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Nunez v. Coleman

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

May 17, 2019

VICTOR NUNEZ, Petitioner,
v.
JOHN COLEMAN, Respondent.

          JUDGE SARA LIOI

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT, UNITED STATES MAGISTRATE JUDGE

         This matter is before the undersigned on a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Petitioner Victor Nunez (“Petitioner”) in No. 1:16CV1931 and an additional petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Petitioner in No. 1:17CV2325.[1] Nunez I #1; Nunez II #1. The cases were joined and referred to the undersigned for preparation of the instant Report and Recommendation. Nunez II #6. Respondent John Coleman (“Respondent”) filed a return of writ in Nunez I and subsequently filed a supplemental return of writ in Nunez I. Nunez I #8; Nunez I #20. Petitioner did not file a traverse in either case. For the following reasons, the undersigned RECOMMENDS that the Court dismiss Petitioner's petitions for a writ of habeas corpus (Nunez I #1; Nunez II #1) in their entirety with prejudice.

         I. SYNOPSIS OF THE FACTS

         The Eighth District Court of Appeals, Cuyahoga County, Ohio, set for the facts of this case on direct appeal. These binding factual findings “shall be presumed to be correct, ” and Petitioner has “the burden of rebutting the presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998), cert. denied, 527 U.S. 1040 (1999). As set forth by the Eighth District Court of Appeals, the facts are:

J.L. is [Petitioner's] sister-in-law. She testified about an incident that occurred between June 1 and August 31, 2008. J.L. testified that she was asleep on her mother's couch when [Petitioner] woke her up and began touching her breasts. He then asked her to go to the basement, but she refused. [Petitioner] took off his pants as well as J.L.'s and began engaging in sexual activity with her. J.L. testified that she told [Petitioner] to stop, but he continued.
J.L. also testified about an incident that occurred between August 1 and September 30, 2008. According to J.L., she was again sleeping on her mother's couch when [Petitioner] woke her. At this point, he asked J.L. to accompany him to the abandoned house next door to J.L.'s mother's house. J.L. first refused, but [Petitioner] threatened to call her probation officer and hurt her children if she did not comply. After they entered the abandoned house, one of [Petitioner's] acquaintances also entered the house without J.L.'s knowledge. [Petitioner] grabbed J.L.'s ponytail and forced her to her knees. [Petitioner's] acquaintance then forced his penis into J.L.'s mouth while [Petitioner] engaged in vaginal intercourse with her. J.L. testified that [Petitioner] and his acquaintance then switched places and continued to rape her.
Several witnesses testified to an event that occurred during the weekend of February 13 to February 15, 2009. N.J., who is J.L.'s cousin and was visiting from Kentucky, testified that on February 13, 2009, she decided to spend the night at J.L.'s apartment while her mother and father stayed with other family members. At some point during the night, [Petitioner] and his wife, who is J.L.'s sister, arrived at J.L.'s apartment with a bottle of alcohol. J.L. and [Petitioner] were the only individuals who drank the alcohol. [Petitioner] and his wife left later that evening.
J.L.'s mother testified that, at around 3:00 or 3:30 a.m. on February 14, 2009, she and N.J.'s mother were playing cards when [Petitioner], who was supposed to be sleeping, came out and said he was going to the emergency room to have his eyes examined. Once [Petitioner] left, J.L.'s mother told N.J.'s mother that she felt [Petitioner] was “up to no good” and was not going to the hospital. J.L.'s mother called MetroHealth Medical Center, where [Petitioner] was allegedly going, several times throughout the night, but the hospital had no record of him ever being admitted as a patient.
J.L. and N.J. both testified that at around 3:30 a.m. on February 14, 2009, they were sitting in J.L.'s apartment talking when J.L. received a phone call from [Petitioner], who indicated that he and his wife were outside and needed J.L. to let them in. After opening the apartment door, J.L. saw [Petitioner], but his wife was not there. J.L. attempted to shut the door, but [Petitioner] forced his way inside the apartment.
J.L. testified that she went to her bedroom to avoid [Petitioner], but he followed her. [Petitioner] came into her bedroom and began “ripping” her clothes off. She told him to stop, but he threw her on the bed and held her there. [Petitioner] pulled her hair and repeatedly asked whether she would like her cousin to watch what he was doing. J.L. testified that, at one point, [Petitioner] used his knees to hold her down and repeatedly shoved his penis into her mouth. She was unable to escape because of the force [Petitioner] was exerting against her. [Petitioner] then changed position and engaged in vaginal intercourse with her.
N.J. testified that after [Petitioner] forced his way into J.L.'s apartment, she excused herself to go to the restroom. When she returned, J.L. and [Petitioner] were in the bedroom with the door closed. N.J. heard J.L. screaming for [Petitioner] to stop and leave her alone. N.J. did not call the police because she was afraid of [Petitioner], so she laid on J.L.'s couch and pretended to be asleep. Once [Petitioner] emerged from J.L.'s bedroom, he walked over to the couch where she was lying. [Petitioner] then began to digitally penetrate her vagina, and she was afraid so she put a blanket over her face. After the digital penetration, [Petitioner] engaged in vaginal intercourse with her. Finally, he engaged in oral sex with her. N.J. testified that she did not scream, tell [Petitioner] to stop, or attempt to push him away because she was petrified.
J.L. testified that she walked out of her bedroom and saw [Petitioner] on top of N.J. She did not call the police or seek other assistance because [Petitioner] had threatened to call her probation officer and had threatened her children.
[Petitioner] called J.L. shortly after he left her apartment and told her that he had informed his mother and sisters of what had happened and, should he be arrested, they would hurt J.L. and her children.
On February 15, 2009, N.J. and her family returned to Kentucky. N.J. then went to her best friend's house and told her what happened. Her friend called N.J.'s mother and asked her to come over. N.J. told her mother what had happened. Her mother then took her to the hospital for a physical examination. DNA samples collected during the examination matched DNA samples provided by [Petitioner].
N.J.'s father called J.L.'s mother to tell her that the two women had been raped. After learning who had raped the women, J.L.'s mother immediately called J.L.'s sister, who is [Petitioner's] wife, to inform her of the perpetrator's identity. According to [Petitioner's] wife, he admitted to engaging in sexual intercourse with the women, but maintained that the activities were consensual.
[Petitioner's] wife testified that although she had no idea [Petitioner] was having a sexual relationship with her sister, she did know that [Petitioner] and her sister had a congenial relationship. For example, [Petitioner] and J.L. would buy drugs together, would go to the store together, and would go to the abandoned house next door to J.L.'s mother's house in order to smoke marijuana.
[Petitioner's] sister also testified at trial. She testified that she was sexually molested as a child and that [Petitioner] had been a constant source of comfort to her at the time. She also testified that, although she did not know that [Petitioner] and J.L. were having a sexual relationship, J.L. and [Petitioner] got along very well and spent time alone together.

