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Howard v. Warden, London Correctional Institution

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

June 1, 2017

EVERETTE E. HOWARD, Petitioner,
v.
WARDEN, London Correctional Institution Respondent.

          Thomas M. Rose District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This habeas corpus case is before the Court for decision on the merits. Petitioner filed the Petition (ECF No. 1) and a Traverse (ECF No. 12). Respondent filed the state court record (ECF No. 4) and an Answer/Return of Writ (ECF No. 5).

         Howard pleads the following Grounds for Relief:

Ground One: The trial court erred in allowing the prosecution to continuously lead witnesses through improper comment and as a result, Howard did not receive a fair trial.
Supporting Facts: The Prosecutor's use of leading questions and providing details and answers to the questions asked to the witness, because the vague inconclusiveness testimony of the witnesses, force fed testimony. Trial counsel failed to object to State's repeated leading. Trial counsel failed to move for mistrial. Appellate counsel failed to argue trial counsel faile[d] to object to State's continuous use of leading questions and failed to move for mistrial.
Ground Two: Appellate counsel was ineffective when he failed to argue that Howard's right to due process by the 5th Amendment to U.S. Constitution was violated.
Supporting Facts: The indictment failed to properly present the elements of the charged; sufficiently differentiate between the counts charged, and violated Howard's right to be protected from double jeopardy. And did not give adequate notice of the charges.
Ground Three: Appellate counsel was ineffective under the 6th Amendment to the U.S. Constitution when counsel failed to argue trial counsel's ineffectiveness for failing to move for recusal.
Supporting Facts: Appellate counsel was ineffective for failure to investigate Howard's case. Judges Adkins who was a part-time prosecutor and acting judge at the time of this case, his 32 year old son Christopher J. Adkins was convicted of assaulting two girls ages 12 and 14, bias and lack of impartiality. Counsel failed to move for recusal when grounds for recusal was presented. Howard was deprived his right to an impartial trier of fact and denied due process and a fair trial, bench trial.
Ground Four: Manifest weight of the Evidence.
Supporting Facts: The victim's testimony was inconsistent and substantially contradicted by other witnesses, and much of the victim's testimony was inconsistent and substantially contradicted and the testimony was obtained through the use of leading questions and suggestive questions.

(Petition, ECF No. 1.)

         Procedural and Factual History

         On September 18, 2013, Howard was indicted by the Montgomery County Grand Jury on three counts of gross sexual imposition of a child under the age of 13 (Ohio Revised Code § 2907.05(A)(4)) (State Court Record, ECF No. 4, PageID 24) and on November 13, 2013, the Montgomery County grand jury re-indicted Howard on two counts of attempted rape of a child under the age of 13 (Ohio Revised Code § 2907.02(A)(1)(b)), two counts of gross sexual imposition of a child under the age of 13 (Ohio Revised Code § 2907.05(A)(4)), and one count of kidnapping with a sexual motivation specification (Ohio Revised Code § 2905.01(A)(4)) (State Court Record, ECF No. 4, PageID 26).

         Howard, through counsel, waived a trial by jury and following a bench trial, was found guilty of two counts of attempted rape of a child under the age of 13 and five counts of gross sexual imposition of a child under the age of 13. The trial court found Howard not guilty of the one count of kidnapping with a sexual motivation specification. Following a hearing, the trial court merged Howard's attempted rape convictions for sentencing purposes and sentenced Howard to a term of eight years in prison for the attempted rape of a child under the age of 13 and sixty concurrent months in prison for each gross sexual imposition of a child under the age of 13, resulting in an aggregate 8-year prison sentence (State Court Record, ECF No. 4, PageID 52).

         Howard appealed to the Ohio Second District Court of Appeals which set forth the facts of this case as follows:

[*P3] The victim, K.R., was born in December 2000 to Mother and Father. The parents divorced on June 23, 2010. Father has a sister, L.R. Howard and L.R. have been in a relationship during all times relevant hereto. The parties stipulated that L.R. leased an apartment on “Walnut Street” in Riverside from August 1, 2008, to August 3, 2009. This residence was a single-story, one-bedroom apartment. The parties further stipulated that from August 1, 2009 to September 2, 2010, L.R. leased a two-story, two-bedroom apartment on “Elm Street” in Riverside. The record contains a stipulation that L.R. leased a house on “Maple Street” in Huber Heights from August 19, 2010 until August 31, 2011. Finally, the parties stipulated that L.R. leased an apartment on “Oak Street” in Riverside from September 2, 2011 to June 3, 2013. Howard lived with L.R. at each of these residences.
[*P4] K.R. had a close relationship with L.R. and Howard, and would spend time, including overnights, at their various residences. At times, K.R. would sleep in the same bed with L.R. and Howard, in between the two adults, with her head by their feet.
[*P5] The first time that Howard touched K.R. was at the “Elm Street” apartment during the summer. K.R. had spent the night at the apartment. When she awoke, her aunt had left to go to work, and K.R. was alone in the bed with Howard, who was looking at her. After Howard said “good morning, ” he pulled K.R. on top of him, grabbed her by the hips, and forced her to “pump” him while he rubbed his penis against her vagina. Tr. p. 320. K.R. was clothed, and Howard was wearing boxer style underwear. Howard had his laptop computer in the bed at the time. He told K.R. to look away as he typed in a web address. Howard then showed K.R. a pornographic video. K.R. then got up and went to the bathroom. Afterward, Howard asked her if she was okay, and made her promise not to tell anyone what had occurred. Another incident occurred in the same residence on the same day. Howard again pulled K.R. on top of him and rubbed his penis against her vaginal area. Both were again wearing clothes.
[*P6] Howard next assaulted K.R. after he and L.R. moved to the house on “Maple Street.” Howard was in the home office sitting in a chair, drawing a picture for his anniversary with L.R. K.R. was watching him draw when Howard instructed her to get a blanket. When K.R. returned with the blanket, Howard placed it over her head, and pulled her onto his lap. He then pressed his penis against her buttocks, and moved her around on top of him.
[*P7] The next assault occurred in the same residence in the bedroom shared by Howard and L.R. Howard and K.R. were on the bed, clothed, when Howard pulled her on top of him. He then got off of the bed, stood beside it, and pulled K.R. to the edge of the bed. He removed her pants, and flipped her over onto her stomach. Howard pulled his pants down a bit, and pushed K.R.'s underwear to the side. He then grabbed her by the waist and tried to put his penis inside her buttocks. When he failed to penetrate, he flipped K.R. onto her back and tried to force his penis into her vagina over her underwear. Howard also placed his hands on K.R.'s head, and attempted to place his penis into her mouth [*P8] The next assault occurred in the apartment on “Oak Street, ” when K.R. was in the residence playing a video game. At that time, Howard was lying on the couch. He pulled K.R. onto his lap and pressed his penis against her vaginal area. Both were clothed. Howard also, on another occasion, pulled his pants down to expose his penis. He then grabbed K.R.'s hands and forced her to rub his penis.
[*P9] Eventually, K.R. revealed the abuse to her good friend. A few months later, in November 2011, she informed her mother of the abuse, at which time Mother called the father, and asked him to come over. The matter was discussed, and the parents decided to contact the police. K.R. indicated that she did not disclose every detail of the abuse at that time. She did not discuss the abuse with her parents after that date.
[*P10] After the police were contacted, K.R. was examined at Children's Hospital in Dayton, and was interviewed at CARE House. Her father eventually took her to a therapist. The record shows that K.R. revealed more details during the CARE House interview, as well as to the therapist. K.R. testified before a Grand Jury. Of relevance to that testimony, she ...

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