Cox v. Warden Chillicothe Correctional Institution

Filing 15

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is again respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of app ealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 12/7/2015. Signed by Magistrate Judge Michael R. Merz on 11/20/2015. (kpf)(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
WESTERN DIVISION AT DAYTON
VERNON LEE COX, JR.,
Petitioner,

:

- vs -

Case No. 3:15-cv-098
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 13) to
the Magistrate Judge’s Report and Recommendations (“Report,” ECF No. 11). District Judge
Rose has recommitted the case for reconsideration in light of the Objections (Order, ECF No.
14). The Objections are considered in the order Cox presents them.

Ground One: Insufficient Evidence

In his First Ground for Relief, Cox asserts he was convicted on insufficient evidence.
The Report notes that the standard for deciding such a claim is established by Jackson v.
Virginia, 443 U.S. 307 (1979). Cox objects to its application in this case (Objections, ECF No.
13, PageID 1788-91).
Under Jackson

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[T]he relevant question is whether, after viewing the evidence 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. . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
443 U.S. at 319. The Report quotes at length the decision of the Second District Court of
Appeals deciding this sufficiency of the evidence question, which was raised in Cox’s First and
Second Assignments of Error on direct appeal (Report, ECF No. 11, PageID 1737-43, quoting
State v. Cox, 2013-Ohio-4941, ¶¶ 25-35, 41-47, 2013 Ohio App. LEXIS 5144 (2nd Dist. Nov. 8,
2013)).1
The Objections fault the Second District and the Report for finding that the victim’s
testimony alone is sufficient for conviction (Objections, ECF No. 13, PageID 1788-91). Cox
argues “[t]his would change the Constitution as we know it, for only the alleged victim would
have to take the stand and make his/her allegations.” Id. at PageID 1789. Instead, he claims,
that the law is “[w]here a defendant’s guilt largely hinges on that of the testimony of the
prosecution’s witness violates the constitution.” (Objections, ECF No. 13, PageID 1789, citing
Depetris v. Kuykendall, 239 F.3d 1057 (9th Cir. 2001), and Franklin v. Henry, 122 F.3d 1270 (9th
Cir. 1997)).2
Depetris is not a case involving sufficiency of victim testimony; the victim in that case
was dead and could not testify at all. Rather, the decision was based on an unconstitutional
exclusion of evidence. Franklin also turned on the exclusion of evidence in the state trial court.
The Report cites numerous cases from the Sixth Circuit holding that the testimony of a victim
alone is sufficient for conviction under Jackson (Report, ECF No. 11, PageID 1744-45).

1
2

References hereinafter to State v. Cox, supra, are to this decision.
Cox cites this case as having been decided in 1971 but 1997 is the correct date.

2

Cox alleges that the record establishes definitively that he did not engage in oral sex with
the victim (Objections, ECF No. 13, PageID 1790, citing a report of Detective Mitchell referred
to at Trial Tr. 640).3 The referenced testimony is from a Detective Ring:
Q.
All right. Is [sic] Cassandra tell Detective Mitchell or did
he report in his report that Cassandra advised that Vernon
attempted to try to perform oral sex on her?
A.

Yes.

(See Trial Tr., ECF No. 7-3, PageID 1481).

This Court does not understand how this is

supposed to prove that the oral sex did not happen. C.F. testified at trial that Cox did in fact
perform oral sex on her.
Cox argues that “[a]t least twelve jurors in a similar case have concluded, based on a
report, that the defendant was not guilty of penetration.” (Objections, ECF No. 13, PageID 1790,

citing Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000).) That completely misstates the
Washington decision. Washington was accused of sexual misconduct on two occasions with the
eleven-year-old daughter of his live-in girlfriend. Notes of an examining doctor who recorded
the victim’s statement that there was no penetration were admitted by stipulation and the jury
acquitted Washington of the charge that required penetration. Washington, 228 F.3d

at 697.

