Blankenburg v. Miller, Case No. 1:16-cv-505

• Decision Date: 19 June 2017
• Docket Number: Case No. 1:16-cv-505
• Parties: MARK BLANKENBURG, Petitioner, v. MICHELE MILLER, Warden, Belmont Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

MARK BLANKENBURG, Petitioner,
v.
MICHELE MILLER, Warden, Belmont Correctional Institution, Respondent.

Case No. 1:16-cv-505

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

June 19, 2017

District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

INTERIM REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the merits.

Upon review of the Petition (ECF No. 1), Magistrate Judge Litkovitz, to whom this case was initially referred, ordered the Warden to answer (ECF No. 2). In due course the Warden filed the state court record ("SCR," ECF No. 8) and a Return of Writ (ECF No. 16). Judge Litkovitz thereafter granted motions to expand the record and to file under seal (ECF Nos. 17, 18, 19). The reference was transferred to the undersigned to help balance the Magistrate Judge workload in the Western Division (ECF No. 20).

Mr. Blankenburg pleads the following grounds for relief:

14: The State violated Due Process when it failed to provide sufficient notice of the sex-offenses in the indictment, bill of particulars, and at the trial. Specifically, the State charged multiple, single-act offenses within single counts—indicating that each count contained an undetermined and unspecifiable number of

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criminal acts and offenses within each count. Even more specifically, this insufficient-notice claim is directed to Counts 15-18 and Counts 37-41 from the indictment and judgment entry of conviction.

15: The State violated Double Jeopardy by convicting Blankenburg of multiple, single-act offenses within single counts. Specifically, the State failed to describe the acts and offenses that formed the basis for Blankenburg's convictions in the indictment, bill of particulars, and at trial regarding Counts 15-18 and 37-41. In this way, Blankenburg remains exposed to future prosecutions for acts and offenses he was already convicted of.

16: Blankenburg's trial was unconstitutionally tainted by the three variants of 6^th Amendment juror impartiality: i) actual juror bias, ii) implied juror bias, and iii) deliberate juror concealment during voir dire. Specifically, Blankenburg elicited affidavit evidence that a juror in his case was biased against him. The juror was a pharmacist and filled prescriptions for Blankenburg, which the juror failed to disclose, and some offenses involved Blankenburg's abuse of prescription drug laws. The juror had a minor child that treated with Blankenburg, who was a pediatrician, which the juror likewise failed to disclose and where some offenses involved sex abuse of minor patients. Finally, the juror told the affiants she harbored an actual bias against Blankenburg and intended to convict him, which she also failed to disclose.

(Petition, ECF No. 1, PageID 2-3.)

Procedural History

Mr. Blankenburg was indicted by the Butler County grand jury on March 6, 2009, on fifty-four counts: four counts of corruption of a minor, eight counts of corruption another with drugs, nine counts of pandering sexually-oriented matter involving a minor, two counts of aggravated trafficking in drugs, six counts of trafficking in drugs, three counts of bribery, six counts of money laundering, six counts of gross sexual imposition, six counts of illegal use of a minor in a nudity-oriented material of performance, two counts of engaging in a pattern of corrupt activity, one count

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of compelling prostitution, one count of complicity to compelling prostitution, and one count of complicity to bribery. Blankenburg waived his right to trial by jury as to some counts, but all counts were tried at the same time. The jury found him guilty of four counts of corruption of a minor, six counts of gross sexual imposition, three counts of compelling or complicity of prostitution, and three counts of pandering sexually oriented matter involving a minor. The trial court found him guilty of four counts of drug trafficking, one count of money laundering and one count of aggravated drug trafficking. He was then sentenced to an aggregated sentence of twenty-one to twenty-seven years. On twelve counts that had been severed, he pleaded guilty to two and the rest were merged. The court sentenced him to twelve months on each count, to be served concurrently with the sentences already imposed.

