Wampler v. Haviland

Filing 23

Order: The petitioner's objections to the Magistrate Judge's Report & Recommendation (re 19 ) be, and the same hereby are overruled. The Report & Recommendation be, and the same hereby are adopted as the order Order of this cour t. The petition for a Writ of Habeas Corpus be, and the same hereby is dismissed with prejudice. Reasonable jurists could not rationally dispute this Order, therefore a Certificate of Appeal shall not be issued. Judge James G. Carr on 11/29/18. (Attachments: # 1 Report and Recommendation)(C,D)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Timothy Wampler,
Petitioner,

Case No. 3:17CV2136

v.

ORDER

Warden James Haviland,
Respondent
This is a habeas corpus case under 28 U.S.C. § 2254. Following referral to Magistrate
Judge Kathleen Burke and the filing of her Magistrate Judge’s Report & Recommendation (Doc.
19), the petitioner, Timothy Wampler, filed objections. (Doc. 22). The Attorney General’s Office
has notified the court that it does not intend to file a response beyond that of its Response to the
Show Cause Order to the Writ.
The petitioner asserts two objections: 1) insufficiency of the evidence to convict; and 2)
ineffective assistance of counsel. On de novo review, I find no error in the Report &
Recommendation or merit to the petitioner’s objections.
Background
A. Sufficiency of the Evidence
A Lucas County, Ohio, jury convicted the petitioner of six counts of rape of a cousin’s
minor male children. He received a sentence of life without the possibility of parole. The
principal contested issue was whether the State produced sufficient evidence of penetration.

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The victims’ mother encountered a ten-year old son on top of a three-year old child in the
younger child’s bed; both had their pants down, and the younger child was face down. The older
child said that he was just doing what Tim would do.
The other pertinent evidence of insertion/penetration came from: 1) medical examinations
of the victims; and 2) interviews by a Child Advocacy Center (CAC) interviewer.
The medical examiner concluded that, based on observations of the victims’ physical
condition, they had been sexually abused. With regard to the CAC interviews, that of victim N.L.
evidenced anal penetration:
Q: Where did he put his penis?
A: My butt.
***
Q: He only put his penis in your butt?
A: [Nodded affirmatively.]
***
Q: How many times do you think it happened?
A: A lot.
C.L., N.L.'s brother, who witnessed petitioner anally penetrate N.L., testified:
Q: Okay. Let's talk about [N.L.]. Did you see anything with [N.L.]?
A: I seen the same things with [N.L.] I didn't know how many times he did it with
[N.L.] because I wasn't in the room some of the times.
Q: How many times do you think you were in the room?
A: One or two times.
Q: And what did you see him do to [N.L.]?

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A: Put his front private in [N.L.'s] back private and put his front private in [N.L.'s]
mouth.
(Doc. 19 at 12).
I agree with the Magistrate Judge that, under Jackson v. Virginia, 443 U.S. 307 (U.S. 1979),
a rational trier of fact could find beyond a reasonable doubt that the petitioner was guilty as
charged.
B. Ineffective Assistance of Counsel
Petitioner claims his trial attorney deprived him of his Sixth Amendment right to effective
assistance of counsel by having conceded that the indictment and amended bill of particulars
sufficed to provide notice of the charges. The Ohio Court of Appeals found to the contrary,
noting that those documents were, as they stood, adequate. Thus, no challenge would have been
successful.
I agree with the Magistrate Judge that the appellate court’s decision was not unreasonable.
(See Doc. 19 at 12 (citing State v. Wampler, 2016 WL 3574571, *5 (Ohio App.)). See Strickland
v. Washington, 466 U.S. 668, 669, 687 (1984) (to establish ineffective assistance of counsel, a
defendant must show “that counsel’s performance was deficient and . . . that he was prejudiced”
as a result). The Ohio Court of Appeals’ finding was not unreasonable: no ineffectiveness exists
where an attorney decides not to assert a meritless claim. See, e.g., Moore v. Mitchell, 708 F.3d
760, 778 (6th Cir. 2013).
Absent a defect in representation, the issue of prejudice is moot. In any event, it is clear
that the petitioner suffered none.
With regard to petitioner’s claim that his attorney failed to investigate witness statements,
petitioner’s failure to assert that claim in his petition, as the Magistrate Judge noted, precludes

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review in this court. See Tyler v. Mitchell, 416 F.3d 500, 504 (6th Cir. 2005) (petitioner waived a
theory of relief asserted only in a traverse but not in the habeas petition). Moreover, any such
claim would be procedurally defaulted for failure to have presented it to the Ohio courts. See
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
The Magistrate Judge properly concluded that petitioner’s claim of constitutionally
ineffective counsel was meritless was correct.
Conclusion
I conclude, accordingly, that the Magistrate Judge correctly adjudicated petitioner’s
claims. Having so found on the basis of de novo review, it is hereby
ORDERED THAT
1. The petitioner’s objections to the Magistrate Judge’s Report & Recommendation be,
and the same hereby are overruled;
2. The Report & Recommendation be, and the same hereby are adopted as the order
Order of this court; and
3. The petition for a Writ of Habeas Corpus be, and the same hereby is dismissed with
prejudice.
I find further that reasonable jurists could not rationally dispute this Order, and I
therefore decline to issue a Certificate of Appeal.
So ordered.

/s/James G. Carr
Sr. U.S. District Judge

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