Brock v. Ross Corr. Inst.

• Decision Date: 18 May 2017
• Docket Number: Case No. 2:16-cv-00843
• Parties: DENNIS R. BROCK, Petitioner, v. ROSS CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

DENNIS R. BROCK, Petitioner, v. ROSS CORRECTIONAL INSTITUTION, Respondent.

Case No. 2:16-cv-00843

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

May 18, 2017

JUDGE JAMES L. GRAHAM

Magistrate Judge King

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent's Motion to Dismiss (ECF No 12), Petitioner's Response to Motion to Dismiss (ECF No. 13), Respondent's Reply (ECF No. 14), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that Respondent's Motion to Dismiss be GRANTED and that this action be DISMISSED as barred by the one-year statute of limitations established by 28 U.S.C. § 2244(d), and that Petitioner's motions for summary judgment (ECF Nos. 15, 17) be DENIED.

Facts and Procedural History

The Ohio Third District Court of Appeals summarized the facts and procedural history of this case as follows:

Defendant-Appellant Dennis R. Brock ("Brock") appeals the August 20, 2007 Judgment Entry of the Court of Common Pleas of Hancock County, Ohio sentencing him to life in prison for each of thirteen counts of Rape, in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree to be served consecutively. In total, Brock was sentenced to thirteen consecutive life terms. Brock was also classified as a sexual predator.

This matter stems from events occurring in June of 2004 at the home Brock shared with his wife, Eva Charlene Brock ("Charlene") in Rawson, Ohio. On June 8, 2004, Brock and Charlene's son, Eric Brock ("Eric") and his five year-old daughter, Lizzy, were visiting in Rawson, Ohio. Eric, his wife, and Lizzy reside in Minnesota.

On June 10, 2004 Eric returned to Minnesota, leaving Lizzy to spend a week or two with her grandparents. Charlene was primarily responsible for the care of her granddaughter during her visit. On June 11, 2004 Charlene was tired from poor sleep the prior night and keeping up with five-year old Lizzy all day. Charlene asked Brock if he would watch Lizzy while she took a nap. Brock agreed.

When Charlene woke up from her nap, she gave Lizzy a craft project to work on to occupy her. Charlene alternated between preparing dinner and checking on Lizzy.

While Lizzy was working on her craft project, Charlene asked her what Lizzy and Brock had done while Charlene napped. Lizzy stated that they had played games. Lizzy then stated that "grandpa looked at my privates." (Tr.p.383). Charlene then asked Lizzy if she understood what "privates" meant and Lizzy stated that "it's where you pee and you poop." Id.

Charlene was disturbed by this information and asked Lizzy if she was sure about what she was telling Charlene. Lizzy responded that she was sure and that "he licked me like a dog. That's yucky." Id. Lizzy also stated that Brock "stuck things up [her] butt." Charlene inquired as to what those things were and Lizzy described a screwdriver, mini flashlight, and other tools contained in Brock's workshop.

After hearing Lizzy's statements, Charlene quickly arranged to return Lizzy to her parents in Minnesota. Upon returning Lizzy, Charlene stayed with Eric's family in Minnesota for four months before returning to Ohio. When Charlene returned to Rawson, Ohio she sought counseling.

In counseling, Charlene discussed the abuse. Charlene's counselor subsequently reported the abuse to the Hancock County Sheriff's Office.FNl

FN1: Under Ohio law Charlene's counselor was a mandatory reporter of child abuse.

Based on this report, Detective Timothy Graydon from the Hancock County Sheriff's Office went to the Brock residence and interviewed Charlene on April 18, 2005. After Detective Graydon finished speaking with Charlene, Brock arrived home. Detective Graydon asked Brock if they could speak in private. Brock then took Detective Graydon out to his workshop behind the house.

Brock stated that he assumed Detective Graydon was there to discuss what happened ten months ago with Lizzy. Detective Graydon then explained Brock's Miranda rights to him using a form. Brock read the rights aloud, indicated that he understood those rights and signed a Miranda waiver. Brock then proceeded to give a full account of what occurred on June 11, 2004 when he was alone with Lizzy, detailing abuse that was consistent with Lizzy's explanation of the events. During the interview, Brock also showed Detective Graydon the bedroom in the house where the abuse occurred. After interviewing Brock, Detective Graydon made the decision to arrest him.

On October 4, 2005, Brock was indicted by the Hancock County Grand Jury on thirteen counts of Rape in violation of R.C. 2907.02(A)(1)(b), each a felony of the first degree. Each count also contained a penalty specification as to the victim's age, indicating that the victim was less than ten years of age.

On October 5, 2005, Brock entered pleas of not guilty by reason of insanity to all counts of the indictment and requested a competency evaluation. On October 27, 2005, the trial court held a hearing to review the competency evaluation submitted by Dr. Thomas G. Sherman of the Court Diagnostic and Treatment Center. The trial court found Brock competent to stand trial.

