Mangus v. Edwards, 1:97 CV 1981.
| Citation | 40 F.Supp.2d 908 |
| Decision Date | 15 March 1999 |
| Docket Number | No. 1:97 CV 1981.,1:97 CV 1981. |
| Parties | Herbert MANGUS, Petitioner, v. Ron EDWARDS, Warden, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
David L. Doughten, Cleveland, OH, for Herbert Mangus, petitioner.
Lillian B. Earl, Office Of The Assistant, Attorney General, Laurence Snyder, Office Of The Attorney General, Cleveland, OH, for Ron Edwards, Warden, respondents.
This matter comes before the Court upon the Report and Recommendation of Magistrate Judge David S. Perelman. For the reasons stated below, the Report and Recommendation (Document # 14) is ADOPTED and the Petition for Writ of Habeas Corpus (Document # 1) is DENIED and the Petition is DISMISSED.
Petitioner, Herbert Mangus, filed this Petition for Writ of Habeas Corpus on July 30, 1997, challenging the constitutionality of his conviction for rape, pursuant to OHIO REV. CODE § 2907.02, in a March 1994 state jury trial. Petitioner names Ron Edwards, Warden of the Ross Correctional Institution, as Respondent. Petitioner was sentenced for a term of ten to twenty-five years.1
Petitioner appealed to the Court of Appeals of Ohio, Eighth District, raising the following assignments of error: (1) the evidence is constitutionally insufficient to sustain a conviction of rape in violation of R.C. § 2907.02 pursuant to count one of the indictment; (2) the trial court erred when it admitted out of court statements made by a witness, where no exception to Evid. R. 802 applied; and, (3) the appellant was not afforded effective assistance of counsel at trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. The court of appeals affirmed the conviction, but remanded the case to the trial court to correct an error in sentencing; the ten to twenty-five year sentence for rape is to run consecutive, not concurrent, to the eighteen month sentence for having a weapon while under disability.
Petitioner appealed the decision of the court of appeals to the Supreme Court of Ohio. In his Memorandum in Support of Jurisdiction, Petitioner argued three propositions of law: (1) where an accused does not use force or the threat of force and there is no evidence of such there can be no conviction of rape in violation of R.C. § 2907.02; (2) statements made with sufficient time to allow for reflective thought are inadmissible hearsay under Evid. R. 803; and, (3) failure to request a jury instruction for the lesser included offense of sexual battery where the facts mandate such an instruction constitutes ineffective assistance of counsel. On July 31, 1996, the Supreme Court of Ohio denied leave to appeal on the basis that the appeal did not involve any substantial constitutional question.
On July 30, 1997, Petitioner filed this Petition for Writ of Habeas Corpus, raising the following three grounds for relief:
A. Ground one: The evidence was insufficient to sustain a conviction of Rape in violation of the Fifth and Fourteenth Amendments.
Supporting FACTS (state briefly without citing cases or law): Viewing the evidence in a light most favorable to the state, there is no evidence that the petitioner forced intercourse upon the victim. The victim merely stated that the petitioner "put his penis in my vagina."
B. Ground two: The trial court allowed inadmissible hearsay in violation of the Sixth, Fifth and Fourteenth Amendments.
Supporting FACTS (state briefly without citing cases or law): The trial court allowed a witness to testify that the victim made a statement days after the incident regarding the petitioner's actions. This statement was improperly classified as an excited utterance.
C. Ground three: The petioner's [sic] trial counsel did not afford the petitioner effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments.
Supporting FACTS (state briefly without citing cases or law): Trial counsel failed to request a lesser included offense instruction on the offense of sexual battery even though the evidence could only support a conviction of this lesser offense.
The following factual history is recited from the opinion of the state court of appeals. It is a reasonable determination of the facts and is consistent with the trial transcript, which the Court has reviewed, and, therefore, is entitled to a presumption of correctness, unless Petitioner shows that it is unreasonable by clear and convincing evidence. See 28 U.S.C. §§ 2254(d)(2); (e)(1).
On May 28, 1993, Elizabeth came home from school at 3:30. She told her mother about her day and was particularly excited about bowling with her class. Elizabeth changed her clothes and left the house to play with the children in the neighborhood at about 4:00. It was a warm day. Elizabeth was wearing shorts, a t-shirt and tennis shoes.
