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Stepp v. Warden, Warren Correctional Institution

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

May 3, 2018

BRIAN T. STEPP, Petitioner,

          Barrett, J.


          Stephanie K. Bowman United States Magistrate Judge

         Petitioner, an inmate in state custody at the Warren Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on respondent's return of writ and petitioner's reply. (Doc. 8, 9).


         The Ohio Court of Appeals set forth the following set of facts leading to petitioner's conviction and sentence:[1]

{¶ 2} In late 2003, C.T. was working as a prostitute in the city of Hamilton, in Butler County, Ohio. One night in November of that year, she was standing near the intersection of Lincoln Street and Dixie Highway when a man in a red car pulled up to her and offered her a ride. C.T. got into the man's car, believing he was going to be a “customer.”
{¶ 3} Immediately after she did, the man started driving very fast down Lincoln Street and towards Route 4, onto which he turned north. C.T. began to get nervous after the man refused to tell her what “services” he wanted her to perform for him. When she again asked him what he wanted, the man pulled out a badge and told her she was under arrest for prostitution. He ordered her to put on her seatbelt, to lock her door, and not to think about running, because he had a gun, and he was “allowed to shoot her” and even “kill” her, and “nobody will think twice about it.”
{¶ 4} The man drove C.T. to the parking lot of a “police station” in Liberty Township and told her she could do him a “favor” or he could have her arrested. When C.T. refused to do him a favor, the man drove out of the police station's parking lot and then to a corn field, where he ordered her to get out the car and to get undressed. He then forced her to perform oral sex on him.
{¶ 5} Afterwards, the man told C.T. stories about different scenarios he allegedly had encountered as a police officer. He then ordered her to get dressed, handcuffed her, and placed her back in his car. When he tried to frisk C.T., she tried to escape. He eventually overpowered her by kicking her and punching her in the head. He then drove out of the corn field and over to a small house.
{¶ 6} At the house, the man led C.T. to a bathroom and ordered her to take a shower. When he left the room, C.T. tried to escape by climbing out the bathroom window; however, when the man saw what she was doing, he grabbed her hair, pulled her back inside the bathroom, slapped her, and threatened her. He then stayed until she got into the shower. After C.T. finished showering, the man made her come into the living room, where he forced her to have intercourse with him. After telling her more fictitious stories about his experiences as a police officer, he ordered C.T. to get dressed and then drove her to a convenience store near Cincinnati Dayton Road, where he dropped her off.
{¶ 7} H.K. was another prostitute who worked in Hamilton at this time. On an early evening in late December 2003 or early January 2004, H.K. was standing in the area of North 7th Street when a man in a red car pulled up to her and offered her a ride. After H.K. got into the car, the man told her someone named “Jewel” told him she (H.K.) was a “snitch, ” and “a drug dealer had hired him to beat [her] up.” At that point, H.K. believed that the man was threatening her life.
{¶ 8} As the man drove H.K. into the city of Fairfield and onto Bobmeyer Road, he told her he was a police officer and showed her a badge. He also showed her a knife he had with him and told her he was going to hurt her because he had been hired to do so. The man drove to the end of a lane off Bobmeyer Road, back by a small house or church, and parked there. He then forced H.K. to perform oral sex on him.
{¶ 9} Afterwards, H.K. got out of the car, and the man followed her. He searched her pockets and found a needle H.K. carried with her to use heroin. The man held the needle to H.K.'s neck, threatening to kill her. H.K. begged for her life. He then took her coat from her to discourage her from running away. When they got back in the car, H.K. saw the man laughing and smiling, and seemingly “enjoying himself.” He then dropped H.K. off at East Avenue.
{¶ 10} J.G. was another prostitute who worked in Hamilton at the time of these events. One afternoon in November 2003, she was standing in the area of Sycamore and Ludlow Streets when she saw a red car that “kept circling.” When the car finally pulled over, J.G. got in.
{¶ 11} Shortly thereafter, the man who was driving the car told J.G. he was a police officer. When she asked him to stop the car and let her out, the man refused to let her leave. He drove her to Tylersville Road, turned onto a dirt road, and then drove to a corn field where he parked. The man went to the passenger side of the vehicle, pressed his forearm against J.G.'s neck, pulled her pants down, and raped her.
{¶ 12} Afterwards, the man returned to the driver's side of the vehicle, and J.G. got out of the vehicle and started walking down the dirt road. The man pulled up to J.G. and ordered her to get back in the car or he would run her over. J.G. finally got back into the car because she believed the man “was capable of anything.” The man drove J.G. to Grand Boulevard and told her to get out.
{¶ 13} C.T., H.K., and J.G. did not immediately report these crimes to the police. However, on February 12, 2004, H.K. finally told the police what had happened to her on the night she was raped when she was being questioned by them on an unrelated matter. She gave the police the license plate number of the red car that was driven by the man who sexually assaulted her. The police tracked the license plate number to Brian Stepp. Detective Ken Hardin showed H.K. a photo array of suspects that contained Stepp's photograph and asked her to identify the man who raped her. It took H.K. only “a few seconds” to pick out Stepp's photograph.
{¶ 14} Within the next five days, the police also interviewed C.T. and J.G., who told the police what Stepp had done to them in November 2003. When Detective Hardin showed C.T. and J.G. a photo array that contained Stepp's photograph, both of them picked out Stepp's photograph and identified him as the man who had raped them.

State v. Stepp, No. CA2007-05-117, 2008 WL 3893601, at *1-2 (Ohio Ct. App. Aug. 25, 2008).


         State Trial Proceeding

         In April 2004, the Butler County, Ohio grand jury returned a seven-count indictment, charging petitioner with three counts of kidnapping, three counts of rape, and one count of sexual battery. See Id. at *3. Petitioner was apprehended in England on September 29, 2004, before being extradited to the United States on July 9, 2006. Id.

         On February 7, 2007, following a jury trial, petitioner was found guilty as charged in the indictment. Id. Petitioner was subsequently sentenced to a total aggregate prison term of 55 years. Specifically, petitioner received consecutive terms of ten years each on the three rape charges, five years on the sexual battery charge, and ten, seven, and three years on the remaining kidnapping charges. Id.

         Petitioner, through different counsel, filed a direct appeal to the Ohio Court of Appeals. Petitioner raised the following eight assignments of error:

1. The pretrial photographic identification procedure was so unnecessarily suggestive and conducive to misidentification that Mr. Stepp ...

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