Thompson v. Foley

CRAIG A. THOMPSON, Petitioner, v. KEITH FOLEY, Warden, Grafton Correctional Institution¹ Respondent.

Case No. 3:18-cv-117

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

August 31, 2020

District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Craig Thompson, is ripe for decision on the merits. The Court has before it the Petition (ECF No. 1), the State Court Record as originally filed (ECF No. 11), the Return of Writ (ECF No. 12), the Supplemental State Court Record (ECF No. 69), and Petitioner's Traverse (ECF No. 88).

Litigation History

On March 5, 2013, Thompson was indicted by a Montgomery County grand jury on one count of complicity to commit burglary in violation of Ohio Revised Code § 2911.12(A)(1) and2923.03(A)(2)(Indictment, Count Three, State Court Record, Ex. 11, PageID 39). Thompson was jointly indicted with Bradley Burns who was charged with burglary in Count One and abduction in violation of Ohio Revised Code § 2905.02(A)(2) in Count Two.

After a mistrial in April 2014, Thompson filed a motion to dismiss on double jeopardy grounds which the trial court denied. The Second District Court of Appeals affirmed the denial. State v. Thompson, 2014-Ohio-5583 (Ohio App. 2^nd Dist., Dec. 19, 2014), appellate jurisdiction declined, 143 Ohio St. 3d 1405 (2015). A second jury found Thompson guilty as charged and he was sentenced to six years imprisonment. On direct appeal the Second District affirmed. State v. Thompson, 2016-Ohio-7521 (Ohio App. 2^nd Dist. Oct. 28, 2016), appellate jurisdiction declined, 149 Ohio St. 3d 1408 (2017).

The Return of Writ recounts numerous additional filings in the Second District and in the Supreme Court of Ohio (ECF No. 12, PageID 2163-66). These will be referred to herein only as needed.

On January 11, 2017, Thompson filed an application to reopen his direct appeal under Ohio R. App.26(B)(ECF No. 11, Ex. 44). The Second District denied that application originally (Id. at Ex. 47) and on reconsideration (Id. at Ex. 49). The Supreme Court of Ohio declined appellate review. Id. at Ex. 53.

On February 16, 2017, Thompson filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. Id. at Ex. 54. The trial court denied the petition. Id. at Ex. 57.

Thompson filed a second petition under Ohio Revised Code § 2953.21 on June 5, 2018 (Petition, State Court Record, ECF No. 11-1, Ex. 67). The trial court granted the State summary judgment (Decision, Supp. State Court Record, ECF No. 69, Ex. 76). Thompson appealed and the Second District affirmed. State v. Thompson, 2019-Ohio-5140 (Ohio App. 2d Dist. Dec. 13, 2019), appellate jurisdiction declined, 2020-Ohio-3365 (Jun. 23, 2020).

Thompson filed his Petition for habeas corpus in this Court on April 12, 2018, pleading the following grounds for relief:

Ground One: The trial court committed prejudicial error in overruling appellant's pretrial motion to suppress.

Supporting Facts: The court made an erroneous ruling by overruling the defendant's motion to supress [sic] where the ruling was adverse to Thompson based off bias of the judge. Thompson did not consent to the search of his vehicle although the police searched anyway. Thompson was detained by police during a traffic stop where he was question by the police for over 3 hours before being escorted to District 10 headquarters where questioning continued for an additional 2 and a half hours. Police claim to have pulled Thompson over for a minor traffic violation yet Thompson was detained and questioned for over 6 hours. Thompson was not read his Miranda warnings yet statements made to police were still admitted at trial. Thompson had issued a subpeona [sic] for the in car cruiser cam recordings to support his assertions of an illegaql [sic] search and seizure, but the Sheriffs Department deleted the recordings in violation of direct orders from the Sheriff himself. All evidence obtained from the traffic stop should have been ruled as inadmissable [sic] at trial but the motion was overruled.

The lower court ruled that Miranda is only necessary when a reasonable person considers their situation to be in custody. However, the courts ruled that since Thompson did not testify, they did not know what Thompson was thinking. The rule does not pertain to Thompson himself but what a reasonable person would think. Therefore, the courts applied a subjective view and not an objective view.

After Thompson was stopped for his traffic violation, he was placed into the back of a police cruiser and questioned by the Deputy for several hours on the side of the road. Thompson was not allowed to possess his own cell phone or get out of the car without an escort by serveral [sic] deputies. Thompson's movements were seriously diminished.

