McClellan v. May

WILLIAM P. McCLELLAN, Petitioner, v. WARDEN HAROLD MAY^[1], Respondent.

No. 5:19CV1836

United States District Court, N.D. Ohio, Eastern Division

September 30, 2022

MEMORANDUM OF OPINION AND ORDER

[Resolving ECF No.1]

Benita Y. Pearson United States District Judge

Pending before the Court is Pro Se Petitioner William P McClellan's request for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. In opposition Respondent Lyneal Wainwright, in his capacity as Warden of the Marion Correctional Institution in Marion, Ohio, filed a Return of Writ (ECF No. 6). Petitioner failed to file a Traverse, despite the Court granting him additional time to do so. See non-document Orders 12/6/2019 and 1/7/2020 granting ECF Nos. 9, 10.^[2] Having reviewed the parties' filings, exhibits, and the applicable law, the Court denies Petitioner's request.

I. Background

A. State Court Conviction

The Court of Appeals of Ohio, Fifth Appellate District for Stark County (the “state appellate court”) provided the following binding factual findings on direct appeal^[3]:

[*P2] Appellant was indicted and convicted of raping a seven year old child, A.B., the daughter of Amanda Nutt, Appellant's cousin, while he was serving as a baby sitter.

[*P3] Ms. Nutt and her husband made arrangements for Nicole Wallace, Appellant's girlfriend, to watch their children while they were at work. Ms. Wallace helped the older children get ready for school and then remained home with Ms. Nutt's infant daughter until Ms. Nutt or her husband arrived home. Appellant would often accompany Ms. Wallace and tend to his and Ms. Wallace's daughter while Ms. Wallace cared for Ms. Nutt's children. Appellant would watch the children if Ms. Wallace was unavailable. January 25, 2017 was one of the dates that Appellant watched the children without Ms. Wallace present.

[*P4] On January 25, 2017 Appellant sent all of the children to school with the exception of A.B.. He told A.B. that she was going to stay home and help him care for J.R.. Once the other children had left for school Appellant directed A.B to go to the couch, lie down on her belly and pull her pants and underwear down to her ankles. At that point he sexually assaulted A.B. and ejaculated on her buttocks.

[*P5] For reasons not explained, Appellant called Ms. Nutt and Ms. Wallace and told them that A.B. could not find her shoes and was going to stay home from school. Ms. Nutt insisted that A.B. had plenty of shoes and that Appellant was to take her to school. Appellant complied and delivered A.B. to school at 9:54 AM.

[*P6] A.B. came home after school and went upstairs to change. She was trembling, so her father asked her what happened. She described the assault and Mr. Nutt relayed the same to Ms. Nutt. Ms. Nutt took A.B. to Mercy Medical Center at the recommendation of law enforcement and then to Akron Children's Hospital. [*P7] Penny Daly, social worker at Akron Children's Hospital, met the family and began the protocol required for an allegation of sexual assault of a child. Ms. Daly taped an interview of A.B. who repeated the allegations that she previously explained to her mother. Thereafter a nurse practitioner, Megan Dahlheimer, recommended a physical exam and collection of a sexual assault kit. A.B.'s underwear, purple and black long sleeve shirt and purple stretch jeans were collected by law enforcement and a sexual assault kit was collected.

[*P8] Detective Joseph Mongold of the Canton Police Department was assigned to investigate the allegations of A.B. He visited A.B's. school and learned she came in late on January 25, 2017. He went to Appellant's home on March 17, 2017 to speak with Appellant but Appellant was watching his infant daughter. Instead, Appellant agreed to come to the police station on March 20, 2017 where he participated in a videotaped interview. During that interview Appellant admitted sodomizing A.B. His description of the offense matched in all significant details with the story provided by A.B..

[*P9] As part of the investigation of the alleged sexual assault, DNA was collected from the clothing of A.B.. That DNA and Appellant's DNA were delivered to the Ohio Bureau of Criminal Investigation. A test for male specific DNA, Y-STR, was completed on A.B.'s clothing at 25 different locations. Erika Jimenez, an analyst in the DNA Unit, testified that she was able to obtain a profile on 19 of those locations and all 19 were consistent with Appellant's DNA.