Blankenburg appealed and his convictions were affirmed. State v. Blankenburg, 197 Ohio App. 3d 201 (12^th Dist. 2012)("Blankenburg I"), appellate jurisdiction declined, 132 Ohio St. 3d 1514 (2012). While the appeal was pending, Blankenburg filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. The trial court denied relief, but the Twelfth District reversed and remanded. State v. Blankenburg, 2012-Ohio-6175, 2012 Ohio App. LEXIS 5321 (12^th Dist. Dec 28, 2012)("Blankenburg II"). On appeal after remand, the Twelfth District affirmed denial of the petition. State v. Blankenburg, 2014-Ohio-4621, 2014 Ohio App. LEXIS 4519 (Oct 20, 2014)("Blankenburg III"), appellate jurisdiction declined, 142 Ohio St. 3d 1465 (2015). Blankenburg, with the assistance of counsel, then filed his Petition in this Court April 29, 2016.

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Analysis

Ground One: Insufficient Notice and Double Jeopardy¹

In his First Ground for Relief, Blankenburg contends that the indictment, the bill of particulars, and the manner of eliciting evidence at trial deprived him of fair notice of the charges against which he was required to defend and violated his right to be free of double jeopardy.

The nine counts of the indictment at issue in Ground One are Counts 15, 16, 17, 18, 37, 38, 39, 40, and 41 which read as follows:

COUNT FIFTEEN (15) GROSS SEXUAL IMPOSITION
On or about May 1, 1990, through April 30, 1993, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did have sexual contact with another, not the spouse of the offender, cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person, which constitutes the offense of GROSS SEXUAL IMPOSITION, a Third Degree Felony, in violation of R.C. §2907.05(A)(4), and against the peace and dignity of the State Of Ohio

COUNT SIXTEEN (16) CORRUPTION OF A MINOR
On or about May 1, 1994, through April 30, 1996, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D., being a person who is eighteen years of age or older, did engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard, and the offender is four or more years older than the other person,

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which constitutes the offense of CORRUPTION OF A MINOR, a Third Degree Felony, in violation of RC. §2907.04(A), and against the peace and dignity of the State Of Ohio.

COUNT SEVENTEEN (17) COMPELLING PROSTITUTION
On or about May 1, 1994, through June 30, 1996, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did knowingly induce, procure, solicit, or request a minor to engage in sexual activity for hire, whether or not the offender knows the age of the minor, which constitutes the offense of COMPELLING PROSTITUTION, a Third Degree Felony, in violation of R.C. §2907.21 (A)(2) , and against the peace and dignity of the State Of Ohio.

COUNT EIGHTEEN (18) COMPELLING PROSTITUTION
On or about July 1, 1996, through April 30, 1998, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did knowingly induce, procure, encourage, solicit, request, or otherwise facilitate a minor to engage in sexual activity for hire, whether or not the offender knows the age of the minor, which constitutes the offense of COMPELLING PROSTITUTION, a Third Degree Felony, in violation of R.C. §2907.21 (A)(2), and against the peace and dignity of the State Of Ohio.

COUNT THIRTY SEVEN (37) GROSS SEXUAL IMPOSITION
On or about April 18, 1993, through April 17, 1994, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person, which constitutes the offense of GROSS SEXUAL IMPOSITION, a Third Degree Felony, in violation of R.C. §2907.05(A)(4), and against the peace and dignity of the State Of Ohio.

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COUNT THIRTY EIGHT (38) GROSS SEXUAL IMPOSITION
On or about April 18, 1994, through April 17, 1995, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when the other person, or one of the other persons, is less than thirteen years of age, whether or not the offender knows the age of that person, which constitutes the offense of GROSS SEXUAL IMPOSITION, a Third Degree Felony, in violation of R.C. §2907.05(A)(4), and against the peace and dignity of the State Of Ohio.

COUNT THIRTY NINE (39) GROSS SEXUAL IMPOSITION
On or about April 18, 1995, through June 30, 1996, at Butler County, Ohio, as an ongoing and continuing course of criminal conduct, Mark E. Blankenburg M.D. did have sexual contact with another, not the spouse of the offender; cause another, not the spouse

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