Kaeding v. Warden, Lebanon Corr. Inst., Case No. 1:11-cv-121

• Decision Date: 11 September 2012
• Docket Number: Case No. 1:11-cv-121
• Parties: MARK H. KAEDING, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

MARK H. KAEDING, Petitioner,

v.WARDEN, Lebanon Correctional Institution, Respondent.

Case No. 1:11-cv-121

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

September 11, 2012

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

DECISION AND ORDER DENYING MOTIONS FOR EVIDENTIARY

HEARING AND ADDITIONAL DISCOVERY;

REPORT AND RECOMMENDATIONS ON THE MERITS

This habeas corpus case is before the Court for decision on the merits. On the Order of Magistrate Judge Karen Litkovitz (Doc. No. 6), Respondent has filed a Return of Writ with the state court record (Doc. No. 13). Despite Judge Litkovitz's setting a date for a reply or traverse, Kaeding did not file one in response to the original Return of Writ. Instead, the case was stayed to permit Kaeding to exhaust state court remedies (Doc. Nos. 20, 21). After the stay was lifted and the case transferred to the undersigned (Doc. Nos. 24, 26), the Warden filed a Supplemental Return (Doc. No. 31) and Petitioner has filed his Traverse to the Supplemental Return (Doc. No. 43). The case is also pending on Petitioner's Motion for Evidentiary Hearing (Doc. No. 35) and for Discovery (Doc. No. 40). Respondent opposes both Motions (Doc. No. 42).

Petitioner pleads the following Grounds for Relief:

Ground One: Prosecutorial misconduct in violation of 5th and 14thAmendments.

Supporting Facts: Prosecutor made improper statements to the jury to incite passion and inflame them to prejudice, introduced evidence not adduced at trial to jury in closing arguments, lied to jury, misrepresenting facts and issues. Solicited know perjured testimony from prosecutrix and lead detective. Withheld exculpatory evidence, affidavit of detective and recantation of prosecutrix and prior finding of not guilty (actual statement of prosecutrix). Unconstitutionally obtained indictment in violation of absolute bar imposed by Doctrine of Collateral Estoppel.

Ground Two: Ineffective assistance of counsel, of both the lead detective and prosecutrix and present that proof to the jury all violating the Petitioner's 5th, 6th and 14th Amendment rights.

Supporting Facts: Counsel failed his discovery duties by not putting lease into discovery which showed Appellant not guilty. Failure to investigate who was on apartment. Failure to call witnesses, failed to assert collateral estoppel, failed to investigate information proving perjured testimony.

Ground Three: Ineffective assistance of appellate counsel.

Supporting Facts: Failed to raise substantial claims on direct appeal; improperly raised ineffective assistance of trial counsel contrary to appellate rules; failed to preserve ineffective assistance of counsel claim from direct appeal to Ohio Supreme Court on post-conviction, left pending 15 ½ months in violation of 6th, 5th and 14th Amendments.

Ground Four: Sufficiency of the evidence, all elements of the indictment not proven beyond a reasonable doubt.

Supporting Facts: The State had no physical evidence except for the testimony of the prosecutrix, which was inconsistent and perjured, as well as that of the lead detective. The Court and State admitted the facts were not sufficient to support a finding of guilty on charges occurring in 2003 as required for conviction for rape by attempting to add lesser included charges which could only have been legally viable if occurred in 2004. Despite alleged victim's testimony, sex occurred only once on stand and after trial admitted she lied about 2003 and met Petitioner in 2004. After time of conviction on 2907.02(A)(1)(b) expired, compounds by factprevious testimony in 2004 where she claimed no sex occurred. All of which violates Petitioner's 5th and 14th Amendment rights to fair trial and due process of law.

Ground Five: Prosecution withheld exculpatory evidence.

Supporting Facts: The Hamilton County Prosecutor withheld two affidavits of Detective Konick showing the alleged rapes occurred on April 1st and April 8, 2002. They withheld from the defense police reports from BP Gas Station the night of the Petitioner's arrest. They withheld from the defense and the court a recantation by the prosecutrix made immediately after trial, the prosecutrix made a complete statement at a prior legal proceeding in which the Prosecutor withheld from the defense and the court, all this in violation of the Petitioner's rights under the 5th and 14th Amendments to a fair trial and the due process of law.

Ground Six: Conviction violates the Doctrine of Collateral Estoppel and as such deprived the court of subject matter jurisdiction.