[*P10] The Stark County Grand Jury indicted Appellant on one count of rape, in violation of R.C. 2907.02 (A)(1)(b), a felony of the first degree. Because the victim was under the age of 10, the count carried a potential imprisonment term of life without parole. Appellant initially pled not guilty and then filed a motion to plead not guilty by reason of insanity and requested a competency evaluation. The evaluator found Appellant competent to stand trial and the motion to plead not guilty by reason of insanity was withdrawn; the plea of not guilty remained and the case was set for trial.

[*P11] On August 16, 2017 Appellant filed a motion to suppress his confession. The motion was overruled but certain portions of the statement were deemed inadmissible. The Appellee played Appellant's recorded confession at trial with the appropriate edits.

[*P12] On September 8, 2017 Appellant filed a motion in limine to prohibit any reference to prior convictions from 2000 and 2006 involving rape and sexual imposition. Appellant also requested that the Appellant's comments regarding comparison of the victim's genitals to his own daughter's genitals be prohibited. The State complied and made no reference to either of those issues during trial.

[*P13] Prior to the commencement of the jury trial the victim was questioned by the trial court for competency. The trial court found that A.B. understood the court's questions and the difference between the truth and a lie and found her competent to testify. Appellant raised no objection to A.B.'s competency during this hearing or the trial.

[*P14] Also prior to trial an Arnold hearing was conducted to address the admissibility of statements made by A.B. to the social worker, Penny Daly and Megan Dahlheimer, the nurse practitioner. The trial court ruled that Daly could testify to the statements made by A.B. because they were made for the purpose of medical diagnosis and treatment, but nurse Dahlheimer could not give an opinion regarding whether the victim was sexually abused. While Ms. Daly did testify, the Appellee also played for the jury the videotaped interview of A.B. as conducted by Ms. Daly. Nurse Dahlheimer did not testify.

[*P15] Appellant did not object to playing the videotape of A.B. for the jury until that point in the tape where A.B. made statements regarding prior instances of abuse by Appellant. The trial court dismissed the jury and heard argument from counsel regarding whether the full tape should be played. After reviewing the video, the medical records, and the testimony of Penny Daly concerning the disclosures made to her during the interview of A.B., the trial court allowed the tape to be heard by the jurors after a limiting instruction and allowed the defense the opportunity to recall and question the victim about those other acts.

[*P16] Appellant moved for acquittal after the state rested and, after that motion was overruled, Appellant rested without presenting witnesses or recalling the victim. The jury was instructed, completed its deliberations and found Appellant guilty. Appellant returned to court on September 15, 2017 and was sentenced to life in prison without the possibility of parole.

State v. McClellan, 2018-Ohio-3355, ¶¶12-16 (ECF No. 6-1 at PageID #: 175-97).

B. Post-Conviction Procedural History

Petitioner filed a timely notice of appeal to the state appellate court. Petitioner raised the following four assignments of error:

(1) The trial court erred by finding A.B., a child under the age of ten, was competent to testify;

(2) Appellant's convictions were against the sufficiency and manifest weight of the evidence;

(3) The trial court erred by admitting into evidence the statements made by A.B. to Penny Daly because the statements were not made for the purposes of medical diagnosis or treatment; and (4) The trial court erred by admitting into evidence portions of the video that introduced other acts evidence in violation of Rule 404(B) of the Ohio Rules of Evidence.

ECF No. 6-1 at PageID #: 104.

In August 2018, the state appellate court overruled all four of Petitioner's assignments of error and affirmed the judgment of the trial court. ECF No. 1 at PageID #: 2. Petitioner subsequently filed a timely notice of appeal with the Ohio Supreme Court. ECF No. 6 at PageID #: 42. Petitioner set forth the aforementioned assignments of error as propositions of law in support of jurisdiction. Id. In December 2018, “the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4).” Id.

Petitioner timely filed an Application for Reopening (“App. R. 26(B)”) his direct appeal based on allegations that his appellate counsel had provided ineffective assistance by failing to raise the following arguments:

(1) Appellate counsel failed to raise ineffective assistance of trial counsel for failure to object to fundamental elementary trial procedures

(2) Appellate counsel was ineffective when he failed to raise trial counsel's failure to appropriate funds for an expert in false confessions, violating Appellant's right to due process and a fair trial provided by the United States, and Ohio Constitution.

(3) Appellate counsel was ineffective when he failed to raise trial counsel's ineffectiveness for failing to ask the court for appropriated funds

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