Cooper v. Warden, Lebanon Corr. Inst.

DONALD COOPER, Petitioner,

v.WARDEN, Lebanon Correctional Institution, Respondent.

Case No. 3:12cv00059

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

November 14, 2012

District Judge Thomas M. Rose

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS¹

I. Introduction

Petitioner Donald Cooper brings this habeas corpus case under 28 U.S.C. §2254 challenging his convictions in state court on one count of rape and one count of gross sexual imposition. He is presently incarcerated in state custody, serving a sentence of 10 years on the rape conviction plus a consecutive sentence of 18 months on the gross-sexual-imposition conviction.

This case is before the Court upon Cooper's Habeas Corpus Petition (Doc. #2), Respondent's Return of Writ (Doc. #6), and Cooper's Traverse (Doc. #9); Cooper's Motion for Leave of Court to Conduct Rule 6 Discovery (Doc. #8), Respondent's Response inOpposition (Doc. #10), Cooper's Reply (Doc. #11), and the record as a whole.

Cooper raises seven grounds for relief in his habeas petition. He seeks, in his traverse, a writ of habeas corpus to remedy "constitutional violations that are supplemented with a colorful claim of actual innocence in which he has been wrongfully convicted and sentenced...." (Doc. #9, PageID at 845). In his traverse, he "swears under the penalty of perjury that he ... never committed an offense against a female, domestic violence or otherwise, and he is most definitely not a rapist!" Id. at 844. Respondent disagrees.

II. Background

A. Trial, Verdicts, Sentence, and Direct Appeal

In May 2008, a state grand jury indicted Cooper on one count of rape that occurred on or about March 28, 2008. (Doc. #6, Exhibit 1). Several months later, the grand jury indicted Cooper on a second count of rape plus one count of gross sexual imposition; each additional count concerned the same March 28, 2008 events identified in the first indictment. Cooper pled not guilty to all three charges.

During Cooper's three-day jury trial, his counsel attempted to sway the jury under the theory that the victim consented to the sexual conduct. Defense counsel based the consent theory largely on Cooper's testimony but also on other testimony and cross-examination designed to impugn the victim's credibility. At the conclusion trial, the jury found Cooper not guilty on one count of rape but guilty on the second count of rape and gross sexual imposition. (Doc. #6, Exh. 5). In addition to his total sentence of 11½ years, the court foundCooper to be a Tier 3 sex offender under Ohio law and advised him that he must register as sex offender upon the completion of his sentence as required by certain Ohio statutes. Id., Exh. 7.

Cooper, through new counsel, filed a timely direct appeal raising three assignments of error:

1. The trial court committed prejudicial error when it failed to instruct on the lesser included offense of sexual battery, a violation of [Ohio] R.C. section 2907.03 and such failure amounted to plain error.

2. The trial court committed prejudicial error when it failed to merge the sentences imposed on the two remaining counts pursuant to [Ohio] R.C. 2941.25 and such failure amounted to plain error.

3. Appellant was denied effective assistance of trial counsel.

(Doc. #6, Exh. 9). The State of Ohio opposed Cooper's contentions.

On November 12, 2010, the Ohio Court of Appeals overruled Cooper's assignments of error, finding each meritless, and affirmed his convictions and sentence. In doing so, the Ohio Court of Appeals began with the following:

Shortly after 6:00 a.m. on March 29, 2008, twenty-year-old D.D. was on her way home from work. When she got off of the bus in downtown Dayton, she called her mother to pick her up, who told her daughter that she (the mother) did not have enough gas. Not wanting to wait for another bus, D.D. decided to walk to the Five Oaks neighborhood in which she lived.

As D.D. walked north on Main Street, approaching Helena Street, she heard a man at the bus stop across the street call out, "Hey girl. Come here." D.D. looked up and saw the man (later identified as Cooper) walking toward her. D.D. kept walking, but Cooper started walking faster, catching up to her. Cooper grabbed D.D.'s arm and asked her where she was going, insisting that he wanted to talk to her. The two talked for a couple of minutes, then D.D. told Cooper that she had to get home to her daughter.

Being only two blocks away from her home, D.D. tried to walk away, but Cooper followed her, continuing to talk. Becoming more concerned, D.D. sent a text message to her mother, asking for help. Cooper suddenly kissed D.D., who pushed him away, and repeated that she needed to get home to her child. Cooper grabbed her arm and told her, "You're not going anywhere." As Cooper dragged D.D. into an alley, she hit the send button on her phone to text her mother again.

