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Glover v. Noble

United States District Court, S.D. Ohio, Western Division, Dayton

January 9, 2017

MARVIN GLOVER, Petitioner,
v.
JEFF NOBLE, Warden, Respondent.

          Walter Herbert Rice, District Judge

          REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge

         This 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).

         Glover pleads four grounds for relief:

Ground One: Due process violated by conviction of Defendant without proving each element of crime beyond reasonable doubt.
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 innocence [sic].
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.)

         ANALYSIS

         Grounds One and Four: Insufficient Evidence

         In his First and Fourth Grounds for Relief, Mr. Glover claims he was convicted on insufficient evidence.

         An 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 the ...


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