The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
FRANK J. THACKER,
Petitioner, : Case No. 1:21-cv-704
- vs - District Judge Matthew W. McFarland
Magistrate Judge Michael R. Merz
WARDEN, Noble Correctional
Institution,
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATION
This habeas corpus case, brought pro se by Petitioner Frank J. Thacker under 28 U.S.C. §
2254, seeks relief from Thacker’s 2018 conviction in the Common Pleas Court of Lawrence
County. It is before the Court on Petitioner’s Objections (ECF No. 24) to the undersigned’s Report
and Recommendation recommending that the Petition be dismissed with prejudice (the “Report,”
ECF No. 20). District Judge McFarland has recommitted the case to the undersigned for
reconsideration in light of the Objections (ECF No. 25).
The Lawrence County Grand Jury indicted Thacker on three counts of rape in violation of
Ohio Revised Code § 2907.02(A)(2), all first-degree felonies; one count of burglary in violation
of Ohio Revised Code § 2911.12(A)(1), a second-degree felony; two counts of kidnapping in
violation of Ohio Revised Code § 2905.01(A)(3) and (A)(4), second-degree felonies; and one
count of abduction in violation of Ohio Revised Code § 2905.02(A)(1), (B), a third-degree felony.
All seven counts included firearm specifications.
A jury convicted Thacker on one count each of rape, burglary, kidnapping, and abduction
with a firearm specification, and not guilty on the two remaining rape counts, the one remaining
kidnapping count, and the remaining firearm specifications. The trial court sentenced Thacker to
a total prison term of twenty-seven years. State v. Thacker, 2020 Ohio 4620 (Ohio App. 4th Dist.,
Sept. 16, 2020). The Fourth District affirmed the conviction and sentence. Id., appellate
jurisdiction declined, 161 Ohio St. 3d 1408 (2021).
Grounds One through Five: Procedurally Defaulted
Thacker filed a habeas corpus Petition with six grounds for relief (ECF No. 1). The Report
concluded that Grounds One through Five were procedurally defaulted because they were not
presented to the Supreme Court of Ohio on direct appeal (Report, ECF No. 20, PageID 1758-59).
Thacker admits he procedurally defaulted these five claims, but asserts the Court can nevertheless
consider them on the merits if he can establish excusing cause and prejudice or that a miscarriage
of justice will result if the claims are not addressed on the merits (Objections, ECF No. 24, PageID
1777). He concedes that to satisfy the latter exception, he must show he is actually innocent. Id.,
citing Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006).
Regarding actual innocence, Thacker asserts he has consistently argued since his arrest that
he is not guilty of these crimes. (Objections, ECF No. 20, PageID 1778). Unfortunately for
Thacker’s position, however, a consistent denial of guilt is insufficient to excuse procedural
default. Rather, the Supreme Court has limited the actual innocence exception to cases where a
habeas petitioner presents new evidence of actual innocence, evidence not heard by the trial jury.
“[A] petitioner does not meet the threshold requirement unless he
persuades the district court that, in light of the new evidence, no
juror, acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.” Schlup, 513 U. S., at 329, 115 S. Ct. 851, 130
L. Ed. 2d 808; see House, 547 U. S., at 538, 126 S. Ct. 2064, 165 L.
Ed. 2d. 1 (emphasizing that the Schlup standard is “demanding” and
seldom met).
McQuiggin v. Perkins, 569 U.S. 383, 386-87 (2013). The quality of the evidence required has
been spelled out by the Sixth Circuit:
such a claim requires petitioner to support his allegations of
constitutional error with new reliable evidence -- whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence -- that was not presented at trial." Schlup,
513 U.S. at 324. The Court counseled however, that the actual
innocence exception should "remain rare" and "only be applied in
the 'extraordinary case.'" Id. at 321.
Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005).
Thacker has presented no new evidence of his actual innocence and thus does not qualify
for that exception to procedural default.
Thacker also claims that his attorney’s failure to present these claims on direct appeal to
the Ohio Supreme Court constituted ineffective assistance of appellate counsel which will also
excuse procedural default. The Supreme Court has held that ineffective assistance of appellate
counsel will excuse procedural default, but only if it occurs in a proceeding in which a petitioner
is constitutionally entitled to the effective assistance of counsel. That does not include appeal to
the Ohio Supreme Court. The right to appointed counsel extends to the first appeal of right and
no further. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417 U.S. 600 (1974).
