Garner v. Fender

• Decision Date: 14 December 2022
• Docket Number: 1:19-CV-02453-JPC
• Parties: GARY GARNER, Petitioner, v. WARDEN DOUGLAS FENDER, Respondent,
• Court: U.S. District Court — Northern District of Ohio

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GARY GARNER, Petitioner, v. WARDEN DOUGLAS FENDER, Respondent,

No. 1:19-CV-02453-JPC

United States District Court, N.D. Ohio, Eastern Division

December 14, 2022

J.PHILIP CALABRESE, UNITED STATES DISTRICT JUDGE

REPORT & RECOMMENDATION

CARMEN E. HENDERSON, MAGISTRATE JUDGE

I.Introduction

Gary Garner(“Petitioner”) seeks a writ of habeas corpus under 28 U.S.C. § 2254.Petitioner is an Ohio prisoner who is currently serving an aggregate prison term of two life sentences without parole.(ECF No. 1, PageID #: 1).Petitioner asserts four grounds for relief.(ECF No. 1-2 PageID #: 17).Warden Douglas Fender(“Respondent”) filed a return of writ on January 17, 2020.(ECF No. 4).Petitioner filed a traverse on April 15, 2020.(ECF No. 6).

This matter was referred to me under Local Rule 72.2 to prepare a report and recommendation on Petitioner's petition and other case-dispositive motions.Because Petitioner has presented only procedurally defaulted and meritless claims, I recommend that the Court deny his petition in its entirety and not grant him a certificate of appealability.

II.Relevant Factual Background

The Ohio Court of Appeals for the Eighth Appellate District set forth the following facts^[1] on direct appeal:

{¶ 3} Garner was named in a 24-count indictment in Cuyahoga C.P.No. CR-13-575481-A.1 Garner was charged with eight counts of rape, in violation of R.C. 2907.02(A)(1)(b)(Counts 1, 2, 5, 6, 13, 16, 19, and 22); nine counts of gross sexual imposition (“GSI”), in violation of R.C. 2907.05(A)(4)(Counts 3, 7, 9, 10, 11, 14, 17, 20, and 23); six counts of kidnapping in violation of R.C. 2905.01(A)(4)(Counts 4, 8, 15, 18, 21, and 24); and one count of intimidation of a victim of a crime, in violation of R.C. 2921.04(B)(1)(Count 12).With the exception of the intimidation of a victim charge, each count of the indictment carried a sexually violent predator specification.In addition, Counts 4, 5, 6, 8, 15, 18, 21, and 24 contained a sexual motivation specification.Garner's indictment stemmed from allegations that he engaged in inappropriate sexual conduct with three minor children: A.C., D.T., and D.G.

{¶ 4} In January 2014, the matter proceeded to a jury trial where the following relevant facts were adduced.

{¶ 5} During the time periods pertinent to this case, Garner lived with his girlfriend, Linda Harvey(“Harvey”), who is the paternal grandmother of D.T. and the mother of A.C.'s stepfather, Tyrone Harvey.

{¶ 6} D.T.'s mother, Khaesha Brown, testified that D.T. had a good relationship with her grandmother and spent the night at Harvey's home on numerous weekends while Brown worked.Brown testified that in July 2012, she learned that D.T. confessed to Felicia Coles(“Coles”), D.T.'s maternal grandmother, that Garner had inappropriately “touched” her on multiple occasions.Brown stated that when she asked D.T. about the “touchings,” D.T. was scared and nervous, but eventually stated that Garner would come to her bedroom in Harvey's home and “take the covers off of her and touch her.”D.T. also told Brown that she once woke up on the couch with “her panties down to her ankles.”According to Brown, D.T. estimates that “basically every time that she was over there, * * * he was touching her.”Following this conversation, Brown prevented D.T. from visiting Harvey's home and took D.T. to the hospital for examination.Brown testified that the medical examinations did not reveal any signs of abuse.

{¶ 7} D.T. (DOB 7-14-2002), was 11 years old at the time of trial.She testified that Garner “touched” her when she was in the third and fourth grades, which encompassed the school years 2011-2012 and 2012-2013.These “touchings” took place when D.T.'s mother would drop her off at Harvey's home.D.T. testified that Garner touched her “chest” and her “private area in front” under her clothes with his fingers.D.T. clarified that Garner inserted his fingers inside her vagina on approximately one to five occasions.She further stated that Garner “touched [her] vaginal area without putting his fingers inside of [her]” more than five times but less than ten times.D.T. testified that the “touchings” usually took place in her bedroom but that on one occasion Garner touched her in the living room.D.T. stated that the sexual abuse stopped after she told Coles about what Garner had been doing to her.

