Knox v. Ohio

• Decision Date: 28 December 2022
• Docket Number: 1:19-CV-02336-JGC
• Parties: MICHAEL KNOX, Plaintiff, v. STATE OF OHIO, Defendant,
• Court: U.S. District Court — Northern District of Ohio

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MICHAEL KNOX, Plaintiff, v. STATE OF OHIO, Defendant,

No. 1:19-CV-02336-JGC

United States District Court, N.D. Ohio, Eastern Division

December 28, 2022

JAMES G. CARR UNITED STATES DISTRICT JUDGE

REPORT & RECOMMENDATION

Carmen E. Henderson United States Magistrate Judge

I. Introduction

Petitioner Michael Knox, seeks a writ of habeas corpus under 28 U.S.C § 2254. Knox is currently serving an aggregate 16-year to life prison term and a five-year term of post-release supervision for kidnapping and rape with specifications. Knox asserts four grounds for relief. (ECF No. 1). Respondent, State of Ohio, filed a return of writ on June 1, 2020. (ECF No. 9). Knox filed a traverse on June 11, 2020 (ECF No. 10) and a supplement on June 22, 2020 (ECF No. 11). On June 26, Respondent filed a reply to the traverse and supplement. (ECF No. 12).

This matter was referred to me under Local Rule 72.2 to prepare a report and recommendation on Knox's petition and other case-dispositive motions. Because Knox has presented meritless claims, I recommend that the Court deny his petition in its entirety and not grant him a certificate of appealability.

II. Relevant Factual Background

The Ohio Court of Appeals for the Eighth Appellate District set forth the following facts^[1] on direct appeal:

{¶2} In 2016, Knox was indicted in a five-count indictment. Count 1 charged anal rape of P.H. on August 24 1999, in violation of R.C. 2907.02(A)(2); Count 2 charged vaginal rape of P.H. on August 24, 1999, in violation of R.C. 2907.02(A)(2); Count 3 charged kidnapping of P.H. on August 24, 1999, in violation of R.C. 2905.01(A)(4), with a sexual motivation specification; Count 4 charged rape of J.S. on August 31, 1999, in violation of R.C. 2907.02(A)(2); and Count 5 charged kidnapping of J.S. on August 31, 1999, in violation of R.C. 2905.01(A)(4), with a sexual motivation specification. All counts carried a sexually violent predator specification.

{¶3} Knox pleaded not guilty.

A. Motion to Dismiss for Preindictment Delay

{¶4} The trial court subsequently held a hearing on Knox's motion to dismiss for preindictment delay. At the hearing, Knox testified that in August 1999, he and his friends RaShawn Mosley and James Campbell would drive around Cleveland and look for prostitutes who would exchange sex for drugs.

{¶5} Knox said that he recalled having consensual sex with a female prostitute on August 24, 1999, at 7907 Cedar Avenue, but denied using any force or physical violence during this encounter. Knox also admitted to having consensual sex with a female prostitute in the area of East 37th Street and Community College Avenue on August 31, 1999, and denied using any force or violence during this encounter. He said that Mosley and Campbell were with him when he made arrangements to pay both prostitutes and observed him having sex with them. Knox testified that Mosley and Campbell also had sex with the prostitutes but said they used condoms, while he did not.

{¶6} On cross-examination, Knox admitted that he was not with Mosley and Campbell every day in August 1999. He also said that he could not remember specifically what he did every day in August 1999; he just remembered the incidents described above because he recognized the addresses.

{¶7} Knox said his DNA was swabbed in 2006 while he was incarcerated at the Lorain Correctional Institution. He said that in 2007, two Cleveland police detectives met with him at the Wayne County Jail in Detroit, Michigan, and told him that his DNA had come up in a CODIS hit in a cold case.^{[ ]} Knox testified that he was not indicted until 2016, however, and by that time, both Mosley and Campbell were dead. Knox provided the death certificates of both Mosley and Campbell to the court.

{¶8} Christina Cottom, a detective with the Cleveland police department sex crimes and child abuse unit, testified that in September 2006, she was advised by CODIS that Knox's DNA had been linked to the rape kit in P.H's case. CODIS requested an additional DNA sample from Knox for re-examination to confirm the CODIS hit. Det. Cottom testified that she tried to find P.H. in order to interview her and have her look at a photo array of possible suspects, but although she went to several homes and spoke with several people, was unable to locate her. Det. Cottom testified that because she could not locate P.H., the case was held in abeyance, per departmental policy, and no confirming DNA swab was taken from Knox.

