REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE On September 6, 2018, pro se Petitioner Ennis R. Patterson ("Petitioner") executed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was filed with this Court on September 13, 2018. ECF Dkt. #1. Petitioner is currently incarcerated at the Belmont Correctional Institution in Chillicothe, Ohio and is seeking relief for alleged constitutional violations that occurred during his trial in the Cuyahoga County Common Pleas Court, where he was convicted of Kidnapping with sexual motivation and sexual violent predator specifications, and Gross Sexual Imposition with sexual violent predator specifications. Id.; ECF Dkt. #1; ECF Dkt. #8-1 at 11. On February 28, 2019, David Gray, Warden of the Belmont Correctional Institution (Respondent"), filed a return of writ. ECF Dkt. #8. Petitioner filed a "Response" to the return of writ, and a Traverse/Motion for Summary Judgment, parts of both which shall be considered as a Traverse. ECF Dkt. #9, 10, 12, 13.
Petitioner has also filed the following motions: "Motion to Ensure Proper Establishment of Subject Matter Jurisdiction" (ECF Dkt. #14); Motion for Bond (ECF Dkt. #16); "Motion to Expedite Judgment Due to Unforeseen Circumstances" (ECF Dkt. #19); and "Motion to Expedite Judgment Due to Unforeseen Circumstances (Amended)" (ECF Dkt. #23).
For the following reasons, the undersigned RECOMMENDS that the Court deny Petitioner's "Motion to Ensure Proper Establishment of Subject Matter Jurisdiction" (ECF Dkt. #14) and DISMISS his federal habeas corpus petition in its entirety with prejudice due to noncognizable and procedurally defaulted grounds for relief. ECF Dkt. #1. In addition, the undersigned recommends that the Court DENY AS MOOT Petitioner's above-mentioned motions. ECF Dkt. #s 16, 19, 23.
The Ohio Eighth District Court of Appeals set forth the facts of this case on direct appeal. ECF Dkt. #8-11 at 76. These binding factual findings "shall be presumed to be correct," and Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. §2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6thCir. 1998), cert. denied, 119 S.Ct. 2403 (1999). As set forth by the Eighth District Court of Appeals, the facts are:
[*P4] On May 25, 2016, D.N. was babysitting B.T.'s and Z.T.'s children at B.T.'s house. D.N. testified that, as he was cooking dinner, he overheard D.D., one of B.T.'s children, discussing sexually explicit things with another child. Alarmed, D.N. demanded to know what D.D. was talking about. D.D. told D.N. that Patterson had touched his private parts while babysitting D.D., C.J., and a number of other children at B.T.'s house on April 16, 2016.
[*P5] D.N. testified that he immediately tried calling D.D.'s grandmother, C.T., who actually showed up at the house a few moments later. After D.N. told C.T. what D.D. said, C.T. testified that she spoke to D.D., who repeated the story he told to D.N. Becoming extremely upset, C.T. walked over to Patterson's mother's house, where Patterson was staying. After having her knocks go unanswered, C.T. testified that she called B.T. and Z.T., telling them to come to B.T.'s house immediately.
[*P6] C.T. testified that while she and D.N. waited for B.T. and Z.T. to arrive, she called and spoke to M.S., her cousin, on the phone asking her to come to the house. Around the same time, B.T.'s cousin, M.J., happened to stop by the house, during which time she also spoke to D.D. and learned about the allegations against Patterson.
[*P7] Once B.T. and Z.T. arrived and learned what was going on, Z.T. spoke to D.D. and became enraged. Z.T. and C.T. testified that the adults discussed whether to call the police or go get Patterson themselves. C.T. testified that amidst this discussion, she independently decided to call the police.
[*P8] C.T. testified that the first police department she was able to successfully contact was the Cleveland Metropolitan Housing Authority ("CMHA"). Dispatched to the scene for a report of unattended children, CMHA Officer Dustin Kubiak testified that he arrived to discover that the report actually concerned a sexual offense against a child. Following protocol, Officer Kubiak alerted the Cleveland Police Department ("CPD"), which handles sexual offenses. While waiting for the CPD to arrive, Officer Kubiak testified that he spoke with C.T. and one of the aunts on scene and, based on those conversations, went across the street to Patterson's mother's house and requested that Patterson come outside. While Officer Kubiak detained Patterson and escorted him to his patrol car, C.T.testified that Patterson looked at her and said, "I told them to tell those kids to leave me alone."
