United States District Court, S.D. Ohio, Eastern Division
JUDGE EDMUND A. SARGUS, JR.
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON 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, the Magistrate Judge RECOMMENDS that
the Petition (Doc. 1) be DENIED and this
case be DISMISSED.
FACTS AND PROCEDURAL HISTORY
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
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
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
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
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
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).