The appellate decision does not recount what testimony the victim gave at trial. In any event the
fact that one jury, weighing the credibility of the witnesses before it and the content of their
testimony, came to one conclusion in no way creates a precedent such that any defendant who
presents a report of a statement of no penetration4 is entitled to acquittal. Juries in different cases

3

The trial transcripts are filed at ECF No. 7. Additionally, the transcripts have been renumbered with PageID
numbers to comply with this Court’s Amended Standing Order. “2.
All references to the record in this Court
must be to the filed document by title, electronic filing docket number, and PageID reference. (E.g., Defendants’
Motion to Dismiss, ECF No. 27, PageID _____.)”

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And, of course, that is not what Detective Mitchell’s report says.

3

are completely independent finders of the fact for those cases only.
Cox relies on the testimony of other witnesses – Aaron Fouch, Rhonda Moore, and
Megan Cox – who, he says, testified the sexual abuse never happened (Objections, ECF No. 13,
PageID 1791). The reference in the transcript given by Cox as to Aaron Fouch (Trial Tr., ECF
No. 7-2, PageID 1269-70) is not that person’s testimony, but is part of the testimony of the
victim. Rhonda Moore testified she was Vernon Cox’s neighbor in Huber Heights, Ohio, for
about five years. She denied that there was ever an occasion (1) when she went to Cox’s house
and he was there alone with C.F., (2) when C.F. had an injury to her head, or (3) when there was
some conversation with C.F. about cutting her hair (Trial Tr., ECF No. 7-3, PageID 1482-83).
Megan Cox, Vernon’s daughter, testified that the place where they went dirt biking was very
open and C.F. and Cox were never alone there. She also testified there was never an occasion
when C.F. and she were in bed with Vernon. Id. at PageID 1399-1403.
To the extent this testimony is inconsistent with some of the testimony the victim gave,
Cox was entitled to present it and the jury was entitled to consider it. But it was the jury’s task to
decide who was credible and what to believe of what they testified to. None of this referenced
testimony proves conclusively that C.F. was not testifying truthfully.
Cox’s Objections do not establish any error in the Report’s conclusion on the First
Ground for Relief.

Ground Two: Confrontation Clause/Right to Present a Defense

In his Second Ground for Relief, as the Magistrate Judge read it in the Report, Cox
presented two sub-claims: (1) his counsel was limited in the questions he could ask about herpes,

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and (2) he was unable to call Detective Mitchell to testify. Cox objects that he presented six subclaims, to wit, (1) limitation of the herpes defense, (2) inability to call Detective Mitchell as a
witness, (3) admission in evidence of exhibits 1(A) and 1(B), (4) certain ineffective assistance of
counsel claims, (5) Petitioner not being present during the transcribing of C.F.’s grand jury
testimony, and (6) speedy trial (ECF No. 13, PageID 1792).

Sub-claim 1: The Herpes Defense

Cox defended against the claim that he had had sex with C.F. by presenting evidence that
(1) he had herpes, (2) two other women with whom Cox had sex had also tested positive for
herpes, and (3) C.F. tested negative. In all, four witnesses were called on this question, including
two medical doctors. State v. Cox, supra, ¶¶ 71-72. The Second District treated this as a
constitutional claim of ability to present a complete defense and found there was no evidence in
the record that defense counsel had been improperly limited. Id. In reviewing that decision, the
Report found it was substantiated by the record and the Second District’s decision was therefore
not objectively unreasonable (Report, ECF No. 11, PageID 1748).
In his Objections Cox adds nothing except a transcript citation to Georgetta Cox’s
examination by defense counsel in which Mr. Lennen asks her if she has herpes and she answers
“yes.” (Trial Tr. ECF No. 7-2, PageID 1166.) Cox says this happened after a “lengthy sidebar
discussion,” and the transcript shows a sidebar of unstated length just before this question
(Objections, ECF No. 13, PageID 1792). The record does not show the content of the sidebar
discussion or whether it involved Mr. Lennen’s attempt to introduce more about the herpes
defense. Neither the Second District nor this Court could determine without some showing on

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content what evidence on this topic the defense might have offered or whether it was
unconstitutionally excluded. We also cannot tell whether the sidebar discussion was recorded
and not transcribed or not even recorded, as is sometimes the practice.
In any event, if there was evidence on the herpes defense which was excluded, it was the
responsibility of counsel to proffer that evidence so that the court of appeals could determine the
propriety of excluding it, and that was apparently not done. On the record that was before the
Second District, there is no proof Cox was improperly limited in his presentation of this defense.

