Billman v. Warden Correctional Reception Center
Filing
11
REPORT AND RECOMMENDATION that 1 Petition for Writ of Habeas Corpus be DENIED and this action be DISMISSED. Objections to R&R due by 3/28/2016. Signed by Magistrate Judge Terence P. Kemp on 3/11/2016. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID M. BILLMAN,
CASE NO. 2:14-cv-1910
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KEMP
Petitioner,
v.
WARDEN, CORRECTIONAL
RECEPTION CENTER,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed this petition for a writ of habeas corpus pursuant
to 28 U.S.C. §2254. This matter is before the Court on the petition (Doc. 1), the return of
writ (Doc. 8), Petitioner’s traverse (Doc. 10), and the associated exhibits. For the reasons
that follow, the Magistrate Judge RECOMMENDS that the petition be DENIED and
that this case be DISMISSED.
I. Procedural History
On November 17, 2011, the Monroe County, Ohio grand jury returned a twelvecount indictment charging Petitioner with rape, attempted rape, and gross sexual
imposition. Return of Writ, Exhibit 1. The alleged victims were both minor children.
Petitioner pleaded not guilty and the case was tried to a jury. The jury convicted
Petitioner on counts one, three, four, seven, eight, nine, ten, eleven, and twelve of the
indictment. The counts of conviction included two charges of rape involving a victim
less than ten years old. Return, Ex. 7. On April 18, 2012, the trial court sentenced
Petitioner to concurrent terms of life without parole on the two rape counts, and seven
consecutive sixty-month prison terms for gross sexual imposition.
classified as a Tier III sex offender.
Return, Ex. 8.
He was also
The trial court overruled a
subsequently-filed motion for a new trial. Return, Ex. 11.
Through counsel, Petitioner appealed his conviction to the Seventh District Court
of Appeals, and also appealed the order denying his motion for a new trial. The
appeals were consolidated at Petitioner’s request. In his appellate brief, he raised five
assignments of error: (1) that the convictions were not supported by sufficient evidence;
(2) that the convictions were against the manifest weight of the evidence; (3) that the
indictment was duplicative and vague; (4) that the trial court improperly permitted
Petitioner’s spiritual advisor to testify about confidential communications; and (5) that
the trial court erred in overruling his motion for a new trial. Return, Ex. 16. In a
decision rendered on December 16, 2013, the court of appeals overruled each of
Petitioner’s assignments of error and affirmed his convictions. State v. Billman, 2013 WL
6859096 (Monroe Co. App. December 16, 2013).
Acting without the benefit of counsel, Petitioner filed a motion to take a delayed
appeal to the Ohio Supreme Court. That court received his motion on February 18, 2014
and filed it on March 11, 2014. Petitioner explained in the motion that his appellate
counsel told him of the court of appeals decision eighteen days after it was filed, and
also declined to assist in taking a further appeal. As a result, Petitioner was unable to
prepare and file his appeal by the deadline, but was able to mail his motion to the
Supreme Court four days after the deadline for filing a timely notice of appeal had
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passed. Return, Ex. 21. The Ohio Supreme Court denied the motion and declined to
consider the appeal. State v. Billman, 138 Ohio St.3d 1467 (Apr. 23, 2014).
On October 15, 2014, Petitioner filed his petition for a writ of habeas corpus with
this court. He asserts four grounds for relief, which he states (in these words) as
follows:
GROUND ONE: State did not prove venue, nor present evidence, to
support the convictions, at trial.
GROUND TWO: The convictions were against the manifest weight of the
evidence.
GROUND THREE: The charges are duplicitous (carbon copies) without
distinction and do not protect the petitioner against double jeopardy.
GROUND FOUR: State grossly abused its discression by not granting a
new trial, or at least grant a hearing based on the recanting testimony of
both VB and SB.
Respondent asserts that all of these claims were procedurally defaulted because
Petitioner did not perfect a timely appeal to the Ohio Supreme Court. Respondent also
argues that ground three, relating to the sufficiency of the indictment, was waived
because Petitioner did not timely raise that objection, and that none of his claims are
cognizable in federal habeas corpus because he presented them to the state courts
purely as state law claims. Finally, Respondent contends that all of the claims presented
here are without merit.
