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Wagner v. Bradley

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

June 27, 2019

Joseph D. Wagner, Sr., Plaintiff
v.
Warden Charles Bradley, Defendant

          ORDER

          James G. Carr Sr. U.S. District Judge

         This is a habeas corpus case in which the petitioner has filed objections (Doc. 15)[1] to United States Magistrate Judge Kathleen M. Burke's Report & Recommendation (Doc. 13), in which she recommended dismissal of the petition.

         On 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.

         Background

         An Erie 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.

         The 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 examined L.M.

         The 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 fair trial.
6. The trial court erred in imposing restitution.

         The appellate court affirmed the petitioner's convictions but ordered a reduction in the restitution amount, which the trial court corrected on remand.

         Petitioner 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 sexual conduct.
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 and 16.

         After 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 multiple subparts:

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 law.” (Id.)
3. Ground Three: “Petitioner's convictions were against the manifest weight of the evidence and . . . he is actually innocent.” (Id.).

         I. Ground One: ...


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