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Brown v. Warden, Southeastern Correctional Complex

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

May 10, 2018

STANLEY BROWN, Petitioner,
v.
WARDEN, SOUTHEASTERN CORRECTIONAL COMPLEX, Respondent.

          Dlott, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman, United States Magistrate Judge.

         Petitioner, an inmate in state custody at the Pickaway Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Petitioner moved to amend/correct the petition, which was granted on June 12, 2017. (Doc. 15, 20). This matter is before the Court on the petition, as amended, respondent's return of writ, and petitioner's brief in reply to the return of writ. (Docs. 1, 15, 17, 20).

         Also before the Court is petitioner's motion for leave to amend and or supplement his petition, which is opposed by respondent.[1] (Doc. 32, 33).

         I. FACTUAL BACKGROUND

         The Ohio Court of Appeals set forth the following set of facts leading to petitioner's conviction and sentence:[2]

{¶ 3} A jury trial was held in September 2011. At trial, the state presented the testimony of K.G. and K.G.'s school guidance counselor, Angela Bucheit. K.G. testified that in 2003, she was a third grader living with her mother, Brown, and her twin sister in an apartment on Gordon Smith Boulevard in Hamilton, Ohio. K.G. stated that Brown began to ask her to do him “favors, ” which consisted of him trying to have sex with her. K.G. testified that Brown took her to an abandoned apartment on Gordon Smith Boulevard and forced her to touch his penis and put her mouth on his penis. She also testified that Brown digitally penetrated her vagina and put his penis into her “a little bit” until she started kicking and screaming. After the incident ended, Brown instructed K.G. not to tell her parents or he would hurt them.
{¶ 4} K.G. testified that a second encounter with Brown occurred when she was a fifth grader at Richard Allen Academy. K.G. stated that although she lived with her grandparents, she was visiting her mother at her mother's apartment on Chestnut Street in Hamilton, Ohio while on spring break. K.G. testified that after showering at her mother's apartment, Brown asked her to come to his room and do him a “favor.” When K.G. told him “no, ” he pushed her down on his bed and started to choke her until she put her mouth on his penis.
{¶ 5} K.G. testified that her mother later moved back to an apartment on Gordon Smith Boulevard in Hamilton, Ohio. During one of K.G.'s visits to her mother's apartment, Brown came into the victim's room and asked her to do him a “favor” again. K.G. stated she put her mouth on Brown's penis.
{¶ 6} K.G. did not report these rapes until March 2010, when she was a sophomore in high school. K.G. explained that during her sophomore year, her health class had a guest speaker from Children's Hospital who discussed child abuse and alcohol abuse. During the course of the guest speaker's presentation, K.G. volunteered to read a card prepared by the speaker that discussed a girl who had become dependent upon drugs and alcohol after remaining silent about being raped. K.G. testified that after reading the card, she “got nervous on the inside” and “was starting to cry.” After class, K.G. spoke with the guest speaker and with Bucheit about what had happened with Brown. K.G. testified that Bucheit called the police and she gave a statement to detectives later that day.
{¶ 7} On cross-examination, K.G. admitted that prior to 2010 she had not told her mother, grandparents, sister, or the police about what had happened with Brown, and she had not sought medical attention after the rapes occurred. K.G. acknowledged that she had previously had a good relationship with Brown, that she called him “dad, ” that they said “I love you” to one another, and that when Brown was in jail from June 2004 to May 2006, she wrote him letters. K.G. denied the defense's allegation that she “made [the] whole thing up, ” but acknowledged that her trial testimony differed from the statement she gave to detectives in March 2010 and from her December 2010 grand jury testimony. K.G. admitted that she never told detectives that she performed oral sex on Brown or that they had engaged in sexual intercourse. Additionally, she admitted that during her grand jury testimony she had identified different locations where the rapes occurred, including a Travel Lodge in Kentucky, and had described the rapes as involving both vaginal intercourse and oral sex. K.G. explained that she was not lying when she gave her statement to the detectives, when she testified before the grand jury, or when testifying before the jury. Rather, when talking to the detectives, she gave the events in the order she remembered them and additional details surfaced the more she thought about what had happened to her.
{¶ 8} Bucheit was then called to the stand to testify, over the defense's objections, about the statements K.G. made to her after the guest speaker's presentation at the school. Bucheit testified she spoke with K.G. on March 19, 2010, after K.G. was released from her health class. At this time, K.G. told Bucheit that Brown had inappropriately touched her breasts and vagina, and he had raped her by “put [ting] his thing inside of her.” When Bucheit asked K.G. what she meant by that statement, K.G. specified that Brown “put his penis in my vagina.” K.G. told Bucheit that it had happened more than once, and one of the times it occurred at an apartment on Gordon Smith Boulevard in Hamilton, Ohio.
{¶ 9} Following Bucheit's testimony, the defense made a Crim.R. 29 motion for acquittal, which was denied by the trial court. Brown took the stand in his own defense and stated that K.G.'s testimony was all lies. He testified that he never digitally penetrated, had oral sex with, or had sexual intercourse with K.G. Brown claimed that since beginning his relationship with K.G.'s mother in 2003, he has never been alone with K.G.-“not even for ten minutes.” Brown testified that he had a good relationship with K.G., and when he was in prison from June 2004 to May 2006, he would frequently talk to K.G. and receive “happy” letters from her. At trial, Brown presented a letter, dated January 1, 2009, that had been written by K.G.'s mother. At the end of the letter K.G. had written a short message to Brown, which stated:
P.S. Hey daddy! I ghott [sic] a boyfriend and his name is Jamonta (JT)!! He so [sic] sweet. Ha. Don't loose [sic] your head daddy. I love you.
{¶ 10} A friend and former neighbor of Brown's, Wilma Buck, testified at trial that she did not believe K.G. had ever stayed overnight with Brown without K.G.'s mother also being present. Brown's niece, Bridgett Brown, testified that K.G. had spent “quite a few” weekends at her house over the years so that K.G. could visit with Bridgett's children. Bridgett stated that she had the opportunity to see K.G. and Brown interact and that K.G. was “ecstatic” about having a dad in her life. She described K.G. and Brown's relationship as that of a father and daughter.

