O'Hara v. Brigano

• Citation: 499 F.3d 492
• Decision Date: 21 August 2007
• Docket Number: No. 06-3455.,06-3455.
• Parties: Henry O'HARA, Petitioner-Appellant, v. Anthony BRIGANO, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

499 F.3d 492

Henry O'HARA, Petitioner-Appellant, v. Anthony BRIGANO, Warden, Respondent-Appellee.

No. 06-3455.

United States Court of Appeals, Sixth Circuit.

Argued: July 26, 2007.

Decided and Filed: August 21, 2007.

ARGUED: Elizabeth E. Agar, Croswell & Adams, Cincinnati, Ohio, for Appellant. M. Scott Criss, Office of the Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Elizabeth E. Agar, Croswell & Adams, Cincinnati, Ohio, for Appellant. Stuart A. Cole, Office of the Attorney General, Columbus, Ohio, for Appellee.

Before: KEITH, MOORE, and COLE, Circuit Judges.

OPINION

COLE.R. GUY COLE, JR., Circuit Judge.

Henry O'Hara, an Ohio prisoner, filed a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction on numerous grounds. The district court denied O'Hara habeas relief on all nine of his claims. For the reasons that follow, we AFFIRM the denial of O'Hara's petition for issuance of a writ of habeas corpus.

I.

A.

O'Hara was convicted by a jury in Hamilton County of one count of rape, in violation of Ohio Revised Code § 2907.02(A)(2), and one count of kidnapping, in violation of Ohio Revised Code § 2905.01(A)(4). On April 20, 2000, O'Hara was sentenced to consecutive terms of ten years' imprisonment for rape and eight years' imprisonment for kidnapping. Pursuant to 28 U.S.C. § 2254(e)(1), we take the facts of this case from the decision, on direct review, of the Ohio Court of Appeals:

On December 27, 1999, at approximately 12:45 p.m., Maureen Hicks, while on a lunch break from work, entered a La-Z-Boy Furniture store to drop off some paperwork and a check as part of her job duties. After leaving the store, she walked over to her vehicle, a Chevrolet Venture minivan, and noticed O'Hara in the front passenger seat of the vehicle parked next to it.

After Hicks seated herself in her van, she waited, expecting O'Hara to leave his vehicle. O'Hara got out of his car but, instead of moving on, opened the unlocked door of Hicks's van and told her to scoot over. Hicks testified that O'Hara tried to calm her by telling her that he was not going to hurt her, and that he only needed a ride. Hicks further testified that she then told O'Hara, if that was the case, to take the van, not her. Although Hicks sought to alert others by honking her horn, no one responded. O'Hara became angry, grabbed her hair, and shoved his way into the van. According to Hicks, O'Hara was now cursing loudly and reaching into his coat pocket, as if he had a gun, while threatening to "blow her brains out." O'Hara told Hicks several times not to look at him because he did not want her to see what he looked like.

O'Hara ordered Hicks down on the floor of the van and then drove onto the Cross County Highway. Hicks testified that along the way O'Hara told her that he was sorry "that he had to do this," that he was a churchgoing man, and that he was going to let her go. He denied any intent to rape her. O'Hara eventually stopped the vehicle alongside the highway. Hicks testified that O'Hara then asked her if she had ever fantasized about having sex with a black man, and more specifically (and more graphically) if she had ever had a black man perform cunnilingus upon her. In what ensued, O'Hara removed Hicks's underclothes and forcibly performed the act upon her. According to Hicks, O'Hara then remarked upon the size of his penis and asked her if she wanted to have sexual intercourse. Hicks testified that she replied that she just wanted to be let go. O'Hara then drove Hicks back to the La-Z-Boy parking lot.

Hicks noticed and remembered the license plate of the car that O'Hara had earlier been sitting in. She stated that O'Hara told her that he was sorry for what he had done but that "black men aren't like white men," and that once he saw her he had to have her. According to Hicks, O'Hara also expressed his desire that she not go to the police, and told her that he was going to go home and engage in sexual self-gratification with his unusually large penis while thinking about her.

Hicks testified that, before getting out of the van, O'Hara asked her for twenty dollars because his car needed gas. She handed him two twenty-dollar bills. She testified that, to her disbelief, O'Hara then began crying and proclaiming that he was a churchgoing person with a wife and two children, and that he had never done anything similar before. According to Hicks, O'Hara asked for a kiss, which she refused, and he then got out of the van and allowed her to drive off.

Hicks subsequently drove to a fire station on Springdale Road and requested the receptionist to contact the police. When the police arrived, she gave a statement, including the license-plate number of the vehicle O'Hara had been using, and was driven to the Hamilton County Sheriff's station on Hamilton Avenue. Later she was taken to University Hospital for examination.

