TERENCE P. KEMP, Magistrate Judge.
Petitioner, Henry A. Durdin, Jr., an inmate at Mansfield Correctional Institution ("MCI"), filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on the petition (Doc. 3) and the Respondent's return of writ (Doc. 7). Petitioner has not filed a traverse. For the foregoing reasons, it will be recommended that the petition be
The facts of the case are summarized by the Franklin County, Ohio, Court of Appeals:
(Doc. 7, Ex. 15); State v. Durdin, 2014 WL 7462990, at *1-*3 (Franklin Cty. Dec. 30, 2014). The factual narratives set out by the state court are presumed to be correct. 28 U.S.C. §2254(e)(1).
Petitioner was indicted by the Franklin County Grand Jury on May 31, 2013, charging him with one count of kidnapping (O.R.C. §2905.01) with a firearm specification; one count of rape (O.R.C. §2907.02) with a firearm specification and a sexually violent predator specification; one count of aggravated robbery (O.R.C. §2911.01) with a firearm specification; one count of domestic violence (O.R.C. §2919.25) with a firearm specification; and one count of possessing a weapon under a disability (O.R.C. §2923.13). (Doc. 7, Ex. 1). Petitioner pleaded not guilty to the charges.
During the pretrial proceedings, Petitioner filed two motions in limine to exclude alleged hearsay testimony from Patricia Daniels, the victim's sister, and from Lindsay McNichols, the SANE nurse. Rather than rule pretrial, the court took the motions under advisement and indicated that it would respond to any objections made during trial. (Tr. at 16-20). The State had filed a motion to depose the victim, but the motion was withdrawn on the day of the trial and no deposition occurred. (Doc. 7, Ex. 3; Tr. 20-21). Objections to the SANE nurse's testimony during trial were overruled, and the victim's sister testified without objection. (Tr. 60-61; 36-44). After the state rested its case, and again after the defense rested its case, Petitioner unsuccessfully moved for acquittal under Rule 29. (Tr. 165, 183). The jury found Petitioner guilty of all counts and specifications. (Doc. 7, Ex. 4).
On March 18, 2014, Petitioner was sentenced to twenty years to life imprisonment. The sentencing entry provides, in pertinent part, as follows:
(Doc. 7, Ex. 5).
Petitioner timely appealed his conviction (Doc. 7, Ex. 9-10), raising the following assignments of error:
On December 30, 2014, the Court of Appeals sustained Petitioner's second assignment of error, and sustained in part and overruled in part Petitioner's first assignment of error. The court found that the trial court erred in admitting testimony of the SANE nurse recounting the victim's belief that Petitioner had taken her gun. The Court found that the record contained sufficient evidence to convict Petitioner of possessing a firearm under a disability, but did not contain sufficient evidence to support the aggravated robbery conviction or the firearm specifications attached to the aggravated robbery and rape charge. Accordingly, Petitioner's case was remanded to the Franklin County Court of Common Pleas. (Tr. 7, Ex. 15-16); Durdin, supra, 2014 WL 7462990.
On February 25, 2015, an application to re-open Petitioner's appeal pursuant to Ohio App. R. 26(B) was filed. (Doc. 7, Ex. 17). Petitioner later sent a letter to Clerk of the Court of Appeals requesting that the application be removed from the record because it was forged and filed without his consent. The court construed the letter as a motion to dismiss the application, which it granted. (Doc. 7, Ex. 19).
On November 4, 2014, while his appeal was pending, Petitioner filed a motion for production of transcripts, which was opposed by the State. (Doc. 7, Ex. 12-13). The motion was denied on November 25, 2014. (Doc. 7, Ex. 14).
With respect to the convictions that were affirmed on direct appeal, Petitioner filed a pro se appeal to the Ohio Supreme Court (Doc. 20-21), raising the following propositions of law:
On May 20, 2015, the Ohio Supreme Court declined to accept jurisdiction. (Doc. 7, Ex. 23).
