Vunda v. Warden, Lebanon Correctional Insititution

Filing 9

REPORT AND RECOMMENDATION that petitioner's re 1 Petition for Writ of Habeas Corpus be Denied with prejudice. Any appeal of this matter would not be taken in good faith, and therefore Deny petitioner leave to appeal in forma pauperis. Objections to R&R due by 5/20/2016. Signed by Magistrate Judge Karen L. Litkovitz on 5/2/2016. (art)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
PAUL D. VUND A,
Petitioner,

Case No. I: 15-cv-30 1
Dlott, J.
Litkovitz, M.J.

vs.
WARDEN, LEBA NON
CORR ECTIO NAL INSTITUTION,
Respondent.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custod y at the Lebanon Correctional Institu
tion in Lebanon,
Ohio, has filed a prose petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. (Doc.
1). This matter is before the Court on the petition and respon dent's
return of writ. (Docs. I, 7). 1

I. PROCEDURAL BACKGROUND
State Trial Proceeding
In Januar y 2012, the Butler County, Ohio, grand jury returned a twelve
-count indictment
charging petitioner with seven counts of rape in violation of Ohio Rev.
Code§ 2907.02(A)(l)(b);
three counts ofunla wful sexual conduct with a minor in violation of
Ohio Rev. Code§
2907.04(A); and two counts of contributing to the unruliness or delinq
uency of a child in
violation of Ohio Rev. Code§ 2919.24(A)(1). (Doc. 6, Ex. 1). The
facts giving rise to the
charges were summarized as follows by the Ohio Court of Appeals,
Twelf th Appellate District,
based on evidence presented at petitioner's triae
1

Respondent has also separately filed the trial transcript and 40 exhibits
obtained from the underlying
state-court record. (See Doc. 6).
2

The Ohio appellate court summarized the facts in its direct appeal decisio
n issued August II , 2014. (See
Doc. 6, Ex. 36). 28 U.S.C. § 2254(e)( I) provides that "[i]n a proceed
ing instituted by an application for a writ of
habeas corpus by a person in custody pursuan t to the judgme nt of a State
court, a determination of a factual issue
made by a State court shall be presumed correct" unless the petitioner
rebuts the presumption by "clear and
convincing evidence." In the absence of clear and convincing evidenc
e to rebut the Ohio Court of Appeals ' factual
findings quoted below, the appellate court's findings are presumed to
be correct. See McAdoo v. Elo, 365 F.3d 487,
493-94 (6th Cir. 2004).

Appellant immigrated to the United States from the Democratic Republic of
Congo in 2000 with the financial support of his sister. Upon arrival, appellant
resided with his sister and her family at their house in West Chester, Ohio located
in Butler County. The victim, A.P., is appellant's niece who resided in the same
West Chester house with her family.
The sexual abuse at the center of this case began in 2000 when A.P. was six years
old. According to A.P.'s recollection, the first instance of sexual abuse occurre
d
when she was left home alone with appellant. A.P. testified that she had been
in
her family computer room, playing on the computer, when appellant came up
behind her and began groping her breasts both on top and under her clothing.
After the initial encounter, A.P. testified that the sexual abuse escalated. A.P.
stated that appellant would feel her vagina both on top and under her clothing
and
would also insert his fingers into her vagina. When A.P. turned seven years old,
the sexual abuse escalated to sexual intercourse.
A.P. elaborated that each instance of sexual abuse occurred when appellant was
left alone with her at the West Chester house. A.P. further testified that this abuse
occurred routinely over a period of 11 years. A.P. stated that she was often left
alone with appellant because he was responsible for waking her up in the
morning, taking her to the bus stop for school, and transporting her to basketb
all
practice in the evenings. Over this 11-year period, A.P. clear! y indicated that
appellant had continuously sexually abused A.P. through numerous acts of
vaginal penetration, fellatio, cunnilingus, and digital penetration from 2000-2011.
The sexual abuse ended in 2011 when A.P. was 17 years old after she placed a
hidden camera in the basement and captured footage of appellant digitally
penetrating her vagina and then engaging in vaginal intercourse. A.P. then
showed the video to her mother.
After seeing the video, A.P. 'smoth er confronted appellant who immediately
fell
to his knees, began sobbing, and apologized for his actions. In addition, appella
nt
offered to return to the Congo as punishment for the sexual abuse and stated
"[f]orgive me, forgive me. I'm willing to go to the Congo." Instead, A.P. 's
mother alerted authorities who began an investigation.
Appellant was subsequently brought to the police station and questioned by
Detective Mize of the West Chester Police Department. After being advised of
his rights, appellant admitted to sexually abusing A.P. and acknowledged that
he
had been doing so since A.P. was very young. Appellant further elaborated on
his
admission by acknowledging that he engaged in numerous acts of vaginal
penetration, fellation, cunnilingus, and digital penetration with A.P. over the
years. When asked how many times that he had engaged in each type of conduc
t,
appellant stated that he could not recall, but admitted that he had touched A.P.
in
her private areas more than 50 times, engaged in cunnilingus or fellatio at least
ten times, and had sexual intercourse with A.P. at least ten times. Furthermore,
2

appellant admitted that he was the person captured on the hidden camera engage
d
in sexual intercourse with A.P.

(!d., Ex. 36,pp. 1-3, at PAGEID#: 216-18).
It appears from the record that petitioner was assisted by two attorneys, Robert
Qucsai III

and Lawrence Hawki ns, during the trial proceedings. Prior to trial, counsel
filed a number of
motions on petitioner's behalf, including a motion in limine to limit the testimo
ny of a potential
state witness and to hold a hearing to determine whether the witness qualifie
d to be an expert
witness, as well as a motion in limine to exclude "other acts" testimony contain
ed in petitioner' s
videotaped statement. (See id., Exs. 2, 8 & Trial Tr. at PAGEID#: 257-352).
Counsel also filed
a motion to suppress any oral or written statements made by or elicited from
petitioner. (Id., Ex.
5). Counsel argued in part that petitioner' s statements could not be admitted
into evidence
because they "were made without prior advice and recognition of defend ant's
rights to remain
silent and to have the effective assistance of counse l" and "were involuntary."
(!d. , Ex. 5).
Following extensive hearings held on May 10 and May 17- I 8, 20 I 2, the trial
court denied the
suppression motion and the motions in limine and also ruled on other matters
raised in additional
motions filed by counsel on petitio ner's behalf. (!d., Exs. 7 & Trial Tr. at PAGEI
D#: 257-352).
The matter proceeded to trial before a jury, which found petitioner guilty of
six of the
rape charges (Counts 2-7), as well as the remaining charges of unlawful sexual
conduct with a
minor and contributing to the unruliness or delinquency of a child (Counts 8-12).
(See id., Ex.
10). The jury also specifically found with respect to the rape offense charged
in Count 4 that
"the victim was less than ten years of age at the time of the offense." (!d. , at
PAGEID#: 66).
On July 10, 2012, following a sentencing and sexual predator hearing in which
petitioner
was determined to be a "sexually oriented offender" (see id., Ex. 11 ), the trial
court issued a
Judgment Entry sentencing petitioner to the following terms of imprisonment:
a life term of
3

imprisonment "with the possibility of parole in 10 years" for the rape
offense charged in Count 4
and concurrent prison terms of ten ( 10) years for the remaining rape
offenses charged in Counts
2, 3, 5, 6 and 7; prison terms of four (4) years for the three unlawful-sex
ual-conduct offenses, to
be served concurrently with each other but consecutively to the concu
rrent sentences imposed for
the rape offenses charged in Counts 2, 3, 5, 6 and 7; and concurrent 170-da
y prison terms for the
two counts of contributing to the unruliness or delinquency of a child.
(Id., Ex. 12, at P AGEID#:
69-70). Petitioner's aggregate sentence amounted to a prison term of
fourteen (14) years to life.
(See id., Trial Tr. at PAGEID#: 1015).

State Appeal Proceedings
Petitioner's trial counsel filed a timely notice of appeal on petitioner's
behalf to the Ohio
Court of Appeals, Twelfth Appellate District. (Doc. 6, Ex. 13). Petitio
ner's trial counsel also
filed a motion for appointment of new counsel to represent petitioner
on appeal

, which was

granted. (See id., Exs. 14-15). Initially, the appeal was dismissed becaus
e the new attorney did
not file an appellate brief by the deadline date set and extended by the
court. (See id. , Exs. 1619). Petitioner responded to the dismissal by filing a pro se pleading,
which the appellate court
construed "as an application for reopening due to ineffective assistance
of appellate counsel."
(See id., Exs. 20-21). The court granted the reopening application
and consolidated the reopened

appeal with a separate pro se delayed appeal filed by petitioner. (See
id., Exs. 21-24).
In the consolidated pro se appeal, petitioner asserted eight assignments
of error, quoted
below , in his final amended appellate brier:J
1. During incommunicado interrogation in police (dominated) atmosp
here,
without full warning of constitutional rights, were not understandable
to a
French speaking foreigner. This action violated the Fifth Amendment
3

It is noted that petitioner made many typographical and grammatical
errors in his appellate brief.
Although the undersigned has made some corrections in quoting from
that brief, many of the original grammatical
errors remain uncorrected in this Report and Recommendation.

4

privilege against self-incrimination.
2. The court violated the Sixth Amendment when the court appointed a(n]
attorney [who had] never been to trial or had never been effective as to his
own client[.] [T]his attorney was a dead give[ -away] to a win to the
prosecution as this court knew for a fact this attorney never has been to trial[.]
[T]his violated the Fourteenth Amendment and violated the defendant[ ']s
right to a fair trial, under the [D]ue Process Clause and equal protection rights.
3. When the jury found Mr. Vunda not guilty of count one this created Plain
Error and a jurisdictional defect in this proceeding[].
4. The court erred when (the] prosecution did not establish[] venue as to where
the alleged rapes occur[r]ed; there was not a Prima Faci(e] showing as to
create proof beyond a reasonable doubt, the crime occur[r]ed in the convicting
county.
5. The defendant has establish[ ed] a Prima Faci[ e] showing of discrimin[ation]
in denyingj urors of his peers and not to be prejudiced because ofbeing
African, and from a different country[.] [T]his violated the Equal Protection
Clause U.S.C.A. Constit.A mend.l4.
6. The Appellant was denied Due Process and a fair trial when the prosecutor
engaged in misconduct at trial, which ... substantially prejudiced appellant
and misled the jury....
7. The Cumulative Doctrine must be presented in this "Conglomeration" of the
den[ial] of the truth, which created a[n] unfair trial and a non[-]supporting
conviction of all of the charges in the indictment, and the over indictment that
judgment must be of acquittal, this violation of due process and equal
protection of the law.

8. The (C]onstitution[] required ... the state to correct remedy of perjured
testimony and the final remedy that must be presented on the truth of all
testimon[ie]s to create a fair trial for the defendant. ... [T]his den[ial] of a
corrective remedy violated the equal protection and due process of the law,
under the (14th)amend.

(/d. , Ex. 33).
On August 11 , 2014, the Ohio Court of Appeals overruled the assignments of error and
affirmed the trial court' s judgment . (ld. , Ex. 36).
Petitioner next pursued a timely prose appeal to the Ohio Supreme Court. (See id. , Exs.

