Geboy v. Brigano

• Citation: 489 F.3d 752
• Decision Date: 11 June 2007
• Docket Number: No. 05-3200.,No. 05-3201.,05-3200.,05-3201.
• Parties: Alan GEBOY, Petitioner-Appellant/Cross-Appellee, v. Anthony BRIGANO, Warden, Respondent-Appellee/Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

489 F.3d 752

Alan GEBOY, Petitioner-Appellant/Cross-Appellee, v. Anthony BRIGANO, Warden, Respondent-Appellee/Cross-Appellant.

No. 05-3200.

No. 05-3201.

United States Court of Appeals, Sixth Circuit.

Submitted: July 17, 2006.

Decided and Filed: June 11, 2007.

ON BRIEF: Stuart A. Cole, Office of the Attorney General, Columbus, OH (briefed), for Appellee. Alan Geboy, Lebanon, Ohio, pro se.

Alan Geboy, Lebanon, OH, pro se.

Before: BOGGS, Chief Judge; COLE, Circuit Judge; ROSEN, District Judge.^*

OPINION

ROSEN, District Judge.

I. INTRODUCTION

Petitioner/Appellant/Cross-Appellee Alan Geboy was tried and convicted by a Union County, Ohio jury on nine counts of gross sexual imposition, two counts of felonious sexual penetration, and five counts of rape, while being acquitted on two other counts of felonious sexual penetration. These charges arose from allegations that Petitioner sexually abused his biological daughter over an eleven-year period from 1988 to 1999, when his daughter was between the ages of eight and nineteen years old. Following his conviction, Petitioner was sentenced to life imprisonment for each count of felonious sexual penetration, as well as a combined term of over fifty-three years of imprisonment for the remaining fourteen counts.

After exhausting his state remedies, Petitioner commenced the present habeas action under 28 U.S.C. § 2254, advancing five claims of constitutional error. The district court granted the writ as to the first of Petitioner's claims, but found that his remaining claims lacked merit. The Respondent warden, Anthony Brigano, now appeals this grant of relief to Petitioner, and Petitioner, in turn, challenges the dismissal of his remaining claims. For the reasons set forth below, we reverse the district court's grant of relief to Petitioner and affirm the district court's denial of relief as to the two other claims for which Petitioner has secured a certificate of appealability.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Facts Underlying Petitioner's State Court Conviction

The Ohio Court of Appeals summarized the pertinent facts and circumstances of the underlying state court proceedings as follows:

[T]he Logan County Grand Jury returned an eighteen-count indictment against [Petitioner], a resident of Bellefontaine, based upon evidence that he had been sexually molesting his biological daughter, now twenty-one years[] old, since the fall of 1988. [Petitioner] entered a plea of not guilty. Subsequently, the case was tried to a jury and [Petitioner] was convicted on all eighteen counts. This court reversed that conviction in State v. Geboy, 145 Ohio App.3d 706, 764 N.E.2d 451, 2001-Ohio-2214. Thereafter, a second trial commenced in March 2002, at which time the state presented testimony from seven witnesses, including the alleged victim, hereinafter D.D.¹

According to D.D., [Petitioner] began exposing himself to her when she was eight years old. She alleged that, over time, the abuse escalated from fondling and rubbing to oral sex and then ultimately to vaginal penetration. While in her first quarter of college at The Ohio State University, Lima Campus, a friend, Josh McKinley, confronted D.D. with suspicions that she was being sexually abused. D.D. admitted to McKinley that her father was abusing her, but made him swear not to tell. Initially, the boy complied with her request. However, after an incident in which D.D. alleged her father accosted her in the shower, McKinley drove to Bellefontaine from Lima and confided what he knew to D.D.'s older sister, Kelly. Kelly confronted D.D. with the information and escorted her to the police to file a report.

[Petitioner] presented eight witnesses in his defense. Ultimately, the jury found [Petitioner] guilty of all but two counts contained in the indictment.

State v. Geboy, No. 14-02-09, 2003 WL 178616, at *1 (Ohio Ct.App. Jan. 28, 2003). We recount the factual record in greater detail below, as pertinent to the issues presented on appeal.

