Hodge v. Hurley

Decision Date12 October 2005
Docket NumberNo. 03-3166.,03-3166.
Citation426 F.3d 368
PartiesDemarkus HODGE, Petitioner-Appellant, v. Pat HURLEY, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Theresa G. Haire, Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Appellant. Mark Joseph Zemba, Office of the Attorney General of Ohio, Cleveland, Ohio, for Appellee.


Siobhan R. Clovis, Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Appellant. Mark Joseph Zemba, Office of the Attorney General of Ohio, Cleveland, Ohio, for Appellee.

Before: SILER, MOORE, and COLE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which COLE, J., joined.

SILER, J. (pp. 396-99), delivered a separate dissenting opinion.


MOORE, Circuit Judge.

This is a child-rape case where the only evidence sufficient to sustain a conviction was a jury determination that the complaining witness was more credible than the defendant. During his egregiously improper closing argument, the prosecutor commented on the credibility of witnesses, misrepresented the facts of the case, made derogatory remarks about the defendant, and generally tried to convince the jury to convict on the basis of bad character, all while defense trial counsel sat idly by.1 We conclude that the defendant's trial counsel was constitutionally ineffective in failing to object to this misconduct, and that the state court's determination to the contrary was an unreasonable application of clearly established Supreme Court precedent. Accordingly, we REVERSE the decision below and REMAND the case to the district court with instructions that a conditional writ of habeas corpus, giving the State of Ohio ninety days to retry Hodge or release him from custody, be GRANTED.

A. Factual Background

Petitioner-Appellant Demarkus Hodge ("Hodge") was convicted of rape of a child under thirteen years of age in Ohio state court and sentenced to mandatory life imprisonment. At the time of the events at issue in this case, Hodge was a seventeen-year-old ninth-grade dropout living with his twenty-three or twenty-four-year-old girlfriend, Consuela Fenn ("Fenn"), in Lorain, Ohio. The factual background presented by the State can be summarized as follows:

In the early afternoon on December 22, 1996, Fenn had just begun taking a bath when she heard moaning coming from her daughter's room. Concerned, she jumped out of the bath tub, ran to the bedroom, and found Hodge in the process of sexually penetrating Fenn's three-year-old daughter, Jane Doe2 ("Jane").3 The couple fought briefly, and Hodge threatened to kill Fenn and her children if she told anyone what had happened. Fenn, Hodge, and Fenn's three children4 then went to a birthday party at Fenn's brother's house. While at the party, Fenn did not tell anyone what she had seen. However, Fenn's grandmother, Floncia Lovejoy, thought Jane was acting strangely and decided to take Jane home with her.

When Floncia Lovejoy tried to give Jane a bath early that evening, Jane began crying, and Floncia Lovejoy noticed blood in Jane's underwear and three small cuts in Jane's genital area.5 Floncia Lovejoy called to Barbara Lovejoy (Floncia's daughter and Fenn's aunt), who was in the downstairs portion of the house at the time, and showed her the blood. Barbara Lovejoy then went back to the party and got Fenn. Either Barbara Lovejoy or Fenn called the police, and an ambulance took Fenn, Jane, and one or more other relatives to Elyria Memorial Hospital. That hospital did not have the right equipment to examine Jane, and the group was sent to another hospital, St. Joseph's.

At St. Joseph's, Jane was examined by Dr. Timothy Omley ("Dr.Omley"), who noted minor injury to her genital area, but apparently did not make any diagnosis as to whether Jane had been sexually assaulted. On January 15, 1997 and February 18, 1997, Jane was examined by Nurse Practitioner Lauren McAliley ("Nurse McAliley"). On February 18, 1997, Jane was also examined by Nurse McAliley's supervisor, Dr. Lolita McDavid ("Dr.McDavid"). Both Nurse McAliley and Dr. McDavid testified at trial as expert witnesses.

Fenn was initially interviewed by law enforcement officers while Jane, Fenn, and her relatives were at Elyria Memorial Hospital, but Fenn did not tell the officers anything about witnessing the incident. Later that same evening, or possibly early the next morning, Fenn spoke with a Detective Miller and again failed to mention having seen the actual act.6 However, on December 24, 1996, Fenn told her stepmother, Alice Fenn, that she had seen Hodge penetrate Jane. Alice Fenn relayed this information to other family members, and Barbara Lovejoy began threatening Fenn that she would go to jail herself if she did not implicate Hodge.7

Fenn agreed to admit that she witnessed the incident, and Barbara Lovejoy brought Fenn to talk to Detective Miller. After her discussion with the detective, Fenn was put in jail and charged with child endangering and failure to report a crime. Some months later, the charges against Fenn were dismissed, but not until after Fenn testified against Hodge before a grand jury. The resulting indictment of Hodge appears to be dated February 19, 1997.

