United States District Court, S.D. Ohio, Western Division
OPINION AND ORDER
MICHAEL R. BARRETT, Judge
matter is before the Court on Petitioner Robert Poandl's
Motion to Vacate under 28 U.S.C. § 2255 and Declarations
in Support of his Motion to Vacate. (Docs. 100, 106-1, 106-2,
106-3). The United States has filed a Memorandum in
Opposition (Doc. 112), to which Petitioner has replied (Doc.
2012, a jury found Petitioner guilty of transporting a minor
in interstate commerce with the intent to engage in sexual
activity in violation of 18 U.S.C. § 2423. The charge
stems from a trip Petitioner allegedly took on August 3,
1991. At the time, Petitioner was a Catholic priest, and he
was travelling from Cincinnati, Ohio to Spencer, West
Virginia to cover mass for another priest, Paul Fredette.
David Harper, the alleged victim, accompanied him on that
trip. David Harper was then ten years old. At trial,
David's mother, Barbara Harper, explained the
relationship between the Harper family and Petitioner, and
how it came about that David accompanied Petitioner on the
Barbara Harper, David Harper's mother, testified that she
and her husband, Mike, moved to Cincinnati in 1988 with their
four children: Chris, Joe, David, and Amanda. Devout
Catholics, she and Mike became involved in Marriage
Encounters, a weekend retreat program designed to strengthen
marriages. Each Marriage Encounters group featured three
couples and a priest. Poandl was the priest for the
Harpers's Marriage Encounters group.
In November 1990, Mike Harper lost his job. Because of this,
during the spring and summer of 1991, Poandl came to their
house frequently, often unannounced. When he came, he would
often bring food, and once he gave the couple money to pay
Although she could not remember the “exact date,
” Barbara believed that sometime “around
August” of 1991, Poandl came by the house and told her
that he had to cover a mass in West Virginia. She testified
that Poandl arrived at her house before dinner, probably
around 4:30 or 5:00 in the afternoon. Poandl asked Barbara if
one of her sons could accompany him on the trip to keep him
company and to help him stay awake at the wheel. She asked
David, then ten years old, if he would be willing to go, and
he initially refused. Barbara responded, “Father Bob
has been so good to us, you know. Please go with him.”
Barbara packed David an overnight bag and watched as Poandl
and her son left. She testified that they left in a blue-gray
When David returned the next morning, Barbara noticed that he
did not look well. She asked him if he was all right, to
which David replied that he felt sick because Poandl had
given him cornflakes with lemonade for breakfast. He asked if
he ever had to go anywhere with Poandl again; Barbara
answered that he did not. He then ran upstairs, clearly
upset. Weeks later, Poandl came by the house and told Barbara
that he would not be visiting the Harpers's house anymore
because none of her sons showed promise to be priests. It is
uncontested that Marriage Encounters is not a recruitment
program for priests.
United States v. Poandl, 612 F.App'x 356, 358
(6th Cir. 2015).
trial, David Harper testified that:
Poandl took him on a trip in the late summer of 1991, around
August, when he was ten-years-old. They left late in the
afternoon or early evening, “probably six or
five.” Poandl drove a sedan that David remembered him
driving on other occasions. When the two arrived in West
Virginia, they spent the night in the rectory at the church.
David awoke at some point in the night to find that Poandl
had entered his bed and had his hand in David's pants,
fondling David's genitalia. When David asked what he was
doing, Poandl replied that he was checking to see if David
was wearing underwear. David fell asleep again, only to be
awakened later by Poandl sodomizing him. David cried out,
“What are you doing to me?” to which Poandl
replied, “We're having sex.” After Poandl
finished, he seemed extremely remorseful and kept repeating,
“I did a bad thing. I did a bad thing.” After
regaining composure, he said to David, “You sinned, and
I sinned, and we need to pray to God for forgiveness, ”
at which point they prayed together. David remembered semen
running down his leg, to the point that Poandl told him that
he should go clean himself up.
The next day, Poandl told David repeatedly to keep to himself
what had happened.
Id. at 359-360. David Harper testified that he did
not tell anyone what had happened until 2009. Id. at
witnesses at trial included Lauren Cope, David Harper's
fiancée; Joseph W. Harper, David Harper's brother;
Karen Fredette, who in August of 1991, was the secretary of
the Holy Redeemer Church where Petitioner was covering mass
for Paul Fredette; and Larry Handorf, a private investigator
hired by the mission where Poandl was based in 1991.
the jury found Petitioner guilty, this Court held a
sentencing hearing and sentenced Petitioner to a prison term
of ninety months. This Court denied Petitioner's motion
for judgment of acquittal and motion for a new trial. On
appeal to the Sixth Circuit Court of Appeals,
Petitioner's conviction was affirmed.
