Whitt v. Warden Lebanon Correctional Institution

Filing 22

ORDER & REPORT AND RECOMMENDATIONS re 1 Petitioner's Request for a Stay, 10 Petitioner's MOTION to Dismiss & 16 Respondent's MOTION to Dismiss: The Magistrate Judge RECOMMENDS that Petitioner's request for a stay and Motio n to Dismiss Counts 1, 3 and 4 of the Indictment be DENIED and Respondent's Motion to Dismiss without prejudice to re-filing be GRANTED. Objections to R&R due within fourteen (14) days of the date of this Report. Petitioner's request for 19 Appointment of Counsel is DENIED. Respondent's 20 MOTION for a Stay is DENIED as moot. Signed by Magistrate Judge Elizabeth Preston Deavers on 12/3/2012. (er1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEPHAN H. WHITT,
CASE NO. 2:12-CV-731
JUDGE JAMES L. GRAHAM
MAGISTRATE JUDGE ELIZABETH P. DEAVERS

Petitioner,
v.

WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.
ORDER and
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, request for a stay,
Motion to Dismiss Counts 1, 3 and 4 of the Indictment, and request for the appointment of counsel,
Docs. 1, 10, 19, Respondent’s Motion to Dismiss, Doc. 16, Petitioner’s Response, Doc. 21, and
Respondent’s Motion for a Stay. Doc. 20. For the reasons that follow, the Magistrate Judge
RECOMMENDS that Petitioner’s request for a stay and Motion to Dismiss Counts 1, 3 and 4 of
the Indictment, Docs. 1, 10, be DENIED; and Respondent’s Motion to Dismiss without prejudice
to re-filing, Doc. 16, be GRANTED.
Petitioner’s request for the appointment of counsel, Doc. 19, is DENIED.
Respondent’s Motion for a Stay, Doc. 20, is DENIED, as moot.

FACTS and PROCEDURAL HISTORY
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of this
case as follows:

