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Rios v. Jenkins

United States District Court, N.D. Ohio, Eastern Division

August 28, 2017

STEVEN RIOS, Petitioner,
v.
CHARLOTTE JENKINS, [1] Warden, Respondent.

          MEMORANDUM OF OPINION AND ORDER

          Benita Y. Pearson, United States District Judge.

         Pro Se Petitioner Steven Rios, an Ohio prisoner at the Chillicothe Correctional Institution, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 11), alleging four (4) grounds for relief which challenge the constitutional sufficiency of his conviction in Williams County, Ohio Court of Common Pleas Case No. 12CR000028. The case was referred to Magistrate Judge William H. Baughman, Jr. for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(2). The magistrate judge subsequently issued a Report & Recommendation (ECF No. 22). In his Report, the magistrate judge recommends that the Court deny the petition in part because Grounds One and Two fail on the merits. In addition, it is recommended that the Court dismiss the Petition in part because Ground Three is procedurally defaulted and Ground Four is not cognizable in this federal habeas corpus proceeding. Petitioner filed timely Objections to the magistrate judge's Report (ECF No. 24). The Court, after reviewing the Objections, hereby adopts the Report and dismisses the Petition in part and denies the Petition in part.

         I. Facts

         On direct appeal, the Ohio Court of Appeals described the factual background of Petitioner's trial, conviction, and sentencing as follows:

{¶ 2} On August 12, 2010, then nine-year-old C.N. was brought to a Montpelier, Ohio emergency room by her mother. Mother and daughter told the emergency room physician that C.N. had experienced vaginal bleeding and irritation earlier that month. The mother told the physician that she believed her daughter might be experiencing an early onset of puberty.
{¶ 3} The physician examined the girl and found she exhibited no other traits associated with the onset of puberty. Neither did he find anything to explain the vaginal bleeding and irritation of which she complained. On suspicion that C.N. might be the victim of child abuse, the physician reported the matter to the Williams County Department of Job and Family Services.
{¶ 4} Sometime later, a child abuse investigator visited the school where C.N. and her 11-year-old brother, T.N., attended. The investigator conducted an interview with both children, the result of which was the immediate removal of the children from their home and placement in foster care.
{¶ 5} C.N. later testified at trial that, while her mother worked, she was sometimes left in the care of her mother's boyfriend, appellant, Steven Rios. During one such occasion, C.N. testified, appellant undressed the girl and inserted his “boy part” into her “girl part.” “It hurt” and caused bleeding, the girl reported. Another time, “He stuck his boy part in, or in my mouth.” [sic] C.N. was examined by a physician, Dr. Randall Schlievert, who specializes in child abuse. Based on his on examination and interview with the child and a review of the emergency room report, Dr. Schlievert diagnosed C.N. as a victim of sexual abuse.
{¶ 6} T.N. testified that on multiple occasions appellant “would make me suck his talliwacker.” Both children testified that appellant threatened to harm them if they told anyone. Even so, according to C.N., she told her mother, the result of which was the 2010 trip to the emergency room.
{¶ 7} On February 15, 2012, appellant was named in a three count indictment handed down by the Williams County Grand Jury. The indictment charged three counts of rape of a child under age 13, with a specification on two of the counts that the victim was under age 10. Appellant pled not guilty and the matter proceeded to a trial before a jury.
{¶ 8} At trial, C.N. and T.N both testified, as did the emergency room physician, the child abuse expert and his assistant. Appellant rested without presenting evidence.
{¶ 9} The jury found appellant guilty of all counts and specifications. The court accepted the verdict and, on December 13, 2012, sentenced appellant to mandatory indefinite terms of imprisonment of 15 years to life on two counts and from 10 years to life on the third count. The court ordered the terms of imprisonment to be served consecutively. . . .

State v. Rios, No. WM-13-004, 2014 WL 356766, at *1 (Ohio App. 6th Dist. Jan. 31, 2014); State Court Record Ex. 16 (ECF No. 8-5 at PageID #: 630-40). In June 2014, the Ohio Supreme Court declined to accept jurisdiction of the appeal, State v. Rios, 139 Ohio St.3d 1417 (2014) State Court Record Ex. 20 (ECF No. 8-5 at PageID #: 676), and Petitioner did not further appeal to the United States Supreme Court.

         On October 29, 2014, [2] Petitioner filed the instant Petition for a Writ of Habeas Corpus (ECF No. 1).

         II. Standard of Review for a Magistrate Judge's Report and Recommendation

         When objections have been made to the Magistrate Judge's Report and Recommendation, the District Court standard of review is de novo. Fed. R. Civ. 72(b)(3).

         A district judge:

must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return ...

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