B. Procedural Background

As noted by the Ohio appellate court, a Logan County, Ohio, grand jury issued an eighteen-count indictment on April 10, 2000, charging Petitioner Alan Geboy with nine counts of gross sexual imposition, four counts of felonious sexual penetration, and five counts of rape. These charges were based upon Petitioner's alleged sexual abuse of his biological daughter, Jodi Geboy, over an eleven-year period spanning from 1988 to 1999, when Jodi was between the ages of eight and nineteen years old. Petitioner initially was found guilty on all eighteen counts, but this conviction was overturned by the Ohio Court of Appeals on the ground that the prosecutor improperly commented upon and elicited testimony regarding Petitioner's failure to profess his innocence to the authorities. See State v. Geboy, 145 Ohio App.3d 706, 764 N.E.2d 451, 458-59 (2001).

Following a successful effort to transfer venue in light of extensive local publicity, Petitioner was retried by a Union County, Ohio jury and found guilty on all counts except two of the four counts of felonious sexual penetration. Petitioner subsequently was sentenced to life imprisonment for each of the two counts of felonious sexual penetration, plus consecutive prison terms totaling fifty-three years and three months for the remaining counts. On appeal, the Ohio Court of Appeals rejected Petitioner's various challenges to his convictions, but remanded for resentencing in light of the trial court's failure to make a sufficient record of its reasons for imposing consecutive sentences. On remand, the trial court imposed the same sentence, and Petitioner's remaining state court appeals were unavailing.

Petitioner then commenced the present action on June 18, 2003 by filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Southern District of Ohio. In his petition, Petitioner asserted five claims for relief:

1) that the evidence was insufficient to sustain Petitioner's conviction of the felonious sexual penetration offenses charged in counts nine and ten of the indictment, where he did not live at the family home during the relevant time periods in the fall of 1992, and where there purportedly was no evidence of sexual abuse outside the home;

2) that the evidence was insufficient to establish Petitioner's guilt of the rape charged in count seventeen of his indictment, where there allegedly was no proof of sexual abuse during the relevant time period;

3) that the evidence was insufficient to sustain Petitioner's conviction of the rapes charged in counts thirteen through seventeen of his indictment, in light of the purported absence of proof of force;

4) that Petitioner's trial counsel provided ineffective assistance by failing to object to prosecutorial misconduct and improper evidence, both of which purportedly operated to unfairly bolster the credibility of Petitioner's daughter; and

5) that Petitioner was denied a fair trial and his right to confront his accusers through the trial court's decision to admit into evidence a chart prepared by the prosecutor.

(See 6/18/2003 Petition for Writ of Habeas Corpus, J.A. at 5-19.)

The matter was referred to a magistrate judge. On May 12, 2004, the magistrate judge issued a report and recommendation ("R & R") recommending that the petition be granted as to claim one, but that the remainder of the Petitioner's claims be dismissed as lacking in merit. Both Petitioner and the Respondent warden, Anthony Brigano, filed objections to the R & R. In an opinion and order dated December 9, 2004, the district court overruled the parties' objections, adopted the R & R, and granted the petition as to claim one. That same day, the court entered a final judgment vacating Petitioner's convictions of the felonious sexual penetration offenses charged in counts nine and ten of the indictment, and dismissing the remainder of Petitioner's claims.

Both Petitioner and Respondent now appeal from the district court's rulings. Respondent seeks to overturn the district court's grant of relief under claim one of the habeas petition. Petitioner, who was represented by counsel in the district court but is now proceeding pro se, seeks to reverse the district court's dismissal of his remaining four claims for relief. The district court granted a certificate of appealability ("COA") limited to Petitioner's challenges to the dismissal of claims two and five of his petition, and this court subsequently denied Petitioner's request for an expanded COA encompassing claims three and four of the petition. Accordingly, only claims one, two, and five of the petition are presently before us. We now turn to these matters.

III. ANALYSIS

A. The Standards Governing Federal Habeas Review of Challenges to a State Court Conviction

When considering a district court's decision to grant or deny a habeas corpus petition, we review findings of fact for clear error and conclusions of law de novo. Hicks v. Straub, 377 F.3d 538, 551 (6th Cir.2004), cert. denied, 544 U.S. 928, 125 S.Ct. 1653, 161 L.Ed.2d 490 (2005). Because the federal habeas petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA"), its provisions govern here. See Hicks, 377 F.3d at 551.

Where, as here, the claims raised in a federal habeas petition have been addressed on the merits by the state court, relief cannot be granted unless the state court's adjudication of a claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). As to the first part of this standard, the Supreme Court...