Thacker v. Warden, Noble Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

FRANK J. THACKER,

Petitioner, : Case No. 1:22-cv-572

- vs - District Judge Jeffrey P. Hopkins

Magistrate Judge Michael R. Merz

WARDEN, Noble Correctional

Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case was brought by Petitioner Frank Thacker pursuant to 28 U.S.C. §

2254 to obtain relief from his 2019 conviction in the Lawrence County Court of Common Pleas.

The case is ripe for decision on the Amended Complaint (ECF No. 15), the State Court Record

(ECF No. 20), the Warden’s Return of Writ (ECF No. 21), and Petitioner’s Response to the Return

of Writ (ECF No. 27).

Litigation History

On May 23, 2018, a Lawrence County Grand Jury indicted Thacker on three counts of rape by

use of force in violation of Ohio Revised Code § 2907.02(A), one count of kidnapping in violation of

Ohio Revised Code § 2905.0l(A)(4)(1), and one count of abduction in violation of Ohio Revised

Code § 2905 .02(A)(l )(B), all occurring December 22, 1999, with the same victim, a female whose

initials are A.S.1 (Indictment, State Court Record, ECF No. 20, Ex. 1). Thacker moved to dismiss the

Indictment on speedy trial grounds which the trial court denied (State Court Record, ECF No. 20, Exs.

3, 5, and 6). A jury found Thacker guilty of two counts of rape and on the kidnapping and abduction

counts. Id. at Ex. 9. Thacker was sentenced to an aggregate term of imprisonment of thirty years to run

consecutively to his twenty-seven year sentence in Lawrence County Common Pleas Court Case

No.18-CR-592.

Thacker appealed to the Ohio Fourth District Court of Appeals pleading the following

assignments of error:

Appellant's convictions for rape, kidnapping, and abduction were

against the manifest weight of the evidence.

The trial court abused its discretion when it denied Appellant's

Motion for a Dismissal of the indictment against him.

A mistrial should have been declared due to misconduct of a juror

for failing to disclose her relationship to the alleged victim of the

case.

Appellant's counsel was ineffective in his representation of the

Appellant.

Cumulative Errors committed during Appellant's trial deprived him

of a fair trial and require a reversal of his convictions.

(Appellant’s Brief, State Court Record 20, Ex. 14, PageID 163). The conviction was affirmed.

State v. Thacker, 2021-Ohio-2726 (Ohio App. 4th Dist. Aug. 5, 2021). Thacker then appealed to the

Ohio Supreme Court which declined to exercise jurisdiction. State v. Thacker, 165 Ohio St.3d 1445

(2021).

1 The victim’s full name is given in the Indictment. Her initials are used here to respect her privacy.

2 Thacker also sought habeas corpus relief from that rape conviction in this Court’s Case No. 1:21-cv-00704. That

case was dismissed December 9, 2022, and the Sixth Circuit dismissed Thacker’s appeal March 17, 2023.

On November 1, 2021, Thacker filed an Application to Reopen his direct appeal, claiming

ineffective assistance of appellate counsel in his attorney’s failure to claim ineffective assistance of

trial counsel for failure to investigate and raise an alibi defense (State Court Record, ECF No. 20, Ex.

21). The Fourth District denied the Application on the merits and Thacker did not appeal to the

Supreme Court. Id. at Ex. 22.

On October 3, 2022, Thacker filed a second 26(B) application. Id. at Ex. 23. The Fourth

District dismissed the application, however, because Ohio only allows one such application. Id. at Ex.

25.

Thacker then filed his habeas corpus application in this Court pleading the following grounds

for relief:

Ground One: Petitioner’s convictions are against the sufficiency of

the evidence, in violation of the Due Process Clause of the 14th

Amendment.

Supporting Facts: Complainant gave inconsistent testimony

concerning the alleged assault. There were inconsistencies between

Complainant and key witness testimonies-Neither witness could

positively identify Petitioner in a photo lineup.

Ground Two: Petitioner was deprived of his Sixth Amendment

Right to an impartial jury due to juror misconduct.

Supporting Facts: Juror 12 informed the Trial Court she knew

Complainant shortly after the Jury was released for deliberations.

She had participated in initial jury deliberations and had expressed

an opinion about the case. Juror 12 was dismissed and replaced with

an alternate. The Trial Court separated and interviewed each juror

and determined Juror 12 had not provided additional evidence and

did no[t] affect the jury’s feelings. The Trial Court denied, twice,

the Motion for Mistrial.

Ground Three: Petitioner was denied his right to a Speedy Trial in

violation of both the Speedy Trial Act and the 6th Amendment.

Supporting Facts: The alleged crimes occurred in December of

1999 but Petitioner was not indicted and arrested until May of 2018.

Ground Four: Defense Counsel was ineffective, denying Petitioner

of his rights under the 4th, 5th, 6th, and 14th Amendments.

Supporting Facts: Trial Counsel failed to bring to the Trial Court’s

attention that he had a client with 3 felony indictments in the past,

from which DNA was collected and failed to object to improper and

inflammatory questioning and statements by the prosecutor.

(ECF No. 1).

Before the Warden had answered, Thacker filed an Amended Complaint (ECF No. 15) which

pleads the following grounds for relief:

Ground One: The evidence was insufficient to uphold Appellant’s

conviction of rape, kidnapping, and abduction and the convictions

were against the manifest weight of the evidence.

Ground Two: The Trial Court abused its discretion when it denied

Petitioner’s Motion to Dismiss the indictment.

Ground Three: A mistrial should have been declared due to a juror

failing to disclose their relationship to Complainant.

Ground Four: Petitioner received the ineffective assistance of trial

counsel.

i. Trial Counsel failed to present an expert witness to

contradict State’s medical “expert” and failed to challenge

State’s medical “expert’ regarding “hymen” testimony

during cross-examination.

ii. Trial Counsel failed to introduce photos of Appellant or

his vehicle in order to directly contradict the claims of

Complainant.

iii. Trial Counsel failed to investigate and examine each

juror about the deliberations and what effect the dismissed

juror may have actually played. (sic)

Ground Five: The State did not comply with Criminal Rule 16(K)

as it pertains to the State’s “expert” witnesses; the Trial Court erred

by allowing them to be qualified as “experts”; and Trial Counsel was

ineffective for not objecting to their admission as “experts”.