[*P9] Eventually, CPD arrived on the scene, took statements from most of the adults present, and placed Patterson under arrest. CPD was unable to take an initial statement from D.D., who was sleeping at the time. CPD subsequently transferred Patterson to jail.
[*P10] Over the next two days, police interviewed Patterson twice, thoroughly questioning him about his involvement with B.T., Z.T., and their children and the allegations against him. At the beginning of both interviews, Patterson signed a form waiving his Miranda rights and spoke freely to detectives during most of the two interviews. At some point during the second interview, Patterson expressed that he wanted to speak to an attorney. Despite Patterson's request, the detectives continued to ask Patterson questions, which he continued to answer. Patterson's trial counsel did not file a motion to suppress any statements made during either interview.
[*P11] Prior to trial, the trial court held a competency hearing for both D.D. and C.J., who were allegedly in the room when Patterson touched D.D. and is the daughter of M.J. The court found both children to be competent.
[*P12] At trial, the state called D.N., C.T., M.S., and Z.T., who all recounted fairly consistent versions of the events described above. Specifically, they all testified that when they individually spoke to D.D., his accounts to each of them were consistent. The state also called D.D. to testify. D.D. testified that on April 16, 2016, he was watching a movie with his cousins at B.T.'s house when Patterson entered the room naked. According to D.D., Patterson removed D.D.'s shirt and shorts and then squeezed his private parts. D.D. also testified that later that evening, he awoke to find Patterson threatening him with an extension cord and telling him not to tell anyone what happened. The state additionally called Officer Kubiak from CMHA, Officer Hess from CPD, and Detective Vowell from CPD's Sex Crimes and Child Abuse Unit. Those witnesses corroborated the events on May 25-26, 2016, and Detective Vowell discussed his interviews with Patterson subsequent to his arrest. Patterson's trial counsel thoroughly cross-examined the state's witnesses, but did not call any witnesses on behalf of Patterson. C.J. was not called to testify by either the state or Patterson.
[*P13] The trial court found Patterson guilty on both counts in the indictment and sentenced him to 20 years to life in prison, ordered him to pay the costs and expenses of the case, and found him to be a Tier III sex offender/child offender registrant. It is from this judgment that Patterson now appeals.
ECF Dkt. #8-1 at 66-69.
In its May of 2016 term, the Cuyahoga County Grand Jury indicted Petitioner on one count of Gross Sexual Imposition in violation of Ohio Revised Code "("ORC") § 2907.05(A)(4) with a sexually violent predator specification, and one count of Kidnapping in violation of ORC §2905.01(A)(4) with a sexual motivation specification and a sexually violent predator specification. ECF Dkt. #8-1 at 6-7. Petitioner entered a not guilty plea to the indictment. Id. at 8.
Petitioner filed a waiver of his right to a jury trial and tried his case, with counsel, to the court. ECF Dkt. #8-1 at 9-10. After the trial, the court found Petitioner guilty of both counts and all specifications charged in the indictment. Id. at 11. On December 5, 2016, the trial court sentenced Petitioner to 20 years to life after merging the counts and labeled him a Tier III sex offender/child offender. Id. at 12-13.
On December 15, 2016, Petitioner, through appellate counsel, appealed to the Ohio Court of Appeals of Cuyahoga County, Eighth Appellate District. ECF Dkt. #8-1 at 14. In his appellate brief filed on June 29, 2017, Petitioner, through appellate counsel, raised the following assignments of error:
1. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
2. APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
ECF Dkt. #8-1 at 24-40. The State filed a brief in opposition. Id. at 42-63. On October 26, 2017, the court of appeals overruled each assignment of error on the merits and affirmed the judgment of the trial court. Id. at 64-83.
C. Motion for Reconsideration under Ohio R. App. Proc. 26(A) On November 28, 2018, Petitioner pro se filed a motion for reconsideration in the appellate court pursuant to Rule 26(A) of the Ohio Rules of Appellate Procedure. ECF Dkt. #8-1 at 84-87. Petitioner asserted that he could not timely file his notice of appeal to the Ohio Supreme Court because a brief to the Ohio Supreme Court would be "untruthful" and "impalpable" to file as his appellate counsel never responded to the alleged untruths in appellee's brief, never sent him a copy of the appellant's brief, and informed him incorrectly that the Ohio appellate court had not unanimously agreed when they had. Id. The State of Ohio filed an opposition brief, and on ...
