Petition for Writ of Certiorari — Ryan T. Taulbee, Petitioner v. Jeff Noble, Warden

IN THE ,

SUPREME COURT OF THE UNITED STATES

NO.

J

RYAN T. TAULBEE,

Petitioner,

-against-

WARDEN, MADISON CORRECTIONAL,

OFFICE OF THE ATTORNEY GENERAL OF OHIO,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Ryan T. Taulbee #A-697318

Petitioner, pro se

Madison Correctional Institution

P.O. Box 740

London, Ohio 43140

Table of Contents

Questions presented

page

(i)

.

Parties..................................................................................................................(i)

Table of Cases and Authorities ................. ................................................................ (ii)(iii)

DecisionsBelow....................................................................................................(iv)

Jurisdiction.......................................................................................................... (iv)

Introduction........................................................................................................1,2

Statement of the Case and Fact................................................................................3,4

Argument in Support of Granting Certiorari..............................................................5-16

Conclusion.......................................................................................................17

Appendix

Decision of the United States Court of Appeals for the Sixth Circuit..........................................A

Opinion and Order of the United States District Court for the Southern District of Ohio, Eastern

Division................................................................................................................B

QUESTIONS PRESENTED

DOES A PROCEDURAL BAR APPLY TO A HABEAS PETITIONER, CONCERNING TIMELY

FILING WHERE STATE COURTS SPECIFICALLY ALLOW LATE FILINGS, AND FEDERAL

COURTS HAVE SAID THE RULE, WAS NOT STRICTLY FOLLOWED AND FAILED TO

SATISFY THE MAUPIN TEST.

DOES THE SAME COUNSEL WHO PROVIDES REPRESENTATION AT TRIAL AND

APPELLATE LEVELS CREATE A CONFLICT OF INTEREST AND PREJUDICE THE

DEFENDANT WHEN PROVIDING INEFFECTIVE REPRESENTATION

DOES A CRIMINAL INDICTMENT CHARGING TWO COUNTS OF THE EXACT SAME

STATUTORY OFFENSE ALLEGING THE EXACT SAME COURSE OF ACTION AND WHERE

THE PROSECUTION CONCEDES A SINGLE ACTION, VIOLATE DOUBLE JEOPARDY

DOES AN IMPROPERLY APPLIED PROCEDURAL BAR VIOLATE THE RIGHT TO ACCESS TO

THE COURTS

PARTIES

PETITIONER

Ryan T. Taulbee #A-697318

Petitioner, pro se

Madison Correctional Institution

P.O. Box 740

London, Ohio 43140

Office of the Attorney General of Ohio

150E. Gay Street

16' Floor

Columbus, Ohio 43215

(i)

TABLE OF CASES

PAGE

Fautenberry v. Mitchell, 515 F. 3d 614, 640-41 (6th Cir. 2008)...............................................1,5

State v. Gardner, 118 Ohio St. 3d. 420..............................................................................1

United States v. Powell, 469 U.S. 57................................................................................1

Dunn v. United States, 284 U.S. 390................................................................................1

Blockburger v. United States, 284 U.S. 299.......................................................................1

Hawkins v. Marion Correctional Institution, 28 Ohio St. 3d 4, 501 N.E. 2d. 1195 (1986)..................5

State v. Hicks, 2005-Ohio-2947 ..................................................................................... 5

Franklin v. Anderson, 434 F. 3d. 412 ................... . ............................................ . ............5,6

Davie v. Mitchell, 324 F. Supp. 2d 862............................................................................6

State v. Murnahan, 63 Ohio St. 3d 60................................................................................6

State v. Taulbee, 2005-Ohio-1 145...................................................................................7

Jamison v. Collins, 100 F. Supp 2d 52 S.D. Ohio (1998)........................................................8

United States v. Maldonado, 241 Fed. Appx. 198 (5th Cir. 2007)...............................................8

State v. Carter, 36 Ohio Misc. 170, 65..............................................................................8

State v. Lentz, 70 Ohio St. 3d 527...................................................................................8

State v. Cole, 2 Ohio St. 3 114.......................................................................................8

Cuyler Y. Sullivan, 446 U.S. at 344 id at 345-360................................................................8

Rousaville v. State, 373 Ark. 194,282 S.W. 3d 7595760 (2008).................................................8

Sasser v. Hobbs, 735 F. 3d 833 at [**50](8th Cir. 2013).........................................................8

Sutton v. Carpenter, 745 F. 3d 787 (6th Cir.).......................................................................8

Cincinnati v. Robben, 8 Ohio App. 3d. 203..........................................................................9

State v. Bridgeman, 55 Ohio St. 2d. 261............................................................................9

Patterson v. New York,432 U.S. 197,211...........................................................................9

Jackson v. New York, 443 U.S. 324.................................................................................9

Mullaney v. Wilbur, 421 U.S. 684...................................................................................9

Quartararo v. Hanslmaier, 186 F. 3d 91,97 (2d Cir. 1991).......................................................9

State v. Vigil, 2016-Ohio-7485 ....................................... ............................................... 9

State v. Himes, 2010-Ohio-332 ....................................................................................10

Finley v. McQuiggan, 2011 U.S. Dist Lexis 62108 at *33

12

French v. Jones, 332 F. 3d 430 (6th Cir. 2009).....................................................................12

Musladin v. Lamarque, 555 F. 3d 830 at fiN 21-22 (9th Cir. 2009)...........................................12

Cincinnati v. Sand, 43 Ohio St. 2d 79 (1975).....................................................................12

Miller v. Pate, 386 U.S. 1............................................................................................12

Berger v. U.S. 29578,88 (1935)....................................................................................13

Hennonv. Cooper, 109 f. 3D 330,333 (7 h Cir. 1997)............................................................13

Brady v. Maryland, 373 U.S. 83..................................................................................13