Sub-Claim Two: Failure to Have Detective Mitchell Testify

In his second sub-claim under Ground Two, Cox asserts his Confrontation Clause rights
were violated when Detective Mitchell did not appear as a witness. Respondent asserted this
claim was procedurally defaulted because it was never presented to the Ohio courts. Cox
asserted the default was excused by ineffective assistance of trial counsel. The Report noted that
ineffective assistance excuses must first be litigated in the state courts (Report, ECF No. 11,
PageID 1751, citing Edwards v. Carpenter, 529 U.S. 446 (2000)). Under Ohio’s criminal res
judicata doctrine, this ineffectiveness claim was required to be raised on direct appeal, but was
not and the Report therefore found it procedurally defaulted. Id.
In his Objections, Cox asserts he has shown ineffective assistance of counsel to excuse
this default, but he makes the claim in conclusory fashion without record citation (ECF No. 13,
PageID 1793). To the extent ineffective assistance of trial counsel in not preserving the record
on this sub-claim should have been raised on direct appeal and was not, that supposed ineffective
assistance of appellate counsel could have been raised in Cox’s 26(B) Application and indeed it

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was as the second omitted assignment of error (State Court Record, ECF No. 5, PageID 721, et
seq.) The Second District denied relief, concluding
Mr. Cox's argument that the trial court's limitations on the use of
evidence of his affliction with genital herpes and lack of the
disease in the victim constitutes ineffective assistance of counsel is
not well taken. Indeed, a review of the trial transcript shows that
the issue of Mr. Cox's herpes was thoroughly addressed at trial.
Three separate witnesses testified with knowledge of Mr. Cox's
herpes, in addition to the testimony that the victim tested negative
for the infection. Since Mr. Cox was able to explore these issues at
trial, he fails to show how admission of medical evidence about the
infection would have aided his case. Further, Mr. Cox's appellate
counsel did raise the issue of the herpes evidence on appeal. In
fact, this Court rejected virtually the same issue on Mr. Cox's
direct appeal: “we conclude that there is no evidence in the record
which establishes that the trial court improperly limited defense
counsel’s ability to elicit testimony from the witnesses regarding
Cox’s herpes infection and those he may or may not have passed it
along to through sexual conduct.” State v. Cox, 2d Dist.
Montgomery No. 25477, 2013-Ohio-4941, ¶ 73.
State v. Cox, Case No. 25477 (2nd Dist. Apr. 14, 2014)(copy at State Court Record, ECF No. 5,
Exh. 38, PageID 763). Cox has forfeited any claim of error in this decision since he failed to
appeal to the Ohio Supreme Court.

Sub-Claims Three through Six

In his Objections, Cox lists four other sub-claims, detailed above. None of these subclaims are mentioned in the Second Ground for Relief as it was pleaded (Petition, ECF No. 1,
PageID 7). Therefore none of them were analyzed in the Report. Cox gives no record citation to
anywhere he supposedly raised these claims in the Petition. New issues cannot be raised in
objections to a Report and Recommendations.

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Ground Three: Cumulative Error

In his Third Ground for Relief, Cox asserts that cumulative trial court error merits habeas
relief. The Report rejected this claim for the reason that cumulative error is not cognizable in
habeas corpus (ECF No. 11, PageID 1760). The Report also reviewed the included sub-claims
which were dealt with by the Second District.
Cox “strongly objects” to the Report’s conclusion that cumulative error is noncognizable. Each of the Supreme Court cases he cites, however, is distinguished in the Report.
That analysis will not be repeated here. Most of the appellate cases he cites are from other
circuits. The one Sixth Circuit case he cites is Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988).
Cooper did indeed consider errors cumulatively. But Cooper was decided before adoption of the
Antiterrorism and Effective Death Penalty Act of 1996 significantly curbed the habeas corpus
remedy.

