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Lundy v. Turner

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

April 18, 2018

MICHAEL LUNDY, Petitioner,
v.
NEIL TURNER, Warden Respondent.

          CHRISTOPHER A. BOYKO, JUDGE

          REPORT & RECOMMENDATION

          JONATHAN D. GREENBERG, UNITED STATES MAGISTRATE JUDGE

         This matter is before the undersigned pursuant to Local Rule 72.2. Before the Court is the Petition of Michael Lundy (“Lundy” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Lundy is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Lundy, Allen County Common Pleas Court Case No. CR 2012 0236. For the following reasons, the undersigned recommends that the Petition be DISMISSED.

         I. Summary of Facts

         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the facts underlying Lundy's conviction as follows:

{¶ 3} The State's first witness was Albert Hammond ("Hammond"). Hammond testified that he lived with his girlfriend, the victim, in Lima. Tr. 201. According to Hammond, he was sitting on the porch of their house when a man came up and started speaking to him. Tr. 212. Hammond did not know the man, but thought he might be a friend of the victim, so he continued to chat with him. Tr. 214. The man was wearing denim shorts and a white or cream colored shirt. Tr. 214. Hammond spoke to the man for approximately five minutes until the victim returned. Tr. 214. When the victim returned, she went in the house to put the beer away and Hammond followed her. Tr. 215. At that point, they realized that neither of them knew this man. Tr. 215. When they went back out onto the porch, the man was standing on the porch. Tr. 215. Hammond told him to leave and the man started walking away. Tr. 216. Hammond followed him to the screen door, and the man turned around and struck Hammond. Tr. 216. Hammond testified that the man repeatedly struck him and Hammond fell to the ground. Tr. 217. Hammond could hear the victim on the porch telling the man to stop. Tr. 218. Soon after Hammond hit the ground, he lost consciousness. Tr. 218.
{¶ 4} When Hammond came to, he did not see the victim or the man. Tr. 218. Hammond then tried to go in the house, but the door was locked. Tr. 218. Hammond then went to the victim's mother's home and reported that the man had taken the victim. Tr. 218. An ambulance was called and Hammond went to the hospital while the victim's family went to find her. Tr. 219. Later, Hammond saw the victim at the hospital. Tr. 223.
{¶ 5} The next witness for the State was Mark Prinzi ("Prinzi"), who is related to the victim. Tr. 226. On the evening in question, he was in the house when there was a knock on the door. Tr. 231. When Prinzi opened the door, Hammond was standing there with blood running from his mouth and he appeared to be anxious. Tr. 232. When he learned that something had happened to the victim, he called for his wife to care for Hammond and he went to find the victim. Tr. 232. When he got to the house, the door was locked. Tr. 232. His wife eventually joined him, they broke into the house, and searched the house for the victim, but she was not there. Tr. 233-34. They left the house and the victim's neighbor, Doug Moneer ("Moneer") came out. Tr. 234. Prinzi and Moneer then went looking down the street for the victim. Tr. 235. They proceeded to go towards the riverwalk. Tr. 238. Just when they were about to turn around and look in a different area, Moneer spotted the victim with a man, and Prinzi yelled her name. Tr. 240. The man pushed away from the victim then and took off running along the riverwalk. Tr. 240-41. The victim turned toward them and was pulling her pants up. Tr. 242. Prinzi testified that the victim did not look like herself because her face was swollen. Tr. 242. The person who ran away was a male, but Prinzi did not see his face. Tr. 243. When the victim got to them, she said that "he raped me" and Moneer then called 9-1-1. Tr. 243. The police and ambulance arrived soon after and the victim was taken to the hospital. Tr. 244-45. Once the victim was in the light, Prinzi saw that her "face was completely distorted, swelled out, her jaw was way out here, it just didn't look like her." Tr. 245.
{¶ 6} While the EMT's were treating the victim, Prinzi and Moneer were speaking with the police. Tr. 245. During the discussion, Moneer saw the man that he identified as the attacker walking down the street and notified the police. Tr. 245. Prinzi described the man he saw with the victim as wearing a white tank-type T-shirt. Tr. 249.