In Re Winship, 397 U.S. 358.......................................................................................14

State v. Crosk', 2008-Ohio-145 ......... . ..........................................................................14

State v. Bowers, 2007-Ohio-3986 ............................. ......... ... ........................................14

United States v. Duncan, 598 F. 2d. 839, 4 Fed Rules Evid. Serv. 848.........................................14

United States v. Wagstaff, 572 F. 2d. 270.........................................................................14

United States v. Brown, 540 F. 2d. 364.............................................................................14

United States v. Purvis, 580 F. 2d. 853...........................................................................14

Alleyene v. United States, 133 S. Ct. 2151 (2013)..............................................................14

State v. Mays, 161 Ohio App. 3d. 175...............................................................................15

State v. Sowell, 148 Ohio St. 3d. 554, 2016-Ohio-8025 ........................................................15

Valentine v. Konteh, 395 F. 3d. 626 (6th Cir. 2005)...............................................................15

(ii)

PAGE

TABLE OF CASES cont

State v. Feagan, 2014-Ohio-5133 .................................................................................15

State v. Gilliam, 2012-Ohio-5034 .................................................................................15

People v. Bullis, 30A.D. 2d. 470.................................................................................15

Wallace v. State, 219 Md. App. 234..............................................................................16

State v. Ward, 2011 -Ohio-518 .....................................................................................16

State v. Lynn, 129 Ohio St. 3d. 146...............................................................................16

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fourth Amendment, U.S. Constitution: Section 14, Article I, Ohio Constitution

Fifth Amendment, U.S. Constitution: Section 10, Article I, Ohio Constitution

Fifth and Fourteenth Amendment, U.S. Constitution: Section 16, Article I, Ohio Constitution

Sixth Amendment, U.S. Constitution: Section 5, Article I, Ohio Constitution

Sixth Amendment, U.S. Constitution: Section 10, Article I, Ohio Constitution

Eighth Amendment, U.S. Constitution: Section 9, Article I, Ohio Constitution

The Constitutional provisions involved, include an indigent Petitioner's denial of access to the court's,

due to an improperly applied procedural bar, in violation of due process and equal protection.

Petitioner was unduly deprived of life and liberty and has been caused to suffer unnecessary

humiliation of a criminal conviction, resulting from a trial in which Petitioner received ineffective

assistance of trial and appellate counsel.

Trial and appellate counsel being the same, acting in a conflicting capacity, failed to properly

address trial errors such as; failure to seek suppression of clearly illegal and prejudicial evidence,

counsel's physical absence at critical stages, the state's violation of double jeopardy and due process by

repeatedly referring to facts not in evidence, by improperly admitting unauthenticated prejudicial

evidence resulting in a conviction and acquittal on the "same count" violating the reasonable doubt

standard, and sentencing Petitioner to a term of imprisonment based upon perjured testimony which

was contradicted by medical evidence and facts the jury concluded did not exist.

OHIO APPELLATE RULE

26(B)

OHIO REVISED CODE

2907.02(A)(2)

2907.01(A)

2941.25(B)

2505.01(A)(3)

2953.21

Federal Rules Criminal Procedure, 7 (C)(1)

(iii)

IN THE

SUPREME COURT OF THE UNITED STATES

NO.

RYAN T. TAULBEE,

Petitioner,

-against-

WARDEN, MADISON CORRECTIONAL,

OFFICE OF THE ATTORNEY GENERAL OF OHIO,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DECISIONS BELOW

The decision of the United States Court of Appeals for the Sixth Circuit, denying Petitioner's

Certificate of Appealability, Case No. 17-3656, was filed March 22, 2018 and a copy is attached as

appendix A.

The Opinion and Order of the United States District Court for the Southern District of Ohio, Eastern

Division, denying Petitioner's Certificate of Appealability,(doc #24 page id #1368-1370) filed June 14,

2017 and a copy is attached as appendix B.

JURISDICTION

Jurisdiction is conferred on the Supreme Court 28 U.S.C. 1254(1)

(iv)

I. INTRODUCTION

This case is before you on a question of procedural default originating from the Sixth Circuit

Court of Appeals for the Southern District of Ohio which claim petitioner, Mr. Taulbee procedurally

defaulted a claim on the authority of Fautenberry v. Mitchell, that does not apply to this case. The

decision in Fautenberry was decided using the standard in place at the time, that have since changed.

This case originates from the Fairfield County Common Pleas Court Case No. 2013-CR-479.

Taubee was charged with multiple counts, all aledging the same underlying theory of events, Taulbee

was found "not guilty" on all but one count in the indictment. Ultimately, Taulbee was found guilty and

not guilty of the "same" statutory offense, which was not supported by the evidence or medical

testimony, and was based upon a sequence of events in which, the jury concluded did not exist.

Taulbee and his girlfriend K.S., both consenting adults had been out drinking, upon returning to

K.S.'s apartment the state maintains Taulbee intentionally handcuffed K.S. with the specific purpose to

beat and rape her for an extended period of time. The medical testimony did not support these

allegations, in fact the doctor testified there were no injuries to support the allegations. The jury found

K.S.'s version of events wholly incredible and found Taulbee "not guilty" on the kidnapping count as

well as "not guilty" on multiple counts of rape. The jury did find Taulbee "guilty" on count three

aledging rape by "digital vaginal penetration". This finding of guilt lacks the necessary statutory

elements to support conviction as the state based it's entire case theory on the premise that Taulbee,

"purposely compelled K.S. to submit by force or threat of force" by intentionally handcuffing her to

"restrain the liberty of K.S. to terrorize or inflict serious physical harm".

