United States District Court, S.D. Ohio, Eastern Division
HENRY A. DURDIN, JR., Petitioner,
WARDEN, MANSFIELD CORRECTIONAL INSTITUTION, Respondent.
ALGENON L. MARBLEY, JUDGE
REPORT AND RECOMMENDATION
Terence P. Kemp, United States Magistrate Judge
Henry A. Durdin, Jr., an inmate at Mansfield Correctional
Institution (“MCI”), filed this petition for a
writ of habeas corpus pursuant to 28 U.S.C. §2254. This
matter is before the Court on the petition (Doc. 3) and the
Respondent's return of writ (Doc. 7). Petitioner has not
filed a traverse. For the foregoing reasons, it will be
recommended that the petition be DENIED and this case be
facts of the case are summarized by the Franklin County,
Ohio, Court of Appeals:
4} Lindsey McNichols, a Sexual Assault Nurse
Examiner (“SANE”) who interviewed the victim at
The Ohio State University Hospital East, did testify at
trial. The SANE nurse stated that the victim arrived at the
hospital at 1:00 a.m. on May 23, 2013. The general emergency
room staff took a general medical history and did an
assessment of the victim's immediate medical needs. The
victim then spoke with Detective David Bobbitt, a detective
with the sexual assault unit of the Columbus Police
Department. After speaking with the detective, the victim met
with the SANE nurse at 3:10 a.m. (State's exhibit E.)
She was grabbed by her hair and hit on the right side of her
face with a fist, and then hit on the left side, and then
dragged and put on her stomach. Tied her hands and feet with
shoestrings. And then she said that there was a gun involved
and the safety was taken off the gun and there was sex. And
that her hands and feet were untied during that time. But
after that, she was able to shower but then duct taped. She
said that she was duct taped by her hands, legs, and then
around her mouth. And after that, she said that the tape was
yanked off of her face because she was trying to talk and
wasn't able to be heard. And then she said that she faked
like something was wrong with her heart, and she was told to
take two of her anxiety pills and given those. And after
that, she was given something to eat. And then said that she
was able to become free and convinced her assailant to go get
some mental health care and she drove him there and then came
to the hospital.
6} In examining the victim, the SANE nurse
discovered “two abrasions to her left cheek, ” as
well as “abrasions and swelling to her lower lip mainly
on the left side. * * * And then she had on both of her
wrists, she had some purple areas with abrasions that were
kind of reddened.” (Tr. 66.) The nurse also noted a
thin white discharge coming out of the victim's vaginal
vault. The SANE nurse explained that she had been trained on
how to collect evidence for the “sexual assault
evidence collection kit” issued by the Ohio Department
of Health. (Tr. 81.) The SANE nurse took a swabbing of the
white discharge, and swabbed other areas of the victim's
body and clothing for the evidence collection kit. Forensic
DNA testing conducted on the items in the kit revealed that
the victim's vagina and underwear contained semen, and
the semen yielded a DNA profile consistent with both
defendant and the victim.
8} Officers apprehended defendant the following
morning. Defendant did not have a gun on him when he was
apprehended. Detective Bobbitt testified that he listened to
a phone call defendant had made to the victim while in jail.
In the recorded phone conversation, which was played for the
jury, the victim says, “I begged you not to do it,
” and the defendant responds saying “it
wasn't me, it was the devil.” (Tr. 122.)
Defendant explained that the morning after they had
consensual sex, the victim woke up and “she wanted the
rent money and, you know, the light bill money, and [as he]
already spent it on heroin, she got mad and we got into it,
we started fighting and arguing real bad .” (Tr. 174.)
Defendant admitted that he “hit her, [he] spit on her,
[he] pulled her hair and [he] slapped her” as the
couple fought. (Tr. 176.) Defendant testified that the victim
dropped him off at the mental health care facility later that
evening, because she said he needed help. Defendant stated
that he “did not rape” the victim, that he did
not see a gun at the victim's house, and that he never
possessed a gun. (Tr. 175.) Defendant stated that he believed
the victim “owned a pellet gun, ” but not a real
gun. (Tr. 175.)
(Doc. 7, Ex. 15); State v. Durdin, 2014 WL 7462990,
at *1-*3 (Franklin Cty. Dec. 30, 2014). The factual
narratives set out by the state court are presumed to be
correct. 28 U.S.C. §2254(e)(1).
Trial Court Proceedings
was indicted by the Franklin County Grand Jury on May 31,
2013, charging him with one count of kidnapping (O.R.C.
§2905.01) with a firearm specification; one count of
rape (O.R.C. §2907.02) with a firearm specification and
a sexually violent predator specification; one count of
aggravated robbery (O.R.C. §2911.01) with a firearm
specification; one count of domestic violence (O.R.C.