Ground Six: The State’s DNA evidence was inadmissible due to

chain of custody issues. Further, it was not subjected to competent

adversarial testing by Trial Counsel.

Ground Seven: Appellant was denied due process by the repeated

and persistent acts of prosecutorial misconduct by the State.

Ground Eight: Appellant was deprived of a fair trial when he

appeared before the jury after being denied basic necessities, such

as a shower and shave, until after voir dire.

Ground Nine: The cumulative errors committed during Petitioner’s

trial deprived him of a fair trial and require a reversal of the

convictions.

Id.

Analysis

Ground One: Sufficiency and Weight of the Evidence

In both the original Petition and Amended Complaint, Thacker makes the claim that the

evidence was insufficient to convict him; in the Amended Complaint he adds a claim that his

conviction is against the manifest weight of the evidence. Respondent concedes this claim is not

procedurally defaulted, but asserts it is without merit.

Federal habeas corpus is available only to correct federal constitutional violations. 28

U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780

(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). A weight

of the evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th

Cir. 1986). Any claim in the two pleadings that the conviction is against the manifest weight of

the evidence should be dismissed for failure to state a claim cognizable in habeas corpus.

An allegation that a verdict was entered upon insufficient evidence, on the other hand, does

state a claim under the Due Process Clause of the Fourteenth Amendment to the United States

Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970);

Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th

Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the

crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt . . . . This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable inferences

from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting

Jackson). This standard “must be applied with explicit reference to the substantive elements of the

criminal offense as defined by state law.” Id. (quoting Jackson, 443 U.S. at 324). This rule was

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law

which determines the elements of offenses; but once the state has adopted the elements, it must

then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge

should be assessed against the elements of the crime, not against the elements set forth in an

erroneous jury instruction. Musacchio v. United States, 577 U.S. 237 (2016).

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus

case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to

the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,

541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);

Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based

upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656

(6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).

And second, on habeas review, "a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.

___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

Thacker’s first assignment of error on direct appeal was that his conviction was against the

manifest weight of the evidence. The Fourth District decided this assignment on the merits,

holding:

{¶21} In determining whether a criminal conviction is against the

manifest weight of the evidence, we must review the entire record,

weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether in resolving

conflicts in the evidence, the trier of fact clearly lost its way and

created such a manifest miscarriage of justice that we must reverse

the conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-

6524, 960 N.E.2d 955, ¶ 119. State v. Phillips, 4th Dist. Scioto No.

18CA3832, 2018-Ohio-5432, ¶ 23.

{¶22} To satisfy its burden of proof, the state must present enough

substantial credible evidence to allow the trier of fact to conclude

that the state had proven all the essential elements of the offense

beyond a reasonable doubt. See State v. Adams, 2016-Ohio-7772, 84

N.E.3d 155, ¶ 22 (4th Dist.), citing State v. Eley, 56 Ohio St.2d 169,

383 N.E.2d 132 (1978), syllabus (superseded by state constitutional

amendment on other grounds in State v. Smith, 80 Ohio St.3d 89,

684 N.E.2d 668 (1997)). However, it is the role of the jury to

determine the weight and credibility of evidence. See State v.

Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶

132. “ ‘A jury, sitting as the trier of fact, is free to believe all, part

or none of the testimony of any witness who appears before it.’ ”

State v. Reyes-Rosales, 4th Dist. Adams No. 15CA1010, 2016-

Ohio-3338, ¶ 17, quoting State v. West, 4th Dist. Scioto No.

12CA3507, 2014-Ohio-1941, ¶ 23. We defer to the trier of fact on

these evidentiary weight and credibility issues because it is in the

best position to gauge the witnesses' demeanor, gestures, and voice

inflections, and to use these observations to weigh their credibility.

Id.; State v. Koon, 4th Dist. Hocking No. 15CA17, 2016-Ohio-416,

¶ 18.

2. Evidence of Rape, Abduction, and Kidnapping

{¶23} Thacker contends that his convictions for rape, abduction, and

kidnapping were unsupported by the evidence because A.S. initially

testified that Thacker “never inserted his penis at any point during

the assault against her.” He argues that it was not until the state

elicited testimony on redirect examination that A.S. testified that

penetration occurred. Thacker also argues that there was not

sufficient evidence that Thacker abducted or kidnapped A.S.

because A.S. and Cornette gave inconsistent testimony about the

color of the vehicle involved and could not positively identify him

in the photographic lineup. He contends that the sole link between

him and the crime was the CODIS DNA match, which occurred 18

years after the crime.

{¶24} Thacker was convicted of rape under R.C. 2907.02(A)(2),

which states, “No person shall engage in sexual conduct with

another when the offender purposely compels the other person to

submit by force or threat of force.” Sexual conduct is defined in R.C.

2907.01(A) as “vaginal intercourse between a male and female; anal

intercourse, fellatio, and cunnilingus between persons regardless of

sex; and, without privilege to do so, the insertion, however slight, of

any part of the body or any instrument, apparatus, or other object

into the vaginal or anal opening of another. Penetration, however

slight, is sufficient to complete vaginal or anal intercourse.” Thacker

challenges the penetration element of his rape convictions.

{¶25} A.S. testified that she was fully undressed and Thacker led

her over to the metal cylinder and “bent me over and proceeded to

try to put his penis in me any way that he could, vaginally and rec

... rectally.” A.S. testified that Thacker complained that A.S. was dry

and that it was not working the way he wanted it to. On cross-

examination A.S. testified that it seemed like Thacker was having

difficulty with an erection:

A. * * *And whenever he was actually trying to penetrate

me, he was making comments about it. His inability to,

you know, perform or get erect.

Q. But you didn't feel it erect?

A. I felt the pressure of him trying to force himself into me,

but it was really cold and I was in shock and I went numb.

{¶26} On redirect examination, the state asked:

Q. * * * whether his penis was erect or not, he inserted it

into you?”

A. Yes.

Q. And you testified both into your vagina and in your

rectum?

A. Yes.

Q. And, you'd never had sex before. You didn't have any

idea what that would've felt like ...

A. No.

Q. ... at that point?

Q. Um, No doubt that that happened that night to you?

A. No, no doubt in my mind.

Q. Pretty traumatic event?

A. Very!

{¶27} A.S.’s testimony established the element of penetration when

she testified that Thacker put his penis into her vagina and rectum.

