The opinion of the court was delivered by: Magistrate Judge King
ORDER and 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, see Doc. No. 1, Respondent's Return of Writ, Doc. No. 15, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for a stay of proceedings, Doc. No. 24, is DENIED. His request for production of documents Doc. 25, is likewise DENIED. Respondent's motion to strike the documents attached to Petitioner's Reply, Doc. No. 29, is GRANTED.
FACTS and PROCEDURAL HISTORY
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:
On December 21, 2004, appellant was charged by complaint with one count of rape, a felony of the first degree, based on an incident of abuse that allegedly occurred on February 14, 2004. On April 21, 2005, the Franklin County Grand Jury indicted appellant on five third-degree felony counts of gross sexual imposition, two fourth-degree felony counts of gross sexual imposition, three counts of rape and one count of tampering with evidence. These charges were based upon appellant's alleged sexual abuse of his stepdaughter between June 1997 and July 2004, and his alleged attempt to tamper with evidence of that abuse.
All counts were tried to a jury beginning on July 10, 2006. On July 12, 2006, the trial court granted appellant's motion to dismiss two of the rape counts. On July 14, 2006, the jury found appellant guilty on all five third-degree felony counts of gross sexual imposition and on the count of tampering with evidence. The jury found him not guilty on the two fourth-degree felony counts of gross sexual imposition and on the one remaining rape count. On September 25, 2006, following a presentence investigation and a sentencing hearing, the court sentenced appellant to one three-year term of imprisonment for each of the six counts on which he was convicted, and ordered that he serve the terms consecutively, for an aggregate sentence of 18 years. The court also classified appellant as a sexual predator.
Appellant is the stepfather of the victim, who was 17 years old at the time of trial. Appellant married the victim's mother when the victim was 18 months old.
The victim testified that when she was eight years old appellant asked her to lay down with him in her parents' bed when she was wearing only a T-shirt and underwear. She agreed to do so, whereupon appellant put her on top of him and, while holding her with both hands, moved her back and forth and up and down. This went on for 30 to 60 minutes. The victim testified that as she got older, appellant would make sexually suggestive jokes to her and she would often find him in her bedroom when she woke up in the morning.
She recalled that appellant has a tattoo of a rose on his right groin area. She stated that she was four or five years old the first time she saw the tattoo. Beginning when she was four or five years old appellant would engage in "play fighting" or wrestling with the victim. The victim would be wearing shorts and a T-shirt or sometimes only underwear and a T-shirt. She stated that appellant would either wear only shorts or would be completely naked. She stated, "he didn't wear a lot of clothes. * * * He liked to walk around the house naked a lot. I guess it made him feel more comfortable. I don't know." (Vol. I Tr. 42-43.) While the two would wrestle, appellant would touch the victim's bottom and breasts, sometimes over her clothing and sometimes underneath her clothing. This play-fighting and touching would occur regularly from the time the victim was four or five years old.
She stated that, as she got older, she began to wake up in the morning to find appellant touching her, and she would pretend that she was still asleep. She stated that appellant would insert his fingers into her vagina. She stated that she was frightened by this, but did not do anything about it because she did not want to make appellant angry. She explained that she did not want to make him angry because she did not like his temper. The victim explained that her parents had a history of fighting throughout her childhood, including fist fighting. Her mother had left appellant three times. The victim reported that she and appellant got into a fistfight with each other once. She further explained that she was afraid of appellant because he had more authority than she did.
The victim testified that when appellant would visit her bedroom early in the morning, in addition to touching her vagina, he would sometimes get on top of her and would kiss her from her breasts down to her vagina. She denied experiencing any penile penetration. She testified that she never actually saw appellant ejaculate, but on one occasion she could feel fluid and saw spots on the sheet afterwards. She stated that the touching began when she was eight years old and happened continuously until Franklin County Children Services ("FCCS") removed her from her home in February 2004. She recounted that the touching would occur early on weekend mornings, around 6 or 7 o'clock, while her mother slept in another bedroom.