5

37-38). In his memorandum in support of jurisdiction, petition er alleged as propos
itions of law
all of the claims that had been asserted on direct appeal except for the fourth
assignment of error
challenging the sufficiency of the venue evidence. (See id., Ex. 38). On Februa
ry 18, 2015, the
Ohio Supreme Court declined to accept jurisdiction of the appeal. (Id. , Ex. 40).
Federal Habeas Corpus Petition
The instant federal habeas corpus action commenced in May 2015. (See Doc.
1). In his

prose petition, petitioner presents the following ground s for relief:
Ground One: The police violated the petitioner[' ]s 5th amend. selfincrimination rights ... .
Ground Two: Ineffective Assistan[ ce] of Counsel, Violated the 6th Amend.
This court appointed counsel has never had a trial ever[.] [T]his violated due
process and equal protection of the law.
Ground Three: Plain Error and a Structural defect in whole proceedings and
a
jurisdictional defect at trial level.
Ground Four: The petitioner was .. . den[ied] his right to jury of his peers ...
and not to be prejudiced because ofbein g African , and from a different country
[.]
This violated Equal Protection Clause, 14th and 6th Amend .
Ground Five: The defendant was denied the right to a fair trial when the
prosecutor engaged in misconduct ....
Ground Six: The Cumulative Doctrine must be presented in a Conglomeratio
n
of the truth[.] [T]his denied the right to a fair trial, and violated, due process
and
equal protection of the law.
Ground Seven: The state was suppose[ d) to correct all remedies after a perjure
d
testimony and the final remedy that must be present on the trial of the truth.
[T]his created a[n] unfair trial, and violated the equal protection of the law,
U.S.C[ .]A. 14th Amend .
(Doc. 1, at PAGEID#: 6, 8, 9, II , 13).
Respondent has filed a return of writ addressing each of petitioner's claims. (Doc.
7).
II. OPINION
This Court' s review of petitioner' s grounds for relief is limited . First, in this
federal

6

habeas proceeding, the Court has jurisdiction to review petitioner's claims only to the extent that
petitioner challenges his confinement based on an alleged violation of the Constitution, laws or
treaties of the United States, and not "on the basis of a perceived etTor of state law." 28 U.S.C. §
2254(a); Pulley v. Harris, 465 U.S. 37, 41 (1984); see also Wilson v. Corcoran, 562 U.S. 1, 5
(20 10) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (199 1)) ("it is not the province of a
federal court to reexamine state-court determinations on state-law questions") . "[B]ecause the
state courts are the final authority on state-law issues, the federal habeas court must defer to and
is bound by the state court's rulings on such matters." Bennett v. Warden, Lebanon Corr. !nsf. ,
782 F. Supp.2d 466, 478 (S.D. Ohio 2011) (and cases cited therein); see also Warner v. Zent, 997
F.2d 116, 133 (6th Cir. 1993) (quoting Mullaney v. Wilbur, 421 U.S. 684, 690-91 (1975)) (absent
a showing of"extrem e circumstances where it appears that the [state court's] interpretation of
[state law] is an obvious subterfuge to evade consideration of a federal issue," the federal habeas
court is bound by the state court's determination ofstate law"); Meyers v. Ohio, No. 1:14cv 1505,
2016 WL 922633, at *7 (N.D. Ohio Jan . 2 1, 20 16) (Report & Recommen dation) (citing Olsen v.

McFaul, 843 F.2d 9 18, 929 (6th Cir. 1988)) ("federal habeas courts are bound by decisions of
intermediate state courts on questions of state law unless convinced that the state's highest court
would decide the issue differently"), adopted, 20 16 WL 9 16602 (N.D. Ohio Mar. 9, 2016). Cf

Jones v. Woods,_ F. App'x _ ,No. 15-1 03 1,2015 WL 9309374, at *4 (6th Cir. Dec. 22, 20 15)
(citing Davis v. Straub, 430 F.3d 28 1, 29 1 (6th Cir. 2005)) (in affirming the district court's
denial of a habeas petition based on a claim that the petitioner's trial counsel was ineffective for
failing to request a self-defense jury instruction , the Sixth Circuit emphasized that "[w ]e are
bound by the [state] Com1 of Appeals' determination that [the petitioner] was not entitled to the
instruction under state Jaw").

7

Second, the Court ' s review of federal constitutional claims that have been adjudic
ated on
the merits by the state courts is circumscribed. Under the applicable standard
of review set forth
in 28 U.S.C. § 2254(d), a writ ofhabe as corpus may not issue with respect to
any claim
adjudicated on the merits by the state courts unless the adjudication either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the United States
Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of
the
facts in light of the evidence presented in the state court proceeding.
28 u.s.c. § 2254(d).
"A decision is ' contrary to' clearly established federal law when ' the state court
arrives
at a conclusion opposite to that reached by [the Supreme] Court on a questio
n oflaw or if the
state court decides a case differently than [the Supreme] Court has on a set of
materially
indistinguishable facts. " Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quotin
g Williams v.
Taylor, 529 U.S. 362,41 2-13 (2000)) . "A state court' s adjudication only results
in an
' unreasonable application' of clearly established federal law when 'the state
court identifi es the
correct governing legal principle from [the Supreme] Court' s decisions but unreaso
nably applies
that principle to the facts of the prisone r's case. "' Id. at 599-600 (quoting William
s, 529 U.S. at
413).
The statutory standard, established when the Antiterrorism and Effective Death
Penalty
Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to
meet. Id. at 600.
As the Sixth Circuit explained in Otte:
Indeed , the Suprem e Court has been increasingly vigorous in enforcing AEDPA
's
standards. See, e.g. , Cullen v. Pinholster, [563] U.S. [170], 131 S.Ct. 1388,
1398,
179 L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to
the
record before the state court where a claim has been adjudicated on the merits
by
the state court). It is not enough for us to determine that the state court' s
8

determination is incorrect; to grant the writ under this clause, we must hold that
the state court's determination is unreasonable . ... This is a "substantially higher
threshold." ... To warrant AEDPA deference, a state court' s "decision on the
merits" does not have to give any explanation for its results, Harrington v.
Richter, [562] U.S. [86, 98-99], 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor
does it need to cite the relevant Supreme Court cases, as long as "neither the
reasoning nor the result of the state-court decision contradicts them." Early v.
Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam).

!d. (emphasis in original). The Supreme Court has further held that when a state court rules
against a defendant in an opinion that " addresses some issues but does not expressly address the
federal claim in question," the federal habeas court must presume, subject to rebuttal, that the
federal claim was " adjudicated on the merits" and thus subject to the "restrictive standard of
review" set out in§ 2254(d). See Johnson v. Williams,_ U.S._, 133 S.Ct. 1088, 1091 (2013).
Although the standard is difficult to meet, § 2254(d) "stops short of imposing a complete
bar on federal-court relitigation of claims already rejected in state proceedings" and "preserves
authority to issue the writ in cases where there is no possibility fairminded jurists could disagree
that the state court' s decision conflicts with [Supreme Court] precedents. " Harrington , 562 U.S.
at 102. In other words, to obtain federal habeas relief under that provision, the state prisoner
must show that the state court ruling on the claim presented "was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement." !d. at 103.
The Supreme Court has made it clear that in assessing the merits of a constitutional claim
under§ 2254(d), the federal habeas court must apply the Supreme Court precedents that
controlled at the time of the last state-court adjudication on the merits, as opposed to when the
conviction became "final." Greene v. Fisher, _ U.S._, 132 S.Ct. 38, 44-45 (2011); cf Otte, 654
F.3d at 600 (citing Lockyer v. Andrade, 538 U.S . 63, 71-72 (2003)) (in evaluating the merits of a
claim addressed by the state courts, the federal habeas court must " look to Supreme Court cases

9

already decided at the time the state court made its decision"). The writ may issue only if the
application of clearly-established federal law is objectively unreasonable "in light of the
holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant
state court decision. " McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529
U.S. at 412); see also White v. Woodall ,_ U.S._, 134 S.Ct. 1697, 1702 (2014) (quoting Howes

v. Fields,_ U.S._, 132 S.Ct. 1181 , 1187 (2012) (internal citation and quotation marks omitted))
("[C]learly established Federal law' for purposes of§ 2254(d)( l) includes 'only the holdings, as
opposed to the dicta, of this Court's decisions."). Decisions by lower courts are relevant only "to
the extent [they] already reviewed and interpreted the relevant Supreme Court case law to
determine whether a legal principle or right had been clearly established by the Supreme Court."

Otte, 654 F.3d at 600 (quoting Landrum v. Mitchell, 625 F.3d 905,914 (6th Cir. 2010)).
Finally, as noted above, see supra, p. I n.2, in accordance with 28 U.S.C. § 2254(e)( l),
this Court must presume factual findings made by the state courts are correct in the absence of
"clear and convincing evidence" rebutting those findings. Cf Holland v. Rivard, 800 F.3d 224,
242 (6th Cir. 2015), cert. denied, No. 15-7616, 2016 WL 854271 (U.S. Mar. 7, 20 16).
With these general principles in mind, the Court turns now to address each of petitioner ' s
grounds for relief.
A. Ground One: Miranda Claim
In Ground One of the petition, petitioner claims that the trial court violated his
constitutional rights when it denied his motion to suppress statements he made to the police
because the statements were obtained in violation of the Fifth Amendment privilege against selfincrimination. (See Doc. I, at P AGElD#: 6).
It appears from the record that in his suppression motion, petitioner sought to exclude

10

statements that he made in a videotap ed interview with Detective Mize ofthe West Chester
Police Department. Detective Mize was the only witness who testified at the hearing held
on the
motion. Mize stated that prior to questioning, he advised petitioner of his rights pursuan
t to the
Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966), and petitioner
"sign[ ed]
his name acknow ledging that he understood his rights and that he was willing to speak
with
[Mize] about the case" on the "Miranda rights warning card" provided by the prosecu tor'
s
office. (Doc. 6, Trial Tr. at PAGEID#: 272-73). A copy ofthe card that was signed by
petitioner
and witnessed by Mize was introduced into evidenc e as "State' s Exhibit 1.'' (!d. , at PAGEID
#:
272, 281).
Mize testified that during the interview, petitioner never mentioned that " he wanted to
remain silent" or "wanted to have an attorney present. " (!d., at PAGEID#: 273). Mize
also said
that he did not make any promise s to petitioner; did not coerce or threaten petitioner into
giving a
statement; did not deprive petitioner of food, medication or sleep; and did not abuse petition
er in
any way. (!d., at PAGEID# : 273 -74). Althoug h Mize stated on cross-ex aminatio n that
he never
offered an interpreter or asked petitioner if he needed an interpreter for the interview, Mize
also
testified that petitioner never attempted " to speak to him in any other language than English"
;
that he understood what petitioner was telling him; and that he "perceived that [petition
er] was
understanding what [he] was trying to say ... as well." (Jd., at PAGEID#: 271 , 277-78)
. Mize
affirmed that during the interview, petitioner would "at times ... clarify things ... or correct
things that [Mize] had stated." (!d. , at PAGEID# : 270). Mize also affirmed that the video
recording of the interview, which was marked and introduced into evidence, "truly and
accurately depict[ed] the convers ation that [he] had with [petitioner]." (!d.). The video
recording was played and re-played at the court 's request before the cou11 rendered its
decision