Apart from A.S.’s testimony, the jury heard additional witness

testimony that established penetration of both the vagina and rectum

through circumstantial evidence. The treating physician who

examined A.S. immediately following the assault testified that A.S.

had a tear in the hymen as a result of the sexual assault and that

vaginal penetration was necessary for the hymen to tear. The

treating nurse testified that she took swabs from both A.S.’s vagina

and rectum and turned them over to law enforcement; Ms. Kennedy

and Ms. Jimenez, the DNA experts with BCI, testified that these

swabs contained sperm that exactly matched Thacker's DNA.

{¶28} The jury considered the state's witnesses’ testimony and DNA

evidence and found them credible. “ ‘[A] conviction is not against

the manifest weight of the evidence simply because the jury believed

the prosecution testimony.’ ” State v. Fletcher, 4th Dist. Lawrence

No. 14CA14, 2015–Ohio–1624, ¶ 28, quoting State v. Cooper, 170

Ohio App.3d 418, 2007–Ohio–1186, 867 N.E.2d 493, ¶ 17 (4th

Dist.); State v. Fox, 4th Dist. Washington No. 14CA36, 2015-Ohio-

3892, ¶ 26.

{¶29} Thacker's abduction conviction under R.C. 2905.02(A)(1)

and (B) required the state to show the following elements: “(A) No

person, without privilege to do so, shall knowingly do any of the

following: (1) By force or threat, remove another from the place

where the other person is found; * * * (B) No person, with a sexual

motivation, shall violate division (A) of this section.” And, the

kidnapping conviction under R.C. 2905.01(A)(4) required the

showing of the following: “(A) No person, by force, threat, or

deception, or, in the case of a victim under the age of thirteen or

mentally incompetent, by any means, shall remove another from the

place where the other person is found or restrain the liberty of the

other person, for any of the following purposes: * * * (4) To engage

in sexual activity, as defined in section 2907.01 of the Revised Code,

with the victim against the victim's will.” Thacker challenges the

jury's finding that he was the person who abducted and kidnapped

A.S.

{¶30} Both A.S. and Cornette testified that a male driving a light,

white or tan SUV-type of vehicle approached them and offered to

give them a ride. He eventually chased them, grabbing A.S., forcing

her into the vehicle, and driving away with her. A.S. testified about

the abduction, kidnapping, and subsequent rapes and the attempt to

force her to perform oral sex during transport. Both A.S. and

Cornette described the man as white, with brown receding hair.

Though A.S. was unable to positively identify Thacker 19 years

later, Cornette identified Thacker's photograph out of the lineup as

looking most like the assailant, though she stated she could not be

100 percent certain. Cornette also described the vehicle as a Jeep

Cherokee. Thacker's daughter confirmed that Thacker lived in the

vicinity of the offenses and that he owned a light, champagne

colored, silvery-gold Jeep Cherokee. A.S. testified that the same

man who abducted her and drove her to a remote location was the

same man who raped her at the remote location. Thacker's sperm

was present inside A.S.’s vagina and rectum. Because the state

proved that Thacker raped A.S., circumstantial evidence proved that

Thacker was also the man who abducted and kidnapped A.S. There

was no evidence presented that more than one assailant was

involved in the crimes or that after some unknown male abducted

and kidnapped A.S., Thacker suddenly appeared at the remote

location and raped her.

{¶31} Thacker argues that there were “significant inconsistencies”

in A.S.’s and Cornette's testimony “regarding the color of the

vehicle in question.” However, the record contains no

inconsistencies. Both women testified that the vehicle was an SUV-

type, with Cornette more specifically testifying that it was a Jeep

Cherokee. Additionally, both women testified that it was light in

color, either white, tan or light brown. According to the vehicle

records, Thacker's vehicle was a “taupe” Jeep Cherokee. Thacker's

daughter described it as a “champagne color” and “a very, very light,

like, silvery gold color.” The crimes occurred at night and the

witnesses’ descriptions of the color of the vehicle were consistently

within the light-brown spectrum of colors. Each witness described

an SUV-type of vehicle in a light shade of brown. Though 19 years

after the event, neither woman could positively identify Thacker's

photograph from the lineup, their testimony describing the assailant

matched Thacker.

{¶32} Reviewing the record, we cannot say that this is an

exceptional case where the evidence weighs heavily against the

convictions, that the trier of fact lost its way, or that a manifest

miscarriage of justice has occurred. Accordingly, the verdicts were

not against the manifest weight of the evidence. Thacker's first

assignment of error is overruled.

State v. Thacker, supra. A decision that a conviction is not against the manifest weight of the

evidence necessarily implies a decision that there is sufficient evidence. Nash v. Eberlin, 258 Fed.

Appx. 761, 2007 U.S. App. LEXIS 29645 (6th Cir. Dec. 14, 2007); Ross v. Miller, No. 1:10-cv-

1185, 2011 U.S. Dist. LEXIS 65082 (N.D. Ohio May 10, 2011)(White, M.J.); Hughes v. Warden,

No. 1:10-cv-091, 2011 U.S. Dist. LEXIS 54131 (S.D. Ohio Apr. 27, 2011)(Merz, M.J.).

The Fourth District’s decision here is neither contrary to nor an objectively unreasonable

application of Jackson, nor is it an unreasonable determination of the facts in light of the evidence.

Thacker’s sufficiency of the evidence claim should be dismissed with prejudice.

Juror Misconduct: Ground Two (Original Petition) and Ground Three (Amended

Complaint)

Thacker complains next that he was denied an impartial jury because one of the deliberating

jurors failed to disclose her relationship with A.S. Thacker presented this claim as his Third

Assignment of Error and the Fourth District decided it as follows:

{¶44} Thacker contends that the trial court erred in failing to declare

a mistrial when a juror failed during voir dire to disclose her

relationship with the victim in the case.

{¶45} Juror Twelve informed the trial court that she knew A.S., but

because she was unfamiliar with A.S.’s maiden name and did not

easily recognize her, Juror Twelve did not realize she knew her until

the end of the trial. Juror Twelve testified that she had very limited

interaction with A.S. years ago and did not know her on a personal

level but through a relationship she had with A.S.’s cousin and with

A.S.’s ex-boyfriend. Juror Twelve testified that she could still be fair

and impartial in weighing the evidence, and she had no negative

feelings towards A.S. Juror Twelve stated that she had participated

in some initial jury deliberations and had expressed an opinion about

the case. With the agreement of the state and defense counsel, the

trial court excused Juror Twelve and substituted an alternate juror.