II. The Facts
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The Court begins by reciting the facts as they were set out in the state court of
appeals opinion. In its summary of the evidence introduced at trial, that court said:
Appellant and his wife, Mary Billman, are foster parents working with
Monroe County Child and Family Services. According to testimony, the
two live in Monroe County at 31143 Liberty Ridge Rd., Wingett Run, Ohio
45789 and have lived there since 1994. A total of seven children lived in
the house under the care of the couple at all periods relevant to this
matter. In 2006 Appellant and his wife accepted responsibility for Child X
and Child Y, who had been removed from the home of their biological
father due to sexual abuse. According to Appellant's wife, when the two
children entered Appellant's home, both had physical indications of
sexual abuse. Both children lived in Appellant's home from February of
2005 until the present. Appellant resided in the family home until 2011,
when his wife asked him to leave. Appellant moved out on October 28,
2011 after his wife confronted him with the accusations of Child X and
Child Y, who told her that Appellant had been sexually abusing Child Y
the entire time she lived with him, and that he had just started abusing
Child X.
On October 28, 2011, after he left the house, Appellant called a friend,
David A. Preston, and announced: “I molested [Child Y].” (Pretrial
Motion Hrg. Tr., p. 46; Tr. Vol. III, p. 93.) Preston was initially uncertain
who was speaking because Appellant had not identified himself. When
Appellant identified himself, Preston asked if he had a place to stay and
offered to allow Appellant to stay the night in his house. Appellant and
Preston had been friends for more than six years; they initially met
through work near Cincinnati. Although they met because of their work,
the two bonded through their Christian faith and regularly discussed
religious issues. The two men were both assistant pastors, but attended
different non-denominational churches. Neither man attended seminary
or had undertaken any formal program of religious or pastoral study.
Each man had been “ordained” by the pastor of his respective church.
Neither church is formally affiliated with any organized Christian
denomination. Appellant stayed with Preston for a brief period, but
eventually called the Monroe County Sheriff's Department and turned
himself in.
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On November 17, 2011, Appellant was indicted on twelve counts alleging
abuse of both Child X and Child Y. The counts included two instances of
gross sexual imposition with regard to Child X, who was then eight years
old. The remaining ten counts involved Child Y, who was then then nine
years old, and included two instances of rape, two instances of attempted
rape, and six instances of gross sexual imposition. The charges as they
related to Child X were alleged to have occurred between January 1, 2011
and October 28, 2011. The charges as they related to Child Y were alleged
to have occurred between January 1, 2006 and October 28, 2011. The trial
court found both children competent to testify at trial and their testimony,
coupled with that of the various adults to whom Appellant admitted his
crimes, composed the bulk of the case against Appellant.
Although Appellant was originally charged with two counts of gross
sexual imposition involving Child X, her testimony at trial was confused,
and ultimately she described a single incident. Child Y, however,
described Appellant touching and rubbing her vagina on ten separate
occasions in three different locations in the home: the living room, her
mother's bedroom, and another sister's room. Child Y also described
having been made to touch Appellant's genitals on six occasions and
revealed multiple instances when Appellant licked her genitals. Child Y
recounted three instances when Appellant placed his penis, which she
described as a “[s]oft-ish/hard-ish thing,” in her mouth. (Tr. Vol.III, p. 71.)
During two of these incidents, according to Child Y, a “clear-ish” liquid
went into her mouth, which she then spit into the toilet. (Tr. Vol.III, p. 74.)
According to Child Y, during one of the three occasions there was no
liquid. In the entirety of Child Y's testimony she related nineteen separate
encounters with Appellant that could support gross sexual imposition
charges. At least three and possibly thirteen of those nineteen incidents
involved conduct constituting rape (oral and digital). Child Y said
Appellant told her not to tell anyone about the things he did “ ‘cause I
could go to prison for it.” (Tr. Vol.III, p. 74.)
Ten of the original twelve counts were submitted to the jury: two counts
of gross sexual imposition involving Child X; two counts of rape involving
Child Y; and six counts of gross sexual imposition involving Child Y. The
jury returned guilty verdicts on nine of the ten counts. Appellant was
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acquitted of the second count of gross sexual imposition involving Child
X.
