Monzo v. Edwards
| Citation | 281 F.3d 568 |
| Decision Date | 22 February 2002 |
| Docket Number | No. 00-3733.,00-3733. |
| Parties | Thomas D. MONZO, Petitioner-Appellant, v. Ron EDWARDS, Warden, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Richard F. Swope (argued and briefed), Swope & Swope, Reynoldsburg, OH, for Petitioner-Appellant.
M. Scott Criss (argued and briefed), Office of the Attorney General, Corrections Litigation Section, Columbus, OH, for Respondent-Appellee.
Before: GUY and CLAY, Circuit Judges; NUGENT, District Judge.*
Petitioner, Thomas D. Monzo, appeals from the district court's denial of his petition for writ of habeas corpus filed under 28 U.S.C. § 2254, through which he challenged his 1994 state convictions for aggravated burglary, kidnapping, and two counts of rape. The petition asserted six claims of ineffective assistance of trial counsel and a seventh claim for ineffective assistance of appellate counsel. Monzo argues that the district court erred in finding (1) that four of the claims had been procedurally defaulted in state court, and (2) that the state court's rejection of the other three claims on the merits did not involve either an unreasonable application of federal law or an unreasonable determination of the facts. After review of the record and the arguments presented on appeal, we affirm.
In the early hours of October 24, 1987, Patricia Groseck was awakened by a male intruder lying on top of her in bed. Because the house was dark and the man later placed a pillowcase on her head, she could only describe him as being around six feet tall and 185 pounds with fine, silky, or thinning hair. She also said he spoke with a distinct southern or Appalachian accent. He performed cunnilingus on her and asked for her keys. When Groseck said they were in her purse in the kitchen, he called her a liar. The man then had sexual intercourse with her. Asking for her keys again, he took her to the kitchen to find them. Groseck, who was still wearing the pillowcase, found the keys on top of a kitchen stool. The intruder demanded to know how to disengage the alarm system and which of her keys would open the back door. The man led her to the landing inside the basement door and told her to count to three hundred. Groseck waited and, after hearing the back door open and close, she called the police.
The police discovered that the intruder had entered through a window leading to the crawl space, which was the only window not connected to the alarm system. A knife from the kitchen was found on the floor next to Groseck's bed. Police also found Groseck's open wallet and purse in the bedroom. Groseck testified that she had left her purse, with her wallet inside it, on the kitchen counter. Groseck was examined at the hospital, and samples taken were found to contain sperm. That was consistent with Groseck's statement that she believed the man had ejaculated. However, the vaginal swabs and slides, along with the bed sheets and pillow cases taken from the house, were mistakenly destroyed by the police in 1990.
Two fingerprints lifted from the house were kept for comparison, one from the outside of the wallet and one from the doorjamb around the door to the basement. However, it was not until June 1993, after the Automated Fingerprint Identification System (AFIS) became available, that Monzo was first identified as a suspect. The AFIS search included him as one of six possible matches. Subsequent fingerprint analysis determined that the print lifted from Groseck's wallet matched Monzo's right thumbprint and that the print taken from the trim around the basement door matched Monzo's right middle and ring fingers.
Monzo claimed his fingerprints could be explained because he had worked for Jack Travis, a contractor who had renovated part of Groseck's house. Monzo testified that he had been in the house at least ten times, including three or four times during 1987, to perform remodeling work and odd jobs for Travis. He said he was paid in cash for the odd jobs and may have touched Groseck's wallet when handing it to her so that she could pay him. The fingerprint expert testified, however, that the fingerprint from the wallet was relatively fresh because prints cannot be lifted from a porous surface after about fifteen days. Also, no overlapping prints were found on the print lifted from Groseck's wallet.
Groseck testified that Travis did not send any workers to her house after the spring of 1986. Travis contracted to do major remodeling to Groseck's kitchen, including moving the basement stairs, which took place from approximately the end of July to mid-September 1985. In the spring of 1986, Groseck called Travis back to have him repair the back door of the house because it had been installed incorrectly. In rebuttal, Travis testified that Monzo worked for him for about two and one-half weeks in September 1985. Travis also testified that except for the remodeling job in 1985, he only sent a worker to Groseck's house on one other occasion to fix the back door.