At approximately 4:30 Molley Allooh, who knew Elizabeth well, spoke with her briefly in the Alloohs' front yard. [Petitioner] lived next door to the Alloohs. Mrs. Allooh saw Elizabeth in [Petitioner's] yard as Mrs. Allooh went inside to care for her four children. An hour and a half later Mrs. Allooh was tending to her dinner on the grill when her son went to [Petitioner's] house to ask if he could retrieve the ball the boy had inadvertently sent into [Petitioner's] backyard. [Petitioner] came to the back gate to let Mrs. Allooh's son into the yard. Mrs. Allooh saw [Petitioner] and also Elizabeth following behind him. Elizabeth was shaking her hands as she did when she became agitated. Most strikingly, however, Mrs. Allooh noted that Elizabeth was wearing her shorts with both legs coming through one of the leg holes. Elizabeth had not been dressed as such earlier when Mrs. Allooh had spoken with her. Mrs. Allooh ran to [Elizabeth's] home, about ten houses down the street, to have Mrs. Peura [Elizabeth's mother] come get her daughter. On her way back home, Mrs. Allooh passed Elizabeth walking in the direction of her own home.
Mrs. Peura asked Elizabeth several questions before deciding that the Lakewood police should be notified. Elizabeth has difficulty communicating and her mother testified that Elizabeth did not in fact tell her what happened on that day. On cross-examination, the defense asked if Elizabeth had talked to her mother on the day of the incident about what happened. Mrs. Peura responded that Elizabeth had not because it was very late by the time they came home from the hospital. On re-direct Mrs. Peura explained that Elizabeth told her later that [Petitioner] had touched her "back here," and had told her to be quiet. (TR. 235).
Investigator Lawrence Ambrose came to the house and interviewed Elizabeth. He testified that Elizabeth told him "that she was sitting on the couch with him [Petitioner], and that he showed her some photos of himself, and that she also said for awhile, she was holding a red ball, and that the man took her shorts off." (TR. 247). Elizabeth told Ambrose that the man touched her "butt" and indicated her buttocks, vagina and upper legs. (TR. 247). According to Ambrose's testimony, Elizabeth "pointed toward her vagina and she said `hurt.'" (TR. 248). Furthermore, she told him "one time he yelled at her when she was making too much noise." (TR. 248). Ambrose transported Elizabeth to Lakewood hospital.
On a video taped deposition, played to the jury, Dr. Nelson testified that he performed an examination of Elizabeth on that evening and took samples from Elizabeth's body for the rape kit, which was sent for testing at the Bureau of Criminal Investigation ("BCI"). Dr Nelson testified from his written record of the examination. In his notes Dr. Nelson had written, "patient states that she was sexually penetrated and ejaculated on by a known person." (Dep.9). Dr. Nelson saw what appeared to be semen on Elizabeth's introitus and clitoris and in a vaginal pool, located at the top of the vaginal canal. He noted some abrasions on the vaginal walls. Although Dr. Nelson could not state that the abrasions were fresh, he testified that the abrasions or tears, such as these, heal within forty-eight hours. Dr. Nelson also noted that the hymen was not intact. Elizabeth became uncooperative at the end of the examination so Dr. Nelson was unable to do a "wet prep," where the sample of the fluids from her vagina could be examined under a microscope for the presence of semen or spermatozoa. The samples taken by swabs and smears from the vagina, anus and mouth were sent to BCI. Dr. Nelson was asked by the prosecution if his findings were consistent with sexual penetration. He responded, "Yes." (Dep.33).
James Wurster from BCI testified that he performed tests on the samples sent to him from the physical examination of Elizabeth and also on the bed sheets and clothing articles recovered from [Petitioner's] house. Wurster found no traces of semen on any of the articles or from the samples taken by Dr. Nelson. Neither did Wurster find anything of significance in the scraping taken from Elizabeth's fingernails. Wurster testified that it is quite rare to find evidence from fingernail scrapings.
While Elizabeth was at Lakewood Hospital, [Petitioner] was arrested and his house was searched pursuant to a search warrant. Officer Beno transported [Petitioner] to the Lakewood jail and conducted a search of [Petitioner's] person at the jail. Beno testified that he noted fresh scratches on [Petitioner's] back, near the shoulder blade area which "appeared to be from somebody's fingernail." (TR. 363). Detective Robinson searched [Petitioner's] house and took as evidence bedding which had been described by Elizabeth as being a flower print. Robinson did not find any pictures of [Petitioner] which might have been described by Elizabeth as she told Investigator Ambrose. Nor did Robinson see a red ball during the search. However, Sergeant Fred Wellman testified to having seen a bowling ball in a bowling bag in...
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