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Durdin v. Warden, Mansfield Correctional Institution

United States District Court, S.D. Ohio, Eastern Division

April 6, 2017

HENRY A. DURDIN, JR., Petitioner,
v.
WARDEN, MANSFIELD CORRECTIONAL INSTITUTION, Respondent.

          ALGENON L. MARBLEY, JUDGE

          REPORT AND RECOMMENDATION

          Terence P. Kemp, United States Magistrate Judge

         Petitioner, 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 DISMISSED.

         I. Factual Background

         The facts of the case are summarized by the Franklin County, Ohio, Court of Appeals:

{¶ 3}

         {¶ 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.)

{¶ 5}
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.

{¶ 7}

         {¶ 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.)

{¶ 9}
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).

         II. Procedural History

         A. Trial Court Proceedings

         Petitioner 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.

         During 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).

         On 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).

         B. Direct Appeal

         Petitioner 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.

         2. 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).

         On 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.

         On 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).

         C. Motion for Production of Transcripts

         On 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).

         D. Appeal to the Ohio Supreme Court

         With 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.

         IV. The repeated testimony by the state's witnesses rendered the trial fundamentally unfair by introducing inadmissible hearsay about the alleged presence of a firearm.

         VI. The trial court erred by allowing Patricia Daniels' hearsay testimony since the alleged victim was never determined to be unavailable at trial.

         On May 20, 2015, the Ohio Supreme Court declined to accept jurisdiction. (Doc. 7, Ex. 23).

         E. Proceedings on Remand

         While 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).

         On 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.

         F. Application to Re-open Appeal

         On May 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).

         2. 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.

         4. 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.

         On 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.

         G. ...


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