Ross v. Kelley
| Citation | 662 F.Supp.2d 903 |
| Decision Date | 05 October 2009 |
| Docket Number | Case No. 5:08 CV 2889. |
| Parties | Denny F. ROSS, Petitioner, v. Bennie KELLEY, Warden, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
Jacob A. Cairns, Upper Arlington, OH, for Petitioner.
Hilda Rosenberg, Office of the Attorney General, State of Ohio, Cincinnati, OH, for Respondent.
This matter comes before the Court upon the Report and Recommendation of Magistrate Judge George J. Limbert. The Report and Recommendation, filed on September 16, 2009, is ADOPTED by this Court (ECF # 10), and Petitioner's Petition for Writ of Habeas Corpus, filed on December 9, 2008 pursuant to 28 U.S.C. § 2254, is denied (ECF # 1).
Pursuant to Local Rule 72.2, this matter was referred to Magistrate Judge Limbert for the preparation of a report and recommendation. On September 16, 2009, Magistrate Judge Limbert recommended that this Court dismiss Petitioner's Petition with prejudice. On September 28, 2009, Petitioner filed objections to the Report and Recommendation. (ECF # 11.)
The Court has reviewed the Report and Recommendation de novo. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Moreover, it has considered all of the pleadings, affidavits, motions, and filings of the parties. Despite Petitioner's assertions to the contrary, the Court finds Magistrate Judge Limbert's Report and Recommendation to be well-written, well-supported, and correct. The Court likewise finds Petitioner's objections to the Report and Recommendation to be lacking in merit. Therefore, the Report and Recommendation is ADOPTED in its entirety (ECF # 10), the Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE (ECF # 1), and Petitioner's objections are thereby DENIED (ECF # 11).
Furthermore, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); FED. R.APP. P. 22(b).
IT IS SO ORDERED.
Report and Recommendation of Magistrate Judge
Petitioner Denny F. Ross ("Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF Dkt. # 1. Petitioner seeks relief for alleged constitutional violations that occurred during his Summit County, Ohio Court of Common Pleas conviction for Attempted Murder, Rape, Intimidation of a Crime Victim, and two counts of Felonious Assault. ECF Dkt. #1. On January 27, 2009, Respondent Bennie Kelley ("Respondent") filed an answer. ECF Dkt. #8. February 13, 2009, Petitioner filed a traverse. ECF Dkt. #9.
The case was referred to the undersigned for a Report and Recommendation. For the following reasons, the undersigned RECOMMENDS that the Court DISMISS the petition in its entirety with prejudice:
I. SYNOPSIS OF THE FACTS
The Ninth District Court of Appeals of Ohio set forth the facts of this case on direct appeal. 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 (6th Cir.1998), cert. denied, 527 U.S. 1040, 119 S.Ct. 2403, 144 L.Ed.2d 802 (1999). As set forth by the Ninth District Court of Appeals, the facts are:
{¶ 3} Defendant's indictment stemmed from an incident that occurred in the early morning hours of June 16, 2004. The victim J.T., testified that the following events occurred. J.T. had a fight with her boyfriend, Jason Larue, and she decided to go out to a bar as a result. At the bar, she began a conversation with Defendant and two people who were with Defendant, Dannie Yeager and Karri Labut. The evening began with the foursome drinking together at the Station House 319 bar. The four then decided to leave to shoot pool at another bar. The four stayed at the second bar, Rumors, for a period of time and then returned to Station House 319 to purchase beer. Following the beer purchase, the four went to J.T.'s home. The four remained at J.T.'s home until approximately 2:00 a.m.
{¶ 4} At roughly 2:00 a.m., Mr. Yeager and Ms. Labut left J.T.'s residence. Defendant, however, remained at the home. J.T. testified that upon reentering the house from watching the others leave, Defendant attacked and raped her. As a result of the brutal attack, J.T. suffered multiple injuries including a laceration to her face and a broken jaw. At trial, J.T. testified that she believed that the laceration was caused by a knife during the attack. In addition, J.T. testified that she was choked while Defendant raped her. She went on to state that following the attack, Defendant took a picture of her children from her house, threatening to kill them if she called the police. Based upon these facts, Defendant was indicted and brought to trial.
ECF Dkt. # 8, Ex. 12; State v. Ross, Case Nos. 22447, 22598, 2005 WL 2401611 at ¶¶ 3-4 (Ohio App. 9 Dist., Sept. 30, 2005), unreported.
