United States District Court, S.D. Ohio, Western Division, Dayton
CHARLES E. DUNCAN, Petitioner,
TIMOTHY SHOOP, Warden, Chillicothe Correctional Institution Respondent.
H. Rice District Judge.
ORDER SUBSTITUTING RESPONDENT; SECOND SUPPLEMENTAL
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
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).
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.
raises four Objections which will be considered
One: The Transcript of the Motion to Suppress Hearing is
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.)
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
(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.”
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).
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 ...