Ineffective assistance of counsel can excuse procedural default only when it occurs in a proceeding
where a defendant is constitutionally entitled to counsel under the Sixth Amendment. Wainwright
v. Torna, 455 U.S. 586 (1982)(where there is no constitutional right to counsel there can be no
deprivation of effective counsel); Riggins v. Turner, 1997 U.S. App. LEXIS 6115, *5 (6th Cir.
1997); Barkley v. Konteh, 240 F. Supp. 2d 708, 714 (N.D. Ohio 2002).
Because appeal to the Supreme Court of Ohio is discretionary and not a matter of right, the
Sixth Amendment guarantee of effective assistance of counsel does not apply. To put it another
way, even if Thacker’s counsel at the Supreme Court level performed in a way that would have
counted as ineffective assistance at either trial or on appeal of right, that does not act as excusing
cause and prejudice.
Thacker’s First through Fifth Grounds for Relief are procedurally defaulted and should be
dismissed on that basis.
Ground Six: Jury Misconduct
In his Sixth Ground for Relief, Thacker argues his right to a fair trial was denied because:
Sub-claim One: Juror Hankins who was biased against him participated in deliberating and
returning the guilty verdict despite his objection to her sitting; and
Sub-claim Two: the jury considered “evidence” – an unspent shotgun shell – which fell into view
when the jury opened the evidence bag containing the victim’s urine-soaked sweatpants that police
collected at the scene.
These sub-claims require separate analysis.
Sub-claim One: Thacker spends considerable time in his Objections arguing the merits of his
claim that Juror Hankins was prejudiced against him (ECF No. 24, PageID 1786-87). But the
Report did not disagree with Thacker’s sub-claim one on the merits. Instead, the Report
concluded:
The claim relating to Juror Hankins is procedurally defaulted
because it was not raised on direct appeal to the Fourth District or to
the Supreme Court of Ohio. Moreover, it was not included in the
Petition and may not be added at the reply stage of the proceedings.
Jalowiec v. Bradshaw, 657 F.3d 293 (6th Cir. 2011), citing Tyler v.
Mitchell, 416 F.3d 500, 504 (6th Cir. 2005).
(ECF No. 20, PageID 1766). In his Objections, Thacker makes no attempt to rebut that analysis.
He does not cite to any place in his Brief on Appeal to the Fourth District or his Memorandum in
Support of Jurisdiction in the Supreme Court of Ohio where he raised that claim. He also does not
cite any place in his Habeas Petition where he made that claim, which effectively denied
Respondent an opportunity to respond to it. The Magistrate Judge continues to conclude this
biased juror sub-claim is procedurally defaulted.
Sub-claim Two: The Second Shotgun Shell
Thacker presented his claim regarding the second shotgun shell to the Fourth District as
his Sixth Assignment of Error which the court decided as follows:1
{¶41} For his sixth assignment of error, Thacker contends that the
trial court erred in failing to declare a mistrial when, during jury
deliberations, a shotgun shell, which had not been introduced into
evidence, fell from the pocket of the victim's sweatpants, which had
been admitted into evidence.
1. Evidence and Testimony Concerning Shotgun Shell
{¶42} M.C. [the victim] testified that on the evening of the attack,
she was armed with a 20-gauge shotgun and carried it around her
house with her from room to room because she was afraid Thacker
1 The relevant portion of the Fourth District’s decision is reproduced in full because it contains a number of binding
factual findings which Thacker has not attempted to refute.
was going to come to her house and harm her. She testified that the
shotgun held one shell. She testified that when Thacker finally
returned her to her home, she changed out of the sweatpants she was
wearing and put on another pair of pants because during the ordeal
she had urinated in her sweatpants. Law enforcement collected the
urine-soiled sweatpants that she had been wearing and the state
introduced the sweatpants into evidence. The victim did not give any
testimony about whether she carried a second shotgun shell in her
sweatpants pocket, the second shell was not discovered during the
investigation, and it was not admitted into evidence.
{¶43} Detective Brad Layman, an investigator for the Lawrence
County Sheriff Department, testified that he collected M.C.’s
shotgun, which was a Rossi 20-gauge single shot hinge action
shotgun, with an external manual safety. Detective Layman
inspected the shotgun and found that it contained an unfired
Remington shotgun shell, which he removed and preserved. The
state introduced both the shotgun and the unspent shotgun shell into
evidence.
{¶44} The trial court gave instructions to the jury about the
presentation of evidence. The trial court instructed the jury that the
attorneys would present evidence and the court would enforce the
rules of evidence to determine admissibility. If an objection to
certain evidence is sustained, the jury would be instructed to
disregard that evidence and draw no inferences from it. The jury was
also admonished not to attempt to obtain any additional information
about the case outside the courtroom. They were instructed, “You
may only consider and decide this case upon the evidence received
at the trial. If you acquire any information from an outside source,
you must report it to the Court.”
