Mason v. Warden, Warren Correctional Institution
REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Cameron Mason in that it is RECOMMENDED that this action be DISMISSED. Objections to R&R due by 10/27/2017. Signed by Magistrate Judge Kimberly A. Jolson on 10/13/17. (sem)(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
CASE NO. 2:16-CV-1134
CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Return of Writ,
Petitioner’s Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate
Judge RECOMMENDS that this action be DISMISSED.
FACTS AND PROCEDURAL HISTORY
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
the case as follows:
On October 3, 2014, the Delaware County Grand Jury indicted
appellant, Cameron Mason, on four counts of rape in violation of
R.C. 2907.02(A)(1)(c) and (2). Said charges arose from an incident
involving M.K. while the two of them were attending a graduation
party. An indictment was also filed against a co-defendant,
D’Shawn Barnes, which was subsequently dismissed on January
12, 2015 (Case No. 14–CR–I–10–0440A).
A jury trial commenced on December 16, 2014. The jury found
appellant guilty of one of the rape counts, a violation of R.C.
2907.02(A)(1)(c). By sentencing entry filed January 27, 2015, the
trial court sentenced appellant to five years in prison.
Appellant filed an appeal and this matter is now before this court
for consideration. Assignment of error is as follows:
“THE CONVICTION OF RAPE AGAINST DEFENDANT IS
NOT SUSTAINED BY THE EVIDENCE AND IS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.”
State v. Mason, No. 15-CAA-02-0017, 2015 WL 9594651, at *1 (Ohio App. 5th Dist. Dec. 28,
2015) (paragraph symbols and heading omitted). On December 28, 2015, the appellate court
affirmed the judgment of the trial court. Id. On May 4, 2016, the Ohio Supreme Court declined
to accept jurisdiction of the appeal. State v. Mason, 145 Ohio St.3d 1460 (Ohio 2016).
On November 23, 2016, Petitioner filed this Petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254.
As his sole claim for relief, Petitioner asserts that the evidence is
constitutionally insufficient to sustain his conviction. It is the position of the Respondent that
this claim fails to provide a basis for relief.
In addition, on February 9, 2017, Petitioner filed a pro se “Motion for Newly Discovered
Evidence and in Alternative Motion Pursuant to Criminal R. 52(B)” in which he asserted that he
had been denied the effective assistance of trial counsel. The trial court denied the motion, and
on September 7, 2017, the appellate court affirmed the judgment of the trial court. See State v.
Mason, No. 17CAA030017, 2017 WL 4005135 (Ohio App. 5th Dist. Sept. 7, 2017). However,
the Court has reviewed those proceedings, and they are not relevant to the claims raised herein.
STANDARD OF REVIEW
Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) govern this case. The United States
Supreme Court has described AEDPA as “a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court” and emphasized that courts must
not “lightly conclude that a State’s criminal justice system has experienced the ‘extreme
malfunction’ for which federal habeas relief is the remedy.” Burt v. Titlow, ––– U.S. ––––, 134
S. Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett,
559 U.S. 766, 773 (2010) (“AEDPA . . . imposes a highly deferential standard for evaluating
state-court rulings, and demands that state court decisions be given the benefit of the doubt.”)
(internal quotation marks, citations, and footnote omitted).
AEDPA limits the federal courts’ authority to issue writs of habeas corpus and forbids a
federal court from granting habeas relief with respect to a “claim that was adjudicated on the
merits in State court proceedings” unless the state court decision either:
(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.
28 U.S.C. § 2254(d).
Further, the factual findings of the state court are presumed to be correct:
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
28 U.S.C. § 2254(e)(1)
Accordingly, “a writ of habeas corpus should be denied unless the state court decision
was contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court, or based on an unreasonable determination of the facts in light
of the evidence presented to the state courts.” Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)
(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)). The United States Court of Appeals
for the Sixth Circuit has summarized these standards as follows:
A state court’s decision is “contrary to” Supreme Court precedent
if (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law[,]” or (2) “the
state court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at a
different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct.
1495, 146 L.Ed.2d 389 (2000). A state court’s decision is an
“unreasonable application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular ... case” or either unreasonably extends or unreasonably
refuses to extend a legal principle from Supreme Court precedent
to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146
Id. at 748–49. The burden of satisfying AEDPA’s standards rests with the petitioner. See Cullen
v. Pinholster, 563 U.S.170, 181 (2011).
Petitioner asserts that the evidence is constitutionally insufficient to sustain his
conviction. The state appellate court rejected Petitioner’s claim on the merits:
Appellant claims his conviction for rape was against the
sufficiency and manifest weight of the evidence as there was no
independent evidence to establish a violation of R.C.