{¶ 8} A.C.'s mother, Shannon Farrow(“Farrow”), testified that Harvey is the paternal grandmother of A.C.'s youngest sister.Farrow testified that A.C. spent time at Harvey's home while Farrow was working or for sleepovers with Harvey's other grandchildren.In August 2012, Farrow received a phone call from Brown.According to Farrow, Brown warned her that Garner had inappropriately touched D.T. while she was sleeping over at his home.Thereafter, Farrow asked each of her children if “they have ever been touched by anybody?”She clarified that she intentionally did not mention Garner's name when she questioned her children.Farrow testified that her children stated that they had never been touched inappropriately.Several weeks later, however, A.C. asked Farrow, “[i]f I tell you something, are you going to be mad?”When Farrow assured her that she would not be upset, A.C. stated that Garner “had been performing sexual acts on her and had her performing sexual acts on him.”A.C. further told Farrow that Garner made her watch pornographic videos on his cell phone.Based on this information, Farrow went the police the following morning to fill out a report.

{¶ 9} A.C. (DOB 4-7-2003) was ten years old at the time of trial.She testified that Garner touched her when she was nine years old, in the summer of 2012. A.C. testified that on one occasion, Garner woke her up while she was sleeping and took her into the living room.Garner told A.C. to lay down on two couch cushions.Garner then pulled down A.C.'s underwear and touched her vagina with his tongue and fingers.In addition, A.C. testified that Garner made her touch and lick his “private areas.”When asked how often this occurred, A.C. stated, “a lot.”A.C. also testified that Garner “rubbed her bottom,” and she also recalled an incident where Garner “rubbed [her] vagina” with his “private part.”According to A.C., “yellow stuff” came out of Garner's penis.A.C. testified that she did not tell her mother about Garner's conduct because he threatened to “chop her head off” if she told anyone.

{¶ 10} Harvey testified that she had no knowledge of the accusations made by D.T. and A.C. prior to Garner's arrest.Harvey stated that she did not believe Garner was capable of committing the offenses and that she would have noticed the sexual abuse had it occurred in her home.On cross-examination, Harvey testified that Garner was unable to perform sexually due to the side effects of his prescription medications.

{¶ 11} After resting its case, the state dismissed Counts 10, 22, 23, and 24.

{¶ 12} Garner testified on his own behalf and denied the allegations of sexual abuse made by D.T. and A.C. Garner testified that he never threatened, restrained, or inappropriately touched D.T. or A.C.Further, Garner maintained that many of the allegations raised against him were physically impossible given his medical conditions.Specifically, Garner testified that the side effects of his numerous medications prevent him from having an erection and that he has been unable to ejaculate since 2005.

{¶ 13} At the conclusion of trial, the jury found Garner guilty of all remaining counts and specifications.Subsequently, the trial court sentenced Garner to life without parole on the rape counts (Counts 1, 2, 5, 6, 13, 16, and 19); 25 years on the GSI counts (Counts 3, 7, 9, 11, 14, 17, and 20); life with the possibility of parole after 25 years on the kidnapping counts (Counts 4, 8, 15, 18, and 21); and 3 years for the intimidation count (Count 12).Counts 1 through 9 and 11-12, which related to A.C ., were ordered to run concurrently to each other, as were Counts 13-21, which related to D.T.However, the court ordered Counts 1-9 and 11-12 to run consecutively to Counts 13-21, “for an aggregate prison term of two life sentences (served consecutively) without parole.”

State v. Garner, No. 102816, 2016-Ohio-2623, ¶¶ 3-13(8th Dist. Ohio April 21, 2016).

III.Relevant State Procedural History

A.Indictment

Petitioner was initially indicted on December 19, 2012, but a second and third indictment followed on April 17, 2013 and August 28, 2013.Id. at ¶ 3, n.1.Each indictment included additional counts and was associated with a different case.Id.On October 21, 2013, the cases were consolidated, and Petitioner was indicted for:

Count 1: Rape, R.C. 2907.02(A)(1)(b), felony of the first degree, with sexually violent predator specification (R.C 2941.148(A));

Count 2: Rape, R.C. 2907.02(A)(1)(b), felony of the first degree, with sexually violent predator specification (R.C. 2941.148(A));

Count 3: Gross Sexual Imposition, R.C. 2907.05(A)(4) felony of the third degree, with sexually violent predator specification (R.C. 2941.148(A));

Count 4: Kidnapping, R.C. 2905.01(A)(4), felony of the first degree, with sexual motivation specification (R.C. 2941.147(A)) and sexually violent predator specification (R.C. 2941.148(A));

Count 5: Rape, R.C. 2907.02(A)(1)(b), felony of the first degree, with sexual motivation specification (R.C. 2941.147(A)) and sexually violent predator specification (R.C. 2941.148(A));

Count 6: Rape, R.C. 2907.02(A)(1)(b), felony of the first degree, with sexual motivation specification (R.C. 2941.147(A)) and sexually violent predator specification (R.C. 2941.148(A));

Count 7: Gross Sexual Imposition, R.C. 2907.05(A)(4), felony in the third degree, with sexually violent predator specification

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