Billman v. Warden Correctional Reception Center

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS; OVERRULING Petitioner's Objection; DENYING Petition for a writ of habeas corpus. This action is DISMISSED. Signed by Judge Algenon L. Marbley on 6/17/2016. (cw)(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,
Petitioner,

CASE NO. 2:14-CV-01910
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KEMP

v.
WARDEN, CORECTIONAL
RECEPTION CENTER,
Respondent.
OPINION AND ORDER
On March 11, 2016, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be denied and that this action be dismissed. (ECF No. 11.) Petitioner has filed an Objection to
the Magistrate Judge’s Report and Recommendation. (ECF No. 15.) Pursuant to 28 U.S.C. §
636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner’s
Objection (ECF No. 15) is OVERRULED. The Report and Recommendation (ECF No. 11) is
ADOPTED and AFFIRMED. The petition for a writ of habeas corpus is DENIED. This
action is hereby DISMISSED.
This case involves Petitioner’s convictions after a jury trial in the Monroe County Court
of Common Pleas on two counts of rape involving a victim less than ten years old and seven
counts of gross sexual imposition. The trial court sentenced Petitioner to concurrent terms of life
without parole and seven consecutive terms of sixty months, and classified Petitioner as a Tier III
sex offender. The trial court denied Petitioner’s motion for a new trial. On December 16, 2013,
the appellate court affirmed the judgment of the trial court. State v. Billman, Nos. 12 MO 3, 12
MO 5, 2013 WL 6859096 (Ohio App. 7th Dist. Dec. 16, 2013). Petitioner did not file a timely

appeal. On April 23, 2014, the Ohio Supreme Court denied Petitioner’s motion for a delayed
appeal. State v. Billman, 138 Ohio St.3d 1467 (Ohio 2014). Petitioner asserts that the evidence
is constitutionally insufficient to sustain his convictions; that his convictions are against the
manifest weight of the evidence; that the charges are duplicative and violate the Double Jeopardy
Clause; and that the state courts improperly failed to grant him a new trial or hearing based on
the alleged recantation of testimony by alleged victims. The Magistrate Judge recommended
dismissal of these claims as procedurally defaulted and without merit.
Petitioner objects to the Magistrate Judge’s Report and Recommendation. Petitioner
again asserts that he has established cause for his procedural default in failing to file a timely
appeal with the Ohio Supreme Court, arguing that state officials prevented his timely filing by
denying him access to necessary legal services and depriving him of access to the courts.
Petitioner indicates that, on January 12, 2014, he requested notary services and copies for
certificate of service, and on January 17, 2014, he filed a grievance; however, he was unable to
obtain legal services until January 30, 3014, the date that his appeal was due. See Affidavit of
David Billman (ECF No. 15, PageID# 1175.) Petitioner further indicates that, on February 11,
2014, he mailed his motion for a delayed appeal to the Ohio Supreme Court. In a letter dated
February 19, 2014, the Deputy Clerk of the Ohio Supreme Court returned his documents,
indicating that his motion for delayed appeal had not been filed, because he failed to submit a
notice of appeal. On March 11, 2014, Petitioner filed the motion for delayed appeal. (ECF No.
8-1, PageID# 458.) Petitioner argues that his case is distinguishable from other cases wherein
federal courts have rejected similar claims of cause for an untimely appeal to the Ohio Supreme
Court, because he raises an issue regarding lack of access to legal services, i.e., a notary, copies
for certificate of service, and help filling out required papers, and not merely the inability to