2907.02(A)(1)(c). We disagree.
On review for sufficiency, a reviewing court is to examine the
evidence at trial to determine whether such evidence, if believed,
would support a conviction. State v. Jenks, 61 Ohio St .3d 259
(1991). “The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” Jenks at paragraph two of the
syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On
review for manifest weight, a reviewing court is to examine the
entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine “whether in
resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered.” State v. Martin, 20 Ohio
App.3d 172, 175 (1st Dist.1983). See also, State v. Thompkins, 78
Ohio St.3d 380, 1997–Ohio–52. The granting of a new trial
“should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at 175.
We note the weight to be given to the evidence and the credibility
of the witnesses are issues for the trier of fact. State v. Jamison, 49
Ohio St.3d 182 (1990). The trier of fact “has the best opportunity
to view the demeanor, attitude, and credibility of each witness,
something that does not translate well on the written page.” Davis
v. Flickinger, 77 Ohio St.3d 415, 418, 1997–Ohio–260.
Appellant was convicted of
2907.02(A)(1)(c) which states:
(A)(1) No person shall engage in sexual conduct with another who
is not the spouse of the offender or who is the spouse of the
offender but is living separate and apart from the offender, when
any of the following applies:
(c) The other person’s ability to resist or consent is substantially
impaired because of a mental or physical condition or because of
advanced age, and the offender knows or has reasonable cause to
believe that the other person’s ability to resist or consent is
substantially impaired because of a mental or physical condition or
because of advanced age.
As stated by this court in In re R.G., 5th Dist. Licking No. 08–CA–
121, 2009–Ohio–2646, ¶ 28:
The Ohio Supreme Court has held “substantial impairment must be
established by demonstrating a present reduction, diminution or
decrease in M.K.’s ability, either to appraise the nature of his
conduct or to control his conduct.” State v. Zeh (1987), 31 Ohio
St.3d 99, 509 N.E.2d 414. “Substantial impairment” need not be
proven by expert medical testimony; it may be proven by the
testimony of persons who have had some interaction with M.K.
and by permitting the trier of fact to obtain its own assessment of
M.K.’s ability to either appraise or control her conduct.” State v.
Brady, Cuyahoga App. No. 87854, 2007–Ohio–3333.
Voluntary intoxication is a “mental or physical condition” that can
constitute “substantial impairment” for purposes of R.C.
2907.02(A)(1)(c). State v. Harmath, 3rd Dist. Seneca No. 13–06–
The incident in question occurred during a high school graduation
party at the home of Morgan Eiland, a friend of M.K. T. at 152–
153, 187. Appellant did not contest the fact that he had sex with
M.K., but claimed it was consensual. Appellant argues there was
no independent evidence that M.K. was asleep the entire time, no
evidence of trauma to M.K., and no evidence that he knew she was
intoxicated or had consumed alcohol.
The facts and appellant’s own admission establish he had vaginal
intercourse with M.K. T. at 280–283, 300–302, 349–350, 354;
State’s Exhibit 1. Appellant explained he arrived at the party
between 9:00 and 10:00 p.m. and had minimal contact with M.K.
T. at 341–342, 355–356. Around midnight, appellant went upstairs
to a bedroom to play video games with the co-defendant, and
around 1:00 a .m., M.K. and others came into the bedroom and she
lay down on the bed. T. at 345346, 356–357. Appellant claimed
M.K. was not asleep, but she was not “participating in the
conversation.” T. at 357. Around 2:30 a.m., everyone left the room
and appellant lay down beside M.K. T. at 347. They talked, kissed,
and engaged in sexual intercourse. T. at 347–350, 359. M.K. was
not asleep or passed-out. T. at 349, 357. Appellant claimed he had
not observed M.K. drinking and did not know she was intoxicated.
T. at 342–343, 346, 354–355.
M.K. admitted to drinking heavily from around 2:00 to 8:00 p.m.,
and had no memory of what happened after 8:00 p.m. until 3:00
a.m. T. at 191–193, 195, 211. She remembers waking up at that
time on a bed with “someone” engaging in vaginal intercourse with
her. T. at 196–197, 199, 238. She got up, opened the door to leave,
looked back, and observed two individuals, appellant and the codefendant, in the bedroom. T. at 196–198. She immediately fled to
the bathroom, called her mother, and called/texted Ms. Eiland who
went to the bathroom to help M.K. T. at 161, 171, 198–199, 235.
M.K. went to the hospital and was examined by a sexual assault
nurse examiner (hereinafter “SANE”). T. at 200. At no time did
M.K. give appellant permission to engage in sexual intercourse
with her. T. at 205–206.
