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Anderson v. Warden, Chillicothe Correctional Institution

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

October 26, 2017





         Petitioner, 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.

         Facts and Procedural History

         The 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 away.
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 got tight[.]
* * *
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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