Dudley v. Bunting

RONALD E. DUDLEY, Petitioner,

v.JASON BUNTING, Warden, Respondent.

Case No. 3:13-cv-058

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

July 16, 2013

District Judge Timothy S. Black

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Ronald Dudley under 28 U.S.C. § 2254. Dudley seeks release from the twenty to fifty year term of imprisonment he is serving in Respondent's custody upon his conviction by a jury in the Montgomery County Common Pleas Court on counts of rape, kidnapping, attempted rape, and gross sexual imposition (Petition, Doc. No. 2, ¶¶ 1, 3, & 4, PageID 84).

Dudley pleads the following Grounds for Relief:

Ground One: Denial of Effective Assistance of Counsel at Trial

Supporting Facts: The Second District Court of Appeals has already determine[d] the first prong of Ineffective Assistance test in determining whether counsel was Ineffective at trial. By Stating Defense Counsel should have filed a motion to suppress. Petitioner now provides in his writ of Habeas Corpus the second prong of the Ineffective Assistance test. Petitioner now demonstrates the prejudice portion of the Ineffectiveness in this case, Counsel Prejudiced defendant at trial by failing to file a motion to Suppress Statements that derived from a Illegal Custodial Interrogation. The results of Counsel failing to file a Motion to Suppress Statements that were used against defendant at the closing, and at the Opening,as well as all throughout the trial Violating defendant's right against (Self Incrimination) violation of the 5th Amendment of the United States Constitution.

Ground Two: Conviction obtained by violation of the protection against Double Jeopardy.

Supporting Facts: Trial counsel rendered Ineffective Assistance of counsel by failing to object to the Consecutive Sentences, trial court committed reversible error by Sentencing Petitioner on separate sentences [f]or Rape and Kidnapping in violation of the protections against double jeopardy. Ohio Law has settled this conflict with recent cases dealing with the conduct of defendant's overruling prior decisions dealing with consecutive sentences as in this case.

Ground Three: Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant.

Supporting Facts: Montgomery County Prosecutors office violated Petitioners Constitutional right by destroying all favorable evidence to defendant in bad faith. Additionally, the Prosecutors office failed to disclose favorable evidence from the Miami Crime Lab DNA results on March 24th 2008, this DNA results were not disclosed to defendant until August 8th 2008 two days before Petitioner went to trial on August 11th 2008. Defendant was unable to put on a proper defense as all witnesses had either did [sic] or whereabouts were unknown due to prosecutors negligence of destroying all the evidence within the property of the Montgomery County Sheriff office, after being advised to hold all evidence.

Ground Four: Conviction obtained by pre-indictment delay in violation of the 5th and 6th Amendment[s] of the United States Constitution.

Supporting Facts: When the Montgomery County Prosecutors office issued an Indictment against Petitoner [sic] 11 years after the commission of the crime. Petitioner was prejudiced due to all the protections within PreIndictment delay to Include: Lost [sic] of Memory, Evidence Destroyed; Witnesses deceased: Anxiety Caused Unable to put on a proper defense due to Prosecutor's negligence in this case, Detectives failed to get Involved: Chain of Custody never established.

Ground Five: Denied access to the Due Process and Equal Protection Clause of Ohio laws.

Supporting Facts: The court of Appeals erroneously denied defendant access to file his Application for 26(B) to re-open his appeal, The court of appeals decision was based due to a Clerical Error/incorrect case number. The merits of the brief of defendant's application were all correct and in compliance with appellate rules. The Second district court of appeals denied petitioner access for his incorrect case number, prejudiced all of defendant's [eight] issues his counsel failed to raise on direct appeal. Defendant raised: (1) Trial court abuse of discretion for failing to grant a continuance when the state supplied new DNA test result: (2) Trial court erred when it imposed court cost in its sentencing entry, failing to orally advise defendant: Petitioner was denied exculpatory evidence by the state: (3) Trial court erred by dismissing Petitioner Pre Indictment delay Motion: (4) Prosecution destroyed all evidence in this case: (5) Petitioner was denied effective assistance of counsel by the cumulative error of trial counsel. (6) Trial court abused its discretion by overruling Petitioners Motion for new trial based Blood Test, which disclosed a strong probability the result would have been different. (7) Petitioner was denied due process when the state failed to prove chain of custody. Ground (2) has been reversed and remanded for Re-Sentencing, where Petitioner cost was vacated on 12-12-12.