Thacker moved for a mistrial. The trial court separated and

individually questioned each of the remaining jurors and determined

that Juror Twelve had not provided additional evidence and had not

done anything or said anything that affected the remaining jurors’

ability to be fair and impartial. The trial court denied Thacker's

motion for mistrial.

1. Standard of Review

{¶46} 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. “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.

2. Legal Analysis of Juror's Relationship with Victim

{¶47} Thacker acknowledges that the trial court conducted an

individual voir dire of each of the remaining jurors and they all

stated that Juror Twelve had not done or said anything that could

influence or affect their abilities to continue to deliberate and to be

fair and impartial. However, he speculates that the jurors were

prejudiced even though they each stated that they were not.

{¶48} To obtain a new trial, Thacker must demonstrate that Juror

Twelve failed to honestly answer a material question on voir dire

and that he was prejudiced by her presence on the jury. To prove

prejudice, Thacker must show that had Juror Twelve stated that she

knew A.S., he would have had a valid for-cause challenge.

To obtain a new trial in a case in which a juror has not disclosed

information during voir dire, the moving party must first

demonstrate that a juror failed to answer honestly a material

question on voir dire and that the moving party was prejudiced by

the presence on the trial jury of a juror who failed to disclose

material information. To demonstrate prejudice, the moving party

must show that an accurate response from the juror would have

provided a valid basis for a for-cause challenge.

In determining whether a juror failed to answer honestly a material

question on voir dire and whether that nondisclosure provided a

basis for a for-cause challenge, an appellate court may not substitute

its judgment for the trial court's judgment unless it appears that the

trial court's attitude was unreasonable, arbitrary, or unconscionable.

Grundy v. Dhillon, 120 Ohio St.3d 415, 2008-Ohio-6324, 900

N.E.2d 153, paragraphs one and two of the syllabus.

{¶49} Juror Twelve testified that she did not realize she knew the

victim when she was initially questioned about it during voir dire

because she did not know the victim by her maiden name. There was

no evidence that Juror Twelve intentionally misled the trial court

and counsel or falsified her answer during the initial voir dire.

However, a finding of juror misconduct does not

necessarily require an explicit finding of dishonesty when

a juror fails to answer a material question. * * * “[i]f a juror

remains mute when [s]he should answer, the effect of h[er]

silence is the same as a false answer.” Thus, a finding that

a juror failed to respond to a material question, whether

deliberately or through inadvertence, may have the same

effect as a finding that a juror failed to answer honestly.

(Citations omitted.) (Brackets sic.)

State v. Roper, 9th Dist. Summit No. 29466, 2021-Ohio-188, ¶ 27.

{¶50} Even though Juror Twelve admitted that she failed to

accurately answer the question about whether she knew A.S.,

Thacker cannot show prejudice because he must show that he was

prejudiced by her “presence on the trial jury.” By agreement of

defense counsel and the state, Juror Twelve was removed and an

alternate substituted in her place. Thus, Juror Twelve was not

present on the trial jury that rendered a verdict against him.

{¶51} Even assuming Juror Twelve had, however momentary, a

“presence on the trial jury,” Thacker has failed to show prejudice

because to “demonstrate prejudice, the moving party must show that

an accurate response from the juror would have provided a valid

basis for a for-cause challenge.” Dhillon at paragraph one of the

syllabus. Here, Juror Twelve was asked twice, including once by

defense counsel, whether she could be fair in deciding the case and

both times she responded that she could. Such responses would cut

against any basis for a for-cause challenge to Juror Twelve. Dhillon

at ¶ 52, citing State v. Jones, 91 Ohio St.3d 335, 338, 744 N.E.2d

1163 (2001) (“The trial court was entitled to accept McCollum's

assurances that he would be fair and impartial and that he would

decide the case on the basis of the evidence”). “As long as a trial

court is satisfied that the juror can be fair and impartial and follow

the law as instructed, the court need not remove that juror for cause.”

Id.

{¶52} Thacker's assertion that the jury was biased because Juror

Twelve expressed her opinion about the case during the early stages

of deliberation is unsupported by the record and is pure speculation.

Each juror testified that Juror Twelve did not do or say anything that

would prevent them from being fair and impartial and there is no

basis in the record to question their testimony. After careful

consideration of the record, we find nothing unreasonable, arbitrary,

or unconscionable about the trial court's denial of Thacker's motion

for a mistrial.

State v. Thacker, supra. Thacker has not shown or even argued that this decision is contrary to or

an objectively unreasonable application of Supreme Court precedent. Nothing about Juror No.

12’s “relationship” with A.S. was likely to have caused her to be prejudiced against Thacker and

all the other jurors testified she had had no impact on their decisionmaking before she was replaced

by an alternate. Thacker’s claim that he was denied an impartial jury because of juror misconduct

is without merit and should be dismissed.

Denial of a Speedy Trial (Ground Three of Original Petition)

Thacker claims he was denied his Sixth Amendment right to a speedy trial when the

offenses occurred in December 1999 but he was not arrested and indicted until May, 2018. He

presented his speedy trial claim on direct appeal as assignment of error two and the Fourth District

decided it as follows:

{¶33} Thacker contends that the trial court abused its discretion

when it denied his motion to dismiss the indictment on speedy trial

grounds. The crimes occurred in December 1999 but he was not

indicted and arrested until May 2018. He asserts that the state had

unjustifiably delayed the prosecution due to failure to properly

investigate. Thacker contends that he was prejudiced by the delay

because many years had passed causing all persons involved to lose

the sharpness of memory. Witnesses who might have provided alibi

testimony and other information of assistance to his defense have

been lost due to the passage of time. He also contends that he was

indicted on felony charges in 2001, 2002, and 2006 but the state

failed to obtain DNA samples from him then or failed to properly

enter them into CODIS.

{¶34} The state opposed the motion arguing that Thacker's vague

contention that memories fade over time was insufficient to

establish actual prejudice. The state also argues that the statute that

requires the state to collect a DNA specimen for felony arrests was

not applicable to Thacker's prior felony arrests in 2001 through 2006

because it was enacted later and applied to felonies committed on or

after July 1, 2011.

1. Standard of Review

{¶35} “Decisions to grant or deny a motion to dismiss on grounds

of preindictment delay are reviewed for an abuse of discretion.”

