Durdin v. Warden, Case No. 2:16-cv-355

• Decision Date: 06 April 2017
• Docket Number: Case No. 2:16-cv-355
• Parties: HENRY A. DURDIN, JR., Petitioner, v. WARDEN, MANSFIELD CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

HENRY A. DURDIN, JR., Petitioner, v. WARDEN, MANSFIELD CORRECTIONAL INSTITUTION, Respondent.

Case No. 2:16-cv-355

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

April 6, 2017

JUDGE ALGENON L. MARBLEY

Magistrate Judge Kemp

REPORT AND RECOMMENDATION

Petitioner, Henry A. Durdin, Jr., an inmate at Mansfield Correctional Institution ("MCI"), filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on the petition (Doc. 3) and the Respondent's return of writ (Doc. 7). Petitioner has not filed a traverse. For the foregoing reasons, it will be recommended that the petition be DENIED and this case be DISMISSED.

I. Factual Background

The facts of the case are summarized by the Franklin County, Ohio, Court of Appeals:

{¶ 3} In the early morning hours of May 23, 2013, the victim called her sister, Patricia Daniels. Ms. Daniels testified that she was asleep and the phone call woke her up. Ms. Daniels stated that the victim was "screaming in the phone, sobbing in the phone, just like—she was so upset, and she said [defendant]," who was the victim's ex-husband, "had raped her." (Tr. 39.) The victim told her sister that she was on her way to the hospital because she had been "raped and duct taped" and defendant "did it ." (Tr. 40-41.) The victim also told her sister that defendant "had her gun," and Ms. Daniels said her sister was "afraid" because defendant "had taken [the victim's] gun from her." (Tr. 41.) The victim did not testify at trial.

{¶ 4} Lindsey McNichols, a Sexual Assault Nurse Examiner ("SANE") who interviewed the victim at The Ohio State University Hospital East, did testify at trial. The SANE nurse stated that the victim arrived at the hospital at 1:00 a.m. on May 23, 2013. The general emergency room staff took a general medical history and did an assessment of the victim's immediate medical needs. The victim then spoke with Detective David Bobbitt, a detective with the sexual assault unit of the Columbus Police Department. After speaking with the detective, the victim met with the SANE nurse at 3:10 a.m. (State's exhibit E.)

{¶ 5} The SANE nurse explained that she had received "special training in how to care for a sexual assault patient, how to do the exam on evidence collection, and maintaining chain of custody." (Tr. 47.) The SANE nurse stated that she has performed between 40 to 50 sexual assault examinations since becoming qualified as a SANE nurse in 2010. The victim informed the SANE nurse that she had been raped, and identified defendant as her assailant. The SANE nurse related the victim's narrative history of the incident, stating:

She was grabbed by her hair and hit on the right side of her face with a fist, and then hit on the left side, and then dragged and put on her stomach. Tied her hands and feet with shoestrings. And then she said that there was a gun involved and the safety was taken off the gun and there was sex. And that her hands and feet were untied during that time. But after that, she was able to shower but then duct taped. She said that she was duct taped by her hands, legs, and then around her mouth. And after that, she said that the tape was yanked off of her face because she was trying to talk and wasn't able to be heard. And then she said that she faked like something was wrong with her heart, and she was told to take two of her anxiety pills and given those. And after that, she was given something to eat. And then said that she was able to become free and convinced her assailant to go get some mental health care and she drove him there and then came to the hospital.

(Tr. 61-62.)

{¶ 6} In examining the victim, the SANE nurse discovered "two abrasions to her left cheek," as well as "abrasions and swelling to her lower lip mainly on the left side. * * * And then she had on both of her wrists, she had some purple areas with abrasions that were kind of reddened." (Tr.66.) The nurse also noted a thin white discharge coming out of the victim's vaginal vault. The SANE nurse explained that she had been trained on how to collect evidence for the "sexual assault evidence collection kit" issued by the Ohio Department of Health. (Tr. 81.) The SANE nurse took a swabbing of the white discharge, and swabbed other areas of the victim's body and clothing for the evidence collection kit. Forensic DNA testing conducted on the items in the kit revealed that the victim's vagina and underwear contained semen, and the semen yielded a DNA profile consistent with both defendant and the victim.