In the alley, Cooper pushed D.D. onto her knees and shoved his penis into her mouth. Cooper then withdrew his penis and forced D.D. to masturbate him. D.D. managed to call her mother, who could hear her begging someone to leave her alone. The call was disconnected, and D.D.'s mother left the house to look for her daughter. D.D. claimed that Cooper then turned her around and pulled down her pants. D.D. testified on direct examination that Cooper vaginally raped her from behind, but on re-direct examination, she testified that Cooper anally raped her. When Cooper withdrew, D.D. ran down the alley to her home, where she told her siblings what had happened. D.D.'s mother arrived home a couple of minutes later, and the family went looking for Cooper, finding him back at the bus stop where D.D.'s ordeal began. They saw a police officer at a nearby store and reported the attack.

The officer arrested Cooper, and D.D. was taken to the hospital. She suffered from cut, swollen, and bruised lips, bruising to both arms, and an abrasion to her cervix. Cooper was indicted on two counts of rape and one count of gross sexual imposition.

Cooper testified that he had sex with D.D., but he insisted that it was consensual. He said D.D. was a prostitute and that he paid her $20 and shared some crack cocaine with her in exchange for oral sex that morning. Cooper also offered the testimony of Daphne Tillman, a drug addict and prostitute with an extensive criminal history. Tillman claimed that she knew D.D. to be a prostitute. She testified that she saw D.D. and Cooper smoking crack cocaine at the bus stop before walking together down the alley.

On rebuttal, the State offered the testimony of several police officers who stated that D.D. did not appear to be under the influence of either drugs or alcohol when they spoke to her. A detective in the vice squad was not familiar with either D.D.'s name or her face, and at the time of this offense there were no police records for D.D. for any crime, including prostitution.

A jury found Cooper guilty of gross sexual imposition and one count of rape for the act of fellatio, but not guilty of the other count of rape....

(Doc. #6, Exhibit 11, PageID at 126-28).

Having lost in the Ohio Court of Appeals, Cooper turned to the Ohio Supreme Court. Proceeding pro se, he re-framed each of his assignments of error as a proposition of law with certain additions. His first proposition of law added the phrase, "and Due Process violation"; his second added the phrase, "and Double Jeopardy violation"; the third added the phrase, "and 6th Amendment Violation." (Doc. #6, Exh. 14).

On March 16, 2011, the Ohio Supreme Court denied Cooper leave to appeal and dismissed his appeal. (Doc. #6, Exh. 15).

B. Application to Re-Open Appeal

Meanwhile back in the Ohio Court of Appeals, Cooper filed a pro se Application to Re-Open Direct Appeal under Ohio R. App. P. 26(B). "Ohio Rule of Appellate Procedure 26(B) allows defendants to 'reopen an appeal' on the basis of ineffective assistance of appellate counsel provided during the first direct appeal of right." Lopez v. Wilson, 426 F.3d 339, 340 (6th Cir. 2005) (en banc). Cooper's Rule 26(B) application asserted that his appellate counsel provided ineffective assistance for failing to raise several claims:

1. The trial court committed prejudicial error when it failed to remove a juror whom had knowledge of a prior felony offense involving appellant, a violation of his 5th and 14th Amendment due process rights to a fair trial.

2. The trial court committed prejudicial error when it failed to strike the alleged victim's testimony after she perjured herself under oath, a violation of appellant's due process and equal protection rights to a fair trial and such failure amounted to plain error.

3. Appellant was denied effective assistance of trial counsel, a violation of appellant's 6th Amendment right.

(Doc. #6, Exh. 16, 17).

On April 25, 2011, the Ohio Court of Appeals rejected Cooper's arguments and overruled his Rule 26(B) Application. (Doc. #6, Exh. 18).

Cooper filed an appeal in the Ohio Supreme Court, rephrasing his assignments of error as propositions of law. Id., Exhs. 19, 20. On August 24, 2011, the Ohio Supreme Court dismissed Cooper's appeal. Id., Exh. 21.

C. Post-Conviction Petition

Approximately one year after his convictions and sentence, Cooper filed in the trial court a pro se Petition to Vacate or Set Aside Judgment of Conviction or Sentence under Ohio Rev. Code §2953.21, which provides in part:

Any person who has been convicted of a criminal offense ... and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States ... may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief....

Ohio Rev. Code § 2953.21(A)(1)(a). Cooper's §2953.21 Petition claimed that his trial counsel provided ineffective...