“Post-AEDPA, not even constitutional errors that would not individually support

habeas relief can be cumulated to support habeas relief.” Moreland v. Bradshaw, 699 F.3d 908,
931 (6th Cir. 2012), cert. denied sub nom. Moreland v. Robinson, 134 S. Ct. 110 (2013) quoting
Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir. 2010)(quoting Moore v. Parker, 425 F.3d 250,
256 (6th Cir. 2005); Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011), cert. denied, ___
U.S. ___, 132 S. Ct. 2751 (2011), citing Moore, 425 F.3d at 256, cert. denied sub nom. Moore v.
Simpson, 549 U.S. 1027 (2006).
Cox’s objections on Ground Three are without merit because this Court is bound by Sixth
Circuit law.

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Ground Four: Ineffective Assistance of Trial Counsel

In his Fourth Ground for Relief, Cox asserts he received ineffective assistance of trial
counsel in that his trial attorney (1) allowed the testimony of Dr. Miceli, (2) failed to make a
more thorough investigation of the herpes virus, (3) did not force the Court to have Detective
Mitchell testify, (4) failed to call a work-records witness to show Cox had an alibi, and (5)
performed deficiently during plea bargaining.

Sub-claim One: Failure to Submit an Expert to Rebut Dr. Miceli

Cox’s first sub-claim is that defense counsel should have hired an expert to rebut Dr.
Brenda Miceli’s expert testimony for the State (Response, ECF No. 10, PageID 1668). Cox
raised this claim in post-conviction, lost at both the trial and appellate levels, and failed to appeal
to the Ohio Supreme Court. The Report found the claim procedurally defaulted on that basis
(Report, ECF No. 11, PageID 1769-70). Cox insisted that such an appeal was unnecessary,
relying on Harris v. Reed, 489 U.S. 255 (1989). The Report explains why Harris is not
applicable. Id. Cox’s Objections merely repeat the citation to Harris.
Cox does not object to the Report’s conclusions on Sub-claims Two, Three, and Four.

Sub-Claim Five: Ineffective Assistance at the Plea Bargaining Phase

The first time Cox raised this sub-claim was on appeal from denial of his petition for
post-conviction relief. The Second District declined to decide it on the merits because it had not

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been raised in the trial court. State v. Cox, 2015 Ohio App. LEXIS 887, ¶ 15 (2nd Dist. Mar. 13,
2015.)
Cox now claims that this procedural default is excused by the ineffective assistance of his
post-conviction counsel, relying on Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L. Ed.
2d 272 (2012), and Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013).
The Sixth Circuit Court of Appeals has not yet decided whether Martinez and Trevino
apply to the Ohio system of reviewing claims of ineffective assistance of trial counsel. See
Williams v. Mitchell, 792 F.3d 606 (6th Cir. 2015); Henness v. Bagley, 766 F.3d 550 (6th Cir.
2014); McGuire v. Warden, 738 F.3d 741 (6th Cir.2013). Assuming those cases do apply in
Ohio, Cox has not shown that they should apply in this case. The only factual support he offers
for the claim of ineffective assistance of post-conviction counsel is that “[t]he plea deal was for
15 years . . ,” a bare statement in the Objections (ECF No. 13, PageID 1798). He makes no
reference to any other place where any evidence is presented, referring in a broad sweep that
“Petitioner has argued this thoroughly in both his Memorandum as well as his Traverse,” but
gives no page references.5 Id. at PageID 1797. Attached to the Traverse is an Affidavit dated
March 6, 2014, from Edith Jane Cox, Petitioner’s spouse, who avers that Kevin Lennen in fact
did tell her and her husband that there was an offer of fifteen years but that he advised against
taking it (Traverse, ECF No. 10-1, PageID 1726). In his own Affidavit, Cox avers
Within ten to fifteen minutes of the start of my trial, Mr. Lennen
approached my wife Jane Cox and Myself and states that he felt it
necessary to inform me that the Prosecutor, Linda Dodd had made
an unofficial plea deal of 15 yeas [sic], Mr. Lennen Stated that he
informed Mrs Dodd that I most likely would not take the plea
because he retains that he is innocent. At that time I told Mr.
Lennen that I did not want to plea guilty to something I did not do;
Mr Lennen then stated that I need not worry about it as he felt we
had a strong case and that we could win this; and also that he had
5

The referenced “Memorandum” is 308 pages long; the Traverse is 120 pages.

