United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
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).
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
Supporting Facts: Trial court arbitrarily
restricted the testimony of a key defense witness. (Barbara
Pettiford). (Due process violation of the 14th Am. to the
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.
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
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.)
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.
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,
is an extended procedural history in this case which will be
referred to as necessary as it relates to particular grounds
One: Violation of Right to Jury Determination
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.
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.
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