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conduct legal research. Petitioner further argues that he preserved his claim regarding the
insufficiency of the indictment by filing a Motion for More Specific Bill of Particulars. (ECF
No. 15, PageID# 1173.) He asserts that the State’s failure to establish venue denied him equal
protection and due process. He contends that the state appellate court’s decision concluding that
the prosecutor established venue and that the evidence therefore was constitutionally sufficient to
sustain his conviction, constituted an unreasonable determination of the facts in light of the
evidence presented.
Petitioner’s Objection is not well taken. For the reasons addressed by the Magistrate
Judge, this Court likewise is not persuaded that Petitioner has established cause for his
procedural default in failing to file a timely appeal to the Ohio Supreme Court. Despite his
arguments to the contrary, the record does not support his claim that prison officials prevented
him from filing a timely appeal. Moreover, Petitioner indicates that he obtained all of the needed
legal services to file his appeal on January 30, 2014 – the date that it was due – however, he did
not actually file the motion for delayed appeal until March 11, 2014. Further, Petitioner’s claim
that the State failed to establish venue and that the evidence is constitutionally insufficient to
sustain his convictions lacks merit.
It was the status of Appellant and his wife as foster parents with
Monroe County Children Services that brought them in contact
with Child X and Child Y initially, and it was this status that
delayed the agency's response when the abuse was reported.
Testimony established that the two minor children, both under the
age of ten at all points prior to trial, remained with Appellant and
his wife continuously from their placement in the home at 31143
Liberty Ridge Rd., Wingett Run, Ohio, 45789, in February of 2005
until the time of trial. Testimony was offered that the home is
located at the bottom of the county. (Tr. Vol.II, p. 36.) Appellant's
son testified that he lives with his mother and siblings, including
Child X and Child Y, in Monroe County. (Tr. Vol .II, p. 75.) The
children testified that they attend Monroe County public schools
when they are not at home or home schooled, and that all of the
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incidents of abuse occurred in rooms within the family home.
Nothing in the record indicates that the family moved out of the
county, or that the minor children left the county with Appellant,
or on their own, at any point during the period covered by the
indictment. Child X, Child Y, Appellant's wife and Appellant's son
do not refer to any location other than the Liberty Ridge house as
the girls' home. Appellant's wife called the Monroe County
Sheriff's Department to report the crimes and Appellant later
turned himself in to that same department. Appellant was indicted
by the Monroe County Grand Jury and the charging document
identified Monroe County as the location of the crimes. The
charges submitted to the jury included the location as an element
of the crime. The trial court instructed the jury that one of the
elements they must find beyond a reasonable doubt was that the
crimes occurred in Monroe County.
The jury heard Appellant's arguments on this issue as part of
defense counsel's closing. When this record is evaluated as a whole
there is sufficient evidence in the record which, if believed, would
establish that the crimes took place in Monroe County beyond a
reasonable doubt. Appellant's contention that we should conclude
that Child X and Child Y were describing crimes that took place in
another location, despite direct testimony by other witnesses
placing the family home in Monroe County, and the testimony in
the record that Appellant abused X and Y in the family home, is
unreasonable. The facts and circumstances in this case support the
jury's conclusion that the crimes occurred in Monroe County and
venue is proper. Headly, supra. To the extent that Appellant
contests venue, his arguments are without merit and are overruled.
State v. Billman, 2013 WL 6859096, at *4-5. These facts are presumed to be correct, and
Petitioner has failed to meet his burden of rebutting that presumption. 28 U.S.C. § 2254(e).
Further, as noted by the state appellate court,
The testimony of Appellant's child victims, alone, was sufficient to
establish the elements of the crimes that were included in each
count submitted to the jury for a verdict. That testimony was
corroborated by Appellant's statements. Although Appellant's wife
and son did their best to cast doubt on their initial statements to
police and the credibility of Child X and Child Y, ultimately the
jury found them believable. Appellant's attempts to suggest that the
two children invented stories of the abuse were not persuasive. The
trier of fact had ample evidence that, if believed, supported each of
Appellant's convictions.
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Id. at *6. Petitioner has failed to establish that the state appellate court’s decision contravened or
unreasonably applied Jackson v. Virginia, 443 U.S. 307, 319 (1979)(in considering a claim of
insufficiency of the evidence, the Court must view all of the evidence in the light most favorable
to the prosecution), or based its decision on an unreasonable determination of the facts in light of
the evidence presented.

28 U.S.C. § 2254(d).

In habeas corpus proceedings, a claim of

insufficiency of the evidence is granted a doubly deferential standard of review:
[E]ven though we might have not voted to convict a defendant had
we participated in jury deliberations, we must uphold the jury
verdict if any rational trier of fact could have found the defendant
guilty after resolving all disputes in favor of the prosecution.
Second, even were we to conclude that a rational trier of fact could
not have found a petitioner guilty beyond a reasonable doubt, on
habeas review, we must still defer to the state appellate court's
sufficiency determination as long as it is not unreasonable. See 28
U.S.C. § 2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). Finally, this Court is not persuaded that
Petitioner preserved for review his claim regarding sufficiency of the indictment by filing a
Motion for More Specific Bill of Particulars. As discussed by the state appellate court:
Under Crim.R. 12(C)(2) any objection or defense based on defects
in the indictment, apart from a failure to show jurisdiction in the
court or to charge an offense, must be raised prior to trial:
Pretrial motions. Prior to trial, any party may raise
by motion any defense, objection, evidentiary issue,
or request that is capable of determination without
the trial of the general issue. The following must be
raised before trial:
***
(2) Defenses and objections based on defects in the
indictment, information, or complaint (other than
failure to show jurisdiction in the court or to charge
an offense, which objections shall be noticed by the

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court at any time during the pendency of the
proceedings).
Crim.R. 12(C)(2). A failure to raise a defense or objection
identifying a defect in the indictment prior to trial “shall constitute
waiver of the defenses or objections.” Crim.R. 12(H). A reviewing
court need not consider an error that was not called to the attention
of the trial court at a time when the error could have been avoided
or corrected. State v. Joseph, 73 Ohio St.3d 450, 455, 653 N.E.2d
285 (1995).
Since Appellant failed to timely raise this objection in the trial
court, our review is limited to determining whether the information
in the indictment is so deficient as to constitute plain error. State v.
Horner, 126 Ohio St.3d 466, 473, 2010–Ohio–3830, paragraph
three of the syllabus; State v. Frazier, 73 Ohio St.3d 323, 332, 652
N.E.2d 1000 (1995); State v. Skatzes, 104 Ohio St.3d 195, 2004–
Ohio–6391, 819 N.E.2d 215.
State v. Billman, 2013 WL 6859096, at *7-8. Therefore, Petitioner waived this claim by failing
to object. As a result, the state appellate court reviewed the claim for plain error only. See Biros
v. Bagley, 422 F.3d 379 (6th Cir. 2005).
For all of the foregoing reasons, and for the reasons detailed in the Magistrate Judge’s
Report and Recomnmendation, Petitioner’s Objection (ECF No. 15) is OVERRULED. The
Report and Recommendation (ECF No. 11) is ADOPTED and AFFIRMED. The petition for a
writ of habeas corpus is DENIED and this action is hereby DISMISSED.
IT IS SO ORDERED.
sAlgenon L. Marbley
ALGENON L. MARBLEY
United States District Judge
DATED: June 17, 2016

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