(Doc. 16, Ex. 28 at PageID 211-14).

         II. PROCEDURAL BACKGROUND

         State Trial Proceeding

         In December 2010, the Butler County, Ohio, grand jury returned an indictment charging petitioner with three counts of rape in violation of Ohio Rev. Code § 2907.02(A)(1)(b). (Doc. 16, Ex. 1). The three counts stemmed from three alleged instances of sexual abuse of the victim. Count one was alleged to have occurred between Fall 2003 and Spring 2004, count two between Spring 2004 and Fall 2005, and the third count between Spring 2005 and Spring 2006.

         Petitioner, through counsel, filed a request for a bill of particulars, which was provided by the prosecution. (Doc. 16, Ex. 2, 3). Petitioner subsequently filed a motion for a more specific bill of particulars, which was also provided by the prosecution. (Doc. 16, Ex. 4-6). Petitioner also filed a notice of alibi and motion to dismiss counts two and three of the indictment on the basis that he was incarcerated from June 10, 2004 to May 6, 2006. (Doc. 16, Ex. 7, 8). On August 5, 2011, the trial court denied the motion to dismiss. (Doc. 16, Ex. 10).

         The State subsequently filed two amended bill of particulars. (Doc. 16, Ex. 11, 12). On September 19, 2011, petitioner filed a “motion for assignment of error, ” arguing that the bill of particulars were unconstitutional, which was denied by the trial court. (Doc. 16, Ex. 13, 14). Petitioner filed a second notice of intent to use alibi defense and the parties stipulated on the dates that petitioner was incarcerated. (Doc. 16, Ex. 15, 16). Following a third amended bill of particulars filed by the prosecution, petitioner unsuccessfully moved to dismiss the indictment on the basis that it was “unconstitutional and invalid due to the inexactitude of time in which the alleged offenses occurred.” (Doc. 16, Ex. 17-19). The State filed a fourth amended bill of particulars specifying the locations of the offenses. (Doc. 16, Ex. 20).

