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Henley v. Marquis

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

July 23, 2018

BRIAN DAMONT HENLEY, Petitioner,
v.
DAVID MARQUIS, Warden, Richland Correctional Institution Respondent. v.

          Thomas M. Rose District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This habeas corpus action is before the Court for decision on the merits on the Petition (ECF No. 1), the State Court Record (ECF No. 12, 16 & 19), the Return of Writ (ECF No. 13) and Petitioner's Reply (ECF No. 20).

         Petitioner pleads the following grounds for relief:

Ground 1: Trial court erred in imposing sentence which violates 6th and 14th Am. right to jury trial in U.S. Const.
Supporting Facts: Trial court relied upon facts that were neither admitted by defendant or found by a jury when the trial court imposed the sentence and labelled defendant as a sexual predator.
Ground 2: Appellate counsel was ineffective in violation of 6th and 14th Am. of U.S. Const.
Supporting Facts: Appellate counsel failed to challenge trial counsel's failure to: challenge trial court bias at sentencing and sexual classification hearing when the trial court accused defendant of having committed several rapes not supported by the record; trial court imposed sentence based on facts not found by the jury or admitted by defendant and likewise labelled defendant a sexual predator; Ground 3: Trial court violated defendant's federal rights to confrontation and compulsory process.
Supporting Facts: Trial court arbitrarily restricted the testimony of a key defense witness. (Barbara Pettiford). (Due process violation of the 14th Am. to the U.S. Constitution).
Ground 4: Trial court violated defendant's state and federal right to challenge conviction and sentence. 14th Am. U.S. Const.
Supporting Facts: At my resentencing hearing held on October 27, 2016, the trial court refused to allow me to raise challenges to my underlying convictions and sentences in violation of my federal and state rights to due process. 14th Am. U.S. Const.
Ground 5: The sentence imposed in this case is void in violation of petitioner's state and federal rights to due process.
Supporting Facts: The trial court relied upon unconstitutional statutes when imposing the sentence.
Ground 6: Appellate counsel was ineffective in failing to raise trial counsel's failure to object to prosecutor misconduct. 6th and 14th Am. U.S. Constitution.
Supporting Facts: The prosecutor remarked to the jury, during summation, that petitioner's presence at his own trial allowed him to hear all of the evidence and then tailor his story to fit into that evidence.
Ground 7: The trial court violated defendant's state and federal rights against being put twice in jeopardy for the same offense. 5th and 14th Am. U.S. Const.
Supporting Facts: The trial court failed to merge the rape and kidnap counts 1-5 and the court failed to merge the multiple felonious assault and attempted felonious assault counts 6-8 when the offenses are clearly allied offenses of similar import in violation of state and federal double jeopardy prohibitions.
Ground 8: Trial counsel was ineffective in violation of petitioner's 6th and 14th Am. rights to the effective assistance of counsel. U.S. Con. 6th and 14th Am.
Supporting Facts: Trial counsel was ineffective at trial when counsel requested a jury instruction for “self-defense” in relation to the attempted felonious assault charge when petitioner never claimed to have committed attempted felonious assault in self-defense and, in fact, petitioner denied having committed attempted felonious assault at all.
Ground 9: Appellate counsel was ineffective in failing to raise trial counsel's ineffectiveness in not challenging a sentence imposed for allied offenses and allied offenses of similar import in violation of appellant's state and federal rights to the effective assistance of counsel where the sentences imposed violate state and federal double jeopardy prohibitions.
Supporting Facts: The trial court imposed multiple sentences for offenses that were clearly ‘allied' in violation of state and federal double jeopardy prohibitions. The multiple rape counts should have merged with the kidnap counts and the multiple felonious assault counts should have merged with each other as well as with the attempted felonious assault count. Appellate counsel should've challenged trial counsel's failure to raise this issue.
Ground 10: The evidence at trial was insufficient to sustain the conviction of ‘attempted felonious assault' in violation of petitioner's state and federal rights to due process.
Supporting Facts: There was absolutely no evidence presented at trial to prove that petitioner ‘attempted' to suffocate his accuser with a pillow.

(Petition, ECF No. 1, PageID 5-16.)

         Petitioner has expressly waived Grounds for Relief Four, Five, Six, Eight, and Ten (Reply, ECF No. 20, PageID 1723) and they will not be considered further.

         Underlying Offense Conduct

         On September 28, 2004, a jury in Montgomery County, Ohio convicted Henley of one count of kidnapping, four counts of rape, two counts of felonious assault, and one count of attempted felonious assault. The convictions stemmed from an incident occurring on the morning of May 24, 2004, when Henley offered the victim a ride home after her restaurant shift. On the pretext of needing to use the restroom, Henley gained access to her apartment. Henley raped the victim multiple times, after binding her mouth and hands with duct tape. He held a knife against her, threatening to kill her, and then attempted to suffocate her with a pillow. When she tried to escape, he also choked her and stabbed her. See State v. Henley, No. 20789, 2005-Ohio-6142, 2005 Ohio App. LEXIS 5531, at *2-9 (2nd Dist. Nov. 18, 2005).

         There is an extended procedural history in this case which will be referred to as necessary as it relates to particular grounds for relief.

         Analysis

         Ground One: Violation of Right to Jury Determination

         In his First Ground for Relief, Petitioner asserts the trial court violated his Sixth Amendment right to trial by jury by imposing a sentence and sexual predator designation on facts not found by the jury.

         Respondent asserts the Court lacks subject matter jurisdiction to consider this claim because Henley is no longer in custody on his rape and kidnapping convictions. Petitioner replies with controlling precedent, Garlotte v. Fordice, 515 U.S. 39 (1995). The Magistrate Judge concludes the Court has subject matter jurisdiction over Ground One.

         Respondent asserts this Court lacks authority to grant relief on Henley's claim that he was improperly classified as a sexual predator, relying on Bevins v. Brunsman, 2009 WL 5612338 (S.D. Ohio Dec. 17, 2009), quoting Leslie v. Randle,296 F.3d 518 (6th Cir. 2002). Leslie holds the restrictions on liberty of a classified sexual offender do not rise to the level of placing or keeping the offender in custody. 296 F.3d at 522-23. Under Garlotte, because Henley remains in ...


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