The minor victim, N.P. was born on January 25, 1995, making her
twelve and thirteen years old at the time of the offenses described
herein. N.P. has two brothers, one older and one younger. All three
children resided with their grandmother and her husband, the
Appellant, in Coshocton County, Ohio. N.P. has lived with her
grandparents since she was two years old and viewed them as her
parents.
In May or June, 2007, Appellant took N.P. and her brothers on a
camping trip to Sunbury, Ohio. N.P. was twelve years old at the time.
N.P.'s brothers slept in one tent while N.P. and Appellant slept in the
other tent. During the night, Appellant engaged in sexual intercourse
with N.P.
During this same time period, N.P. and her younger brother rode with
Appellant in his semi-truck on a trip to New York. During the trip,
while N.P. was sleeping in the back of the truck, Appellant pulled
over at a truck stop in Pennsylvania and again engaged in sexual
intercourse with N.P.
N.P. became pregnant and delivered a child on March 7, 2008.
Subsequent DNA testing revealed that Appellant was the father of the
child to a degree of 99.9998 percent.
In May or June, 2008, when N.P. was 13 years old, N.P. went into her
grandparents' bedroom to watch television while her grandfather was
asleep on the bed and her grandmother was asleep in the living room.
N.P. fell asleep while watching television, and awoke to Appellant
forcing vaginal intercourse upon her. Afterwards, N.P. asked
Appellant why he did that and he said he did not know what she was
talking about and told her that she could tell her grandmother if she
wanted to. N.P. described feeling threatened by the statement and by
the Appellant's demeanor towards her when he made the statement.
During this same time period, N.P. accompanied Appellant from
Coshocton County, Ohio to Tennessee in his semi-truck. She stated
that she went with Appellant because she was stressed and tired from
caring for her baby and that she thought that she would be able to
sleep and relax on the trip. Again, while she was sleeping in the back
of the truck, Appellant pulled over somewhere in Kentucky or
Tennessee and forced N.P. to have sexual intercourse with him.
N.P. became pregnant again and delivered a second child on March
2, 2009. Subsequent DNA testing revealed that Appellant was the
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father of the child to a degree of 99.9999 percent.
N.P. stated that during the course of events in 2007 and 2008 when
Appellant would have sex with her, she felt forced into these acts
because Appellant was a parental figure and she felt she had no
power to say no and if she did, it wouldn't have helped anyways. She
described Appellant as being a large man, threatening and had guns
in the house. She also stated that she believed that he would cease the
same behavior in the future.
Initially, N.P. lied about who was the father of her children to police
and social workers because she was afraid to tell the truth. She felt
threatened and wondering what would happen to her family and what
Appellant would do to them if she disclosed the truth. She was
eventually removed from the home by the Department of Job and
Family Services. At that time, N.P. disclosed what had happened
between her and Appellant.
Appellant was then indicted by the Coshocton County Grand Jury as
follows: Count one, Rape of a Minor Under the Age of Thirteen [R.C.
2907.02(A)(1)(b) ], a felony of the first degree; Count two, Rape
[R.C. 2907.02(A)(2) ], a felony of the first degree; Sexual Battery
Under the Age of Thirteen [R.C. 2907.03(A)(5), a felony of the
second degree; and Count four, Sexual Battery [R.C. 2907.03(A)(5)
], a felony of the third degree. As set forth in the indictments, counts
one and three relate to the crimes occurring between May 1, 2007 and
June 30, 2007. Counts two and four relate to the crimes occurring
between May 1, 2008 and June 30, 2008.
During the proceedings, a search warrant was executed, and an oral
swab of Appellant's mouth was taken to compare his DNA to that of
N.P.'s children. As previously stated, the test results came back
conclusively that Appellant was the father of N.P.'s children.FN1
FN1. As discussed infra, the Juvenile Division of the Coshocton
County Court of Common also had ordered DNA testing to be
conducted upon N.P., Appellant and the two infants in April, 2008,
prior to Appellant's indictment. These results also revealed that the
probability of paternity showing Appellant as the father of N.P.'s
children at 99.999 percent.
Appellant filed a motion claiming that he was incompetent to stand
trial. A competency evaluation was conducted and Appellant was
found competent to stand trial.
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Appellant waived in open court and in writing his right to a trial by
jury. A bench trial was conducted. The trial court found Appellant
guilty of all counts and merged the sexual battery convictions with
the rape convictions. Appellant was sentenced to an indefinite term
of twenty-five years to life on the first count, when N.P. was twelve,
to nine years on count two, which was the rape that occurred when
N.P. was thirteen. The court also sentenced Appellant on count three,
sexual battery, to a definite term of seven years in prison, and to a
term of four years on count four on count four, sexual battery. The
court then merged the sentences for counts three and four with the
sentences for counts one and two.
The court also notified Appellant that he would be subject to a
mandatory period of postrelease control for five years.1
Appellant appealed and raises six Assignments of Error:
“I. THE TRIAL COURT LACKED STATUTORY JURISDICTION
UNDER R.C. 2901.11 TO CONSIDER THE SECOND AND
FOURTH INCIDENTS AS THE ALLEGED SEXUAL CONDUCT
OCCURRED OUTSIDE THE STATE OF OHIO.
“II. APPELLANT'S CONVICTIONS WERE BOTH AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE AND WERE
NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE
DUE IN PART TO THE STATE'S FAILURE TO ESTABLISH
VENUE IN VIOLATION OF THE DUE PROCESS CLAUSE OF
THE 14TH AMENDMENT TO THE U.S. CONSTITUTION,
ARTICLE I, SECTIONS 1, 10, & 16 OF THE OHIO
CONSTITUTION, R.C. 2901.12 AND CRIM. R. 29.
“III. THE DENIAL OF THE DEFENSE SUPPRESSION MOTION
AND THE ADMISSION OF THE DNA TEST RESULTS FROM
THE APPELLANT'S MOUTH SWABS VIOLATED THE 4TH
AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I,
SECTION 14 OF THE OHIO CONSTITUTION.