         On September 26, 2011, following a jury trial, petitioner was found guilty of counts one and two of the indictment and not guilty on the remaining count. (Doc. 16, Ex. 21). On November 9, 2011, petitioner was sentenced to a total prison sentence of ten years to life. (Doc. 16, Ex. 23).

         Direct Appeal

         On November 8, 2011, petitioner, through counsel, filed a notice of appeal and withdraw of counsel to the Ohio Court of Appeals. (Doc. 16, Ex. 25). Assisted by new counsel, petitioner subsequently raised the following five assignments of error in his merit brief:

1. K.G.'s testimony was improperly bolstered by hearsay statements. Fifth and Fourteenth Amendments to the United States Constitution; Section 16, Article I of the Ohio Constitution. (Nov. 9, 2011 Judgment of Conviction Entry; Tr. 32-33; 81-101, 254).
2. The trial court abused its discretion when it refused to give a lesser-included offense instruction. State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889; R.C. 2945.74. (Nov. 9, 2011 Judgment of Conviction Entry; Tr. 241, 254).
3. Mr. Brown's convictions are against the manifest weight of the evidence. Fifth and Fourteenth Amendments to the United States Constitution; Sections 10 and 16, Article I of the Ohio Constitution. (Nov. 9, 2011 Judgment of Conviction Entry; Tr. 254).
4. Mr. Brown's trial was fundamentally unfair because the court tainted the jury venire by telling it that innocent people are not brought to trial. Fifth and Fourteenth Amendments to the United States Constitution; Sections Five, ten and Sixteen, Article I of the Ohio Constitution. (Nov. 9, 2011 Judgment of Conviction Entry; Tr. 32-33; 254).
5. Trial counsel was ineffective for failing to object to the court's improper introductory explanation that tainted the jury pool. Sixth and Fourteenth Amendments to the United States Constitution; Sections 10 and 16, Article I of the Ohio Constitution. (Nov. 9, 2011 Judgment of Conviction Entry; T. 32-33; 254).

(Doc. 16, Ex. 26). On April 22, 2013, the Ohio Court of Appeals issued a Decision and Judgment Entry overruling the assignments of error and affirming the trial court's judgment. (Doc. 16, Ex. 28).

         Ohio Supreme Court

         On June 6, 2013, petitioner filed a pro se notice of appeal to the Ohio Supreme Court. (Id., Ex. 29). In his memorandum in support of jurisdiction, petitioner raised the following five propositions of law:

1. When a criminal defendant is convicted by testimony enhanced by hearsay, the Appellant is deprived of a Fair Trial and the Due Process of Law, guaranteed him by the 5th and 14th Amendments of the U.S. Constitution and Article I, Section 16 of the Ohio Constitution.
2. When a Trial Court refuses to give a required lesser-included offense instruction, which is supported by the evidence, the Court abuses its discretion when it refuses to grant the defendant's request for such and instruction, and therefore denied this Appellant's (sic) of a fair trial and the Due Process of Law, guaranteed by the 5th and 14th Amendments of the U.S. Constitution and Article I, Section 16 of the Ohio Constitution.
3. When the manifest weight of the evidence adduced at trial in support of a conviction is not greater than that which supports an acquittal, the Jury loses its way when convicting an Appellant and violates his Constitutional rights to a Fair Trial and the Due Process of Law, guaranteed him by the 5th and 14th Amendments of the U.S. Constitution and Article I, Section 16 of the Ohio Constitution.
4. When a Trial Court tells a Jury that innocent people are not brought to Trial, the Court effectively destroys the presumption of innocence, and deprives the Appellant of his Constitutional Rights to a Fair Trial and the Due Process of Law, guaranteed by the 5th and 14th Amendments of the U.S. ...

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