State v. Billman, 2013 WL 6859096, *1-2.
III. Procedural Default
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a
writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the
state courts to protect the constitutional rights of criminal defendants, and in order to
prevent needless friction between the state and federal courts, a state criminal
defendant with federal constitutional claims is required to present those claims to the
state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an
avenue open to him by which he may present his claims, then his petition is subject to
dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103
(1982 (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a
petitioner has failed to exhaust his claims but would find those claims barred if later
presented to the state courts, “there is a procedural default for purposes of federal
habeas....” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular
claim to the highest court of the State so that the State has a fair chance to correct any
errors made in the course of the trial or the appeal before a federal court intervenes in
the state criminal process. This “requires the petitioner to present ‘the same claim
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under the same theory’ to the state courts before raising it on federal habeas review.”
Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494,
497 (6th Cir. 1987)). One of the aspects of “fairly presenting” a claim to the state courts is
that a habeas petitioner must do so in a way that gives the state courts a fair
opportunity to rule on the federal law claims being asserted. That means that if the
claims are not presented to the state courts in the way in which state law requires, and
the state courts therefore do not decide the claims on their merits, neither may a federal
court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72,
87 (1977), “contentions of federal law which were not resolved on the merits in the state
proceeding due to respondent's failure to raise them there as required by state
procedure” also cannot be resolved on their merits in a federal habeas case-that is, they
are “procedurally defaulted.”
In the Sixth Circuit, a four-part analysis must be undertaken when the state
argues that a federal habeas claim is waived by the petitioner's failure to observe a state
procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must
determine that there is a state procedural rule that is applicable to the petitioner's claim
and that the petitioner failed to comply with the rule.” Id. Second, the Court must
determine whether the state courts actually enforced the state procedural sanction. Id.
Third, it must be decided whether the state procedural forfeiture is an adequate and
independent state ground upon which the state can rely to foreclose review of a federal
constitutional claim. Id. Finally, if the Court has determined that a state procedural
rule was not complied with, and that the rule was an adequate and independent state
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ground, then the petitioner must demonstrate that there was cause for him not to follow
the procedural rule, and that he was actually prejudiced by the alleged constitutional
error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve
issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner
must show that “some objective factor external to the defense impeded counsel's efforts
to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
Constitutionally ineffective counsel may constitute cause to excuse a procedural default.
Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective
assistance of counsel claim generally must “ ‘be presented to the state courts as an
independent claim before it may be used to establish cause for a procedural default.’ ”
Edwards, 529 U.S. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 479 (1986)). That is
because, before counsel's ineffectiveness will constitute cause, “that ineffectiveness
must itself amount to a violation of the Sixth Amendment, and therefore must be both
exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668
(6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to “satisfy the
‘cause and prejudice’ standard with respect to the ineffective-assistance claim itself.”
Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000). The Supreme Court explained the
importance of this requirement:
We recognized the inseparability of the exhaustion rule and
the procedural-default doctrine in Coleman: “In the absence
of the independent and adequate state ground doctrine in
federal habeas, habeas petitioners would be able to avoid the
exhaustion requirement by defaulting their federal claims in
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state court. The independent and adequate state ground
doctrine ensures that the States' interest in correcting their
own mistakes is respected in all federal habeas cases.” 501
U.S., at 732, 111 S.Ct. 2546, 115 L.Ed.2d 640. We again
considered the interplay between exhaustion and procedural
default last Term in O'Sullivan v. Boerckel, 526 U.S. 838, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999), concluding that the latter
doctrine was necessary to “ ‘protect the integrity’ of the
federal exhaustion rule.” Id., at 848, 526 U.S. 838, 119 S.Ct.
1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119
S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The
purposes of the exhaustion requirement, we said, would be
utterly defeated if the prisoner were able to obtain federal
habeas review simply by “ ‘letting the time run’ ” so that
state remedies were no longer available. Id., at 848, 526 U.S.