{¶ 7} Moneer was the third witness for the State. Moneer testified that he lived next door to the victim and had known her for years. Tr. 261. On June 21, 2012, Moneer was in his house watching the final game of the NBA finals with his girlfriend and his children. Tr. 262. His girlfriend told him that she had seen the victim and a guy walking past the window towards the girlfriend's truck, so Moneer went to the door to see what was happening. Tr. 263. Moneer saw the victim leaning on the truck and an unknown black man was pulling her away. Tr. 264. He heard the victim say "Get away", but he thought she was drunk and he was just pulling her back to the party, so he went back in his house. Tr. 264. As the victim was walking away, Moneer's girlfriend told him that the victim's face was bleeding, so Moneer got back up and put on his shoes. Tr. 265. By the time he got back outside, Prinzi came running up looking for the victim. Tr. 267. Prinzi and Moneer then went to find the victim. Tr. 268.
{¶ 8} Moneer testified that he grabbed his big flashlight and he and Prinzi started walking towards the river. Tr. 268. After they had gone three-fourths of the distance, Prinzi wanted to turn around, but Moneer suggested they just go all the way down. Tr. 268. Moneer shined his light down by the bridge and saw two people. Tr. 268. He recognized the woman as the victim and started running towards her. Tr. 269. As he got closer, he could see a man "raping her from behind." Tr. 269. When the man heard them coming, he pushed the victim away, picked up his shorts, and ran away. Tr. 270. The man ran towards Central Avenue along the riverwalk. Tr. 270. Once Prinzi and Moneer reached the victim, she kept repeating that the man had been raping her. Tr. 271. Moneer then called 9-1-1 and requested an ambulance and the police. Tr. 271. Moneer was able to give the officers a description of the man he saw. Tr. 272. While speaking to the officers, Moneer looked up at the people and saw the man he had previously seen. Tr. 273. He pointed him out to the police officer. Tr. 273. The officer then called for assistance in apprehending the man as he could not leave the scene. Tr. 276. Moneer testified that he identified the man because he was wearing the same pants, shirt, and shoes, and was the same height. Tr. 275. Moneer testified that he "just knew that's him." Tr. 275.
{¶ 9} On cross-examination, Moneer testified that he was able to recognize the victim immediately, but he did not know the man. Tr. 285. On redirect, Moneer identified the assailant's shorts as being black denim shorts. Tr. 293. The man was carrying a white shirt in his hand when he ran off. Tr. 293.
{¶ 10} Patrolman George Caldwell ("Caldwell") of the Lima Police Department was the fourth witness to testify for the State. Tr. 296. Caldwell testified that on June 21, 2012, he was dispatched to the 200 block of South Jackson Street in reference to an assault. Tr. 297. He was dispatched at around 10:00 p.m. Tr. 297. When he arrived, the victim was sitting on the street being treated by the paramedics and a witness. Tr. 297. Caldwell testified that he took a statement from Moneer. Tr. 298. Moneer told him that the assailant was a black male who was wearing denim shorts and carrying a white t-shirt. Tr. 298. As Caldwell was speaking to Moneer, Moneer told him that he had just seen the man walking on Eureka Street after crossing Jackson Street. Tr. 299. Caldwell then radioed that a possible subject was heading east and provided a description of the clothing he was wearing. Tr. 300-301. The description of the clothing was provided to Caldwell by Moneer prior to Moneer seeing the man walking on Eureka Street. Tr. 301. Caldwell then learned that another patrolman had approached the defendant and he ran before being apprehended. Tr. 301. Caldwell did not go after the suspect, but instead went to the hospital with the victim. Tr. 301.
{¶ 11} At the hospital, Caldwell was able to get information from the victim, which he passed on to the detectives. Tr. 303. Caldwell also confiscated the victim's clothing and the linens from the ambulance as evidence. Tr. 303. Caldwell identified State's Exhibit 3 as the underwear taken from the victim. Tr. 305.
{¶ 12} The next witness for the State was Patrolman Shane Huber ("Huber") of the Lima Police Department. Tr. 310. On the night of June 21, 2012, Huber was assigned to street patrol. Tr. 311. On that night, Huber received a description of a suspect in a rape case. Tr. 312. The description of the suspect was that he was wearing shorts and carrying white t-shirt in his hands. Tr. 312. At the intersection of Pine and Eureka, Huber saw an individual that matched that description. Tr. 313. That individual was walking east when Huber saw him. Tr. 313. Huber then shined his spotlight on Lundy and told him to stop. Tr. 314. The individual then ran away by going through yards and attempting to evade capture. Tr. 314. Huber chased the man for three to four blocks before apprehending the man. Tr. 315. When Huber caught him, the man was carrying a white t-shirt and was wearing shorts. Tr. 316. The individual was transported to the station and his clothing was confiscated as potential evidence. Tr. 317. The individual was identified as Lundy. Tr. 313.
{¶ 13} Huber identified State's Exhibit 7 as a "white tank undershirt" taken from Lundy. Tr. 318. State's Exhibit 8 was identified as a pair of denim shorts also taken from Lundy. Tr. 318. State's Exhibit 9 was identified as a pair of Hanes striped boxer shorts taken from Lundy. Tr. 319. Huber also identified State's Exhibit 11 as a white t-shirt that had been in Lundy's hands when he was apprehended. Tr. 319.