State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d

971, ¶ 33. “Appellate review of a trial court's decision on a motion

to dismiss for a speedy trial violation involves a mixed question of

law and fact. Generally, an appellate court will defer to a trial court's

factual findings if competent and credible evidence supports those

findings. However, an appellate court will review de novo a trial

court's application of the law to those facts.” (Citations omitted.)

State v. Phillips, 2018-Ohio-1794, 111 N.E.3d 351, ¶ 9 (4th Dist.).

3. Legal Analysis of Speedy Trial Rights

{¶36} In his motion to the trial court, Thacker raised both

constitutional and statutory speedy trial claims but failed to argue

any statutory speedy trial violation. On appeal, he has abandoned

any claim of a statutory speedy trial violation. Rather, he claims that

he was not indicted or arrested until May 2018 and his constitutional

right to a speedy trial was violated by a preindictment delay in the

commencement of the charges against him. The offenses occurred

in December 1999, and he was not indicted until May 2018.

{¶37} A criminal defendant has a right to a speedy trial under the

Sixth Amendment to the United States Constitution and Article I,

Section 10 of the Ohio Constitution. “The Due Process Clause of the

Fifth Amendment provides limited protection against preindictment

delay.” State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45

N.E.3d 127, ¶ 97, citing United States v. Lovasco, 431 U.S. 783,

789–790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). These rights afford

no protection to those who have not yet been accused unless

preindictment delay has caused actual prejudice to the defendant:

The Sixth Amendment to the United States Constitution

guarantees the accused in a criminal prosecution “the right

to a speedy and public trial.” But on its face, the Sixth

Amendment provides no protection to those who have not

yet been accused; it does not “require the Government to

discover, investigate, and accuse any person within any

particular period of time.” United States v. Marion, 404

U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971).

Statutes of limitations provide the ultimate time limit

within which the government must prosecute a

defendant—a definite point “beyond which there is an

irrebuttable presumption that a defendant's right to a fair

trial would be prejudiced.” Id. at 322, 92 S.Ct. 455. See also

United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044,

52 L.Ed.2d 752 (1977) (stating that statutes of limitations

provide predictable limits to prevent initiation of overly

stale charges). But when unjustifiable preindictment delay

causes actual prejudice to a defendant's right to a fair trial

despite the state's initiation of prosecution within the

statutorily defined limitations period, the Due Process

Clause affords the defendant additional protection. Id.

This court has stated succinctly that preindictment delay

violates due process only when it is unjustifiable and

causes actual prejudice: “An unjustifiable delay between

the commission of an offense and a defendant's indictment

therefor, which results in actual prejudice to the defendant,

is a violation of the right to due process of law” under the

United States and Ohio Constitutions. State v. Luck, 15

Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph two of

the syllabus.

And we have firmly established a burden-shifting

framework for analyzing a due-process claim based on

preindictment delay. Once a defendant presents evidence

of actual prejudice, the burden shifts to the state to produce

evidence of a justifiable reason for the delay. State v.

Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998);

State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45

N.E.3d 127, ¶ 99.

State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688,

¶ 11-13.

{¶38} In Jones, the defendant was indicted for rape and kidnapping

one day before the expiration of the 20–year statute of limitations.

The trial court dismissed the charges based on preindictment delay

and the Eighth District Court of Appeals affirmed. The Supreme

Court of Ohio reversed and remanded the case on the ground that

the appellate court applied an incorrect analysis of preindictment

delay:

As to the appropriate test and the shifting burden of proof

that applies to a claim of preindictment delay, the dissent

got it right. It aptly noted that unjustifiable delay does not

violate due process unless it results in actual prejudice. Id.

at ¶ 51 (S. Gallagher, J., dissenting), citing Luck, 15 Ohio

St.3d 150, 472 N.E.2d 1097, at paragraph two of the

syllabus. Accordingly, the dissent reasoned, because Jones

failed to carry his burden of establishing actual prejudice,

the state had no obligation to present evidence justifying

the delay in this case, see Adams, 144 Ohio St.3d 429,

2015-Ohio-3954, 45 N.E.3d 127, at ¶ 107 (denying relief

on claim of unconstitutional preindictment delay without

considering reasons for delay when defendant failed to

establish prejudice).

Id. at ¶ 16 (“By considering the reasons for the state's delay before

independently determining whether Jones established actual

prejudice because of that delay, the Eighth District majority erred”).

{¶39} The Court in Jones further explained that a finding of actual

prejudice “involves ‘ “a delicate judgment” ’ and a case-by-case

consideration of the particular circumstances.” Id. at ¶ 20, quoting

State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829,

¶ 52, quoting United States v. Marion, 404 U.S. at 325, 92 S.Ct. 455,

30 L.Ed.2d 468 (1971). “[S]peculative prejudice does not satisfy the

defendant's burden.” Id. “The ‘possibility that memories will fade,

witnesses will become inaccessible, or evidence will be lost is not

sufficient to establish actual prejudice.’ ” (Emphasis sic.) Id. at ¶ 21,

quoting State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45

N.E.3d 127, ¶ 105.

Those are “the real possibilit[ies] of prejudice inherent in

any extended delay,” and statutes of limitations sufficiently

protect against them. That does not mean, however, that

demonstrably faded memories and actually unavailable

witnesses or lost evidence cannot satisfy the actual-

prejudice requirement.

Id. “Each time this court has considered preindictment delay, we

have scrutinized the claim of prejudice vis-à-vis the particular

evidence that was lost or unavailable as a result of the delay and, in

particular, considered the relevance of the lost evidence and its

purported effect on the defense.” Id. at ¶ 23. “Unlike a Sixth

Amendment speedy-trial claim, no presumption of prejudice arises

in the due-process context when a preindictment delay exceeds a

particular length of time.” State v. Adams, 144 Ohio St.3d 429,

2015-Ohio-3954, 45 N.E.3d 127, ¶ 98. A reviewing court must

scrutinize a defendant's claim of prejudice by “consider[ing] the

evidence as it exists when the indictment is filed and the prejudice

the defendant will suffer at trial due to the delay.” Jones at ¶ 20;

State v. Moore, 2017-Ohio-1307, 88 N.E.3d 593, ¶ 25 (2d Dist.).