Hodge presented a different version of these events. According to his account, Hodge did nothing more than get Jane dressed to go to a birthday party on the afternoon in question. Hodge further asserted that during the several months he lived at Fenn's house, he would watch Fenn's children eight hours a day, five days a week, while Fenn was at work. Hodge spent his free time alone with Fenn's children, and would have had many opportunities to rape Jane when Fenn was not at home, were he inclined to take such an action. (There was no accusation or evidence that Hodge had ever been involved in other sex acts with children, or that he had ever previously done anything sexually improper with any of Fenn's children). Hodge suggested that Fenn's accusations could be motivated by Fenn's family's intense dislike of him.

At trial, Nurse McAliley testified that, after performing a genital examination on Jane, she found no physical evidence of sexual abuse.8 Nonetheless, Nurse McAliley made an initial diagnosis "that sexual abuse was possible." J.A. at 420 (McAliley Test.). As Nurse McAliley later explained, she would make a finding that sexual abuse was "possible" except in the case of a "newborn that's just come out of its mother's womb." J.A. at 431 (McAliley Test.). However, Nurse McAliley later elevated her diagnosis to "probable" sexual abuse after reviewing police reports indicating that Fenn had claimed that she had witnessed Hodge raping Jane. J.A. at 419-20, 424, 433 (McAliley Test.). This elevation in Nurse McAliley's diagnosis was substantial, because according to Nurse McAliley, "probable" sexual abuse "means that the history, the physical, the laboratory, the behavioral summary, are very compelling." J.A. at 433 (McAliley Test.) (emphasis added).

Dr. McDavid testified that the physical examination of Jane was "not diagnostic, meaning that you could not say that something had happened or something had not happened." J.A. at 466-67 (McDavid Test.). Similarly, reported changes in Jane's behavior were "suggestive" and "concerning" but "non-specific." J.A. at 465-66 (McDavid Test.). On further questioning, Dr. McDavid testified, in essence, that Jane's behavioral changes were non-specific because any major behavioral change can be suggestive of sexual abuse. Id. (McDavid Test.). However, despite these nonconclusive physical and behavioral findings, Dr. McDavid's review of the police reports — primarily those portions of the police reports discussing Fenn's allegation that she witnessed Jane being raped — allowed her to conclude "within a reasonable degree of medical certainty" that Jane "was raped." J.A. at 449-50 (McDavid Test.); J.A. at 467-468 (McDavid Test); see also J.A. at 456 ("[W]e read the police reports and we accept them to be true.").

Hodge's expert, Dr. Daryl Steiner, did not have the opportunity physically to examine Jane. Like Nurse McAliley and Dr. McDavid, Steiner testified at trial that based on his review of the relevant medical records, there was no physical evidence that could confirm that Jane had been sexually abused. However, rather than relying on the police reports and bill of particulars (and the alleged eyewitness account therein) necessary to Nurse McAliley's and Dr. McDavid's diagnoses,9 Steiner testified that the conflicting stories Fenn told at different times required him to disregard her version of the events entirely. Without an eyewitness account of rape on which he was willing to rely, Steiner concluded that Jane's minor genital injury was "a straddle injury," J.A. at 544, caused by falling and straddling a hard object, rather than a sign of sexual assault.

B. Procedural Background

Hodge was convicted by an Ohio jury on February 6, 1998. That same day, the state trial judge sentenced Hodge to a mandatory term of life imprisonment,10 and found that Hodge qualified as a sexual predator under Ohio law. Hodge's initial appeal was dismissed on technical grounds, but after some difficulties Hodge was allowed to reopen the appeal. Nevertheless, the Ohio Court of Appeals rejected all of Hodge's claims. The Supreme Court of Ohio denied leave to appeal. Hodge filed a petition in federal court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting four grounds of ineffective assistance of counsel.11 The district court denied the petition in its entirety, and we granted a certificate of appealability on all issues raised in the petition.12

A. Jurisdiction

As Hodge asserted that he was being held by the State of Ohio in violation of the Sixth Amendment of the United States...

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