Petitioner was indicted by the Montgomery County grand jury on three counts of gross sexual imposition, one count of disseminating material harmful to juveniles, and four counts of rape, all stemming from alleged sexual abuse of Z.D. and G.R., children of his former girlfriend, between November 2001 and May 2002. He was convicted at jury trial of two counts of rape and sentenced to concurrent ten-year sentences. (Petition, Doc. No. 1, ¶¶ 1, 2, 5(a), 6(a).) He appealed to the Montgomery County Court of Appeals which affirmed the conviction on November 26, 2008. State v. Molen, 2008 Ohio 6237, 2008 Ohio App. LEXIS 5220 (2nd Dist. Nov. 26, 2008). Id. at ¶ 9(a),(b), and (c). He sought further review by the Ohio Supreme Court which declined to exercise jurisdiction on April 22, 2009. Id. at ¶ 9(e), State v. Molen, 124 Ohio St. 3d 1478 (2010). He also filed an Application to Reopen Direct Appeal which was denied on November 12, 2009, and the Ohio Supreme Court declined further review. Id. at ¶ 11(a). His petition for post-conviction relief in the trial court was denied on March 16, 2009, and the dismissal was affirmed on appeal. Id. at ¶¶ 11(b), 11(c), State v. Molen, 2010 Ohio 1908, 2010 Ohio App. LEXIS 1585 (2nd Dist. Apr. 30, 2010).
Pursuant to this Court's Order under Rule 4 of the Rules Governing § 2254 Cases, Respondent filed a Return of Writ (Doc. No. 7). Petitioner has now filed his reply, denominated asthe Traverse (Doc. No. 15).
Respondent asserts that all Grounds for Relief in the Petition, except for Grounds Two and Seven, are procedurally defaulted.
The procedural default defense in habeas corpus is described by the Supreme Court as follows:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107 (1982). Absent cause and prejudice, a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Wainwrightreplaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. Eley v. Bagley, 604 F.3d 958 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407 (2001).
First the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.
Maupin,785 F.2d at 138.
In his First Ground for Relief, Petitioner asserts he was denied due process by the admission of crucial inculpatory testimony by an incompetent witness, Z.D. The relevant portion of the court of appeals opinion on direct appeal is as follows:
[*P7] In his first assignment of error, Molen contends the trial court committed plain error by conducting a deficient pre-trial competence examination of Z.D. In particular, Molen claims the trial court failed to question Z.D. about his ability to recall events that took place around the time of his abuse. Molen asserts that questioning Z.D. about his ability to recall relatively recent events was insufficient. This is so, Molen reasons, because Z.D. was not being evaluated so he could testify about events from his recent past. Instead, nine-year-old Z.D. was being evaluated so he could testify about abuse that allegedly occurred in 2002 when he was five years old. Therefore, Molen argues that the relevant inquiry was whether Z.D. accurately could perceive and recall events from that time period.
[*P8] Molen's assignment of error implicates Evid.R. 601, which provides: "Every person is competent to be a witness except: (A) * * * children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly."
[*P9] "In determining whether a child under ten is competent to testify, the trial court must take into consideration (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful." State v. Frazier (1991), 61 Ohio St.3d 247, 251, 574 N.E.2d 483. "The determination of whether a child under ten is competent to testify is within the sound discretion of the trial court." Baird v. Gillispie (Jan. 21, 2000), Miami App. No. 99-CA-12, 2000 Ohio App. LEXIS 114. In the present case, defense counsel did not object to the trial court's competence determination. Therefore, Molen recognizes that he must demonstrate plain error in the trial court's finding that Z.D. was competent to testify. An error qualifies as plainerror only if the error is obvious and but for the error the outcome of the proceeding clearly would have been otherwise. State v. Alexander, Montgomery App. No. 22278, 2008 Ohio 4131, P27.
[*P10] Having reviewed the record, we find no plain error in the trial court's competence determination. A hearing transcript reflects that the trial court questioned Z.D. primarily about his ability to recall things from the recent past. The trial court asked only two questions even approaching the time frame of the alleged abuse. Those questions concerned where Z.D. went to kindergarten and the name of his kindergarten teacher. Z.D. answered both of those questions without difficulty. At the time of the alleged abuse, however, Z.D. was in preschool, not kindergarten. Trial testimony from Z.D.'s mother pinpointed the alleged abuse to have occurred between January and March of 2002. Z.D.'s mother testified that she, Molen, and her children moved into the house where the abuse occurred in January 2002. (Trial transcript at 134). She subsequently ended her relationship with Molen in March 2002. (Id. at 154). During the January-to-March time period, Z.D. attended preschool. (Id. at 140-141). He did not begin kindergarten until August or September 2002. (Id. at 159). Assuming a traditional school year, Z.D. did not finish kindergarten until around June 2003. Therefore, Z.D. began kindergarten at least several months after the abuse had ended, and he completed kindergarten well over a year after the abuse had stopped.
[*P11] In our view, Z.D.'s ability to state where he attended kindergarten and the name of his teacher did not adequately establish his ability to recall accurately events from the time period of the alleged abuse. As set forth above, the relevant inquiry is whether a child can receive accurate impressions of fact or observe the "acts about which he or she will testify" and recall "those impressions or observations." Frazier, 61 Ohio St.3d at 251; see
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