While awaiting re-sentencing, Petitioner moved for full discovery and the State opposed the motion (Doc. 7, Ex 24-25). The trial court did not rule on that motion. On March 31, 2015, Petitioner went before the trial court for re-sentencing pursuant to the decision of the Court of Appeals. He was sentenced to three years in prison for kidnapping; 11 years to life for rape; 18 months for domestic violence; and two years for possessing a weapon under a disability. The sentences for domestic violence and possessing a weapon under a disability were again to be served concurrently with each other and the other sentences. The sentences for kidnapping and rape were to run consecutively, resulting in an aggregate sentence of 14 years to life. (Doc. 7, Ex. 26).
On April 20, 2015, Petitioner filed a pro se notice of appeal. (Doc. 7, Ex. 27). The appeal was dismissed by the appellate court sua sponte on June 23, 2015 because Petitioner did not file a brief. (Doc. 7, Ex. 28). Petitioner did not appeal to the Ohio Supreme Court.
On May 4, 2015, Petitioner filed a pro se application for re-opening of his appeal pursuant to Ohio App. R. 26(B) (Doc. 7, Ex. 29), raising the following grounds:
On August 20, 2015, the Court of Appeals denied his motion because it was untimely. (Doc. 7, Ex. 31-32). Petitioner did not appeal to the Ohio Supreme Court.
Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 in this Court on April 26, 2016 (Doc. 3), raising the following grounds for relief.
Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. §2254(a). In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. §2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust his claims but would find those claims barred if later presented to the state courts, "there is a procedural default for purposes of federal habeas. . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term "procedural default" has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This "requires the petitioner to present `the same claim under the same theory' to the state courts before raising it on federal habeas review." Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of "fairly presenting" a claim to the state courts is that a habeas petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. That means that if the claims are not presented to the state courts in the way in which state law requires, and the state courts therefore do not decide the claims on their merits, neither may a federal court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), "contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure" also cannot be resolved on their merits in a federal habeas case-that is, they are "procedurally defaulted."
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective assistance of counsel claim generally must "`be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.'" Edwards, 529 U.S. at 452 (quoting Murray, supra, 477 U.S. at 479. That is because, before counsel's ineffectiveness will constitute cause, "that ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted." Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to "satisfy the `cause and prejudice' standard with respect to the ineffective-assistance claim itself." Edwards v. Carpenter, 529 U.S. 446, 450-51 (2000). The Supreme Court explained the importance of this requirement:
Edwards, 529 U.S. at 452-53.
If, after considering all four factors of the Maupin test, the court concludes that a procedural default occurred, it must not consider the procedurally defaulted claim on the merits unless "review is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent." Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)).
The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 ("AEDPA") govern the scope of this Court's review. See Penry v. Johnson, 532 U.S. 782, 791 (2001); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir.2008). AEDPA imposes a "highly deferential standard for evaluating state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and "demands that state-court decisions be given the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24,(2002) (per curiam).
When the claims presented in a habeas corpus petition have been presented to and decided by the state courts, a federal habeas court may not grant relief unless the state court's decision was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence that was presented. 28 U.S.C. § 2254(d) provides:
In applying this statute, the Supreme Court has held that "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." To obtain habeas corpus relief, a petitioner must show the state court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Bobby v. Dixon, 565 U.S. 23, 24 (2011) (per curiam), quoting Harrington v. Richter, 562 U.S. 86, 101-103 (2011). This bar is "difficult to meet" because "habeas corpus is a `guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. at 102 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 50 (1979) (Stevens, J., concurring in judgment)). In short, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Id., quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
In situations where the state courts have not adjudicated the merits of a claim, a federal habeas court should review a Petitioner's claim de novo. Howard v. Bouchard, 405 U.S. 459, 467 (6th Cir. 2005) ("Where the state court has not addressed or resolved claims based on federal law, most courts, including this one, have held that the decision is not an `adjudication on the merits.' Thus, a federal habeas court reviews such unaddressed claims de novo."); McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003) (reviewing habeas Petitioner's sufficiency-of-the-evidence claim de novo where the state courts had considered the admissibility of the evidence but not the sufficiency of the evidence); Pennington v. Jones, 2006 WL 322474, at *2 (E.D. Mich. Feb.10, 2006) (reviewing habeas Petitioner's claim de novo where he raised it for the first time in his petition).
Questions of state law are not reviewable in a federal habeas action. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law. Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.") (citations and internal quotation marks omitted). Petitioner instead must show that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Estelle, 502 U.S. at 68 ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). Accordingly, the Court of Appeals has held that "[e]rrors by a state court in the admission of evidence are not cognizable in habeas corpus proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial." Kelly v. Withrow, 25 F.3d 363, 370 (6th Cir. 1994).
