Cox v. Jenkins

• Decision Date: 06 October 2015
• Docket Number: Case No. 3:15-cv-098
• Parties: VERNON LEE COX, JR., Petitioner, v. CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

VERNON LEE COX, JR., Petitioner, v. CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.

Case No. 3:15-cv-098

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

October 6, 2015

District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

Petitioner Vernon Cox brought this habeas corpus action under 28 U.S.C. § 2254 to obtain relief from his conviction in the Montgomery County Common Pleas Court for a number of sexual offenses and his consequent imprisonment (Petition, ECF No. 1, PageID¹ 1). Petitioner has also filed an extensive Brief supplementing the Petition (ECF No. 4). On the Court's Order (ECF No. 2), the Warden has filed the State Court Record (ECF Nos. 5, 7) and a Return of Writ (ECF No. 6). Cox has filed a Reply (ECF No. 10), making the case ripe for decision.

Procedural History

Cox was indicted by the Montgomery County grand jury in September 2011 on numerous counts of criminal sexual behavior involving his step-daughter, C.F., and one count involving a neighbor child, A.C. On his motion, the count involving A.C. was severed and he pled guilty to that charge after the trial jury convicted him on fifteen counts involving C.F. He appealed, raising nine assignments of error, but the Second District Court of Appeals affirmed, State v. Cox, 2013-Ohio-4941, 2013 Ohio App. LEXIS 5144 (2^nd Dist. Nov. 8, 2013),² and the Ohio Supreme Court declined to exercise jurisdiction over a subsequent appeal. State v. Cox, 138 Ohio St. 3d 1436 (2014).

On July 9, 2013, Cox filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. After the trial court granted the State summary judgment, Cox appealed. The Second District again affirmed. State v. Cox, 2015-Ohio-894, 2015 Ohio App. LEXIS 887 (2^nd Dist. Mar. 13, 2015). Cox did not appeal to the Ohio Supreme Court.

On January 28, 2014, Cox filed an Application for Reopening the Appeal under Ohio R. App. P. 26(B) which was denied. Cox did not appeal to the Ohio Supreme Court.

On May 19, 2014, Cox filed a motion for re-sentencing on the theory that the sentencing order in his case was void and a non-final appealable order. The trial court denied the motion, the court of appeals affirmed, State v. Cox, 2015-Ohio-895, 2015 Ohio App. LEXIS 879 (2^nd Dist. Mar. 13, 2015), and Cox did not further appeal.

Cox filed his Petition in this Court on March 18, 2015 in which he pleads the following grounds for relief:

Ground One: There was insufficient evidence to find petitioner [guilty] on the charges [of which] he was convicted.

Supporting Facts: Petitioner's convictions must be overturned due to insufficient evidence, for as the evidence presented failed to prove beyond a reasonable doubt that petitioner has committed the crimes he was accused of, which violated his Due Process rights under the Fourteenth Amendment.

Ground Two: Under the confrontation clause of the Sixth Amendment, petitioner was limited to the questioning regarding herpes, and also not allowed to call to the stand Detective Mitchell regarding the missing notes.

Supporting Facts: The defense was limited on the questions he could ask regarding the herpes virus. This violated his Sixth Amendment right to present a proper defense. Petitioner was also precluded from calling to the witness stand the lead detective on the case, Detective Mitchell. He was excused by the court from testifying due to some illness even the exculpatory evidence was handled by him and lost. Ms. Brockert notes were given to him and he could have testified as to what happened to them or what was in the notes.

Ground Three: Cumulative Errors

Supporting Facts: Due to the numerous errors in the trial court, there was a cumulative effect that denied petitioner a fair trial. A few of these errors: 1) extraneous information received by jury; 2) witness tampering; 3) disappearance of Ms. Brockert's notes (exculpatory evidence); 4) state's exhibits 1(A) and 1(B) allowed in as evidence for jury to look at during deliberations was prejudicial.

Ground Four: Ineffective Assistance of Trial Counsel under the Sixth Amendment.

Supporting Facts: Counsel was ineffective for allowing the testimony of Dr. Miceli, for not making a more thorough investigation regarding the herpes virus, and also by not forcing the court to have Detective Mitchell testify. Defense counsel also failed to call a witness to the stand that could testify in regards to his work records which could have established an alibi for the alleged abuse. Also during plea bargaining phase.

Ground Five: Use of the grand jury testimony to impeach the alleged victim due to her inconsistencies.

Supporting Facts: Defense counsel attempted to show, through C.F.'s grand jury testimony, that what she stated at the beginning, and what she is claiming now are inconsistent. Defense proved that, however the court erred when it refused to impeach her as a witness, which was the prosecution's entire case.

Ground Six: Expert Testimony of Dr. Miceli was prejudicial to petitioner, since it was irrelevant and only bolstered C.F.'s testimony.

Supporting Facts: The prosecution call as an expert witness in child psychology, Dr. Miceli to the stand, however, she had nothing to offer the case since she never interviewed the alleged victim, never viewed any of the videos or any other material regarding the case. Her testimony was solely based on what the prosecution had told her. Dr. Miceli testified on delayed reporting to bolster the alleged victim's testimony, however delayed reporting in not an "exact science like that of DNA and Fingerprinting. [sic]

Ground Seven: Ineffective assistance of appellate counsel.

Supporting Facts: During petitioner's direct appeal, his counsel did not properly argue the "grounds" for relief he presented. If counsel did a more thorough job by citing precedent case law to back up his arguments, the proceedings may have turned out differently.

Ground Eight: Petitioner's constitutional rights were violated under the Sixth Amendment since a judge made the determination to give him max/consecutive sentences, not a jury.

Supporting Facts: Petitioner was given the max/consecutive sentences under a felony of the first degree. The 129th General Assembly passed House Bill 86 on September 30, 2011, and their interpretation of HB 86 was that first time offenders receive non-maximum/concurrent sentences.

Ground Nine: The Appellate District misapplied sufficiency of the evidence standard and should have applied the "No Evidence" standard.

Supporting Facts: There was no evidence in petitioner's case to convict him on any of the 16 counts, and the Second Appellate District misapplied established federal law under the "No Evidence" standard as set by Thompson.

(Petition, ECF No. 1)

ANALYSIS

Ground One: Insufficient Evidence

In his first ground for relief, Cox asserts he was convicted on insufficient evidence. The Warden does not argue that merits review is barred by any procedural defense (Return of Writ, ECF No. 6, PageID 811), so the Court turns directly to the merits.

An allegation that a verdict was entered upon insufficient evidence states a claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6^th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6^th Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt . . . . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6^th Cir. 2006);United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law which determines the elements of offenses; but once the state has adopted the elements, it must then prove each of them beyond a reasonable doubt. In re Winship, supra.

In cases such as Petitioner's challenging the sufficiency of the evidence and filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner challenges the constitutional sufficiency of the evidence used to convict him, we are thus bound by two layers of deference to groups who might view facts differently than we would. First, as in all sufficiency-of-the-evidence challenges, we must determine whether, viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993). Thus, even though we might have not voted to convict a defendant had we participated in jury deliberations, we must uphold the jury verdict if any rational trier of fact could have found the defendant guilty after resolving all disputes in favor of the prosecution. Second, even were we to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonable doubt, on habeas

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