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Jackson v. Sloan

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

April 24, 2019

HARRISON JACKSON, Petitioner,
v.
BRIGHAM SLOAN, Warden, Respondent.

          PATRICIA A. GAUGHAN JUDGE.

          REPORT AND RECOMMENDATION

          David A. Ruiz United States Magistrate Judge.

         Petitioner, Harrison Jackson (hereinafter “Petitioner” or “Jackson”), challenges the constitutionality of his conviction in the case of State v. Jackson, Cuyahoga County Court of Common Pleas No. CR-13-574810-A. This matter is before the undersigned Magistrate Judge pursuant to Local Rule 72.2. Petitioner, pro se, filed his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 2, 2017. (R. 1). On August 17, 2017, Warden Brigham Sloan (“Respondent”) filed a Motion to Dismiss the petition as raising exclusively procedurally defaulted claims; Respondent also filed the state court record. (R. 5). Petitioner did not file any opposition or response. The court construed the motion as Respondent's Answer/Return of Writ and denied the motion as moot. For reasons set forth in detail below, it is recommended that the habeas petition be DISMISSED.

         I. Summary of Facts

         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012) (“State-court factual findings are presumed correct unless rebutted by clear and convincing evidence.”) The Eighth District Court of Appeals (hereinafter “state appellate court”) summarized the facts underlying Petitioner's conviction as follows:

{¶ 2} In May 2013, Jackson was charged with rape, in violation of R.C. 2907.02(A)(2), and kidnaping, in violation of R.C. 2905.01(A)(4), as a result of an incident that occurred on June 7, 1993. At a bench trial, the victim (“A.G.”) testified that in 1993 she was a 35 year-old drug addict, who sold and used drugs. She knew Jackson, who was then 19 years old, because they sometimes smoked crack together, but she did not know him by any other name but “Cool Man.”
{¶ 3} Sometime after midnight on June 7, 1993, while A.G. was sleeping, Jackson knocked on the door of the apartment where A.G. was temporarily living. He was looking for drugs, and A.G. told him she had none. A.G. testified that Jackson entered the apartment to use the bathroom, and A.G. went back to bed. Jackson subsequently entered A.G.'s bedroom and raped her. After the rape, A.G. walked to her sister's house, and her sister took her to the hospital where a nurse completed a rape kit. A.G. gave a statement to police while she was in the hospital, and the police report was admitted into evidence at trial.
{¶ 4} Jackson testified and told a different story. Jackson admitted that he came to A.G.'s apartment on the night of June 7, 1993, and that they had sexual intercourse. However, he stated that he came to A.G.'s apartment with some crack he had stolen and traded some of the crack for sex. He maintained the sex was consensual. After having sex, Jackson slept on the couch and left in the morning.
{¶ 5} Jackson further testified that he saw A.G. with another woman named Diane the day after the alleged rape, and Diane told Jackson that A.G. accused him of raping her. Jackson testified that he confronted A.G., who was nearby, about the accusation, and she denied it. According to Jackson, the three of them then got high together. Jackson acknowledged he has been known as “Cool Man” all his life.
{¶ 6} Two other witnesses testified at trial. Timothy Clark (“Clark”), an investigator in the Cuyahoga County Prosecutor's Office, testified that he investigates “cold cases” in which DNA evidence was collected years ago but no suspect was identified at that time. He explained that many suspects now provide DNA samples in buccal swabs when they are arrested, and their DNA information is collected in the Combined DNA Index System (“CODIS”) database. As DNA tests are performed in both new and cold cases, the results of these tests are entered into the same database. If the DNA from a recently tested sample matches DNA previously entered into the CODIS database, there is a “CODIS hit, ” which means the recently tested DNA matches an individual in the database.
{¶ 7} In this case, DNA from A.G.'s rape kit was sent to the Ohio Attorney General's Bureau of Criminal Investigation (“BCI”) for DNA testing in 2011. In 2013, there was a CODIS hit. The DNA test results indicated that DNA contained in A.G.'s rape kit matched the DNA of “Harrison Jackson, a.k.a. Tyrone Jackson, Desmond Moss, and Harrison Moss.”
{¶ 8} Once the CODIS hit was made, the case was assigned to Clark, who reviewed the police report of the rape. Clark also called and interviewed A.G., who had stopped using drugs and started a new life in Atlanta, Georgia. After A.G. confirmed the allegations, Clark sent a photo array of suspects to Cynthia Nwokocha (“Nwokocha”), who was an investigator in the Fulton County District Attorney's Office in Atlanta, Georgia. Nwokocha testified that she did not know any of the individuals pictured in the line up. When Nwokocha presented the line up to A.G., A.G. immediately identified Jackson as the man who raped her and called him “Cool Man.” Nwokocha subsequently mailed the line up back to Clark.
{¶ 9} Clark interviewed Jackson following his arrest. Jackson admitted that he knew A.G. and that he had sex with her on June 7, 1993. Clark took another buccal swab that confirmed the results of the earlier DNA testing.
{¶ 10} The trial court found Jackson guilty of both the rape and kidnaping charges and referred him to the Court Psychiatric Clinic for a H.B. 180 classification assessment. At the sentencing hearing, the court sentenced Jackson to 8-25 years in prison and classified him as a sexual predator.

