The opinion of the court was delivered by: Terence P. Kemp United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner, Randy L. Dillon, a state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 alleging that he is in custody in violation of the Constitution of the United States. The case is before the Court on the petition, a supplemental memorandum supporting the petition, the return of writ, petitioner's reply, and the exhibits of the parties. For the following reasons, it will be recommended that the petition be DENIED.
During its April, 2007 term, a Muskingum County grand jury indicted petitioner on charges of burglary, kidnaping, and attempted murder, as well as unlawful sexual conduct (rape) and unlawful sexual contact (gross sexual imposition) with a minor. All of these charges stemmed from an incident on March 13, 2007, during which petitioner allegedly broke into a home, kidnaped a 14-month old child, raped her, and then left her, wrapped only in a comforter, alongside a rural road.
Petitioner's first trial began on January 10, 2008, but ended in a mistrial because his attorney asked the state's first witness if she had failed a lie detector test. Over petitioner's objection, on Double Jeopardy grounds, to a retrial, a second trial began on April 7, 2008. The jury found petitioner guilty of all charges except gross sexual imposition. After ordering and receiving a presentence investigation report, the trial judge sentenced petitioner to life without the possibility of parole on the rape charge, and consecutive sentences of ten years each on the kidnaping and attempted murder charges, and eight years on the burglary charge, for a total of life in prison plus 28 years. Return of Writ, Exhibit 8.
Petitioner timely appealed to the Court of Appeals for the Fifth Appellate District, raising these assignments of error:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT OVERRULED THE ADMISSION OF HIGHLY PROBATIVE, ADMISSIBLE EVIDENCE IN SUPPORT OF MR. DILLON'S ALIBI DEFENSE, AND THUS IMPEDED MR. DILLON'S ABILITY TO DEFEND HIMSELF AGAINST THE CHARGES LEVIED AGAINST HIM, IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT VIOLATED MR. DILLON'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT EVIDENCE, THE TRIAL COURT CONVICTED MR. DILLON OF RAPE AND ATTEMPTED MURDER, IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
III. THE TRIAL COURT VIOLATED MR. DILLON'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED JUDGMENTS OF CONVICTION FOR RAPE AND ATTEMPTED MURDER, WHEN THOSE JUDGMENTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF MR. DILLON'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO INSTRUCT THE JURY REGARDING GROSS SEXUAL IMPOSITION AND ATTEMPTED RAPE AS LESSER INCLUDED OFFENSE OF RAPE, IN VIOLATION OF MR. DILLON'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
V. THE TRIAL COURT'S ERRONEOUS DECLARATION OF A MISTRIAL AT MR. DILLON'S FIRST TRIAL, AND SUBSEQUENT RETRIAL OF MR. DILLON, WAS IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
VI. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF MR. DILLON'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
In a decision issued on June 24, 2009, the court of appeals overruled the assignments of error and affirmed petitioner's conviction and sentence. State v. Dillon, 2009 WL 1835950 (Muskingum Co. App. June 24, 2009). The Ohio Supreme Court denied petitioner's timely request for review. State v. Dillon, 123 Ohio St.3d 1495 (November 18, 2009).
While petitioner's appeal to the Ohio Supreme Court was pending, petitioner filed a motion to reopen his appeal under Ohio Appellate Rule 26(B). He sought to advance two additional assignments of error relating to the trial court's exclusion of evidence that petitioner had told the police, before he came under suspicion for having committed the crimes he was eventually convicted of, that he himself had been the victim of an assault and robbery during the same time frame. On October 30, 2009, the court of appeals denied the motion to reopen because it was untimely. Return of Writ, Exhibit 21. It does not appear that any appeal was taken from this order. Additionally, on April 8, 2010, petitioner filed with the trial court a motion to vacate his conviction, arguing that the court lacked subject-matter jurisdiction to hear his case due to deficiencies in the way in which the criminal complaint was filed. That motion was denied four days later. Return of Writ, Exhibit 23. Petitioner appealed that order to the Fifth Appellate District Court of Appeals, and it appears from the docket of that case, accessed at http://clerkofcourts.muskingumcounty.org/PA/pa.urd/pamw2000.docket _lst?63686258, that his appeal was dismissed and that he took no further appeal from that dismissal.
In his habeas corpus petition, petitioner raises only four claims: Ground One: Petitioner was denied due process when he was denied his constitutional right to present a defense.
Ground Two: Petitioner was denied the effective assistance of counsel on appeal.