On December 8, 2005, Brock filed a motion to suppress evidence. Specifically, Brock contends that his oral confession should have been suppressed. Brock also filed numerous pre-trial motions concerning the admissibility of various evidence, including a motion to prevent the State from introducing certain out of court statements made by Lizzy.

The State subsequently responded to the motions. On January 26, 2006 and February 21, 2006, evidentiary hearings were held for the court to hear evidence to decide Brock's motions.

On February 16, 2006, the trial court issued a written opinion on Brock's motion to suppress finding that Brock had waived hisMiranda rights before confessing to the detective. The court also found that no custodial interrogation occurred in this case. On March 13, 2006 the trial court ruled on Brock's various motions. Included in the March 13, 2006 Entry was a finding that Lizzy's out of court statements were admissible.

On April 10, 2006, Brock entered a plea of no contest to all thirteen counts of the indictment. The trial court found Brock guilty and continued the matter for sentencing. The case came before the trial court for sentencing on May 9, 2006. Brock was classified as a Sexual Predator and sentenced to four consecutive life sentences.

Brock subsequently attempted to appeal his convictions and sentence, apparently under the mistaken belief that the trial court's pre-trial rulings were appealable. This Court found substantial evidence in the record to support the contention that Brock's no contest plea was entered upon the mistaken belief of both counsel and the trial court that pre-trial rulings would be appealable. However, this Court found that only the denial of Brock's motion to suppress was appealable and that all other pre-trial motions in limine were not appealable after Brock entered a no contest plea. Therefore, this Court vacated the judgment of the trial court and remanded for further proceedings. State v. Brock, 3rd Dist. No. 5-06-27, 2006-Ohio-6681.

After the case was remanded, the first pre-trial was held on January 11, 2007. On February 9, 2007 Brock again requested a competency evaluation and entered a plea of not guilty by reason of insanity. We also note that Brock again filed a number of motions in limine during the pre-trial period. In an Entry issued August 3, 2007 the trial court noted that all pre-trial motions had been previously resolved in the March 13, 2006 Entry. The trial court incorporated those findings into its August 3, 2007 Entry.

A jury trial was held from August 13-15, 2007. On August 15, 2007 the jury found Brock guilty of all thirteen counts of Rape. On August 20, 2007 Brock was sentenced to thirteen consecutive terms of life in prison, one for each count of Rape, for a total of thirteen consecutive life terms. Brock was also labeled a sexual predator.

Brock now appeals asserting four assignments of error.

ASSIGNMENT OF ERROR I

BROCK'S CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION WAS VIOLATED BECAUSE ANY INCRIMINATING STATEMENTS GIVEN TO AUTHORITIES SHOULD HAVE BEEN SUPPRESSED.

ASSIGNMENT OF ERROR II

BROCK'S CONSTITUTIONAL RIGHTS PURSUANT TO THE CONFRONTATION CLAUSE WERE VIOLATED BY THE TRIAL COURT'S DECISION THAT STATEMENTS MADE BY BROCK'S GRANDDAUGHTER TO HER GRANDMOTHER WERE ADMISSIBLE, AND THE STATEMENTS WERE LIKEWISE INADMISSIBLE UNDER EVID. R. 807 BECAUSE THE TRIAL COURT DID NOT MAKE THE NECESSARY PREREQUISITE FINDINGS.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED BY FAILING TO GRANT BROCK'S RULE 29 MOTION BECAUSE THE STATE DID NOT PROVIDE COMPETENT EVIDENCE TO PROVE EACH COUNT BEYOND A REASONABLE DOUBT, AND HIS RIGHT TO DUE PROCESS WAS OTHERWISE VIOLATED.

ASSIGNMENT OF ERROR IV

LETTERS SENT BY DENNIS BROCK TO HIS WIFE SHOULD NOT HAVE BEEN ADMITTED BECAUSE THEY WERE PROTECTED BY SPOUSAL PRIVILEGE, AND WERE NOT VOLUNTARILY PRODUCED.

State v. Brock, No. 5-07-42, 2008 WL 2582574, at *1-3 (Ohio App. 3^rd Dist. June 30, 2008). The state appellate court affirmed the judgment of conviction. Id. On December 3, 2008, the Ohio Supreme Court dismissed the appeal. State v. Brock, 120 Ohio St.3d 1421 (2008).

Petitioner subsequently filed numerous motions and appeals with the Hancock County Common Pleas Court, the Ohio Third District Court of Appeals, the Ohio Twelfth District Court of Appeals, the Ohio Fourth District Court of Appeals, and the Ohio Supreme Court. He has provided a listing of some of those filings, but he indicates that it is neither complete nor in chronological order. Petition (ECF No. 1, PageID# 71.) Respondent has provided a lengthy anddetailed history of Petitioner's numerous filings, attaching exhibits. Motion to Dismiss (ECF No. 12, PageID# 115- 122; EC...