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Wagner v. Bradley

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

May 2, 2019

JOSEPH D. WAGNER, SR., Petitioner,
v.
WARDEN CHARLES BRADLEY, Respondent.

          JAMES G. CARR, JUDGE

          REPORT & RECOMMENDATION

          KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE

         Petitioner Joseph Wagner, Sr., (“Petitioner” or “Wagner”) brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Doc. 1, 4. Wagner is detained at the Pickaway Correctional Institution, having been found guilty by an Erie County, Ohio, Court of Common Pleas jury of ten counts of rape against two minor victims. State v. Wagner, No. 2013-CR-164 (Erie Cty. Common Pleas Ct., filed June 25, 2014). At sentencing, the trial court sentenced him to eleven years in prison on one count and life in prison without parole on the nine remaining counts; the sentences on the five counts involving each victim to run concurrently but consecutively to the sentences on the counts involving the other victim; classified him as a Tier III sex offender; and ordered him to pay restitution. Doc. 8-1, pp. 112-116; Doc. 8-8, pp. 37-38.

         On August 21, 2017, Wagner filed an Amended Petition for Writ of Habeas Corpus setting forth three grounds for relief.[1] Doc. 4. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2. As set forth more fully below, Wagner's grounds are procedurally defaulted, fail on the merits, and/or are not cognizable. Thus, the undersigned recommends that Wagner's Petition for Writ of Habeas Corpus be DISMISSED in part and DENIED in part.[2]

         I. Background

         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, the state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008).

         The following summary of underlying facts is taken from the opinion of the Erie County Court of Appeals, Sixth Appellate District of Ohio:

{¶ 2} In February of 2013, ten-year-old L.M. and seven-year-old J.M. reported to their mother, T.M., that their grandfather, Joseph D. Wagner, Sr., had been inappropriately touching them over an approximately three-year period. On April 10, 2013, Wagner was indicted on 10 counts of rape, violations of R.C. 2907.02(A)(1)(b). As to all counts, Wagner was alleged to have purposely compelled the victims to submit to sexual conduct by force or threat of force, and as to all counts except Count 5, the victims were alleged to have been under the age of ten.
* * *
{¶ 15} At trial, both L.M. and J.M. testified. So did a number of individuals who tended to them after the abuse was reported, including Rebecca Boger, an intake investigator in the Children's Services Division of the Ohio Department of Job and Family Services (“ODJFS”); Jacqueline Spadaro, a mental health therapist at Bayshore Counseling Services, who counseled L.M.; Rebecca Dills, a mental health therapist at Bayshore Counseling Services, who counseled J.M.; Melinda Kuebler, a sexual assault nurse examiner (“SANE”) who examined L.M. and J.M.; and Corey Mook, an officer with the Sandusky police department. The girls' parents also testified. Some of these witnesses testified about statements the victims made to them.
* * *
{¶ 27} Boger testified that as an intake investigator, her job is to investigate allegations of abuse or neglect, to ensure that the child is safe, and then to refer the family for any services they may need. Boger interviewed L.M. and J.M. at Michael's House on February 13, 2013. Michael's House is a child advocacy center that was developed in 2005. Boger described it as a neutral, comfortable place to interview children “so they don't have to go to the police department or to our agency.” Michael's House has audio and video recording capabilities. Boger recorded her interviews of L.M. and J.M.
{¶ 28} Boger characterized her interview of L.M. and J.M. as “forensic.” She testified that she conducts her interviews in accordance with Beyond the Silence protocol developed by the state of Ohio. She said that she was trained not to use suggestive techniques or to ask leading questions and that she tries to get correct information in as non-traumatic a way as possible. Boger explained that she receives a case when someone calls the agency with a concern. What she does next is determined on a case-by-case basis. With some children, the child is at immediate risk of harm and it is her job to make sure that the child is safe from the perpetrator. Once she deems that the child is safe, if it is a criminal matter, her job is to contact law enforcement so they can assist in the case.
{¶ 29} Boger interviewed L.M. and J.M. separately with no one else present in the room. Before the interview, Boger had been told that there were allegations of inappropriate touching, but she said that the girls disclosed “much, much more than that” and that the girls' parents had not known the extent of what was revealed during their interviews. Boger referred the family to the NORD Center in Lorain so the girls could be examined by a SANE nurse.
{¶ 30} Boger responded to questions on cross-examination about the difference between a forensic interview and a therapeutic interview. She agreed that in a forensic interview, she tries to obtain as much information as she can about what may have occurred, and she attempts to do so in a neutral manner without influencing the statement. In a therapeutic interview, the interviewer takes the position that what has been reported is true and works to treat the patient.
{¶ 31} On cross-examination, defense counsel asked Boger specific questions about what L.M. and J.M. told her. In response to these questions, Boger testified that J.M. told her that Wagner scratched her, that J.M. didn't talk to L.M. about what happened, that Wagner made her bleed, that Wagner abused her every time she went over to his house, and that Wagner told her not to tell anyone but she told because she wanted to make the right choice. Defense counsel elicited from Boger that L.M. never told her she had been forced to perform oral sex or that Wagner had stuck his finger inside of her. She confirmed that L.M. had told her that Wagner stuck his penis inside of her, that it happened every time she stayed the night at her grandparents' house except for the last time, and that when it happened, Wagner was on top of her.
* * *
{¶ 34} Spadaro and Dills are licensed mental health therapists who diagnose and treat mental and emotional disorders. Spadaro treated L.M. and Dills treated J.M. They spoke at length about their diagnoses of the girls and the factors they considered in arriving at their diagnoses. This included many references to details that the girls provided during their therapy sessions.
{¶ 35} For instance, Spadaro testified that L.M. told her that the abuse began when she was around age seven, occurred mostly at her grandfather's house, and happened every time she went over to her grandparents' house. L.M. told Spadaro that her grandfather would lock the door. She said neither of them had pants on, their private parts would touch, and sometimes his penis would go inside of her. She described that it hurt and he did not care because he did not stop. L.M. told Spadaro that after Wagner had sex with her, they would watch the movie “Goonies.” She said that she had put her mouth on his penis and touched it with her hands. L.M. told Spadaro that her grandfather showed her pictures of naked girls on a stage. He told her he wanted to stick his penis in her vagina and would tell her that his penis missed her. L.M. said that her grandfather told her that if she had sex with him, he would give her tootsie rolls. She said she was scared and that her grandfather “squished” her by lying on top of her.
{¶ 36} L.M. told Spadaro about feelings of anxiety and fears of being judged by others. Spadaro described that L.M. would plug her ears if her sister talked about the abuse, she avoided her favorite movie because it made her think of her grandfather, and she did not like when her friends talked about their grandparents. Spadaro said that L.M. had flashbacks during the day, she experienced trouble sleeping at night, and she had angry outbursts.
{¶ 37} As part of her therapy, L.M. wrote a letter to her grandfather: “I remember you had sex with me and you hurt my private parts. I want to know why you touched me in the first place, among other things.” She did not want to send the letter or share it with her parents.
{¶ 38} Spadaro confirmed that she conducted therapeutic interviews of L.M. and not forensic interviews. She said that based on her assessment of L.M., L.M. had been sexually abused and suffers from post-traumatic stress disorder.
