Bennett v. Warden

782 F.Supp.2d 466

James L. BENNETT, Petitioner,

v.WARDEN, LEBANON CORRECTIONAL INSTITUTE, Respondent.

Civil Action No. 2009–cv–00622 (WOB).

United States District Court,S.D. Ohio,Western Division.

March 15, 2011.

James L. Bennett, Lebanon, OH, pro se.Diane Duemmel Mallory, Ohio Attorney General, Elizabeth A. Matune, Columbus, OH, for Respondent.

ORDER

WILLIAM O. BERTELSMAN, District Judge.

This matter is before the court upon the Report and Recommendation of the United States Magistrate Judge (Doc. 24), and having considered de novo those objections filed thereto by petitioner (Doc. 28), and the court being sufficiently advised,

IT IS ORDERED that:

(1) The objections to the Report and Recommendation of the Magistrate Judge be, and are, hereby OVERRULED; and that the Report and Recommendation of the Magistrate Judge be, and it is, hereby ADOPTED as the findings of fact and conclusions of law of the court. The Court ISSUES a conditional writ of habeas corpus on Ground Two of Petitioner's petition, as well as the ineffective assistance of counsel claims alleged in Grounds Four and Five pertaining to establishing “cause” for the procedural default of the claim alleged in Ground Two in the state courts. The State of Ohio shall release Petitioner from custody unless, WITHIN NINETY (90) DAYS AFTER ISSUANCE OF THE WRIT, the State of Ohio vacates the inappropriate multiple convictions and resentences Petitioner in accord with this Order;

(2) Petitioner's motion for extension of time (Doc. 26) be, and is hereby, GRANTED NUNC PRO TUNC;

(3) For the reasons stated in the Report and Recommendation, Petitioner's motion for a certificate of appealability be, and is hereby, DENIED as to claims alleged in Grounds One, Three, Four and Six through Nine of the petition; and

(4) A separate Judgment shall enter concurrently herewith.

REPORT AND RECOMMENDATION

J. GREGORY WEHRMAN, United States Magistrate Judge.

Petitioner, an inmate in state custody at the Lebanon Correctional Institution in Lebanon, Ohio, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The case is before the Court on the petition (Doc. 1); respondent's “Answer/Return Of Writ” with exhibits (Doc. 13); and petitioner's “traverse” in reply to the return of writ (Doc. 22).

Background

In the petition, petitioner challenges his convictions in two criminal cases, Case Nos. 2003–2143 and 2004–2008, which were tried in the Brown County, Ohio, Court of Common Pleas.

In Case No. 2003–2143, the indictment charged petitioner with ten counts of sexual battery in violation of Ohio Rev.Code § 2907.03(A)(5) and fifty counts of rape in violation of Ohio Rev.Code § 2907.02(A)(1)(b); the victim was identified in the indictment as “C.H.” (Doc. 13, Ex. 1). Prior to trial, petitioner's counsel filed a motion to dismiss the indictment on the ground that petitioner had “not been brought to trial within two hundred and seventy days following his arrest, as required by R.C. §§ 2945.73(B) and 2945.71(C)(2).” ( Id., Ex. 2). After a hearing, the motion was denied. ( Id., Ex. 3). The matter proceeded to trial before a jury, which found petitioner guilty on all of the rape charges and four of the sexual battery counts. ( Id., Ex. 4). In a “Judgment Entry Of Sentence” filed on September 1, 2004, petitioner was found to be a “sexual predator” and was sentenced to an aggregate prison term of forty-five (45) years, which consisted of consecutive nine-year prison terms for five of the rape offenses.¹ ( Id., Ex. 5).

In Case No. 2004–2008, the indictment charged petitioner with two counts of rape in violation of Ohio Rev.Code § 2907.02(A)(2) (Count I) and Ohio Rev.Code § 2907.02(A)(1)(c) (Count II); the victim was identified in the indictment as “L.G.” ( Id., Ex. 6). Defense counsel in Case No. 2003–2143 also served as petitioner's trial counsel in Case No. 2004–2008. The matter, however, was tried separately from Case No. 2003–2143. At the close of the trial, the jury found petitioner guilty as charged. ( Id., Ex. 7). In a “Judgment Entry Of Sentence” filed on September 1, 2004, the two rape counts were merged as “allied offenses of similar import,” and petitioner was sentenced to a nine (9) year mandatory prison term to be served consecutively to the sentence imposed in Case No. 2003–2143. ( Id., Ex. 8).

