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Anderson v. Warden, Chillicothe Correctional Institution
United States District Court, S.D. Ohio, Eastern Division
October 26, 2017
MARTAYE ANDERSON, Petitioner,
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
GEORGE C. SMITH
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE
a state prisoner, brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. This matter is
before the Court on the Petition, Respondent's
Return of Writ, and the exhibits of the parties. For
the reasons that follow, it is RECOMMENDED
that this action be DISMISSED.
and Procedural History
Ohio Tenth District Court of Appeals summarized the facts and
procedural history of the case as follows:
In the early morning hours of September 12, 2013, Columbus
Police Detective, Eric Poliseno, interviewed a rape victim,
K.W. K.W. told the detective that she had been at a
friend's house and left with appellant to walk home. As
they were walking, Donald Terry joined and walked with them.
Terry grabbed her and initially attempted to drag her into an
apartment, but after K.W. struggled, he dragged her into a
dark, open garage across the alley. The garage did not have a
garage door but did have a “door, like a normal-size
door, like a house door, similar to that, in the back of the
garage.” (Tr. 115.) Terry pinned her against a parked
car in the garage and held her hands behind her back while he
vaginally and anally raped her. When he finished, Terry ran
Appellant was present the entire time and K.W. could see him
most of the time. Initially, appellant closed the door in the
back of the garage. Appellant walked in and out of the garage
through the front doorway because the back door remained
closed. K.W. stated, at one point, appellant was behind her
and she could not see him.
Afterwards, appellant walked her home. K.W. repeatedly asked
appellant if he had participated in the rape, because at one
point, she felt a metal belt buckle on her backside and he
was wearing a large belt buckle. After she was home,
K.W.'s mother took her to the hospital where a nurse
collected a rape kit and the police interviewed her. K.W.
initially told Detective Poliseno that she was unsure whether
appellant had participated in the rape, but she did not think
he did so because she did not see him rape her. However, she
stated that, at one point “it felt like he [Terry] had
help, like, because it just felt like he had more hands than
he was supposed to. * * * So it seemed like the other dude
was helping.” (Tr. 24-25.) This was the same time
period that appellant was behind her and out of view. (Tr.
249.) K.W. testified that she felt as if appellant had
participated in the incident because there were too many
hands involved for one person, she felt a belt buckle and she
knew appellant was wearing a belt buckle. When asked about
whether she believed appellant participated in the rape, K.W.
testified as follows:
There was a slight difference in the penis inside of me.
There was a slight difference. And it felt like when one-or
something came out, I felt, and it went back in, but it
didn't feel the same.
There was a brief moment, like brief, where there was just
nothing, like there was-and I couldn't see, but I could
hear, like, but no one was talking, like exchanging the
positions, not me, but people, them, the guys. But I
don't know for sure. I'm just going off of what I can
hear because I can't see because I'm head down.
When K.W. was asked about her statement regarding too many
hands, she clarified her statement, as follows:
So at one point, it just felt like when somebody was raping
me, I don't know who, but it seemed like another person
had my hands, like, it just felt like a switch. That's
all I can explain. It felt like a switch. It felt like
there's too many hands.
* * *
That's where the belt buckle comes in. When I say a
switch, it felt like if Ray was raping me when he was, there
was a stop for a brief moment. There was a stop, and I just
felt like-well, so as far as a struggle, like, it got easier
for whoever had my hands. It got easier to hold them, like
they didn't have to struggle with me.
And then, like I said, there was a belt buckle. I don't
know for sure whose belt buckle it was.
I didn't notice if Ray had a belt; I know Martaye had a
belt. I felt a belt, and this is the first time I felt the
belt. That's why I brought it up. The belt had, like,
touched my butt, like somebody else was undoing something.
That's all, like the belt.
* * *
When I say it's a switch, I can't see, but based off
what I felt, when initially someone had my hands, my hands
were pinned the whole time. At first, I was able to-I could
push back and then I could- it was more room for me to
like-like it was less strength.
* * *
Yeah, like less strength on my hands. So then if, like, it
* * *
It got tighter, because he didn't have to focus on
anything else, like me struggling. He didn't have to
focus on two things at once. This is me describing it. So it
got tighter. That's about it.
Detective Poliseno interviewed appellant on October 8, 2013.
Appellant admitted he was present during the rape, but denied
participating. Appellant stated that Terry had a gun.
Detective Poliseno testified that the Bureau of Criminal
Investigations (“BCI”) found a mixture of DNA on
the vaginal swabs of K.W. from her sexual assault exam and
the standards belonged to both appellant and Terry. As a
result, both appellant and Terry were arrested. When
Detective Poliseno interviewed appellant a second time,
appellant continued to deny participating in the rape and
told the detective that he and K.W. had consensual sex the
night before the incident. Detective Poliseno testified that
he specifically asked K.W. if she had had consensual sex with
appellant within 96 hours of the incident and she replied
that she had never had consensual sex with appellant. (Tr.
519-20.) During her testimony, K.W. denied having consensual
sex with appellant. (Tr. 192.) She testified that she had a
baby on August 7, 2013, approximately five weeks before the
incident, and for medical reasons, she was advised not to
have sex for six weeks. (Tr. 96; 128.)
The state presented two forensic scientists who work for BCI
and testified regarding appellant's DNA. One of the
forensic scientists testified she examined the vaginal swabs
taken from K.W. and identified semen. The second forensic
scientist analyzed the DNA results and determined that there
was the presence of DNA from two individuals, consistent with
Terry and appellant. (Tr. 304.) The DNA mixture was composed
of a major profile, Terry, and a minor profile, appellant,
which means the major profile was present at a much higher
level than the minor profile. (Tr. 306.) Both scientists
testified that there were several explanations for finding
major and minor contributors, including that the minor
contributor had consensual sex at an earlier time than the
major contributor. (Tr. 314; 620.)
Appellant also presented an expert witness who testified that
there were three possibilities as to why there were vastly
different amounts of sperm from the major and minor
contributors. The expert's opinion was that the DNA
results in this case support several possibilities, including
the possibility that appellant and K.W. had consensual sex
within 96 hours of the assault. (Tr. 696.) However, on
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