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Petitioner asserts that he is actually innocent. He alleges that the prosecutor and
alleged victim committed perjury. He argues at length that the trial court lacked jurisdiction
because trial testimony indicated the alleged crimes did not take place in Coshocton, Ohio, as
charged, and that his attorney performed in a constitutionally ineffective manner. See
Petitioner’s Response, Doc. 21.
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“IV. THE TRIAL COURT LACKED JURISDICTION TO TRY
THE APPELLANT WITHOUT A JURY.
“V. THE SENTENCE WAS CONTRARY TO LAW AND ALSO
VIOLATED THE 5TH AND 6TH AMENDMENTS TO THE U.S.
CONSTITUTION.
“VI. TRIAL COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE 6TH
AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I,
SECTIONS 10, 16 OF THE OHIO CONSTITUTION .”
State v. Whitt, No. 10-CA-10, 2011 WL 2447416, at *1-3 (Ohio App. 5th Dist. June 13, 2011). On
June 13, 2011, the appellate court affirmed the trial court’s judgment in part, and reversed in part,
sustaining Petitioner’s fifth assignment of error and remanding the case to the trial court for resentencing. Id. On November 2, 2011, the Ohio Supreme Court dismissed Petitioner’s subsequent
appeal. State v. Whitt, 130 Ohio St.3d 1417 (2011).
On January 30, 2012, the trial court conducted a resentencing
hearing. By judgment entry on resentencing filed February 8, 2012,
the trial court merged the sexual battery counts with the rape counts
and sentenced appellant to an aggregate indefinite term of twentyfive years to life in prison.
Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
“THE SENTENCE WAS CONTRARY TO LAW AND ALSO
VIOLATED THE 5TH AND 6TH 14TH AMENDMENT TO THE
UNITED STATES CONSTITUTION DUE PROCESS OF LAW
EQUAL PROTECTION OF THE LAW.”
State v. Whitt, No. 12-CA-3, 2012 WL 2612949, at *1 (Ohio App. 5th Dist. July 5, 2012). On July
5, 2012, the appellate court affirmed the judgment of the trial court. Id. On November 7, 2012, the
Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v. Whitt, 133 Ohio St.3d 1467
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(2012).
On July, 11 2011, Petitioner filed a pro se motion for relief from judgment and petition for
post conviction relief asserting he was denied effective assistance of counsel. See Exhibit 38 to
Motion to Dismiss. Petitioner additionally asserted that the alleged victim lied. Exhibit 42 to Motion
to Dismiss. On September 5, 2012, the trial court denied Petitioner’s motion. Exhibit 58 to Motion
to Dismiss.2 Petitioner filed a timely appeal. On October 1, 2012, the appellate court directed
Petitioner to file a docketing statement or attach a time-stamped copy of the judgment entry being
appealed or risk dismissal of his appeal. Exhibit 60 to Motion to Dismiss. That action apparently
remains pending in the Ohio Court of Appeals.
On August 15, 2012, Petitioner filed the instant pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of
the Constitution of the United States because the trial court lacked jurisdiction (claim one); his
convictions were against the manifest weight of the evidence due to a failure to establish venue
(claim two)3; the government unconstitutionally obtained DNA evidence (claim three); and denial
of the right to a jury trial. Petitioner asserts that he signed a waiver of his right to jury trial due to
bad advice from his attorney (claim four). Petitioner additionally asserts that his sentence was
2

Petitioner filed a motion requesting a ruling from the trial court and more than one
petition for a writ of mandamus in the Fifth District Court of Appeals requesting the appellate
court to direct the trial court to issue a ruling on his motion. See Exhibits 43, 44, 47 to Motion to
Dismiss. On September 24, 2012, the appellate court dismissed the mandamus action as moot,
because the trial court had acted. Exhibit 48 to Motion to Dismiss. Petitioner filed an appeal to
the Ohio Supreme Court. Exhibit 49 to Motion to Dismiss. That action apparently remains
pending. See Exhibits 49, 57, 61 to Motion to Dismiss.
3

Specifically, Petitioner alleges in claim two that the indictment charged him with
crimes committed in Coshocton County, but trial testimony indicated the crimes were committed
in Delaware County, Pennsylvania, and Tennessee. Petition, PageID# 13.
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unconstitutionally imposed (claim five); he was denied effective assistance of counsel (claim six).
It is the position of the Respondent that this action should be dismissed as unexhausted.
Petitioner seeks a stay of proceedings pending his exhaustion of state remedies as well as the
appointment of counsel to represent him in these proceedings. Docs. 1, 19. He additionally has filed
a Motion to Dismiss Counts 1 through 3 of the Indictment. Doc. 10. Respondent requests the Court
stay ruling on Petitioner’s Motion to Dismiss Counts 1 through 3 of the Indictment pending
resolution of Respondent’s Motion to Dismiss this action as unexhausted. Doc. 20.
EXHAUSTION
Before a federal habeas court may grant relief, a state prisoner must exhaust his available
remedies in the state courts. Castille v. Peoples, 489 U.S. 346, 349 (1989); Silverburg v. Evitts, 993
F.2d 124, 126 (6th Cir. 1993). If a habeas petitioner has the right under state law to raise a claim by
any available procedure, he has not exhausted that claim. 28 U.S.C. § 2254(b), (c). Moreover, a
constitutional claim for relief must be presented to the state's highest court in order to satisfy the
exhaustion requirement. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); Manning v. Alexander,
912 F.2d 878, 881 (6th Cir. 1990). Where alternative state remedies are available to consider the
same claim, however, exhaustion of one of these remedies is all that is necessary. A habeas
petitioner bears the burden of demonstrating that he has properly and fully exhausted his available
state court remedies with respect to the claims he seeks to present for federal habeas review.
Prather v. Rees, 822 F.2d 1418, 1420 n. 3 (6th Cir.1987).
In claim six, Petitioner asserts he was denied effective assistance of trial counsel because his
attorney failed to challenge the indictment, jurisdiction of the trial court, imposition of excessive
bail, failed to call defense witnesses, failed to present exculpatory evidence, i.e., Petitioner’s truck
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driving records, failed to request recusal of the trial judge, failed to object to prosecutorial
misconduct, and failure to file a motion for a new trial. See Petition, PageID 234-24. Petitioner has
raised at least some of these same claims in his post conviction motion which apparently remains
pending in the state appellate court. Thus, this action remains unexhausted.
Petitioner seeks a stay pending exhaustion. Where the one-year statute of limitations under
28 U.S.C. § 2244(d)4 will likely bar a petitioner from re-filing his habeas corpus petition after