Trial counsel maintained the case lacked sufficient evidence and made multiple motions for

acquittal under Crim R. 29. The jury before reaching a verdict announced to the court that they could

not reach a decision, and one juror said, nothing will change his mind. Filed on Motion to Compel

Discovery, because of missing transcripts,(page id# 1099-1101) an in chambers discussion was held

concerning trial counsel's physical absence, and the court's confusion on how to proceed. (page id#

1324-1327) after the jury announced a deadlock. Counsel for the state expressed insight into the

deliberations, which were not contained in the juror's question to the court, the belief that the jury was

confused as to two of the counts, and that they just needed a push. The court read the "Allen Charge"

and returned the jury to deliberate.

Trial counsel serving also as Appellate counsel, raised a single assignment of error in the Fifth

District Court of Appeals claiming the conviction was against the manifest weight of the evidence

presented and cannot be reconciled with the other verdicts in the case. After several extensions of time,

more than nine months later, the court issued an opinion, exceeding the 180 time limit for postconvicton, based upon the plurality opinion of State v. Gardner which is non binding authority.

The Ohio Supreme Courts plurality opinion in Gardner was based upon the holdings of United

States v. Powell and Dunn v. United States concerning inconsistent verdicts. The facts and

circumstances are different in this instant case and the state's theory of events shows that, in this case

the kidnapping count was not merely incidental to the commission of another count but was

"purposeful" and "intentional", thereby making it an essential element necessary to support a

conviction on the count of rape.

Additionally the acquittal on count two, further negates an essential element necessary for

conviction on count three. Counts two and three are in fact the "same" count. Counsel for the state,

addressed the counts and combined them together on the record when rebutting the Motion for Directed

Verdict, conceding that they both happened at the same time (page id#1155).

Based upon the holding of Blockburger both counts two and three require the same elements of

proof and under Ohio law when compared in the abstract both counts are the same and because the

counts are the same, this case has resulted in a true inconsistent verdict that cannot be explained or

reconciled on any rational basis without giving effect to the acquitted counts.

2

H. STATEMENT OF CASE AND FACT

Produced by the 5th Dist. Court of Appeals 14-CA-5/ [Tr.] is from the trial transcripts 2013-CR-00479.

Appellant and K.S., the victim herein, began dating in February of 2013. On the evening of

September 27, 2013, Appellant and K.S. went out with a friend and were drinking. They returned to

K.S.'s apartment at 6:00 a.m. on September 28, 2013. K.S.'s apartment is on the second floor of a twostory building.. K.S. admits to having consumed approximately seven or eight drinks over a twelve hour

span on the evening in question.

[Tt]K.S. Gave inconsistent testimony by telling the 911 operator she only consumed two drinks and

medical records indicate she denied drinking any alcohol.

K.S. testified upon returning to the apartment, Appellant found messages on K.S.'s phone [**2]

from another male whom she had been seeing. He became angry and poured a drink over her .head. She

stood up abruptly, accidentally hitting Appellant with her elbow; Appellant then punched K.S; in the.

cheek and slapped her twice. Appellant then took K.S.'s phone and went downstairs.

.

[Tr.] The record also shows he was re-engaging with his past girlfriend and this caused her to be angry

and to take actions on her part to get back at him.

After Appellant left the apartment, K.S. removed her wet shirt. Appellant then returned to the

apartment with handcuffs. He grabbed K.S.'s wrists and put them into the handcuffs. He told K.S. to

take off the rest of her clothes, and she complied. Appellant threw K.S. onto the bed, got on top of her

and forced his penis into her mouth. Appellant then told K.S.to get on top, and he grabbed her hair and

forced her head onto his penis.

[Tr.] The testimony is inconsistent as K.S. told the E.R. Nurse that after she hit him she was dragged

into the bedroom and forced to take off her clothes. K.S. Also claimed to have been punched (then said

slapped) in the face and head at least 20 times, however there was no injuries to support this. The nurse

also testified there was NO bruising on the wrists. The jury found in favor of the defendant by finding

him NOT guilty of count one, rape and NOT guilty on count five, kidnapping.

K.S. testified Appellant hit her on the head when she did not perform fellatio exactly how he

expected. He called her names, and pushed her legs apart in order to penetrate her vaginally with his

penis.

.

.

.

.

[Tr.] Again there is no evidence to support the allegations. K.S. Claimed that she was "told" she had a

concussion, defense counsel objected saying this was against medical testimony as Dr. Standeford

clearly stated that the x- rays showed that K.S. Did NOT have a concussion. The jury, after hearing the

evidence found the defendant NOT guilty on count four, attempted rape.

Appellant then put his fingers into K.S.'s vagina several times, cutting her vagina with his

fingernails causing her to bleed onto her bed sheets. At the same time, he put one finger into her anus in

a harsh manner. Appellant begged Appellant not to put his fingers into her vagina [**3] and anus.

Immediately thereafter, Appellant got on top of K.S. and penetrated her with his penis vaginally.

[Tr.} Detective Meadows testified that he found two small drops or specs of what "appeared" to be

blood, one was on the side where the fitted sheet goes down, the other at the foot of the bed. They were

not wet and also NOT tested for authenticity. Defense counsel stated that the alleged blood appeared old

and looked as if it had been through the laundry. Counsel also drew attention to the photos that showed

a neatly made bed, complete with throw pillows, there was not a single rug out of place, the TV was on

and there was nothing to indicate such an 'event having taken place.

Appellant then removed the handcuff from K.S.'s right wrist and secured the same to.her left

ankle. He told her to clean herself, and she told him she could not because she was handcuffed.. He then

threw a hand towel at her. and ordered her to clean herself. She complied. Afterward, Appellant stuffed

the washcloth down her throat, causing her to choke on the washcloth.

[Tr.] The E.R. Nurse testified K.S. did NOT have any abrasions on her knees ankles or hands. The Jury,

found defendant NOT guilty on count five also NOT guilty on count six.

Appellant took K.S. to the kitchen and got something to eat. He then returned to the bedroom,

but unable to get an erection, forced his penis into her anus. K.S. attempted. to move away from

Appellant and to push him away.

