Wilson v. Warden, Pickaway Corr. Inst.

F. LEON WILSON, Petitioner, v. WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:20-CV-1913

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

January 8, 2021

CHIEF JUDGE ALGENON L. MARBLEY

Magistrate Judge Elizabeth P. Deavers

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Traverse, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that this action be DISMISSED.

I. FACTS AND PROCEDURAL HISTORY

Petitioner challenges his convictions after a jury trial in the Delaware County Court of Common Pleas on three counts of gross sexual imposition with specifications. The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶2} On July 17, 2015, the Delaware County Grand Jury indicted Wilson on three counts of gross sexual imposition in violation of R.C. 2907.05. Counts 1 and 2 pertained to E.C., four years old, and Count 3 pertained to K.P., seven years old. Each count included a school safety zone specification (R.C. 2941.143).

The charges arose from separate incidents between Wilson and E.C. and Wilson and K.P. while at school. Wilson was their chess teacher.

{¶3} On April 9, 2015, E.C. told her parents her chess teacher touched her, demonstrating the touch by placing her hand on top of her clothes between her legs and moving her hand up and down. E.C. told her forensic interviewer the same story.

{¶4} Following Wilson's arrest, which was publicized in the press, K.P.'s father, asked K.P. if anything had happened to her since she had been a student in Wilson's chess class in February and March 2015. K.P. stated it happened once. K.P. told her forensic interviewer that Wilson asked her for permission to touch her vagina and when she gave him permission, he rubbed her vagina over her clothing.

{¶5} On August 31, 2015, Wilson filed a motion to sever Counts 1 and 2 from Count 3. A hearing was held on September 21, 2015. By judgment entry filed September 24, 2015, the trial court denied the motion.

{¶6} On December 5, 2015, Wilson filed a motion for competency hearings of E.C. and K.P. prior to either being permitted to testify. A hearing was held on January 4, 2016. The state indicated it would not be calling E.C. as a witness. The trial court conducted an examination of K.P. and determined K.P. to be competent to testify.

{¶7} On January 4, 2016, Wilson filed a motion to compel confrontation, objecting to the playing of E.C.'s videotaped forensic interview during the trial. A hearing was held on February 11, 2016.

{¶8} On January 21, 2016, Wilson filed a supplemental motion on the issuance of severance. By judgment entry filed February 22, 2016, the trial court again denied the motion to sever, and denied Wilson's motion to compel confrontation, finding E.C.'s out-of-court statements were admissible as pertaining to medical diagnosis or treatment.

{¶9} A jury trial commenced on February 23, 2016, but the jury could not reach a verdict on any of the counts and a mistrial was declared. Wilson did not object to the trial court's supplemental instruction referred to as a Howard charge. See State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188 (1989), paragraph two of the syllabus. Wilson did not object to the declaration of a mistrial because the jury was deadlocked. Thereafter, a different judge was assigned to the case.

{¶10} On May 27, 2016, Wilson reasserted his motion to exclude E.C.'s videotaped interview, claiming it violated his right to confrontation and it did not fit the medical diagnosis or treatment exception to the hearsay rule. Again, the trial court denied the motion.

{¶11} A second jury trial commenced on June 6, 2016. The jury found appellant guilty of Counts 1 and 3, and not guilty of Count 2. The jury also found the offenses were committed in a school safety zone.

{¶12} On June 24, 2016, Wilson filed a motion for judgment of acquittal and motion for new trial. By judgment entry filed July 21, 2016, the trial court denied the motions.

{¶13} By judgment entry filed August 2, 2016, the trial court sentenced Wilson to an aggregate term of eight and one-half years in prison. This Court affirmedWilson's convictions and sentence. State v. Wilson, 5th Dist. Delaware No. 16-CAA-08-0035, 2017-Ohio-5724, 93 N.E.3d 1282 ["Wilson, I"]. The Ohio Supreme Court declined to review Wilson's case. State v. Wilson, 151 Ohio St.3d 1511, 2018-Ohio-365, 90 N.E.3d 950.