{¶ 14} Patrolman Jason Warren ("Warren") of the Lima Police Department testified that he transported Lundy to the station after he was arrested by Huber. Tr. 330. When he arrived, Lundy was holding a white t-shirt in his hands. Tr. 33. The t-shirt was placed in a bag in the trunk of his cruiser. Tr. 330. Once he arrived at the station, the bag was turned over to Huber and Lundy was placed in a holding room. Tr. 331. While processing Lundy, Warren noted that the zipper on Lundy's shorts was down. Tr. 332.
{¶ 15} Patrolman Zack Leland ("Leland") of the Lima Police Department testified that he was working the desk when Lundy was at the station. Tr. 335. He was assigned to watch Lundy in the bathroom. Tr. 335. When he arrived in the restroom, Lundy was using wadded up toilet paper to rub his nose and face area. Tr. 337. After Lundy had finished using the restroom, he started washing his hands and face before Leland stopped him. Tr. 337. Leland documented that Lundy had been able to possibly destroy evidence in a report. Tr. 338.
{¶ 16} Officer Michael Carmen ("Carmen") was the eighth witness for the State. Carmen testified that he is an Identification Officer for the Lima Police Department. Tr. 346. On June 21, 2012, he received a call at approximately 10:15 to respond to a crime scene. Tr. 349. He went to the two hundred block of South Jackson near the riverwalk. Tr. 350. Carmen started processing the scene by taking photographs. Carmen testified that they found an open condom wrapper and a white towel with what appeared to be blood on it at the scene. Tr. 356. After processing the scene under the bridge, Carmen went up to the victim's home to process that scene. Tr. 359.
{¶ 17} Like the scene by the riverwalk, Carmen started processing the scene at the house by taking multiple photographs. Tr. 360. At the house, Carmen observed drops of blood on the metal black iron railing and on the cement. Tr. 362. Carmen noted that the window was no longer in place as it had been removed. Tr. 366. Carmen noted that there was a blood smear on the door frame leading into the kitchen. Tr. 367. While working the scene, Carmen's attention was brought to footprints in the alley behind the home. Tr. 371. Carmen took casts of the prints and compared them to Lundy's shoes, but they did not appear to match. Tr. 373.
{¶ 18} When Carmen returned to the station, he began processing evidence from Lundy. Tr. 374. Carmen took swabs from Lundy's penis, and the swabs were identified as State's Exhibit 1.1. Tr. 374-75. State's Exhibit 1.3 were swabs from Lundy's right hand and Exhibit 1.4 were swabs from Lundy's left hand. Tr. 377. State's Exhibit 1.5 was a buccal swab to obtain a DNA standard from Lundy. Tr. 377.
{¶ 19} The ninth witness for the State was the victim. The victim testified that on the night of June 21, 2012, she and Hammond were sitting on the front porch, listening to music, and drinking beer. Tr. 409. Around 9:00 p.m., the victim left with a relative to get more beer. Tr. 410. When she got back from the carryout, she walked from the relative's home to hers carrying the beer. Tr. 410. The victim saw a man standing on the front porch talking to Hammond, but she did not know the man. Tr. 411. The victim then went in the house to put the beer away and asked Hammond, who had followed her into the house, who the man was. Tr. 411. They realized that neither of them knew him. Tr. 411. They returned to the porch and continued talking, but the man started giving her odd looks. Tr. 411. Hammond then asked him to leave and a fight started. Tr. 412. The man punched Hammond while on the steps and the fight continued into the yard. Tr. 413. The victim kept telling the man to quit hitting Hammond. Tr. 413. The man then turned and started punching the victim in the face while she was outside. Tr. 413, 415. The victim identified the man who struck her and Hammond as Lundy. Tr. 414. The victim then tried to run away to a neighboring home when Lundy struck her again, grabbed her by the arm and started to drag her up the steps toward the house. Tr. 415. Lundy took her into the home, but when he turned to lock the door, the victim ran towards the back door to try and escape. Tr. 415. The victim testified that she got as far as the neighbor's drive before Lundy grabbed her again and punched her a couple more times. Tr. 416.
{¶ 20} After Lundy caught the victim, he began dragging her toward the riverwalk. Tr. 416. The victim attempted to escape again, but was too disoriented from the blows to be successful. Tr. 416-17. Lundy then took her to beneath the railroad overpass on the riverwalk. Tr. 417. The victim testified that Lundy pulled down her pants and had intercourse with her. Tr. 418. When she started crying, Lundy threatened to strike her again and then forced her to engage in anal sex. Tr. 418. The victim testified that she then heard Prinzi calling her and saw the flashlight. Tr. 418. Lundy then pulled away from her and she started running towards Prinzi. Tr. 418. The victim testified that while Lundy was doing this, she was crying. Tr. 420. When Prinzi was coming towards her, Lundy took off running in the opposite direction. Tr. 421. The victim looked over and saw Prinzi and Moneer coming towards her, so she tried to pull up her pants and get to them. Tr. 422. The victim testified that she told them that Lundy had raped her. Tr. 422.