Supporting Facts: Since the ultimate issue of fact in the Petitioner's case, whether or not sex occurred between the prosecutrix and the Petitioner prior to 11-30-2004, which was an essential element of the second prosecution for two counts of rape allegedly occurring in April of 2003, had been previously and necessarily determined in the Petitioner's favor in a prior legal proceeding, an absolute and mandatory bar to re-prosecution of the Petitioner on charges in which that ultimate issue of fact was an essential element, was invoked by the Doctrine of Collaterial Estoppel, embedded within the 5th Amendment double jeopardy clause and U.S. Supreme Court precedent in Ashe, thus the Petitioner's re-prosecution violates his 5th and 14th Amendment rights to a fair trial and the due process of law and deprived the court of subject matter jurisdiction to re-prosecute the Petitioner due to absolute and mandatory bar imposed by the United States Supreme Court.

Ground Seven: Petitioner's conviction obtained through the use of known perjured testimony.

Supporting Facts: The State knowingly used testimony that was found to be perjured. Detective Konicki, who gave sworn testimony in the form of two affidavits which were in fact completely contrary to his trial testimony which was also given under oath and he gotthis testimony directly from the prosecutrix herself making her testimony perjured as well, additionally she gave conflicting and impossible testimony as well as having given testimony in a prior legal proceeding which was completely opposite of her trial testimony under oath.

Ground Eight: Judge improperly excluded exculpatory evidence as sanction for discovery violation.

Supporting Facts: When the defense proffered obvious exculpatory evidence that was clearly material to the Petitioner's actual innocence, the court chose to exclude this evidence as a sanction for counsel's failure to comply with the rules of discovery. This severs sanction deprived the Petitioner of a fair trial and his right to present evidence in his defense as well as the due process of law guaranteed him by the 5th, 6th and 14th Amendments of the U.S. Constitution.

Ground Nine: Improper evidentiary ruling.

Supporting Facts: Specifically the trial court deprived the Petitioner of a fair trial and the due process of law through a series of improper evidentiary rulings, by failing to grant a mistrial for an improper comment of the prosecutrix which violated the limine agreement while basing his ruling solely on a potential double jeopardy implication, excluded exculpatory evidence the lease, as sanction for discovery violation which deprived the Petitioner of his right to present a defense and the confrontation clause, rather than grant a Rule 29 motion for insufficiency of the evidence, he instructed his clerk to add lesser included charge to make up for the insufficiency.

Ground Ten: Cumulative effect of all trial errors.

Supporting Facts: Specifically while the Petitioner is virtually certain that any of the court errors complained of in this petition standing alone warrant habeas relief, the conviction of the Petitioner is due to the cumulative effect of all the errors at trial, and appeal, rather than the sufficiency of the evidence, all of which violates the Petitioner's right to a fair trial and the due process of law guaranteed by the 5th and 14th Amendments.

(Petition, Doc. No. 1.)

Procedural History

Kaeding was indicted by a Hamilton County grand jury on July 8, 2005, charged with two counts of rape of J.I. by vaginal intercourse and cunnilingus on an undetermined date or dates in April, 2003, at a time when the victim was under thirteen years of age (Indictment, Ex. 1 to Return of Writ, Doc. No. 14, PageID 271.) Kaeding was convicted by a petit jury in April, 2006, and sentenced to ten years imprisonment on each count, to run consecutively to each other. Id. Ex. 3.

Kaeding appealed to the Hamilton County Court of Appeals, raising the following assignments of error:

1. Prosecutorial misconduct prejudicially affected Defendant's right to due process and he was subsequently denied a fair trial.

2. The judgment of the trial court is contrary to the manifest weight of the evidence.

3. The trial court erred to the prejudice of Appellant when it denied his motion for a mistrial.

4. Defendant was denied a fair trial, because trial counsel was constitutionally ineffective.

5. The cumulative effect of the errors below deprived Defendant of a fair trial.

(Appellant's Brief, Ex. 6 to Return of Writ.)

The Court of Appeals affirmed the judgment, finding the following facts:

Defendant-appellant Mark Kaeding has appealed his convictions for two counts of rape. He was sentenced to an aggregate term of 20 years' incarceration. The rapes occurred in 2003, when the victim was 12 years old. The victim testified that she had met Kaeding in 2003 at the apartment of Midge, a friend and neighbor. The first time the victim had met Kaeding, she had gone into Midge's bedroom to borrow some clothes. Kaeding had come into the bedroom and had performed vaginal and oral sex on the victim. Kaeding bought the victim clothes and took her to dinner. Kaedingpromised to give the victim a Corvette. Kaeding told the victim that he was going to get her false identification so that he could take her to Canada. Kaeding went to New York and Canada. While Kaeding was away, he wired the victim money.

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