11

overruling petitioner's suppression motion. (See id., Trial Tr. at PAGEID#: 264-68, 285).
On direct appeal, petitioner contended in his first assignment of error that as a "foreigner"
who lacks understanding of the American "j ustice system" and whose native language is French,
he was not "effectively advise[d)" of his Miranda rights by Detective Mize. (See id., Ex. 33, at
PAGElD#: 139-40). Petitioner also argued that his waiver of his right to remain silent was not
"voluntarily, knowingly and intel(l]igently" made. (!d. , at PAGEID#: 139). The Ohio Court of
Appeals, which was the last state court to issue a reasoned decision addressing the merits of
petitioner's claim, overruled the assignment of error, reasoning in relevant part as follows:
"When a suspect is questioned in a custodial setting, the Fifth Amendment
requires that he be given Miranda warnings to protect against compelled selfincrimination." ... "A suspect may then knowingly and intelligently waive these
rights and agree to make a statement. ". . . If a defendant later challenges a
confession as involuntary, the state must prove a knowing, intelligent, and
voluntary waiver by a preponderance of evidence. . . . To determine whether a
valid waiver occurred, we "consider the totality of the circumstances, including
the age, mentality, and prior criminal experience of the accused; the length,
intensity, and frequency of interrogation; the existence of physical deprivation or
mistreatment; and the existence of threat or inducement." ...
The trial court held a hearing on appellant's motion to suppress the statements
made to Detective Mize. After hearing the evidence presented, the trial court
overruled appellant's motion. In pertinent part, the trial court found:
The Court will find the defendant freely and voluntarily gave his
statement, that he was properly Mirandized, he was given all the
warnings as set forth in State's Exhibit 1. It's clear from the tape
that he understood the English language. He appeared in this tape
to be relaxed, willing to answer the questions. Does not appear
there were promises or inducements inappropriately made to this
defendant.
The defendant was advised of his right to remain silent, to stop the
questioning. Was advised regarding his right to an attorney. He
did not exercise any of those rights. He was not deprived of any
necessities. The interview process, the interview itself was not
excessively long. In fact, we all sat here probably for more than a
half an hour or hour, longer than this, the interview itself here in
the courtroom and none of us needed or asked for a break. The
12

court didn 't observe that there was any evidence of
abuse, physical
or otherwise.
Now, it' s not completely clear to this Court whether
the defendant
was able to read and understand the English language,
but it is
clear from the exchange that the defendant understoo
d that by
signi ng the card, that he was agreeing and acknowle
dging that
Detective Mize had read to him his Miranda rights.
The Court will
find that he was properly Mirandized.
Based on our review of the record, we find the trial
court properly denied
appellant's motion to suppress. The record reflects
that Detective Mize read
appellant his Miranda rights prior to any questioning
and appellant voluntarily
waived those rights. The video evidence clearly estab
lishes that Detective Mize
orally advised appellant of his rights on multiple occa
sions and appellant
understood his rights. Detective Mize also paraphrase
d those rights to make it
clear that appellant had no obligation to consent to
any interview with police. In
addition, the record reflects that appellant was prov
ided with a written notice of
his Miranda rights and appellant voluntarily signed
his name to that document,
which provides " I [Paul Vunda] have been advised
of all my rights as contained
on this card and I understand all of them and I wish
to talk to you without having
a lawyer present." In conclusion, the record clearly
establishes that appellant was
repeatedly advised of his Miranda rights, but neverthel
ess chos e to continue with
the interview.
Although appellant claims that he did not understan
d the English language and
therefore was not able to knowingly, intelligently, and
voluntarily waive his
Miranda rights, we find those arguments are contr
ary to the facts of the case.
Appellant ' s videotaped interview with Detective Mize
clearly indicates that
appellant understood the English language and was
capable of understanding his
rights. Appellant had been living in the United State
s for more than a decade and
communicated with Detective Mize in English. Altho
ugh Detective Mize
testified that appellant had an accent, he also stated
that appellant did not appear
to have any difficulty understanding or speaking the
English language. Appellant
did not request that the interview be conducted in Fren
ch or ask for an interpreter.
Throughout the entirety of the interview, appellant
appeared relaxed and willing
to answer the interrogating offic er's questions. Appe
llant 's comprehension of the
language and subject matter of the interview was evide
nt based on the fact that he
provided relevant and appropriate responses to Dete
ctive Mize 's questions. In
addition, appellant was very clear in asking Detective
Mize to clarify questions
and was not hesitant to correct the detective when the
detective misunderstood a
response. In sum, the trial court correctly found that
appellant had volun tarily
waived his Miranda rights. Accordingly, the trial court
did not err in denying
appellant 's motion to suppress.
(See Doc. 6, Ex. 36, pp. 4-7, at PAGEID#: 219-22)
(Ohio case citations and footnote omitted).
13

The Fifth Amendment, which applies to the states by virtue of the Fourteenth
Amendment,4 provides that "[n]o person ... shall be compelled in any criminal case to be a
witness against himself." U.S. Const. amend. V. In Miranda , the Supreme Court established
certain procedural safeguards to ensure the Fifth Amendment guarantee is not undermined in the
custodial-interrogation setting, which in and of itself involves "inherent" coercion. See Miranda,
384 U.S. at 444, 457-58. Specifically, as the Ohio Court of Appeals recognized in this case,
Miranda requires that prior to any custodial interrogation, the person being questioned must be
warned that he has a right to remain silent, that any statement he does make may be used as
evidence against him, and that he has the right to the presence of an attorney. ld. at 444. It is
well-established that statements obtained in violation of Miranda must be excluded from the
prosecution's case-in-c hief even if the statements are otherwise voluntary within the meaning of
the Fifth Amendment. See Oregon v. Elstad, 470 U.S. 298, 307 (1985). However, as the Ohio
Court of Appeals also recognized in this case, a person informed of his Miranda rights can waive
those rights as long as "the waiver is made voluntarily, knowingly and intelligently." Moran v.
Burbine, 475 U.S. 412, 421 (1986) (quoting Miranda, 384 U.S. at 444); see also Colorado v.
Spring, 479 U.S. 564, 856-57 (1987); Edwards v. Arizona, 451 U.S. 477, 482 (1981); Clement v.
Kelly, _ F. App'x _, No. 14-3070, 2016 WL 611789, at *4 (6th Cir. Feb. 16, 2016); Bush v.

Warden, Southern Ohio Corr. Facility, 573 F. App'x 503, 510 (6th Cir. 2014). An accused's
voluntary statements following a valid waiver of his Miranda rights are "not 'compelled' within
the meaning of the Fifth Amendment" and may be introduced by the prosecution into evidence
without implicating constitutional concerns. See Spring, 479 U.S. at 573-74.
The question whether an accused has validly waived his Miranda rights involves two

4

See Malloy v. Hogan, 378 U.S. 1, 6 (1964).

14

distinct inquiries: (1) whether the relinquishment of the right was "voluntary in the sense that it
was the product of a free and deliberate choice rather than intimidation, coercion, or deception" ;
and (2) whether the waiver was made "with a full awareness ofboth the nature of the right being
abandoned and the consequences ofthe decision to abandon it." Moran, 475 U.S. at 421 ; see
also Spring, 479 U.S. at 573. "Only if the totality of the circumstances surrounding the
interrogation reveal[s] both an uncoerced choice and the requisite level of comprehension may a
court properly conclude that the Miranda rights have been waived." Moran , 475 U.S. at 421
(internal quotation marks and case citation omitted).
"The totality of the circumstances inquiry requires a court to examine 'all the
circumstances surrounding the interrogation,' including the suspect's 'age, experience ,
education, background , and intelligence, and ... whether he has the capacity to understand the
warnings given him, the nature ofhis Fifth Amendment rights, and the consequences of waiving
those rights."' Padgett v. Sexton, 529 F. App' x 590, 597 (6th Cir. 2013) (quoting Fare v.
Michael C. , 442 U.S. 707, 725 (1979)). "The Constitution does not require that a criminal
suspect know and understand every possible consequence of a waiver of the Fifth Amendment
privilege." Spring, 479 U.S. at 574. Nor does the Constitution require the police to "supply a
suspect with a flow of information to help him calibrate his self-interest in deciding whether to
speak or stand by his rights." Moran, 475 U.S. at 422. As long as a suspect's voluntary choice
to speak is made with full awareness and comprehension of all the information Miranda requires
the police to convey-i. e., that the suspect has the constitutionally-protected right to remain
silent and to have an attorney present during custodial interrogation and that whatever he chooses
to say in response to police questioning may be used as evidence against him-his waiver is
knowing and intelligent within the meaning of Miranda. Cf Spring, 479 U.S. at 574-75; Moran,

15

475 U.S. at 422-23; see also Garner v. Mitchell, 557 F.3d 257, 261 (6th Cir. 2009); Padgett, 529
F. App'x at 597.
In this case, it is undisputed that prior to his videotaped custodial interrogation, petitioner
was informed of his Miranda rights by Detective Mize and signed a waiver ofthose rights. In
addition, it does not appear that the voluntariness of petitioner's waiver or statements to the
police is at issue because petitioner has not presented any arguments or evidence to rebut or even
call into question the Ohio courts' reasonable factual determination that the statements he made
after being informed of his rights were not coerced or otherwise improperly induced by Detective
Mize. See 28 U.S.C. § 2254(e)(l) ; see also supra, pp. I n.2, 12-13. Cf Hollandv. Rivard, 800
F.3d 224,241 -42 (6th Cir. 2015), cert. denied, No. 15-7616,20 16 WL 854271 (U.S. Mar. 7,
2016).
The sole basis for petitioner's claim of constitutional error is that his waiver was not
knowing or intelligent because, as a foreigner whose native language is French, he did not full y
comprehend the rights he was giving up or the consequences of his decision to abandon those
rights. However, petitioner has not presented any evidence, and certainly not clear and
convincing evidence, to rebut the Ohio courts' factual determination, made after reviewing
petitioner's videotaped interview with Mize, that petitioner understood the spoken English
language and the Miranda rights that Detective Mize relayed to him both orally and in writing.

See 28 U.S.C. § 2254(e)(1); see also supra, pp. 1 n.2, 12-13. As the Ohio Court of Appeals
pointed out in affirming the denial of petitioner's suppression motion, petitioner had been living
in the United States for more than a decade when the interview was conducted and, during the
course of the interview, neither expressed nor showed any difficulty in communica ting in
English with Detective Mize or any lack of understanding ofthe Miranda warnings that Mize

16

repeatedly relayed to him. Indeed, at the suppression hearing where petitione r was provided a
French-speaking interpreter, petitioner told the interpreter that he understoo d "most" of what was
being said in English and would ask her for help only when he had a question. (See Doc. 6, Trial
Tr. at PAGEID #: 275).
Upon review of the entire record, the undersigned concludes that it was certainly
reasonable for the Ohio courts to find that petitioner was capable of understanding and actually
understood "the warnings given him, the nature of his Fifth Amendm ent rights, and the
consequences of waiving those rights." Cf Padgett, 529 F. App'x at 597. Petitioner is unable to
prevail on any claim that his lack of familiarity with the American justice system rendered his
waiver invalid. As discussed above, all that is required for a valid waiver under Miranda is a full
awareness and comprehe nsion of one's constitutionally-protected right to remain silent and to
have an attorney present during custodial interrogation and that whatever is said in response to
police questioning may be used as evidence. Cf Spring, 479 U.S. at 574-75; Moran, 475 U.S. at
422-23; see also Garner, 557 F.3d at 261; Padge/1, 529 F. App'x at 597. Therefore, in the
absence of any evidence in the record even remotely suggestin g that Mize omitted any of the
required Miranda warnings when he informed petitioner of his rights, it was reasonable for the
Ohio courts to conclude that petitioner 's subsequent uncoerced choice to continue with the
interview amounted to both a voluntary and knowing, intelligent waiver of those rights.
Accordingly, in sum, petitioner has not demonstrated that he is entitled habeas relief
based on his claim in Ground One challenging the denial of his motion to suppress statements
that he made during his videotaped interrogation by Detective Mize. The Ohio courts'
adjudication of the Fifth Amendm ent issue is neither contrary to nor involves an unreasonable
application of Miranda and its progeny. Because petitioner has not shown that the state courts'

17

rejection of his constitutional claim "was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement," see Harrington , 562 U.S. at 103, petitioner is not entitled to habeas relief based
on such claim.