[Tr] There was no evidence to support this and the jury found defendant NOT guilty .on count four.

Appellant put a pillow over K.S.'s face and pushed down. He also choked her on two occasions.

Appellant used a bungee cord to drag K.S. throughout the apartment. K.S. testified she felt she did not

have any choice but to perform the sexual acts with Appellant. Appellant carried on the encounter for

approximately nine hours.

[Tn. Dr. Standeford testified that K.S. Did NOT have a concussion, and that the darkened area area of

the left eye (she claimed was caused by a punch) was the result of a "chronic sinus infection" that was

there prior to whatever had brought her in he also found no other sign of injury. Dr. Standeford also•

testified that to be choked to near unconsciousness (multiple times as K.S. Claims) would require a

great deal of force and would cause bruising or finger prints and that there were NO. bruising of finger

prints found. The Dr. also testified that to be dragged around with a bungee cord would cause ligature

marks, that were also NOT present.

,

[*P1O] When Appellant grew tired, he removed the handcuffs, and lay down on the bed. He then fell

asleep. K.S. then dressed, and escaped from the apartment, fleeing to a neighbor's [* *4] residence, and

calling emergency services.

[Tr]. Despite the States witness testimony, Dr. Standeford, that there was NO ligature marks, the

prosecution still maintained that K.S. Was dragged with a bungee cord. The prosecution stated; "we

don't have to prove serious physical harm" Defense counsel objected and motioned the court for a Rule

29 Directed verdict of not guilty, maintaining that the government had failed to produce sufficient

evidence to support to charges. Also stating the prosecution was alleging facts NOT in evidence.

.

[*P11] Appellant maintains he engaged in consensual sexual activity with K.S. on the evening in

question.

4

Ill. ARGUMENT IN SUPPORT OF GRANTING CERTIORARI

The United States Court of Appeals for the Sixth Circuit Case No. 17-3656 in it's order filed

March 22,2018 states; "petitioner filed an application to reopen his direct appeal to argue ineffective

assistance of appellate counsel sixteen days beyond the deadline for such an application, and the

court of appeals denied the motion on that basis. An untimely application to reopen under Ohio law

is a procedural default" Fautenberry v. Mitchell, 515 F.3d 614, 64041(6th Cir.2008) the court also

states Mr. Taulbee failed to file a petition for post-conviction relief under R.C.2953.21.

"The Ohio Supreme Court favors disposing of cases on their merits whenever possible, rather than

on procedural grounds, so when a party is out of time the court should consider allowing the brief to

be filed late." Hawkins v. Marion Correctional Institution, 28 Ohio St.3d 4, 501 N.E. 2d 1195(1986).

"the time constraints provided in App. R. 26(B)(1) are not jurisdictional. A court has the authority

under both App. R. 26(B) and App. R. 14(B) to expand the time for good cause shown. What is the

good cause standard? What may satisfy the standard for a one day delay may not be sufficient for a

one year delay." State v. Hicks, 2005-Ohio-2947.

A.

Petitioner's pro se application to re-open, App. R. 26(B) was filed 16 days late.

The courts ruling in Fautenberry v. Mitchell, who was sentenced in September of 1992 and

affirmed in 1994 states; "we find that, as of the time that Fautenberry should have filed his

application for re-opening (ie. When he acquired new counsel in 1996), the time constraints in Ohio

App. R. 26(B) were firmly established and regularly followed." Fautenberry relied upon the ruling

in Franklin v. Anderson, 434 F.3d 412 and failed because as the court points out at [**66] "the

question is not whether, the state courts consistently apply the procedural bar in the present. Put

differently, we ask "whether. At the time of petitioners actions, giving rise to the default, the

petitioner could... be deemed to have been apprised of the rule's existence." Hutchison, 303 F.3d at

737.

"jurists of reason could differ on the issue of whether the timing requirement of Ohio appellate rule

requiring "good cause" to excuse filing outside of the 90 day period for an application to re-open

was an adequate and independent state ground on which to base a procedural default, and therefore

Certificate ofAppealability (COA) would issue for ineffective assistance of appellate counsel claims

5

raised in application to re-open and in the habeas petition." Davie v. Mitchell, 324 F. Supp.2d 862.

The circumstances here are different from Fautenberry, in this case the language of State v.

Murnahan, 63 Ohio St; 3d 60 applies that specifically allow for delayed re-consideration. The more

applicable standard for this case should be similar to that of Franklin where the court concluded;

"rule 26 (B) fails to satisfy the second part of the maupin test, that courts 'actually enforced the state

procedural sanction'.. ."for several years following the enactment of amended rule 26(B), the Ohio

Supreme Court regularly enforced the rule's timeliness requirements", citations omitted... "However in

2000 it began ignoring the lower courts dismissals of rule 26(B) applications as untimely and affirming

the dismissal of the applications on the merits."citations omitted... "recently in yet another reversal of

practice, the Ohio Supreme Court has renewed affirming the dismissal of rule 26(B) applications in,

capitol cases as untimely. "citations omitted. Franklin v. Anderson, 434 F.3d 412.

The Franklin court decided, due to the eratic treatment of rule 26(B) applications, rule 26(B) is

not an adequate and independent state rule. Under this analysis, the rule also, does not meet the third

requirement under the Maupin test. Having established that both the second and third criteria of

Maupin were not satisfied, it was error to apply the procedural default bar, of the mis-applied holding

in Fautenberiy. The Court should also consider that Taulbee has been diligent in seeking redress.

B.

Petitioner failed to file a post-conviction action to raise these claims.