Police traced the license-plate number Hicks had given them to O'Hara's brother, "T.J." O'Hara was then arrested on January 10, 1999, positively identified by Hicks, and charged with kidnapping and rape.

O'Hara testified that on December 27, 1999, he and Hicks were far from strangers. He testified that he had first met Hicks in a Wal[-]Mart store in either mid-October or early November of that year. According to O'Hara, although shopping with his then wife, he had struck up a conversation with Hicks and given her his telephone number. He stated that he received a telephone call from Hicks about a week later, after he had forgotten about her, in which she suggested that they meet again at the Wal[-]Mart. According to Hicks, their subsequent meeting began an adulterous relationship that involved Hicks coming over to his house for sexual trysts. He stated that Hicks was known by his brothers and by a nephew, Charlie.

O'Hara testified that on the day of the alleged offense he received a telephone call from Hicks asking him to meet her at a K[-]Mart on Colerain Avenue. He testified that when they met, he got into Hicks's van, as he had done on many prior occasions, and that she then drove them to a bank, where he waited in the van while she went inside. He stated that afterward they drove together to the La-Z-Boy store, where Hicks paid a bill, and that they next drove to his home. He stated that they "began to get intimate," but that he did not perform oral sex upon her. He testified that his brother, "T.J.," who was staying at his house, then interrupted them. According to O'Hara, T.J. was wearing boxer shorts and was exposing himself in an obvious sexually aroused state. He testified that his brother's behavior frightened Hicks, that she wanted to leave, and that she then drove them back to the parking lot at K-mart. He stated that he felt that Hicks was blaming him for bringing her back to his home for a ménage a trois with his brother, which had not been the case. He described Hicks as being angry with him, but not too angry to give him a goodbye kiss when he asked for one.

O'Hara stated that he saw Hicks in public after that, and that she refused to talk to him. He stated that he assumed that Hicks's indifference was because of his brother's sexually threatening behavior and her belief that he had somehow attempted to engage her in a ménage a trois.

O'Hara's brother T.J. was not called as a defense witness. His nephew, Charles, testified that on one occasion he had seen his uncle with a white woman whom he now recognized as Hicks. Both O'Hara and Charles had records of numerous, significant criminal convictions. The detective who had arrested O'Hara stated that O'Hara did not know Hicks's last name at the time he was taken into custody, despite his professed intimate relationship with her. (Nor was O'Hara aware of a rose tattoo that Hicks had on her ankle and displayed to the jury in rebuttal.) Contrary to his testimony at trial, O'Hara told the detective that he had had oral sex with Hicks that afternoon, and that T.J. was not at his house when that had occurred. O'Hara also told the detective that he did not know why Hicks would have made up the charges against him. Asked to explain the discrepancies between his statement to the detective and his trial testimony, O'Hara stated that he had only admitted to having oral sex with Hicks because the detective had promised to drop the kidnapping charge if he did so, and that he had lied about T.J. not being at his house because he did not know what T.J. had told the detective in a separate interview.

State v. O'Hara, No. C-000314, 2001 WL 725410, at *1-3 (Ohio Ct.App. June 29, 2001).

B.

1. Direct Appeal

O'Hara appealed his conviction to the Ohio Court of Appeals. O'Hara raised six claims through counsel and several other claims pro se. The Ohio Court of Appeals denied O'Hara's motion to proceed with his pro se brief, explaining that "[O'Hara] should submit to his appointed counsel all issues he wishes to have the Court consider, so that counsel may incorporate them in the brief that is filed by counsel." On June 29, 2001, the Ohio Court of Appeals affirmed the trial court's judgment. O'Hara, 2001 WL 725410, at * 1.

O'Hara appealed to the Ohio Supreme Court, raising the same issues he raised before the Court of Appeals. O'Hara's counsel also incorporated in his brief to the Ohio Supreme Court several of O'Hara's pro se claims, which O'Hara had previously raised before the Ohio Court of Appeals. The Ohio Supreme Court summarily dismissed the appeal in 2002, stating that it did not "involv[e] any substantial constitutional question." (Joint Appendix ("JA") 332.)

2. Post-Conviction Petition

On April 6, 2001, O'Hara filed a post-conviction petition in the Hamilton County Common Pleas Court, arguing that the Hamilton County Sheriff's Department's crime laboratory had newly discovered exculpatory evidence and that his trial counsel was ineffective because he failed to subpoena T.J. O'Hara (O'Hara's brother). According to O'Hara, T.J. was an eyewitness who...