{¶ 21} After the ambulance and police arrived, the victim was taken to the hospital. Tr. 422. At the hospital, a sexual assault examination was completed and photographs were taken of the victim's injuries. Tr. 4287. The victim identified State's Exhibits 39-47 as photographs of her taken that night. Tr. 429. The photographs showed the injuries to her head and face, the bruising to her hand, scratches on her arms and legs, and bruising on her legs. Tr. 429-32. Prior to the incident, the victim's body did not have those injuries. Tr. 432. The victim was discharged from the hospital and went to a relative's home. Tr. 433.
{¶ 22} At the relative's home, a police detective brought her a file with six different mug shots. Tr. 433. The victim testified that she identified the picture of Lundy as her attacker. Tr. 433. The victim testified that she was positive which person was the assailant as soon as the detective set the pictures down. Tr. 434.
{¶ 23} On cross-examination, the victim admitted that she had been drinking that evening. Tr. 435. She estimated that she had drank six beers and Hammond had drank approximately ten or eleven beers before she went to the carryout for more. Tr. 436. The victim was shown the photo line-up at around 4:00 a.m. Tr. 443. The victim admitted that she only looked at the photo line-up for around two seconds before identifying Lundy. Tr. 444. On redirect, the victim testified that she had gotten a good look at her assailant. Tr. 445.
{¶ 24} The next witness for the State was Detective Sean Neidemire ("Neidemire") of the Lima Police Department. Tr. 446. Soon after 10:00 p.m. Neidemire received a call to respond to the scene of a rape. Tr. 448-49. Before going to the scene, he went to the hospital, spoke to the victim, and took photographs of injuries. Tr. 449. Neidemire then went to the scene and checked in with Carmen to see if he needed assistance. Tr. 451. No assistance was needed, so he did not assist in gathering evidence. Tr. 451. Neidemire then returned to the police station and assembled a photo line-up. Tr. 451. Neidemire identified State's Exhibit 71 as the photo line-up that he prepared. Tr. 452. Neidemire then testified to the procedure he used to make the line-up. Tr. 452-53. At around 2:45 a.m., Neidemire went to see the victim and showed her the photo line-up he had prepared. Tr. 456-57. After he told the victim that the suspect may or may not be in the photos, he set the line-up down on the table. Tr. 457. The victim then pointed to the photo of Lundy and said "That's him, that's the man who assaulted me and that's the man that raped me." Tr. 457. There was no hesitation on the part of the victim in identifying Lundy as the assailant. Tr. 457. The photo identified was a photo of Lundy. Tr. 458. Prior to showing the victim the line-up, Neidemire did not tell the victim anything about the suspect or even that they had one. Tr. 459.
{¶ 25} Christina Umfleet ("Umfleet") testified that she is a registered nurse at Lima Memorial Hospital and works in the emergency room. Tr. 485-86. The victim was brought into the emergency room by the paramedics for an alleged assault. Tr. 487. When the victim arrived, Umfleet noticed that her face was "swollen, bruised, and bloody, kind of unrecognizable to be a normal person by her face." Tr. 488. The victim was able to communicate, but her face and jaw were so swollen that she could barely open her mouth. Tr. 488. When questioned, the victim indicated that she had been sexually assaulted. Tr. 490. Umfleet testified that although she is not a certified Sexual Assault Nurse Examiner, there was not one on duty at the time, so she did the exam and followed the instructions on the rape kit. Tr. 493-94. Umfleet testified that she completed every step that pertained to the victim. Tr. 499. When Umfleet questioned the victim, the victim told her that there had been vaginal and anal penetration by the suspect's penis. Tr. 500-501.
{¶ 26} The next witness was Detective Scott Leland ("Det.Leland") of the Lima Police Department. Tr. 515. Det. Leland testified that he was called at home to help investigate a crime at approximately 10:00 p.m. on June 21, 2012. Tr. 516. After learning the basics of what had happened while at the station, Det. Leland went to the hospital to speak with the victim and Hammond. Tr. 518. Det. Leland spoke with Hammond first, who appeared intoxicated, but was also bloody and "pretty beat up." Tr. 519. Hammond was very upset that he had not been able to protect the victim. Tr. 519. Then Det. Leland spoke to the victim, who was "banged up" and appeared to be in pain. Tr. 520. The victim told him that she did not know her assailant. Tr. 520. She was able to give him a basic overview of what had happened, including that she had been physically assaulted, dragged into the house, dragged down to the riverwalk, and sexually assaulted both vaginally and rectally. Tr. 521.