B. Ground Two: Ineffective-Assistance-Of-Trial-Counsel Claim
In Ground Two of the petition, petitioner alleges that he was deprived of his Sixth
Amendment right to the effective assistance of counsel during the trial proceedings. (Doc. 1, at
P A GElD#: 8). Petitioner asserts as factual support for the ground for relief that his courtappointed attorney lacked any trial experience and that counsel "never investigated witnesses,
never impeached the alleged victim[']s testimony," and did not seek dismissal of the criminal
charges on the ground that the victim' s "testimony was perjured." (See id.). Although the
allegations contained in the petition are general, in his state appellate brief, petitioner identified
Robert Qucsai as the defense attorney who lacked trial experience. (See Doc. 6, Ex. 33, at
PAGEID#: 141 ). Petitioner also claimed on direct appeal that his counsel "never questioned any
witnesses" and "should have investigated th[e] time frame" ofthe charged offenses that allegedly
occurred over the course of several years given that the "only real evidence" presented against
him pertained to the incident occurring "in May of20 11 when [the victim] was 17" years old.
(!d.). Finally, petitioner contended that his counsel should have impeached the victim, who

testified for the State at trial , "for committing perjury on the stand." (Id. , at PAGEID: 143).5
The Ohio Court of Appeals, which was the only state court to issue a reasoned decision
addressing the merits of these specific issues, ruled in relevant part as follows:

5

In the direct appeal proceedings, petitioner presented other additional arguments challenging his trial
counsel's performance. (See Doc. 6, Ex. 33, at PAGEID#: 142). However, petitioner abandoned those arguments on
further appeal to the Ohio Supreme Court and has not asserted them in the instant petition. (See id., Ex. 38, at
PAGEID#: 246-47). Therefore, those arguments are not addressed herein.

18

To prevail on an ineffective assistance of counsel claim, an appellant must
establish: (1) that his trial counsel 's performance was deficient; and (2) that such
deficiency prejudiced the defense to the point of depriving the appellant of a fair
trial. Strickland v. Washington, 466 U.S. 668, 687-688 , 104 S.Ct. 2052
(1984)[.] ... Trial counsel ' s performance will not be deemed deficient unless it
" fell below an objectiv e standard of reasonableness." Strickland at 688. To show
prejudice, the appellant must prove there exists "a reasonable probability that, but
for counsel ' s unprofessional errors, the result of the proceeding would have been
different." !d. at 694. An appellan t's failure to satisfy one prong of the Strickland
test negates a court' s need to consider the other....
We first address appellant' s complaints regarding his trial counsel 's lack of
preparation. In his brief, appellant argues that his trial counsel was ineffective for
failing to question any witnesses, and failing to fully investigate the time frame of
the allegations. Appellant bases this argument on his contention that the "only
real evidenc e" of sexual abuse in this case was the videotape of appellant having
vaginal intercourse with A.P. in 2011 when the victim was 17 years old.
Appellant further maintains that "if [the attorney] had done his job there would be
only one charge. This charge would have been unlawful sexual conduct with a
minor." Howeve r, ... there was ample evidence to support appellant' s
conviction, including the victim ' s testimony and appellan t's own admissions
regarding the sexual abuse. Furthermore, the record plainly indicates that
appellan t's trial counsel did fully investigate this case and zealously represent
appellant in this matter. Appella nt's trial counsel called five witnesses on
appellan t's behalf and engaged each state witness in rigorous cross-examination.
Indeed, appellan t's trial counsel was successful in securing a not guilty [verdict]
on one count of rape. Accordingly, appellan t's contentions are unfounded.

****
Finally, we note that appellant also argues that his trial counsel was ineffective
based on his counsel 's inexperience. In support, appellan t alleges that his trial
counsel had no prior experience in conducting a jury trial and therefore the case
was a "dead bang winner for the prosecution." However, we find this argument is
without merit for a number of reasons. First, appellant was appointed two
attorney s to represen t him in this matter, only one of which appellant claims
lacked trial experience. Moreover, as this court has previously acknowledged
"[a]lllic ensed attorneys, even those practicing in an area of law for the first time,
are presumed compete nt absent a showing of ineffectiveness." . .. The burden of
proving lack of compete nce is on the defendant. . . . In the present case, appellant
did not introduce any evidence that his trial counsel was ineffective. Therefore,
appellan t's argume nt with respect to his trial counsel ' s inexperience is overruled.
Based on our review of the entire record, we find that appellant did not receive
ineffective assistance of counsel. Accordingly, appellant 's ... assignment of
error is without merit and overruled.
19

(ld., Ex. 36, pp. 15-16, 18, at PAGEID#: 230-31 , 233) (Ohio case citations omitted).
As a threshold matter, the Ohio Court of Appeals correctly identified the standard of
review enunciated by the Supreme Court in Strickland as the applicable standard to apply
in
addressing petitioner's ineffective-assistance-of-counsel claim. As the state appellate court
recognized, to establish that his trial counsel was ineffective under Strickland, petitioner
was
required to demonstrate both (1) his trial attorney 's conduct was constitutionally deficien
t; and
(2) the attorney ' s deficient performance prejudiced the defense . See Strickland, 466 U.S.
at 687.
Under the first prong of the Strickland test, petitioner had to show that his counsel 's
representation fell below an objective standard of reasonableness based on all the circums
tances
surrounding the case. !d. at 688. Judicial scrutiny must be highly deferential, and a " fair
assessment of attorney performance requires that every effort be made to eliminate the distortin
g
effects of hindsight" and to evaluate the challenged conduct from counsel 's perspective
at the
time the conduct occurred . !d. at 689. In determining whether or not counsel 's perform
ance was
deficient, the court must indulge a strong presumption that the challenged conduct fell within
the
wide range of reasonable professional assistance. !d.
To satisfy the second "prejudice" prong of the Strickla nd test, petitioner had to
demonstrate that a "reasonable probability" exists that, but for his counsel 's alleged error,
the
result of his trial would have been different. See Strickla nd, 466 U.S. at 694. That burden
is
satisfied only by a showing that the result of the trial would "reasonably likely have been
different absent the error[]." !d. at 695.
The court need not examine the question of whether counsel 's performance was deficien
t
before addressing the question of whether petitioner was prejudiced by counsel ' s perform
ance.
The court may dispose of an ineffective-assistance-of-counsel claim by finding that petition
er
20

made an insufficient showing on either ground. ld. at 697.
In this federal habeas action , this Court must employ a "doubly defere
ntial" standard of
review in evaluating the reasonableness of the Ohio Court of Appeals'

adjudication of

petitioner's claim under Strickland. See Woods v. Daniel, _ U.S. _,
135 S.Ct. I372, 1376
(20I5) ; Burt v. Titlow,_ U.S._, 134 S.Ct. IO, I3 (20I3) ; Premo v. Moore
, 562 U.S. 115, I2223 (2011) (quoting Harrington, 562 U.S. at 104-05); Knowles v. Mirzay
ance, 556 U.S. I I I, I23
(2009). Although "[s]urmounting Strickland' s high bar is never an easy
task,"

Harrington, 562

U.S. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)),
the AEDPA requires that a
second layer of deference be accorded the state courts' adjudication of
ineffective assistance of
counsel claims. The Supreme Court has explained:
Even under de novo review , the [Strickland] standard for judgin g counse
l's
representation is a most deferential one....

****
Establishing that a state court' s application of Strickland was unreasonable
under
§ 2254(d) is all the more difficult. The standards created by Strickland
and §
2254(d) are both " highly deferential," . . . and when the two apply in
tandem ,
review is "doubly" so. . . . The Strickland standard is a general one,
so the range
of reasonable applications is substantial. ... Federal habeas courts must
guard
against the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the questi
on is not
whether counsel's actions were reasonable. The question is whether
there is any
reasonable argument that counsel satisfied Strickland' s deferential standa
rd.
Harrington, 562 U.S. at I05 (quoting Strickland, 466 U.S. at 689, and
Knowles, 556 U.S. at
I 23); see also Premo, 562 U.S. at 122-23. Therefore, on federal habeas
review, "[t]he pivotal
question is whether the state court' s application of the Strickland standa

rd was unreasonable ,"

which "is different from asking whether defense couns el's performance
fell below Strickland's
standard." Harrington, 562 U.S. at IOI.
Upon review of the trial transcript, the undersigned concludes that the
Ohio Court of
2I

Appeals' detennination that counsel 's alleged errors did not amount to
ineffective assistance
within the meaning of the Sixth Amendment is neither contrary to nor
involves an unreasonable
application of Strickland.
First, it was reasonable for the state court to reject petitioner' s claim that
attorney
Qucsa i's lack oftria l experience constituted ineffective assistance in

and of itself. As the Ohio

Court of Appeals pointed out, petitioner was represented at trial not only
by Qucsai, but also by
another attorney who was not challenged on the ground of inexperience
. In any event, Qucsa i's
alleged inexperience does not mean that his perfonnance at petitioner'
s trial was either deficient
or prejudicial under the two-prong Strickland test. Cf Hines v. Carpe
nter, No. 3:05-0002, 2015
WL 1208684, at *37 (M.D. Tenn. Mar. 16, 2015) (and case cited therein
) ("inexperience of
counsel alone does not equate to ineffective assistance of counsel"); 6
Mitchell v. Meko, No. 08511-KSF, 2012 WL 176583, at *2-3 (E.D. Ky. Jan. 20, 2012) (in overru
ling the habeas
petitioner's objections to the magistrate judge' s recommendation to deny
his ineffectiveassistance-of-counsel claims, the district court agreed with the magis
trate judge' s detennination
that "coun sel's lack of prior capital experience, by itself, does not consti
tute a violation of[the ]
right to effective assistance of counsel"). Here, a review of the trial transc
ript does not reveal
any lack-of-experience incompetency by Qucsai in representing petitio
ner's interests at trial.
Indeed, to the contrary, the record reflects that Qucsai was not only thorou
ghly prepared and
familiar with the relevant facts and law during the trial proceedings, but
also, as the Ohio Court
of Appeals found , "zealously represent[ ed]" petitioner during those procee
dings in an effort to
establish the defense theory that the victim "made up" the story about
her uncle and that the only
6

It is noted that in Hines, the District Court later issued an order denying
the petitioner a certificate of
appealability on the issue oftrial counsel 's competency and other issues,
but granting a certificate of appealability
on other issues not pertinent to the case-at- hand. See Hines v. Carpen
ter, No. 3:05-0002, 20 15 WL 5715453, at *3
(M.D. Tenn. Sept. 25, 2015).

