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Cauthon v. Warden, Marion Correctional Institution
United States District Court, S.D. Ohio, Eastern Division
September 7, 2017
NASSIR CAUTHON, Petitioner,
WARDEN, MARION CORRECTIONAL INSTITUTION, Respondent.
C. SMITH JUDGE.
OPINION AND ORDER
MCCANN KING UNITED STATES MAGISTRATE JUDGE.
a state prisoner, seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254. This matter is before the Court on
Petitioner's Motion for Stay of Proceedings
(Doc. 16) and on Petitioner's Motion(s) for
Production of Trial Transcripts (Docs. 17, 21). For the
following reasons, these motions are DENIED.
Petitioner may have 21 days in which to file a traverse to
the Return of Writ (Doc. 14). See Order (Doc. 19).
and Procedural History
challenges his June 2006 convictions, following a jury trial
in the Franklin County Court of Common Pleas, on charges of
rape and gross sexual imposition. The Ohio Court of Appeals
for the Tenth District summarized the facts and procedural
history of the case as follows:
Defendant-appellant, N.D.C.,  appeals from the judgment of the
Franklin County Court of Common Pleas reinstating the
judgment of conviction following a remand from this court.
On June 17, 2005, appellant was indicted on four counts of
rape, in violation of R.C. 2907.02, and one count of gross
sexual imposition, in violation of R.C. 2907.05. A jury trial
began on June 15, 2006. The jury returned verdicts finding
appellant guilty of three counts of rape and one count of
gross sexual imposition. Subsequent motions for acquittal and
a new trial were denied by the trial court. By judgment entry
filed July 3, 2006, the trial court imposed consecutive life
sentences for the rape convictions and a five-year
consecutive sentence for the gross sexual imposition
conviction. Appellant timely appealed to this court and
asserted a single assignment of error. State v. N.D.C.,
Franklin App. No. 06AP-790, 2007-Ohio-5088
(“N.D.C. I ”).
The underlying facts of the convictions were set forth in
N.D.C. I, as follows:
In April 2005, “DR, ” then age 12, resided with
his mother (hereafter “DR's mother”) and his
two younger stepbrothers, “DC, ” age seven, and
“NC, ” age eight, in Columbus, Ohio. Appellant is
the father of DC and NC, and the stepfather of DR; appellant
began dating DR's mother when DR was three years of age.
On April 1, 2005, appellant moved back to DR's
mother's residence after being away for a period of time.
The state's theory of the case was that appellant
sexually assaulted DR on three separate occasions, over an
approximate two-week period in early April 2005, while
DR's mother was at work. DR testified that two of the
incidents occurred when he was cleaning the bathroom;
specifically, on both occasions, appellant entered the
bathroom, pulled down DR's pants, and inserted his finger
inside DR's anus. DR related a third incident in which
appellant told him to go to his mother's bedroom, take
off his clothes, and lie on the bed. DR testified that, as he
was lying face down on the bed, appellant got on top of him
and “put his penis inside my butt.” (Tr. Vol. II,
DR's younger brothers both testified regarding the
alleged incident in the bedroom. Specifically, DR's
brother, NC, testified that he observed his “dad on top
of my brother” while looking through a vent located in
his bedroom. (Tr. Vol. III, at 445.) DR's other brother,
DC, testified that he looked through his mother's bedroom
door and observed his father on top of DR on the bed.
According to DC, his father “[p]ut his private part in
my brother's behind.” (Tr. Vol. III, at 478.)
Appellant noticed DC standing near the bedroom door, and he
grabbed a belt and struck DC on the legs.
Sha Clark is a medical social worker at Children's
Hospital. On May 23, 2005, Clark conducted an interview with
DR at Children's Hospital. During the interview, DR
indicated that, on several occasions, he had been a victim of
sexual abuse by appellant. DR related that appellant had
touched his private parts, and he described different
incidents occurring in the bathroom and one incident that
occurred in the bedroom.
Dr. Ellen McManus, an emergency medical physician at
Children's Hospital, conducted a physical examination of
DR on May 23, 2005. The physician noted nothing abnormal
during the examination.
In April 2005, DR's mother was employed and worked first
shift hours. Approximately two weeks after appellant had
moved back to her residence, DR's mother noticed some
marks on DC's legs. She asked NC about the marks on
DC's legs, and NC told her appellant “had whooped
him for getting in trouble at school.” (Tr. Vol. III,
at 528.) Appellant moved out of the house on April 15, 2005,
and, on May 16, 2005, DR's mother learned of the alleged
incident involving appellant and DR. She phoned the police,
and subsequently took the boys to Children's Hospital.
On cross-examination, DR's mother acknowledged that she
had concerns about appellant's sexuality, fearing he
might do something sexually inappropriate to her children.
When she asked DR whether any inappropriate activity had
occurred, he repeatedly told her nothing had happened.
The first witness for the defense was an uncle of DR's
(hereafter “DR's uncle”). In the spring of
2005, DR's uncle had a conversation with DR about alleged
sexual contact, and DR denied having any such contact with
appellant. DR's uncle testified that DR told him about
threats his mother made to him (DR).
Kathleen Cooke is a private investigator who investigated the
allegations at the request of defense counsel. As part of the
investigation, Cooke interviewed DR's mother, who
informed Cooke that she started a new job on April 7, 2005.
On May 17, 2005, Columbus Police Officer Wendell J. Tolber
responded to a 911 call at an address on Maryland Avenue.
According to Officer Tolber's report, the mother of an
alleged victim (DR) told the officer that her husband had
molested the victim, and that the “[v]ictim stated the
incident occurred the end part of 2004.” (Tr. Vol. IV,
at 612.) A domestic violence detective was contacted and
advised of the incident, but the detective indicated he would
not be responding due to the span of time involved.
At trial, the parties entered into a stipulation that
Franklin County Children Services caseworker Robin Glove, if
called to testify, would state that she interviewed DR on May
6, 2005. During that interview, DR denied any touching or
sexual contact by his stepfather. Further, DR did not make
eye contact with the ...
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