The victim told the jury that once, when appellant was in bed with her and touching her vagina, her mother walked in and asked appellant what he was doing. "And he said, well, I'm waking up [the victim]. And she is like, well, why? And he was like, well, what are you doing in here? [The victim's mother] said that she had a bad dream. And he said that well, he would be in there in a minute and they could talk about it, and then he left my room and then he went in there." ( Id. at 48.) She stated that as she got older, the abuse went from being sporadic to occurring every weekend and being "more intense." ( Id. at 38.)
The victim testified that when she was 12 or 13 years old appellant got into the shower with her but did not touch her at that time. He would also sometimes touch her chest or bottom while making sexual jokes, and he would tease the victim's mother about the victim's breasts being larger than her mother's.
The last time that appellant touched her inappropriately was on a weekend in February 2004 when she awoke to find appellant digitally penetrating her vagina. Later, she told a friend about the touching and also related how her parents fought and "how controlling I thought my stepdad was." ( Id. at 36.) Her friend related this information to a school counselor, who called FCCS. FCCS took her into custody and a criminal investigation ensued.
The victim kept several diaries, which she identified as State's Exhibits 1 through 5. She testified that she had written in Exhibit 5 about being sexually abused by appellant, but that those pages are now missing. She kept Exhibit 5 in a drawer in her desk, located in her bedroom.
On cross-examination, the victim admitted that she had complained about appellant enforcing rules and controlling her. She further admitted that, on one occasion when she was fighting with her mother and appellant, she threatened to call the police and said that the police would remove her from her home.
She admitted that she had opportunities, before February 2004, to tell someone about appellant's abuse. She had had her own cellular telephone for several years and she and her mother had stayed with her maternal grandmother or her mother's sister each time her mother left appellant. On direct examination she explained that she did not tell her grandparents about the abuse because "I was more worried about how my mother felt because she was devastated from being away from [appellant]. I wasn't really thinking about myself at the time and how I felt." ( Id. at 39-40.) When asked why she had not told her aunt about the abuse, she explained, "[b]ecause we were away from [appellant]. So I didn't need to." ( Id. at 40.)
When asked, on direct examination, why she had not confided in anyone else before February 2004, she answered, "I, first of all, didn't know how to. And I didn't want to make him mad. And I wanted to keep what family I knew together." ( Id. at 37.) She explained that she did not have a good relationship with her grandparents and she never knew her biological father or his family. Consequently, appellant "was the only father figure, and [her mother was the] only mother that I had. And to me, that is what I wanted. I had nobody else to go to. And at the time I trusted [appellant] most of all, and I didn't want to lose that at the time." ( Id. at 37-38.) Counsel went on to inquire, "[y]ou said that you trusted him most of all. Even though your stepfather was abusing you at this time, you still trusted him?"
( Id. at 38.) The victim replied in the affirmative, explaining, "[b]ecause I have known him since I was very little. Like I said, he was the only father figure to me." ( Id.)
When asked why she had not told any of her teachers about the abuse, she stated: "I didn't really think about it because, like I said, I felt the most comfort there because, you know, I trusted [appellant]. And, you know, we had the closer relationship. I never even had the relationship with my mother that much. So I was just more worried about making him mad, disappointing him." ( Id. at 40-41.) When asked about her relationship with her mother the victim stated she "didn't feel close to her." ( Id. at 41.) She explained that appellant "was the only one that I had a relationship with that I was close with." ( Id. at 90.) She testified that whenever there was an argument, her mother always took appellant's side. The victim testified that her mother chose to continue to live with appellant, up to and during appellant's trial, so the victim remained in foster care.
Detective Russell Moore, of the Westerville Police Department, testified as to the steps taken in the investigation of the victim's allegations. He stated that he conducted a consensual search of appellant's home on the night of the victim's initial disclosure. The purpose of this initial search was to obtain DNA samples from appellant and from any object in the victim's room that contained bodily fluid, as revealed through the use of an alternative light source.
The detective executed a search warrant several months later. The scope of the warrant included the victim's diaries, based on the descriptions thereof that the victim had given police. However, when police executed the warrant, the diaries were not present. Detective Moore stated that when police arrived they found that the contents of the victim's room had been gathered up and placed in cardboard boxes and plastic containers stored in the room. At trial, the parties stipulated that appellant obtained possession of the diaries at some point in time and gave them to a third party, who later turned them over to police. Detective Moore then met with the victim to review and discuss the diaries.