22

"mistake" petitioner made was having "sexual contact with [the victim
] in 2011 when she was 17
years old." (See Doc. 6, Ex. 36, p. 16, at PAGEID#: 231 ; Trial Tr. at
PAGEID#: 381-91 , 425-93 ,
496-99 , 548,5 57-612 , 618, 663-69 , 681 , 692-710, 716-42 , 748-49 , 754-70

, 775-8 30,860 -63,

91 0-28).
Second, it was reasonable for the state appellate court to conclude that
petitioner' s
remaining allegations of ineffectiveness lack merit. As the Ohio court
recognized (see id. , Ex.
36, p. 16, at P AGElD#: 231 ), contrary to petitioner's contention that
his counsel "never"
investigated or questioned witnesses, it appears from the record that
the defense attorneys were
well prepared for trial and rigorously questioned all witnesses, includ
ing the prosecution
witnesses, who were called to testify at the trial. In addition, contrary
to petitioner' s contention
that his counsel failed to impeach the victim , it appears from the record
that defense counsel
engaged in an extensive cross-examination of the victim and presented
a number of defense
witnesses to cast doubt on the veracity of her testimony against petitio
ner. Indeed , as counsel
explained in opening argument, the defense was based on the theory
that, except for the recorded
incident that occurred in 2011, the victim had lied about all the other
offenses allegedly
committed against her by petitioner over the span of several years. (See
id. , Trial Tr. at
PAGEID# : 381-82).
The record further belies any argument that petitioner's trial counsel
failed to conduct
any investigation prior to trial. As the Ohio Court of Appeals pointe
d out (see id. , Ex. 36, p. 16,
at PAGElD#: 231 ), the defens e called not only petitioner but also five
other witnesses to testify
on petitioner' s behalf at trial. To the extent that petitioner has genera
lly alleged his trial counsel
failed to adequately investi gate witnesses or the time frame of the charge
d offenses, he has not
demonstrated that a further investigation would have led to the discov
ery of additional favorable

23

evidence that would have been more than merely cumulative of the evidence already discovered
and presented at trial by the defense to undermine the victim's testimony or to otherwise
exonerate petitioner. Defense counsel emphasized in closing argument that "no witness,"
including the victim, had provided detailed testimony regarding offenses that allegedly occun·ed
prior to 2011. (See id., Trial Tr. at P A GElD#: 927). Petitioner has not provided any information
as to how a further investigation would have added to that defense or any other defense position.
Therefore, because no showing has been made that a further investigation would have led to the
discovery of " new evidence [that] differ[s] in a substantial way- in strength and subject
matter- from the evidence actually presented" at trial, it was reasonable for the Ohio Court of
Appeals to conclude that the investigation conducted by counsel was not constitutionally
deficient and did not prejudicially affect the outcome of the trial as required by Strickland. Cf

Tibbetts v. Bradshaw, 633 F.3d 436,443-44 (6th Cir. 20 11) (quoting Hill v. Mitchell, 400 F.3d
308, 319 (6th Cir. 2005)); see also Beuke v. Houk, 537 F.3d 618, 644-45 (6th Cir. 2008); United

States v. Ashimi, 932 F.2d 643 , 649-50 (7th Cir. 1991).
Finally, petitioner is unable to prevail on any claim that his counsel was ineffective for
failing to seek dismissal of the criminal charges in light of the victim's " perjured" testimony.
Counsel did unsuccessfull y move for petitioner's acquittal at the close of both the State's case
and the presentation ofthe defense. (See Doc. 6, Trial Tr. at PAGEID#: 663-64, 864). Although
counsel relied only on the lack of specific evidence regarding offenses that allegedly occurred
during most of the years in question, it is highly unlikely that petitioner would have prevailed in
obtaining an acquittal or dismissal of the charges based on the argument that the victim had
given perjured testimony. The question whether or not the victim had provided false testimony
was a disputed issue of fact that was properly left for the jury to decide. See Jackson v. Virginia,

24

443 U.S. 307,3 19 ( 1979) .
Accordingly, in sum, petitioner has not demo nstrated that the
Ohio Court of Appe als'
adjudication of his ineffective-assistance-of-counsel claim "was
so lacking in justification that
there was an error well understood and comprehended in existi
ng law beyond any possibility for
fairminded disag reeme nt." See Harrington , 562 U.S. at 103.
Because the Ohio court' s
adjudication ofthe Sixth Amen dmen t issue is neither contrary
to nor involves an unreasonable
application of Strick land, the undersigned concludes that petitio
ner is not entitled to habeas relief
based on the claim allege d in Ground Two of the petition.
C. Ground Three: Inconsistent-Verdict Claim

In Ground Three of the petition, petitioner contends that he shoul
d have been acquitted of
all charges when the jury found him not guilty of the rape offens
e charged in Coun t 1 of the
indictment. (Doc. 1, at PAGE ID#: 9). He claims that becau
se he was acquitted on Coun t 1, the
jury's guilty verdic t on the remai ning counts was an irregularity
that amou nted to a "structural"
defect in the trial proceedings. (!d.).
In Coun t 1 of the indictment, petitioner was charg ed with a rape
offen se that occurred
" [o]n or about 2000. " (See Doc. 6, Ex. 1). The remaining eleven
charges involved sex offenses
that allegedly occur red in the subse quent years of 2001 throug
h 2011. (See id. ). The Ohio Court
of Appeals, which was the only state court to address the issue
raised herein , determined the
claim lacked merit. Relying on Ohio Jaw, the court reasoned
in pertin ent part as follows:
It is well-established that "inco nsistency in a verdic t does not
arise out of
incon sisten t respo nses to different counts, but only arises out
of inconsistent
responses to the same count ."... "Each count in an indictment
charges a distinct
offense and is indep enden t of all other counts; a jury' s decisi
on as to one count is
independent of and unaffected by the jury' s finding on anoth
er count ."...
. . . . [T]he jury's verdic t was supported by the manif est weigh
t ofthe evidence.
Although the jury found appellant not guilty on one count of
rape, that findin g
25

does not affect the validity of appellant 's other convictions. Simply, the jury
could reasonably believe that appellant committed the separate instances of sexual
abuse between the years of2001-20 11, yet fail to find, beyond a reasonable doubt,
that appellant committed one count of rape in 2000. Appellant's ... assignment
of error is without merit.

(ld., Ex. 36, p. 14, at PAGEID#: 229) (Ohio case citations omitted).
As discussed above, see supra pp. 6-7, to the extent petitioner contends that the Ohio
Court of Appeals misapplied or erred in its interpretation of Ohio law in overruling the
assignment of error, this Court lacks jurisdiction to consider such a claim and, in any event, is
bound by and must defer to the state appellate court's ruling on the state-law issue.
Furthermore, petitioner is unable to prevail on any claim that the jury's differing verdicts
amounted to federal constitutional error. Without addressing whether the verdicts were even
inconsistent/ it is well-settled under Supreme Court precedents that inconsistency between
verdicts on separate charges against a defendant does not constitute reversible error or otherwise
implicate federal constitutional concerns. See, e.g., United States v. Powell, 469 U.S. 57, 64-67
(1984); Dunn v. United States, 284 U.S . 390, 393 (1932); see also Harris v. Rivera, 454 U.S.
339, 345 (1981). As the Supreme Court explained in Powell, 469 U.S. at 67, "a criminal
defendant is already afforded protection against jury irrationality or error by the independent
review of the sufficiency of the evidence undertaken by the trial and appellate courts .... We do
not believe that further safeguards against jury irrationality are necessary."
Accordingly, petitioner is not entitled to federal habeas reliefbased on the claim alleged
in Ground Three of the petition, which contrary to his contention, does not trigger any concerns
of a "structural defect" or federal constitutional error subject to review in this proceeding.
7

The undersigned notes, however, that the verdicts do not appear to be inconsistent. The jury could have
reasonably found that petitioner's sexual abuse of the victim began in the year 200 I rather than 2000 given evidence
introduced at trial that petitioner did not arrive in the United States until late in the year 2000. Therefore, as the
Ohio Court of Appeals pointed out, the jury could have acquitted petitioner of the charge in Count 1 while finding
that he did commit the offenses that subsequently occurred in the years 2001-2011.

26

D. Ground Four: Claim Challenging The Jury Selection Process
In Ground Four of the petition, petitioner alleges that his rights under the Sixth
Amendment and the Equal Protection Clause of the Fourteenth Amendment were violated
because African-Americans were excluded from the jury selection process. (See Doc. 1, at
P AGEID#: 11 ). He states as factual support for the claim that only one juror at his trial was not
"white." (!d.).
The Ohio Court of Appeals, which was the only state court to issue a reasoned decision
addressing the issue, overruled the assignment of error in the absence of a trial transcript or any
other evidence in the record to support petitioner 's general allegation of intentional or systematic
exclusion of African-Americans from the venire. (See Doc. 6, Ex. 36, pp. 7-9, at PAGEID#:
222-24). Citing Ohio case-law, the court reasoned as follows:
Pursuant to the Sixth and Fourteenth Amendments to the United States
Constitution, a criminal defendant has the right to have a jury chosen from a fair
cross section of the community.... In order to comply with the "fair cross
section" requirement, a jury must be selected without the systematic or intentional
exclusion of any cognizable group. . . . In order to establish a violation of the fair
cross section requirement, a criminal defendant must demonstrate three things:
"that the group alleged to be excluded is a distinctive group in the community, (2)
that the representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the
community, and (3) [that] the under-representation is due to systematic exclusion
of the group in the jury selection process." ...
In the present case, appellant has failed to support his assertion of racial
discrimination. First, appellant has failed to produce or point to any evidence in
the record that any distinctive group in the community was intentionally excluded
from the jury venire. Appellan t's sole argument to support his claim of racial
discrimination is the bare assertion in his appellate briefthat "members of his race
have been impermissibly excluded from the venire and may make out a prima
facie case of purposeful discrimin[ation]." Furthermore, as the state correctly
points out in its brief, appellant failed to provide a transcript of the voir dire
process and therefore there is nothing for this court to review.
As this court has repeatedly explained , " [s]ince the appealing party bears the
burden of showing error in the underlying proceeding by reference to matters in
27

the record, the appellant has a duty to provide a trans
cript for appellate review." ...
"Where portions of the transcript necessary for resol
ution of assigned errors are
omitted from the record, the reviewing court has noth
ing to pass upon and thus
has no choice but to presume the regularity or validity
of the lower cour t's
proceedings and affirm." ...
A review of the record in this case reveals that appe
llant did not submit a
transcript of the voir dire process, which was necessary
for this assignment of
error. Without a transcript, we cannot determine the
validity of any ofth e
assertions that appellant made in his brief and we must
presume the regularity of
the proceedings. As such, we find appellant has failed
to support his assertion of
racial discrimination and therefore overrule his ... assig
nment of error.
(!d.) (Ohio case citations omitted).

As the Ohio Court of Appeals recognized , it is wellsettle

d that "[t)h e Sixth Amendment

secures to criminal defendants the right to be tried by
an impartial jury drawn from sources
reflecting a fair cross section of the community ." Berg
huis v. Smith, 559 U.S. 314, 319 (201 0)
(citing Taylor v. Louisiana , 419 U.S. 522 (1975)). In
order to establish a prim a facie violation of
the Sixth Amendment's fair-cross-section requireme

nt, the defendant must show: "(1) that the

group alleged to be excluded is a ' distinctive ' group
in the community; (2) that the representation
of this group in venires from which juries are selected
is not fair and reasonable in relation to the
number of such persons in the community; and (3) that
this underrepresentation is due to
systematic exclusion ofth e group in the jury-selection

process." !d. (quoting Duren v. Missouri,

439 U.S. 357, 364 (1979)). To establish "systematic
exclusion" under the third prong of the test,
the defendant must show that the underrepresentation
of a distinctive group in the community is
"inherent in the particular jury-selection process utiliz

ed." Duren, 439 U.S. at 366; see also

United States v. Suggs, 531 F. App 'x 609, 619 (6th Cir.
2013). Once a defendant establishes a
prim a facie case, the inquiry does not end because the
burden then shifts to the government,
which has the opportunity to justi fy the infringement
" by showing attainment of a fair cross
section to be incompatible with a significant state inter
est." See Duren, 439 U.S. at 368; Suggs,
28

531 F. App'xa t619.
In this case, as the Ohio Court of Appeals found, there is no evidence in the record
pertaining to the selection of the jury panel. Indeed, there is no evidence in the record as
to
whether petitioner even complained about the racial composition of the jury or otherwise
sought
to establish aprima facie violation ofthe Sixth Amendment 's fair-cross-section requirem
ent
during the trial proceedings. It is conceded that the first prong of the Duren test is satisfied
because it is well-established that African-Americans are considered a "distinctive group
in the
community." See, e.g. , Castaneda v. Partida, 430 U.S. 482, 492-94 (1977) (and cases cited
therein) ; Peters v. Kif!, 407 U.S. 493, 497-98 (1972). However, it was reasonable for the
Ohio
Court of Appeals to find no merit to petitioner' s claim in the absence of any evidence in
the
record even remotely indicating, as required under the second and third prongs of the Duren
test,
that African-Americans were not fairly represented in the venire from which the petit jury
was
chosen or that any underrepresentation was due to a systematic exclusion of African-America
ns
from the jury selection process.
The only "evidence" that petitioner has cited to support his claim of systematic,
intentional racial discrimination in the jury selection process is that there was only one non-whi
te
juror on the panel selected to hear his case. However, the mere fact that eleven of the twelve
jurors on that panel were Caucasian is insufficient to establish the second and third element
s of a

prima fa cie case. Cf United States v. Allen, 160 F.3d I 096, 1103 (6th Cir. 1998) (rejectin
g the
contention that the defendants had met their burden of proof by showing their particular
jury
panel contained no African-Americans); Suggs, 531 F. App'x at 619 (citing Allen and United