Respondent argues that Petitioner's second through fourth grounds for relief have been procedurally defaulted, at least in part, and otherwise are without merit. The Court will address first these grounds for relief.
Ground three of the petition raises a claim for ineffective assistance of appellate counsel because, Petitioner asserts, counsel "did not even raise half" of the assignments of error in his first appeal. Petitioner also states that counsel had a "conflict of interest" because Petitioner had fired him previously when he was appointed to represent him in another case in 2003. Petitioner does not elaborate on this claim or provide specific issues that appellate counsel should have raised. When Petitioner raised an ineffective assistance of appellate counsel claim in his memorandum to the Ohio Supreme Court, he alluded only to counsel's failure to raise the ineffective assistance of trial counsel for inadequately cross-examining witnesses and failing to object to presentation of ten seconds of a recorded phone conversation (rather than the entire conversation).
Petitioner failed to file a timely application to re-open the appeal based on Ohio App.R. 26(B), which is the normal mechanism for presenting ineffective assistance of appellate counsel claims to state courts. Carter v. Mitchell, 693 F.3d 555, 564 (6th Cir. 2012). Moreover, even if it had been timely filed, Petitioner did not raise the issue of counsel's alleged conflict of interest in his 26(B) application. The Court of Appeals held that he did not show good cause for the untimely filing, which would be required to reopen the appeal past the deadline for filing. (Doc. 7, Ex. 31 at 3); Carter, supra. Petitioner did not appeal the denial of his 26(B) motion to the Ohio Supreme Court. It is well settled that "an untimely Rule 26(B) application is an adequate and independent state ground that results in a claim being procedurally defaulted." Baker v. Bradshaw, 495 F. App'x 560, 566 (6th Cir. 2012) (citing Monzo v. Edwards, 281 F.3d 568, 577-78 (6th Cir. 2002) and Gross v. Warden, 426 Fed.Appx. 349, 359 (6th Cir. 2011)).
Even if Petitioner could successfully argue that he preserved his ineffective assistance of appellate counsel claims, a general non-specific claim of ineffective assistance in a habeas petition is insufficient to demonstrate that the issue has been fairly presented to state courts. As discussed above, each factual example of deficient representation must be presented before each court, and must be based on the same legal theory. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). As this Court has previously observed:
Teagarden v. Warden, Madison Correctional Inst., 2011 WL 1659372, *6 (S.D. Ohio May 3, 2011), quoting Rose v. Lundy, 455 U.S. 509, 517 (1982). Petitioner has failed to preserve his claim for ineffective assistance of appellate counsel and it is therefore procedurally defaulted.
Petitioner's fourth ground for relief is that trial counsel was ineffective for: (1) failing to object to the state's presentation of "only ten seconds of the recorded phone call between Mr. and Ms. Durdin;" (2) failing to adequately cross-examine state witnesses; (3) failing to object to the hearsay testimony of Patricia Daniels; and (4) failing to object to the prosecutor telling the jury about his previous charges for sexual crimes that had been dismissed. He argues that counsel acted "more like an auxiliary prosecutor than an advocate." Petitioner has not fairly presented these claims to the Ohio courts. He was appointed new counsel on appeal and there was no assignment of error for ineffective assistance of trial counsel raised in his appellate brief. (Doc. 7, Ex. 10). Issues that could have been raised on direct appeal are barred from being raised later in a collateral appeal. See, State v. Roberts, 1 Ohio St.3d 36, 39 (1982) (the doctrine of res judicata precludes a petitioner from asserting constitutional issues in a postconviction proceeding that were not raised "at the earliest possible time.") All of these claims of ineffective assistance of trial counsel rely on matters appearing on the face of the record. Because Petitioner failed to raise the ineffective assistance of trial counsel claims in his direct appeal, they are procedurally defaulted.