Section 2255 Claim
asserts that he was denied the effective assistance of
counsel in violation of the Sixth Amendment to the United
States Constitution. Petitioner's claim can be broken
down into eleven subclaims:
a) Counsel failed to object to a substantial quantity of
inadmissible, highly prejudicial testimony, and no
conceivable strategy explains the failure to object;
b) The prosecutor mischaracterized testimony of a key
witness, Karen Fredette, and counsel failed to object;
c) The prosecution made defense counsel a percipient witness,
and counsel failed to object, seek a corrective instruction,
or move to withdraw;
d) Counsel failed to object to an improper and highly
prejudicial closing argument;
e) Counsel failed to impeach Karen Fredette for bias despite
being on notice that she had become hostile to Petitioner;
f) Counsel made no effort to impeach the alleged victim,
David Harper with evidence that Harper attempted to obstruct
g) Counsel failed to investigate and offer evidence that
David Harper's drug use and addiction could explain his
belief that his allegations were true even if they were not;
h) Counsel failed to enlist expert help in selecting a jury
in a high profile case with substantial publicity surrounding
priest sexual misconduct generally and the defendant's
case in particular;
i) Counsel failed to monitor publicity during trial and to
request the Court to assure that jurors were not aware of it;
j) Counsel failed to adequately advise Petitioner of his
options with respect to testifying and the circumstances in
which the government might offer Federal Rule of Evidence 414
evidence; and failed to investigate the background of Jeffrey
Allen Hutchison upon whom the government would have relied to
present Rule 414 evidence; and
k) Counsel was unprepared for the sentencing hearing, which
is evidence of the inadequacy of counsel across the board.
prisoner seeking relief under 28 U.S.C. § 2255 must
allege either “(1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory
limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
invalid.” Mallett v. United States, 334 F.3d
491, 496-97 (6th Cir. 2003) (quoting Weinberger v. United
States, 268 F.3d 346, 351 (6th Cir. 2001)).
reviewing a § 2255 motion in which a factual dispute
arises, ‘the habeas court must hold an evidentiary
hearing to determine the truth of the petitioner's
claims.' ” Valentine v. United States, 488
F.3d 325, 333 (6th Cir. 2007) (quoting Turner v. United
States, 183 F.3d 474, 477 (6th Cir. 1999)). However,
“no hearing is required if the petitioner's
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.”
Id. (quoting Arredondo v. United States,
178 F.3d 778, 782 (6th Cir. 1999)).
petitioner claiming ineffective assistance of counsel must
show that his attorney's performance was so inadequate as
to violate his Sixth Amendment rights. Strickland v.
Washington, 466 U.S. 668, 687 (1984).
Strickland's two-part test governs claims of
ineffective assistance of counsel. Under the first or
“performance” prong, the petitioner must show
that his counsel's representation “fell below an
objective standard of reasonableness.” Id. at
688. A court considering a claim of ineffective assistance
must “indulge a strong presumption that counsel's
conduct falls within a wide range of professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged conduct might be
considered sound trial strategy.” Id. at 689.
Under the second or “prejudice” prong, the
petitioner must show “that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. When assessing
prejudice, a court “must consider the totality of the
evidence before the jury . . . . [A] verdict or conclusion
only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record
support.” Id. at 695. If the defendant fails
to prove either deficiency or prejudice, then the
defendant's ineffective assistance of counsel claims
fail. Id. at 697.
those standards in mind, the Court now turns to a review of
the alleged errors identified by Petitioner.
Failure to object
Testimony of Lauren Cope, Barbara Harper, and Joseph
argues counsel was ineffective for failing to object to
testimony on a number of occasions. First, Petitioner argues
that it was error for defense counsel to fail to object to
certain testimony of Lauren Cope, Barbara Harper, and Joseph
Harper. Petitioner explains that the prosecutor elicited
testimony from these witnesses that would establish that
David Harper made the same allegations about Petitioner to
them as he was making at trial. Petitioner argues that even
though these witnesses did not repeat the actual words David
Harper said to them, this testimony was inadmissible hearsay.
Petitioner explains that David Harper was then called to
testify that he made the allegations to his fiancée,
mother and brother. Petitioner argues the credibility of
David Harper's testimony was therefore bolstered by the
earlier testimony of his fiancé, mother and brother.
Federal Rule of Evidence 801(d)(1)(B), a prior statement is
not hearsay if the statement “is consistent with the
declarant's testimony and is offered . . . to rebut and
express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or
motive in so testifying.” In Tome v. United
States, the Court determined a victim's statements
made to witnesses were not admissible as a prior consistent
statement under Rule 801(d)(1)(B) because the statements were
made after her alleged motive to fabricate the testimony
arose. 513 U.S. 150, 160-61115 S.Ct. 696, 130 L.Ed.2d 574
Court finds that an analysis under Rule 801(d)(1)(B) is
unnecessary. Prior to trial, counsel for Petitioner filed a
Motion in Limine seeking to bar the Government from
introducing statements David Harper made to his girlfriend
and parents recounting the alleged sexual abuse by
Petitioner. (Doc. 31). The Government responded to
Petitioner's Motion and stated that it “does not
intend to offer any of the identified out-of-court statements
made by DH to his girlfriend or his parents through either
DH's girlfriend or parents.” (Doc. 35).
addition, counsel for Petitioner successfully objected to any
statements coming in during the direct examination of Lauren
Cope by the Government:
Q. I'm going to direct your attention to the summer of
2009. Can you tell the jury what the status of your
relationship with David was at that time?
