United States District Court, S.D. Ohio, Western Division
EVERETTE E. HOWARD, Petitioner,
WARDEN, London Correctional Institution Respondent.
M. Rose District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
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).
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
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
(Petition, ECF No. 1.)
and Factual History
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).
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).
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
[*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
[*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
[*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 ...