{¶ 39} Dills testified that J.M. identified her abuser as “Papa.” J.M. described to Dills that her grandfather yelled at her and told her to get into his bed. She said that he touched her in her lower parts, where her bathing suit would cover. J.M. explained that he would tell her to lie back when he touched her and if she did not, he would push her forehead back. J.M. said that once her grandfather kicked her and she kicked him back. When the abuse happened, her grandfather would lock the door. She wanted to run out, but did not want to hurt his feelings. J.M. said that her grandfather told her “it was the best stuff in the world” and told her not to tell a counselor or he would go to jail. J.M. finally told her parents because she did not feel good about it. J.M. told Dills that she did not want to think about it and did not want her to even say the name “Papa, ” and she questioned whether she had done the right thing telling her mother. They discussed how J.M. had told her sister before telling her mother.
{¶ 40} J.M. told Dills that she knew that Dills, her mom, and her dad believed her, but was sad because her grandmother did not believe her. She said that she could not talk to her sister because her sister does not want to talk about it. J.M. wanted her mom in the room during her session with Dills, but her mom asked to leave the room.
{¶ 41} Dills testified that based on her counseling of J.M., she would classify her as a child who has been sexually abused. Dills originally diagnosed J.M. with adjustment disorder with depressed mood. Eventually, Dills identified that J.M. suffers from PTSD. She described that when she first started treating J.M., she complained of stomach pains and headaches. She was crying at school and was having a hard time focusing. She was getting up in the middle of the night, having nightmares and thinking she saw her grandfather. She was wetting the bed.
* * *
{¶ 43} Kuebler is a certified sexual assault nurse examiner. She testified that she was the program manager for the sexual assault unit at NORD Center, an outpatient mental health facility. She described that victims of sexual assault come to the NORD Center for forensic medical evaluations and rape kits. She discussed the protocol they follow. Typically, they begin by getting demographic and contact information from the person who has brought the child there. They then talk with the child, usually with the SANE and the child advocate present, to ask questions and find out from the child why they are there. They ask the child whether they would like to have their parent or guardian present for the exam, and if they do, they bring the parent or guardian back in.
{¶ 44} The examination is a head-to-toe physical looking at all areas of the body, noting any injury and inquiring about the origin of the injury. They then examine the genitalia. The exam takes two-to-three hours from start to finish. If the child has made any statements, they pass that information along to law enforcement.
{¶ 45} Kuebler testified that on February 13, 2013, she met with L.M. and J.M. J.M. told Kuebler that her grandpa used his nails and fingers on her front and back. She said that she was not supposed to tell anyone, but it started hurting and she did not want to hurt any longer. J.M. refused to allow Kuebler to perform an examination. She said it had been awhile since she had seen her grandpa and she did not need to be looked at.
{¶ 46} L.M. told Kuebler that her grandfather started inappropriately touching her when she was seven years old. She told Kuebler that it hurt. She said it did not bleed but he put his front part in her front part and back part and he used his hands. L.M. told Kuebler she wanted him to stop. Kuebler performed a head-to-toe forensic medical exam on L.M. which included a vaginal exam and exam of her rectal area. She found no evidence of trauma. Kuebler determined that L.M.'s hymen was intact. She explained that it is not unusual for a sexual abuse victim's hymen to remain intact. The hymen does not cover the vagina and it can remain intact despite penetration. She did not perform a rape kit on L.M. because it had been three or four weeks since she last saw her grandfather.
{¶ 47} Kuebler referred to her exam as a “forensic medical examination, ” however she said that the information she obtains from the victims prior to the examination is strictly for medical purposes and that it assists her in performing her medical examination.
* * *
{¶ 49} Mook is an officer with the City of Sandusky Police Department. On February 11, 2013, he responded to the call from M.M. and T.M. reporting the abuse. He went to their home. He spoke with M.M. and T.M. first, then spoke individually with each of the girls with their parents present. He told them he heard there were some things that happened at their grandfather's house. The girls told him he had been touching them inappropriately. He asked J.M. where her grandfather had touched her and she pointed to her vaginal area. He asked how long it had been going on and she said it had been quite some time. He did not ask more specific questions. During his conversation with L.M., she indicated that her grandfather had touched both her vaginal area and her buttocks. He asked how long it had been happening, but does not remember the specific time frame other than that it had been going on for a while. The conversation lasted five to ten minutes and he did not ask for specific details.
* * *
{¶ 51} T.M. testified that on February 9, 2013, J.M. told her: “I have to tell you something. * * * Your papa has been doing this to me * * *.” T.M. asked her if she had told anyone else and she said she had told L.M., and that L.M. told her he had been doing the same thing to her. T.M. approached L.M. and L.M. confirmed that her grandfather had been touching her. When T.M. asked where, L.M. pointed to “her front privates” and “her bottom.”
{¶ 52} T.M. told her husband, M.M. T.M. and M.M. sat down with the girls and told them that the situation was very important and very serious. They asked the girls if they were sure they were telling the truth and they both said yes. T.M. and M.M. did not ask for any additional details.
{¶ 53} M.M. called the Sandusky police. When the officers came, one of them talked to the girls. He did not ask very many questions. They determined it was the wrong jurisdiction and they needed to call the Erie County sheriff. The sheriff's office sent an officer over to talk to the girls. An interview was set up with ODJFS on February 13, 2013. Each child was interviewed separately by Boger. T.M. said that she did not know what the girls were going to say because she did not ask them any details-she said she did not want to know. After the interview, Boger came out to talk to them and she said it was worse than they thought. She said Wagner would make L.M. watch sex tapes then make her do what they saw in the tapes, which included having sex with her. This was the first time T.M. or M.M. had heard this.
{¶ 54} T.M. testified that she is the one who washes the kids' clothes, but she never saw blood on her daughters' underwear or anything unusual on their clothing. T.M. said she had taken the girls to her parents' house on February 9, 2013, to give her dad a birthday gift. J.M. was holding her stomach saying she did not feel good. Wagner also said he did not feel well and did not want to get the kids sick, so they just dropped off the present and she took the kids home. The girls did not go in the house.

