Johnson v. Warden, Chillicothe Corr. Inst.

• Decision Date: 27 March 2020
• Docket Number: Case No. 2:16-cv-985
• Parties: BRIAN A. JOHNSON, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

BRIAN A. JOHNSON, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

Case No. 2:16-cv-985

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

March 27, 2020

Judge Edmund A. Sargus, Jr.

Magistrate Judge Chelsey M. Vascura

OPINION AND ORDER

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent's Return of Writ and Supplemental Memorandum in Support (ECF Nos. 22, 23), Petitioner's Reply (ECF No. 51), and the exhibits of the parties. For the reasons that follow, this action is DISMISSED. In addition, Petitioner's Motion to Request an Evidentiary Hearing (ECF No. 50) and his Motion to Expedite (ECF No. 57) are DENIED as moot.

I. BACKGROUND

The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶ 2} L.A. is a 56-year-old female who is developmentally disabled. L.A. has an I.Q. of 56 and a diagnosis of dependent personality disorder. At the time of these events, L.A. lived alone in a condo in the Abbeycross neighborhood of Westerville, Delaware County, Ohio. Although L.A. had some ability to live independently, she was closely supervised by her cousin who lived nearby and her caseworker from the Delaware County Board of D.D. Both of her parents are deceased. L.A. does not drive and is dependent upon others to manage her money and to help her meet her own basic needs. She regularly attends a workshop called "All R Friends" and has worked some part-time jobs at care facilities and in her cousin's office.

{¶ 3} Appellant's cousin has been L.A.'s closest caretaker since both of their mothers were killed in an automobile accident in 2008. L.A. was the sole survivor of that accident. L.A.'s cousin testified she is mentally similar to a five- to ten-year-old child.

{¶ 4} Evidence at trial established that between September 7 and September 9, 2013, L.A. observed appellant delivering newspapers in her neighborhood. L.A. testified appellant asked to come inside her condo and she allowed him to come in. Once inside, they entered one of the condo's three bedrooms which L.A. referred to as her dad's bedroom.

{¶ 5} L.A. testified she understood appellant wanted to have "sex" and she said no. She said he pushed her onto the bed and assaulted her. L.A. described digital penetration and intercourse with the aid of anatomically-correct drawings. L.A. said the sexual assault hurt and made a "mess" which she attempted to clean up. At trial she repeatedly said cleaning up the mess was a "mistake" because she later understood the police wanted the evidence.

{¶ 6} After the sexual assault, L.A. was scared to call police but called the security manager of the Columbus Dispatch to ask for help. The security manager told her to report the matter to the police and she did. Westerville detectives interviewed L.A. with the assistance of her case manager. L.A. became very upset when the detective asked her to explain what happened by role-playing. Her caseworker testified she "freaked" and became distraught. L.A. identified appellant as her attacker in a photo lineup and at trial.

{¶ 7} The Westerville police made contact with appellant, who worked his mother's paper route throughout L.A.'s neighborhood. Appellant admitted entering L.A.'s condo and admitted digital penetration, although he denied intercourse. He told police L.A. "seemed somewhat normal" but was "a little strange."

{¶ 8} Appellant was charged by indictmentFN1 upon one count of rape pursuant to R.C. 2907.02(A)(1)(c) [Count I]; one count of rape pursuant to R.C. 2907.02(A)(2) [Count II]; one count of rape pursuant to R.C. 2907.02(A)(1)(c) [Count III]; one count of rape pursuant to R.C. 2907.02(A)(2) [Count IV]; one count of sexual battery pursuant to R.C. 2907.03(A)(2) [Count V]; one count of sexual battery pursuant to R.C. 2907.03(A)(1) [Count VI]; one count of sexual battery pursuant to R.C. 2907.03(A)(2) [Count VII]; and one count of sexual battery pursuant to R.C. 2907.03(A)(1) [Count VIII]. Appellant entered pleas of not guilty.

FN1: An earlier indictment upon four counts of rape under case number 13 CR I 04 0169 was dismissed on February 26, 2014. All pleadings and bond in the 2013 case transferred to the subsequent indictment under case number 14 CR I 01 0019.

{¶ 9} Pursuant to the bill of particulars filed on February 5, 2014, the charges represented the following conduct:

Count I: vaginal penetration when victim's ability to consent was substantially impaired due to mental or physical condition.

Count II: vaginal penetration by force or threat of force.

Count III: digital penetration when victim's ability to consent was substantially impaired due to mental or physical condition.

Count IV: digital penetration by force or threat of force.