838, 119 S.Ct. 1728, 144 L.Ed.2d 1. Those purposes would be
no less frustrated were we to allow federal review to a
prisoner who had presented his claim to the state court, but
in such a manner that the state court could not, consistent
with its own procedural rules, have entertained it. In such
circumstances, though the prisoner would have “concededly
exhausted his state remedies,” it could hardly be said that, as
comity and federalism require, the State had been given a
“fair ‘opportunity to pass upon [his claims].’ ” Id., at 854, 526
U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J.,
dissenting) (emphasis added) (quoting Darr v. Burford, 339
U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).
Edwards, 529 U.S. at 452–53.
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on
the merits unless “review is needed to prevent a fundamental miscarriage of justice,
such as when the petitioner submits new evidence showing that a constitutional
violation has probably resulted in a conviction of one who is actually innocent.” Hodges
v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96
(1986)).
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A. Cause for the Default
Petitioner does not dispute that he failed to submit his notice to the Ohio
Supreme Court in a timely fashion. However, he claims that the fact that he was
confined in a mental health unit at the Corrections Reception Center at the time his
appeal was due, and that he had to rely on staff members to respond to his requests for
legal assistance, should excuse his default. He claims that exhibits he submitted in
support of his motion for leave to file a delayed appeal showed that he was unable to
obtain notary services for his affidavit of indigence until the day his notice of appeal
was due, and then only through use of the prison grievance procedure. The affidavit he
attached to his motion for leave to file a delayed direct appeal (Return, Ex. 21) states that
he did not receive notice of the court of appeals’ decision until January 3, 2014; that he
received information from the Clerk of the Ohio Supreme Court on January 9, 2014; that
he was housed in a 23-hour lockdown unit and was allowed only an hour per week of
library time; that he had to grieve the issue of access to the law library on January 17,
2014; that he was not permitted to meet with a clerk from the law library until January
30, 2014; and that he was told on that day that he would have to move for a delayed
appeal because his notice of appeal would not reach the Ohio Supreme Court on time if
it were mailed that day. Petitioner’s affidavit did not address the issue of being denied
access to notary services. The letter from his attorney emphasized the need to file the
appeal on or before January 30, 2014, or it would be late.
The federal courts have not been particularly sympathetic to claims that lack of
access to a law library should excuse a procedural default. For example, in Robertson v.
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Abramajtys, 144 F.Supp.2d 829 (E.D. Mich. 2001), the court rejected such a claim, noting
that, in that case, even if various issues like a prison lock-down, the cancellation of
library passes, and a computer system malfunction, affected the petitioner’s ability to
use the prison library, the fact that his appeal, when ultimately filed, relied primarily
upon the legal issues presented to the state court of appeals undercut petitioner’s claim
that he needed to do new legal research before filing his appeal to the Michigan
Supreme Court. The same result, based on the same reasoning, was reached in Levy v.
Ohio, 2008 WL 339480 (N.D. Ohio
Feb. 6, 2008).
See also Jones v. Armstrong, 367
Fed.Appx. 256, 258 (2d Cir. March 1, 2010)(alleged insufficiency of prison legal
resources did not violate constitutional right of access to the courts with respect to
criminal appeal because plaintiff was “unable to explain how any alleged insufficiency
of those resources prevented him from presenting to the Connecticut Supreme Court
the very arguments he had clearly articulated in his intermediate state appeal”).
Certainly, in some situations, issues with library access or access to legal
assistance can hamper a prisoner’s ability to comply with procedural requirements
which are part of a state court appellate or post-conviction process. So, for example, in
Phillips v. Mills, 1999 WL 685925 (6th Cir. Aug. 25, 1999), the Court of Appeals excused a
procedural default committed by a prisoner who wished to file a post-conviction
petition in Tennessee but who was incarcerated in Alabama without access to
Tennessee legal materials, and who had been told by Alabama officials that he would
have to wait until he was transferred to a Tennessee prison to file his petition. That was
incorrect advice but the petitioner reasonably relied upon it, thus excusing the
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procedural default he committed when his post-conviction petition was not filed on
time. It is clear, however, that these decisions are made on a case-by-case basis; in
Doliboa v. Warden U.S. Penitentiary Terre Haute, 503 Fed.Appx. 358, 360 (6th Cir. Oct. 29,
2012), the Court of Appeals declined to accept a similar excuse - there, the petitioner
was confined in Indiana but wished to pursue relief in an Ohio court - reasoning that
not only did petitioner fail to explain whether he asked for such materials either from
Ohio courts or Indiana prison officials, but also that “[t]here is ... nothing in the record
to suggest how the unavailability of Ohio legal materials prevented [petitioner] from
presenting to the Ohio Supreme Court the very arguments that his former counsel
articulated—and supported with case law—in [his] intermediate appeal to the Ohio
Court of Appeals.”
