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Duncan v. Shoop

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

March 30, 2018

CHARLES E. DUNCAN, Petitioner,
v.
TIMOTHY SHOOP, Warden, Chillicothe Correctional Institution Respondent.

          Walter H. Rice District Judge.

          ORDER SUBSTITUTING RESPONDENT; SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This habeas corpus case is before the Court on Petitioner Charles E. Duncan's Objections (ECF No. 10) to the Magistrate Judge's Supplemental Report and Recommendations which recommended dismissing this action on the merits (“Report, ” ECF No. 8). Judge Rice has recommitted the case for reconsideration in light of the Objections (ECF No. 11).

         Upon Notice (ECF No. 9) from Duncan that his custody has been shifted to the Chillicothe Correctional Institution, Timothy Shoop, the Warden at that institution, is substituted as Respondent herein pursuant to Fed.R.Civ.P. 25 and the caption is amended accordingly.

         Duncan raises four Objections which will be considered seriatim.

         Objection One: The Transcript of the Motion to Suppress Hearing is Inaccurate

         The Report recommends deciding this case on initial review under Rule 4 of the Rules Governing § 2254 Cases without ordering the State to answer. (ECF No. 8.) Duncan contends he would be prejudiced by the Court's failure to consider the “entire state court record.” (Objections, ECF No. 10, PageID, 49.)

         Duncan has acknowledged that he previously sought habeas corpus relief in this Court (Duncan v. Brunsman, Case No. 3:09-cv-078)(“Duncan I”). In that case the Court ordered a full answer and the State filed a copy of the state court record as required by Habeas Rule 5. (Duncan I at ECF No. 9). Duncan argues

The last time the Petitioner's case was before the court, the court failed to consider the video taped interrogation that was introduced as evidence during his state court trial. Petitioner submits that the transcript alone does not accurately reflect what was said between he [sic] and the police during his custodial interrogation. Petitioner has recognized several instances where the transcript does not accurately reflect what was said between the detectives and he [sic].

(Objections, ECF No. 10, PageID 49.) Duncan then quotes ¶¶ 20-35 from State v. Duncan, 2007-Ohio-4079, 2007 Ohio App. LEXIS 3720 (2nd Dist. Aug. 3, 2007), the decision of the Ohio Court of Appeals on direct appeal. Duncan claims that ¶¶ 24 and 29 “were incorrectly transcribed in order to favor the state's position” and proposes what he believes would be a correct transcription. (ECF No. 10, PageID 51.) He notes that the prosecutor admitted in the suppression hearing that parts of the audio were missing. Id. He asserts this Court “should at least consider the video.”

         These arguments are in support of his claim that he was deprived of his right to counsel and privilege against self-incrimination when he requested counsel before being interrogated, was not given access to counsel, and then had his statements to the police used against him at trial (Petition in Duncan I at ECF No. 2, PageID 35-36, 45-48; Petition in this case, ECF No. 3, PageID 24-25).

         On his direct appeal to the Second District, Duncan claimed his waiver of Miranda rights was not voluntary and had been revoked before he made statements to the police. The Second District held:

[*P12] The standard of review regarding motions to suppress is whether the trial court's findings are supported by competent, credible evidence. State v. Vance (1994), 98 Ohio App.3d 56, 58-59, 647 N.E.2d 851; State v. Ferguson, Defiance App. No. 4-01-34, 2002 Ohio 1763. "At a suppression hearing, the evaluation of evidence and the credibility of witnesses are issues for the trier of fact." State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. However, an appellate court makes an independent determination of the law as applied to the facts. Vance, 98 Ohio App.3d at 59.
[*P13] In its findings of facts, the trial court found that "the defendant unequivocally invoked his right to an attorney prior to the [first] interview * * * [and] the detectives immediately ceased questioning and returned the defendant to the holding cell." The trial court further found that prior to the second interview, "which the defendant was responsible for initiating * * * he * * * signed a waiver form after being re-advised of his rights." Finally, the trial court found that after this waiver, "the defendant was not clear that he wanted an attorney present prior to making a statement. He simply began making a statement without counsel."
[*P14] A review of the record confirms that there is sufficient competent credible evidence from which the trial court could make these findings of fact.

State v. Duncan, 2007-Ohio-4079. Turning to Duncan's second assignment of error about his revoking his Miranda waiver, the court held:

[*P18] Second, Duncan asserts that, after he executed the waiver of his Miranda rights, he thereafter again unequivocally manifested a desire to have a lawyer present before making his statement. This claim is however belied by the tape-recorded interview.
[*P19] Duncan focuses on the a colloquy between himself and Detective Estep where in response to Estep's question whether Duncan wanted to now talk to them without a lawyer, Duncan answered: "no. I want a lawyer first * * *." However, in considering this evidence, we must look at the entire conversation and what occurred thereafter. After Detectives DeWine and Estep gave Duncan his ...

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