United States District Court, S.D. Ohio, Western Division, Dayton
District Judge, Walter Herbert Rice
ORDER TO PAY FILING FEE; REPORT AND
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
habeas corpus case is before the Court for decision on the
merits. Petitioner filed the Petition pro se (ECF No. 1) but
a Reply through counsel (ECF No. 15). Respondent filed an
Answer/Return of Writ (Doc. No. 8).
has never paid the filing fee in this case, nor sought leave
to proceed in forma pauperis. Considering that he is
now represented by retained counsel, he is ORDERED to pay the
filing fee ($5.00) forthwith.
pleads the following seven Grounds for Relief:
GROUND 1: Petitioner's due process rights were violated
under the 14th Amendment based on insufficient evidence in
Counts One, Two, and Three.
Supporting Facts: There were no witnesses and no evidence of
invasion of privacy. There was no secretive or surreptitious
activity. There was no evidence, including testimony, of the
element, “for the purpose of sexually arousing or
gratifying (one's) self.” GROUND 2:
Petitioner's due process rights were violated under the
14th Amendment based on insufficient evidence in Counts 4 and
Supporting Facts: There was no physical or psychological
evidence of abuse; no blood, no injury, no DNA, no
psychological markers of abuse. There were no complaints
before the February 18, 2011, allegation. The physical
condition limitations of the petitioner on February 18, 2011,
were inconsistent with the alleged act. There were no
witnesses to the allegedly hundreds of assaults over many
years, always in the presence of at least one other,
GROUND 3: Petitioner's due process rights were violated
under the 6th and 14th Amendments when the State used leading
questions despite objections.
Supporting Facts: The State developed much of its case
through the use of leading questions on direct examination.
State's witnesses were not of “tender years”
or limited intelligence. The trial court erred in its
definition of “leading question.” This resulted
in substantial prejudice to the petitioner.
GROUND 4: Petitioner's right to a fair trial under due
process was violated under the 5th, 6th, and 14th Amendments
by prosecutorial misconduct.
Supporting Facts: The State used “class warfare”
comments to inflame the passions of the jury. The State's
referencing items in closing that were not present as
evidence in trial.
GROUND 5: Petitioner's due process rights were violated
under the 5th, 6th, and 14th Amendments when he was sentenced
to non-minimum, consecutive sentences as a first-time
Supporting Facts: The trial court initially failed to make
the necessary findings on record of facts supporting
non-minimum, consecutive sentences. While this was remanded
back to the trial court for a nunc pro tunc entry, this
should have resulted in a void sentence and a remand for the
minimum concurrent sentences as envisioned and intended by
the Ohio State Assembly in Senate Bill 2 and House Bill 86.
GROUND 6: Petitioner's due process rights were violated
under the 6th and 14th Amendments due to the prejudicial
effect of cumulative errors.
Supporting Facts: The cumulative effect of all the errors by
the trial court and prosecutors that may be found harmless or
otherwise individually, denied the petitioner due process and
a fair trial.
GROUND 7: Petitioner's due process rights were violated
under the 6th and 14th Amendments with the trial court
reversal of its prior decision for severance.
Supporting Facts: The trial court established that the risk
of prejudice to the petitioner of joinder was
“extreme” in sustaining petitioner's motion
to sever. That prejudice remained when the court reversed
itself. The trial court's “decision/entry and
order” is a final, appealable order, thus not subject
to a motion for reconsideration and subsequent reversal. The
State's late filing of its motion for reconsideration was
in violation of Ohio's criminal rules and not supported
by “good cause” exception. The jury was unable to
make a simple and direct evaluation of the indictments
regarding each alleged victim individually.
(Petition, ECF No. 1, PageID 1-16.)
and Factual History
was indicted by the Montgomery County Grand Jury in 2012 on
one count of attempt to commit voyeurism (Ohio Revised Code
§ 2907.08(C)/2923.02(A)(1)) (Count 1); three counts of
voyeurism (Ohio Revised Code § 2907.08(C)) (Counts 2, 3
and 4) (count 4 was later amended to include the language
“for the purpose of sexually arousing or gratifying
himself”); nine counts of rape (victim less than 13)
(Ohio Revised Code § 2907.02(A)(1)(b)) (Counts 5-9 and
11-14); two counts of menacing by stalking (Ohio Revised Code
§ 2903.211(A)(B)(2)(d)) (Counts 10 and 17); and two
counts of unlawful sexual conduct with a minor (Ohio Revised
Code § 2907.04(A)(B)(3)) (Counts 15-16) (State Court
Record, ECF No. 7, PageID 34). Prior to trial, the State
dismissed one count of voyeurism relating to victim
and two counts of menacing and during trial, the State
dismissed one count of rape involving R.D. The jury found
Petitioner guilty on all remaining counts. Goldblum was
sentenced on July 23, 2013, to a total prison term of 21
years (State Court Record, ECF No. 8, PageID 113).
appealed to the Court of Appeals of Ohio, Second Appellate
District, Montgomery County who set forth the facts of this
case as follows:
[*P3] Over the course of almost a decade, Keith Goldblum
molested his niece, N.D., and some friends of his daughter,
L.G., during sleepovers and slumber parties held at his home.
All of the victims described a similar pattern: Goldblum came
into the room while the girls were sleeping, lifted the
blankets off the girls, pulled down their pajama bottoms and
underwear, and inserted either his fingers or an object into
their vaginas or gazed at their exposed pubic area.
[*P4] Goldblum began molesting his niece, N.D., when she was
five years old. He would come into the room where she was
sleeping with L.G., pull off her covers and clothing, and
then touch her and insert his fingers into her vagina. She
would pretend to wake up or turn over, and he would
eventually stop and leave the room. As she got older, she
would try different things to prevent the molestation, with
varying degrees of success. Tr. 635-667.
[*P5] R.D. was a close friend of L.G. One night when she was
sleeping over at L.G.'s house, she awoke and found
Goldblum standing over her side of the twin bed. Goldblum
pulled away her covers, slid her pajamas and underpants down,
and put a finger in her vagina. He removed his finger when
she pretended to stir in her sleep. Later, in the same year,
she fell asleep with L.G. on a pull-out couch in the living
room. Once again, she awoke to find the covers pulled off,
her pajama bottoms pulled down, and Goldblum staring at her
pubic area. He was illuminating her pubic area with a
flashlight, but then put down the flashlight and inserted
something thin and cold, possibly a pen, into her vagina.
Goldblum and L.G. eventually moved to a new house, but the
same thing happened during sleepovers at the new house.
Consequently, R.D. stopped coming over for sleepovers.
Id. at ...