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Bower v. Jenkins

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

August 23, 2017

ROBERT E. BOWER, Petitioner,
v.
CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.

         DECISION 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 ENTRY

          WALTER H. RICE UNITED STATES DISTRICT JUDGE

         Petitioner 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 vagina.

         Bower 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.

         Based 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.

         Magistrate 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 process arguments.

         Nor is 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 Traverse.

         Neither 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.

         With 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).

         Petitioner 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.

         Petitioner 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 ยง 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 ...


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