Here, the record does not support Petitioner’s claim that he was denied access to
notary services required to complete his indigency affidavit until it was too late for him
to take a timely appeal. He did not make that claim in the state court and has not
explained why he could not have obtained notary services from someone other than the
library law clerk before January 30, 2014. Additionally, he was aware upon receipt of
the letter from his attorney - a letter he admitted receiving 27 days before the deadline that he had only until January 30, 2014, to take a timely appeal, and it appears that he
had the materials he asked the Ohio Supreme Court for by January 9, 2015. Like the
petitioners in Levy, Jones, and Doliboa, the claims he wished to present to the Ohio
Supreme Court were the same claims presented to the Seventh District Court of
Appeals. No additional research was needed in order for him to perfect his appeal.
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Like the Ohio Supreme Court, this Court finds that Petitioner has not established good
cause for his delay in taking the appeal.
For that reason, all of his claims were
procedurally defaulted.
B. Prejudice
In addition to demonstrating cause for a procedural default, a habeas petitioner
must also demonstrate prejudice - that is, that but for the default, he would have
meritorious claims to present to the federal court. Petitioner cannot meet this standard,
either, which is an independent reason to hold that his claims were procedurally
defaulted.
A state prisoner’s claims for habeas corpus relief are governed by the
Antiterrorism and Effective Death Penalty Act of 1995 (the AEDPA), which amended
the habeas corpus statute by including a standard of review that gives significant
deference to the decisions made by the state courts on the constitutional issues raised in
a habeas corpus petition. As this Court has said, the provisions of the Antiterrorism
and Effective Death Penalty Act, Pub.L. 104–132, 110 Stat. 1214 (AEDPA) govern the
scope of this Court's review. See Penry v. Johnson, 532 U.S. 782, 791 (2001); Wilson v.
Parker, 515 F.3d 682, 691 (6th Cir. 2008). AEDPA imposes a “highly deferential standard
for evaluating state-court rulings,” Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and
“demands that state-court decisions be given the benefit of the doubt,” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
When the claims presented in a habeas corpus petition have been presented to
and decided by the state courts, a federal habeas court may not grant relief unless the
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state court's decision was contrary to or an unreasonable application of clearly
established federal law, or based on an unreasonable determination of the facts in light
of the evidence that was presented. 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; 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
In applying this statute, the Supreme Court has held that “[t]he focus ... is on
whether the state court's application of clearly established federal law is objectively
unreasonable ... an unreasonable application is different from an incorrect one.” To
obtain habeas corpus relief, a petitioner must show the state court's decision was “so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Bobby v. Dixon, –––
U.S. ––––, ––––, 132 S.Ct. 26, 27 (2011), quoting Harrington v. Richter, 562 U.S. ––––, ––––,
131 S.Ct. 770, 786–8 (2011). This bar is “difficult to meet” because “habeas corpus is a
‘guard against extreme malfunctions in the state criminal justice systems,’ not a
substitute for ordinary error correction through appeal.” Harrington v. Richter, 131 S.Ct.
at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 50 (1979) (Stevens, J., concurring
in judgment)). In short, “[a] state court's determination that a claim lacks merit
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precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court's decision.” Id., quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004).
1. Sufficiency of the Evidence
In ground one of his petition, Petitioner claims that the evidence presented at
trial was constitutionally insufficient to sustain his conviction. In his argument on this
issue to the state appellate court, he focused first on the State’s alleged failure to prove
that the crimes were committed in Monroe County. The state court rejected this claim
because all of the testimony indicated that the alleged abuse occurred only at the
residence shared by Petitioner, the victims, and other members of Petitioner’s family,
and that the house in question was located in Monroe County. While that reasoning is
sufficient to support the state court’s determination, there is a separate reason why this
claim fails on its merits in a federal court.
