United States District Court, N.D. Ohio, Eastern Division
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT, UNITED STATES MAGISTRATE JUDGE
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. 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.
SYNOPSIS OF THE FACTS
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
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
State v. Nunez, 8th App. Dist. Cuahoga
No. 93971, 2010-Ohio-5589.
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.
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.
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.
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.
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.
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.
FEDERAL HABEAS PETITION
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. 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
Habeas Petition Filed July 1, 2016 (Nunez I
alleges the following grounds for relief:
GROUND ONE: DUE PROCESS WAS DENIED WHEN THE TRIAL COURT
FAILED TO MAKE MANDATORY FINDINGS WHEN IMPOSING CONSECUTIVE
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
I #1. Additionally, Petitioner attached a brief
containing the factual support for his ...