Ms. Eiland and the SANE nurse, Leighann Clifford, described
M.K. as disheveled, very upset, very tearful, trembling, hysterical,
crying, and “barely could speak.” T. at 161, 183, 263.
A partygoer, Jante Wright, testified he arrived at the party around
9:00 p.m. and M.K. was “pretty drunk.” T. at 131–133, 142. Her
breath smelled of alcohol and she was acting drunk. T. at 132.
Later in the evening, M.K. told Mr. Wright she “needed to throw
up,” so he helped her to an upstairs bathroom and then to an empty
bedroom where M.K. passed out/fell asleep on the bed. T. at 134–
Ms. Eiland testified at one point she walked by the bedroom and
observed M.K. asleep on the bed and appellant and the codefendant in the room playing video games. T. at 158–160. Later,
Ms. Eiland observed M.K. still asleep in the “same exact place.” T.
As stated above, the trier of fact is in the best position to judge the
credibility of the witnesses.
Upon review, we find the corroborating evidence that M.K. was
intoxicated, passed out/asleep, and nonresponsive to be sufficient
to prove the rape was not consensual and appellant was aware of
M.K.’s disability due to intoxication. We do not find any manifest
miscarriage of justice.
The sole assignment of error is denied.
State v. Mason, 2015 WL 9594651, at **1–3.
Before a criminal defendant can be convicted consistent with the United States
Constitution, there must be evidence sufficient to justify a reasonable trier of fact to find guilt
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In determining
whether the evidence was sufficient to support a petitioner’s conviction, a federal habeas court
must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S.
277, 296 (1992) (citing Jackson, at 319). The prosecution is not, however, required to “rule out
every hypothesis except that of guilt.” Id. (quoting Jackson, at 326). “[A] reviewing court
‘faced with a record that supports conflicting inferences must presume—even if it does not
appear on the record—that the trier of fact resolved any such conflicts in favor of the
prosecution, and must defer to that resolution.’” Id. (quoting Jackson, at 326).
Moreover, federal habeas courts must afford a “double layer” of deference to state court
determinations of the sufficiency of the evidence. As explained in Brown v. Konteh, 567 F.3d
191, 205 (6th Cir. 2009), deference must be given, first, to the jury’s finding of guilt because the
standard, announced in Jackson v. Virginia, is whether “viewing the trial testimony and exhibits
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. Second, and even if a de novo
review of the evidence leads to the conclusion that no rational trier of fact could have so found, a
federal habeas court “must still defer to the state appellate court’s sufficiency determination as
long as it is not unreasonable.” Id. See also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009).
Consequently, a habeas petitioner has a substantial hurdle to overcome, and Petitioner has not
done so here.
Ohio defines rape, as charged in this case, as:
(A)(1) No person shall engage in sexual conduct with another who is not the
spouse of the offender…, when any of the following applies:
(c) The other person’s ability to resist or consent is substantially impaired
because of a mental or physical condition or because of advanced age, and the
offender knows or has reasonable cause to believe that the other person’s ability
to resist or consent is substantially impaired because of a mental or physical
condition or because of advanced age.
Ohio Rev. Code § 2907(A)(1)(c).
First, Petitioner admitted that he engaged in intercourse with M.K.. (Transcript, Vol. III,
pp. 347, 349–50). Further, the BCI report—prepared by the lab that documented the evidence in
this case—conclusively showed that the DNA taken from the vaginal swabs of M.K. belonged to
Petitioner. Trial Transcript, Vol. II, (Doc. 9-1, PageID# 429–33).
Second, the jury heard ample evidence from which it could have concluded that M.K.
was “substantially impaired”—and that Petitioner was aware of her impairment. On May 24,
2014, M.K. and her friend, Morgan Eiland, graduated from high school and hosted a joint party
at the Eiland residence. Trial Transcript, Vol. I, (Doc. 9-1, PageID# 259). M.K. testified that
she began drinking alcohol during the mid-afternoon on that day. Trial Transcript, Vol. I, (Doc.
9-1, PageID# 321). She recalls drinking until at least 8:00 p.m, but remembers nothing from
approximately 8:00 p.m. until 3:00 a.m. on May 25, 2014. (Id., PageID# 322–23). Around 3:00
a.m., she woke to discover that “someone was having sex with [her].” (Id., PageID# 326). She
testified that she got her bearings, unlocked and opened the door to the bedroom where she was,
and, with the light from the hallway shining in, she could see Petitioner and Barnes in the room.
(Id., PageID# 327–28). M.K. further testified that she never consented to sexual intercourse.
