The opinion of the court was delivered by: Sandra S. Beckwith Senior United States District Judge
Before the Court are Petitioner's objections to the Report and Recommendation of the Magistrate Judge. (Doc. 15) The Magistrate Judge has recommended that this Court dismiss Stepp's petition for a writ of habeas corpus with prejudice. (Doc. 14) The Magistrate filed a Supplemental Report and Recommendation responding to Stepp's objections (Doc. 16), and a Second Supplemental Report responding to Stepp's objections to the supplemental report. (Doc. 19) Stepp has lodged his objections to the Second Supplemental Report, and this matter is ripe for decision by this Court.
Stepp was convicted by a jury of kidnaping and raping three women, one of whom was Carrey Tidmore. There was no scientific evidence linking Stepp to Tidmore's rape, such as DNA, hair or fiber samples. Tidmore admitted at Stepp's trial that in November 2003, she supported herself and her narcotics addiction by prostitution. She had been engaging in prostitution for almost twenty years prior to Stepp's February 2007 trial.
Tidmore testified that one night in November 2003, she was on the street looking "to turn a trick" (to secure a customer). She got in a car with a man who stopped, and the man drove fast and would not answer her question about what service he wanted to purchase. He pulled out a badge and told her she was under arrest for prostitution. He also displayed a gun, and drove into the parking lot of a local police station. Tidmore told the man that rather than perform a sexual favor for him as he suggested, she would submit to being arrested. The man then drove to a field and forced her to have sex. He then handcuffed her, took her to a house and assaulted her again. Later, he drove her to a gas station and left her there. The gas station clerk offered to call the police, but she refused because she was on probation and knew she would receive jail time for prostitution. She testified that she went to a friend's house and took drugs after this incident.
On November 10, Tidmore admitted to her probation officer that she had been using cocaine. She knew this would result in a probation violation and another jail sentence. She did not report the rape to her probation officer. Later that day, she went to a local emergency room and was interviewed by rape counselors. She testified on direct that she went to the hospital two days after the rape, but on cross she admitted that the medical records contained her statement that the rape happened five days prior to her visit. She did not report the rape to the police at that time. She was arrested on the probation violation and sent back to jail on or about November 20, where she apparently remained until sometime in January or February 2004. It was not until mid February 2004 that she told a Butler County Sheriff's deputy about the rape. She testified that she was questioned by police about an ongoing, unrelated murder investigation, and revealed the rape to them. She described her rapist as a "white, thin male, with light hair, drove a red four-door car." (Doc. 8, TR at PAGE ID 487)*fn1
Tidmore said that she had been tormented by the experience since it happened. (TR at PAGE ID 485) A few days later, a deputy showed her some photographs and she identified Stepp as her attacker. She also described the house to which he had taken her that night.
On cross-examination by Stepp's trial counsel, Tidmore admitted to a string of previous convictions for theft, falsification, and failure to comply with police officers. She was on probation for three different felony convictions in November 2003, and admitted she concealed her prostitution from her then-boyfriend. She claimed that she had been drug-free for a year, but she was confronted with the fact of several positive cocaine tests in August and September 2003. Counsel reviewed at some length the many inconsistencies in the story she gave to the hospital rape counselors in November 2003, her several statements to the police, and her testimony to the jury. Stepp's counsel also demonstrated that Tidmore had been jailed with the other complaining witnesses during January and February, both before and after Tidmore identified Stepp in the photo lineup.
Counsel then asked Tidmore why her probation officer had not violated her probation for the series of failed drug tests in August and September 2003. (TR at PAGE ID 520) The trial court sustained the prosecutor's objection to that question, and at a sidebar conference, Stepp's counsel argued that he had evidence that Tidmore was having a sexual relationship with her probation officer that summer. Counsel claimed that Tidmore traded sexual favors with the probation officer to avoid returning to jail on a probation violation. Counsel's theory was that after her probation was revoked in November, Tidmore lacked "leverage" with which to get out of jail and return to using drugs, so she made up the rape allegation in order to present herself to the police and/or her probation officer as a sympathetic victim. The prosecutor told the trial court that the probation officer in question had been disciplined (and perhaps fired), but that the proposed testimony fell within Ohio's rape shield law. The trial court initially responded that this evidence had not been brought to its attention previously, and that "if counsel knew that [he] was going into this, counsel had a duty to raise this at a rape shield hearing prior to this trial. ... There has been no motion brought before the Court as is contemplated by the rules. ... I believe [the evidence] clearly falls under rape shield, and on that basis I am going to sustain the objection." (TR at PAGE ID 523) The jury ultimately convicted Stepp on three counts of rape, and he was sentenced to an aggregate term of fifty-five years.
Stepp raised several assignments of error in his direct appeal from his conviction, including Assignment of Error III:
Trial counsel provided constitutionally ineffective assistance of counsel when he failed to raise evidence that clearly fell within the rape shield law in a pretrial motion. The trial court violated Brian Stepp's right to confrontation when it excluded relevant impeachment evidence.
Stepp argued that the excluded evidence was crucial to prove his theory that Tidmore fabricated the rape story, and its exclusion violated his right to confront Tidmore. He also argued that the trial court's remarks suggested that the court would have considered the evidence and admitted it if Stepp's counsel had timely raised the issue, which Ohio's rape shield law requires. The Ohio Court of Appeals rejected this argument. Applying the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), the Court of Appeals found that the evidence at issue would have clearly violated the rape shield law, Ohio Rev. Code 2907.02, barring evidence of specific instances of the victim's sexual activity, and that the evidence did not fall within any exception to that statutory bar. This conclusion would support a finding that his trial counsel's failure to raise the issue prior to trial did not fall below an objective standard of reasonableness.
But Stepp also argued that his constitutional right to confront witnesses outweighed the interests protected by the rape shield statute. The Court of Appeals found that the trial court's characterization of the evidence as a "distinct separate incident" indicated the court's opinion that the evidence had little or no probative value. The court noted:
... the point that Stepp's trial counsel was trying to make, i.e., C.T. fabricated the allegation against Stepp to regain "control" of the situation regarding her probation after her affair with her former probation officer was revealed, was a tenuous one, at best, and therefore, it is unlikely the trial court would have found, under these circumstances, that Stepp's ...