State v. Wagner, 57 N.E.3d 109, 113-123 (Oh. Ct. App. 2015).

         A. Trial Court

         On April 10, 2013, an Erie County grand jury charged Wagner with 10 counts of rape in violation of Ohio Rev. Code § 2907.02(A)(1)(b). Doc. 8-1, pp. 5-8. The first five counts alleged rape of victim L.M. from April 2011 through February 2013 and the next five counts alleged rape of victim J.M. from July 2012 through February 2013. Doc. 8-1, pp. 5-7. The indictment charged Wagner with purposely compelling the victims to submit to sexual conduct by force or threat of force and all counts, except count 5, alleged that the victims were under the age of ten. Doc. 8-1, pp. 5-7.

         Wagner, through counsel, filed a motion to dismiss the indictment based on insufficient information; the trial court denied it because the state had provided a bill of particulars. Doc. 8-1, pp. 18-22, 59. The trial court conducted competency hearings with respect to both minor victims and found them competent to testify at trial. Doc. 8-1, p. 60. Wagner, through counsel, filed a Notice of filing an expert witness report of Dr. Kamala London; the state objected, and the court ruled that Dr. London could testify as an expert witness for the defense as to proper protocol and interviewing techniques for child victims, but could not testify as to the veracity of the child victims or whether or not the abuse occurred. Doc. 8-1, pp. 61, 103. Wagner, through counsel, requested a court-ordered competency exam; the court ordered a psychological examination and, based on that examination, found Wagner competent to stand trial. Doc. 8-1, pp. 104, 107.

         The case proceeded to trial. The jury found Wagner guilty on all charges and specifications. Doc. 8-1, pp. 109-110. On June 23, 2014, the trial court sentenced Wagner to eleven years in prison on one count[3] and life in prison without parole on the nine remaining counts; the sentences on the five counts involving each victim to run concurrently but consecutively to the sentences on the counts involving the other victim; classified him as a Tier III sex offender; and ordered him to pay restitution. Doc. 8-1, pp. 112-116; Doc. 8-8, pp. 37-38.

         B. Direct Appeal

         On July 24, 2014, Wagner, through new counsel, appealed to the Ohio Court of Appeals, Sixth District, raising the following assignments of error:

1. The trial court erred and abused its discretion by finding alleged victim J.M. competent to testify.
2. The trial court erred by admitting hearsay statements which caused defendant irreparable prejudice.
3. The convictions are not supported by sufficient evidence and are against the manifest weight of the evidence.
4. Prosecutorial misconduct deprived appellant of due process and a fair trial.
5. Cumulative error deprived appellant of due process and a fair trial.
6. The trial court erred in imposing restitution.

Doc. 8-1, pp. 117, 128, 133. On December 30, 2015, the Ohio Court of Appeals affirmed the convictions but ordered a reduction in the restitution amount. Doc. 8-1, pp. 261-301. On May 17, 2016, the trial court issued a new entry reducing restitution. Doc. 8-1, p. 404.

         On January 7, 2016, Wagner, though counsel, filed a motion with the Ohio Court of Appeals to certify a conflict with the Ohio Supreme Court, arguing that its decision in his case regarding the admissibility of the victims' statements to medical professionals conflicted with two Ohio Court of Appeals' decisions in two other districts, the Eighth and Twelfth Districts. Doc. 8-1, pp. 302-205. On February 19, the Ohio Court of Appeals found that its decision was not in conflict with the cases cited by Wagner and denied his motion to certify a conflict. Doc. 8-1, pp. 312-317.

         On February 16, 2016, Wagner, through counsel, appealed to the Ohio Supreme Court, asserting the following propositions of law:

1. Evid.R. 803(4) bars from admission a victim's hearsay statements given for forensic or investigative purposes. Therefore, each hearsay statement in a dual-purpose interview must be individually examined for its purpose.
2. Convictions for multiple counts of rape are unsupported by sufficient evidence where the victim does not testify to a corresponding number of separate and distinct instances of sexual conduct.
3. Where the prosecutor repeatedly ignores judicial instructions for questioning witnesses, is admonished in closing argument, and repeatedly introduces prejudicial information, pervasive prosecutorial misconduct deprives the defendant of a fair trial in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and in violation of the Ohio Constitution, Article I, Sections 10 and 16.

Doc. 8-1, pp. 318-321. On May 4, 2016, the Ohio Supreme Court declined jurisdiction. Doc. 8-1, p. 403.

         C. Federal Habeas Petition

         On August 21, 2017, Wagner, through counsel, filed an Amended Petition for a Writ of Habeas Corpus. Doc. 4. He listed the following grounds for relief:

Ground One
: [N]umerous instances of egregious prosecutorial misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.
Ground Two
: [T]he trial court improperly admitted prejudicial hearsay by allowing the state to have witnesses to testify as to the child victim's statements when those statements were hearsay and contradicted the victim's own ...

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