In his second ground for relief Petitioner asserts that his Sixth Amendment right to confront witnesses against him was violated. In support of this, he argues that "[t]he alleged victim did not testify at trial and did not provide any testimony whatsoever. The alleged victim was never determined to be available before trial and Mr. Durdin had no prior opportunity for cross-examination. The whole trial was hearsay." (Doc. 3 at 6). Respondent asserts that this ground for relief is procedurally defaulted because to the extent that the failure of the victim to testify and the third party accounts of the victim's statements were raised in his state appeals, they were not based on the same legal or factual theory. See, Wong, supra, 142 F.3d at 322 ("This circuit has held that the doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which it is later presented in federal court."); see also Fautenberry v. Mitchell, 2001 WL 1763438, *13 (S.D. Ohio Dec. 26, 2001) ("Petitioners cannot present a set of facts to the state courts under one legal theory, and then present the same facts to the federal court under a different legal theory").
On direct appeal, Petitioner argued that the trial court erred in denying his motion in limine and admitting into evidence the victim's statements as recounted by the SANE nurse. Petitioner did not raise the failure of the victim to testify as an assignment of error per se, but only to the admission of the SANE nurse's testimony containing the victim's statements. He argued that the trial court should not have permitted the testimonial statements of a witness who does not appear at trial unless it made a determination that the victim was unavailable to testify and the defendant was given an opportunity to cross-examine the witness. See, Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Petitioner reasoned that because the victim was never found by the trial court to be unavailable, the testimony by other witnesses of the victim's statements should have been excluded under Ohio's evidentiary rules.
Petitioner did not argue that the testimony of Patricia Daniels (the victim's sister) violated the Confrontation Clause, but framed the argument as a violation of state law only, which is not cognizable in a federal habeas review. See, Coleman v. Thompson, 501 U.S. 722 (1991). Most significantly, however, neither the failure of the witness to testify nor the admission of the testimony of the victim's sister was raised on direct appeal. Thus, those claims are not preserved for federal review absent a showing cause for the default and actual prejudice resulting from the alleged constitutional error. Rust v. Zent, 17 F.3d 155 (6th Cir. 1994). Whether procedural default of any other claim can be excused ultimately depends on whether the claim for ineffective assistance of appellate counsel was procedurally defaulted and whether there was cause and prejudice to excuse such default. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000). In this case, Petitioner is silent as to the reasons he did not fairly present and exhaust his claims in the Ohio courts. As discussed above, Petitioner's ineffective assistance of appellate counsel claim was defaulted because he did not file a timely Rule 26(B) application. Petitioner has neither argued nor demonstrated that failure to consider the defaulted claims will result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In addition to being procedurally defaulted, Petitioner's second ground for relief fails on the merits. The Confrontation Clause guarantees an accused the right to crossexamine witnesses against him to examine credibility and possible biases on the part of the witness. See Davis v. Alaska, 415 U.S. 308, 315-16 (1974). "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested ." Id. at 315. The Confrontation Clause does not, however, prohibit the admission of all hearsay statements from witnesses who do not appear at trial. It bars "the admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had a prior opportunity for cross-examination." Crawford, 541 U.S. at 53-54 (emphasis added). To determine whether a statement is testimonial, courts must consider whether it has "a primary purpose of creating an out-of-court substitute for trial testimony." Michigan v. Bryant, 562 U.S. 344, 357 (2011). Also relevant are factors such as whether the statement was made during or immediately after the crime, in the course of assisting police in apprehending the perpetrator, or in the course of medical treatment for the purposes of treatment and diagnosis. See, e.g. Davis v. Washington, 547 U.S. 813, 828 (2006) (victim's statements during 911 call were not testimonial as they were made during and immediately after the crime, and the assailant was still at large); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 312, n. 2 (2009) ("[M]edical reports created for treatment purposes . . . would not be testimonial. . ."). A statement's formality or informality is also helpful in determining whether a particular statement has a primary purpose of use at trial. Bryant, 562 U.S. at 366; . See, also Davis, 547 U.S. at 833-834 (Domestic violence victim's formal written statement in an affidavit given to a police offer was testimonial and therefore subject to the Confrontation Clause.).