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The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), effective April
24, 1996, imposes a one-year statute of limitations on the filing of habeas corpus petitions.
28 U.S.C. § 2244(d) provides:
(d) (1) A 1–year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State
postconviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.
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exhausting state court remedies, a federal habeas court may stay proceedings under limited
circumstances.

Rhines v. Weber, 544 U.S. 269, 277-78 (2005)(a stay of habeas proceedings is

appropriate where there was good cause for the petitioner's failure to exhaust his claims and the
unexhausted claims are potentially meritorious).
Here, however, the statute of limitations has not yet expired. Petitioner’s judgment of
conviction became final on November 7, 2012, when the Ohio Supreme Court dismissed his resentencing appeal. Ohio S.Ct. Rule Prac. 2.2(A)(1)(a); Johnson v. Warden, Lebanon Corr’al Inst.,
No. 1:09-cv-336, 2010 WL 2889056, at *5-6 (S.D. Ohio June 23, 2010)(“[F]inal judgment in a
criminal case means sentence. The sentence is the judgment” (quoting Burton v. Stewart, 549 U.S.
147, 156-57 (2007)(internal citation omitted)); Johnson v. Howes, No. 1:10-537, 2010 WL 3398878,
at *1-2 (W.D. Mich. Aug. 27, 2010)(judgment becomes final for statute of limitations purposes on
date that judgment of re-sentencing becomes final)(citing Magwod v. Patterson, – U.S. –, 130 S.Ct.
2788, 2800 (2010); Linscott v. Rose, 436 F.3d 587, 591 (6th Cir. 2006)). The statute of limitations
will expire one year later, on November 7, 2013.
Additionally, assuming, arguendo, the state appellate court deems Petitioner’s post
conviction petition to have been properly filed, that action will toll the running of the statute of
limitations under 28 U.S.C. § 2244(d)(2) the time period during which it remains pending.5
In short, the Magistrate Judge is not persuaded that the record reflects a stay of proceedings
is warranted in this case, as the statute of limitations has yet to expire and will not necessarily
5

Although most of Petitioner’s unexhausted claim of ineffective assistance of counsel
appears to be on-the-record claims that should have been raised on appeal and thus now would
be barred from review under Ohio’s doctrine of res judicata, he also asserts in post conviction
proceedings the off-the-record claim that his attorney performed in a constitutionally ineffective
manner by failing to call certain defense witnesses.
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preclude Petitioner from re-filing a timely habeas corpus petition upon exhaustion of state court
remedies.
WHEREUPON, the Magistrate Judge RECOMMENDS that Petitioner’s request for a stay,
and Motion to Dismiss Counts 1, 3 and 4 of the Indictment, Docs. 1, 10 be DENIED and
Respondent’s Motion to Dismiss this case without prejudice to re-filing, Doc. 16, be GRANTED.
Petitioner’s request for the appointment of counsel, Doc. 19, is DENIED.
Respondent’s Motion for a Stay, Doc. 20, is DENIED, as moot.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen (14)
days of the date of this report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation
will result in a waiver of the right to have the district judge review the Report and Recommendation
de novo, and also operates as a waiver of the right to appeal the decision of the District Court
adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States
v. Walters, 638 F.2d 947 (6th Cir.1981).

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The parties are further advised that, if they intend to file an appeal of any adverse decision,
they may submit arguments in any objections filed, regarding whether a certificate of appealability
should issue.
S/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
Date: December 3, 2012

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