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already told the prosecutor "no" on the plea deal He said it was
nothing more than a he said/she said case with no evidence to
prove anything.
Had I knew that I would be facing this kind of time, Thirty years
(30) I would have possibly considered the option of the the plea
deal more seriously, However with it being brought to my attention
only minutes before the start of the trial and along with the false
confidence of my attorney I denied the plea deal. I feel that with
the way things came about with the plea deal being offered only
minutes before the trial along with the fact that Mr. Lennen did not
inform me of what I could be looking at, I once again feel like I
was prejudiced by not having the proper information so to make an
informed decision. It is no big secret that it is extremely hard to
win these types of cases, as no one wants to believe that a teenager
would lie about something such as sexual abuse, However in this
case there is no evidence, No wittinesses [sic], No nothing in this
case other than the allegations of my step Daughter, as dictated by
my attorney.
I feel that by Mr. Kevin Lennen not informing me of my choices
and giving me false hopes that it prejudiced me and deprived me of
the chance to make a better informed decision and that being 30
years verses 15 years ...

(Traverse, ECF No. 10-1, PageID 1729.) These facts do not support a claim of ineffective
assistance of trial counsel against Mr. Lennen over the plea bargain, even if accepted at face
value without cross-examination. Lennen presented the offer, Cox rejected it and lost at trial.
Cox’s ineffective assistance of trial counsel argument is the familiar hindsight one. Therefore it
was not ineffective assistance of post-conviction counsel to fail to present this claim and it
remains procedurally defaulted, even assuming Martinez and Trevino apply in Ohio.

Ground Five: Grand Jury Testimony of the Victim

In his Fifth Ground for Relief, Cox asserts the defense should have been allowed to use

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C.F.’s grand jury testimony to impeach her at trial. The Second District rejected this claim on
the grounds that defense counsel had conceded the point. State v. Cox, supra, ¶ 67. The Report
recommended dismissal for the reason that only a state evidentiary question is involved and
defense counsel had conceded the point (Report, ECF No. 11, PageID 1778).
Cox objects that the Magistrate Judge made his recommendation without listening to the
grand jury testimony (ECF No. 13, PageID 1799). That is certainly true. Because the grand jury
testimony was not before the Second District, this Court is precluded from hearing it. Cullen v.
Pinholster, 563 U.S. 170 (2011).
Cox asserts that “[p]erjury and fabrication of testimony are clearly Constitutional issues
that would deprive a defendant of a fair trial.” (Objections, ECF No. 13, PageID 1799.) That is
simply not true.

If Cox had evidence that the prosecutor deliberately suborned perjured

testimony, that would be a different matter. But the Constitution does not guarantee that grand
jury secrecy will be invaded to obtain potentially impeaching cross-examination statements,
particularly when trial counsel concedes the matter.

Ground Six: Allowing Dr. Miceli to Testify

Cox claims in his Sixth Ground for Relief that allowing Dr. Miceli to testify violated his
constitutional right to a fair trial. The Report concluded this claim was not fairly presented as a
constitutional claim to the state courts and that, in any event, Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), the leading Supreme Court case on expert
testimony, did not impose a constitutional obligation on the States (ECF No. 11, PageID 177879). Cox’s Objections do not require further analysis.

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Ground Seven: Ineffective Assistance of Appellate Counsel