Because the victim in Petitioner's case was not found to be unavailable and he was not given the opportunity to cross-examine her, the appropriate question is whether the hearsay statements by the victim that were admitted at trial were testimonial statements. The Supreme Court has long recognized that the Confrontation Clause is not offended by spontaneous declarations, or statements "that [have] been offered in a moment of excitement-without the opportunity to reflect on the consequences of one's exclamation." White v. Illinois, 502 U.S. 346, 356 (1992). Stated in another way:
Idaho v. Wright, 497 U.S. 805, 820 (1990) (citations omitted) (concluding that admission of excited utterances under state hearsay exception did not violate the Confrontation Clause); See, also, Johnson v. Wolfe, 44 Fed.Appx. 702, 713 (6 th Cir. 2002) (admission of testimony relaying conversation with hysterical child stating that "[defendant] is going to kill [victim]" satisfied the Confrontation Clause); Kowalak v. Scutt, 712 F.Supp.2d 657 (E.D. Mich. 2010) (testimony recounting victim stated she was "petrified" and "scared to death" in a telephone call to a friend 35-40 minutes after receiving a death threat from defendant was non-testimonial).
At Petitioner's trial, Ms. Daniels, the victim's sister, testified that she was woken up by a phone call from the victim late at night, immediately after the victim had convinced Petitioner to let her drop him off at a mental health facility. Ms. Daniels testified that the victim had called her "screaming in the phone, sobbing in the phone, just like—she was so upset, and she said [defendant]," who was the victim's ex-husband, "had raped her." (Tr. 39.) The victim told Ms. Daniels that she was on her way to the hospital because she had been "raped and duct taped" and defendant "did it." (Tr. 40-41.) The victim also told her sister that defendant "had her gun," and Ms. Daniels said her sister was "afraid" because defendant "had taken [the victim's] gun from her." (Tr. 41.). This type of informal, excited statement by the victim is consistent with a "non-testimonial statement" which was not made in anticipation of making a statement for trial.
The SANE nurse who treated the victim after the incident also testified at Petitioner's trial, recounting the victim's statements during her treatment at the hospital. The victim's statements to the nurse included medical information, as well as comments that she was afraid for her safety because the Petitioner had a gun. On Petitioner's direct appeal, the court of appeals held that the trial court erred by admitting the testimony of the SANE nurse related to the victim's statements about a gun because the presence of a gun was unrelated to the victim's diagnosis and treatment. The court of appeals held that without the gun related testimony from the SANE nurse, there was insufficient evidence to prove that Petitioner was guilty of aggravated robbery and the gun specifications, and those convictions were reversed. The statements made by the victim in the course of her medical diagnosis and treatment, however, were properly admitted (i.e. victim's report that Petitioner restrained her, taped her mouth with duct tape, and hit her) and not testimonial for Confrontation Clause purposes. See, Melendez-Diaz, supra.
The Sixth Circuit Court of Appeals recently considered a case similar to Petitioner's, in which that petitioner's rape conviction largely relied on testimony from a SANE nurse based on her interaction with the victim during treatment and diagnosis following the incident. Dorsey v. Cook, ___Fed.Appx. ___; 2017 WL 371959 (6th Cir. Jan. 26, 2017). Affirming the District Court's denial of a habeas petition, the court noted that "[n]othing in Crawford or subsequent Supreme Court cases interpreting the meaning of `testimonial,' including the cases cited by Dorsey, compels the conclusion that statements made to a sexual assault nurse examiner for both medical and legal purposes are testimonial." Id. at *2. This Court similarly concludes that, to the extent that the issue was properly presented, the state appellate's court denial of Petitioner's claim for relief regarding the admission of the hearsay statements by the SANE nurse and the victim's sister was neither unreasonable nor contrary to clearly established Supreme Court precedent. Because Petitioner's second ground for relief is procedurally defaulted and also lacks merit, it will be recommended that Petitioner's second ground for relief be dismissed.
Petitioner's first ground for relief challenges the sufficiency of the evidence presented in support of his convictions and that the convictions (other than the domestic violence conviction, which he does not challenge) were against the manifest weight of the evidence. First, Respondent correctly points out that the Due Process Clause protects defendants who have been convicted without sufficient proof to permit a rational fact-finder to find guilt beyond a reasonable doubt, not defendants whose convictions are against the manifest weight of the evidence. 28 U.S.C. §2254(a) Spence v. Sheets, 675 F.Supp.2d 792, 802 (S.D. Ohio 2009) ("The Due Process Clause does not provide relief for defendants whose convictions are against the manifest weight of the evidence, but only for those who have been convicted without enough proof to allow a rational trier of fact to find guilt beyond a reasonable doubt.") (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). A claim that a finding of guilt was against the manifest weight of the evidence requires a state appellate court to act as a fact finder and review the weight of the evidence, including credibility of witnesses to ascertain whether "the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Spence, supra at 803 (quoting State v. Martin, 20 Ohio App.3d 172, 175 (Hamilton Cty. 1983).