Count V: sexual battery by means of vaginal penetration when victim's ability to consent was substantially impaired due to mental or physical condition.

Count VI: sexual battery by means of vaginal penetration when offender coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution.

Count VII: sexual battery by means of digital penetration when offender knows that the other person's ability to appraise the nature of or control the other person's own conduct is substantially impaired.

Count VIII: sexual battery by means of digital penetration when offender coerces the other person to submit by any means that would prevent resistance by a person of ordinary resolution.

{¶ 10} At a status conference on May 13, 2014, the trial court heard argument on several motions. No exhibits were admitted and no evidence was taken. Appellant's counsel argued in favor of admitting evidence that the fitted bed sheet taken as evidence from L.A.'s condo was swabbed by a forensic analyst and, apparently, found to contain D.N.A. of someone other than appellant. The trial court concluded the evidence was not admissible. Then the parties addressed the matter of the competency of L.A., who was not present for the conference:

[DEFENSE COUNSEL:] Judge, are you intending to do a competency hearing on the 601 on [the day of trial] I mean?

THE COURT: I wasn't. I wasn't.

[DEFENSE COUNSEL:] You were not?

THE COURT: Well, if she—

[DEFENSE COUNSEL:] Okay.

THE COURRT: Who wants it?

[PROSECUTOR:] She knows the difference between telling the truth and telling a lie out of an abundance of caution.

THE COURT: We'll have one then.

[DEFENSE COUNSEL:] I don't know that we necessarily need one. I've not talked with her, but I was just trying to figure out maybe.

[PROSECUTOR:] If you want to voir dire her right before we go on. I don't think there's going to be a problem with the competency issue, The Court has a copy of the disc.

* * * *.

THE COURT: * * * *.

In light of what the evidence will be, we probably need to voir dire her outside the presence of the jury and we should not, we should do it before we swear the jury—

[PROSECUTOR:] I would agree.

[DEFENSE COUNSEL:] Okay.

THE COURT:—because we don't want jeopardy to attach. * * * *.

* * * *.

THE COURT: All right, we'll have the competency hearing the first thing in the morning.

* * * *.

{¶ 11} The record is then devoid of any further mention of a competency hearing. No competency hearing was requested or held before trial or prior to the testimony of L.A.

{¶ 12} The case proceeded to trial by jury. Appellant moved for a judgment of acquittal at the close of appellee's evidence. In response, the trial court amended Counts III, IV, VII, and VIII to attempted offenses. Appellant was thereupon found guilty as charged.

{¶ 13} At sentencing, the trial court found Counts I, II, V, and VI merge, and Counts III, IV, VII, and VIII merge. The trial court sentenced appellant upon Counts II and IV to an aggregate prison term of 14 years. Appellant now appeals from the judgment entry of conviction and sentence.

{¶ 15} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶ 16} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO CONDUCT A VOIR DIRE COMPETENCY EXAMINATION OF THE ALLEGED VICTIM WHEN IT WAS INFORMED THAT THE VICTIM IN THIS CASE SUFFERED FROM MENTAL RETARDATION AND CO-DEPENDENCY PERSONALITY DISORDER."

{¶ 17} "II. APPELLANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED UNDER SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, AND SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WAS VIOLATED."

{¶ 18} "III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RULED THAT DNA EVIDENCE OF ANOTHER INDIVIDUAL FOUND AT THE LOCATION OF THE ALLEGED OFFENSE WAS INADMISSIBLE UNDER OHIO'S RAPE SHIELD STATUTE."

State v. Johnson, No. 14CA070039, 2015 WL 1960568, at *1-3 (Ohio App. 5th Dist. Apr. 29, 2015). On April 29, 2015, the appellate court affirmed the judgment of the trial court. Id. On October 28, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Johnson, 143 Ohio St.3d 1501 (2015).

On July 16, 2015, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Petitioner asserted that he was denied the effective assistance of appellate counsel because his attorney failed to raise on appeal claims of prosecutorial misconduct, judicial misconduct, and the denial of the effective assistance of trial counsel. (ECF No. 22-2, PAGEID # 1080-81.) On December 4, 2015, the appellate court denied the Rule 26(B) application. (Judgment Entry, ECF No. 22-2, PAGEID # 1078.) On March 23, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (PAGEID # 1138.)

Petitioner also pursued post-conviction relief. The Ohio Court of Appeals summarized those proceedings as follows:

{¶ 4} On February 26, 2015, appellant filed a petition for postconviction relief focusing on ineffective assistance of counsel. By a thorough and lengthy judgment entry filed March 12, 2015, the trial court denied the petition

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