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Artripe v. Warden, Chillicothe Correctional Institution

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

June 12, 2018

ROGER E. ARTRIPE, Petitioner,
v.
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

          George C. Smith Judge

          REPORT AND RECOMMENDATION

          Elizabeth A. Preston Deavers 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, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED without prejudice as unexhausted unless Petitioner notifies the Court, within FOURTEEN (14) DAYS, that he wishes to delete his unexhausted claim and proceed only on his remaining exhausted claims.

         Facts and Procedural History

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

{¶ 2} Appellant's daughter Ashley contacted law enforcement on February 24, 2013, to report that her four-year-old stepdaughter, A.S., had informed her of improper sexual conduct by appellant. Detective Tom Bumpus recommended that Ashley take A.S. to the Center for Family Safety and Healing (hereinafter “Center”) at Nationwide Children's Hospital in Columbus for an examination.
{¶ 3} Det. Bumpus interviewed appellant, who admitted to babysitting A.S. on Tuesdays. Appellant acknowledged putting cream or ointment on A.S., and while he denied touching A.S., he told the detective that he suffered from memory lapses, and might have touched A.S. during a “blackout session.”
{¶ 4} Kerri Wilkinson, a licensed social worker and forensic interviewer, interviewed A.S. at the Center. The interview was videotaped. A.S. was asked to identify body parts on anatomically correct drawings of a naked boy and girl. A.S. identified the vaginal area as a “booger, ” and the penis as a “booger.” A.S. told Wilkinson that Papaw Roger puts his booger inside of her booger, and it hurts. She also told Wilkinson that Papaw Roger's booger goes inside of her butt, and it hurts. A.S. told Wilkinson that slobber and pee come out of Papaw Roger's booger when he goes potty, and that his slobber is white.
{¶ 5} After the interview, pediatric nurse practitioner Gail Hornor conducted a physical examination of A.S. Hornor watched A.S.'s interview through closed circuit television, and also discussed the interview with Wilkinson to determine the appropriate medical examinations and testing. A.S. tested negative for sexually transmitted diseases, and her anogenital examination was normal.
{¶ 6} On March 5, 2013, appellant's daughter Amanda made an audio recording of a confrontation she and her mother had with appellant concerning the allegations. Appellant stated that he touched A.S., that he does not know why, and that he is getting help.
{¶ 7} Appellant was indicted by the Knox County Grand Jury on one count of rape and one count of gross sexual imposition. The case proceeded to jury trial.
{¶ 8} At trial, A.S. was found incompetent to testify, but the videotape of Wilkinson's interview with A.S. was admitted into evidence over appellant's objection. Appellant testified at trial that he sometimes babysat A.S. He testified that she had soiled her pants, and he put her in the bathtub. When she got out of the tub, he noticed that “her bottom was ate up, ” either with diaper rash or bed bug bites. He put Desitin ointment on her bottom. He testified that the guilt he felt was for putting diaper ointment on an older child like A.S., rather than letting a female family member do it. He testified that for the last ten years he had been unable to obtain an erection or ejaculate. His wife also testified that for the last ten years, appellant was unable to perform sexually.
{¶ 9} Appellant was convicted of both charges. The trial court found that the convictions merged, and sentenced appellant for rape. Because the victim was under the age of ten, the court sentenced appellant to a term of imprisonment of life with possibility of parole in fifteen years. Appellant assigns four errors on appeal:
{¶ 10} “I. THE COURT ERRED WHEN IT PERMITTED THE INTRODUCTION OF EVIDENCE THAT WAS IMPERMISSIBLE AS BOTH HEARSAY AND IN VIOLATON OF APPELLANT'S RIGHT TO CONFRONT WITNESSES AGAINST HIM.
{¶ 11} “II. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS.
{¶ 12} “III. THE JURY'S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 13} “IV. THE APPELLANT WAS PREJUDICED BY INEFFECTIVE ASSISTANCE ...

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