State v. Nunez, 8th App. Dist. Cuahoga No. 93971, 2010-Ohio-5589.

         II. PROCEDURAL HISTORY

         In January 2009, the Cuyahoga County Grand Jury issued an indictment charging Petitioner with: five counts of rape (Counts 1, 4, 8, 9, and 12); four counts of kidnapping, with sexual motivation specifications (Counts 2, 5, 10, and 13); three counts of intimidation of a crime victim or witness (Counts 3, 6, and 11); and one count of aggravated burglary (Count 7). Nunez I #8-1 at 7. Petitioner pleaded not guilty and filed a waiver of trial by jury on the sexually violent predator specifications of Counts 2, 5, 10, and 13. Petitioner was ultimately found guilty of: one count of aggravated burglary (Count 7); three counts of rape (Counts 8, 9, and 12); two counts of kidnapping, with sexual motivation specifications (Counts 10 and 13); and one count of intimidation of a victim or witness (Count 11). Id. at 16. Petitioner was acquitted of the remaining charges and the trial court found him not guilty of the sexually violent predator specifications. Id. at 18. On August 31, 2009, the trial court sentenced Petitioner to an aggregate term of twenty-two years incarceration. Id.

         On August 18, 2009, Petitioner attempted to file a pro se motion for a new trial. Nunez I #8-1 at 20. The record does not reflect that this motion was accepted for filing. Petitioner's counsel filed a second timely motion for a new trial on August 25, 2009. Id. at 22. The trial court denied the motion on December 7, 2009. Id. at 40.

