The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
FRANK J. THACKER, :
:
Petitioner, :
Case No. 1:22-cv-572
:
v. :
Judge Jeffery P. Hopkins
:
WARDEN, NOBLE CORRECTIONAL :
INSTITUTION, :
:
Respondent. :
ORDER ADOPTING REPORT AND RECOMMENDATION
This case is before the Court on Petitioner Frank J. Thacker’s Objections (ECF Nos.
32, 37, 42, and 47) to the Magistrate Judge’s Reports and Recommendations (ECF Nos. 29,
36, 39, and 44). As required by 28 U.S.C. § 636(b)(3), the Court has reviewed the case de novo
with particular attention to the issues raised by the Objections.
I. BACKGROUND
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
1 The victim’s full name is used in the Indictment. Her initials are used here to protect her privacy.
sentenced to an aggregate term of imprisonment of thirty years to run consecutively to his
twenty-seven-year sentence in another rape conviction case (involving a different victim) in
the Common Pleas Court of Lawrence County, Ohio, in Case No. 18-CR-59, for a total of
fifty-seven years. Id. at Ex. 10.
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). Upon review, the conviction
was affirmed. State v. Thacker, 2021-Ohio-2726 (Ohio App. 4th Dist. Aug. 5, 2021). Thacker
then appealed to the Supreme Court of Ohio which declined to exercise jurisdiction. State v.
Thacker, 165 Ohio St.3d 1445 (2021).
On November 1, 2021, Thacker filed an Application to Reopen his direct appeal under
Ohio R. App. P. 26(B) claiming ineffective assistance of appellate counsel due to 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 of Ohio. 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 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.
(ECF No. 15).
II. STANDARD OF REVIEW
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). “[I]t is
not the province of a federal habeas court to reexamine state court determinations on state
law questions. In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire,
502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)
(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6th Cir. 2018) (Thapar, J. concurring).
When a state court decides on the merits a federal constitutional claim later presented
to a federal habeas court, the federal court must defer to the state court decision unless that
decision is contrary to or an objectively unreasonable application of clearly established
precedent of the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1); Harrington v.
Richter, 562 U.S. 86 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S.
685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000) Hendrix v. Palmer, 893
F.3d 906, 917 (6th Cir. 2018). Deference is also due under 28 U.S.C. § 2254(d)(2) unless the
state court decision was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.
III. LAW AND ANALYSIS
A. Ground One: Sufficiency and Weight of the Evidence
Thacker claims his conviction is against the manifest weight of the evidence and is
based on constitutionally insufficient evidence. The Magistrate Judge recommended
dismissing this claim because the manifest weight claim is not cognizable in habeas corpus
and the Ohio Fourth District Court of Appeals decision on the sufficiency issue was an
objectively reasonable application of the controlling federal standard from Jackson v. Virginia,
443 U.S. 307 (1979).
In his Objections, Petitioner admitted that the victim had identified him at trial, but
argued the twenty-year gap between the offense and trial made that identification
questionable. He also questioned the reliability of the DNA matching that was done, based
on claims the test used was unreliable. In his Supplemental Report the Magistrate Judge
rejected Petitioner’s reliance on scientific articles questioning the DNA method used because
none of them had been made to the trial court or the Fourth District and they were thus
required to be excluded under Cullen v. Pinholster, 563 U.S. 170, 185 (2011).
Although Petitioner continued to object to the proposed disposition of his sufficiency
claim, the Magistrate Judge adequately responded to his continued objections. The Court
overrules Petitioner’s objections and adopts the Magistrate Judge’s recommendation to
dismiss the sufficiency of evidence claim with prejudice.
B. Ground Two: Denial of Speedy Trial
The events that led to Petitioner’s arrest occurred in December 1999, but Petitioner
was not indicted until May 2018 and not tried until July 2019. Considering the facts and the
Fourth District’s decision on this claim, the Magistrate Judge concluded:
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 [v. Wingo,
407 U.S. 514, 530–32 (1972)]. His speedy trial claim should be
dismissed with prejudice.
(Report, ECF No. 29. PageID 1065).
Petitioner objected relying on Doggett v. United States, 505 U.S. 647 (1992), where the
Supreme Court held delay is presumptively prejudicial where the post-accusation delay
approaches one year. In his Supplemental Report the Magistrate Judge noted Petitioner’s
speedy trial argument in the state courts was about pre-accusation delay and still had provided
no evidence of actual prejudice from the delay (Supplemental Report, ECF No. 36, PageID
1093). In a subsequent Report, the Magistrate Judge cited United States v. Marion, 404 U.S.
307 (1971), as the controlling Supreme Court precedent requiring proof of actual prejudice
when an indictment was returned within the statute of limitations (Second Supplemental
Report and Recommendations, ECF No. 39, PageID 1114).
The Court is not persuaded by Petitioner’s Objections which are hereby overruled.
The Magistrate Judge’s Reports are adopted, and Petitioner’s speedy trial claim will be
dismissed with prejudice.
C. Ground Three: Juror Misconduct
Petitioner claims he was denied a fair trial by the misconduct of Juror No. 12 who
disclosed at the outset of jury deliberations that she “knew” the victim in that she had once
dated one of the victim’s ex-boyfriends. Although the Magistrate Judge addressed this claim
on the merits and recommended that it be dismissed, Petitioner’s Objections lumped this
claim with others and wrote:
Remaining, Unaddressed, Arguments
The Magistrate declines to address the remaining arguments,
finding them procedurally defaulted. Standing on the arguments
as presented in each of the preceding documents Petitioner has
submitted, Petitioner contends each argument rises to the level
of a manifest injustice. As such, they should be addressed as
having overcome the procedural bar.