The requirement that, in Ohio, the prosecution prove proper venue beyond a
reasonable doubt, is a requirement of state law, not of federal law. That means that a
federal court cannot grant relief to a state prisoner even if the state failed to prove
venue. Thus, for example, in Baisden v. Tate, 1989 WL 16145, *1 (6th Cir. Feb. 13, 1989),
the petitioner, in his federal habeas petition, “challenged the trial court's jurisdiction on
the ground that there was insufficient evidence of proper venue.” The Court of Appeals
declined to consider that challenge because “petitioner's [venue] claim is not cognizable
in federal habeas corpus and was therefore properly dismissed because matters
concerning venue involve matters of state law.” Id. Other federal courts in Ohio have
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followed that holding. See, e.g., Hendrix v. Lisath, 2015 WL 413802, *40 (N.D. Ohio Jan.
30, 2015)(“matters concerning venue involve matters of state law and therefore any such
claim is likewise not cognizable on federal habeas review”); Kruse v. Moore, 2008 WL
1744765 (N.D. Ohio Apr. 11, 2008)(discussing why, because venue is not an element of
the offense under Ohio law, the federal Due Process clause is inapplicable to a claim
that the State failed to present sufficient evidence to support venue in the county of
conviction); see also Hackney v. Lafler, 2008 WL 2544869, *8 (E.D. Mich. June 29,
2008)(claim that the prosecution failed to prove the crime occurred in the county where
the trial was conducted “is not a cognizable claim on habeas ... review” and “raises a
question of state law, which is not a basis for habeas corpus relief”).
It is true that there are some decisions which review the sufficiency of the State’s
evidence as to venue under the Due Process Clause. See, e.g., Truesdale v. Dallman, 690
F.2d 76 (6th Cir. 1982). Another judge of this Court has said, based on Truesdale, that
“[i]t ... appears that the Jackson sufficiency of evidence standard applies to the issue of
venue.” Doan v. Haviland, 2004 WL 5258155, *74 (S.D. Ohio Dec. 20, 2004)(referring to
Jackson v. Virginia, 443 U.S. 307 (1979)). Truesdale did not so hold, however; it simply
analyzed the issue that way under the assumption that the State’s alleged failure to
prove venue would be a federal due process violation. This Court finds persuasive the
cases which decline to apply the federal Due Process clause to evaluate the sufficiency
of the evidence as to venue. Cf. Geboy v. Brigano, 489 F.3d 752 (6th Cir. 2007)(holding
that the Jackson sufficiency of the evidence test applies only to the essential elements of
crimes as defined by state law). Ohio law clearly does not define venue as an element
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of any crime, including the crimes for which Petitioner was convicted, so the Due
Process clause does not require Ohio to prove venue in a criminal case by a sufficient
amount of evidence, even if State law does so. Further, it should be noted that the
language in the Sixth Amendment to the effect that a criminal trial must occur in “the
State and district wherein the crime shall have been committed” has not been applied to
the States. See, e.g., Kruse v. Moore, supra, at *7, citing Caudill v. Scott, 857 F.2d 344 (6th
Cir.1988). Consequently, Petitioner simply had no federal constitutional right to proof
that he committed the crimes in Monroe County.
Even if he did, however, the
conclusion of the state appellate court that venue was proved is not an unreasonable
application of federal law and, were it reviewable, would be affirmed on that basis.
Petitioner has thus suffered no prejudice from the fact that this claim was procedurally
defaulted.
The balance of his sufficiency of the evidence claim relates to the testimony from
the victims. Petitioner argued generally in state court that, although the victims did
testify to acts which constituted rape and other sexual contact, they were vague and
inconsistent about the details. As the state court of appeals noted, however, Petitioner
immediately admitted molesting both victims when confronted by his wife, and he
made similar admissions to a friend. He said the same to police officers. The state court
correctly concluded that it was for the jury to determine the credibility of the witnesses.