{¶ 27} From the hospital, Det. Leland went to the riverwalk and the house to get a view of the scene. Tr. 521. He testified that he did not touch anything at the scenes and did not spend much time there. Tr. 522. While walking the crime scene, it occurred to him that a new shift had come on and he wanted to make sure that they were aware that Lundy could not be given the ability to "wash up." Tr. 523. He called the station to tell them, but learned it was too late. Tr. 523.
{¶ 28} Back at the station, Det. Leland prepared an affidavit for a search warrant of Lundy's person. Tr. 523. The warrant was issued by a judge the morning of June 22, 2012. Tr. 527. At that time, Carmen obtained the evidentiary samples from Lundy. Tr. 527. Det. Leland testified that numerous pieces of evidence were submitted to the Ohio Bureau of Criminal Identification and Investigation ("BCII") for tests for blood and DNA analysis. Tr. 532-34.
{¶ 29} Julie Cox ("Cox") is a forensic scientist at BCII and is assigned to the forensic biology unit. Tr. 562. She examines evidence submitted for the presence of bodily fluids, such as blood, semen, and saliva. Tr. 563. Cox identified State's Exhibit 63 as her report dated June 29, 2012. Tr. 567. Cox testified there was no blood on the penile swabs or right hand swabs taken from Lundy, but there was blood present on the left hand swab. Tr. 571-76. The swabs indicated that no semen was present on the vaginal or anal swabs of the victim. Tr. 578-79. An examination of the victim's underwear was also negative for the presence of semen. Tr. 584.
{¶ 30} Cox also identified State's Exhibit 65 as her report from September 14, 2012. Tr. 586. For this report, Cox was asked to examine a small towel or washcloth, a shirt from Lundy, and shorts from Lundy for the presence of blood. Tr. 586. All three of the items tested positive for the presence of blood. Tr. 589, 592, and 593. Cox then took samples and sent them for DNA testing. Tr. 594.
{¶ 31} The third report completed by Cox was done on October 1, 2012, and identified as State's Exhibit 66. Tr. 597. The item examined for blood in this report was Lundy's boxer shorts. Tr. 597. The boxer shorts tested positive for blood in the fly area. Tr. 598-99. The stain was submitted for DNA testing. Tr. 599. On cross-examination, Cox admitted that she did not test every piece of evidence. Tr. 606, 612.
{¶ 32} The final witness for the state was Sarah Smith ("Smith"), a forensic scientist for BCII in the DNA section. Tr. 632. Smith identified State's Exhibits 64 and 67 as her reports. Tr. 644. The date on State's Exhibit 64 was August 29, 2012. Tr. 644. The date on State's Exhibit 67 as November 1, 2012. Tr. 645. State's Exhibit 64 was the results of DNA testing of the swabs from Lundy, the rape kit of the victim, and DNA standards from Lundy, the victim, and Hammond. Ex. 64. The results indicated that the DNA profile from the penile swabs was a mixture consistent with contributions from Lundy and the victim. Tr. 646. The statistical weight was that there was a 1 in 12, 610 chance that the DNA found came from the victim and Lundy. Tr. 649.
{¶ 33} Smith's report labeled State's Exhibit 67 analyzed DNA samples from the rape kit of Lundy, the rape kit of the victim, the cloth found on the riverwalk, the shirt taken from Lundy, the shorts taken from Lundy, and the underwear taken from Lundy. Ex. 67. Smith testified that the blood stain on the cloth came from the victim. Tr. 655. The expected frequency occurrence of the DNA profile coming from someone other than the victim was one in four hundred sixty-two quintillion, five hundred quadrillion (462, 500, 000, 000, 000, 000, 000). Tr. 655. The blood stains from the shirt were consistent with the DNA profile of Hammond as well as Lundy. Tr. 657-58. The odds of those blood stains coming from anyone other than Hammond and Lundy were one in sixteen quintillion, seven hundred-thirty quadrillion (16, 730, 000, 000, 000, 000, 000). Tr. 658. Smith testified that the population of the world is approximately seven billion, so she would not expect to see the profile she found in another individual. Tr. 659. The test results for the swabs taken from the outside of the shorts indicated that a DNA mixture was found belonging to Lundy and the victim. Tr. 660-61. The likelihood that the mixture came from anyone other than Lundy and the victim was one in thirty-one million, eight hundred eighty thousand (31, 880, 000). Smith also tested the DNA swabs from Lundy's underwear. Tr. 662-63. The tests revealed a mixture consistent with Lundy and the victim being the source. Tr. 663. The statistical weight of this test was one in two thousand, three hundred and fifty-seven (2, 357). Tr. 663.
