Thoma v. Warden, Pickaway Corr. Inst.

WESTE BRIAN THOMA, Petitioner, v. WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent.

No. 1:20-cv-282

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

September 21, 2021

Magistrate Judge Michael R. Merz

DECISION AND ENTRY ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (Doc. 27) AND DISMISSING THIS CASE

Timothy S. Black, United States District Judge

This case is before the Court pursuant to the Order of General Reference to United States Magistrate Judge Michael R. Merz. On January 25, 2021, the Magistrate Judge issued a Report and Recommendations (the “Supplemental Report”). (Doc. 27). Petitioner filed objections to the Supplemental Report. (Doc. 28). Respondent responded to those objections. (Doc. 29).

I. Background

This is a habeas corpus case, brought by Petitioner Brian Thoma with the assistance of counsel, Jennifer Kinsley. Thoma seeks relief from his conviction in the Hamilton County Court of Common Pleas on eight counts of sexual battery and seven counts of gross sexual imposition with the victim being his fifteen-year-old adopted daughter. He was sentenced to 336 months, or 28 years, of imprisonment.

On November 18, 2020, the undersigned adopted the Magistrate Judge's well-reasoned and thorough Report and Recommendations (Doc. 20) discussing the merits of Petitioner's grounds for relief and dismissing with prejudice the Petition (the “Merit Report”). (Doc. 24). The Court adopted the Merit Report after the time for filing objections had lapsed and no objections were filed. (Id.)

One month later, Petitioner's counsel filed a “motion to alter or amend and for relief from judgment.” (Doc. 23). The motion made two requests: (1) relief from judgment to the extent the Court adopted the Merit Report because he had not filed objections; and (2) that the Court alter or amend its prior Order adopting the Merit Report because the Merit Report contained “key errors.” (Id.).

In support of the request for relief from judgment, Petitioner claimed excusable neglect on the part of counsel. (Id.) Counsel's claim of excusable neglect was that the Court's ECF notification related to the Merit Report was only received by her personal, backup email address and not her work email address. (Id. at 9-11). The Magistrate Judge, on two occasions, debunked counsel's claim that the ECF notification for the Merit Report was not sent to her work email address. (See Doc. 24; Doc. 27 at 3-6).

However, in the Supplemental Report, the Report at issue in this Order, the Magistrate Judge recommends that: (1) the Court treat Petitioner's arguments in support of altering or amending as objections to the Merit Report; and (2) grant Petitioner's request for relief from judgment to the limited extent that he has not presented objections. (Id. at 6).^[1] The Magistrate Judge then analyzed Petitioner's objections to the Merit Report. (Id. at 6-15).

The undersigned agrees with the Magistrate Judge's recommendation on the motion for relief from judgment and treating Petitioner's motion to alter or amend as objections to the Merit Report. Thus, in effect, the Supplemental Report is a supplement to the Merit Report. (Id. at 6-15).^[2] And, this Court is tasked to review, de novo, those portions of the Magistrate Judge's Merit and Supplemental Reports that have been properly objected to, whether the Magistrate Judge erred on any of those portions, and whether Petitioner is entitled to relief in this habeas petition.

II. Review of Petitioner's Objections to Supplemental Report

Petitioner asserts six objections to the Supplemental Report. (Doc. 28). As discussed infra, none are well-taken.

A. Standard of Review

Pursuant to 28 U.S.C. § 636(b), the District Court may refer dispositive motions to a United States Magistrate Judge. Upon such reference, the Magistrate Judge must promptly submit a Report and Recommendation, providing a recommended disposition of the motion, as well as proposed findings of fact. Id.; Fed.R.Civ.P. 72(b). Within 14 days of service of a Magistrate Judge's Report, the parties may serve and file specific written objections to the Report for the District Judge's consideration. Id.

If objections are filed, the District Judge “must determine de novo any part of the magistrate judge's disposition that has been properly objected to…[and] may accept, reject, or modify the recommended disposition….” Fed.R.Civ.P. 72(b)(3). Thus, the district judge is not required to review de novo every issue raised in the original motion, but only those matters from the Report and Recommendation that received proper objections. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986).

“[W]hen no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed.R.Civ.P. 72 advisory committee's notes (citations omitted). The Supreme Court has stated: “It does not appear that Congress intended to require district court review of magistrate judge's factual or legal conclusions, under a de novo or any other standard, when neither party objects to these findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985).