Its decision on that issue is also due a level of deference under the AEDPA, and when
challenges to the sufficiency of the evidence are raised in a federal habeas corpus action,
there is a double layer of deference due since any reviewing court also owes a level of
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deference to the jury’s verdict. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.2009).
Petitioner would not be able to overcome this hurdle even if this Court were to consider
the merits of his sufficiency of the evidence claim. Therefore, the fact that this claim
was also procedurally defaulted caused him no prejudice.
2. Manifest Weight of the Evidence
Unlike a claim that the evidence at trial was not sufficient to support a conviction
- a claim which implicates the federal Due Process Clause - an assertion that the
conviction was against the manifest weight of the evidence does not raise any issues of
federal law. It is purely a state law claim. That is, the Due Process Clause does not
provide relief for defendants whose convictions are against the manifest weight of the
evidence, but only for those who have been convicted without enough proof to allow a
rational trier of fact to find guilt beyond a reasonable doubt. Walker v. Engle, 703 F.2d
959, 969 (6th Cir. 1983). Consequently, the Court could not grant relief on this claim
even had it not been procedurally defaulted, and Petitioner was therefore not
prejudiced by his failure to preserve this claim for federal review.
3. Challenges to the Indictment
Petitioner’s third claim of error is that many counts of the indictment alleged
identical conduct, and that he was not protected against double jeopardy because of its
vagueness.
This is, if properly preserved, a federal constitutional issue.
See, e.g.,
Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005). However, in Ohio, any challenge to the
sufficiency of the indictment must be raised prior to trial. Here, the state court of
appeals, relying on the fact that Petitioner did not raise this issue in a timely fashion,
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concluded that any claim about the indictment was waived. It therefore reviewed the
claim only to determine if plain error had been committed. State v. Billman, supra, at *8.
The Court of Appeals decided, in Biros v. Bagley, 422 F.3d 379 (6th Cir. 2005), that
the failure to object to an indictment at the trial court level is a waiver of any objection
under Ohio law, and that this procedural rule is an adequate and independent ground
supporting a state court decision denying relief on such a claim. Biros also determined
that the default is enforceable in federal court even if the state court reviews the claim
for plain error. That is what happened here. Consequently, even if Petitioner had not
defaulted this claim by failing to take a timely appeal to the Ohio Supreme Court, he
was not prejudiced for purposes of federal habeas corpus review because he waived
any review of this claim by failing to object to the sufficiency of the indictment at the
trial court level.
4. Motion for a New Trial
The fourth and final ground which Petitioner raises here is that the trial court
erred in denying his motion for a new trial. That motion was premised upon the fact
that key witnesses had recanted their testimony. Again, even if this claim had not been
procedurally defaulted, this Court could not grant him relief.
First, it is not at all clear that Petitioner presented this claim to the state court as a
federal constitutional claim. Although he cited to the United States Constitution in his
fifth assignment of error to the state appellate court, his argument was based
exclusively on Ohio law and contended that the trial judge’s denial of the motion, and
refusal to hold an evidentiary hearing, was an abuse of discretion. That is a state law
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issue which this Court is powerless to review. See Rodriguez v. Warden, Southern Ohio
Correctional Facility, 940 F.Supp.2d 704, 711 (S.D. Ohio 2013). Any federal due process
claim must be premised on a denial of fundamental fairness in the way the motion for a
new trial was adjudicated by the state courts. Petitioner has pointed to no procedural
error, and to the extent that he asks this Court to find that the recantations were more
credible than the witnesses’ trial testimony, it cannot do so. The state court’s opposite
conclusion is entitled to a presumption of correctness under 28 U.S.C. §2254(e)(1) and
cannot be overturned absent clear and convincing evidence. See Guidry v. Sheets, 452
Fed.Appx. 610, 613 (6th Cir. Dec. 15, 2011). Petitioner has not presented such evidence.
As a result, he has not been prejudiced by the procedural default of this claim, since it
would not have resulted in his being granted relief even if this Court considered the
claim on its merits.
IV. Recommendation
For all of the reasons stated above, it is recommended that the petition for a writ
of habeas corpus be DENIED and this action be DISMISSED.
V. 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
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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).
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/ Terence P. Kemp
United States Magistrate Judge
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