II. PROCEDURAL HISTORY
On June 28, 2004, the Summit County, Ohio prosecuting attorney filed an indictment charging Petitioner with: one count of Attempted Murder, in violation of R.C. 2903.02(A)/2903.02, a felony of the first degree; one count of Kidnapping, a violation of R.C. 2905.01(A)(3)/(4), a felony of the first degree; one count of Rape, in violation of R.C. 2907.02(A)(2), a felony of the first degree; one count Felonious Assault, in violation of R.C. 2903.11(A)(1), a felony of the second degree; one count of Intimidation of Crime Victim or Witness, in violation of R.C. 2921.04(B)(3), a felony of the third degree; one count of Petty Theft, in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree. ECF Dkt. # 8, Ex. 1. On August 16, 2004, the prosecuting attorney filed a supplemental indictment charging Petitioner with one count of Kidnapping, in violation of R.C. 2905.01(A)(2), a felony of the first degree; one count of Kidnapping, in violation of R.C. 2905.01(A)(4), a felony of the first degree; one count of Aggravated Robbery, in violation of R.C. 2911.01(A)(1), a felony of the first degree; and one count of Felonious Assault, in violation of R.C. 2903.11(A)(2), a felony of the second degree. ECF Dkt. # 8, Ex. 2.
On October 25, 2004, the case proceeded to a jury trial. ECF Dkt. #8, Ex. 5; Attach. # 11-18 (trial transcript, hereinafter "Tr."). On November 1, 2004, at the prosecuting attorney's request, the trial court dismissed two charges of Kidnapping and one count of Petty Theft. ECF Dkt. # 8, Ex. 5. On November 2, 2004, the jury convicted Petitioner of Attempted Murder in violation of R.C. § 2903.02(A), Rape in violation of R.C. § 2907.02(A)(2), Felonious Assault in violation of R.C. § 2903.11(A)(1), Felonious Assault in violation of R.C. § 2903.11(A)(2), Intimidation of Crime Victim or Witness in violation of R.C. § 2921.04(b), and Kidnapping in violation of R.C. § 2905.01(A)(4). ECF Dkt. # 8, Ex. 5. The jury found Petitioner not guilty of Aggravated Robbery. ECF Dkt. # 8, Ex. 5.
Petitioner filed a motion for judgment of acquittal and a motion for a new trial pursuant to Ohio Rules of Criminal Procedure 29(C) and 33, respectively. ECF Dkt. # 8, Ex. 6, 7. On December 2, 2004, the trial judge denied petitioner's motions. ECF Dkt. # 8, Ex. 8. He then sentenced Petitioner to 8 years of imprisonment for Attempted Murder, 8 years of imprisonment for Rape, 8 years of imprisonment for Felonious Assault on each of two counts, 8 years for Kidnapping, and 1 year of imprisonment for Intimidation of Crime Victim or Witness. Id. The trial judge merged Petitioner's sentence for Rape and Kidnapping for a total sentence of 8 years between the two counts. Id. He then imposed concurrent sentences for the two Felonious Assault convictions, with that combined term and all other convictions to be served consecutively for a total of 25 years of imprisonment. Id. The trial judge also adjudged Petitioner to be a sexual predator. Id. On March 8, 2005, the trial court resentenced Petitioner in order to inform him of his post release control obligations. ECF Dkt. # 8, Ex. 9.
On March 29, 2005, Petitioner filed a notice of appeal from the Summit County Court of Common Pleas conviction. ECF Dkt. # 8, Ex. 10. On May 31, 2005, Petitioner filed a brief in support of his direct appeal, raising the following assignments of error:
1. All of the convictions returned against appellant must be reversed Because [sic] extensive pretrial publicity resulted in a violation of his impartial jury rights under the due process clause of the Fourteenth Amendment to the Federal Constitution and Article I, § 10 of the Ohio Constitution.
2. The conviction of attempted murder returned against appellant must be vacated with prejudice because the evidence submitted at trial was constitutionally inadequate to sustain a finding of guilt. Petitioner is therefore entitled to relief under the due process clause of the Fourteenth Amendment to the Federal Constitution and Article I § 10 of the Ohio Constitution.
3. The conviction of attempted murder must be reversed because the State of Ohio knowingly, deliberately and unlawfully deprived appellant of a meaningful opportunity to meet the State's case against him by concealing the specific allegation of strangulation made by the complaining witness until she testified on direct examination. Petitioner is therefore entitled to relief under the due process clause of the Fourteenth Amendment to the Federal Constitution and Article I § 10 of the Ohio Constitution.
4. All of the convictions returned against appellant must be reversed because the failure of the State to disclose J.T's grand jury testimony and the refusal of the Trial Court to permit inspection of her grand jury testimony violated the requirements of...
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