A. Ground 1

In his first ground for relief, Petitioner contends that his trial counsel provided ineffective assistance in violation of the Sixth Amendment by failing to present exculpatory testimony from certain witnesses at trial. Petitioner presented affidavits from these would-have-been witnesses to the Ohio courts in his petition for post-conviction relief. (Doc. 20, PageID# 993). The Magistrate Judge recommended dismissing this ground.

Petitioner asserts one objection on this ground, arguing that “[t]he Magistrate Judge incorrectly discounted the affidavits Thoma presented under the Strickland v. Washington ineffective assistance of counsel standard.” (Doc. 28 at 1); Strickland v. Washington, 466 U.S. 668 (1984). Petitioner specifically contends that, “[i]n resolving this issue, the Magistrate Judge implied that only a prior inconsistent statement from the victim would satisfy this standard.” (Doc. 28 at 2). In fact, the Magistrate Judge does not imply this. Yes, the Magistrate Judge does point out that the affidavits do not raise the issue of a prior inconsistent statement. (Doc. 27 at 7). Additionally, though, the Magistrate Judge also states that the potential witnesses' affidavits do not provide relevant first-hand accounts. (Id.). The Merit Report further explains why these affidavits lack probative value. (Doc. 20 at 10).

The Magistrate Judge nowhere implies that a petitioner must demonstrate counsel's failure to present evidence of a prior inconsistent statement to meet the Strickland standard. Rather, the Magistrate Judge was simply explaining the shortcomings of the Petitioner's arguments about the affidavits at-issue. The Court, furthermore, agrees with the Magistrate Judge's ultimate conclusion that “Petitioner has simply not demonstrated that the Twelfth District [of Ohio's] application of Strickland was unreasonable.” (Doc. 27 at 8).

Petitioner's first objection is overruled.

B. Ground 2

In his second ground for relief, Petitioner contends that his trial counsel provided ineffective assistance in violation of the Sixth Amendment during the plea-bargaining stage because trial counsel failed to engage in meaningful plea negotiations and failed to heed Petitioner's request to submit to a polygraph examination, the results of which would purportedly help obtain a plea bargain.

Petitioner's second objection specifically contends that “the Magistrate Judge failed to consider the wealth of Supreme Court case law around the importance of plea negotiations and defense counsel's role in negotiating a plea.” (Doc. 28 at 2). This statement is simply not true. (See Merit Report, Doc. 20 at 14-15; Doc. 27 at 8-10). Petitioner's second objection is overruled.

C. Ground 3

In his third ground for relief, Petitioner states that his sentence violates the Eighth Amendment because it is disproportional. The Magistrate Judge recommended dismissing this ground because it was both procedurally defaulted and failed on the merits. Petitioner asserts two objections.

Petitioner's first contends that “[t]he Magistrate Judge improperly determined that Thoma's Eighth Amendment proportionality claim was procedurally defaulted because he failed to exhaust a federalized claim in state court.” (Doc. 28 at 2). Petitioner admits that he did not present this federal claim in the state court. However, he contends that a habeas claim is not procedurally defaulted when the “nuts and bolts” of the claim are presented to the state court. (Id.).

This is not well-taken. The Magistrate Judge, when issuing the Merit Report, provided a thorough and well-reasoned analysis when determining that Petitioner had not fairly presented this claim to the Ohio courts. (Doc. 20 at 16-19). Petitioner's objection does nothing to demonstrate this was in error. (Doc. 28 at 2).

Petitioner next contends that “[t]he Magistrate Judge erroneously rejected Thoma's proportionality claim without considering the wealth of evidence he presented in state court to demonstrate that his sentence is disproportionate to those imposed against similar crimes by similarly-situated defendants.” (Doc. 28 at 3). Petitioner suggests that the Magistrate Judge should have conducted a review of the “hundreds of gross sexual imposition and sexual battery cases” Petitioner cited to determine that his sentence is not proportional. In support of this objection, Petitioner claims that “the Supreme Court analyzes proportionality claims by referencing similar offenders and similar offenses.” (Id. at 3 (citing Solem v. Helm, 463 U.S. 277, 292 (1983)).

This is not an accurate reading of Solem. The...