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Ward v. Gray

United States District Court, S.D. Ohio, Eastern Division, Columbus

June 5, 2019

BRANDON WARD, Petitioner,
v.
DAVID GRAY, Warden, Belmont Correctional Institution, Respondent.

          Edmund A. Sargus, Jr. Chief Judge

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This is 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, [1] but he has neither filed a reply nor sought or received an extension of time to do so.

         The 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).

         Litigation History

          On 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.

         Ward appealed and the judgment was affirmed. State v. Ward, 5th[2] 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 evidence.
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 counsel.
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 counsel.
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 other specimens.

(Petition, ECF No. 1, PageID 6-9).

         Analysis

         Ground One: Insufficient Evidence

         In his 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.

         An 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 ...


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