States v. Odenea l, 517 F.3d 406, 412 (6th Cir. 2008)) (" It is incumbent upon the defenda
nt to
show more than that a particular jury panel was unrepresentative ."); United States v. Smith,
463

29

F. App' x 564,57 1 (6th Cir. 2012) (citing Allen and Ford v. Seabold, 841 F.2d 677, 685 (6th
Cir.
1988)) (pointing out that the Supreme Court "has not held that a defendant is entitled to a
jury of
any particular racial composition" and that "systematic exclusion" cannot be inferred "[m]ere
ly
because the percentage of a distinctive group selected in a single venire does not mirror the
percentage ofthe group in the entire community"). See also Berghuis, 559 U.S. at 319, 333
(in a
case where the defendant was tried by an all-white jury, the Supreme Court upheld the state
court's rejection of a fair-cross-section claim on the ground that the decision was "consist
ent
with Duren" and did not involve an unreasonable application of clearly established federal
law).
Accordingly, in sum, the undersigned concludes that the Ohio Court of Appeals' rejection
of petitioner's fair-cross-section claim is neither contrary to nor involves an unreasonable
application of the well-established Supreme Court precedents applicable to such claims.
It was
reasonable for the state court to find no merit to the claim in the absence of any evidence
in the
record to support petitioner' s conclusory assertion of racial discrimination in the jury selectio
n
process. Therefore, petitioner has not demonstrated that he is entitled to reliefba sed on the
claim
alleged in Ground Four of the petition.

E. Ground Five: Prosecutorial Misconduct Claim
In Ground Five of the petition, petitioner alleges that he was deprived of his
constitutional right to a fair trial because the prosecutor engaged in the following miscond
uct
during trial: (1) the prosecutor improperly stated that the sexual abuse began in the spring
of
2000 before petitioner had even arrived in the United States; (2) the prosecutor made imprope
r
statements vouching for the credibility of the victim; (3) the prosecutor improperly shifted
the
burden of proof ; and (4) the prosecutor generally "made multiple improper comments
throughout the trial." (See Doc. I, at PAGEID #: 13). It appears from the record that the
specific

30

instances of alleged misconduct cited by petitioner occur
red during the prosecutor 's closing
argument. (See Doc. 6, Trial Tr. at P AGElD#: 887, 902).
The Ohio Court of Appeals was the only state court to rende
r a reasoned opinion
addressing the issues that were raised by petitioner on direc

t appeal. Citing only Ohio case-law,

the court ruled as follows:
The state is entitled to a certain degree oflat itude in maki
ng its concluding
remarks. . . . A court will find prosecutorial misconduct
only when the remarks
made during closing were improper and those improper
remarks prejudicially
affected substantial rights of the defendant. . . . "The focus
of an inquiry into
allegations of prosecutorial misconduct is upon the fairne
ss of the trial, not upon
the culpability ofthe prosecutor." ... Therefore, a findin
g ofpro secut orial
misconduct will not be grounds for reversal unless the defen
dant has been denied
a fair trial becau se of the prosecutor ' s prejudicial remarks.
Appellant first argues the prosecutor committed misconduc
t by improperly
vouching for the credibility of the victim and by commentin
g on evidence not
contained in the record. In support of this allegation, appel
lant raises a litany of
general complaints and again reiterates his mistaken belie
f that the only evidence
of any crime is the videotaped recording of him sexually
abusing A.P. when she
was 17 years old. Because appellant' s counsel did not objec
t to these statements
at trial, our review of the record is limited to plain error..
..
Initially, we observe that the jury was instructed that the
statements made durin g
closing arguments were not evidence. We must therefore
presume that the jury
followed the trial court 's instructions ....
Appe llant' s first set of complaints are more general in natur
e and fail to
specifically reference any objectionable statements other
than vague assertions of
misconduct. Having reviewed the prosecutor 's closing argum
ent, we find the
prosecutor' s statements to be proper. In closing argument,
the prosecutor may
comm ent freely on " what the evidence has shown, and what
reasonable inferences
may be drawn therefrom. ". . . " It is not improper to make
comments in the
context of explaining why a witness' [s] testimony is or is
not credible in light of
the circumstances of the evidence, [where] the prosecutor
neither implies
knowledge of facts outside the record nor places his or her
personal credibility in
issue by making such argument." . .. Here, the prosecutor
simply summarized the
testimony that was offered by the state 's witnesses durin
g trial and asked the jury
to determine whether such evidence was credible. The prose
cutor did not
improperly vouch for A.P. by implying knowledge of facts
outside the record or
placing her personal credibility at issue . Rather, the prose
cutor's statements were
limited to and directed at the evidence presented at trial,
and how such evidence
31

could be interpreted by the jury. Appellant' s argument that the only credible
evidence of sexual abuse is the videotaped recording of sexual abuse is simply
incorrect and is a proposition that the jury ultimately disregarded as less than
credible.
Appellant next argues that there was prosecutorial misconduct in this case based
on the prosecutor' s alleged statements relating to the burden of proof in a criminal
trial. In closing arguments, the state recited the evidence in favor of conviction
and discussed all relevant factors in convicting appellant of the indicted offenses.
In making her concluding remarks , the state attorney noted:
At the beginning of this case, we talked extensively about the
presumption of innocence. And I told you that the State would
remove that presumption of innocence as it presented its evidence.
At this point, the presumption is gone.
Appellant 's trial counsel later objected to this statement and alleged that the
statement inappropriately stated that appellant was no longer presumed innocent.
Following appellan t's objection, the trial court gave a cautionary instruction to the
jury regarding the presumption of innocence and the burden of proof.
THE COURT: Ladies and gentlemen oftheju ry, the Court wants
to give you a couple of cautionary instructions. First one you may
recall . I first mentioned, we talked about the burden of proof, and I
told you that the burden of proof is on the State of Ohio. And that
remains true, and I will give you final instructions in a few
minutes , and I'll once again remind you that the State bears the
burden of proving each and every element of each count of the
indictment. The State or rather the defendant does not have a
burden of proof.

***
I just want to caution you, ladies and gentlemen, not to lose sight
of the fact that as far as the burden of proof to prove the elements
of the offense, the State still bears the burden of proof. The
defendant does not have a burden of proof to prove anything in this
case, so I don' t want the prosecutor' s questions or the argument to
create in your minds some confusion as to which side bears the
burden of proof. Is that understood? And everyone is indicating
yes for the record.
Now apparen tly-- [the prosecutor] made a comment toward the
end of her argument to the effect of the presumption is now gone,
referring to the presumption of innocence. Well, the presumption
remains until you ladies and gentlemen go back to the jury room
32

and determ ine wheth er or not the State by the presen tation of
proof
beyon d a reason able doubt has rebutted the presu mptio n of
innocence, wheth er that presu mptio n has been overc ome and
now
the State has prove d the defen dant's guilt.
So I want to be clear that the presu mptio n is not now gone.
Only
you can determ ine that follow ing your deliberations in this case
later on in the proceeding.
Of anoth er choic e of words that she might have used in hinds
ight
*** I think what she probably tried to say and we discussed it here
at the bench, she can correc t me if I' m wrong is that the State,
as
far as the State is concerned, would argue that they ' ve now
rebutted that presu mptio n of innocence. Does every one
under stand? Fair enough.
Based on our review , we find the prose cutor' s statem ent did
not deprive appel lant
of a fair triaL The statem ent merel y reflected the state' s argum
ent that suffic ient
and substantial evide nce was presen ted for the jury to appro priate
ly return a guilty
verdict. Furth ermor e, any perce ived error in this comm ent was
surely cured by
the cautio nary instruction issued by the trial court, which re-em
phasized, on
multip le occasions, that the state had the burde n of proof and
appellant was
entitled to a presu mptio n of innoc ence until prove n guilty. We
presu me that
jurors follow the cautio nary instru ctions given by the trial court
.... Accordingly,
we find no merit to appel lant's argum ent that he received an
unfair trial on the
basis ofpro secut orial misconduct. Accor dingly , appellant' s
. . . assign ment of
error is overruled.
(Doc. 6, Ex. 36, pp. 18-22, at PAGE ID# : 233-3 7) (Ohio case
citations omitted).
As an initial matter, as the respondent has argue d in the return
of writ (see Doc. 7, pp. 3435, at P AGEID#: 1055-5 6), petitio ner proce durall y defau lted
and has waived any claim s of
prosecutorial misco nduct that he either failed to assert by way
of objec tion at trial or failed to
present as an issue on direct appeal. In recog nition of the equal
obliga tion of the state courts to
protec t the constitutional rights of criminal defen dants, and in
order to prevent needless friction
betwe en the state and federal courts , a state defen dant with federa
l constitutional claim s must
fairly presen t those claim s to the state courts for consid eratio
n before raising them in a federal
habeas corpu s action. See 28 U.S.C. § 2254( b)(l), (c); see also
Anderson v. Harless, 459 U.S. 4,

33

6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270,275- 76 (1971). A claim is deemed fairly
presented only if the petitioner presented his constitutional claims for relief to the state' s highest
court for consideration. See 0 'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999); Hafley v.
Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Leroy v. Marshall, 757 F.2d 94, 97,99-10 0 (6th Cir.

1985). Therefore , to the extent that petitioner has raised claims that were not presented to the
state courts for consideration on appeal from his conviction, those allegations of prosecutorial
misconduct have been procedurally defaulted.
Furthermore, to the extent that petitioner has also asserted claims of misconduct that were
raised on direct appeal but were not objected to at trial, it is well-settled under the procedural
default doctrine that the federal habeas court may be barred from considering an issue of federal
law from a judgmen t of a state court if the judgment rests on a state-law ground that is both
"independent" of the merits of the federal claim and an "adequate" basis for the state court's
decision. See, e.g., Harris v. Reed, 489 U.S. 255, 260-62 (1989). Ohio's contemporaneous
objection rule is a firmly-established, adequate and independent state procedural rule, which
serves to foreclose federal habeas review when relied on by the state courts as a basis for
denying relief. See, e.g., Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011) (citing Hinkle
v. Randle, 271 F.3d 239, 244 (6th Cir. 2001 )); White v. Mitchell, 431 F.3d 517, 525 (6th Cir.

2005) (citing Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir. 2003)); see also State v. Murphy,
747 N.E.2d 765, 788 (Ohio 2001) (pointing out that Ohio' s "waiver rule," which "requires that a
party make a contemporaneous objection to alleged trial error in order to preserve that error for
appellate review," is "of long standing" and "goes to the heart of the adversary system of
justice"). The Sixth Circuit has repeatedly held that "plain error" review by the state appellate
court "constitutes enforcement of Ohio's contemporaneous objection rule." See, e.g., Williams v.