(Objections, ECF No. 32, PageID 1084).
The failure to file specific objections is a waiver of right to raise issues on appeal.
Thomas v. Arn, 474 U.S. 140 (1985); Alspugh v. Mcconnell, 643 F.3d 162, 166 (6th Cir. 2011);
Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004); Mattox v. City of Forest Park, 183 F.3d
515, 519 (6th Cir. 1999); Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); United States v.
Walters, 638 F.2d 947 (6th Cir. 1981). Making some objections but failing to raise others will
not preserve all objections a party might have had. Only specific objections are preserved for
appellate review. Smith v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987). The
district court need not provide de novo review where objections to a magistrate judge’s report
and recommendations are frivolous, conclusive, or general. Parties have a duty to pinpoint
portions of the report that the Court should consider. Mira v. Marshall, 806 F.2d 636 (6th Cir.
1986). If a party files a general objection and incorporates other papers by reference and that
approach undermines the purposes of the Magistrate’s Act, that party will have waived the
right to appeal. Neuman v. Rivers , 125 F.3d 315 (6th Cir. 1997).
The Court concludes Petitioner has failed to preserve any objections he might have
had to the Magistrate Judge’s recommendation on his juror misconduct claim. The Court
finds the trial judge complied with Remmer v. United States, 347 U.S. 227 (1954). The
Magistrate Judge’s Reports are accordingly adopted, and Petitioner’s juror misconduct claim
is dismissed with prejudice.
D. Ground Four: Ineffective Assistance of Trial Counsel
Thacker claims he received ineffective assistance of trial counsel when his trial
attorney: (1) failed to raise the fact that he had not been identified earlier despite three prior
felony arrests; (2) failed to object to inflammatory questioning and statements by the
prosecutor; (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.
Only the first two of these sub-claims were presented to the Ohio courts. The Fourth
District decided them on the merits, holding it was not deficient performance to fail to raise
Thacker’s felony arrests between the time of the offense and his trial because mandatory DNA
collection was not applicable at the time of the prior arrests and that the decision not to object
to leading questions was at least arguably sound trial strategy. The Magistrate Judge
concluded this was a reasonable application of Strickland and the remaining sub-claims were
procedurally defaulted. Petitioner’s Objections are purely conclusory. His objections as to
the procedural default finding are based on a simple assertion that that will cause “manifest
injustice” without producing any evidence of actual innocence such as is required to prove
manifest injustice. See Schlup v. Delo, 513 U.S. 298, 319 (1995). The Court overrules
Petitioner’s objections on the ineffective assistance of trial counsel issue and adopts the
Magistrate Judge’s recommendation. Petitioner’s claims of ineffective assistance of trial
counsel are dismissed with prejudice.
E. Ground Five: Non-Compliance with Ohio Crim. R. 16(K)
Thacker claims the State did not comply with Ohio R. Crim. P. 16(K) regarding the
disclosure of expert reports. The Magistrate Judge recommended dismissing this claim
because it did not arise under the Constitution. Petitioner offered no objection.
F. Ground Six: Inadmissibility of DNA Evidence
Thacker also claims the State did not comply with chain of custody requirements for
admission of the DNA evidence. The Magistrate Judge recommended this claim be dismissed
on the same basis as Ground Five and Petitioner offered no objections.
G. Ground Seven: Prosecutorial Misconduct
Thacker claims he was denied a fair trial by acts of prosecutorial misconduct. The
Magistrate Judge found this claim was procedurally defaulted by failure to present it to the
Ohio courts. Thacker’s response is the same manifest injustice claim which is unavailing for
reasons already given.
H. Ground Eight: Denial of Fair Trial: Unkempt Appearance Before the Jury
Thacker claims he was denied a fairs trial when he appeared before the jury without a
shower and shave. The Magistrate Judge recommended dismissal of this claim for lack of a
Supreme Court decision in point and procedural default. Thacker offers no objection except
in an unavailing manifest injustice claim.
I. Ground Nine: Cumulative Error
Finally, Thacker claims the accumulation of errors at his trial entitles him to habeas
relief. The Magistrate Judge noted this claim was not cognizable in habeas corpus and
Thacker has filed no objection.
IV. CONCLUSION
Based on the de novo review reflected above, Petitioner’s Objections (ECF Nos. 32, 37,
42, and 47) to the Magistrate Judge’s Reports and Recommendations (ECF Nos. 29, 36, 39,
and 44) are OVERRULED. The Court ADOPTS Magistrate Judge’s Reports and
Recommendations (ECF Nos. 29, 36, 39, and 44) and orders the entry of judgment
DISMISSING the Petition with prejudice.
For the reasons stated in the Report and Recommendations and pursuant to 28 U.S.C.
§ 1915(a)(3), the Court certifies that an appeal of this Order would lack an arguable basis in
law or in fact and thus would not be taken in good faith. The Court accordingly DENIES
Petitioner leave to appeal in forma pauperis. In accordance with Fed. R. App. P. 24(a)(5),
Petitioner remains free to file a motion for leave to proceed on appeal in forma pauperis in the
Sixth Circuit Court of Appeals. Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999).
IT IS SO ORDERED.
August 22, 2024 oappag ples
Jeffery P. kins
United States District Judge
1]