Mr. Taulbee was unable to file a post-conviction action under R.C.2953.21 due to trial

-appellate counsel's deficient actions and by no direct result of his own. As previously pointed out in

Motion for Pauper Status. The time to file a post-conviction petition was, then, 180 days from the date

of the Notice of Filing of the Record, which was June 2, 2014age id#353) after several extensions of

time the case was finally argued and the court issued an opinion on March 13, 2015(page id#354) more

than nine months had passed, well beyond the 180 day filing deadline for filing a post-conviction

action. The new rule of 365 days to file under house bill 663 was not in effect until March 23, 2015.

It would be unrealistic for a petitioner to file pro se an ineffective claim in post-conviction while being

represented by the ineffective counsel and having no way of knowing what issues to raise

0

Petitioner, also was under the belief, at the time, that trial-appellate counsel intended to continue

representation if need be. This is verifiable through Affidavit filed (page id#232-233) where Mr.

Taulbee's brother attended the oral argument's on appeal and spoke to counsel.

"Mr. Sanderson [counsel] told me that he intended to file an appeal to the Supreme Court of Ohio if

the appeal for which the hearing was held February 19, 2015 was denied."

The Appellate Court filed it's decision on March 13, 2015 and affirmed the conviction, 2014CA-0005. Counsel sent notification to Mr. Taulbee on April 3, 2015 of the courts decision and his

intent to withdraw as counsel and suggested Taulbee contact the Ohio Public Defender to proceed. The

Ohio Public Defender declined assistance, Taulbee then utilized the only option available as an

indigent, the institution's law library and filedpro se a delayed appeal to the Ohio Supreme Court,2015Ohio- 1145, and a Motion to Reconsider under App.R.26(B), 14-CA-5 in the 5th dist. Court of Appeals.

When a criminal defendant, while being represented by counsel, is under the belief that counsel

intends to file an action or proceed to the next court, then does not and instead, delays notification and

instructs the defendant to seek other representation and fails to file at minimum, an extension of time to

file appeal, causes extreme prejudice to that defendant in proceeding any further in the appeal process.

C.

Counsel's representation at trial and appellate level has caused prejudice.

Mr. Taulbee has suffered prejudice from counsel's performance where he did not fully litigate

issues on appeal and failed to argue substantial trial errors. Criminal defendant's are guaranteed the

right to counsel and by extension the right to effective representation at critical stages for a good

reason, the layman doesn't have a chance against the government lawyer's without competent

assistance. Direct Appeal is a Critical Stage, as is giving the "Allen charge" to a deadlocked jury, where

counsel is required to be present and the best time to litigate any claimed trial errors. In this case, trial

counsel was also appellate counsel and when faced with conflicting interests, failed to question his own

performance at the trial level. Counsel raised essentially the same, single, incomplete argument on

appeal that the trial court overruled on Motion for Directed Verdict (Crim. R.29) and failed.

"Several Federal Courts have recognized that having the same counsel on appeal as at trial

creates a conflict in trying to raise ineffective assistance of counsel claims on direct appeal.; Jamison v.

Collins, 100 F. Supp.2d 52 S.D. Ohio(1998). "same counsel can prejudice appeal; U.S. v. Maldonado,

241 Fed. Appx. 198(5th Cir. 2007). "counsel cannot realistically be expected to argue his own

incompetence; State v. Carter, 36 Ohio Misc. 170,65.

When trial and appellate counsel are the same, the Ohio Supreme Court has recognized a

lawyer's inherent conflict of interest that is highly personal; State v. Lentz, 70 Ohio St. 3d 527; citing

State v. Cole, 2 Ohio St. 3d 114. "an actual conflict of interest adversely affecting a lawyer's

performance renders assistance ineffective; Cuyler v. Sullivan, 446 U.S. at 344 id at 345-360

The Arkansas Supreme Court has recognized in Rousaville v. State, 373 Ark. 194, 282 S.W. 3d

759, 760(2008) "it is unrealistic to expect trial counsel, who is also appellate counsel, to call into

question his own incompetence; Sasser v. Hobbs, 735 F.3d 833 at [**50](8th Cir. 2013).

The Sixth Circuit has ruled "indigent defendant's will be represented by trial counsel on appeal,

and trial counsel are unlikely to raise their own errors in a motion for a new trial; Sutton v. Carpenter,

745 F. 3d 787 (6th Cir).

Following the jury verdict, counsel argued a Motion for Directed Verdict as the verdicts in this

case were, truly inconsistent. Counsel argued "kidnapping was part and parcel to any sexual assault, the

government repeatedly argues he restrained her against her will and forced her to do things she did not

want to do" (page id# 1032-1038). The Court overruled the motion and counsel argued essentially the

same (valid but overruled) failed argument on direct appeal, and failed to raise any additional

assignments of error to support the argument. Additional errors for example could have included.

1.

The Trial Court's Denial of Motion for Acquittal

Denial of Motion for Acquittal is separate issue from Sufficiency of Evidence and should be

argued separately on appeal. "a trial court shall not overrule a motion for acquittal made pursuant to

Crim. R. 29(A) when, viewing the evidence in a light most favorable to the government, a reasonable

8

mind could not fairly find each element of the offense charged beyond a reasonable doubt." Cincinnati

v. Robben, 8 Ohio App. 3d. 203 citing State v. Bridgeman, 55 Ohio St. 2d. 261. In this case essential

factual elements are missing and creates a legal question as to Sufficiency of Evidence.

2.

Sufficiency of the Evidence

The Sixth Circuit has held; while a challenge to the sufficiency of the evidence on an

(a).

established element of the offense raises a federal constitutional claim cognizable in a habeas corpus

proceeding, "the applicability of the reasonable doubt standard... has always been dependent on how a

state defines the offense that is charged in any given case." Patterson v. New York, 432 U.S. 197, 211

N. 12, 97 S.Ct 2319, 53 L.Ed 2d 281(1977) at [*33] see also Jackson,443 U.S. at 324 n. 16; Mullaney

v. Wilbur, 421 U.S. 684, 691, 95 S. Ct. 1881, 44 L. Ed. 2D 508(1975). Thus, "[a] federal court must

look to state law to determine the elements of the crime." Quartararo v. Hanslmaier, 186 F. 3d 91, 97

(2dCir. 1991).