{¶45} The trial court also instructed the jury, “Evidence is all the
testimony received from the witnesses, any exhibits admitted during
trial, facts agreed to by counsel and any facts which the court
requires you to accept as true.” The jury was instructed to consider
the exhibits that had been introduced and whether they are in the
same condition as originally taken by police officers.
{¶46} The trial court informed the jury that if they wanted to see the
sexual assault kit, the shotgun or the shotgun shell, they could ask
the bailiff and those exhibits would be brought into the jury room.
During deliberations, the jury requested to see certain medical
records that had not been admitted into evidence. The trial court
instructed, “In response to your question, be advised that you may
only consider the evidence presented at trial. * * * Those matters
include * * * the exhibits admitted during the trial.”
{¶47} The jury requested a pair of nitrile gloves, which the trial
court provided, and they opened the evidence bag containing the
urine-soiled sweatpants from which a second, unspent shotgun shell
fell. Outside the presence of the jury, the court explained:
COURT: * * * The jury had sent a request out in writing
for a pair of nitrile gloves. I responded affirmatively, had
those gloves provided. * * * it was my understanding that
after the gloves were given they opened up the evidence
bag containing the sweatpants that were admitted into
evidence and from within an unspent yellow shotgun shell
of twenty gauge caliber fell out onto the floor. And that was
then sent via the bailiff from the jury room to the main
office of the Court. * * * It is not evidence in this case as it
was not individually admitted into the record and shall not
come into the record at any point in this case.
Thacker's attorney moved for a mistrial on all counts, “because an
unsecured physical object that was not evidence was considered and
seen by the jurors uh, outside of the case. Again, it was not admitted
as evidence. Uh, I don't think that that can be a bell that's unrung and
for that purpose we're gonna move for a mistrial.” The trial court
denied the motion:
COURT: * * * I am denying the Motion because I have, I
can't reasonably conclude at this point that a shell falling
out has any prejudicial effect upon the State or upon the
Defendant in this case at this time * * *. I'm assuming that
the Motion will be renewed in the event that this is a jury
verdict returned in this case and there could be a different
result from the Court at that time, but I believe it is
premature now with the jury still deliberating and we are
having no idea if this is going, mattering at all to the jury.
So, the Motion at this time is Denied for Mistrial * * *.
Later in the proceedings, Thacker's attorney renewed his motion for
a mistrial:
DEFENSE: Your Honor, we'd like to move uh, and renew
again, our Motion from yesterday for a mistrial on all
charges. Uh, as you are aware, the shotgun shell fell out of
uh, sweatpants that the sweatpants were the only piece of
evidence that was admitted uh, through the case as an
exhibit, as, as uh, evidence. Uh, we believe that the
Defendant has been harmed because they saw and
considered evidence uh, that had not been admitted
properly and we believe that that potentially could affect
the outcome of this case.
The state opposed the motion, arguing, “I don't think there's any
reason at all, uh, in any, any portion of these proceedings to suggest
that the jury * * * for any reason has lost its way or * * * its verdict,
whatever it might be, has, has undermined, certainly not by uh,
finding an extraneous uh, item uh, during their deliberations.” The
trial court denied the motion:
COURT: * * * after the shell was removed, * * * I had law
enforcement take it and secure it. It is not with the jury. The
jury did not have possession of it. I don't find that that rises
to a level of uh, prejudice that would warrant a mistrial to
be granted in this case * * *.
Defense counsel did not request a hearing to question the jury about
whether they were prejudiced by the momentary presence of the
second shotgun shell, the trial court did not sua sponte question the
jury about it, nor did the trial court repeat its earlier jury instructions
about what constituted proper evidence in the case or advise the jury
to disregard the second shotgun shell.
2. Standard of Review
{¶48} Trial courts are entitled to wide latitude when considering
motions for mistrial. State v. Gunnell, 132 Ohio St.3d 442, 2012-
Ohio-3236, 973 N.E.2d 243, ¶ 28. “[W]hen a mistrial is premised
on the prejudicial impact of improper evidence or argument, the trial
court's evaluation of the possibility of juror bias is entitled to ‘great
deference.’ ” Id. quoting Ross v. Petro, 515 F.3d 653 (6th Cir. 2008).
“A mistrial should not be ordered in a cause simply because some
error has intervened. The error must prejudicially affect the merits
of the case and the substantial rights of one or both of the parties.”
