United States District Court, N.D. Ohio, Western Division
Joseph D. Wagner, Sr., Plaintiff
Warden Charles Bradley, Defendant
G. Carr Sr. U.S. District Judge
a habeas corpus case in which the petitioner has filed
objections (Doc. 15) to United States Magistrate Judge Kathleen
M. Burke's Report & Recommendation (Doc. 13), in
which she recommended dismissal of the petition.
de novo review, I find the Report &
Recommendation well taken, adopt it as this court's
order, and dismiss the petition. I decline to issue a
Certificate of Probable Cause.
County, Ohio, Common Pleas Court jury convicted the
petitioner of ten counts of rape of two minor victims, who
were his granddaughters. The court imposed a sentence of
eleven years on one count and life in prison without parole
on the other nine counts.
victims, L.M. and J.M., testified at trial, as did their
parents and several witnesses, individuals who either
investigated the allegations or tended to the victims
following reports of the abuse. Among these witnesses were
Corey Mook, a police officer; Rebecca Boger, an intake
investigator in the Children's Services Division of the
Ohio Department of Job and Family Services; Jacqueline
Spadaro, a mental health therapist who counseled victim L.M.;
Rebecca Dills, a mental health therapist who counseled victim
J.M.; and Melinda Kuebler, a sexual assault nurse who
petitioner filed a direct appeal, in which he raised six
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
6. The trial court erred in imposing restitution.
appellate court affirmed the petitioner's convictions but
ordered a reduction in the restitution amount, which the
trial court corrected on remand.
sought discretionary review by the Ohio Supreme Court. He
raised three grounds:
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
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
the Ohio Supreme Court declined jurisdiction, the petitioner
filed his pending habeas petition, which he subsequently
amended. He asserts three grounds for relief, some with
1. Ground One: Ten “instances of egregious
prosecutorial misconduct so infected the trial with
unfairness as to make the resulting conviction a denial of
due process.” (Doc. 4 at 4).
2. 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
testimony in violation of his right to due process of
3. Ground Three: “Petitioner's convictions were
against the manifest weight of the evidence and . . . he is
actually innocent.” (Id.).
Ground One: ...