{¶ 7} Detective Bobbitt testified that he was already at the hospital investigating an unrelated case when a nurse informed him about this case. The detective interviewed the victim at the hospital, and the victim indicated that she had dropped defendant off at a mental health care facility on her way to the hospital. After speaking with the victim, the detective went to the mental health care facility, and the staff at the facility informed the detective that defendant had left the facility 45 minutes before the detective arrived. Detective Bobbitt then went to the victim's apartment to look for "some specific pieces of evidence." (Tr. 103 .) Detective Bobbitt discovered "white shoelaces * * * tied in knots, the same with the black shoelaces, and * * * strands of duct tape, wrinkled duct tape" in a trash can at the apartment. (Tr. 110.) DNA material from both defendant and the victim was present on the shoestrings and the duct tape. Detective Bobbitt indicated that, although he searched for a gun at the victim's apartment, he did not find one.

{¶ 8} Officers apprehended defendant the following morning. Defendant did not have a gun on him when he was apprehended. Detective Bobbitt testified that he listened to a phone call defendant had made to the victim while in jail. In the recorded phone conversation, which was played for the jury, the victim says, "I begged you not to do it," and the defendant responds saying "it wasn't me, it was the devil." (Tr. 122.)

{¶ 9} Defendant testified in his own defense. Defendant admitted that he had a prior domestic violence conviction against the victim from 2010, and that he had a prior robbery conviction from 2004. Defendant explained that, the day prior to the incident, he had consensual sex with the victim, "and then that's when the duct tape and shoestrings came into the play," as their consensual sex involved "role playing, bondage and stuff like that." (Tr. 173 .) Defendant stated that he and the victim "had lots of threesomes and bondages" over the course of their relationship. (Tr. 175.)

Defendant explained that the morning after they had consensual sex, the victim woke up and "she wanted the rent money and, you know, the light bill money, and [as he] already spent it on heroin, she got mad and we got into it, we started fighting and arguing real bad ." (Tr. 174.) Defendant admitted that he "hit her, [he] spit on her, [he] pulled her hair and [he] slapped her" as the couple fought. (Tr. 176.) Defendant testified that the victim dropped him off at the mental health care facility later that evening, because she said he needed help. Defendant stated that he "did not rape" the victim, that he did not see a gun at the victim's house, and that he never possessed a gun. (Tr. 175.) Defendant stated that he believed the victim "owned a pellet gun," but not a real gun. (Tr. 175.)

(Doc. 7, Ex. 15); State v. Durdin, 2014 WL 7462990, at *1-*3 (Franklin Cty. Dec. 30, 2014). The factual narratives set out by the state court are presumed to be correct. 28 U.S.C. §2254(e)(1).

II. Procedural History

A. Trial Court Proceedings

Petitioner was indicted by the Franklin County Grand Jury on May 31, 2013, charging him with one count of kidnapping (O.R.C. §2905.01) with a firearm specification; one count of rape (O.R.C. §2907.02) with a firearm specification and a sexually violent predator specification; one count of aggravated robbery (O.R.C. §2911.01) with a firearm specification; one count of domestic violence (O.R.C. §2919.25) with a firearm specification; and one count of possessing a weapon under a disability (O.R.C. §2923.13). (Doc. 7, Ex. 1). Petitioner pleaded not guilty to the charges.

During the pretrial proceedings, Petitioner filed two motions in limine to exclude alleged hearsay testimony from Patricia Daniels, the victim's sister, and from Lindsay McNichols, the SANE nurse. Rather than rule pretrial, the court took the motions underadvisement and indicated that it would respond to any objections made during trial. (Tr. at 16-20). The State had filed a motion to depose the victim, but the motion was withdrawn on the day of the trial and no deposition occurred. (Doc. 7, Ex. 3; Tr. 20-21). Objections to the SANE nurse's testimony during trial were overruled, and the victim's sister testified without objection. (Tr. 60-61; 36-44). After the state rested its case, and again after the defense rested its case, Petitioner unsuccessfully moved for acquittal under Rule 29. (Tr. 165, 183). The jury found Petitioner guilty of all counts and specifications. (Doc. 7, Ex. 4).

On March 18, 2014, Petitioner was sentenced to twenty years to life imprisonment. The sentencing entry provides, in pertinent part, as follows:

For purposes of sentencing Counts One and Three merge and the Defendant is sentenced to Three (3) years on Count Three with an additional, consecutive Three (3) years as to the firearm specification; Eleven (11) years to Life as to Count Two, this is with the specification finding that the Defendant is a sexually violent predator (life tail), and with an additional, consecutive Three (3) years as to the firearm specification; Eighteen (18) months as to Count Four; and Two (2) years as to Count Five at the Ohio Department of Rehabilitation and Correction. Counts Four and Five to be served concurrently with each other and to other counts. Count Two and Count Three to be served consecutively to each other and to

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