§2919.25) with a firearm specification; and one count of
possessing a weapon under a disability (O.R.C.
§2923.13). (Doc. 7, Ex. 1). Petitioner pleaded not
guilty to the charges.
the pretrial proceedings, Petitioner filed two motions
in limine to exclude alleged hearsay testimony
from Patricia Daniels, the victim's sister, and from
Lindsay McNichols, the SANE nurse. Rather than rule
pretrial, the court took the motions under advisement and
indicated that it would respond to any objections made
during trial. (Tr. at 16-20). The State had filed a motion
to depose the victim, but the motion was withdrawn on the
day of the trial and no deposition occurred. (Doc. 7, Ex.
3; Tr. 20-21). Objections to the SANE nurse's testimony
during trial were overruled, and the victim's sister
testified without objection. (Tr. 60-61; 36-44). After the
state rested its case, and again after the defense rested
its case, Petitioner unsuccessfully moved for acquittal
under Rule 29. (Tr. 165, 183). The jury found Petitioner
guilty of all counts and specifications. (Doc. 7, Ex. 4).
March 18, 2014, Petitioner was sentenced to twenty years to
life imprisonment. The sentencing entry provides, in
pertinent part, as follows:
For purposes of sentencing Counts One and Three merge and the
Defendant is sentenced to Three (3) years on Count Three with
an additional, consecutive Three (3) years as to the firearm
specification; Eleven (11) years to Life as to Count Two,
this is with the specification finding that the Defendant is
a sexually violent predator (life tail), and with an
additional, consecutive Three (3) years as to the firearm
specification; Eighteen (18) months as to Count Four; and Two
(2) years as to Count Five at the Ohio Department of
Rehabilitation and Correction. Counts Four and Five to be
served concurrently with each other and to other counts.
Count Two and Count Three to be served consecutively to each
other and to all specifications. Total incarceration is
Twenty (20) years to life.
(Doc. 7, Ex. 5).
timely appealed his conviction (Doc. 7, Ex. 9-10), raising
the following assignments of error:
1. The trial court violated Defendant-Appellant‘s
rights to due process and a fair trial when in the absence of
sufficient evidence and against the manifest weight of the
evidence the trial court found Defendant-Appellant guilty of
rape, kidnapping with sexually violent predator
specification, aggravated robbery, having a weapon while
under disability, and firearm specifications.
The trial court erred in denying
Defendant-Appellant‘s Motion in Limine when the
victim‘s statements to medical personnel, contained
in her medical records, were testimonial and not admissible
under Evid. R. 803(4).
December 30, 2014, the Court of Appeals sustained
Petitioner's second assignment of error, and sustained in
part and overruled in part Petitioner's first assignment
of error. The court found that the trial court erred in
admitting testimony of the SANE nurse recounting the
victim's belief that Petitioner had taken her gun. The
Court found that the record contained sufficient evidence to
convict Petitioner of possessing a firearm under a
disability, but did not contain sufficient evidence to
support the aggravated robbery conviction or the firearm
specifications attached to the aggravated robbery and rape
charge. Accordingly, Petitioner's case was remanded to
the Franklin County Court of Common Pleas. (Tr. 7, Ex.
15-16); Durdin, supra, 2014 WL 7462990.
February 25, 2015, an application to re-open Petitioner's
appeal pursuant to Ohio App. R. 26(B) was filed. (Doc. 7, Ex.
17). Petitioner later sent a letter to Clerk of the Court of
Appeals requesting that the application be removed from the
record because it was forged and filed without his consent.
The court construed the letter as a motion to dismiss the
application, which it granted. (Doc. 7, Ex. 19).
Motion for Production of Transcripts
November 4, 2014, while his appeal was pending, Petitioner
filed a motion for production of transcripts, which was
opposed by the State. (Doc. 7, Ex. 12-13). The motion was
denied on November 25, 2014. (Doc. 7, Ex. 14).
Appeal to the Ohio Supreme Court
respect to the convictions that were affirmed on direct
appeal, Petitioner filed a pro se appeal to the Ohio
Supreme Court (Doc. 20-21), raising the following
propositions of law:
I. Mr. Durdin's convictions for rape, kidnapping, having
a weapon under disability, and a sexually violent predator
specification are not supported by the manifest weight or
sufficiency of the evidence, and violated his 5th, 6th and
14th Amendment rights under the U.S. Constitution.
