United States District Court, N.D. Ohio, Eastern Division
PATRICIA GAUGHAN, JUDGE.
REPORT AND RECOMMENDATION
A. Ruiz, United States Magistrate Judge.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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).)
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
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
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
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.)
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
(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).)
April 19, 2018, Thompson filed a petition for a writ of
habeas corpus in this court, alleging three grounds for
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. ...