After several hours of questioning at the scene of the traffic stop, the Deputy transported Thompson to the District 10 headquarters for further questioning with Detective Saunders. Upon arrival at headquarters, Thompson was escorted into a room with one way in and one way out. Saunders sat himself between Thompson and the door and began asking more questions of Thompson.

Saunders questioned Thompson about his relationship with the primary offender Bradley Burns. Thompson explained that he knew him and that the two were somewhat friends. Thompson admitted that he had seen Burns earlier that evening when Burns had asked for a ride to Meijer. Thompson admitted to taking Burns to Meijer and then told Detective Saunders that he had dropped Burns off at his girlfriends house in Huber Heights. Thompson changed his story as the interview continued and finally admitted that Thompson had dropped Burns at Meijer and had not seen him since.

During the interview Saunders asked Thompson why he was sitting on Heather Hollow (the street where the crime occurred) that night. Thompson told Detective Saunders that he was sitting in his truck waiting on his girlfriend to come back into town so he could see her.

Thompson stated that due to the amount of time he waited, he had fell [sic] asleep waiting for her. Thompson then told Saunders that when the police arrived in the area they began shining their lights into the truck of Thompson and woke him up. Thompson admitted that he had been laying back in his seat sleeping.

These statements would prove to be very detrimental to Thompson at trial. Thompson had not been given Miranda warnings before making these statements and as Detective Saunders would testify later, Saunders did not read Thompson his rights because "his father is in law-enforcement and Thompson knew his rights."

After the judge made the ruling the judge recussed [sic] himself after a complaint was filed with the Ohio Supreme Court alleging that the judge had had ex parte conversations with the victim in regards to Thompson's punishment. The new judge denied the original counsel's request to revisit the Motion to Supress [sic] and allowed all evidence against Thompson to be admitted at trial despite Constitutional Violations. Prior to the second trial, Thompson's new counsel never even filed a new motion to supress [sic] or an appeal on the decision from the previous Motion to Supress [sic].

(Petition, ECF No. 1, PageID 6-7).

Ground Two: The trial court committed prejudicial error in admitting hearsay evidence not subject to proper authentication.

Supporting Facts: The trial court allowed the admittance of text messages without proper authentication as the messages were prepared for trial and were thus "testimonial". Bathini claims to havetaken her phone to the prosecutor to retreive [sic] messages from within her phone. She claims that an "I.T." guy in the prosecutor's office pulled over eighty pages of texts from Thompson. Bathini was the only person to authenticate the messages although she is not the keeper of records and admitted to deleting her side of the conversation thus presenting only testimonial evidence to the jury without a keeper of the records, or the "I.T." guy, authenticating that the messages shown were from Thompson at all. The Confrontation Clause of the Fourth [sic] Amendment would require proper authentication. Thompson was prejudiced by allowing a testimonial conversation, prepared only for trial, to be heard by the jury.

Id. at PageID 7-8.

Ground Three: Appellant was subject to the ineffective assistance of counsel as guaranteed to him under both the Sixth and Fourteenth Amendments.

Supporting Facts: Thompson's had retained counsel (Thomas Hansen) after being charged with one count of Complicity to Commit a Burglary. During the arraignment, and the Motion to Supress [sic], counsel failed to call any witnesses to aid the Defense, including Thompson himself.

Thompson had asserted that the police performed an illegal search and seizure of his vehicle. While counsel tried to obtain the recordings from the Deputies in car cruiser cams, the Deputy contended that the tapes were deleted in accordance to procedure. With the cruiser cam videos being intentionally deleted in an effort to cover up the police shortcomings, the only possible remedy counsel had was to put Thompson on the stand to refut [sic] the testimony that Thompson had agreed to the search. Counsel failed to call Thompson or other witnesses to aid in Thompson's defense.

Thompson had also supplied counsel with physical evidence to impeach statements that the tapes were erased in accordance with procedure. (Thompson had a copy of the policy and procedures from the sheriffs office) In fact, the orders of the Sheriffs office specifically state that all evidentiary tapes are to be kept until the conclusion of all court matters, including civil. The deputy did not keep the tapes, and by not putting Thompson on the stand, Thompson was denied his right to effective assistance of counsel. An attorney doing any investigation would have learned that the Deputy had to attend a 2 day seminar on

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