Conversely, a challenge to the sufficiency of the evidence, when made in a habeas corpus petition subject to the AEDPA, must meet a more deferential standard. As this Court explained in Lynch v. Hudson, 2011 WL 4537890, *81-82 (S.D. Ohio Sept. 28, 2011):
It is important that when reviewing a sufficiency of the evidence challenge the Court "do[es] not reweigh the evidence, re-evaluate the credibility of the witnesses, or substitute [its] judgment for that of the jury." Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). If the record contains credible, competent evidence enabling a rational jury to find each essential element beyond a reasonable doubt, then Petitioner's challenge to the sufficiency of the evidence fails. Cf. Matthews v. Abramajtys, 319 F.3d 780, 788-89 (6th Cir. 2003) ("The mere existence of sufficient evidence to convict therefore defeats a petitioner's claim.").
As the Sixth Circuit Court of Appeals has explained, "[i]n a habeas proceeding, however, we cannot simply conduct de novo review of the state court's application of the [Jackson v. Virginia] rule, but must review its sufficiency-of-the-evidence decision under the highly deferential standard of the AEDPA." Saxton v. Sheets, 547 F.3d 597, 602 (6th Cir. 2008). In Tucker v. Palmer, 541 F.3d 652 (6th Cir.2008), the Court of Appeals explained in more detail:
Id. at 656. See also Parker v. Renico, 506 F.3d 444, 448 (6th Cir.2007). This Court recognizes, however, that in spite of the AEDPA, "it must distinguish reasonable speculation from sufficient evidence when reviewing a state court's application of Jackson." Arthurs v. Warden, Warren Correctional Institution, 2012 WL 995395, *9 (S.D. Ohio March 23, 2012) (internal quotations omitted).
Petitioner challenges the sufficiency of the evidence for his convictions for rape, kidnapping, the sexually violent predator specification, and possessing a weapon under a disability. His argument rests largely on the fact that the victim did not testify at trial and was never determined to be unavailable, as well as a general statement that there was "no evidence" of the various crimes.
Petitioner's rape conviction was pursuant to O.R.C. §2907.02(A)(2), which provides that "[n]o 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 includes vaginal intercourse between a male and a female and force means "any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." O.R.C. §2907.01(A); (O.R.C. §2901.01(A)(1). Petitioner argues that there is no evidence to prove that he purposely compelled his ex-wife to engage in sexual conduct by force or threat of force.
A review of the testimony and evidence presented at trial does not support Petitioner's argument. The victim's sister testified that the victim had called her "sobbing" and told her that Petitioner had raped her. (Doc. 7, Tr. at 39). Ms. McNichol, the SANE nurse, testified that the victim had described being raped by Petitioner, and when she examined the victim she had abrasions to her cheek and lip, swelling to her lip, tenderness on her neck, and abrasions and purple areas on both of her wrists. Ms. McNichol further testified that the abrasions on the victim's lip were consistent with having had duct tape ripped off of her mouth, which is what the victim told her had happened. (Tr. 67-70). The jury was shown photos of the victim's injuries (Tr. 74-80). The jury was presented with a recording of a phone call between the victim and Petitioner when he was in jail in which the victim said to him "I begged you not to do it." (Tr. 122). Petitioner admitted that he had intercourse with the victim but claimed that it was consensual (Tr. 173-175), but the jury apparently did not find him to be a credible witness and found him guilty of rape.
The Court must give deference to the decision of the state appellate court, which reviewed the entire trial record in analyzing the weight of the evidence assignment of error. The court considered the sufficiency of evidence for the rape conviction as follows:
The appellate court recognized that there had been sufficient evidence of each of the elements required to show rape: that the victim had been physically restrained and injured, that sexual conduct had occurred and it was not consensual.
