Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Helm v. Turner

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

June 14, 2018

TONY HELM, Petitioner,
v.
NEIL TURNER, Warden, North Central Correctional Complex, Respondent.

          William O. Bertelsman District Judge

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This is a habeas corpus case brought pro se by Petitioner Tony Helm to obtain release from his convictions in the Hamilton County Common Pleas Court. On order of Magistrate Judge Stephanie Bowman, the Respondent has filed a Return of Writ (ECF No. 8) and the state court record (ECF Nos. 5-7). Petitioner then filed his Reply (ECF No. 10). The Magistrate Judge reference in the case has been transferred to help balance the workload in the Western Division of this Court (ECF No. 11).

         Procedural History

         Petitioner was indicted by the Hamilton County grand jury on July 10, 2014, and charged with one count of burglary, one count of menacing by stalking, and one count of domestic violence, all arising from his contentious relationship with Megan Barnes. At trial the jury convicted him of burglary and menacing, but acquitted him of domestic violence. He was sentenced to an aggregate term of imprisonment of nine and one-half years. With the assistance of counsel, he took a direct appeal to the First District Court of Appeals which affirmed the judgment of the trial court. State v. Helm, 56 N.E. 3d 436, 2016-Ohio-500 (Ohio App. 1st Dist. 2016); appellate jurisdiction declined, 146 Ohio St.3d 1415 (2016).

         On May 16, 2016, Petitioner filed a pro se Application to Reopen his direct appeal under Ohio R. App. P. 26(B). The First District denied the Application as untimely. It also denied a motion for reconsideration and Helm did not appeal to the Ohio Supreme Court. Helm filed his Petition for Writ of Habeas Corpus in this Court on May 9, 2017, raising the following five grounds for relief:

Ground One: Trial counsel's performance was deficient per Grounds Two-Five in violation of his Sixth Amendment right of the United States Constitution.
Supporting Facts: Trial counsel did not object to the improper Howard charge, failed to object to the improper jury admonition, failed to object when the jury conducted deliberations without all 12 jurors present, and did not properly argue that the convictions were not sustained by the sufficiency and/or manifest weight of the evidence violating Petitioner's right to effective assistance of counsel per Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052 2052, 80 L.Ed.2nd 674. Trial counsel's failure to object and failure to convince the jury that a conviction could not be sustained by the sufficiency or the manifest weight of the evidence prejudiced Petitioner. Second, if counsel had been effective, Petitioner never would have been convicted. Therefore, Petitioner seeks to have this conviction overturned due to the ineffectiveness of trial counsel that clearly violated Petitioner's Sixth Amendment right to effective assistance of counsel.
Ground Two: Trial court erred to the prejudice of Petitioner by giving jury an improper Howard charge denying him due process and equal protection of law per the XIV Amendment of the United States Constitution.
Supporting Facts: Ohio law recognizes State v. Howard (1989), 42 Ohio St.3d 18, 537 N.E.2d 188 as supplemental jury instructions to encourage a deadlocked jury to reach a verdict by asking them to reconsider their opinions in light of the fact that others do not agree and to try to conscientiously to reach a verdict. Instead of using the Ohio Supreme Court approved jury instruction, the trial court gave a coercive instruction. “Why don't we try for maybe half an hour and see if you all are able to come to an agreement.” Jurors were pressured to come to an agreement after 30 minutes denying Petitioner a fair trial, due process & equal protection of law as other similarly situated defendants did not receive a coercive and unfair jury instruction. Therefore to correct this manifest injustice, the only solution is correct this plain error under Crim.R. 52(B) by remanding this case back to the trial court for a retrial. This type of error cannot be repaired by nunc pro tunc or other admisistrative [sic] remedies because the fundamental nature of this trial was so fatally flawed by this coercive jury instruction that denied Petitioner his rights to a fair trial, due process & equal protection of law.
Ground Three: The trial court erred to the prejudice of Petitioner by not properly admonishing the jury when they separated during trial denying him a fair trial, due process, and equal protection of law per the VII & XIV Amendments of the United States Constitution.
Supporting Facts: O.R.C. 2945.34 says, “If the jurors are permitted to separate during a trial, they shall be admonished by the court not to... form or express any opinion thereon, until the case is finally submitted to them.” The trial court never told the jurors not to form or express an opinion on the case until the matter was submitted to them. Since the proper instruction was not given by the trial court, it is impossible to say if the jury violated petitioner's right to a fair trial under the VII Amendment of the United States Constitution and of due process and equal protection under law under the XIV Amendment of the United States Constitution. Since this trial was so fatally flawed Petitioner requests that he be remanded back to the trial court.
Ground Four: The trial court erred to the prejudice of Petitioner by not declaring a mistrial when the jury conducted deliberations without all 12 members present denying Petitioner's right to a fair trial, due process and equal protection of law per the VII [sic] & XIV Amendments of the U.S. Constitution.
Supporting Facts: A juror left to feed a parking meter at which time the admonitions were given to the remaining 11 jurors. This matter is preserved in the trial transcript. Ohio courts have ruled in the case of State v. Fields, 5th Dist. Holmes Co. No. CA 584, 1998 Ohio App. Lexis 3541 (June 30, 1998) that when 2 jurors left, to have a smoke break and discussed the case this was a cause for a mistrial. A similar situation occurred here. Once the jury process had been so tainted, there was no easy to correct this error, and the trial judge should have moved for a mistrial. Petitioner was denied his right to a fair trial under the VIIth [sic] Amendment of the United States Constitution and also his rights to due process and equal protection of law under the XIV Amendment of the United States Constitution. The only solution to this manifest injustice in this case is to remand this case back to the trial court for a new trial as the error committed here has so tainted the result that Petitioner did not receive a fair trial.
Ground Five: The evidence was insufficient to sustain Petitioner's convictions denying him due process and equal protection of law per the XIV Amendment of the United States Constitution.
Supporting Facts: To convict Petitioner of Burglary the State would have to prove beyond a reasonable doubt that Petitioner trespassed into the residence. Because Petitioner was living at the residence, he did not trespass and was not guilty of burglary. Petitioner had a key to the front door of the residence. Petitioner had spent the previous night at the residence with the alleged victim, Ms. Barnes. Barnes left for work while Petitioner was still at the residence. Barnes testified on the date of the alleged crime Petitioner was staying with her. She never testified that Petitioner should not return to the residence. There was no physical evidence to show that Petitioner was the person who allegedly burglarized the residence. Therefore this conviction for burglary should be reversed. In a similar way, the conviction for menacing by stalking should be reversed because the State did not prove that Petitioner by engaging in a pattern of conduct caused Barnes to believe that he would cause her physical harm or caused her mental distress. Barnes texted Petitioner whom she allegedly feared for her safety. Had Barnes truly feared for her safety she would not have continued texting Petitioner. Therefore the conviction for menacing by stalking should be reversed.

(Petition, ECF No. 3 Page ID # 39, 41, 42, 44, and 46.)

         Analysis

         Ground One: Ineffective Assistance of Trial Counsel

         In his First Ground for Relief, Petitioner argues he was denied effective assistance of trial counsel in four ways: when his trial attorney (1) failed to object to the improper Howard charge, (2) failed to object to the improper jury admonition, (3) failed to object when the jury conducted deliberations without all twelve jurors present, and (4) did not properly argue that the convictions were not sustained by the sufficiency and/or manifest weight of the evidence.

         Each of these claims of ineffective assistance of trial counsel was capable of being raised on direct appeal because each of them depends on assessing counsel's conduct which would have been reflected in the trial transcript. Under Ohio law, claims of ineffective assistance of trial counsel which could have been raised on direct appeal but were not are barred by res judicata from being raised in a later proceeding. Thus if Helm had attempted to raise these claims of ineffective assistance of trial counsel in a later proceeding, for example, a petition for post-conviction relief under Ohio Revised Code § 2953.21, the Ohio courts would have found them barred by res judicata.

         The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.