34

Bagley, 380 F.3d 932, 968-69 (6th Cir. 2004) (and Sixth Circu
it cases cited therein); see also
Goodwin, 632 F.3d at 315. Here, the Ohio Court of Appeals clearl
y enforced the state
procedural bar to review when it stated its review was "limited
to plain error" with respect to
statements made by the prosecutor allegedly vouching for the

credibility of the victim and

commenting on evidence not contained in the record, which were
not objected to at trial. (See
Doc. 6, Ex. 36, p. 19, at PAGEID#: 234). Under well-settled
Sixth Circuit precedents, the state
appellate court 's plain-error review did "not constitute a waive
r of state procedural default
rules. " See, e.g., Seym our v. Walker, 224 F.3d 542, 557 (6th Cir.
2000) (citing Paprocki v. Foltz ,
869 F.2d 281, 284-85 (6th Cir. 1989)); see also Goodwin, 632
F.3d at 315.
Because of the procedural defaults that occurred both at trial and
on appeal, any defaulted
claims of prosecutorial misconduct alleged in the instant action
are waived and barred from
review by this Court unless petitioner "can demonstrate cause
for the default[s] and actual
prejudice . . . or demonstrate that failure to consider the claim
s will result in a fundamental
miscarriage of justic e." See Hoffn er v. Bradshaw, 622 F.3d 487,
497 (6th Cir. 2010) (quoting

Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Petitioner
has not presented any arguments to
establish cause for his procedural defaults in the state courts.
Moreover, petitioner has not
demonstrated that failure to consider any defaulted claims will
result in a "fundamental
miscarriage of justice," or in other words, that the alleged errors
"probably resulted in the
conviction of one who is actually innocent." See Murray v. Carri
er, 477 U.S. 478,4 95-96
(1986); see also Schlup v. Delo, 513 U.S. 298, 327 (1995). No
such showing has been made to
the extent that petitioner has challenged the weight or sufficiency
of the evidence introduced

at

trial to establish his guilt, because actual innocence means factua
l innocence, not mere legal
insufficiency. See House v. Bell, 547 U.S. 518, 538 (2006); Carte
r v. Mitchell, 443 F.3d 517,

35

538 (6th Cir. 2006) (citing Housley v. United States, 523 U.S. 614,6 23
(1998)); Wright v.
Lazaroff, 643 F. Supp.2d 971,9 89 (S.D. Ohio 2009) (Barrett, J.; Hogan
, M.J.); see also
Vanwinkle v. United States, 645 F.3d 365, 369 (6th Cir. 2011).
In any event, petitioner has not demonstrated that the Ohio Court of Appea
ls'
adjudication of petitio ner's prosecutorial misconduct claim is contrary
to or involves an
unreasonable application of clearly established federal law as determ
ined by the Supreme Court.
As the Ohio Court of Appeals recognized, petitioner is not entitled to
relief unless the
prosecutor's alleged errors "so infected the trial with unfairness as to
render the resulting
conviction a denial of due process." See Donnelly v. DeChristoforo,
416 U.S. 63 7, 642-43
(1974) ; see also Darden v. Wainwright, 477 U.S. 168, 181 (1986) ("it
'is not enough that the
prosecutor's remark s were undesirable or even universally conde mned[
;]'" rather, the "relevant
question" is whether the prosecutor's challenged conduct rendered the
trial fundamentally unfair
in violation of due process). The alleged misconduct must be examined
within the context of the
entire trial to determine whether it deprived the defendant of a fair trial.
United States v. Young,
470 U.S. 1, 11-12 (1985). The Sixth Circuit has held that in order to
prevail on a claim of
prosecutorial misconduct, the petitioner must show that the alleged misco
nduct was "both
improper and flagrant." See, e.g., Smith v. Mitchell, 567 F.3d 246, 255
(6th Cir. 2009) (and Sixth
Circuit cases cited therein).
In this case, to the extent that petitioner has contended the prosecutor
made statements
during closing argument that rose to the level of improper vouching
for the victim ' s credibility, it
was reasonable for the Ohio Court of Appeals to reject that argument
as meritless. As the state
appellate court understood, "'[i]m prope r vouching occurs when a prosec
credibility of a witness by indicating a personal belief in the witness'

36

utor supports the

s credibility thereby placing

the prestige of the [government] behind that witness,' and usually involv
es 'some implication
that the prosecutor ha[ d) special knowledge of facts not before the jury
related to the credibility
of a witness."' Miller v. Burt, _ F. App' x _,No . 15-22 69,201 6 WL
1169096, at *5 (6th Cir.
Mar. 25, 2016) (quoting Johnson v. Bell, 525 F.3d 466, 482 (6th Cir.
2008)). None ofthe
comments cited by petitioner as constituting improper vouching amoun

t to a statement of

personal belief as to the victim ' s credibility or suggest the prosec utor
had special knowledge of
facts not before the jury regarding the victim 's credibility. Rather, when
viewed in the context of
the entire closing argum ent, it appears that, as the Ohio Court of Appea
ls reason ably found , the
remarks were not intended by the prosecutor as a personal vouching
for the victim ' s credibility,
but rather to show that in light of the evidence presented at trial, the
victim ' s testimony was to be
believed instead of petitioner's testimony. (See Doc. 6, Trial Tr. at
PAGE ID#: 886-88, 902). In
any event, even assuming, solely for the sake of argument, that the prosec
utor' s comm ents could
have been construed as a statement of personal belief, they were not
so egregious or misleading
to have prejudicially affected the jury in determining petitioner' s guilt

or innocence on the

criminal charges. Indeed, the jury acquitted petitioner of one of the
rape charges, which
indicates the verdicts were reached on the basis of the evidence rather
than any personal appeal
by the prosec utor on the victim ' s behalf.
To the extent petitioner has alleged the prosecutor made comments that
improperly
shifted the burden of proof from the State to the defense, it was reason
able for the Ohio Court of
Appeals to find that any such error was cured by the trial court' s length
y cautionary instruction
to the jury following defense couns el's objection to the remarks. (See
id. , Trial Tr. at PAGEID#:
906-10).

37

To the extent that petitioner challenges the prosecutor ' s

statement that the sexual abuse

began in the "spring of 2000" (see id., Trial Tr. at PA GElD
#: 879), the comment does not appear
to have been improper because the time of petitioner' s arriva
l that year in the United States was
in dispute. (See id. , Trial Tr. at PAGElD#: 880, 904-05).
In any event, the remark did not
prejudicially affect the jury because petitioner was acqui

tted on the count charging him with the

rape offense that allegedly occurred in the year 2000.
Finally, as the Ohio Court of Appeals similarly noted in
addressing petitioner' s
complaints that were "more general in nature and fail[ed]
to specifically reference any
objectionable statements" (see id., Ex. 36, p. 19, at PAG
EID#: 234), petitioner is not entitled to
relief based on the vague and conclusory allegation that
the prosecutor "made multiple improper
comments throughout the trial."
Accordingly, in sum, petitioner is not entitled to federal
habeas relief based on the merits
of the prosecutorial misconduct claim alleged in Ground

Five ofthe petition.

F. Ground Seven: "Perjured Testimony" Claim
Although Ground Seven of the petition is difficult to decip
her, it appears that petitioner is
seeking federal habeas corpus relief on the ground that his
conviction was improperly obtained
on the basis ofthe victim 's "perjured testimony." (See Doc.
1, at PAGEID#: 13).
The Ohio Court of Appeals, which construed the claim "as
a challenge to the manifest
weight of the evidence," rejected it as meritless. (See Doc.
6, Ex. 36, p. 10, at PAGEID#: 225).
In overruling the assignment of error under standards gove

8

rning the state-law issue, 8 the court

See, e.g., Richardson v. Smith, No.3: I levi 217, 2012 WL
5903986, at* I 7 (N.D. Ohio Oct. 30, 2012)
(Report & Recommendation) (quoting Tibbs v. Florida,
457 U.S. 31 , 41-47 (1982)) (claim that a conviction is
against the manifest weight of the evidence is "derived from
purely state law whereby the state appellate court sits as
a 'thirteenth juror and disagrees with fact finder's resolu
tion of conflicting testimony' and finds that the fact fmder
'clearly lost its way and created such a miscarriage ofjustice
that the conviction must be reversed and a new trial
ordere d"'), adopted, 2012 WL 5903896 (N.D. Ohio Nov.
26, 20 I 2). Cf Nash v. Eberlin, 258 F. App'x 761, 765 &

38

reasoned in relevant part as follows:
We begin by noting that this case involves allegations of sexual abuse from 2000
until 2011 , when the victim was between the ages of six and 17 years old.
Because of the continuing nature of the sexual abuse, the state did not set forth
specific dates for each offense in the indictment, but instead charged appellant
with one criminal offense for each year that the abuse continued.
As we have . .. noted, " [a] precise time and date of an alleged offense are not
ordinarily essential elements."... In sexual abuse cases involving children, it
may be impossible to provide a specific date. "The problem is compounded
where the accused and the victim are related or reside in the same household,
situations which often facilitate an extended period of abuse. An allowance for
reasonableness and inexactitude must be made for such cases." ...
In this case, appellant was charged with three different crimes: (1) seven counts
of rape when A.P. was between the ages of six and 12; (2) three counts of
unlawful sexual conduct with a minor when A.P. was between the ages of 13 and
15 years old; and (3) two counts of contributing to the unruliness or delinquency
of a child when A.P. was 16 and 17 years old.
Rape is defined under R.C. 2907.02 and provides "[n]o person shall engage in
sexual conduct with another who is not the spouse of the offende r*** when** *
[t]he other person is less than thirteen years of age[.]"
The crime of unlawful sexual conduct with a minor is defined under R.C.
2907.04, and provides "[n]o person who is eighteen years of age or older shall
engage in sexual conduct with another, who is not the spouse of the offender,
when the offender knows the other person is thirteen years of age or older but less
than sixteen years of age, or the offender is reckless in that regard."
Sexual conduct, as defined in both R.C. 2907.02 and R.C. 2907.04, includes, inter
alia, vaginal intercourse, fellatio, cunnilingus, and digital penetration ofthe
vagina. R.C. 2901.01(A).
Finally, appellant was charged with two counts of contributing to the unruliness
or delinquency of a child in violation of R.C. 2919.24, which provides " [n]o
person* ** shall *** [a]id, abet, induce, cause, encoura ge, or contribute to a child
or a ward of the juvenile court becoming an unruly child." An "unruly child"
includes any child "[w]ho so deports himself as to injure or endanger the health or
n.4 (6th Cir. 2007) (recognizing that "a manifest-weight-of-the-evidence argument is a state-law
argument"). It is
noted that because a manifest-weight-of-evidence claim presents only an issue of state law,
this Court lacks
jurisdiction to consider it as a possible ground for federal habeas relief. See 28 U.S.C. §
2254(a); Wilson v.
Corcoran, 562 U.S. I , 5-6 (2010); Estelle v. McGuire, 502 U.S. 62,67-68 (1991); Pulley
v. Harris, 465 U.S. 37, 41
(1984); Jackson v. Warden, Chillicothe Corr. Inst., No. I: 14cv l28, 2015 WL 4481517, at
*I , * 16 (S.D. Ohio July
22, 2015) (Dlott, J.; Wehrman , M.J.) (and cases cited therein).

