United States District Court, S.D. Ohio, Western Division, Dayton
Herbert Rice, District Judge
REPORT AND RECOMMENDATIONS
Michael R. Merz, United States Magistrate Judge
habeas corpus case under 28 U.S.C. § 2254 is before the
Court for initial review pursuant to Rule 4 of the Rules
Governing § 2254 Cases which provides in pertinent part:
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the
petitioner.” Petitioner Glover seeks relief from his
convictions in the Montgomery County Common Pleas Court on
charges of rape and sexual battery. Having pleaded no contest
to several of the charges against him, Glover was convicted
in a bench trial and sentenced to ten years to life
imprisonment. He appealed to the Second District Court of
Appeals for Montgomery County which affirmed the conviction
and sentence. State v. Glover, 2016-Ohio-2749, 2016
Ohio App. LEXIS 1634 (2nd Dist. Apr. 29, 2015);
appellate jurisdiction declined, 146 Ohio St. 1492 (2016).
pleads four grounds for relief:
Ground One: Due process violated by conviction of Defendant
without proving each element of crime beyond reasonable
Supporting Facts: The state never prove [sic] any offense of
rape. There was no DNA evidence or any evidence for the
Defendant to be convicted of rape. The Defendant was actually
innocence [sic]. The victim lied and the State had no
physical or medical evidence. [Citing] Fiore v.
White, 531 U.S. 25-229 (2001).
Ground Two: Ineffective assistance [of counsel] of trial and
appellate counsel violated Due Process of U.S. Constitution.
Supporting Facts: Trial and appellate counsel failed to raise
meritorious 14th Amendment claim. Counsel failed
to move for dismissal of charges when there was no medical
records put into evidence by the State of Ohio to prove any
rape. Counsel performance was deficient and errors prejudiced
defense, depriving petitioner of fair trial; counsel also
failed to investigate petitioner's claims, evidence, and
case. [Citing] Robinson v. Schriro, 595 F.3d
1086-1104 (2010); Joshua v. DeWitt, 341 F.3d 430-50
(6th Cir. 2003).
Ground Three: Prosecution suppressed evidence favorable to
defense, violated due process, knowing that petitioner was
Supporting Facts: The petitioner was denied full panoply of
protections afforded to a criminal defendant by the U.S.
Constitution. Brown v. Palmer, 2005 U.S. Dist. LEXIS
3185. Due process violated when prosecution withheld evidence
that the only evidence the State had was hearsay testimony
which caused actual prejudice, which was used from 911 tapes
in violation of Confrontation Clause had substantial and
injurious [effect]. [Citing] Brecht v. Abrahamson,
507 U.S. 619-30 (1993); Brown v. Keane, 355 F.3d 82,
92 (2nd Cir. 2004); Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194 (1963).
Ground Four: The verdict was entered upon insufficient
evidence in violation of the Due Process Clause of the
14th Amend. U.S. Const.
Supporting Facts: The petitioner's conviction is not
constitutionally sound; not any elements of the crime was
proved beyond a reasonable doubt. [Citing] Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979); In re
Winship, 397 U.S. 358, 90 S.Ct. 1068 (1970); Johnson
v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000);
Bagby v. Sowders, 894 F.2d 792-794 (6th
Cir. 1990)(en banc).
(Amended Petition, ECF No. 3, PageID 15-20.)
One and Four: Insufficient Evidence
First and Fourth Grounds for Relief, Mr. Glover claims he was
convicted on insufficient evidence.
allegation that a verdict was entered upon insufficient
evidence states a claim under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re
Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders,
894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order for a
conviction to be constitutionally sound, every element of the
crime must be proved beyond a reasonable doubt. In re
Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt . . . . This
familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United
States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS
76699 (S.D. Ohio 2007). This rule was recognized in Ohio law
at State v. Jenks, 61 Ohio St.3d 259 (1991). Of
course, it is state law which determines the elements of
offenses; but once the state has adopted the elements, it
must then prove each of them beyond a reasonable doubt.
In re Winship, supra. A sufficiency challenge should
be assessed against the elements of the crime, not against