{¶9} Det. Cottom testified that in July 2014, she was advised that the DNA in J.S.'s rape kit matched Knox's. Det. Cottom said that was the first time that the Cleveland Police Department was aware that Knox was potentially involved in two rapes. Det. Cottom testified that she does not know why there was a 15-year delay between J.S.'s rape and the testing of her rape kit, but said her kit was likely finally tested as part of Ohio's Sexual Assault Kit Initiative. She admitted, however, that Knox's DNA was in the CODIS system as of 2006.

{¶10} After the hearing, the trial court denied Knox's motion to dismiss for preindictment delay. Immediately prior to trial, the court heard arguments regarding Knox's motion for relief from prejudicial joinder; the court denied the motion.

B. Trial

1. Testimony Regarding J.S. {¶11} J.S. testified at trial that she was 40 years old on August 31, 1999. She admitted that she was using alcohol and crack cocaine every few days in August 1999, and would sometimes exchange sex for drugs. She said that as she was walking home around 3:00 a.m. on August 31, 1999, in the area of East 37th Street and Community College Avenue, she “ran into a guy,” and started talking to him.

When she asked the male if he got high, he told her to follow him and he would “hook her up.”

{¶12} J.S. said that they began walking together, but when they walked by a field, the male suddenly grabbed her arm, knocked her down, and forced her to lie face down on the ground. She said that he punched her in the face every time she tried to look up and told her, “shut up, keep your head down, I'll kill you.” J.S. said he pulled her pants down, forcibly inserted his penis in her vagina, and ejaculated. She said that when he was finished, he hit her again, told her not to move, and then ran away.

{¶13} J.S. testified that she went home and called her boyfriend, who picked her up and took her to St. Vincent Hospital where a rapekit examination was performed. J.S. said that the police interviewed her at the hospital, and she told them that she did not know her attacker. She testified that she then heard nothing from the police about the incident until 2015, when a police investigator appeared at her door to interview her.

{¶14} J.S. testified that on August 12, 2015, the police showed her a photo array but she was unable to identify her attacker. However, she identified Knox in court as the man who raped her, stating, “I know what he look like now. I mean, it's been years, but when I seen the lineup and it all came back to me.” On cross-examination, J.S. admitted that although she could not identify Knox at first in the photo array as her assailant, “they [i.e., the police investigators] kind of like guided me” and helped her remember.

{¶15} Heather Bizub, a forensic scientist with Ohio's Bureau of Criminal Investigation (“BCI”), testified that J.S.'s rape kit was submitted to the BCI laboratory in November 2013 with a request for DNA analysis. Bizub said that on May 8, 2014, she generated a report indicating there was DNA from one male on the vaginal samples from the rape kit. She testified that Knox's DNA sample was submitted to BCI in March 2018, and in April 2018, she generated a report indicating that Knox's DNA was consistent with the DNA found on the vaginal samples in J.S.'s rape kit.

{¶16} Dr. Thomas Collins testified that he treated J.S. in MetroHealth's Emergency Department on August 31, 1999. He said that she reported to the Emergency Room at 7:40 a.m., complaining that she had been attacked by an unknown assailant, beat in the face with a fist, and vaginally penetrated by an assailant who was not wearing a condom. J.S.'s diagnosis was sexual assault, shoulder dislocation, eye trauma, contusions, and abrasions. Dr. Collins testified that the Emergency Room triage notes indicated that J.S. was teary and fearful about going home. The notes also indicated that a sexual assault kit was collected from J.S., including oral and vaginal swabs.

{¶17} Sonya Dziuba, an investigator with the Cuyahoga County Prosecutor's Office, testified that she was assigned to investigate J.S.'s case in 2015. She accompanied investigator Gary Harris to J.S.'s residence on August 12, 2015, where they showed her a photo array. She said that J.S. did not identify anyone from the array as her assailant and wrote “I'm not sure” on the array. She said it was only after the photo array process was completed that investigator Harris guided J.S. to Knox's picture on the array.

2. Testimony Regarding P.H.

{¶18} George Sakellakis testified that he worked as a paramedic for the city of Cleveland EMS in August 1999. He said he responded to P.H.'s residence at 3:32 a.m. on August 24, 1999, regarding a call that a female had been raped. Sakellakis testified that he interviewed P.H. to ascertain what had happened and what medical treatment she needed. He said that P.H. told him that as she was walking down the street, a male grabbed her by the neck, dragged her behind some bushes, choked her, threw her to the ground, and sexually assaulted her. P.H. also told him that her assailant hit her face and torso with his fist, and when she tried to resist, he choked her. According to Sakellakis, P.H. said that the assailant then raped her and ejaculated inside her.

{¶19} Cleveland

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