United States District Court, S.D. Ohio, Western Division
ROBERT E. BOWER, Petitioner,
CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.
AND ENTRY ADOPTING UNITED STATES MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATIONS (DOC. #11) AND SUPPLEMENTAL REPORT
AND RECOMMENDATIONS (DOC. #16); OVERRULING PETITIONER'S
OBJECTIONS THERETO (DOCS. ##14, 17); DISMISSING WITH
PREJUDICE PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF
HABEAS CORPUS (DOC. #2); DENYING CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS; JUDGMENT TO ENTER IN
FAVOR OF RESPONDENT AND AGAINST PETITIONER; TERMINATION
H. RICE UNITED STATES DISTRICT JUDGE
Robert Bower was charged with rape and kidnapping. Bower,
then age 63, allegedly forced the victim, then age 26, to the
floor in the basement of his pizza shop and performed
cunnilingus on her, penetrating her vagina with his tongue.
Bower denied that he touched his mouth to the victim's
vaginal area. Instead, he claimed that he licked his fingers
and slid them inside her pants. He denied penetrating her
was convicted of rape and kidnapping and sentenced to eight
years in prison. After exhausting his appeals in state court,
he filed a Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus. Doc. #2. United States Magistrate Judge
Michael R. Merz has recommended that the Court dismiss that
Petition with prejudice.
on the reasoning and citations of authority set forth by
Magistrate Judge Merz in his Report and Recommendations (Doc.
#11), and Supplemental Report and Recommendations (Doc. #16),
as well as upon a thorough de novo review of this
Court's file and the applicable law, the Court ADOPTS
said judicial filings in their entirety. Petitioner's
Objections thereto (Docs##14, 17) are OVERRULED.
Judge Merz properly found that Petitioner's First Ground
for Relief, alleging due process and equal protections
violations in connection with his sentencing, is procedurally
defaulted. Petitioner admits that he did not raise his
constitutional claims in state court. He instead directs the
Court to untimely arguments made in his Traverse.
Petitioner's procedural default is not excused by
ineffective assistance of counsel. Although he raised other
ineffective assistance of counsel claims in state court, he
did not raise any related to his equal protection and due
his procedural default excused by the "actual
innocence" exception. Magistrate Judge Merz found that
Petitioner had presented no new evidence to support a claim
of actual innocence. Petitioner points to a report by Dr. Dan
Krane of Forensic Bioinformatics, Doc, #10-1, PageID##465-66,
and to a report by Hallie Garofalo, a forensic scientist at
the Ohio Bureau of Criminal Investigation, Doc. #10-1,
PageID#487. Both reports are attached to Petitioner's
report exonerates Petitioner. In fact, both reports conclude
that the DNA profile of the vaginal swabs taken from the
victim is consistent with Mr. Bower. Dr. Krane concludes that
the lab reports are consistent with oral sex, but he
acknowledges that Bower's DNA also could have been
transferred there by other means, including by touching.
Although this would be consistent with Bower's testimony,
it does not eliminate the possibility that Bower performed
cunnilingus on the victim, as she alleged. Accordingly, the
"actual innocence" exception to the procedural
default rule does not apply.
respect to the Second Ground for Relief, Magistrate Judge
Merz properly found that this claim was not only procedurally
defaulted, but also failed on the merits. He correctly noted
that "sufficiency of the evidence" claims are
entitled to double deference. Viewing the trial testimony and
exhibits in the light most favorable to the prosecution, the
first question is "whether any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt." The court must also "defer to
the state appellate court's sufficiency determination as
long as it is not unreasonable." Brown v,
Konteh, 567 F.3d 191, 205 (6th Cir. 2009).
repeatedly argues that because he was charged with rape under
Ohio Revised Code § 2907.02(A)(2), and not with
cunnilingus under Ohio Revised Code § 2907.01(A), the
prosecution was required to prove penetration. Although the
victim testified that he penetrated her vagina with his
tongue, he argues that there was insufficient evidence of
penetration, given that none of the victim's DNA was
found in his mouth.
misunderstands Ohio's statutory scheme. Section
2907.01(A) merely provides the definition for
"sexual conduct." It reads as follows:
As used in sections 2907.01 to 2907.38 of the Revised Code:
(A) "Sexual conduct" means vaginal intercourse
between a male and female; anal intercourse, fellatio, and
cunnilingus between persons regardless of sex; and, without
privilege to do so, the insertion, however slight, of any
part of the body or any instrument, apparatus, or other
object into the vaginal or anal opening of another.
Penetration, however slight, is sufficient to complete
vaginal or anal intercourse.
Ohio Rev. Code § 2907.01(A), Petitioner correctly notes
that he was not convicted under this section. Nor could he
be, given that it simply sets forth the definition of
"sexual conduct." It does not criminalize any
particular conduct. For that, we must ...