With respect to the crime for which petitioner was convicted, the elements of the offense are

contained in the jury instructions (page id#87) which define the elements in count two and three the

same. Purpose to compel submission is an essential element of the offense of rape. And (page id#93)

defines the element of count five Purpose to terrorize or inflict serious physical harm to K.S. is an

essential element of the offense of kidnapping. As shown in the statement of case and fact at [*p4]

"appellant then returned to the apartment with handcuffs." The Government's specific allegations in

which an offense was committed is clear. The Government maintains petitioner possessed the mens rea

to "knowingly" and "purposely" restrain the liberty of K.S. to terrorize, or inflict serious physical harm,

that being, rape and physical abuse.

"at trial, the state maintained that appellant restrained the liberty of the victim for the purpose of

terrorizing her... In context of 2905. 01 (A)(3) the court recognizes that what amounts to "terrorize"

may differ upon the circumstances presented." State v. Vigil, 2016-Ohio-7485 at [*23] (8tl Dist.)

Because, in this case, the fact and circumstances presented show, kidnapping is an essential

element of the offense of rape, because handcuffing was the purpose used to compel submission.

(b)

The second aspect of the sufficiency of evidence is a direct relationship to count 2 and 3.

The statement of case and fact at [*p6] claims "appellant then put his fingers into K.S.'s vagina

several times, cutting her vagina with his fingernails causing her to bleed onto her bedsheets. At the

same time, he put one finger into her anus in a harsh manner. Counsel for the state at (Tr. 480 page

9

Id#845) addressing counts two and three "your honor' I combine these two together because Ms.

Smith- specifically, Ms. Smith testified that after the defendant handcuffed her, he forcefully

inserted his fingers into her vagina and one into her anus, and she did not want him to do that."

The State of Ohio has addressed this in State v. Himes,2010-Ohio-332;

[*P111 In applying the merger test to the offense of rape, it must be recognized that there are

not actually offenses called "vaginal rape" or "digital rape." Rather, these are factual terms used

to assist the parties [* *6] and the trier of fact in identifying multiple charges and to differentiate

the charges in recounting the factual situation of the case for instance.

L*P121 In count five and .count six, appellant was charged with rape in violation of R.C.

2907.02(A)(2). The elements of both offenses are thus as follows:

[*P13] "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." R.C. 2907.02(A)(2).

F*P141 As we have previously stated, the pertinent essential element is sexual conduct, not the

exact type of sexual conduct. Himes, 7th Dist. No. 08MA146 at P30. The factual particulars of

entry, i.e. oral, digital, vaginal, or anal, are not elements of the offense of rape. In other words,

defendants are charged with rape in violation of R.C. 2907.02, not the definition of sexual

conduct provided in R.C. 2907.01 (A).

[*P15] The addition of these descriptors, set forth in a separate definitional statute, is an

improper consideration of the particular facts of the case. Compared in the abstract without

considering the evidence of the case, the statutory elements of the offense of rape align with the

statutory elements of the offense of rape.

L*P161 [* *7] In fact, it has been stated that one need not actually use the term "allied offenses

of similar import" (or its comparison of the elements test) when dealing with two counts

charging the exact same statutorily enumerated offense. See Moore, 7th Dist. No. 02CA216 at

P87. This is due to the language of R.C. 2941.25(B), which states offenses of "the same or

similar kind" and the subsequent cases setting forth the parameters of the first step of the merger

test and referencing only questions of whether the offenses are of "similar import." That is to

say, if a person is charged with multiple counts of the statutorily same (without viewing the

particular facts of the case) offense, the first step is automatically satisfied, and the court

proceeds directly to the second step to determine if the acts constituting the offenses were

committed separately or with separate animus.

10

In this case the testimony is clear and the state concedes counts two and three are in fact a single

action that happened at "exactly same time" and when comparing the statutory offenses in the abstract

counts two and three are in fact the "same count". Counts two and four, in this case, are also essential

elements, that must be proved, alleging the manner in which an offense is committed.

3.

Counsel was physically absent at a critical stage of the proceeding.

Mr. Taulbee filed a Motion to Compel Discovery and or expand the record (doe #16) and

requested missing transcript page #649, that was not included in the original filing of the record. The

respondent filed page #649 on April 4, 2017 (doc# 18 page id#1101) which details an in chamber

discussion were both counsel for the state and was present and Mr. Sprouse was there as co-counsel in

place of Mr. Sanderson, who was counsel of record but was in another county. Mr. Sprouse had not

previously been present in the proceedings, and was unaware of Mr. Sanderson's defense strategy. The

court, held a conference call via speakerphone with Mr. Sanderson, the context of that call is not on

record, however it appears that the conversation was due to a jury question. There is also obvious

confusion and disagreement on how to proceed. The jury asked; "we have one juror who does not agree

and won't budge. He says nothing will change his mind. What should we do?"age id# 1325). Counsel

for the state responds; "we believe that-- there are two charges that were discussing." (page id#1326).

The record does not reflect exactly which two charges the state refers to or how the state came to this

conclusion. Mr. Sprouse then recommends to the court; "we think an "Allen Charge" would be most

appropriate here and would object to anything else." The court responds; "Okay. I thought Mr.

Sanderson-- well, strike that." "very well. We'll go in the courtroom. I'll tell you what Fm going to

do."(page id# 1327). Counsel's physical absence, the state's insight to a deliberating jury and the

confusion on procedural strategy, all taking place at a critical point in the proceeding, the resulting

prejudice, should have been properly reviewed on appeal but was not due to counsel's inherent conflict

of interest. The Sixth Circuit found denial of counsel at a critical stage includes giving a deadlocked

jury instruction on how to proceed and denial at critical stage requires automatic reversal. per cronic.

ii

Finley v. McQuiggan,2011 U.S. Dist. Lexis 62108 at *33; see also French v. Jones, 332 F. 3d 430(6th

Cir. 2009) and Musladin v. Lamarque, 555 F.3d 830 at HN 2122(9th Cir.2009).

