Maloney v. Robinson

LINDRELL E. MALONEY, Petitioner, v. NORM ROBINSON, Warden, London Correctional Institution Respondent.

Case No. 3:19-cv-086

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

March 27, 2019

District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is an action for writ of habeas corpus brought pro se by Petitioner Lindrell Maloney to obtain relief from his convictions in the Montgomery County Court of Common Pleas for sexual assaults on his daughter who was under thirteen years old at the time of the offenses.

Under Rule 4 of the Rules Governing § 2254 Cases, the clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

Habeas corpus cases filed at the Dayton location of Court are randomly assigned to a District Judge and then referred to the undersigned pursuant to General Order Day 13-01.

Litigation History

Petitioner was indicted by a Montgomery County grand jury on March 10, 2016, on two counts of rape of a child under thirteen and two counts of sexual battery committed by the natural parent of the victim.¹ The victim in the case is N.S., Maloney's biological daughter. Maloney waived a jury and was tried by the court and convicted on all counts. Represented by new counsel, Maloney appealed, raising two assignments of error: First, that the evidence presented at trial was insufficient to sustain the convictions and that they were against the manifest weight of the evidence. Second, that Maloney received ineffective assistance of trial counsel because counsel (a) failed to subpoena the victim's school and daycare records, (b) failed to convey a plea offer, (c) advised Maloney to waive a jury, (d) failed to subpoena expert testimony concerning DNA analysis and results.

After the Second District decided the case, Maloney filed an Application to Reopen the appeal to show ineffective assistance of appellate counsel for counsel's failure to raise as assignments of error ineffective assistance of trial counsel for (1) failure to object to the State's suppression of Maloney's DNA results from the Bureau of Criminal Identification; (2) failure to present testimony of Amy Dallaire (lab tech); (3) failure to object to unqualified opinionated testimony of state expert Kaiser [and] the trial court's abuse of discretion in allowing that testimony; and (4) failure to object to State['s] failure to present testimony of witness with exculpatory evidence. Maloney did not appeal from the denial of this application (Petition, ECFNo. 1, PageID 4).

Maloney filed his Petition in this Court March 22, 2019. He pleads the following grounds for relief:

Ground One: Petitioner's conviction is in violation of the Due Process of Equal Law and Fundamental Fairness as guaranteed by the 5^th and 14^th Amendment[s], United States Constitution because the evidence was insufficient to support conviction on any of the charges in the indictment.

Supporting Facts: Conviction is in violation of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Victim's testimony is not supported by any medical, physical, DNA or any other scientific evidence. The only other available witness besides victim and Petitioner, and provided testimony that contradicted victim testimony.

Ground Two: Petitioner's constitutional right of effective assistance of trial counsel, violated as guaranteed by the 6^thAmendment, United States Constitution, because of counsel deficient unreasonable performance by failing to 1) reasonably investigate and prepare for trial; 2) failed to communicate plea deal to Petitioner; 3) improperly advised Petitioner to waived [sic] a jury trial; 4) failed to subpoena expert testimony concerning DNA analysis and results; 5) failed to file motion to suppress Petitioner's statements to police without counsel, conviction in violation of Strickland v. Washington, 466 U.S. 668, 786-688, 104 S.Ct. 2052 (1984).

Ground Three: Petitioner's constitutional right of effective assistance of appellate counsel as guaranteed by the 6^th Amendment, United States Constitution, violated by counsel's failure to raise plain and obvious constitutional issues on direct appeal.

Supporting Facts: 1) Trial counsel ineffectiveness for failing to object to State's failure to disclose DNA results and DNA finding from B.C.I.; 2) Trial counsel failed to object to State's failure to present Amy Dallaire (lab tech); 3) Trial counsel failed to object to State failure to present the testimony [of] psychiatric [sic] Liz Roock and Dr. Charlotte Hausa; 4) Trial counsel failed to subpoena the cell phone records of Jean Smith and Petitioner.

(Petition, ECF No. 1, PageID 5-8.)

Analysis

Ground One: Strength of the State's Evidence

In his First Ground for Relief, Petitioner claims there was insufficient evidence presented at trial to support a conviction and that his conviction is against the manifest weight of the evidence.

Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). A weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6^th Cir. 1986). The Court cannot, therefore, consider on the merits the second part of the First Ground for Relief.

However, an allegation that a verdict was entered upon insufficient evidence states a claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6^th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6^th Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[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.

Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6^th Cir. 2006); United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007).

In cases such as Petitioner's challenging the sufficiency of the evidence and filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner challenges the constitutional sufficiency of the evidence used to convict him, we are thus bound by two layers of deference to groups who might view facts differently than we would. First, as in all sufficiency-of-the-evidence challenges, we must determine 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In doing so, we do not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993). Thus, even though we might have not voted to convict a defendant had we participated in jury deliberations, we must uphold the jury verdict if any rational trier of fact could have found the defendant guilty after resolving all disputes in favor of the prosecution. Second, even were we to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas review, we must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable. See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6^th Cir. 2009). In a sufficiency of the evidence habeas corpus case, deference should be given to the trier-of-fact's verdict under Jackson and then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541 F.3d 652 (6^th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6^th Cir. 2011)(en banc); Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, "a court may sustain a conviction based upon nothing more than circumstantial evidence." Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6^th Cir. 2010).

The Second District's decided this claim on the merits, holding:

[*P36] According to Maloney, while "a rape victim's testimony, if believed, may be adequate to meet the State's burden of production of trial, in this case, we must ask ourselves: What are we to believe? The victim in this case gave inconsistent versions of what happened, on what day, and how it happened." According to Maloney, N.S.' testimony in the video of her CARE House interview and her trial testimony are inconsistent. According to Maloney, "N.S. has accused her Father of raping her and she cannot even explain how it happened. She initially told her step-mother that he used his finger. She told the hospital that he used his finger. She told the [CARE] House interviewer that he used his finger. She adamantly told the trial court that he used his thumb." Maloney asserts that N.S. told the CARE House interviewer that K.W. entered the living room in the course of

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