United States District Court, S.D. Ohio, Eastern Division, Columbus
A. Sargus, Jr. Chief Judge
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
an action brought pro se by Petitioner Brandon Ward
under 28 U.S.C. § 2254 to obtain relief from his
conviction in the Delaware County Court of Common Pleas for
sexual battery. The case is ripe for decision on the Petition
(ECF No. 1), the State Court Record (ECF No. 6), and the
Return of Writ (ECF No. 7). When ordering an answer,
Magistrate Judge Chelsey M. Vascura set a deadline of
twenty-one days after the Return for Petitioner to file a
reply (Order, ECF No. 2). Since the Return was filed November
21, 2018, Petitioner's deadline for his reply was
December 15, 2018,  but he has neither filed a reply nor
sought or received an extension of time to do so.
Magistrate Judge reference in this case was recently
transferred to the undersigned to help balance the Magistrate
Judge workload in this District (ECF No. 8).
August 5, 2016, a Delaware County, Ohio, grand jury indicted
Petitioner on two counts of rape, two counts of sexual
battery, and one misdemeanor count of petty theft (State
Court Record, ECF No. 6, Ex. 1, PageID 31-34). He pleaded
guilty to the theft charge and was convicted of the sexual
battery charges, but acquitted of the rape charges.
Id. at Exs. 4-5, PageID 43-46. The trial judge
merged the sexual battery counts under Ohio Revised Code
§ 2941.25 and sentenced Ward to fifty-four months
imprisonment, concurrent with six months on the theft charge.
Id. at Ex. 6, PageID 48.
appealed and the judgment was affirmed. State v.
Ward, 5th Dist. Delaware No. 16 CAA 12 0055,
2017-Ohio-4284 (Jun. 13, 2017), appellate jurisdiction
declined, 151 Ohio St.3d 1427 (2017). On September 19, 2017,
Ward filed an application to reopen the direct appeal to
raise one claim of ineffective assistance of appellate
counsel (State Court Record, ECF No. 6, Ex. 16, PageID
183-98). The Fifth District declined to reopen the appeal on
procedural grounds and Ward did not further appeal to the
Supreme Court of Ohio. Id. at Ex. 20, PageID 206.
Ward filed a petition for post-conviction relief under Ohio
Revised Code § 2953.21, id. at Ex. 21, PageID
207-13, which the trial court denied on February 15, 2018,
id. at Ex. 24, PageID 223-25; his appeal was denied
for want of prosecution. Id. at Ex. 27, PageID 235.
On April 16, 2018, Ward filed a successive petition for
post-conviction relief. Id. at Ex. 28, PageID
236-45. The trial court denied the petition and Ward did not
appeal. Id. at Ex. 32, PageID 251-52. On July 18,
2018, he filed his Petition here, pleading the following
grounds for relief:
Ground One: Petitioner's conviction for
two counts of sexual battery was not supported by sufficient
Supporting Facts: The State of Ohio
unreasonably applied federal law to the facts of
petitioner's case. The State of Ohio failed to find the
essential elements of sexual battery.
Ground Two: Ineffective assistance of
Supporting Facts: Petitioner argued that his
counsel, was ineffective for failing to move to a criminal
rule 29 motion for acquittal at the close of appellant's
case in chief and at the close of appellant's case in
chief based on insufficiency of the evidence.
Ground Three: Ineffective assistance of
Supporting Facts: Trial counsel was
ineffective in failing to vigorously cross examine Amy
Zoller, who was a registered nurse. Trial counsel failed to
examine her on the absence of bruising, tears, DNA and or
(Petition, ECF No. 1, PageID 6-9).
One: Insufficient Evidence
First Ground for Relief, Ward claims his conviction for
sexual battery is not supported by constitutionally
sufficient evidence. Respondent defends this Ground for
Relief on the merits.
allegation that a verdict was entered upon insufficient
evidence states a claim under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia,443 U.S. 307 (1979); In re
Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v.
Sowders, 894 F.2d 792, 794 (6th Cir. 1990)
(en banc). In order for a conviction to be ...