{¶40} Thacker argued in his motion that he was prejudiced because

“the fact that many years have passed since this event will cause all

person's [sic] involved, including the Defendant, to lose the

sharpness of memory and recollection of events.” He also argued

that “witnesses who could account for activities” and “other

information * * * has been lost either through the passage of time,

by relocating to another residence or possibly the death of a material

witness.” On appeal, Thacker argues he was prejudiced because,

“the lead detective on the initial investigation had died during the 18

years which followed the alleged assault” and Thacker was “unable

to present any hope of an alibi defense as a result of the delay” and

“fading memories of all witnesses significantly impacted” his ability

to defend himself.

{¶41} Thacker makes broad, speculative claims that witnesses’

memories have faded and an investigator and “possibly” other

witnesses have died. “But the possibility that memories will fade,

witnesses will become inaccessible, or evidence will be lost is not

sufficient to establish actual prejudice.” Adams at ¶ 105; State v.

Lewis, 4th Dist. Athens No. 00CA10, 2001-Ohio-2496 (the mere

allegation of faded memory does not rise to the particularized

demonstration of prejudice necessary to constitute an

unconstitutional pre-accusation delay; defendant must provide

concrete proof that he will suffer actual prejudice at trial as a result

of the government's delay in indicting the defendant). And, although

he claims that an investigator died, he failed to identify what

exculpatory testimony the investigator might have offered and thus

has not established actual prejudice. “The death of a potential

witness during the preindictment period can constitute prejudice, but

only if the defendant can identify exculpatory evidence that was lost

and show that the exculpatory evidence could not be obtained by

other means.” Adams at ¶ 103.

{¶42} Because Thacker fails to meet his burden to show actual

prejudice, it is unnecessary for us to consider the reasons for the

preindictment delay, such as whether the state had a statutory duty

to obtain Thacker's DNA during his prior felony arrests in 2001,

2002, and 2006. Adams at ¶ 107; Jones at ¶ 16; see also State v.

Miller, 8th Dist. Cuyahoga No. 109543, 2021-Ohio-1878, ¶ 35

(involving a 17-year “cold case” delay in bringing rape charges,

appellate court found that trial court abused its discretion in

dismissing case, where defendant failed to show actual prejudice,

“the burden-shifting analysis set forth by the Ohio Supreme Court

in Jones made clear that, before courts review whether the state's

delay was unjustifiable, the defendant must present evidence of

actual prejudice. Miller did not identify any missing or unavailable

evidence, * * * that would cut into the state's case and bolster his

own.”).

{¶43} The trial court did not abuse its discretion when it denied

Thacker's motion to dismiss. We overrule Thacker's second

assignment of error.

State v. Thacker, supra.

The Speedy Trial Clause of the Sixth Amendment is binding on the States through the Due

Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213 (1967).

The Supreme Court has developed a four-part balancing test to use in determining whether a

defendant's right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for

the delay; (3) whether the defendant has asserted his right; and (4) prejudice to the defendant.

Barker v. Wingo, 407 U.S. 514, 530-32 (1972). Delay is presumptively prejudicial where the post-

accusation delay approaches one year. Doggett v. United States, 505 U.S. 647 (1992).

The State proceeded promptly once Thacker’s DNA had been identified as a match with

the sample from the crime in suit. Furthermore he showed no prejudice from the delay. Thacker

has not shown or even argued that the Fourth District’s decision is contrary to or an unreasonable

application of Barker. His speedy trial claim should be dismissed with prejudice.

Ineffective Assistance of Trial Counsel

In his Fourth Ground for Relief in the original Petition, Thacker claims he received

ineffective assistance of trial counsel when (1) his trial attorney failed to raise the fact that he had

not been identified earlier despite three prior felony arrests and (2) failed to object to inflammatory

questioning and statements by the prosecutor. In Ground Four of the Amended Complaint, he

adds three more sub-claims that his trial attorney provided ineffective assistance of trial counsel

when he (3) failed to contradict State’s medical “expert” and failed to challenge State’s medical

“expert’ regarding “hymen” testimony during cross-examination; (4) failed to introduce photos of

Appellant or his vehicle in order to directly contradict the claims of Complainant; and (5) failed to

investigate and examine each juror about the deliberations and what effect the dismissed juror may

have actually had.

Thacker presented his claim of ineffective assistance of trial counsel as his fourth

assignment of error on direct appeal and the Fourth District decided it as follows:

{¶54} Thacker contends that his conviction should be reversed

based on ineffective assistance of counsel. Specifically, he argues

that his trial counsel: (1) failed to bring to the trial court's attention

that he had three felony indictments between 2001 and 2006 for

which his DNA sample should have been obtained; and (2) failed to

object to leading questioning about the penetration element of the

rape offenses.

{¶55} To establish constitutionally ineffective assistance of counsel,

a criminal defendant must show (1) that his or her counsel's

performance was deficient and (2) that the deficient performance

prejudiced the defense and deprived him or her of a fair trial.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Accord State v. Issa, 93 Ohio St.3d 49, 67, 752

N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694

N.E.2d 916 (1998). “In order to show deficient performance, the

defendant must prove that counsel's performance fell below an

objective level of reasonable representation. To show prejudice, the

defendant must show a reasonable probability that, but for counsel's

errors, the result of the proceeding would have been different.” State

v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810,

¶ 95. “Failure to establish either element is fatal to the claim.” State

v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.

{¶56} When considering whether trial counsel's representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance[.]” Strickland at 689, 104 S.Ct.

2052. Thus, “the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered

sound trial strategy.” (Quotation omitted.) Id. “A properly licensed

attorney is presumed to execute his duties in an ethical and

competent manner.” State v. Taylor, 4th Dist. Washington No.

07CA11, 2008-Ohio-482, ¶ 10, citing State v. Smith, 17 Ohio St.3d

98, 100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears the

burden to show ineffectiveness by demonstrating that counsel's

errors were so serious that he or she failed to function as the counsel

guaranteed by the Sixth Amendment. State v. Gondor, 112 Ohio

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 61.

{¶57} “Furthermore, courts may not simply assume the existence of

prejudice, but must require that prejudice be affirmatively

demonstrated.” State v. Walters, 4th Dist. Washington Nos.