Tingue v. State, 90 Ohio St. 368 (1914), paragraph three of the
syllabus. We review a trial court's grant or denial of a motion for
mistrial for abuse of discretion, because the trial court is best
situated to determine whether a mistrial is necessary. The phrase
“abuse of discretion” implies that the court's decision was
unreasonable, arbitrary, or unconscionable. State v. Kulchar, 4th
Dist. Athens No. 10CA6, 2015-Ohio-3703, ¶ 38.
3. Extraneous Physical Object in Jury Room
{¶49} Thacker argues that the second unspent shotgun shell was not
admitted into evidence but was “considered” by the jury when it fell
from the sweatpants and turned over by them to the bailiff. He
contends that the trial court was required to conduct an examination
of the jury to determine whether the jury's observation of the shell
biased the jury, citing State v. Phillips, 74 Ohio St.3d 72, 1995-
Ohio-171, 656 N.E.2d 643. However, State v. Phillips involved a
third party's “improper outside communication” with jurors and the
hearing that a court conducts to determine whether the
communication biased the jury, known as a Remmer hearing. See
Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450 98 L.Ed.2d
654 (1954).
{¶50} Here there was no “outside communication” with the jury, no
independent outside experimentation or research conducted by the
jury, and no threats or bribes of the jury. Rather, a physical object
was discovered by the jury and turned over to court personnel.
Although Thacker argues that it was “considered” by the jury, he
cites nothing in the record to support this allegation and it is entirely
speculative. Instead the record shows that the jury followed the trial
court's instructions to “consider and decide this case upon the
evidence received at the trial. If you acquire any information from
an outside source, you must report it to the Court” and “you may
only consider the evidence presented at trial. * * * Those matters
include * * * the exhibits admitted during the trial.” To the extent
the second shotgun shell was “information from an outside source,”
the jury reported it, turned it over to the Court, and did not consider
it in their deliberations. “Unless an appellant demonstrates
otherwise, we should assume that the members of the jury followed
their oaths and deliberated only upon the evidence adduced at trial.”
State v. Gunnell, 132 Ohio St.3d 442, 2012-Ohio-3236, 973 N.E.2d
243, ¶ 32.
{¶51} Even if we assume that the second shotgun shell was an
improper communication from an outside source, “‘not all
communications with jurors warrant a hearing for a determination
of bias.’” State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140
N.E.3d 616, ¶ 275, quoting White v. Smith, 984 F.2d 163, 166 (6th
Cir. 1993). “An allegation of an unauthorized communication with
a juror requires a Remmer hearing only when the alleged contact
presents a likelihood of affecting the verdict.” Id. citing United
States v. Frost, 125 F.3d 346, 377 (6th Cir. 1997). Here the trial
court determined that the second shotgun shell did not present a
likelihood of affecting the verdict. The shotgun and the loaded,
unspent shotgun shell were both admitted into evidence for the jury's
consideration. The jury heard the victim's testimony about her use
of the shotgun for personal protection and could inspect the shotgun
and one of the two shells. The trial court determined that a second
shell falling from the victim's sweatpants is not the sort of “contact”
that presents a likelihood of affecting the verdict.
{¶52} Thacker has failed to establish that the momentary presence
of the second shell, not marked or admitted into evidence, had any
likelihood of affecting the verdict. “[T]he defense must prove that
the juror has been biased.” State v. Phillips, 74 Ohio St.3d 72, 88,
1995-Ohio-171, 656 N.E.2d 643, 661, citing United States v.
Zelinka, 862 F.2d 92, 95 (6th Cir. 1988); United States v. Pennell,
737 F.2d 521, 532 (6th Cir. 1984), cert. denied, 469 U.S. 1158, 105
S.Ct. 906, 83 L.Ed.2d 921 (1985) (“In light of Phillips [455 U.S.
209, 201 S.Ct. 940, 71 L.Ed.2d 78 (1982)], the burden of proof rests
upon a defendant to demonstrate that unauthorized communications
with jurors resulted in actual juror partiality. Prejudice is not to be
presumed.”). Thacker's assertion that the jury was biased is
unsupported by the record and is pure speculation. After the trial
court informed the parties that the jury discovered a second shell,
Thacker did not request a Remmer hearing or object to the trial
court's decision not to conduct a Remmer hearing. Therefore, he has
forfeited all but plain error. State v. Lee, 10th Dist. Franklin No.
17AP-908, 2018-Ohio-3957, ¶ 26; State v. Thomas, 9th Dist. No.