{¶14} On October 2, 2017, Wilson filed an application to reopen his direct appeal alleging that his Appellate counsel was ineffective for failing to raise a number of specific arguments relating to trial counsel's alleged deficiencies. On January 19, 2018, this Court denied Wilson's application to reopen his direct appeal. On February 21, 2018, the Ohio Supreme Court declined to accept jurisdiction in this matter. State v. Wilson, 152 Ohio St.3d 1467, 2018-Ohio-1795, 97 N.E. 3d 502.

{¶15} On September 13, 2017, Wilson filed an application for post-conviction DNA testing pursuant to R.C. 2953.72. Wilson requested testing of "[t]he three school-uniform jumpers that law enforcement seized from the home of alleged victim E.C. on April 9, 2015."

{¶16} In an entry filed April 3, 2018, the trial court denied the application finding that Wilson failed to establish that the requested DNA evidence would be outcome determinative.

Assignments of Error

{¶17} "I. THE TRIAL COURT'S SUMMARY DENIAL OF DEFENDANT-APPELLANT'S APPLICATION FOR DNA TESTING WAS AN ABUSE OF DISCRETION."

State v. Wilson, 5th Dist. No. 18CAA040034, 2018 WL 6721959, at *1-2 (Ohio Ct. App. Dec. 20, 2018). On December 20, 2018, the appellate court affirmed the trial court's judgment. Id. Petitioner apparently did not file an appeal.

{¶15} On September 13, 2017, Wilson filed a Petition for Post-Conviction Relief ["PCR"]. In support of the motion, Wilson attached affidavits purportedly from several jurors who participated in his first trial that resulted in a mistrial. Additionally, he submitted affidavits from his trial counsels and their private investigators.

{¶16} In an entry filed April 3, 2018, the trial court denied the petition for post-conviction relief.

Assignments of Error

{¶17} "I. THE DISMISSAL OF THE PETITION FOR POST-CONVICTION RELIEF WITHOUT A HEARING VIOLATED R.C. 2953.21(D) AND

DEPRIVED DEFENDANT-APPELLANT OF HIS RIGHT TO MEANINGFUL REVIEW OF HIS CONSTITUTIONAL CLAIMS FOR RELIEF.

18} "II. POST-CONVICTION COUNSEL'S FAILURE TO RAISE ADDITIONAL INSTANCES OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL (RELATING TO A DEFECTIVE INDICTMENT, THE FIRST JURY'S NOT GUILTY VERDICT, AND DOUBLE JEOPARDY) DEPRIVED DEFENDANT-APPELLANT OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL."

State v. Wilson, 5th Dist. No. 18CAA040035, 2018 WL 6721310, at *2 (Ohio Ct. App. Dec. 20, 2018). On April 17, 2019, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Wilson, 155 Ohio St.3d 1422 (Ohio 2019).

On October 2, 2017, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B), asserting that his appellate counsel improperly failed to raise on appeal a claim challenging the indictment's failure to state "that the offense in Count 3 occurred in Franklin County[]" and violated "his constitutional right to a trial by a jury from the county in which the offense had been committed"; that his convictions for gross sexual imposition against E.C. and K.P. were against the manifest weight of the evidence (ECF No. 7-1, PAGEID # 832); that the "jury heard inconsistent statements from E.C., and [that] unidentified male DNA was found in her underwear the same week the allegations were made against him" and "K.P.'s testimony was also inconsistent, and [] her testimony was manipulated[]"; that he was "denied a fair trial based on twelve cumulative errors"; that he was denied the effective assistance of trial counsel based on his attorney's failure to object to admission of hearsay statements by E.C. and K.P.; and that appellate counsel improperly failed to file a motion for reconsideration of the appellate court's plain error review. (PAGEID # 833-34.) On January 19, 2018, the appellate court denied the Rule 26(B) application. (Judgment Entry, ECF No. 7-1, PAGEID # 830.) On May 9, 2018, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (PAGEID # 854.)

On April 15, 2020, Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that he was denied the effective assistance of trial and appellate counsel (claims one and two); that his re-trial on the charge of gross sexual imposition relating to K.P. violated the Double Jeopardy Clause (claim three); and that the admission and playback of E.C.'s recorded forensic interview violated the Confrontation Clause (claim four). It is the Respondent's position that Petitioner's claims are procedurally defaulted or without merit.

II. PROCEDURAL DEFAULT

Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (citing Picard v. Connor, 404 U.S....