Wagers v. Warden, Lebanon Corr. Inst.

GENE WAGERS, JR., Petitioner,

v.Warden, Lebanon Correctional Institution, Respondent.

Case No. 3:13-cv-031

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

February 1, 2013

District Judge Walter Herbert Rice

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Gene Wagers, Jr., to obtain release from five concurrent terms of life imprisonment he is serving in Respondent's custody after conviction in the Preble County Common Pleas Court on four counts of rape in violation of Ohio Revised Code § 2907.02(A)(1)(b), one count of rape in violation of Ohio Revised Code § 2907.02(A)(2), four counts of sexual battery in violation of Ohio Revised Code § 2907.03A)(5), and one count of disseminating material harmful to juveniles in violation of Ohio Revised Code § 2907.31(A)(3), the first nine counts carrying a sexually violent perpetrator specification (Petition, Doc. No. 2, ¶ 5, PageID 2).

Wagers pleads the following Grounds for Relief:

Ground One: Insufficient Evidence

Supporting Facts: There is no physical evidence of an abuse. The police did not even investigate the allegations for over 3 years. The alleged victim's testimony is unbelievable. There is no evidence even to support the SVP specification. Nothing was proven at all, much less beyond a reasonable doubt. This violates Due Process.

Ground Two: Ineffective Assistance of Trial Counsel.

Supporting Facts: Counsel failed to object to the Carbon-copy Indictments, SVP specs, nor did he move for bifurcation of the Guilt and Specification Phases of the Trial. Counsel failed to request a specific date instruction for the Jury on the separate counts. Counsel failed to use peremptory strikes one of which should have been a juror who worked with victim's mother. Counsel failed to object to expert witnesses' qualifications, failed to object to medical opinions which did not comport with Evid. Rules 702, 703, 704. Failed to object to improper testimony, hearsay testimony, improper bolstering, Infringement of the Presumption of Innocence Testimony, and failed to request a curative instruction. Trial Counsel also failed to object to the Retroactive Application of the Adam Walsh Act.

Ground Three: Ineffective Assistance of Trial Counsel (Outside the Record)

Supporting Facts: Trial Counsel did not inform the Petitioner of a plea bargain offered by the State, and failed to investigate and present testimony of several key exculpatory witnesses and Counsel failed to investigate and present the case notes from Children's Services and the Medical report and exam notes. This violates the Petitioner's Right to the effective assistance of Counsel, guaranteed by the Sixth Amendment of the U.S. Constitution.

Ground Four: Defective Indictment.

Supporting Facts: The Indictment contained all Carbon-copy charges, ranging over a 4-year period, with no differentiation to allow the jury to find on each separately. It contained improper SVP specifications and violated [Ohio Revised Code §] 2971.01 as it existed during the time span alleged in violation of Due Process.

Ground Five: The trial court failed to bifurcate the proceedings, in violation of Due Process.

Supporting Facts: The Trial Court, rather than adhere to statute, tried this Petitioner simultaneously on the sex offenses and Sexually Violent Predator Specifications, which resulted in structural error, and violated this Petitioner's Constitutional Right to a Fair Trial and Due Process of Law guaranteed by the 5th and 14th Amendments.

Ground Six: Erroneous Evidentiary Rulings

Supporting Facts: The Court erred in admitting and playing the interview of the alleged victim with the Child assessment Center, as well as the report of that agency, in violation of the Petitioner's 5th 6th and 14th Amendment Rights to a Fair Trial, the Confrontation Clause, and Due Process, as well as the Trial Court's refusal to grant a mistrial for violations of Evidence Rules 404, 608 and 609.

Ground Seven: Sentencing Error.

Supporting Facts: The State admitted that the error had occurred, yet the Court disregarded this admission and sentenced the Petitioner to five life terms. The Court further erred in using Law that was not even in force at the time of the alleged offenses. When a Court knowingly imposes a sentence in error, the Petitioner's Constitutional Rights to a Fair Trial and the Due Process of Law, guaranteed by the 5th and 14th Amendments of the U.S. Constitution, are violated.

