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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

KLINT KUCK, 

Petitioner, : Case No. 3:18-cv-157 

- vs - District Judge Thomas M. Rose 

Magistrate Judge Michael R. Merz 

NORM ROBINSON, Warden, 

 London Correctional Institution 

 : 

 Respondent. 

SUPPLEMENTAL REPORT AND RECOMMENDATIONS 

 

 This habeas corpus action is before the Court on Petitioner’s Objections (ECF No. 23) to 

the Magistrate Judge’s Report and Recommendations recommending dismissal (ECF No. 22). 

District Judge Rose has recommitted the case for reconsideration in light of the Objections (ECF 

No. 24). 

First Objection: Incorrect Finding of Procedural Default 

 Petitioner first objects that the Magistrate Judge mistakenly found that subclaim six of the 

Second Ground for Relief was procedurally defaulted (Objections, ECF No. 23, PageID 2265). In 

that particular subclaim, Kuck asserted he received ineffective assistance of trial counsel when his 

trial attorney failed to object to a number of instances of asserted prosecutorial misconduct. The 

Report noted, “So far as the Court can determine, Kuck did not raise this subclaim on either direct 
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appeal or appeal from denial of his petition for post-conviction relief. It is therefore subject to 

analysis as procedurally defaulted.” (ECF No. 22, PageID 2253.) The Report recommended 

dismissing this subclaim as procedurally defaulted. Id. at PageID 2254. 

 Petitioner now calls the Magistrate Judge’s attention to his Amended Brief on direct appeal 

which presented the following issue: “Does trial counsel provide ineffective assistance when he 

fails to object to hearsay, improper loaded questions, questions prohibited by the Rape Shield 

Statute, and inadmissible, prejudicial character evidence regarding both the "bad character" of the 

defendant and the "good character" of the alleged victims?” (Amended Brief, State Court Record, 

ECF No. 13, PageID 373.) This issue was dealt with expressly by the Second District Court of 

Appeals in its decision of December 29, 2016, reported at State v. Kuck, 79 N.E.3d 1164, 2016-

Ohio-8512 (Ohio Ct. App. 2nd Dist. 2016). That court wrote: 

[*P87] Lastly, Kuck argues that trial counsel was ineffective for not 

objecting to hearsay, to improper leading questions, to questions 

prohibited by the rape-shield statute, and to character evidence 

regarding both Kuck's bad character and the victims' good character. 

We considered the underlying legal propositions in our review of 

the fourth assignment of error. Once again, Kuck recasts 

propositions of law as ineffective assistance. We rejected the 

underlying propositions on their merits, so we reject Kuck's 

ineffective assistance claim here. 

Id. at 1189, ¶ 87. Petitioner preserved this claim for merits review in habeas by presenting to the 

Ohio Supreme Court as his Seventh Proposition of Law in his Second Memorandum in Support of 

Jurisdiction as follows: 

PROPOSITION OF LAW NO. 7: It is ineffective assistance of 

counsel for criminal trial counsel to repeatedly fail to object to 

improper jury instructions, to repeatedly fail to object to improper 

questioning by the prosecutor, to fail to call a favorable eye witness, 

to fail to prepare to cross examine complaining witnesses with their 
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own previous statements, and to fail to object to improper character 

evidence, entitling the defendant to a new trial. 

(State Court Record, ECF No. 13, PageID 642-43.) 

 Therefore, the Objection to the Magistrate Judge’s procedural default finding on this 

subclaim is well taken and that portion of the Report is WITHDRAWN. 

 The question then is whether the Second District’s decision on the merits is contrary to or 

an objectively unreasonable application of clearly established Supreme Court law. The relevant 

standard is provided by Strickland v. Washington, 466 U.S. 668 (1984), quoted in the Report. 

(ECF No. 22, PageID 2239-40.) The Second District concluded it was not ineffective assistance 

of trial counsel to fail to object to the various asserted instances of prosecutorial misconduct 

because the objections would have been without merit. In the Petition, Kuck raised his claims of 

prosecutorial misconduct in Ground Three. (ECF No. 1, PageID 27.) The Report recommended 

that Ground Three be dismissed with prejudice (ECF No. 22, PageID 2256). Petitioner has not 

objected to that conclusion. As the Second District held, if the underlying conduct did not 

constitute misconduct by the prosecutor, it cannot have been ineffective assistance of trial counsel 

to fail to object to it. Therefore, this particular subclaim of ineffective assistance of trial counsel 

should be dismissed on the merits, rather than as procedurally defaulted. 

Second Objection: Denial of Certificate of Appealability on Ground One 

 In his First Ground for Relief, Kuck claims he was denied a fair trial because he was 

required to use a peremptory challenge to remove a juror who had said she doubted her ability to 

be fair in this rape case because her son had been raped as a young man. The Second District 
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denied the claim and the Report found that decision was not an “unreasonable application of the 

holdings in Supreme Court precedent,” (ECF No. 22, PageID 2237-39, principally relying on Ross 

v. Oklahoma, 487 U.S. 81 (1988)). 

 The Report noted that this Court might reach the opposite conclusion if it were deciding 

Kuck’s peremptory challenge de novo. Id. at PageID 2238. Petitioner argues that by denying a 

certificate of appealability, “this issue will never come before any Court which does have that 

authority if cases like this one are prevented from being appealed.” (Objections, ECF No. 23, 

PageID 2267.) 

In many ways the Supreme Court and Congress have limited the ability of the courts to 

create new law in habeas corpus cases. One of those is by requiring a certificate of appealability. 

But the law on that subject does not permit a trial judge to allow an appeal just because it would 

be good to have an appellate pronouncement on a particular question of constitutional law. Rather, 

the test is whether reasonable jurists disagree, not on what the law ought to be, but on what the 

Supreme Court has said the law is. If there were reasoned opinions from other judges stating that 

it is unconstitutional, under current precedent, to require a defendant to use a peremptory challenge 

to remove a juror who should have been removed for cause, then presumably Petitioner would 

have cited such decisions. But he has not. In the absence of proof that other judges have taken a 

different position on what the Constitution requires in these circumstances, this Court is not 

empowered to issue a certificate of appealability. Petitioner can, of course, apply for a certificate 

from the Sixth Circuit which may have a different view of the matter. 
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Conclusion 

 Having reviewed the case in light of the Objections, the Magistrate Judge again 

recommends the Petition be dismissed with prejudice, and that Petitioner be denied a certificate of 

appealability. The Court should certify to the Sixth Circuit that any appeal would be objectively 

frivolous and therefore should not be permitted to proceed in forma pauperis. 

January 24, 2019. 

 s/ Michael R. Merz

 United States Magistrate Judge 

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. 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. If the Report and 

Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, 

the objecting party shall promptly arrange for the transcription of the record, or such portions of it 

as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District 

Judge otherwise directs. 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. See United States v. Walters, 638 F.2d 947, 949-50 (6th 

Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).