Social worker Sha Clark ("Clark") testified next. She is employed at Columbus Children's Hospital and works in that facility's Child and Family Advocacy Center. She testified that she conducts interviews with children who are alleged victims of abuse "to gather information regarding the allegations, to ensure [the children] receive the most appropriate medical evaluation, so the history that I gather I provide to the physicians so they can complete their medical evaluation." ( Id. at 177.) She told the jury that, after establishing a rapport with the interviewee through general questioning, she tells the child that the interview is for medical evaluation purposes, and that the information they provide to her will be shared with the physicians conducting the evaluation.
The victim described for Clark the incidents of abuse, and Clark's testimony in this regard was consistent with the victim's trial testimony. Clark added that the victim told her that the digital penetration was substantial enough that it caused the victim pain. According to Clark, the victim also related that when the victim would walk by appellant, he would put his hands underneath her clothing and rub her breasts, stomach or genitals. The victim also told her about appellant frequently walking around the house wearing no clothing. The victim also related inappropriate sexual talk, including one incident in which appellant told the victim that he correlated her sucking her thumb when she was a baby to her sucking on his penis. The victim also told Clark about her and appellant play-fighting and how it sometimes occurred when neither of them was wearing clothes. During the play-fighting, the victim told Clark, appellant would touch the victim's breasts and genitals and sometimes he would have an erection.
She told Clark that she used to shower late in the evening, but that appellant asked her to start showering earlier, as early as after school. He would sometimes go into the bathroom while she was showering and would either sit in the bathroom and talk to her or would join her in the shower. She told Clark that she had not told her mother because the two were not close and she did not feel that her mother would believe her. She reported that her mother was home during much of the abuse and had witnessed the play-fighting and incidents of appellant putting his hands underneath her clothing.
Gail Horner ("Horner") testified next. She is a pediatric nurse practitioner at Columbus Children's Hospital's Center for Child and Family Advocacy and at that hospital's emergency room. Horner was qualified as an expert in the area of child sexual abuse and trauma examinations. Horner performed a physical examination of the victim on the same day in 2004 that Clark interviewed the victim. Horner testified that the physical examination was normal and there was no evidence of trauma to the genitalia, although, according to Horner, only five percent of the children she examines have evidence of such trauma. She testified that digital penetration of the vagina would not necessarily have torn the victim's hymen because the hymen had been "estrogenized," or elasticized through the effects of puberty-related hormones, making it less susceptible to tearing. Therefore, she opined, the digital penetration that the victim reported could have occurred without leaving any sign of trauma or other objective physical findings.
A forensic scientist with the Ohio Bureau of Criminal Identification and Investigation testified that forensic tests of various items of the victim's bedding were negative for the presence of semen.
The state's final witness was appellant's wife and the victim's mother ("D.V."). She married appellant in 1989. She testified that she consented to a search of the victim's room on the date the victim disclosed to police appellant's sexual abuse. She stated that when the police left that day they did not indicate to her that they would be back for any additional searches.
She explained that she and appellant found the victim's diaries while searching the victim's room one day in March 2004, after the first police search of the home and after the victim had been removed to foster care. D.V. testified that one of the journals contained a page in which the victim wrote about appellant "touching her inappropriately early in the morning * * * in her private parts." (Vol. II Tr. 38.) When appellant read that "[h]e became angry at that point and tore out the page and ripped it up. And he ended up putting it in the trash. And at that point there were other journals that we didn't look through because we were just - we were - it was just too emotional. We were just too upset." ( Id.) Eventually, the two did read the remaining diaries. D.V. identified State's Exhibits 1 through 5 as the diaries that they found, and identified State's Exhibit 5 as the diary from which appellant had ripped a page.
D.V. further testified that police executed a search warrant at her home on April 9, 2004. She told the jury that, while police searched the residence, she placed a cellular telephone call to a third party to whom she and appellant had given the victim's diaries. Per the third party's instructions, she did not tell police that day about the location of the diaries. Eventually, the third party turned the diaries over to police.
