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Saxton v. Warden, Trumbull Correctional Institution

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

February 22, 2018

KELVIN SAXTON, Petitioner,
v.
WARDEN, TRUMBULL CORRECTIONAL INSTITUTION, Respondent.

          CHIEF JUDGE EDMUND A. SARGUS, JR.

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         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, the Magistrate Judge RECOMMENDS that the Petition (Doc. 1) be DENIED and this case be DISMISSED.

         I. FACTS AND PROCEDURAL HISTORY

         The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:

In 2013, appellant and A.G. met and began dating. At the time, appellant was 27 and A.G. was 17. Shortly thereafter, they started living together in appellant's father's apartment. When they stayed there, they slept in the living room while appellant's father slept in his bedroom.FN1 Although the relationship started well, by April 2014, appellant had become worried that A.G. was cheating on him. During the night of April 14, 2014 and into the early morning hours of the 15th, appellant repeatedly asked her if she had cheated on him. A.G. denied doing so, but appellant apparently did not believe her so he continued his questioning. Eventually, appellant held a knife to her throat and told her he would cut her throat if she lied to him about cheating on him. He began to physically assault her, slapping and punching her with his hands as he continued to question her about her fidelity. Appellant also bit her face, head- butted her in the nose, and stabbed her in the back with the knife. All of this occurred in the apartment's living room.
At some point during the assault, appellant slammed A.G. up against a wall in the living room and told her to lie down. She did while appellant continued to kick and punch her and stomp on her head. He then turned the lights off and told her to perform oral sex on him. She did not want to but did so because she felt like she had no choice. Appellant continued to hit her because he said she was not doing a good job. Appellant then told her to lie down on her back so that he could have sex with her. Again, she did not want to but she complied. She did not say anything because she was too scared. After these events, the two went to sleep. The next morning, while appellant was in the bathroom, A.G. left the apartment and went to her mother's nearby apartment. A.G. went to a hospital and was treated for extensive injuries to her head and upper torso, including a puncture wound on her back.
As a result of these events, a Franklin County Grand Jury indicted appellant with counts of felonious assault in violation of R.C. 2903.11, kidnapping in violation of R.C. 2905.01, domestic violence in violation of R.C. 2919.25, and two counts of rape in violation of R.C. 2907.02. Appellant entered a not guilty plea to the charges and proceeded to a jury trial.
At his trial, A.G. testified to the above version of events. In addition, police and medical personnel testified about her injuries and her treatment. One officer testified that he had “never seen anyone, man or woman, that was beaten that badly” in his 11 years of being on patrol. (Tr. 144.) Appellant did not testify, but his father did. He testified that he was awake all night watching television in his bedroom and that he did not hear any disturbance or yelling from the living room.
The jury found appellant guilty of all counts and the trial court sentenced him accordingly.
II. Appellant's Appeal

         Appellant appeals and assigns the following errors:

I. The trial court erred and deprived appellant of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article One Section Ten of the Ohio Constitution by finding him guilty of felonious assault; kidnapping; and rape as those verdicts were not supported by sufficient evidence and were also against the manifest weight of the evidence.
II. The trial court erred to the prejudice of appellant by improperly sentencing him to consecutive terms of incarceration in contravention of Ohio's sentencing statutes.
III. The trial court erred to the prejudice of appellant by not merging his convictions for rape.
FN1: It was unclear how much time the two stayed at appellant's father's house, but they did spend time at other places and were homeless for some time.

State v. Saxton, 61 N.E.3d 830, 832-33 (Ohio Ct. App. 2016). On March 24, 2016, the state appellate court sustained Petitioner's second assignment of error, but otherwise affirmed the judgment of the trial court, and remanded the case to the trial court for re-sentencing. Id. On July 27, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Saxton, 146 Ohio St.3d 1472 (Ohio 2016). On November 10, 2016, the trial court held a re-sentencing hearing pursuant to the remand of the state appellate court, and re-imposed an aggregate term of twenty years of incarceration. (Doc. 10-1, PageID# 190). Petitioner did not file a timely appeal. However, on May 19, 2016, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). (Doc. ...


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