Ground Three: Petitioner was denied due process of law when there was insufficient evidence to convict him.
Ground Four: Petitioner was denied due process when the trial court failed to instruct the jury on a lesser included offense.
It is respondent's position that grounds two and four have been procedurally defaulted, and that all of petitioner's claims lack merit.
The underlying facts, which, as recited by the state court of appeals, must be taken as true for purposes of this case, are these:
On March 13, 2007 M.B., the 14-month-old daughter of Tonya Alexander, was kidnapped. M.B. was taken from the bed where she was sleeping at her home on Schaum Avenue. M.B. was put to bed sometime after 11:00 p.m. When Tonya Alexander awoke around 4:00 a.m ., she went to check on M.B. and found her missing. Tonya immediately began looking for Miah. Tonya woke her daughters to see if either of them had M.B. with them. The daughters helped their mom look throughout the house. When M.B.could not be found, Tonya, who had neither a flashlight nor a telephone, ran next door to her friend's house to get a flashlight and ask for help. Tonya's neighbor called 911. Police soon responded and began searching for Miah. Once it was determined that M.B. was not in the house, the scene was secured for purposes of investigation and evidence collection. Law enforcement collected numerous items for testing and comparison both from inside and outside the home. Among items collected by law enforcement were various fingerprints, bedding from where M.B. was sleeping, Miah's bottle, and castings of tire impressions in the back yard.
About the same time M.B. was being put to bed, appellant was drinking with Mike Norris, a friend, Stella Lantz, his girlfriend and Mary Bittner, his mother. Sometime after midnight, Mike Norris ran out of cigarettes. Mr. Norris was going to go out to his van and get some when appellant offered to run out and get them. Mike Norris gave the keys to his van to appellant. Appellant left and did not return. Sometime after 5:00 a.m., appellant called to say he was at a gas station and needed a ride. Shortly after making this call, a clerk from the gas station called the police because the appellant was bothering the customers.
When Sheriff's deputies arrive at the gas station, they discovered that appellant had an outstanding warrant. Appellant was taken into custody on the warrant and transported to jail. As part of the booking procedure, appellant's clothes and personal effects were placed in storage. At this time, M.B. is still missing and appellant has not been connected to her disappearance.
Shortly before noon on March 13, 2007, M.B. was found alive next to State Route 146 in the Dillon Wildlife area. Jeff Yingling found M.B. wrapped in a comforter. Mr. Yingling testified that when he first saw the legs sticking out of the comforter he thought it was a doll. He only realized it was a living baby when he opened the comforter. Mr. Yingling flagged down a car driven by Joseph Schilling. Mr. Schilling was unable to get cellular phone service. He was able to flag down another motorist, Danny Price. Mr. Price drove up the road and called for help. While waiting for help to arrive, another motorist, Randy Rowell, a hospital salesperson, pulled up and offered his assistance.
After medical crews and law enforcement personnel arrived at the scene, M.B. was transported to a local hospital. She was ultimately taken to Children's Hospital in Columbus. Law enforcement secured the area where M.B. was found and begin taking pictures and collecting evidence.
Several days later, the police received a call about an abandoned van in a cornfield near the area where M.B. was found. The van that was abandoned was Mike Norris' van. At this time, appellant emerged as a suspect in the case.
A search of the van's interior revealed a bed sheet that was the same pattern and same brand as the bed sheet M.B. was sleeping on when she was kidnapped. Further, investigation revealed that the comforter that M.B. was wrapped up in when Jeff Yingling discovered her alongside the road belonged to the Norris', and had been put in the van by Mike Norris' wife. According to Tonya Alexander, appellant had rented a garage at her residence and had been inside of the house on several occasions.
Ultimately, the investigation established the following facts. Appellant knew the victim; appellant had been driving the van that was found approximately 500 feet from where M.B. was found; an eyewitness described seeing someone walking alongside the road around 4:00 a.m. away from the area where M.B. had been left that had similar characteristics to appellant. Additionally, surveillance video from two separate gas stations placed appellant in the same area moving in a direction toward Zanesville and away from where M.B. was found. Tire castings recovered from behind Miah's house are consistent with the tires on the van. An analysis of the clothes appellant was wearing at the time he was arrested on the unrelated warrant revealed mud that is consistent with mud samples taken from the location where the van was recovered.
DNA analysis revealed appellant's DNA on the "onesie" that M.B. was wearing when she was found. Additionally, Miah's DNA was found on the hip area of ...