{¶ 34} The State then questioned Smith concerning the reports from Lundy's independent DNA examination of the samples. Tr. 665-78. Smith had prepared a report comparing the test results from BCII to those from the DNA Diagnostics Center ("DDC") and it was identified as State's Exhibit 69. Tr. 679. The chart was a summary of the results. Tr. 680. DDC's report could not exclude the victim as a source of the DNA found on the penile swabs. Tr. 681-82. Smith testified that although her tests excluded the victim and Hammond as sources of DNA on the swab from Lundy's left hand, the DDC tests did not exclude the victim as a source. Tr. 685. Additionally, the statistical weights to be assigned to the tests were different in various tests. Tr. 686. In general, the report from DDC was not inconsistent with that of BCII. Tr. 686.
{¶ 35} On cross-examination, Smith testified that the higher the statistical weight, the higher the confidence in the conclusion is. Tr. 692. The statistics mean nothing other than the level of confidence in the result. Tr. 699. Smith also testified that she did not know what equipment DDC was using for testing. Tr. 697. She also testified that she did not know the quality of the samples tested by DDC. Tr. 697-98. Smith explained on redirect that the results may depend on where the swab was taken from the sample as not every portion of a sample will have the same amount of DNA. Tr. 703. Following this testimony, the State rested its case. Tr. 707.
{¶ 36} Lundy presented the testimony of one witness during his case-in-chief. Stacy Martin ("Martin"), who works for DDC. Tr. 714. Martin identified State's Exhibits 68 and 68a as reports that she prepared and that they were dated August 8, 2013. Tr. 718. Martin testified that 68a was a supplement to 68 because some of the statistical results were changed as a result of clerical error. Tr. 719-21. Martin testified that she was hired by Lundy to conduct independent DNA testing on various items also tested by BCII. Tr. 722. Tests were run on the penile swab, Lundy's left hand swab, two stains from Lundy's shorts, one stain from Lundy's underwear, and the three reference standards. Tr. 723. As for the penile swab, the testing revealed that for the non-sperm fraction of the DNA, Martin identified a mixed profile from which Lundy, the victim and a third party could not be excluded. Tr. 725. The statistical weight given to this conclusion was one in ninety-seven (97). Tr. 725. Martin testified that this number was not very high. Tr. 725.
{¶ 37} Next, Martin tested the samples taken from the left hand swab of Lundy. Tr. 725-26. The test results indicated that DNA consistent with that of Lundy as the major contributor and the victim as a minor contributor was present. Tr. 726-27. The statistical weight given to the possibility of someone other than the victim being a minor contributor was put at one in twenty-one (21) individuals. Tr. 727.
{¶ 38} The third item tested by DDC was two stain samples from Lundy's shorts. Tr. 727. A review of the non-sperm faction of the stains indicated that two or more individuals contributed DNA to the sample. Tr. 728. Martin testified that Lundy and the victim could not be excluded as contributors. Tr. 728-29. The statistical probability of other individuals contributing was placed at one in one hundred and seventy thousand (170, 000). Tr. 729. According to Martin, this does not rise to the level of "scientific reasonable certainty" because to reach that level "you'd have to exceed the population of the earth, which is approximately seven billion." Tr. 729. The second stain was also tested. Tr. 729. In the non-sperm fraction of the stain, the tests revealed a mixture of three or more contributors. Tr. 730. Lundy and the victim could not be excluded as contributors to the mixture. Tr. 730. The statistical probability of a random person being a contributor was "approximately one in forty-four" (44) individuals. Tr. 730.
{¶ 39} The last item tested by Martin was a stain from Lundy's underwear. Tr. 731. The non-sperm fraction again showed a mixture of three or more individuals. Tr. 731. Lundy and the victim could not be excluded as contributors. Tr. 731. The statistical weight assigned was one in two hundred and sixty (260) individuals. Martin testified that this is a very low level of confidence. Tr. 731. Martin also testified that although her statistics differed from those of BCII, the results were consistent. Tr. 734. Martin's conclusion was that she could not say with scientific certainty that the victim was a contributor to the DNA mixture found on the underwear. Tr. 736-37. Martin also testified that any probability below one in seven billion was not scientifically certain. Tr. 737.
{¶ 40} On cross-examination, Martin testified that she had reviewed BCII's results. Tr. 767. After reviewing BCII's reports, Martin had no reason to believe that BCII's results were incorrect. Tr. 767-68. Martin agreed that although the statistical weight may be different, the conclusion whether to exclude or not was the same. Tr. 768. Following this testimony, Lundy rested.

