal law

         Under § 2254(d)(1), “clearly established Federal law” includes only Supreme Court holdings and does not include dicta.[86] In this context, there are two ways that a state court decision can be “contrary to” clearly established federal law:[87] (1) in circumstances where the state court applies a rule that contradicts the governing law set forth in a Supreme Court case, [88] or (2) where the state court confronts a set of facts that are materially indistinguishable from a Supreme Court decision, but nonetheless arrives at a different result.[89] A state court's decision does not rise to the level of being “contrary to” clearly established federal law simply because that court did not cite the Supreme Court.[90] The state court need not even be aware of the relevant Supreme Court precedent, so long as neither its reasoning nor its result contradicts it.[91] Under the “contrary to” clause, if materially indistinguishable facts confront the state court, and it nevertheless decides the case differently than the Supreme Court has previously, a writ will issue.[92] When no such Supreme Court holding exists the federal habeas court must deny the petition.

         A state court decision constitutes an “unreasonable application” of clearly established federal law when it correctly identifies the governing legal rule, but applies it unreasonably to the facts of the petitioner's case.[93] Whether the state court unreasonably applied the governing legal principle from a Supreme Court decision turns on whether the state court's application was objectively unreasonable.[94] A state court's application that is “merely wrong, ” even in the case of clear error, is insufficient.[95] To show that a state court decision is an unreasonable application, a petitioner must show that the state court ruling on the claim being presented to the federal court “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”[96] Under the “unreasonable application” clause, the federal habeas court must grant the writ if the State court adopted the correct governing legal principle from a Supreme Court decision, but unreasonably applied that principle to the facts of the petitioner's case.

         b. “Unreasonable determination” of the facts

         The Supreme Court has recognized that § 2254(d)(2) demands that a federal habeas court accord the state trial courts substantial deference:[97] Under § 2254(e)(1), “a determination of a factual issue made by a [s]tate court shall be presumed to be correct.”[98]A federal court may not characterize a state court factual determination as unreasonable “merely because [it] would have reached a different conclusion in the first instance.”[99] While such deference to state court determinations does not amount to an “abandonment or abdication of judicial review”or “by definition preclude relief, ”[100] it is indeed a difficult standard to meet. “The role of a federal habeas court is to guard against extreme malfunctions in the state criminal justice systems, not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judges.”[101]

         2. Miranda-custodial interrogation

         Miranda v. Arizona[102] requires that a person subjected to a custodial must be warned of certain rights.[103] Miranda warnings are not required in non-threatening and non-confining interrogation situations, which are non-custodial in nature.[104] Miranda defines the nature of a ‘custodial' interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way.”[105] This is further dependent on whether the suspect is formally under arrest or if the subject's movement is restrained to the degree that it is the equivalent of an arrest.[106]

         Further, when deciding if an interrogation was custodial, courts look at “how a reasonable man in the suspect's position would have understood his situation.”[107] The Supreme Court of Ohio instructs that, “[i]n judging whether an individual has been placed into custody the test is whether, under the totality of the circumstances, a ‘reasonable person would have believed that he was not free to leave.'”[108] The Sixth Circuit, relying on Supreme Court precedent, uses a totality of the circumstances approach as well, looking at the “objective circumstances ...


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