Petitioner also challenges the sufficiency of the evidence for his kidnapping conviction. A kidnapping conviction requires a finding that the defendant, "by force, threat, or deception. . . . restrain the liberty of the other person" with a purpose to "terrorize, or to inflict serious physical harm on the victim or another . . ." O.R.C. §2905.01(A)(3). Much of the evidence of kidnapping overlaps with the testimony discussed above with respect to the victim's being restrained during the rape with duct tape and shoelaces. The investigating officer who went to the scene of the crime (the victim's apartment) testified that he located shoes that had their laces removed, and found shoelaces and duct tape discarded in a trash can. These items were submitted as evidence at the trial. (Tr. 108-112). A rational finder of fact could have found Petitioner guilty of kidnapping.
The Court of appeals found as follows:
(Doc 7, Ex. 15). This Court finds that there was sufficient evidence for a rational jury to convict Petitioner of kidnapping.
Next, Petitioner challenges his conviction for the sexually violent predator specification because there was insufficient evidence to support the specification and he had never previously been convicted of a sexual crime. Respondent suggests that a challenge to a prisoner's conviction for a sexually violent predator specification is not cognizable in a federal habeas corpus review. See Leslie v. Randle, 296 F.3d 518 (6th Cir. 2002). However, that was not what the Leslie court held. In that case, the court considered whether a habeas petition was the proper mechanism by which to challenge the constitutionality of Ohio's statute requiring individuals convicted of certain crimes to register as sexual predators. Id. The Court held that because the statute on its own did not restrain the petitioner's liberty, but simply required him to register, it did not meet the "in custody prerequisite for habeas corpus review." Id. at 522.
"Sexually violent predator means a person who . . . fcommits a sexually violent offense and is likely to engage in the future in one or more sexually violent offenses." O.R.C. 2971.01(H)(1). Petitioner's argument that he must have a prior conviction of a sexual offense to be convicted of the specification is misplaced. This Court recently observed that the Ohio legislature specifically stated the purpose of the most recent change to the statute was "to clarify that the Sexually Violent Predator Sentencing Law does not require that an offender have a prior conviction of a sexually violent offense in order to be sentenced under that law." Wagers v. Warden, Lebanon Correctional Inst., 2013 WL 427391, *17 (S.D. Ohio Feb. 4, 2013) (quoting 2004 Ohio Laws File 163 (Am.Sub.H.B.473) (internal quotations omitted)); see also State v. Taylor, 2014 WL evidence that Petitioner had previously been convicted of felony robbery and of domestic violence involving the victim. The evidence at trial demonstrated that Petitioner had engaged in violent sexual conduct towards the victim. Because a prior conviction for a sexual crime is not an element of the sexually violent predator specification, the evidence presented at trial may have been enough to convict Petitioner of the specification on its own.
The appellate court also reviewed the evidence and found it sufficient for a jury to have convicted Petitioner of the specification:
(Doc. 7, Ex. 15). Taking into consideration the Court of Appeals' determination that the specification may be applied to a defendant who has no prior convictions for sexual crimes, this Court must defer to the state court's interpretations of state laws. Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Moreover, there is no constitutional violation because there was sufficient evidence for a rational jury to convict Petitioner of the violent sexual predator specification.
Finally, Petitioner challenges the sufficiency of the evidence to convict him of possessing a firearm under a disability. Petitioner's prior felony conviction meant that he was "under a disability" and therefore he was prohibited from knowingly acquiring, having, carrying or using any firearm. O.R.C. §2923.13(A)(2). However, Petitioner argues that there was insufficient evidence to convict him because no gun was ever found and no one testified that he or she actually saw a gun. The victim's sister testified that during her sister's frantic phone call to tell her about the rape, the victim said she was "afraid that [Petitioner] had her gun, had taken the gun from her." (Tr. 41). In reversing Petitioner's conviction for the gun specifications on the charges and aggravated robbery charge. The state court of appeals stated:
With respect to the insufficiency of evidence to support the convictions for rape, kidnapping, sexual predator specification, and possessing a weapon under a disability, the state appellate court's decision did not involve an unreasonable application of clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13. Petitioner has also not succeeded in rebutting the presumption that the state court's factual findings were correct. See 28 U.S.C. §2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.1998). Petitioner's first ground for relief is without merit.
For the foregoing reasons, it is
If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation.