State v. Lundy, No. 1-13-52, 2014 WL 5803035, at *1-9 (Ohio Ct. App. Nov. 10, 2014).

         II. Procedural History

         A. Trial Court Proceedings

         On August 16, 2012, the Allen County Grand Jury indicted Lundy on the following charges: two counts of rape in violation of Ohio Rev. Code § 2907.02(A)(2); one count of kidnapping in violation of Ohio Rev. Code § 2905.01(A)(4); and one count of aggravated burglary in violation of Ohio Rev. Code § 2911.11(A)(1). (Doc. No. 7-1, Exh. 1.) Lundy entered pleas of not guilty to all charges. (Doc. No. 7-1, Exh. 4.)

         On September 18, 2012, Lundy filed a motion to suppress photo and in-court identifications. (Doc. No. 7-1, Exh. 2.) The trial court denied the motion. (Doc. No. 7-1, Exh. 3.)

         The case proceeded to a jury trial on August 6, 2013. (Doc. No. 7-1, Exh. 4.) On August 9, 2013, the jury returned its verdict, finding Lundy guilty of all charges. (Id.)

         On September 9, 2013, the trial court held a sentencing hearing. (Doc. No. 7-1, Exh. 5.) It sentenced Lundy to eleven years imprisonment for each rape charge and nine years imprisonment each for the kidnapping and aggravated burglary charges, with all prison terms to be served consecutively, for an aggregate sentence of forty years in prison. (Doc. No. 7-1, Exh. 5.) The court also designated Lundy a Tier 3 Sex Offender. (Doc. No. 7-1, Exhs. 5, 6.)

         B. Direct Appeal

         Lundy, through the same counsel, filed a timely notice of appeal to the Third District Court of Appeals. (Doc. No. 7-1, Exh. 7.) In his appellate brief, he raised the following assignments of error:

1. The trial court committed error in not merging the offenses of two counts of rape, aggravated burglary and kidnapping.
2. The trial court committed error in not granting the Defendant's challenge to the preemptory strike of an African[-]American female from the jury.
3. The Defendant's convictions were against the manifest weight of the evidence and based upon insufficient evidence.
4. The Defendant's sentence is contrary to law.

(Doc. No. 7-1, Exh. 8 (capitalization altered).) The State filed a brief in response. (Doc. No. 7-1, Exh. 9.)

         On May 9, 2014, Lundy filed a pro se “Motion to Strike Counsel and Merit Brief.” (Doc. No. 7-1, Exh. 10.) The appellate court granted Lundy's request for new counsel, denied his request that his counsel's original appellate brief be stricken, and permitted new counsel to file a supplemental brief. (Doc. No. 7-1, Exh. 11.) In a supplemental appellate brief, Lundy, through new counsel, added the following assignment of error:

5. The Defendant received ineffective assistance of counsel.

(Doc. No. 7-1, Exh. 12.) The State filed a brief in response. (Doc. No. 7-1, Exh. 13.)