13CA33, 13CA36, 2014-Ohio-4966, ¶ 24; State v. Jones, 2018-

Ohio-239, 104 N.E.3d 34, ¶ 21-24 (4th Dist.). We have repeatedly

recognized that speculation is insufficient to establish the prejudice

component of an ineffective assistance of counsel claim. E.g., State

v. Dailey, 4th Dist. Adams No. 18CA1059, 2018-Ohio-4315, ¶ 33

and cases cited therein.

1. Failure to Bring Forward his Three Prior Felony Arrests

{¶58} Thacker argues that his trial counsel was deficient for failing

to bring his prior felony arrests, which he contends occurred in 2001,

2002, and 2006, to the trial court's attention to support his motion to

dismiss on speedy trial grounds. He argues that the state should have

obtained his DNA back then, matched it with the December 1999

rape offenses, and indicted him 17 years earlier. He contends that if

the trial court had known this, it is likely that the trial court would

have found that the state unjustifiably delayed in prosecuting the

case.

{¶59} The state argues that the statutory provision requiring DNA

collection from persons arrested for felonies applied only to persons

arrested for felony offenses on or after July 1, 2011. Thacker's prior

felony arrests were before 2011 and all were dismissed prior to trial.

{¶60} R.C. 2901.07(B)(1)(a) requires the following DNA

collection:

On and after July 1, 2011, a person who is eighteen years

of age or older and who is arrested on or after July 1, 2011,

for a felony offense shall submit to a DNA specimen

collection procedure administered by the head of the

arresting law enforcement agency. The head of the

arresting law enforcement agency shall cause the DNA

specimen to be collected from the person during the intake

process at the jail, community-based correctional facility,

detention facility, or law enforcement agency office or

station to which the arrested person is taken after the arrest.

* * *.

This provision was added to R.C. 2901.07 by 2010 Sub. S.B. 77,

effective July 6, 2010, and requires the state to collect DNA

specimens from persons arrested on or after July 1, 2011 for a felony

offense. Thus, the state correctly argues that it had no statutory right

under this provision to collect DNA specimens from Thacker prior

to July 1, 2011. Thacker's trial counsel's performance was not

deficient for failing to highlight Thacker's prior felony arrests in

support of his motion to dismiss on speedy trial grounds.

{¶61} Moreover, we have already determined that because Thacker

failed to prove actual prejudice from the state's preindictment delay,

the justification, or lack thereof, for the state's delay is not relevant;

it does not matter whether the state should have obtained Thacker's

DNA specimen earlier. Thus, aside from whether his trial counsel's

performance was deficient for failing to bring up Thacker's prior

felony arrests, Thacker's defense was not prejudiced.

2. Failure to Object to Leading Questions

{¶62} Thacker contends that his trial counsel was deficient for

failing to object to the prosecutor's leading questions of A.S. on

redirect concerning the penetration element of the rape offense.

{¶63} Evid.R. 611(C) states in part that, “Leading questions should

not be used on the direct examination of a witness except as may be

necessary to develop the witness’ testimony.” Evid.R. 611(C) does

not preclude the use of leading questions on direct examination;

instead, the rule provides that “it is within the trial court's discretion

to allow leading questions on direct examination.” State v. Jackson,

92 Ohio St.3d 436, 449, 751 N.E.2d 946 (2001). Consequently, the

Supreme Court of Ohio had held that the failure to object to leading

questions does not constitute ineffective assistance of counsel. Id.;

State v. Stairhime, 3d Dist. Defiance No. 4–13–06, 2014–Ohio–

1791, ¶ 46 (“we cannot find that any failure to object to any leading

questions would rise to the level of ineffective assistance of

counsel”); State v. Williams, 4th Dist. Jackson No. 15CA3, 2016-

Ohio-733, ¶ 34.

{¶64} If Thacker's trial counsel had objected to the leading

questions he contests on appeal and the trial court had sustained the

objections, it is likely that the state would have elicited the same

testimonial evidence from A.S. by further questioning. And, even

without A.S.’s testimony, the state established the penetration

element of the rape offenses with the testimony of the treating

physician who testified that the sexual assault involved penetration

due to the presence of the hymen injury and with the testimony of

the DNA experts who testified about the presence of Thacker's

sperm on swabs from A.S.’s vagina and rectum.

{¶65} Other courts similarly find no deficiency with defense

counsel's failure to object to the prosecutor's leading questions of a

state witness on direct:

Because a trial court has broad discretion in allowing

leading questions, counsel's decision not to object is within

the realm of trial strategy. Id. Thus, an appellate court

“need not second-guess the decision of appellant's defense

counsel to not object to leading questions.” Id., see also

State v. Jackson, 92 Ohio St.3d 436, 449, 751 N.E.2d 946

(2001) (declining to find ineffective assistance of counsel

from an attorney's failure to object to the state's excessive

leading questioning).

Review of the record reveals that counsel did not object to

many of the leading questions posed by the state; however,

we cannot say that counsel's failure to do so was not a

strategic or tactical decision. Debatable strategic and

tactical decisions may not form the basis of a claim for

ineffective assistance of counsel, even if a better strategy

had been available. State v. Phillips, 74 Ohio St.3d 72, 85,

656 N.E.2d 643 (1995). Furthermore, as for any of the

leading questions, the state could have simply rephrased

them. Edwards at ¶ 17. Thus, we cannot find that an

objection to this testimony would have had a reasonable

probability of success.

State v. Jones, 2019-Ohio-2134, 137 N.E.3d 661, ¶ 59-60 (10th

Dist.).

{¶66} An attorney's decision as to whether to object at certain times

during trial is presumptively considered a trial tactic or strategy that

we will not disturb. State v. Fisk, 9th Dist. Summit No. 21196, 2003-

Ohio-3149, ¶ 9; State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d

643, (1995). “Because ‘objections tend to disrupt the flow of a trial,

[and] are considered technical and bothersome by the factfinder * *

* competent counsel may reasonably hesitate to object in the jury's

presence.’ ” (Citation omitted.) State v. Mickens, 10th Dist. Franklin

No. 08AP–626, 2009-Ohio-1973, ¶ 29, quoting State v. Campbell,

69 Ohio St.3d 38, 53, 630 N.E.2d 339 (1994); State v. Blair, 2016-

Ohio-2872, 63 N.E.3d 798, ¶ 108 (4th Dist.).

{¶67} We find that trial counsel's failure to object to the state's

leading questions was trial strategy and was not deficient. We

overrule Thacker's fourth assignment of error.

State v. Thacker, supra.

