REPORT AND RECOMMENDATION Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, Respondent's Return of Writ, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
FACTS and PROCEDURAL HISTORY The Ohio Fifth District Court of Appeals summarized the facts and procedural history of this case as follows:
Appellant is the biological father of a minor child, T.G., who was born on July 6, 2003. T.G.'s mother, Heather Jones, has primary custody of T.G., and up through the weekend of March 23, 2008, Appellant had visitation with T.G. every other weekend.
During the weekend of March 21-23, 2008, which was the weekend encompassing the Easter holiday, Appellant had visitation with T.G. and T.G. stayed at Appellant's house. Appellant admitted to having consumed alcohol that weekend and stated that he allowed T.G. to sleep in bed with him. When Appellant woke up the next morning, he stated that he had a "morning erection" and that he placed his penis in T.G.'s mouth. He stated that he only placed his penis in T.G.'s mouth for a few seconds and that he knew that it wasn't right so he stopped. At that time, T.G. was four years old.
On April 2, 2008, Heather Jones, Jones' sister, and T .G. were in thekitchen at Jones' house when Jones noticed that their six month old male bulldog had an erection. Jones told the puppy to "put that away." T.G. then stated, "My daddy has a pee thing like that." Jones asked T.G. how T.G. knew what Appellant had and T.G. responded, "He puts it in my mouth." Jones and T.G.'s aunt both said, "what?" at which time, T.G. clammed up. When Jones assured T.G. that T.G. was not in trouble and asked T.G. to repeat what she had just said, T.G. stated, "My daddy puts his pee thing in my mouth."
Following these statements, Jones contacted Guernsey County Children's Services and an investigation commenced. Upon being interviewed by the police, Appellant admitted to placing his penis in T.G.'s mouth for a few seconds and stated that it only happened one time.
On May 2, 2008, Appellant was indicted by the Guernsey County Grand Jury on one count of rape, a violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. The grand jury also indicted Appellant on a life imprisonment specification.
Appellant pled not guilty at his arraignment on May 19, 2008.
On June 11, 2008, Appellant filed a Motion in Limine, seeking to exclude T.G.'s statement that "daddy puts his pee thing in my mouth." The trial court, in overruling Appellant's motion, determined that the statement was an excited utterance under Evid. R. 803(2), and therefore was an exception to the hearsay rule. The court also determined that T.G. was not competent to testify, as T.G. did not understand several basic questions that the trial court asked during the competency hearing and determined that T.G.'s statement was not admissible under Evid. R. 807 (out-of-court statement made by child victim where child's testimony is not reasonably obtainable by the proponent).
On August 12, 2008, Appellant waived his right to a jury trial on the record and in writing. The case then proceeded to bench trial on that same date. After a day of testimony, the trial court found Appellant guilty of rape, in violation of R.C. 2907.02(A)(1)(b), but found him not guilty as to the life imprisonment specification. Appellant was subsequently sentenced to fifteen years to life in prison.
State v. Girts, 2009 WL 2006703 (Ohio App. 5th Dist. July 8, 2009). Petitioner filed a timely appeal, in which he asserted the following assignments of error:
I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ADMITTED, OVER OBJECTION, THE ALLEGED CHILD VICTIM'S HEARSAY STATEMENTS INTO EVIDENCE, IN CONTRAVENTION OF THE OHIO RULES OF EVIDENCE, AND IN VIOLATION OF MR. GIRTS'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION, AND SECTIONS 10 AND 16, ARTICLE 1 OF THE OHIO CONSTITUTION. (JUNE 11, 2008, DEFENDANT'S MOTION IN LIMINE; JUNE 17, 2008, STATE'S MOTION FOR COURT DETERMINATION PRIOR TO TRIAL; JUNE 26, 2008, IN CAMERA INTERVIEW TR.; JUNE 26, 2008, COMPETENCY HEARING TR.; JUNE 27, 2008, JUDGMENT ENTRY; STATE'S EX. C; AUG. 8, 2008, VIDEOTAPE DEPOSITION OF SGT. DAVIS TR.; TR. 68, 80-84, 88-90, 92-93, 96-98, 114-26, 129-31, 191-96).