         On November 10, 2014, the Ohio appellate court affirmed the trial court's judgment. (Doc. No. 7-1, Exh. 14.) Lundy, acting pro se, moved for reconsideration. (Doc. No. 7-2, Exh. 15.) The court of appeals denied the motion. (Doc. No. 7-2, Exh. 16.)

         Lundy, again acting pro se, filed a timely notice of appeal of the appellate court's judgment to the Ohio Supreme Court. (Doc. No. 7-2, Exh. 17.) In his memorandum in support of jurisdiction, he set forth the following propositions of law:

1. Whether an appellate court can legally rule that a defendant's offenses should not be merged when the defendant's actions are based on one ongoing course of conduct, pursuant to O.R.C 2941.25(A)?
2. Whether a defendant's fourteenth amendment constitutional rights have been violated when the [trial court] does not properly engage in the three-step process that Batson provides [a trial court] to use in adjudicating a claim that a peremptory challenge was based on race, pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986)?
3. Whether a defendant can legally be convicted of the offense of rape when experts for both the State and the Defense, at trial, state that they could not within a reasonable degree of scientific certainty, say that the DNA that was obtained was that of the victim or the potential attacker?
4. Whether a defendant's sentence can stand on its face when the sentence is virtually contrary to law, pursuant to O.R.C 2941.25(A)?
5. Whether a defendant receives ineffective assistance of counsel pursuant to the sixth amendment of the U.S. Constitution, when his attorney's admissions during opening and closing statements reflect an unreasonable trial strategy?

(Doc. No. 7-2, Exh. 18 at 23.)

         The Ohio Supreme Court declined jurisdiction over the appeal on April 29, 2015. (Doc. No. 7-2, Exh. 19.) Lundy filed a pro se motion for reconsideration on May 6, 2015, which the court denied. (Doc. No. 7-2, Exhs. 20, 21.)

         C. Application to Reopen Appeal under Ohio App. R. 26(B)

         On January 30, 2015, Lundy filed a pro se application to reopen his direct appeal pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure. (Doc. 7-2, Exh. 24.) He claimed his appellate counsel was ineffective for failing to raise the following assignments of error on direct appeal:

1. Whether Mr. Chamberlain [was] ineffective because he failed to raise the issue regarding Mr. Lundy's picture line-up pursuant to [Ohio Rev. Code § 2933.83] double blinded administration[.]
2. Mr. Chamberlain [was] ineffective because he failed to object to the way Mr. Lundy was identified during his trial proceedings[.]
3. Whether Mr. Chamberlain is ineffective because he failed to file a motion to suppress for Mr. Lundy pursuant to Crim. R. 12(C)(3) prior to Mr. Lundy's trial commencing?
4. Whether Mr. Short is ineffective because he failed to raise the issue that Mr. Chamberlain is ineffective because he failed to file a motion to suppress for Mr. Lundy regarding whether Mr. Lundy was indicted in a timely manner while he was incarcerated in the Allen County jail prior to his trial?
5. Whether Mr. Chamberlain and Mr. Short are ineffective because neither attorney has forwarded Mr. Lundy a complete copy of his case file?
6. Whether Mr. Chamberlain and Mr. Short are ineffective for their failure to raise the same issues in Mr. Lundy's Direct Appeal that Mr. Chamberlain raised prior to trial in his (“Motion Contra to the State of Ohio's Motion to Modify Time under Crim. R. 16(K) and to Exclude Testimony of State of Ohio's Expert Due to Violation of that Same Rule.”)

(Doc. No. 7-2, Exh. 24 at 74-81 (capitalization altered).) On March 17, 2015, the state appellate court denied the application as meritless. (Doc. 7-2, Exh. 25.)

         Lundy filed a pro se notice of appeal of the appellate court's judgment to the Ohio Supreme Court. (Doc. 7-2, Exh. 26.) In his memorandum in support of jurisdiction, he raised the following propositions of law:

1. Whether Mr. Chamberlain [was] ineffective because he failed to raise the issue regarding Mr. Lundy's picture line-up pursuant to [Ohio Rev. Code § 2933.83] double blinded administration[, and] Mr. Chamberlain [was] ineffective because he failed to object to the way Mr. Lundy was identified during his trial proceedings[.]
2. Whether Mr. Chamberlain [was] ineffective because he failed to file a motion to suppress for Mr. Lundy pursuant to Crim. R. 12(C)(3) prior to Mr. Lundy's trial commencing[, and] because he failed to file a motion to suppress for Mr. Lundy regarding whether Mr. Lundy was indicted in a timely ...

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