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Dolman v. Coleman

United States District Court, Sixth Circuit

June 5, 2013

ALAN DOLMAN, Petitioner,
v.
JOHN COLEMAN, Warden, Respondent.

ORDER & OPINION

[Resolving Docs. No. 1, 12, 15.].

JAMES S. GWIN, District Judge.

Alan Dolman files a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] Dolman seeks relief from convictions in Ohio state court for child pornography offenses and his concomitant sentence of fifty-two years and seven months in prison.[2] Respondent, Warden John Coleman opposes the petition.[3] On June 14, 2012, Magistrate Judge Greg White filed a Report and Recommendation that recommended the Court deny Dolman's petition.[4] Dolman objects to the Magistrate Judge's Report and Recommendation because he says that the Magistrate Judge did not apply the correct legal standard.[5] For the reasons provided below, the Court ADOPTS the Magistrate Judge's Report and Recommendation and DENIES Dolman's petition for a writ of habeas corpus.

I.

The Ohio Court of Appeals summarized the facts underlying this case:

(¶1} On September 23, 2009, the Williams County Grand Jury indicted appellant, Alan D. Dolman, on (1) six counts of photographing a child, who was not his child or ward, in a state of nudity in violation of R.C. 2907.323(A)(1); and (2) five counts of possessing or viewing any material or performance showing a minor, who was not Dolan's child or ward, in a state of nudity in violation of R.C. 2907.323(A)(3). Six of these counts were designated as felonies of the second degree and five counts as felonies of the fifth degree. The remaining two counts in the indictment alleged violations of R.C. 2919.22(B)(5), child endangering by enticing and/or encouraging a child to be photographed for the production of any material that the offender knows is "obscene, is sexually oriented matter, or is nudity-oriented matter * * *." Both of these charges are felonies of the second degree.
{¶ 2} At appellant's trial, the state of Ohio presented the following evidence material to the offenses set forth above. On May 24, 2009, Officer Gerald Collert of the Montpelier Police Department received a complaint from a group of neighbors who were concerned with the safety of young children who were being given rides by appellant on his moped. As the officer was speaking with the neighbors, a young man, who we shall call D.B., came forward and stated that he had something he needed to tell Collert.
{¶ 3} D.B. then told the officer that one day he went to visit his neighbors, who had two young children, A.C., a seven-year-old girl, and her little brother, Z.C. The children asked D.B. to take them to a park that was in the neighborhood. On the way to the park, D.B. stopped at home to get his basketball. While they were at the park, they played a game of basketball with appellant, who was the father of one of D.B.'s friends. During the game, Z.C. fell and scraped his knee and arm. Appellant then took the children to his house to take care of the little boy's scrapes. After taking care of the scrapes, the children and appellant went out into his back yard where he had a trampoline and a tree swing.
{¶ 4} Later, they went back into the house where the younger children played video games in the living room while D.B. looked around the house. After he used the bathroom, D.B. went back to the living room, but appellant and A.C. were not there. He asked Z.C., who was still playing video games, where appellant and A.C. were, and the child pointed to a bedroom door in the hallway. When the older boy tried to open the door to that room, it was locked. After "lightly" knocking on the door and receiving no response, D.B. sat in a room nearby. Appellant subsequently left the room. When D.B. went into that room, he saw A.C. dressed in only her underpants and socks. When he asked her what she was doing, A.C. told him that she was trying on costumes. The boy then told A.C. to get dressed, and appellant took them home. According to D.B., the incident occurred approximately two weeks before he spoke to the police officer.
{¶ 5} Based upon the statements made by D.B., Officer Collert began an investigation of appellant. After interviewing A.C., who gave him a more detailed statement of the incident, Collert obtained a search warrant for appellant's residence for the purpose of finding "photographs and videos, " computers, digital cameras, and the "costumes and dresses" that appellant allegedly told A.C. to wear that day.
{¶ 6} On May 28, 2009, Collert and two other police officers served the search warrant on appellant. They seized his computer, computer equipment, CDs, DVDs, VHS tapes, three or four digital cameras, a 35 millimeter camera, and three video cameras. They also seized the costumes that A.C. said she wore that day. Officer Collert took photographs of the interior of appellant's home and of the items seized. The subsequent search of appellant's computer files revealed numerous photographs and/or computer images, e.g. "Erotica, " of naked or scantily clad young girls. Several of the photographs, including those in which she appeared totally nude were of A.W., an 11-year-old girl who was a friend of appellant's son.
{¶ 7} Both A.C. and A.W. testified at appellant's trial. A.C. testified that appellant asked her whether she would like to try on some costumes. He then took her into his daughter's bedroom and locked the door. The young girl tried on six costumes. Then appellant had A.C. pose in just her panties and took photographs of her. Two of these photographs were offered into evidence. Two other "candid" photographs of A.C. putting on her clothes were also offered into evidence.
{¶ 8} In her testimony, A.W. stated that she was a friend of appellant's 12-year-old son, and that she would play with him at appellant's home "almost every day." According to A.W., appellant would have the two children put on the costumes that were in his daughter's room and take photographs of them. Appellant also had an inflatable rubber pool that he would set up in the living room and fill with soapy water. He would then take photographs of A.W. playing in the pool in a "tank top and underwear." When she went to the bathroom to change her clothing after being in the pool, appellant would also go into the bathroom and take photographs of A.W. while she was nude. According to the 11 year old, Dolman told her not to tell anyone about their activities or the photographs. Numerous photographs of A.W. taken by appellant that show her posing in her underwear were entered into evidence. In several other photographs taken by appellant's son, A.W. is shown posing in her underwear with appellant. Two other photographs in which A.W. posed completely naked were also placed into evidence.
{¶ 9} Based upon the foregoing, the jury found appellant guilty on all counts in the indictment. After a presentence investigation was conducted, the trial court held a sentencing hearing and imposed the following sentence on appellant. For the six violations of R.C. 2907.323(A)(1), all felonies of the second degree, the court imposed a sentence of six years in prison for each. For the five violations of R.C. 2907.323(A)(3), all felonies of the fifth degree, the trial court sentenced appellant to 11 months in prison for each. For the two violations of R.C. 2919.22(B)(5), both felonies of the second degree, the court imposed a ...

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