State v. Jackson, No. 100877, 2014-Ohio-5137 at ¶¶ 2-10, 2014 WL 6483274 (Ohio Ct. App., Nov. 20, 2014).

         II. Procedural History

         A. Conviction

         On May 29, 2013, the Cuyahoga County Grand Jury issued an indictment charging Jackson with one count of rape in violation of O.R.C. § 2907.02(A)(2) and one count of kidnapping in violation of O.R.C. § 2905.01(A)(4). (R. 5-1, PageID# 76-77, Exh. 1). Jackson, through appointed counsel, pleaded not guilty. (R. 5-1, PageID# 78, Exh. 2).

         On September 17, 2013, the State filed a Bill of Particulars (R. 5-1, PageID# 79-80, Exh. 3) and a response to Jackson's discovery requests on the same date. (R. 5-1, PageID# 81-86, Exh. 4). On October 30, 2013, the trial court found Jackson guilty as charged after a bench trial. (R. 5-1, PageID# 99, Exh. 5). For sentencing purposes, the court merged the two counts as allied offenses. (R. 5-1, PageID# 101, Exh. 7). The court imposed an eight (8) to twenty-five (25) years imprisonment for the rape conviction and designated Jackson as a sexual predator. Id.

         B. Direct Appeal

         On January 13, 2014, Jackson, through new counsel, filed a notice of appeal (R. 5-1, PageID# 102, Exh. 8) with the Ohio Eighth District Court of Appeals (“state appellate court”) and raised the following assignments of error:

1. The trial court committed error when it imposed a period of post-release control on Mr. Jackson although the offense of which he was convicted occurred more than three years before the effective date of Am. Sub. S.B. 2.
2. The trial court committed plain error when it found Mr. Jackson to be a sexual predator without holding a classification hearing as mandated by former R.C. 2950.09(B)(1)
3. The verdicts are not supported by the manifest weight of the evidence.
4. The trial court committed plain error and imposed a sentence not authorized by law when it sentenced Mr. Jackson to an indefinite term of 8-25 years in prison under pre-S.B. 2 sentencing law.

(R. 5-1, PageID# 108-123, Exh. 9).

         On November 20, 2014, the state appellate court affirmed in part and vacated in part the judgment of the trial court. (R. 5-1, PageID# 146-164, Exh. 12). The court affirmed the convictions, but vacated the sentence and remanded the matter so that the trial court could hold a sexual offender classification hearing and also for a new sentencing hearing to apply the provisions of H.B. 86. Id.

         On November 26, 2014, the State appealed the decision of the state appellate court to the Ohio Supreme Court. (R. 5-1, PageID# 165-166, Exh. 13). In the memorandum in support of jurisdiction, the State raised the following proposition of law:

I. A defendant who commits an offense prior to July 1, 1996 is subject to law in effect at the time of the offense and not subject to sentencing provisions of S.B. 2 effective July 1, 1996 and H.B. 86 effective 2011.

(R. 5-1, PageID# 181-191, Exh. 14). Jackson, through counsel, responded to the State's brief, but did not independently appeal, cross-appeal, or raise his own propositions of law. (R. 5-1, PageID# 192, Exh. 15). On May 20, 2015, the Supreme Court of Ohio declined to accept jurisdiction of the appeal pursuant to Ohio S.Ct.Prac.R. 7.08(B)(4). (R. 5-1, PageID# 201, Exh. 16). The State moved for reconsideration, but the Supreme Court denied the motion. (R. 5-1, PageID# 202-208, Exhs. 17 & 18).

         C. Resentencing

         On August 27, 2015, Jackson, with counsel, appeared before the trial court for resentencing. For the purposes of sentencing, the court merged the rape and kidnapping convictions as allied offenses, and sentenced Jackson to a term of ten (10) years in prison for rape. (R. 5-1, PageID# 209, Exh. 19). On September 29, 2015, the court held a hearing on Jackson's sexual offender designation. Following an updated evaluation by the Court Psychiatric Clinic, the court classified Jackson as a sexual predator pursuant to O.R.C. ...


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