In April 1987, Groseck hired a second contractor to do further remodeling work that included installing a new six-panel door in the doorway leading to the basement. Groseck then hired a painter who painted the brick and plaster walls, the molding, the newly installed door, and the trim on the door leading to the basement. Groseck paid him for his work in June 1987. The painter also testified that he painted the middle room of the house including the wood trim around the new basement door shortly before June 15, 1987. The fingerprint expert testified that the print left on the doorjamb could not have predated the last time the trim was painted.
Monzo also asserted as an alibi defense that he went to see his parents in Alpharetta, Georgia, between October 19 and November 12, 1987. Brenda Monzo, petitioner's wife at the time of trial, testified that she and Monzo were living together in October 1987. They had a disagreement and he left Columbus, Ohio, on October 19 to go visit his parents in Georgia and did not return until November 11, 1987. Brenda's best friend, Rheta Marcum, testified that Brenda told her on October 19 that Monzo had left Columbus. Marcum also testified that petitioner called her on or about October 21, and that she knew he was calling from Georgia because she talked to his mother during the call. Petitioner's mother, Patricia Monzo, testified that he was with her in Alpharetta, Georgia, on October 24, 1987. Another witness, Merton Anderson, testified that he met Monzo in Alpharetta, Georgia, on the morning of October 24, 1987, and that he remembered the date because he invited Monzo to a Halloween party the following weekend.
A criminal complaint charging one count of rape was filed against Monzo on July 3, 1993, less than four months before the statute of limitations would have run. On July 27, 1993, Monzo waived preliminary hearing and was bound over to the Common Pleas Court of Franklin County, Ohio. Monzo was indicted on charges of aggravated burglary, kidnapping, and two counts of rape on December 16, 1993, and was convicted by a jury of all charges on May 17, 1994.1
With the assistance of new counsel, Monzo appealed his convictions on the grounds of prosecutorial misconduct, insufficiency of the evidence, improper exclusion of evidence, and error in the revocation of his bond. No claims of ineffective assistance of counsel were asserted. The Court of Appeals found no error and affirmed his convictions on March 14, 1995. The Ohio Supreme Court denied leave to appeal on July 19, 1995.
In September 1996, having obtained a third attorney, Monzo filed a petition for post-conviction relief under Ohio Rev.Code Ann. section 2953.21, raising several claims of ineffective assistance of trial counsel. On March 11, 1997, after an evidentiary hearing, the trial court denied the petition on the grounds of res judicata and lack of merit. The Ohio Court of Appeals affirmed the denial of post-conviction relief on February 17, 1998, finding that only some of the claims were barred by res judicata. The other claims of ineffective assistance of counsel were denied on the merits. The Ohio Supreme Court declined to review that decision.
On May 8, 1998, Monzo filed a motion to reopen or reconsider his appeal pursuant to Ohio App. R. 26(B). The motion, based on a claim of ineffective assistance of appellate counsel, also reasserted the ineffective assistance of counsel claims raised in the post-conviction proceeding. The Court of Appeals denied the motion, finding both that the motion was untimely and that the claims had been previously addressed. Monzo appealed, but the Ohio Supreme Court declined jurisdiction.
The petition for writ of habeas corpus, filed on February 10, 1999, asserted six claims of ineffective assistance of trial counsel and a seventh claim of ineffective assistance of appellate counsel. On May 4, 2000, the district court denied the petition finding that claims 2, 5, 6, and 7 were procedurally defaulted in state court and that petitioner's claim of ineffective assistance of appellate counsel would not establish cause for the default. With respect to claims 1, 3, and 4, which were adjudicated on the merits in state court, the district court concluded that the Ohio Court of Appeals' decision was not contrary to or an unreasonable application of clearly established federal law, and was not an unreasonable determination of the facts in light of the evidence presented in state court. Monzo appealed, and the district court granted his request for a certificate of appealability.
This petition, filed on February 10, 1999, is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996)....
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