D.V. verified that, one weekend morning within the time frame of October 2003 through January 2004, she found appellant in the victim's bed. The time was between the hours of 5:30 and 7:30 a.m. She testified that when she saw appellant laying in the victim's bed she could not discern whether he was wearing any clothes. However, she later testified that appellant's practice is to sleep naked. She recounted no conversation taking place between her and appellant while appellant was in the victim's bed. Rather, she stated that, upon seeing him in her daughter's bed, she simply went back to her own bed. When appellant returned to the couple's bedroom, she asked him where he had been, and he told her that he had been in the victim's room "snuggling with her." ( Id. at 42.)
She told the jury that she did not think that appellant being in the victim's bedroom at that time was odd or unusual. She stated that she was not concerned because "no one appeared to be awake." ( Id. at 43.) However, after she was shown a videotape of her interview with Westerville police, she conceded that she had told the detective that she had thought it was odd that appellant was in the victim's bed so early in the morning. She stated that appellant would frequently lay with the victim while the two played Playstation, but that would occur at 8:30 or 9:00 a.m., but never as early as it was on the morning she found appellant "snuggling" with the victim.
She confirmed that appellant began play-fighting with the victim when the victim was very young. She stated that when the victim got older, appellant would say "we are getting too old to be doing this kind of, you know, hitting each other like this. * * * [H]e said, I would sometimes accidentally hit your tits. And [the victim] would say[,] so. You know, I like doing this." ( Id. at 47-48.) D.V. confirmed that appellant and the victim would sometimes be partially naked while they were play-fighting. She stated, "I don't remember a time when they were both naked together, just various combinations." (Id. at 49.) There were times, according to D.V., that either the victim or appellant would be completely naked. ( Id.)
She stated that both appellant and the victim participated in and initiated the play-fighting. She recounted times when the victim would pick the lock to the couple's bedroom door until they finally changed the lock.
D.V. testified that appellant was usually naked anytime he was in the couple's home. She stated that this was appellant's practice before the two lived together and he continued to be naked while at home up to the time of trial, even though the victim no longer resided there. She explained that appellant suffered from persistent groin pain that was so intense it would bring him to tears and necessitated, in 2000, surgical removal of one of his testicles. Following that surgery he consulted a pain clinic because his pain had worsened. There he was diagnosed with neuroma and irreversible nerve damage.
Since 2000, he has been treated with periodic injections in the groin area. These injections cause bruising and he is bedridden for several days following each one. The injections, D.V. stated, affect his ability to sit and lay down for several days after he receives them. However, when questioned by the state, D.V. admitted that the groin pain appellant experienced never prevented him from going to work and did not prevent him from play-fighting with the victim.
D.V. testified that she witnessed appellant and the victim "play[ing] games on each other" involving each pouring cold water on the other while the other was showering. ( Id. at 50.) D.V. heard appellant make sexual jokes in front of the victim.
D.V. confirmed that she attended college from 1990 to 1994, and from 1999 to 2003. She attended classes once or twice per week, sometimes in the evenings and sometimes on Saturday mornings. When she was at class appellant would be home alone with the victim. D.V. also confirmed that she and her daughter argued frequently and have never had a good relationship. She stated that appellant was the primary disciplinarian in the household. She also confirmed that her relationship with appellant contained a high degree of tension and stress and the two would argue frequently.
D.V. testified that appellant worked as a weight room supervisor at an athletic club, which sometimes required him to work on weekends. She stated that he also regularly left the house very early on Saturday mornings to attend automobile auctions. She further testified that, for some period of time during the alleged abuse, appellant ran 15 to 18 miles per day. D.V. told the jury that one of the reasons that appellant liked to be naked was because he prided himself on his physique achieved as a result of his exercise regimen.
When asked by defense counsel about arguments she would have with the victim, D.V. told the jury that the victim frequently lied and tried to conceal information, and "had an ongoing problem with behavioral issues, social issues, school, lying. * * * You almost couldn't believe anything she said because she just-either she didn't want to get in trouble, or she just - for her telling the truth was not a natural response when she was asked a question." ( Id. at 58.) She stated that the victim would frequently accuse her of believing appellant and not her daughter, or of choosing him over her daughter. She recalled telling the victim that she was not choosing appellant over the victim, but was choosing truth over a lie.