Trial counsel was ineffective for not cross-examining the
State‘s witnesses at all, or inadequately questioning
them. Trial counsel was ineffective for not objecting to the
State's presentation of only ten seconds of the recorded
call between Mr. and Ms. Durdin.
repeated testimony by the state's witnesses rendered the
trial fundamentally unfair by introducing inadmissible
hearsay about the alleged presence of a firearm.
trial court erred by allowing Patricia Daniels' hearsay
testimony since the alleged victim was never determined to be
unavailable at trial.
20, 2015, the Ohio Supreme Court declined to accept
jurisdiction. (Doc. 7, Ex. 23).
Proceedings on Remand
awaiting re-sentencing, Petitioner moved for full discovery
and the State opposed the motion (Doc. 7, Ex 24-25). The
trial court did not rule on that motion. On March 31, 2015,
Petitioner went before the trial court for re-sentencing
pursuant to the decision of the Court of Appeals. He was
sentenced to three years in prison for kidnapping; 11 years
to life for rape; 18 months for domestic violence; and two
years for possessing a weapon under a disability. The
sentences for domestic violence and possessing a weapon under
a disability were again to be served concurrently with each
other and the other sentences. The sentences for kidnapping
and rape were to run consecutively, resulting in an aggregate
sentence of 14 years to life. (Doc. 7, Ex. 26).
April 20, 2015, Petitioner filed a pro se notice of
appeal. (Doc. 7, Ex. 27). The appeal was dismissed by the
appellate court sua sponte on June 23, 2015 because
Petitioner did not file a brief. (Doc. 7, Ex. 28). Petitioner
did not appeal to the Ohio Supreme Court.
Application to Re-open Appeal
4, 2015, Petitioner filed a pro se application for
re-opening of his appeal pursuant to Ohio App. R. 26(B) (Doc.
7, Ex. 29), raising the following grounds:
1. Defense counsel was ineffective for not objecting to the
hearsay testimony of Detective Bobbitt and the hearsay
testimony of the alleged victim‘s sister Patricia
Daniels. Both testimonies were testimonial cause
[sic] the victim did not testify or provide any
testimony and the alleged victim was never determined to be
unavailable by the court, and it violated his 6th and 14th
Amendment rights under the U.S. Constitution and under the
Confrontation Clause and under Crawford v
Washington, 541 U.S. 36 (2004).
Defense counsel was ineffective for not renewing the
defendant‘s motion in limine when the alleged
victim‘s sister got on the stand to testify her
testimony was testimonial. It was all hearsay and it
violated the defendant‘s rights under the U.S.
Constitution the Confrontation Clause and under
Crawford v Washington, 541 U.S. 36 (2004).
3. Defendant was denied due process of law and a fair
trial when the prosecutor cross-examined the defendant in an
improper and abusive manner and how the prosecutor told the
jury in closing statements how the defendant raped and
terrorized the victim with a gun. The Tenth District Court of
Appeals said when the nurse testified about a gun it violated
my rights so when the prosecutor told the jury about the gun
it violated the defendant‘s rights.
The Tenth District Court of Appeals rendered a decision on
my appeal (14AP-249) December 30, 2014. One of my
assignments of error was, the trial court erred in denying
Appellant‘s Motion in Limine when the victim‘s
statements to medical personnel, contained in her medical
records, were not admissible under Evid.R. 803(4). The
victim was never determined to be unavailable before trial,
so it is all testimonial and inadmissible per
Crawford. The Tenth District Court of Appeals said
when the victim told the nurse about the gun it was
testimonial cause [sic] the victim would have
reason to believe the statement would be available for use
at a later trial and the rest of her statement was non
testimonial cause [sic] she did not think it would
be used at a later trial. Crawford states,
statements made under circumstances which would lead an
objective witness reasonably to believe that the statement
would be available for use at a later trial. [sic]
If she knew the statement about the gun would be used at a
later trial, she knew her whole statement would be used.
Crawford does not say half and half. Either she
knew or she didn‘t. How can a woman accuse a man of
rape and not have to come to trial. The Tenth District
Court of Appeals compared my case to State v.
Arnold 126 Ohio St.3d 290 (2010), State v.
Stahl, 111 Ohio St.3d 186 (2006) and State v.
Muttart, 116 Ohio St.3d 5 (2007). In all those cases
the victim was determined to be unavailable due to some
kind of circumstance. In my case the victim was never
determined to be unavailable. She did not come to trial
cause [sic] she lied on the defendant. The whole
trial was ILLEGAL.
5. Appellate counsel did not raise my other assignments
of error that are in the 26(B). Ineffective assistance of
appeal counsel cause [sic] he did not bring up on
appeal that the prosecutor would not drop the case even after
the victim told him to drop the case that it did not happen.
August 20, 2015, the Court of Appeals denied his motion
because it was untimely. (Doc. 7, Ex. 31-32). Petitioner did
not appeal to the Ohio Supreme Court.