Of Thacker’s five sub-claims of ineffective assistance of trial counsel, only the first –

failure to bring forward prior felony arrests – was presented on direct appeal. In deciding that sub-

claim, the Fourth District reasonably applied the controlling Supreme Court precedent, Strickland

v. Washington, 466 U.S. 668 (1984). Its decision on that sub-claim of ineffective assistance of

trial counsel is therefore entitled to deference under 28 U.S.C. § 2254(d)(1).

Thacker’s other four sub-claims were never presented to the Ohio courts. On that basis,

Respondent asserts they are procedurally defaulted. Thacker recognizes how procedural default

operates in Ohio, writing:

In Ohio, claims must be raised on direct appeal, if possible, or res

judicata bars their litigation in subsequent proceedings. McGuire v.

Warden, Chillicothe Corr. Inst., 738 F.3d 741, 751 (6th Cir. 2013)

(citing State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104, 108

(Ohio 1967)). Therefore, a petitioner is not entitled to raise claims

in post-conviction proceedings that could have been raised on direct

appeal. Engle at 125 n.28. [Engle v. Isaac, 456 U.S. 107 (1982)].

Response, ECF No. 27, PageID 1006. But then Thacker spends many pages explaining how actual

innocence can excuse a procedural default. Id. at PageID 1006-12. Confusingly, he concludes that

his “multiple ineffective assistance claims alone should be considered in order to determine a

fundamental miscarriage of justice would occur if the case were not remanded.” Id. at PageID

1011.

This argument confuses ineffective assistance as an excuse for procedural default and

actual innocence as an excuse. Ineffective assistance can only act as excusing cause when that

claim is not itself procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446 (2000). Here one

of Thacker’s ineffective assistance of trial counsel claims is without merit and the other four are

themselves procedurally defaulted.

The controlling precedent on actual innocence is now the Supreme Court’s decision in

McQuiggin v. Perkins, 569 U.S. 383 (2013).

[A]ctual innocence, if proved, serves as a gateway through which a

petitioner may pass whether the impediment is a procedural bar, as

it was in Schlup and House, or, as in this case, expiration of the

statute of limitations. We caution, however, that tenable actual-

innocence gateway pleas are rare: “[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). And in making

an assessment of the kind Schlup envisioned, “the timing of the

[petition]” is a factor bearing on the “reliability of th[e] evidence”

purporting to show actual innocence. Schlup, 513 U. S., at 332, 115

S. Ct. 851, 130 L. Ed. 2d. 808.

* * *

[A] federal habeas court, faced with an actual-innocence gateway

claim, should count unjustifiable delay on a habeas petitioner’s part,

not as an absolute barrier to relief, but as a factor in determining

whether actual innocence has been reliably shown.

McQuiggin v. Perkins, 569 U.S. 383, 386-87 (2013).

In Souter v. Jones, 395 F.3d 577 (6th Cir. 2005), the Sixth Circuit held:

[I]f a habeas petitioner "presents evidence of innocence so strong

that a court cannot have confidence in the outcome of the trial unless

the court is also satisfied that the trial was free of nonharmless

constitutional error, the petitioner should be allowed to pass through

the gateway and argue the merits of his underlying claims." Schlup

v. Delo, 513 U.S. 298, 316 (1995)." Thus, the threshold inquiry is

whether "new facts raise[] sufficient doubt about [the petitioner's]

guilt to undermine confidence in the result of the trial." Id. at 317.

To establish actual innocence, "a petitioner must show that it is more

likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt." Id. at 327. The Court has noted

that "actual innocence means factual innocence, not mere legal

insufficiency." Bousley v. United States, 523 U.S. 614, 623, 140 L.

Ed. 2d 828, 118 S. Ct. 1604 (1998). "To be credible, 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 the

sort contemplated by Schlup and Souter that was not considered by the trial jury and that shows

him to be actually innocent.

In sum, Thacker’s first sub-claim of ineffective assistance of trial counsel is without merit

and his four remaining sub-claims are procedurally defaulted. His ineffective assistance of trial

counsel claim should therefore be dismissed with prejudice.

Ground Five: Non-Compliance with Ohio Crim. R. 16(K)

In his Fifth Ground for Relief in his Amended Complaint, Thacker asserts the State did not

comply with Ohio R. Crim. P. 16(K) regarding testifying experts. This claim sets forth an error of

Ohio law alone and therefore is not cognizable in habeas corpus. Our review is limited to claims

of violation of the United States Constitution. Ground Five should be dismissed.

Ground Six: Inadmissibility of DNA Evidence

In his Sixth Ground for Relief, Thacker claims the State’s DNA evidence was improperly

admitted because of chain of custody issues. Like Ground Five, this claim raises only issues of

state law and should be dismissed as non-cognizable.

Ground Seven: Prosecutorial Misconduct

In his Seventh Ground for Relief in the Amended Complaint, Thacker claims he was denied

due process by the acts of prosecutorial misconduct. This claim is barred by Thacker’s procedural

default in never presenting it to the Ohio courts.

Ground Eight: Denial of Fair Trial: Unkempt Appearance Before the Jury

In his Eighth Ground for Relief, Thacker claims he was denied a fair trial by being brought

before the jury without a shower and a shave. The Magistrate Judge seriously doubts this claim is

cognizable. While it compromises the presumption of innocence when a defendant appears in

shackles, the Court is unaware of any Supreme Court precedent requiring a recent shower and that

a defendant be clean shaven. In any event this claim is procedurally defaulted by Thacker’s failure

to present it to the Ohio courts.

Ground Nine: Cumulative Error

In his Ninth Ground for Relief, Thacker claims that the accumulation of errors at trial

denied him a fair trial. This claim is not cognizable in habeas corpus. “We have held that, post-

AEDPA, not even constitutional errors that would not individually support habeas relief can be

cumulated to support habeas relief.” Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005), cert.

denied, 549 U.S. 1027 (2006), citing Scott v. Elo, 302 F.3d 598, 607 (6th Cir. 2002); Lorraine v.

Coyle, 291 F.3d 416 (6th Cir. 2002). Cumulative error claims are not cognizable because the

Supreme Court has not spoken on the issue. Williams v. Anderson, 460 F.3d 789, 816 (6th Cir.

2006), citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005), cert. denied, 549 U.S. 1027

(2006).

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends this case

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.

September 5, 2023.

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

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