4.

(a)

Inadmissible, unauthenticated evidence and knowingly false or perjured testimony.

Detective Meadows testified, "he found two small drops or specs of what "appeared" to be

blood, one was on the side where the fitted sheet goes down- the other at the foot of the bed. They were

not wet also not tested for authenticity" age id#769-770). Since this alleged "blood" was not

authenticated, the Detectives testimony was merely speculative and prejudicial in violation Ev. R. 901.

The Ohio Supreme Court has repeatedly and consistently held "that the results of chemical tests

may only be admitted in evidence upon the affirmative establishment of facts supporting the conclusion

that the bodily substance was analyzed in accordance with methods approved by the Director of

Health." Cincinnati v. Sand, 43 Ohio St. 2d 79(1975).

Here the alleged "blood" was admittedly never tested, therefore it's exact character and

implications as to guilt or innocence cannot now be determined and any assertion that the evidence was

material or exculpatory is merely speculative. The resulting prejudice is plainly apparent by the Fifth

District Court of Appeals ruling that refers to "blood" on the sheet in it's ruling affirming conviction.

A prosecutor has "a special duty not to mislead" this duty arises from a prosecutors dual

responsibility not merely to win a case, but to insure that justice is done. The potential for a prosecutor

to deliberately mislead the judge, jury, and defense counsel is inherent in every phase of the trial,

including offering evidence, questioning witness's, making comments, and presenting arguments.

Misleading conduct also may be demonstrated by a prosecutor's use of police witnesses to

provide so-called "overview" testimony that may give the jury a skewed impression of the evidence.

False physical evidence includes clothing and other garments misrepresented as stained with blood.

The U.S. Supreme Court has reversed a murder conviction where prosecutors misrepresented paint

stained clothing as stained with the victim's blood, Miller v. Pate,386 U.S. 1, citing the Fourteenth

Amendment cannot tolerate a state criminal conviction obtained by the knowing use of false evidence.

12

"because a prosecutor is a public official charged with law enforcement, a jury is likely to

repose greater trust in his arguments than in those of the defendant's lawyer. The prosecutor must not

abuse that trust by misleading the jury about the law or the evidence or about the probability of the

defendant's lawyer, or by appealing to jurors prejudice's and fears" Berger v. U.S. 29578,88 (1935) see

also; Hennon v. Cooper, 109 F. 3d 330,333(7th Cir.1997).

(b)

K.S. testified "they said I had a concussion," Defense Counsel objected as hearsay (page

id#558). The State responded "that was what they told her for medical purposes" (page id#559). K.S.

also claimed to have been drug around by a bungee cord, choked to near unconsciousness multiple

times, and punched in the head and face at least 20 times (page id#533-540).

However Dr. Standeford testified "x-rays showed K.S. did not, have a concussion and the

darkened area of the left eye was a result of a chronic sinus condition that was there prior to whatever it

was that brought her in today, he also found no other sign of injury (page id# 830).

Dr. Standeford also testified, "to be choked to near unconsciousness would require a great deal

of force and would cause bruising or fingerprints and there were, no bruising or fingerprints found. And

to be dragged around with a bungee cord would cause ligature marks, that were also, not present (page

id#832).

The deliberate use of perjured testimony to obtain a conviction violates a defendant's rights of

Due Process and denies him a fair trial. The prosecutor's involvement in false testimony, although

analytically distinct from the issues of suppression of evidence under Brady v. Maryland, is frequently

discussed as a component of the broader Brady rule. The prosecutorial duty extends not only to the

active solicitation of false testimony, but also to the knowing failure to correct false testimony. The

standard of materiality applicable to convictions based on the knowing use of false testimony is more

stringent on a prosecutor than the standard for other Brady violations. A conviction based on the

knowing use of false testimony must be set aside "if there is any reasonable likelihood that the false

testimony could have affected the judgment of the jury." Defense Counsel in this instant case, objected

to the state's repeatedly referring to facts not in evidence and hyperbolizing the facts of the case.

13

The Supreme Court has made clear in; In Re Winship, 397 U.S. 358, due process mandates

"proof beyond a reasonable doubt of every fact necessary to constitute the crime with which the

defendant is charged." the State of Ohio has held that, "specific allegations in an indictment alleging

the manner in which an offense is committed, must be proved by the state." State v. Crosky, 2008-Ohio145. And "to permit the prosecution to prove that a crime was committed in a different manner than

that specifically alleged in the indictment could subject an accused to unfair surprise at trial" citing

State v. Bowers, 2007-Ohio-3986 where the court overturned a conviction-because "the state's evidence

at trial simply does not correspond to the specific allegation contained in the indictment."

The necessity of providing both the essential elements of the crime charged and sufficient facts

regarding the offense is grounded in the Fifth and Sixth Amendments to the United States Constitution

and Federal Rules of Criminal Procedure, 7(C)( 1) which requires that an indictment be plain, concise,

and definite written statement of essential facts constituting offense charged, and mandates that each

essential element of the offense be alleged together with sufficient additional facts to allow indictment

to be used as proof in bar of subsequent prosecution for the same offense; United States v. Duncan, 598

F2d. 839, 4 Fed. Rules Evid. Serv.848.

"An indictment must contain facts which describe essential elements intended to be charged and

must be sufficient to apprise accused of nature of offense so that he may adequately prepare his

defense." United States v. Wagstaff,572 F2d. 270; "and it's generality must not endanger his

constitutional guaranty against Double Jeopardy." United States v. Brown, 540 F2d. 364.