With the assistance of new counsel for appeal purposes, petitioner filed a timely consolidated notice of appeal from the trial court's judgment entries in the two cases with the Ohio Court of Appeals, Twelfth Appellate District. ( Id., Ex. 9). Three assignments of error were raised in the appellate brief filed by counsel on March 23, 2005:

1. The trial court erred in over[r]uling the defendant's motion to dismiss for failure to bring the defendant to trial within the time set forth in Ohio Revised Code Section 2945.71.

2. The trial court erred in allowing the defendant to be charged with ten counts of sexual battery and forty [sic] counts of rape in which each count has identi[c]al claims and lacks any specificity.

3. The trial court erred in overruling the defendant-appellant's motion for a directed verdict [because the “evidence against the defendant-appellant was insufficient to support a conviction beyond a reasonable doubt and/or the manifest weight of the evidence does not support a conviction beyond a reasonable doubt and therefore the defendant-appellant should have been acquitted of all charges against him.”]

( Id., Ex. 10). Nearly seven months later, in October 2005, petitioner filed a pro se “addendum,” requesting leave to include another claim in support of his speedy trial argument as an additional assignment of error. ( Id., Ex. 12).²

On November 8, 2005, the Ohio Court of Appeals overruled the three assignments of error asserted in the brief filed by counsel and affirmed the trial court's judgment; thereafter, in a separate entry filed December 26, 2005, the presiding appellate judge also denied petitioner's pro se motion to file the additional assignment of error. ( Id., Exs. 14, 15).³

In the direct appeal decision affirming the trial court's judgment, the Ohio Court of Appeals made the following factual findings, which are presumed correct under 28 U.S.C. § 2254(e)(1),⁴ based on the evidence presented at trial regarding the circumstances giving rise to the criminal charges and convictions in Case No. 2003–2143:

The evidence showed that appellant began living with the mother and her two daughters in 1996. C.H., the younger daughter, was born on March 24, 1990. At trial, C.H. testified that when she was eight years old, appellant inserted his finger into her vagina and “moved it around.” She stated that this offense took place in the bathroom of their residence on Market Street in Aberdeen, Brown County, Ohio. She said appellant would engage in this conduct “three to four times a week.” Appellant also digitally penetrated C.H. in the downstairs living room of the Market Street residence.

The family moved to a different residence on High Street in Aberdeen, Brown County, Ohio, in 2000. C.H. testified that appellant began performing cunnilingus upon her in addition to the continued digital penetration of her vagina when she was ten years old. C.H. said that these events occurred in the evening in both her bedroom and living room.

After a brief stay in Maysville, Kentucky, the family moved to a residence on Mt. Orab Pike, Georgetown, Brown County, Ohio. C.H. stated that the sexual abuse only occurred in her bedroom at that location.

The family then moved to Eastland Mobile Home Park located in Georgetown, Brown County, Ohio. In that residence, C.H. testified that appellant continued to sexually abuse her, both digitally and by performing cunnilingus upon her, in various locations including the bedroom, living room, and family room. Again, the frequency of these events was three to four times a week until appellant moved out on April 30, 2003.

C.H. provided further testimony recalling a specific date when appellant “put his finger in [her] and his tongue and moved them around.” These incidents took place on March 22, 2003, two days before C.H.'s 13th birthday. C.H. also testified to a separate, specific incident during which the appellant inserted a red dildo into her vagina.

The jury returned guilty verdicts on Counts 1–4 (sexual battery, cunnilingus with C.H. between March 24, 2003 and April 30, 2003) and 11–60 (all rape counts that occurred between January 1, 1997 and March 23, 2003). At trial, appellant was found not guilty on one count of sexual battery, cunnilingus after March 24, 2003; and not guilty on all five counts of sexual battery, digital penetration of C.H. after March 24, 2003.

( Id., Ex. 15, pp. 3–4).

Petitioner next pursued a timely pro se appeal to the Ohio Supreme Court. ( See id., Ex. 16). In his memorandum in support of jurisdiction, he alleged the following propositions of law:

1. The use of a nunc pro tunc judgment entry to extend the time in which to initiate trial does not correct the violation of the defendant's constitutional and statutory rights to speedy trial.

2. An indictment charging ten counts of sexual battery and forty [sic] counts of rape which did not differentiate between counts, coupled with a bill of particulars and evidence at trial which did not differentiate between the counts[,] violate the Fifth Amendment due process right to notice of charges, where the evidence alleges merely a general pattern rather than sep[a]rate incidents.

3. The absence of evidence going to each essential element of each specific charged offense renders a resulting conviction violative of due process of law.

4. Where appellate counsel fails to raise significant and obvious issues of constitutional magnitude which hold a reasonable probability of success on appeal, such counsel is ineffective within the meaning of the Sixth and Fourteenth Amendments.

5. Where trial counsel fails to make proper objections to...