A. We had a falling-out at one time in the summer of 2009.
Q. Can you tell the jury what happened that led to that?
A. We went to dinner, and we were just having a conversation.
We had --we were pretty serious in our relationship, had
talked about the future, and I had brought up that I wanted
kids and wanted to have a wedding in a Catholic church, and
he seemed very standoffish.
MR. WENKE: Objection as to what he would say, Your Honor.
THE COURT: Ma'am, you can't testify as to what he
said. You may testify as to his -- as to your observations of
his physical appearance and what you did in response to
anything that he would have said, but you can't tell the
jury what he told you.
That's called hearsay, guys, just so you know.
MS. MUNCY: Your Honor, for the record, she did not say he
made a statement. She said how he appeared.
THE COURT: I understand that, and I think the question -- I
believe the objection was a cautionary one.
MS. MUNCY: Thank you.
(Doc. 60, PAGEID #241-42). The Government then continued to
question Lauren Cope about the conversation between David and
herself. (Id., PAGEID #242-43). At no time did Cope
testify as to any of the statements David made. Instead, Cope
described David's appearance and the advice she gave him.
(Id., PAGEID #242, 243).
points out that the Government argued during closing
arguments that David Harper told Lauren Cope about the
accusations against Petitioner. (See Doc. 68, PAGEID # 801)
(“And ask yourselves just for a minute -- David has
this conversation with Lauren, the woman he loves that
he's getting ready to marry, maybe, until she brings up
the Catholic Church, and then that puts the brakes on
everything. He tells her what happened.”). However,
David Harper himself testified what he told Lauren:
. . . So the nightmares had gotten worse, and I was getting
resolved that I wanted to go and kill him and to make him --
to punish him for what he had done. And then also it just --
it kind of -- it was a Saturday evening. Lauren and I had
gone out. We had had dinner, and somehow there was some
conversation about getting baptized or something to that
effect. I'm like, "There is no way I'm going to
raise my kids Catholic."
And I just said it very adamantly, and basically that and the
fact that I was -- had -- I was basically at that point
planning on killing him.
I wanted to kind of get Lauren away from the situation, so I
-- that next morning, I woke up and I broke up with her. And
she was crying and went to work, she sent me texts and
calling me. And I felt bad about it, and I felt that, you
know, I at least owed her the truth to be honest with her.
So after work, we -- I agreed to -- said we can get some
dinner and talk about it, went to Chipotle first. I was
really welled up with emotion. I mean, it was -- because I
was -- I decided I was going to tell her. It was the first
person I ever told.
And I got back -- I said I wanted to go back to my apartment.
We went back to my apartment, and I sat on my couch and I
related to her what I just related to you.
(Doc. 62, PAGEID # 526-27).
Barbara Harper was asked by the Government about
conversations she had with David Harper about Petitioner.
Counsel for Petitioner objected twice during that testimony.
(Doc. 60, PAGEID # 298-99, 299). After the second objection,
the following discussion took place during a sidebar
MR. WENKE: This gets back to our motion in limine.
THE COURT: Right.
MR. WENKE: And I know that she's not discussing hearsay.
But, at the same time, at some point if David attempts to
talk about this, it's still hearsay because just saying,
telling ten different people about something doesn't make
it more credible. It still has to fit in the exception, and
it does --
THE COURT: You mean if she tries to say it. David can testify
as to what he said.
MR. WENKE: Well, it's our position it would not unless it
fits a recognized exception if --
THE COURT: Why couldn't David say what he said?
MR. WENKE: Because basically it's an attempt using a
prior consistent statement to bolster current credibility --
pardon me, not consistent. It does not fit with any hearsay
exception. It's our point that if he came in and said,
"I told ten different people about this one way or the
other, " unless I raised the issue it's not
admissible as an exception.
THE COURT: We'll have to deal with that at that time, but
how can a statement made by the declarant be hearsay?
MR. WENKE: It can be in the sense that, number one, if it
doesn't fit an exception to the hearsay doctrine.
THE COURT: But it's not hearsay. But anyway -- MR. WENKE:
That's all right. I understand.
THE COURT: What about the -- Christy was asking what was
turned over. What's your objection to that?
MR. WENKE: We believe she's going to answer that it was a
firearm. And, once again, it's not -- it's a part of
our position that this is being used to try to bolster
credibility, so it's our position it's not relevant.
THE COURT: The physical act of turning something over, I
mean, it's going to be a blank in a jury's mind until
somebody else testifies about it. And she can testify as to
what he actually gave her.
MR. WENKE: I understand.
THE COURT: But not -- she can't say why or anything like
(Id., PAGEID # 299-300). Therefore, the trial
transcript demonstrates that counsel for Petitioner did
object and argue that certain statements by Lauren Cope and
Barbara Harper were hearsay and irrelevant. However, the
Court rejected these arguments.
similar fashion, counsel for Petitioner objected several
times during the direct examination of Joseph Harper by the
Q. I want to jump ahead to 2009.
Q. At that time, did you talk to David about what had
happened in West Virginia?
A. I did, yeah.
Q. And could you describe David's demeanor when he told