Ground Six: Denied protection of Miranda when Montgomery County Detective performed a [sic] Illegal Custodial Interrogation.

Supporting Facts: Petitioner was in custody when Montgomery County detective Olinger performed a Illegal Interrogation on Petitioner. The statements petition made to Detective was central to the States Case, Petitioner constitutional Protections were violated when detective failed to provide any warnings as required in Miranda. This is a violation that all Petitioners are entitled to when Custodial Interrogations are administered. The Second District Court of Appeals acknowledge Miranda violation, Yet failed to reverse petitioners case for said violations, as the court determined harmless error, Petitioner asserts that ruling denied Petitioner constitutional right to protection of Law in Ohio.

Ground Seven: Petitioner was denied right to a fair trial, and Equal Protection in violation of his Constitutional Rights provided with the Sixth and Fourteenth Amendment[s] to the United States Constitution.

Supporting Facts: The State of Ohio failed to establish proper chain of Custody in this case, as Petitioner was denied his right to a fair trial as a result of the trial court never establishing the first authentic beginning of the Chain of Custody. Petitioner claims this denial resulted in the State of Ohio failing to Protect his Constitutional Rights on appeal along with his right to equal protection of the laws.

(Petition, Doc. No. 2, PageID 87-88.)

Procedural History

On November 28, 1994, a sixteen-year-old young woman, B.C.,¹ was raped in Dayton in the vicinity of the Ridge Avenue bridge over the Stillwater River. Paramedics took her to nearby Grandview Hospital where Dr. Lisa Ward collected vaginal swabs, vaginal smears, and a vaginal aspirate which she placed in a sexual assault kit. State v. Dudley, 2010 Ohio 3240, ¶ 13, 2010 Ohio App. LEXIS 2749 (2nd Dist. July 9, 2010). Because B.C. did not know her assailant and there were no suspects, the case became inactive and eventually the physical evidence other than the assault kit was destroyed.

However, in 2003 the Miami Valley Regional Crime Laboratory ("MVRCL") which had custody of the sexual assault kit, submitted sample from a number of such kits to a private lab for DNA testing. The lab was able to obtain a male DNA profile and in June 2005 MVRCL received notice that Dudley matched the sperm fraction from B.C.'s vaginal swab. Id. at ¶ 17.

Dudley was indicted by the Montgomery County Grand Jury in September, 2005. After extensive motion practice, the case was tried in August, 2008, and Dudley was found guilty of one count of rape, one count of kidnapping, two counts of attempted rape, and one count of gross sexual imposition. On direct appeal, the Second District affirmed the convictions but remandedfor resentencing. State v. Dudley, supra. The Ohio Supreme Court declined both parties' requests for further review. State v. Dudley, Case No. 2010-1458 (Oct. 27, 2010)(unpublished, copy of slip opinion at Doc. No. 10-2, PageID 678). While the appellate process was ongoing, Dudley filed a motion for new trial which was denied August 7, 2009, and a petition for post-conviction relief which was denied July 29, 2009. Dudley appealed from the denial of new trial, but the court of appeals affirmed September 3, 2010. On February 7, 2011, Dudley filed an application for reopening his direct appeal under Ohio R. App. P. 26(B) which was denied on March 23, 2011. The Ohio Supreme Court declined further review.

At resentencing on December 21, 2010, the trial court merged the two attempted rape and one gross sexual imposition convictions with the rape conviction and sentenced Dudley to ten to twenty-five years on each of the rape and kidnapping charges with the time to be served consecutively. The court of appeals affirmed on all issues relevant to this habeas corpus case and the Supreme Court again declined further review.

Dudley first filed for a writ of habeas corpus in this Court in Case No. 3:11-cv-349 on October 6, 2011. That case was dismissed without prejudice for lack of exhaustion of available state court remedies. The present case was then filed February 18, 2013.

Analysis

For the convenience of the reader in making cross-references, the Grounds for Relief are dealt with in the order that both Respondent and the Petitioner have argued them.

Ground Five: Denial of Due Process and Equal Protection on Appeal

In his Fifth Ground for Relief, Dudley asserts the Second District Court of Appeals denied him due process and equal protection of the laws when it refused to consider his Ohio App. R. 26(B) application on the merits because he had filed it under the wrong case number.

The relevant filing, which Dudley asks this Court to review, is a document entitled "Def...