Ground Eight: Cumulative Effect

Supporting Facts: All of the errors committed at Trial and Sentencing rose to the level of a violation of Due Process and the denial of a fair Trial, guaranteed by the 5th and 14th Amendments.

(Petition, Doc. No. 2, PageID 8-16.)

The case is before the Court for initial review under Rule 4 of the Rules Governing § 2254 Cases which provides in pertinent part:

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.

Because Petitioner raised his claims in the state courts and the state appellate court decisions are publicly available, the Court is able to consider them in its Rule 4 analysis.

Analysis

Ground One: Insufficient Evidence

In his First Ground for Relief, Wagers asserts he was convicted on insufficient evidence. On direct appeal to the Ohio Twelfth District Court of Appeals, he raised this claim, along with a claim that the conviction was against the manifest weight of the evidence, in his Fifth Assignment of Error. The court of appeals decided this assignment of error as follows:

[*P69] Assignment of Error No. 5:

[*P70] "APPELLANT'S CONVICTIONS WERE BOTH AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WERE NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION."

[*P71] Next, appellant argues his convictions were against the manifest weight of the evidence and were not supported by sufficient evidence. Whether the evidence presented is legally sufficient to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997 Ohio 52, 678 N.E.2d 541. An appellate court, in reviewing the sufficiency of the evidence supporting a criminal conviction, examines the evidence in order to determine whether such evidence, if believed, would support a conviction. State v. Carroll, Clermont App. Nos. CA2007-02-030, CA2007-03-041, 2007 Ohio 7075, P117. After examining the evidence in a light most favorable to the prosecution, the appellate court must determine if "any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id.

[*P72] Unlike a sufficiency of the evidence challenge, a manifest weight challenge concerns the inclination of the greater amount of credible evidence offered in a trial to support one side of the issue rather than the other. Carroll at P118. An appellate court considering whether a conviction was against the manifest weightof the evidence must review the entire record, weighing the evidence and all reasonable inferences, and consider the credibility of witnesses. State v. Good, Butler App. No. CA2007-03-082, 2008 Ohio 4502, P25, citing State v. Hancock, 108 Ohio St.3d 57, 2006 Ohio 160, P39, 840 N.E.2d 1032. Under a manifest weight challenge, the question is whether, in resolving conflicts in the evidence the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed. Good at P25.

[*P73] Appellant first argues the evidence was insufficient to support the SVP specifications. We have previously addressed and resolved this issue in appellant's first and second assignments of error.

[*P74] Next, appellant argues there was insufficient evidence of "sexual conduct" to support convictions of rape and sexual battery, pursuant to R.C. 2907.01. Specifically, appellant argues the testimony of J.W., wherein she described that appellant stuck "his dick in her butt" and "put his hands in her crotch," were not sufficient. R.C. 2907.01(A) defines "sexual conduct" as "vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse." Appellant cites no authority for his proposition, and it is unclear as to why appellant argues the above two acts, as described by J.W., who testified as a 13-year-old and who was between the ages of six and ten when the acts occurred, do not constitute the insertion, however slight of any part of the body into the vaginal or anal cavity of another. Appellant's assertion is wholly without merit.

[*P75] Appellant also claims his convictions were against the manifest weight of the evidence because the only evidence that supported the verdict were J.W.'s allegations of abuse that occurred several years prior to her testimony. Appellant contends that the remainder of the testimony "supported the defense."

[*P76] At trial, J.W. testified that she was six years old and living in a house at 47 1/2 North Main Street in Camden, Ohio, when appellant, her biological father, first sexually abused her. She stated that appellant told her brother to go take a bath and "not come out until he told him to." Then, appellant took J.W. into his bedroom and "stuck his dick in [J.W.'s] butt." J.W. was on herstomach when it happened. Appellant stopped when someone knocked on the front door or rang the doorbell. J.W. testified that her mother was in the hospital "getting ready to have [her sister]." She also

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