27266, 2015-Ohio-2935, ¶ 53, citing State v. Wooten, 5th Dist. Stark
No. 2008CA00103, 2009-Ohio-1863, ¶ 38 (applying the plain error
doctrine to an argument that the trial court failed to hold Remmer
hearings when appellant did not challenge such a failure in the trial
court). “Plain error is an obvious defect in the trial proceeding that
affects substantial rights. The alleged error must have ‘substantially
affected the outcome of the trial,’ such that ‘but for the error, the
outcome of the trial clearly would have been otherwise.’ ”(Citations
omitted.) State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75
N.E.3d 1185, ¶ 67. Even if we assume that the trial court's failure to
conduct a Remmer hearing was erroneous, Thacker has failed to
establish that it substantially affected the outcome of the trial. Thus,
the trial court's failure to hold a Remmer hearing did not amount to
plain error. After careful consideration of the record, we find
nothing unreasonable, arbitrary, or unconscionable about the trial
court's denial of Thacker's motion for mistrial.
{¶53} We overrule his sixth assignment of error.
State v. Thacker, supra.
As the Report concludes, Thacker’s claim regarding the second shotgun shell has shifted
over the course of the case. In the trial court Thacker moved for a mistrial without requesting a
Remmer2 hearing, apparently on the theory that if any physical object reach the jury which had not
been admitted in evidence, he was entitled to a new trial. The Fourth District, noting that Thacker
made no request for a Remmer hearing, held the applicable standard was abuse of discretion; it
found none.
When Thacker appealed to the Ohio Supreme Court, he argued instead that the presence of
the second shotgun shell required the trial court to hold a Remmer hearing sua sponte
(Memorandum in Support of Jurisdiction, State Court Record, ECF No. 11, PageID 245). The
Ohio Supreme Court declined jurisdiction and Thacker filed here where the second shotgun shell
claim has morphed into a per se prejudicial effect claim where the jury sees anything not admitted
in evidence, including a mute physical object with no accompanying communication.
Thacker’s continual change of the substance of this claim violates the exhaustion rule in
habeas. To preserve a federal constitutional claim for presentation in habeas corpus, the claim must
be "fairly presented" to the state courts in a way which provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by
Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.
1991). The claim must be fairly presented at every stage of the state appellate process. Wagner v.
Smith, 581 F.3d 410, 418 (6th Cir. 2009).
Principles of comity require that we not seek to upset a state court
conviction on the basis of an alleged constitutional violation that the
state court never had an opportunity to correct. See Rose v. Lundy,
455 U.S. 509, 518 (1982). “Accordingly, we have required a state
prisoner to present the state courts with the same claim he urges
2 Remmer v. United States, 347 U.S. 227 (1954).
upon the federal courts.” Lyons v. Stovall, 188 F.3d 327, 331–32
(6th Cir. 1999) (quoting Picard v. Connor, 404 U.S. 270, 276
(1971).
Allen v. Mitchell, 953 F.3d 858 (6th Cir. 2020).
Thacker’s per se extraneous evidence claim is barred by procedural default: it is not the
same claim presented to the Ohio courts.
Thacker’s per se extraneous evidence claim is also without merit because it relies on factual
assertions contrary to the findings of the Fourth District. In his Objections, Thacker asserts the
“jury collectively examined a shotgun shell, which had not been admitted into evidence”
(Objections, State Court Record 24, PageID 1783). The Fourth District found “a physical object
was discovered by the jury and turned over to court personnel. Although Thacker argues that it
was “considered” by the jury, he cites nothing in the record to support this allegation and it is
entirely speculative.” Thacker supra, at ¶ 50. The Fourth District also found the second shotgun
shell was “momentarily present.” Thacker, supra, at ¶ 52. Thacker presents no evidence of
“collective examination.” Findings of fact made by the state courts are binding in subsequent
habeas litigation unless rebutted by clear and convincing evidence in the record. 28 U.S.C. §
2254(e)(1). Thacker adverts to no evidence that the jury “collectively examined” the second
shotgun shell.
Thacker also presents no evidence of prejudicial effect, instead claiming the second
shotgun shell was “inherently prejudicial” by its nature. (Reply, ECF No. 18, PageID 1750). How
so? Testimony during trial identified the victim as possessing the shotgun and the first shotgun
shell; both were already in evidence. If the second shell somehow makes the victim look more
aggressive than the shotgun and first shell alone, how is that prejudicial to Thacker?
Conclusion
Based on the foregoing analysis, the Magistrate Judge again respectfully recommends the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
November 2, 2022.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #
s/ Michael R. Merz
United States Magistrate Judge
13