During her heated arguments with her mother, the victim would call her mother names and threaten to call the police, D.V. recalled. During a family fight that occurred on Valentines Day 2004, the victim threatened to call the police "and said that is not all I will do." (Id. at 76.)
D.V. denied ever seeing appellant sexually abuse the victim and said that the victim never told her that appellant had been molesting the victim.
Appellant testified on his own behalf. He testified that he has walked around his home naked "as far back as I can remember," including when he was living with his parents and brother. (Id. at 139.) He added that he had been walking around naked at home "all my life." (Id.) He admitted walking around the house naked or covered only in a towel when the victim was present. He admitted that "I shouldn't have done it. It was my responsibility to either put clothes on or not come out of the bedroom." ( Id. at 140.) He admitted that he persisted in this behavior despite his wife's requests that he stop.
Appellant admitted he was home with the victim on Saturday mornings when his wife was at school, from the time the victim was eight years old up until the time when she was 12 years old. However, he denied ever touching the victim in any sexual way, including digitally penetrating her.
He admitted play-fighting with the victim, but stated that he only did so in the nude when, while drying off after a shower or sitting on the couch covered only by a blanket or towel, the victim would instigate the play-fighting by grabbing his towel or blanket and running away with it. He confirmed that sometimes the victim would be naked during their play-fighting. He denied that his naked play-fighting resulted in any body contact other than hitting, although he did admit that he sometimes hit the victim's breast, but, he said, this was purely accidental.
He stated that he would sit on the couch covered only by a towel or blanket because, "my injury, my underclothes or my shorts rubbed directly on the scar where I hurt." (Id. at 142.) When asked what injury he was referring to, he explained that he had had one testicle surgically removed in the year 2000. He stated that, ever since that time, he experiences sharp groin pains every 30 seconds. He has taken Darvocet to alleviate that pain and has also received injections of pain blocks that last from three weeks to three months.
He testified that he worked at Sawmill Athletic Club, and then Westerville Athletic Club, daily from 7:30 a.m. to 4:40 p.m. He also testified that he attended automobile auctions frequently. When he did so, he left the house at 5:45 or 6:00 a.m. He also confirmed that, prior to 2000, he ran for exercise and competed in triathlons.
He testified that when the police initially searched the victim's bedroom, pursuant to his and his wife's consent, the search lasted for two and one-half to three hours. He stated that he believed they had taken "everything out that they wanted" and he did not expect that they would return because they never told him that they were not finished searching for evidence. (Id. at 151.)
Appellant told the jury that, approximately three to four weeks after the initial police search of the victim's bedroom, he entered it and found State's Exhibit 5, one of the victim's diaries. He admitted that he read the diary and became angry and tore a page out of it. He stated that he tore out the page because he was angered by an entry calling him a name and stating that he had sexually abused the victim, not because he thought of the page as evidence. He also admitted giving all of the victim's diaries to an attorney (referred to in the presence of the jury only as a "third party") about one week later, but, he said, he did not initially tell the attorney that he had ripped a page out of one of them. He admitted that he left other pages intact that "did not make [the victim] look very good" and that contained the victim's complaints about his rules. (Id. at 187.)
Appellant admitted to making sexual jokes in front of the victim, but said he never directed them at her. He confirmed that he had volatile arguments with both his wife and the victim. He admitted that he has a temper.
Appellant testified that there was an incident in which his wife woke up early in the morning and found him in the victim's bed. He stated that his wife asked him why he was there and he told her that he was snuggling with the victim. He admitted that he sleeps in the nude but stated that he was wearing shorts at the time his wife saw him in the victim's bed; he told the jury he remembered he was wearing shorts because he had just come inside from letting the dogs out and retrieving the newspaper. He denied ever being in the victim's bedroom naked, despite admitting that he had been in every other room in the house naked, since he was naked the majority of the time while at home. He stated that he only laid in the victim's bed sometimes in order to play Playstation with her.
State v. Vance, 2007 WL 2421822, at *2-9. Petitioner filed a timely appeal, raising the following assignments of error:
FIRST ASSIGNMENT OF ERROR
The trial court erred when it entered a judgment of conviction despite the fact that the jury's decision was against the manifest weight of the evidence. This error deprived Appellant of his right to due process of law, as guaranteed by the Fifth and Fourteenth Amendments to the United ...