Omission of element of crime is not a mere formality that may be waived; failure to charge

specific intent is particular aspect of failure to charge offense, and where party alleges such failure,

court has to question validity of form of indictment before it." United States v. Purvis 580 F2d. 853.

Using facts not found by a jury, beyond a reasonable doubt, to increase punishment violates the

and 14'Amendments Alleyene v. United States 133, S .Ct. 2151(2013). In the instant case the jury

6'

found essential facts did not exist and Petitioner was given a longer sentence than the plea offered.

14

The Ohio standard for inconsistent verdicts I sufficiency of evidence / double joepardy

In Ohio the courts have held that several counts of an indictment are interdependent and an

inconsistency in a verdict does not arise out of inconsistent responses to different counts, but arises out

of inconsistent responses to the same count. As previously mentioned, the state concedes, counts two

and three are in fact the same count by combining them together. Using the analysis of State v. Himes

when compared in the abstract without considering the evidence of the case, the statutory elements of

each count are identical. The state of Ohio has previously overturned convictions on this very issue;

"one verdict simply says she murdered the victim, and the other verdict acquitted her of murdering the

victim. Nothing differentiates one count from the other." State v. Mays, 161 Ohio App. 3d. 175.

In a similar case the Ohio Supreme Court ruled; "the indictment .in this case failed to give

constitutionally adequate notice of the charges. The constitutional error in this case is traceable * * * to

the fact there is no differentiation among the counts * * * if prosecutors seek multiple charges against a

defendant, they must link those, multiple charges to multiple identifiable offenses * * * courts cannot

uphold convictions when they are unable to discern the evidence that supports each individual

conviction." State v. Sowell, 148 Ohio St. 3d. 554, 2016-Ohio-8025; citing Valentine v. Konteh, 395 F.

3d. 626(6th Cir. 2005).

The Fifth District has overturned convictions holding that; "to ensure jury unanimity in multiple

acts cases, we require that either the state elect the particular criminal act upon which it will rely for

conviction, or that the trial court instruct the jury that all of them must agree that the same underlying

criminal act has been proved beyond a reasonable doubt." State v. Feagan, 2014-Ohio-5 133;citing

Gardner. The Fifth District vacated a conviction citing a sufficiency of evidence claim and double

jeopardy violation where the prosecution admitted that count three was a duplicate count. State v.

Gilliam, 2012-Ohio-5034. Courts in other states have followed a similar rule that "when an indictment

charges two crimes, each of which has identical elements, a finding of quilt on one but not the other- is

truly repugnant, as opposed to being merely inconsistent." People v. Bullis,30 AD 2d. 470. This

.1-5

"identical elements" principal has been adopted and applied to numerous cases since."In Maryland

legally inconsistent jury verdicts are not acceptable" [per state law] Wallace v. State, 219 Md. App. 234.

Ohio's Ninth District Court of Appeals held; "Gardner is not binding authority because a

majority of the court did not concur in the analysis." State v. Ward, 2011-Ohio-518. The Ohio Supreme

Court has said; "although a trial court is not required to instruct on the element of the underlying

offense that a defendant intends to commit, this court has previously expressed a preference that the

trial court do so. Such instructions provide an important road map for the jury in it's deliberations and

help ensure that jurors focus on specific conduct that constitutes a criminal offense." State v. Lynn, 129

Ohio St. 3d. 146. The opinion of Justice Lanzinger in Lynn also says; "Gardner is a plurality opinion,

and therefore not binding authority.".

The facts and circumstances of this case are based upon the predicate offense of kidnapping, to

compel submission for the purpose of rape. The facts of this case require by law that kidnapping is a

necessary element that must be proved. The elements related to the acquitted, count two are also

necessary elements for conviction.

The Fifth District Court of Appeals analysis of similar issues appear to be in conflict with other

Ohio cases and by making these opposing opinions, run the risk of institutionalizing a policy of

permitting reliance on non-binding authority, particularly in the face of other, contrary non-binding

authority, that borders on being categorized as systemic negligence.

Upon proper consideration of the facts and circumstances of this case the inconsistencies are

such to indicate that the verdict was a product of irrationality. The holding in Gardner's plurality

opinion is improper as applied to this case and as Powell clearly states; "a rational and logical

inconsistent verdict cannot be attacked, however, an irrational and illogical verdict must be set aside."

When applied to this case the aforementioned analysis and case law require the conviction

cannot be upheld, the conviction does not satisfy sufficiency of evidence standards and is in violation

of the prohibition against double jeopardy.

16

W CONCLUSION

This is not a case where overwhelming evidence supports a conviction, it is clear in this case

that the state's evidence at trial does not correspond to the allegations, and the state failed to prove

essential elements to support a conviction. The appellate court affirmed conviction based upon a non

binding, plurality opinion and an incomplete review due to counsel's deficient performance.

This entire case rests upon the inconsistent perjured testimony of an angry girlfriend who

claimed she wanted to get even. The medical evidence does not support a conviction and the sane nurse

testified her only reason to believe that an assault had taken place, is because that is what she was

"told". Defense counsel objected to the state's repeatedly, referring to facts not in evidence, and

hyperbolizing the facts of the case. The state, in an attempt to minimize the burden of proof claimed

that "we don't have to prove serious physical harm"(although this was essentially the case theory).

There exists no rational theory of events, to delineate the factual distinction between the

acquitted counts and the single guilty count, without considering facts the jury concluded does not

exist, to support a conviction.

Legally and factually, innocence has been established threw the jury's verdict and Taulbee has

been improperly denied access to the court by a mis-applied procedural bar, unless the court is also

satisfied that the trial was free of non harmless constitutional error, the court cannot have confidence in

the outcome of the trial or the lower courts ruling. If the court is not sure the trial was free of non

harmless constitutional error, then review should be granted.

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