(Id., PageID# 335–36). On cross examination, she additionally testified that “you can’t give
anyone permission if you’re asleep,” and “I know I didn’t give anyone permission.” Trial
Transcript, Vol. II (Doc. 9-1, PageID# 362.)
M.K.’s testimony regarding her inebriated state—or in the words of the statute, her
“substantial impairment”—was corroborated by other testimony. Jante Wright, who had dated
M.K. in the past, testified that when he first encountered M.K. that night, she was “pretty drunk.”
Trial Transcript, Vol. I (Doc. 9-1, PageID# 262.) Later that night, Wright assisted M.K. to a
bathroom to vomit. (Id., PageID# 264.) Although she didn’t throw up, she did not feel well so
Wright “picked her up,” “carried her into the room next door[,] and laid her down on the bed.”
(Id., PageID# 264.) She then “passed out.” (Id., PageID# 266.) Wright testified that he never
considered initiating any kind of romantic encounter with M.K. because she was “too drunk,”
and because “she was passed out.” (Id., PageID# 279–80.)
Eiland also testified. During the party, she witnessed M.K. drinking wine. (Id., PageID#
286.) Later in the evening, she saw M.K. asleep on her brother’s bed, the room where Petitioner
and Barnes were playing video games. (Id., PageID# 288.) At that time, the lights were on and
the door was open, but M.K. was not “mov[ing] at all.” (Id., PageID# 289). Around 1:30 a.m.,
when Eiland was going to her room to go to bed, she again saw M.K. in Eiland’s brother’s bed.
(Id., PageID# 291.) M.K. was in the exact same place on the bed as she had been before; she
hadn’t moved. (Id.)
Around 3:30 a.m., M.K. texted Eiland, asking her to come to the bathroom.
PageID# 291.) M.K. was “[h]ysterical, crying, and . . . could barely speak. (Id.) M.K. told
Eiland that she woke to find either Petitioner or Barnes having sex with her. (Id., PageID# 292.)
Eiland took M.K. outside and arranged for Petitioner and Barnes to leave the house because
Eiland was fearful of what her father might do to them. (Id., PageID# 294.) After the boys left,
Eiland woke her parents who called M.K.’s mother. (Id.) M.K.’s mother came to the house and
took her daughter to the hospital. (Id.)
At the hospital, a sexual assault nurse examiner (“SANE”), Leighann Clifford, examined
M.K. Clifford testified at trial. Trial Transcript, Vol. II (Doc. 9-1, PageID# 379–410.) She
described M.K.’s demeanor during the examination as “very upset,” “very tearful,” “wringing
her hands,” and kind of “trembling.” (Id., PageID# 393.)
At trial, Petitioner testified on his own behalf. He told the jury that he arrived at the
graduation party between 9:00 and 10:00 p.m. at which time he saw M.K. Trial Transcript, Vol.
III (Doc. 9-1, PageID# 471.) He testified that, to his knowledge, M.K. was not intoxicated and
that he did not see her consume alcohol. (Id., PageID# 472–73.) Around midnight or 12:30
a.m., he went upstairs with Barnes to play video games. (Id., PageID# 475.) Petitioner testified
that M.K. entered the bedroom around 1:00 a.m. (Id., PageID# 476.) Eventually, Barnes left,
and Petitioner testified that he and M.K. “began kissing and end up having sex.” (Id., PageID#
477–79.) Next, according to Petitioner, Barnes returned to the bedroom, and M.K. “jumped up
and left the room.” (PageID# 480.) After M.K. left, Petitioner fell asleep on the bed. (Id.,
PageID# 481.) At 5:30 a.m., a friend woke Petitioner to take him home. (Id., PageID# 481.)
Before this Court, Petitioner reiterates his story that the jury rejected at trial, i.e., that
M.K. consented or that Petitioner was unaware of M.K.’s impaired state. As the state court of
appeals explained, “the trier of fact is in the best position to judge the credibility of the
witnesses.” Applying that deference, the state court found that “the corroborating evidence that
M.K. was intoxicated, passed out/asleep, and nonresponsive [was] sufficient to prove the rape
was not consensual and [Petitioner] was aware of M.K.’s disability due to intoxication.” State v.
Mason, 2015 WL 9594651, at *3. The state appellate court did not unreasonably apply federal
law. To the contrary, the court reasonably applied Supreme Court precedent in concluding that,
viewed in a light most favorable to the prosecution, the evidence presented at trial was sufficient
to sustain Petitioner’s conviction. Accordingly, Petitioner has not met his high burden under
For the foregoing reasons, the Magistrate Judge RECOMMENDS that this action be
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
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).
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.
Date: October 13, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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