39

morals of hims elf or others."... "As a matter of law, a child
is unruly who
engages in sexual activity with an adult, ' as it is inherently
injurious to the morals
of the child or others."'...
In the present case, A.P. testified that appellant began sexua
lly abusing her in
2000 when she was six years old. A.P. acknowledged that
appellant had sexually
abused her repeatedly. Specifically, A.P. testified that appel
lant had engaged in
separate acts of fellatio, cunnilingus, vaginal intercourse
, and digital penetration
ofhe r vagina for each year beginning in 2000 and endin
g in 2011 . A.P. stated
that each instance of sexual conduct occurred when she
was alone with appellant.
This testimony was corroborated by A.P.' s mother who
testified that appellant
routinely helped A.P. get ready for school in the morning
and had a key to the
residence.
A.P.' s testimony was further corroborated by appe llant' s
own admissions made to
the police durin g the police interrogation. In his interview
with Detective Mize ,
appellant admitted to touching A.P.' s private areas , inclu
ding her breasts, vaginal
area, and buttocks many times over the years. In addition,
appellant admitted to
Detective Mize that he had: (I) touched A.P. in her priva
te areas more than 50
times; (2) engaged in cunnilingus or fellatio at least ten
times; and (3) had sexual
intercourse with A.P. at least ten times.
Finally, neither party disputes A.P.' s age or date of birth.
Therefore, it is
undisputed that A.P. was under the age of consent at all
times relevant to the
instances of sexual abuse and under the age of 13 and 16,
respectively, for each
count of rape and unlawful sexual conduct with a minor.
In light of the evidence presented, the jury did not clearly
lose its way in
concluding that appellant was guilty of six counts of rape,
three counts of
unlawful sexual conduct with a minor, and two counts of
contributing to the
unruliness or delinquency of a child. Although appellant
denies that he had
sexual contact with A.P ., except for the 2011 incident caugh
t on videotape, the
jury, as trier of fact, was in the best position to weigh the
credibility of the
witnesses. The jury simply did not believe that appel lant's
position was credible.
Appe llant' s convictions are not against the manifest weig
ht of the evidence.
(!d. , pp. 11-13 , at PAGEID#: 226-28).

As an initial matte r, as mentioned above in addressing a
related

issue raised in Ground

Two of the petition, see supra p. 24, petitioner is not entitl
ed to habeas relief solely on the basis
of his conclusory allegation that the victim gave "perjured
testimony." As the Ohio Court of
Appeals reasonably found in considering whether the jury'
s verdicts of guilt were suppo

40

rted by

the weight of the evidenc e, the question of whether or not the victim gave "perjure d testimon
y"
was a disputed issue of fact that was properly left for the jury, as the trier of fact, to decide
when
weighing the evidence and credibility of the various witnesse s who testified at trial. See
Jackson
v. Virginia, 443 U.S. 307, 319 (1979). The undersigned rejects any suggesti on by petition
er that
perjury was established by the jury's verdict of acquittal on the rape charge in Count 1
ofthe
indictment. The victim was only six years old when the offense charged in Count 1 allegedl
y
occurred. The jury could have reasonably inferred that the victim, who provide d vague,
confused or inconsistent statements as to when the sexual abuse began (i.e., either in 2000
or
200 1), was too young to know the exact year the sexual abuse started but was telling the
truth
about petition er's "pattern of conduct that continued throughout [the] years" thereafter.
(See
Doc. 6, Trial Tr. at PAGEID #: 405-06 ,409,41 1-13,42 5-26,43 6,632, 657).
To the extent that petitioner has also suggested in Ground Seven that his constitutional
right to due process was violated because the evidence was insufficient to establish his
guilt
beyond a reasonable doubt on the criminal charges, this Court is constrained by the standard
of
review established by the Suprem e Court in Jackson v. Virginia, 443 U.S. 307 (1979).
As the
Supreme Court held in that case, because the Due Process Clause requires the State to
prove
beyond a reasonable doubt every fact necessary to constitute the charged offense, In Re
Winship,
397 U.S. 358, 363-64 (1970), "the relevant question " in assessin g the sufficiency of the
evidence
"is whether, after viewing the evidenc e in the light most favorable to the prosecution, any
rational trier of fact could have found the essentia l element s of the crime beyond a reasonab
le
doubt." Jackson, 443 U.S. at 319 (emphasis in original).
Under the Jackson standard, the State is not required to rule out every hypothesis except
that of guilt beyond a reasona ble doubt. !d. at 326. Rather, "a federal habeas corpus court
faced

41

with a record of historical facts that supports conflicting inferences must presume -even
if it does
not affirmatively appear in the record- that the trier of fact resolved any such conflicts
in favor of
the prosecution, and must defer to that resolution." /d.; see also Walker v. Engle, 703
F.2d 959,
969-70 (6th Cir. 1983). It is the respons ibility of the trier of fact to resolve conflicts in
testimony, to weigh the evidenc e and to draw reasonable inferences from the evidence.
Jackson,
443 U.S. at 319. Consequ ently, the reviewing court is not permitted to reweigh the evidenc
e,
reevaluate the credibility of witnesses, make its own subjective determi nation of guilt
or
innocence, or otherwi se substitute its opinion for that of the jury. See id. at 318-19 & n.13
; see

also United States v. Fisher, 648 F.3d 442 , 450 (6th Cir. 2011) (citing Brown v. Konteh,
567
F.3d 191 , 205 (6th Cir. 2009)); York v. Tate, 858 F.2d 322, 329 (6th Cir. 1988) (per curiam)
.
"Circumstantial evidenc e alone is sufficient to support a convicti on." Newman v.

Metrish, 543 F.3d 793, 796 (6th Cir. 2008) (quoting Johnson v. Coyle, 200 F.3d 987, 992
(6th
Cir. 2000)); see also Fisher, 648 F.3d at 450. Due process is satisfied as long as such
evidence is
enough for a rational trier of fact to make a permissible inference of guilt, as opposed
to a
reasonable speculation that the petitioner is guilty of the charged crime. Newman, 543
F.3d at
796-97 (and Sixth Circuit cases cited therein).
Moreover, federal habeas review of a claim challenging the sufficiency of the evidence
is
even fm1her limited. As the Sixth Circuit explained in Brown, 567 F.3d at 205, the federal
habeas court is "bound by two layers of deference to groups who might view facts differen
tly
than [the habeas court] would ." The federal habeas court must defer not only to the trier
of
fact's findings as required by Jackson, but under 28 U.S.C. § 2254(d) , must also "defer
to the

state appellate court 's sufficiency determination as long as it is not unreaso nable." /d. (emphas
is
in original); see also Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011 ); Anderso n v. Tromble
y,

42

451 F. App'x 469, 474-75 (6th Cir. 2011). Therefore, as the Sixth Circuit went on to emphasize
in Brown:
(W]e cannot rely simply upon our own personal conceptions of what evidentiary
showings would be sufficient to convince us of the petitioner 's guilt. We cannot
even inquire whether any rational trier of fact would conclude that petitione r ...
is guilty of the offenses for which he was charged. Instead, we must determin e
whether the Ohio Comi of Appeals itself was unreasonable in its conclusion that a
rational trier of fact could find (the petitioner] guilty beyond a reasonable doubt
based on the evidence introduced at trial.
Brown, 567 F.3d at 205 (emphasis in original).
Applying the double-la yer deferential standard to the case-at-hand, and upon review of
the trial record, the undersigned conclude s that the Ohio Court of Appeals' rejection of
petitioner's claim under the more stringent state-law standard of review governin g manifestweight-of-evidence claims,9 see supra pp. 38-39 n.8, comports with Jackson. A rational juror
could have inferred from the victim's testimony (see Doc. 6, Trial Tr. at PAGEID #: 409-14, 41617,483, 500-0 1), as corroborated by the victim's mother and petitioner 's own statements to the
police (see id., Trial Tr. at PAGEID#: 546-53, 559, 606-08, 638-39, 642, 645-57), that petitioner
committed the offenses charged against him in Counts 2 through 12 of the indictment. Petitione r
cannot succeed in challengi ng the sufficiency of the evidence to the extent he contends that the
primary evidence of his culpability came from the victim, whose trial testimony should have
been viewed as suspect and lacking in credibility. In assessing the sufficienc y of the evidence
under the Jackson standard of review, the reviewing court is precluded from reweighin g the
evidence, reevaluating the credibility of witnesses or resolving conflicts in testimony, because
those are issues for the fact-finder to decide. See Jackson, 443 U.S. at 318-19 & n.l3; see also

9

See Jackson v. Warden, Chillicothe Carr. lnst., No. I: 14cv 128, 20 15 WL 448151 7, at * 16 (S.D. Ohio
July 22, 20 15) (Diott, J.; Wehm1an, M.J.) (pointing out that the state-law standard of review is " more stringent"
given that a " finding that a conviction is supported by the weight of the evidence [under Oh io law] must necessarily
include a finding of sufficiency").

43

Fisher, 648 F.3d at 450 (citing Brown, 567 F.3d at 205). In any event, a rational juror could
have chosen to believe the victim's testimony, particularly given that the primary evidence
refuting her version of events was provided by petitioner , whose own self-serving testimony
reasonably could have been found to be even more suspect and lacking in credibility.
Accordingly, in sum, petitioner has not demonstrated that he is entitled to relief
based on the claim alleged in Ground Seven of the petition.

G. Ground Six: Claim Of Cumulative Error
Petitione r alleges in Ground Six of the petition that the accumula tion of errors that
occurred during his trial deprived him of his constitutional right to a fair trial. (See Doc. 1, at
PAGEID#: 13). Petitione r is not entitled to relief based on such a claim.
As discussed above, see supra pp. 6-7, the federal habeas corpus remedy is available
only to correct federal constitutional violations. See 28 U.S.C. § 2254(a); see also Wilson v.

Corcoran, 562 U.S. 1, 5 (20 10); Pulley v. Harris, 465 U.S. 37, 41 (1984). As the Sixth Circuit
has made clear in numerou s decisions, following the enactmen t of the Antiterrorism and
Effective Death Penalty Act (AEDP A) in 1996, "not even constitutional errors that would not
individually support habeas relief can be cumulate d to support habeas relief." Moreland v.

Bradshaw, 699 F.3d 908,93 1 (6th Cir. 20 12) (quoting Hoffner v. Bradshaw, 622 F.3d 487, 513
(6th Cir. 2010), in turn quoting Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). As the
Sixth Circuit explained in Moore, habeas relief cannot be granted post-AED PA on the basis of
cumulative error because there is "no Supreme Court precedent obligating the state court to
consider the alleged trial en·ors cumulatively." 425 F.3d at 256. See also Lorraine v. Coyle, 291
F.3d 416, 44 7 (6th Cir. 2002). Therefore , because none of petitione r's individual claims of trial
error merit habeas relief, petitioner is unable to obtain habeas relief based on the claim of

44

cumulative error a lleged in Ground Six of the petition.

IT IS THEREFORE RECOMM ENDED THAT:
I. The petitioner's prose petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 (Doc. I) be DENIED with prejudice.
2. A certificate of appealability should not issue with respect to any of the grounds for
relief alleged in the petition because petitioner has not stated a "viable claim of the denial of a
constitutional right," nor are the issues presented "adequate to deserve encouragem ent to proceed
further." See Slack v. McDaniel, 529 U .S. 473 , 475 (2000) (citing Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
3. With respect to any application by petitioner to proceed on appeal in forma pauperis,
the Court should ce1tify pursuant to 28 U.S.C. § I915(a)(3) that an appeal of any Order adopting
this Report and Recommen dation would not be taken in "good faith," and, therefore, should

DENY petitioner leave to appeal informa pauperis upon a showing of financial necessity. See
Fed. R. App. P. 24(a); Kincade v. Sparkman, 11 7 F.3d 949, 952 (6th Cir. I997).

Karen L. Litkovitz
United States Magistrate Judge

45

UNITED STATES DISTRICT COUR T
SOUT HERN DISTRICT OF OHIO
WESTERN DIVISION

PAUL D. VUNDA,
Petitioner,

Case No. 1:15-cv-301
Dlott, J.
Litkovitz, M.J.

vs.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.
NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with
a copy of
the recommended disposition, a party may serve and file specific written objecti

ons to the

proposed findings and recommendations. This period may be extended further
by the Court on
timely motion for an extension. Such objections shall specify the portions of the
Report objected
to and shall be accompanied by a memorandum oflaw in support of the objecti
ons. If the Report
and Recommendation is based in whole or in part upon matters occurring on the
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 sufficie
nt, unless the
assigned District Judge otherwise directs . A party may respond to another party's
objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make
objections in

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn,
474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
cbc

46