In his Seventh Ground for Relief, Cox claims he received ineffective assistance of
appellate counsel when his counsel did not do a better job of citing case authority. The Report
recommends this Ground for Relief be dismissed because Cox did not appeal from denial of his
Ohio App. R. 26(B) Application to the Ohio Supreme Court.
Cox objects that the Sixth Circuit has held that Ohio R. App. P. 26(B) is not an adequate
and independent state ground of decision (Objections, ECF. No. 13, PageID 1800, citing
Franklin v. Anderson, 434 F. 3d 412 (6th Cir. 2006)). He then follows with a two-page note on
the importance of following Franklin because of the doctrine of stare decisis. Id. at PageID
1801-02.
Interpreting Franklin, the Sixth Circuit has said that does not establish that the timeliness
rule of 26(B) will always be inadequate; instead the courts must consider whether the state court
rule was firmly established and regularly followed by the time it was applied in a particular
case. Fautenberry v. Mitchell, 515 F.3d 614 (6th Cir. 2008). Later the Court of Appeals held:
Although we have, in prior cases, found Rule 26(B) not to be an
adequate and independent ground on which to find procedural
default, those precedents are not applicable here because Rule
26(B) was firmly established and regularly followed by June 2006.
n4 See id. at 862 (applying the "firmly established and regularly
followed" requirement "as of the time Rule 26(B) was to be
applied"). Thus, we conclude that Hoffner has procedurally
defaulted his claims of ineffective assistance of appellate counsel.
Nevertheless, even if Hoffner's claims were not defaulted, each
fails on the merits. See Fautenberry, 515 F.3d at 642 (analyzing
the merits of a procedurally defaulted claim in the alternative).
Hoffner v. Bradshaw, 622 F.3d 487, 504-505 (6th Cir. 2010). Thus the Sixth Circuit has now
held that 26(B) is firmly established and regularly followed and stare decisis requires us to
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follow Hoffner.

Ground Eight: Determination of Sentence by the Judge Rather Than the Jury

In his Eighth Ground for Relief, Cox asserts his constitutional rights under the Fourteenth
Amendment were violated when the trial judge decided on a maximum sentence instead of
allowing that issue to be decided by the jury.
Cox raised this claim for the first time in his Motion for Re-Sentencing to Judge Tucker.
Tucker denied the claim and the Second District affirmed. State v. Cox, 2015-Ohio-895, 2015
Ohio App. LEXIS 879 (2nd Dist. Mar. 13, 2015). As noted in the Report, Cox did not appeal this
decision to the Ohio Supreme Court.
Cox raises the same objection as he made on Ground Seven and it is not persuasive for
the same reason.

Ground Nine: Standard for Evaluating the Sufficiency of the Evidence

In his Ninth Ground for Relief, Cox asserted the Second District should have applied the
“no evidence” standard of Thompson v. Louisville, 362 U.S. 199 (1960), to evaluating the
sufficiency of the evidence, instead of the Jackson v. Virginia, 443 U.S. 307 (1979), standard.
The Report concluded that the two different Supreme Court cases did not adopt different
or conflicting standards (Report, ECF No. 11, PageID 1783). Cox’s Objections on this point
(ECF. No. 13, PageID 1802) do not require further analysis.

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Denial of an Evidentiary Hearing

The Objections spend some time criticizing the Report for recommending dismissal
without conducting an evidentiary hearing (ECF No. 13, PageID 1803-05, relying principally on
Townsend v. Sain, 372 U.S. 293, 313 (1963)). Townsend was decided thirty-three years before
adoption of the AEDPA in 1996 and forty-eight years before the decision interpreting the
AEDPA in Cullen v. Pinholster, 563 U.S. 170 (2011). Prior to Pinholster, this Court was
accustomed to holding evidentiary hearings in habeas corpus cases, particularly capital cases, but
that practice is now forbidden.

Certificate of Appealability

The Report concluded that reasonable jurists would not disagree with its results and Cox
should therefore be denied a certificate of appealability (ECF No. 11, PageID 1783-84). Cox
objects to this conclusion, but he does not point to any particular other “reasonable jurist” who
disagrees with the conclusions reached. The closest he comes is his citation again of Washington
v. Hofbauer, 228 F.3d 689 (6th Cir. 2000), where he says a defendant was found not guilty on the
basis of a doctor’s report that there was no penetration. As noted above, it was a jury that
returned the acquittal in that case, based on all the evidence, including the doctor’s report of what
the victim told the doctor. That is a jury conclusion on the facts, not a judge’s opinion that in
any case where there is some report which casts doubt on the element of penetration the
defendant must be acquitted.
Based on Cox’s lack of a showing that any other judge would disagree with the

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conclusions in the Report, the Magistrate Judge again recommends Cox be denied a certificate of
appealability and that the Court certify that an appeal would not be taken in good faith and
should not be permitted to proceed in forma pauperis.

November 20, 2015.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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