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Thompson v. Larose

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

September 18, 2019

CHRISTOPHER LaROSE, Warden Respondent.



          David A. Ruiz, United States Magistrate Judge.

         Petition Stephen Thompson (“Thompson” or “petitioner”) has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is before the magistrate judge pursuant to Local Rule 72.2(b)(2). Petitioner is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case of State of Ohio v. Thompson, No. 13-CR-0137 / 13-CR- 0079 (Wayne County March 17, 2014). (R. 1, PageID #: 1; R. 5-1, RX 15, RX 27 (resentencing on remand).) Thompson's petition stems from his conviction for felonious assault and other crimes in the Wayne County (Ohio) Court of Common Pleas. The respondent has filed a Return of Writ (R. 5) and Thompson has filed a Traverse (R. 10). For the following reasons, the magistrate judge recommends that the petition be denied.


         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012) (“State-court factual findings are presumed correct unless rebutted by clear and convincing evidence.”) The Ninth District Court of Appeals (“state appellate court”) summarized the facts underlying petitioner's conviction as follows:

Sergeant Chris Conwill of the Wooster Police Department responded to a dispatch indicating that there was a vehicle at a nearby fast food restaurant with a possibly intoxicated driver. Thompson was later identified as the driver of the vehicle. After locating the vehicle identified in the report, Sergeant Conwill followed it as it drove away from the restaurant and observed the vehicle make several traffic infractions. Sergeant Conwill saw the vehicle make an abrupt turn into a private driveway that went through the front yard of a residence. Sergeant Conwill interpreted this abrupt turn as an effort to evade police so he followed the vehicle, parked behind it, and pointed a spotlight at it.
Sergeant Conwill approached the vehicle, which was still in the driveway, facing the residence, and he observed the person in the front passenger seat vomit outside of the passenger side. Sergeant Conwill positioned himself behind the driver's side of the vehicle and he made eye contact with Thompson as Thompson looked over his shoulder. Around the time of this interaction, Trooper Keith McClintock of the Ohio State Highway Patrol also arrived on the scene, exited his cruiser, and drew his sidearm as the vehicle's passenger door opened.
After seeing Sergeant Conwill, Thompson revved his vehicle's engine, accelerated, and started to drive further down the driveway towards the residence. He then turned left onto the yard and maneuvered his vehicle around a tree before driving back towards the road as he straddled the driveway and the yard. Thompson was driving towards the road at approximately 20 to 30 miles per hour while fishtailing and heading directly toward Trooper McClintock, who was fearful for his life as he stood in a narrow area between a police cruiser and a nearby embankment. Trooper McClintock subsequently moved left out of the vehicle's path and fired three rounds at it. Thompson then crashed the vehicle into the embankment, got out of the vehicle, and began to flee on foot. Trooper McClintock chased Thompson on foot and eventually tackled him. During the ensuing entanglement, Thompson hit Trooper McClintock in the head with a flashlight before Sergeant Conwill reached their location and used a stun-gun to immobilize Thompson.
Thompson was arrested and transported to the hospital. After obtaining a warrant, the hospital staff drew blood from Thompson, which revealed a blood alcohol content of .17, over twice the legal limit, and the presence of marijuana. Once his medical treatment was completed, Thompson was escorted to the county jail. After Sheriff Deputy Kirk Shelly instructed Thompson to use the restroom and change, Thompson grabbed the deputy by the throat with such force that he drew blood and tore skin from the deputy's neck.
The Grand Jury indicted Thompson on the following: (1) two counts of felonious assault on a peace officer in violation of R.C. 2903.11(A)(2), a felony of the first degree; (2) two counts of assault on a peace officer in violation of R.C. 2903.13(A), a felony of the fourth degree; (3) one count of obstructing official business in violation of R.C. 2921.31(A), a felony of the fifth degree; (4) one count of OVI in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree; and (5) one count of OVI in violation of R.C. 4511.19(A)(1)(c), a misdemeanor of the first degree.
The matter proceeded to a jury trial during which the trial court allowed the State to amend the indictment to include an allegation that the offenses occurred in Wayne County. The trial court also granted Thompson's Crim.R. 29 motion for acquittal on one of the felonious assault counts. The jury found Thompson guilty on the remaining counts.

(R. 5-1, RX 22; State v. Thompson, No. 15AP0016, 2016 WL 3570469, at *1-*2 (Ohio Ct. App. June 30, 2016).)

         On direct appeal, Thompson raised seven assignments of error:

1. The jury was denied expert testimony regarding the defendant's reaction time and expert testimony regarding the position of Trooper McClintock; as a result, the jury was deprived of evidence relevant to the issue of the defendant's intent as well as the credibility of various prosecution witnesses.
2. The trial court erroneously failed to instruct the jury that, in order to find the defendant guilty of the peace officer specifications alleged in Counts 1, 3, and 7, the jury was required to find that the victim was acting in the line of duty at the time of the assault.
3. The jury verdicts reflect a second-degree felony in Count 1 and first degree misdemeanors in Count 3 and 7.
4. The trial court erred in amending the indictment to include the allegation that the offenses were committed in Wayne County.
5. Stephen Thompson's conviction for felonious [assault] of Trooper McClintock in Count 1 is not supported by legally sufficient evidence as required by state and federal due process.
6. The trial court abused its discretion and violated Stephen Thompson's due process rights and right to an impartial jury by imposing an arbitrary time limit on voir dire, and failing to excuse Juror 22.
7. The trial court failed to make the necessary statutory findings to support the imposition of consecutive sentences.

(R. 5-1, RX 19, PageID #: 118-119.) On June 30, 2016, the court of appeals affirmed the criminal convictions, but sustained the seventh assignment of error. (R. 5-1, RX 22, PageID #: 220-223; Thompson, 2016 WL 3570469, at *10-*12.) The judgment of sentencing was reversed and remanded, insofar as the court found that the judgment of consecutive sentences was not supported by sufficient findings under Ohio Rev. Code § 2929.14(C)(4). (R. 5-1, RX 22, PageID #: 223; Thompson, 2016 WL 3570469, at *11.) On remand, Thompson was resentenced on February 28, 2018. (R. 5-1, RX 27.)

         Thompson appealed his convictions to the Supreme Court of Ohio, raising the following four propositions of law:

1. The physical ability of a motorist to perceive and react while driving is properly the subject of expert testimony.
2. A criminal defendant is denied his constitutional right to present a full defense when the trial court completely bars the defense expert from testifying on the basis that a small portion of the expert report is inadmissible.
3. To obtain a conviction for felonious assault based upon a vehicle's near collision with the alleged victim, the State must prove, beyond a reasonable doubt, that the driver was able to perceive the alleged victim and had adequate time to react and avoid that individual.
4. Pelfrey errors are not subject to plain error analysis.[1]

(R. 5-1, RX 24, PageID #: 228.) On February 22, 2017, the Supreme Court of Ohio declined jurisdiction of his appeal. (R. 5-1, RX 26; State v. Thompson, 148 Ohio St.3d 1410, 69 N.E.3d 750 (2017).)

         On April 19, 2018, Thompson filed a petition for a writ of habeas corpus in this court, alleging three grounds for relief:

1. Stephen Thompson was denied his right to present a complete defense when the trial court excluded all of his experts and their testimony in violation of the Sixth and Fourteenth Amendments of the federal Constitution.
2. The evidence is insufficient under the Fourteenth Amendment to sustain a conviction for Felonious Assault on Trooper McClintock under Jackson v. ...

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