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED MR. GIRTS OF HIS RIGHT TO A TRIAL BY JURY WHEN IT FAILED TO STRICTLY COMPLY WITH THE MANDATES OF R.C. 2945.05, AND ACCEPTED MR. GIRT'S INSUFFICIENT WRITTEN WAIVER OF HIS RIGHT TO A TRIAL BY JURY, IN VIOLATION OF MR. GIRTS'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 5, 10 AND 16, ARTICLE 1 OF THE OHIO CONSTITUTION. (TR. 6-11; AUG. 12, 2008, JURY WAIVER).
III. DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF MR. GIRTS'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 5, 10 AND 16, ARTICLE 1 OF THE OHIO CONSTITUTION (ASSIGNMENT OF ERROR II; TR. 6-11; AUG. 12, 2008, JURY WAIVER).
See id. at *2. On July 8, 2009, the appellate court affirmed the judgment of the trial court. Id. On November 18, 2009, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Girts, 123 Ohio St.3d 1496 (2009). On September 18, 2009, Petitioner filed an application to reopen his appeal pursuant to Ohio Appellate Rule 26(B). He asserted that he was denied effective assistance of appellate counsel because his attorney failed to raise on appeal claims that he wasdenied effective assistance of trial counsel because his attorney failed to file a motion to suppress statements and that he was denied the right to testify on his own behalf. See Exhibit 20 to Return of Writ. On December 7, 2009, the state appellate court denied Petitioner's application to reopen the appeal. Exhibit 22 to Return of Writ. On March 24, 2010, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. Exhibit 25 to Return of Writ.
On May 13, 2010, Petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of the Constitution of the United States based upon the following grounds:
1. Petitioner was deprived of his right to confront adverse witnesses by the use of hearsay testimony to convict.
2. Petitioner was deprived of his right to trial by jury.
3. Petitioner was denied effective counsel by counsel failing to assure the right to trial by jury.
4. Petitioner was deprived of effective counsel on appeal.
5. Petitioner was deprived of effective trial counsel where counsel failed to move to suppress statements erroneously attributed to Petitioner and admitted at trial.
6. Petitioner was deprived of his absolute right to testify on his own behalf, violating due process of law.
It is the position of the Respondent that Petitioner's claims are waived for federal habeas corpus review and without merit.
In order to exhaust available state remedies, a petitioner must first fairly present the substance of his federal habeas corpus claims to the state courts. Picard v. Connor, 404 U.S. 270,275 (1971); Anderson v. Harless, 459 U.S. 4, 6 (1982). "The state courts must be provided with a fair opportunity to apply controlling legal principles to the facts bearing upon petitioner's constitutional claims." Sampson v. Love, 782 F.2d 53, 55 (6th Cir.1986). Petitioner does not fairly present his claim simply because the necessary facts supporting a federal constitutional claim are present or because the constitutional claim appears self evident. Haggins v. Warden, 715 F.2d 1050, 1054 (6th Cir.1983) (citing Harless,459 U.S. at 6). Furthermore, "[a] petitioner 'fairly presents' his claim to the state courts by citing a provision of the Constitution, federal decisions employing constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns." Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir.1993) (citing Franklin v. Rose, 811 F.2s 322, 326 (6th Cir.1987)). Courts normally require more than a single broad generalization that petitioner was denied a "fair trial" or "due process of law." Franklin, 811 F.2d at 326; Petrucelli v. Coombe, 735 F.2d 684, 688 (6th Cir.1984). Petitioner, however, need not "cite book and verse on the federal constitution." Picard, 404 U.S. at 277 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.1960)). The Sixth Circuit has strictly followed the requirement that petitioner fairly presented his federal constitutional claims to the state courts as a precondition to federal habeas review. Weaver v. Foltz, 888 F.2d 1097, 1098 (6th Cir.1989).
In claim one, Petitioner asserts that he was denied his right to confront the witnesses against him due to admission of hearsay evidence. In claim two, Petitioner asserts that he was denied his right to a trial by a jury. Petitioner failed to raise either of these constitutional claims in the state appellate court. Instead he raised solely the alleged violations of state law. He argued that the trial court improperly admitted the alleged victim's hearsay statements under Ohio evidence rules. Similarly, he argued that the trial court had failed to comply with O.R.C. § 2945.05 in accepting hiswaiver of his right to a trial by jury. See Exhibit 12 to Return of Writ. The state appellate court likewise reviewed Petitioner's claims for a violation of state law only:
In his first assignment of error, Appellant claims that the trial court erred in admitting T.G.'s statement pursuant to
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