         On September 29, 2009, Petitioner, through counsel, filed a timely appeal to the Eighth District Court of Appeals. Nunez I #8-1 at 41. The Eighth District Court of Appeals overruled each assignment of error, but remanded the case to the trial court for re-sentencing. Id. at 98. Petitioner was again sentenced to an aggregate term of twenty-two years by the trial court on December 28, 2010. Id. at 124. Petitioner did not file a timely appeal, however, he did file an appeal in the Eighth District Court of Appeals on March 23, 2011. Id. at 126. On April 8, 2011, the Eighth District Court of Appeals denied leave to appeal and dismissed the appeal. Id. at 150. Petitioner filed an appeal to the Supreme Court of Ohio on April 6, 2012. Id. at 152. The Supreme Court of Ohio denied leave to file a delayed appeal and the appeal was dismissed on May 23, 2012. Id. at 160, 189.

         Petitioner filed his first petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 12, 2012. Nunez I #8-1 at 190. This Court denied Respondent's motion to dismiss based on untimeliness of the petition and ordered further briefing. Nunez I #8-2 at 102. Ultimately three of four of Plaintiff's grounds for relief were dismissed and a conditional writ was ordered that required the state courts to grant leave to Petitioner to file a delayed appeal for his December 2010 re-sentencing and appoint counsel for the appeal. Id. at 174.

         Based on this Court's order, the trial court appointed counsel and ordered the notice of delayed appeal to be filed by April 30, 2015. Nunez I #8-2 at 203. The notice of delayed appeal was filed by Plaintiff's counsel on April 24, 2015. Id. at 212. The Eighth District Court of Appeals granted leave to file the delayed appeal. Id. at 220. On March 3, 2016, the Eighth District Court of Appeals affirmed the judgment of the trial court. Id. at 259. Petitioner, acting pro se, filed an appeal to the Supreme Court of Ohio on March 30, 2016. Id. at 272. On June 15, 2016, the Supreme Court of Ohio declined to accept jurisdiction pursuant to S.Ct.Prac.R. 7.08(B)(4). Id. at 297.

         Petitioner filed a motion for a new trial on April 8, 2016. Nunez I #8-3 at 7. The trial court denied the motion on August 8, 2016. Id. at 70. Petitioner then appealed to the Eight District Court of Appeals. Id. at 78. On June 29, 2017, the Eighth District Court of Appeals affirmed the judgment of the trial court. Nunez I #20-1 at 3. Petitioner appealed the decision to the Supreme Court of Ohio on July 14, 2017. Id. at 26. On October 11, 2017, the Supreme Court of Ohio declined jurisdiction and dismissed the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4). Id. at 69.

         III. FEDERAL HABEAS PETITION

         Before the Court is Petitioner's second federal habeas petition, submitted by Petitioner on July 1, 2016, and docketed on August 1, 2016, alleging four grounds for relief.[2] Nunez I #1. On October 30, 2017, Petitioner filed a third habeas petition containing three additional grounds for relief while his second habeas petition was pending. Nunez II #1. Ultimately, the Sixth Circuit determined that the third habeas petition should have been construed as a motion to amend the second habeas petition and remanded the case for further proceedings. Id. #5. The Court then joined both cases involving Petitioner's pending habeas claims. Id. at #6. The undersigned will address the four claims contained in the second habeas petition and then address the three claims contained in the third habeas petition.

         A. Habeas Petition Filed July 1, 2016 (Nunez I #1)

         Petitioner alleges the following grounds for relief:

GROUND ONE: DUE PROCESS WAS DENIED WHEN THE TRIAL COURT FAILED TO MAKE MANDATORY FINDINGS WHEN IMPOSING CONSECUTIVE SENTENCES
GROUND TWO: DUE PROCESS WAS DENIED BECAUSE THE JOURNAL ENTRY INCREASED THE AGGREGATE PRISON SENTENCE BY TWO YEARS ABOVE THAT IMPOSED AT THE RESENTENCING HEARING
GROUND THREE: DUE PROCESS WAS DENIED, AND DOUBLE JEOPARDY RIGHTS VIOLATED, WHEN THE TRIAL COURT IMPOSED CONSECUTIVE SENTENCES FOR COUNTS 8 AND 9 (BOTH RAPE CHARGES) AS THEY ARE ALLIED OFFENSES OF SIMILAR IMPORT
GROUND FOUR: COUNSEL PROVIDED INEFFECTIVE ASSISTANCE AT RESENTENCING FOR FAILING TO ASSERT THAT COUNTS 8, 9, AND 10 ARE ALLIED OFFENSES OF SIMILAR IMPORT AND MUST MERGE FOR THE PURPOSES OF SENTENCING

         Nunez I #1. Additionally, Petitioner attached a brief containing the factual support for his ...


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