Dorsey v. Banks (749 F. Supp. 2d 715, 2010)

Citations

749 F. Supp. 2d 715

Full opinion text

OPINION AND ORDER

GREGORY L. FROST, District Judge.

Petitioner, a state prisoner, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Magistrate Judge has recommended that a conditional writ be granted on one of Petitioner’s claims. Respondent objects to that recommendation, and Petitioner objects to the recommendation that his other grounds for relief be found to be without merit. He also requests that the relief recommended by the Magistrate Judge be converted to an unconditional writ. The Licking County prosecuting attorney has also moved to intervene for the purpose of asserting objections, That motion, which Petitioner, opposes, will be denied and the objections filed by the Licking County Prosecuting Attorney will be stricken. For the following reasons, and after a de novo review of all of the objections, the Court overrules all pending objections and grants a conditional writ of habeas corpus to petitioner.

I. PROCEDURAL HISTORY

The procedural history of this case was accurately summarized in the Report and Recommendation. Petitioner was indicted on six felony counts involving having sexual contact or engaging in sexual conduct with his mother-in-law, Bonnie Parker. Following a jury trial, Petitioner was found guilty of one count of rape and three counts of gross sexual imposition. As more fully discussed below, two of the rape counts were dismissed by the state court at the conclusion of the state’s case. As to the counts on which a conviction was obtained, the trial judge sentenced Petitioner to a ten-year term of imprisonment on the rape count and one-year terms of imprisonment on the three gross sexual imposition counts, with all sentences running concurrently. His conviction was affirmed on appeal, see State v. Dorsey, No. 2007-CA-091, 2008 WL 2571851 (Licking Co.App. May 23, 2008) and the Ohio Supreme Court denied review. Petitioner’s federal habeas corpus petition asserts five claims:

1. Petitioner’s convictions for one count of rape and three counts of gross sexual imposition of a “substantially impaired” victim are not supported by evidence sufficient to satisfy the Due Process Clause of the Fifth and Fourteenth Amendments.

2. Lack of differentiation between the counts of the indictment, an ambiguous partial-acquittal ruling, and overbroad jury instructions deprived Petitioner of his Fifth and Fourteenth Amendment right to adequate notice of the charges, and the ability to prepare a defense and protect himself against double jeopardy.

3. The admission of the alleged victim’s testimonial statements made during a forensic interview accusing Petitioner of sexual assault violated his Sixth and Fourteenth Amendment right to confront and cross-examine his accuser.

4. Repeated instances of prosecutorial misconduct and overreaching denied Petitioner his right to due process and a fundamentally fair jury trial under the Fifth, Sixth and Fourteenth Amendments.

5. Trial counsel’s deficient performance denied Petitioner his Sixth and Fourteenth Amendment right to the effective assistance of counsel.

The Report and Recommendation found the second claim to be meritorious and recommended that relief in the form of a conditional writ be granted on that claim.

II. THE MOTION TO INTERVENE

After the Report and Recommendation was issued, the Licking County Prosecuting Attorney moved to intervene in this case for the purpose of filing objections. Although, by the time the motion was filed, Respondent had already objected to the proposed grant of relief, the prosecuting attorney argued that because his office will have to conduct any retrial of Petitioner, he has an interest in the case, and that he wishes to advance arguments not made by the Ohio Attorney General’s Office on behalf of Respondent. Respondent has not objected to the motion, but petitioner has, pointing out that the prosecuting attorney is not a proper party to a habeas corpus proceeding and that the Ohio Attorney General is competent to address the issues raised by the petition and the Report and Recommendation.

The prosecuting attorney cites to a single case as authority for his motion. That case, D’Ambrosio v. Bagley, 619 F.Supp.2d 428 (ND.Ohio 2009), granted the request of the Cuyahoga County prosecutor to intervene in a habeas corpus action. The request was not opposed by any party, however, and appears to have been granted for the limited purpose of allowing the prosecutor to argue for an extension of the date by which the petitioner was to be retried following the grant of a writ. Thus, that case has little precedential value.

It is not entirely clear that Fed.R.Civ.P. 24, under which the county prosecutor seeks to intervene, should be applied in habeas corpus proceedings. Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts provides that the Federal Rules of Civil Procedure may be applied in habeas cases “to the extent that they are not inconsistent with any statutory provisions and these rules .....” Rule 2(a) provides that the state officer who has custody of a petitioner must be named as a respondent. It says nothing about other parties beyond the petitioner and the respondent. Because a number of courts (see, e.g., Saldano v. Roach, 363 F.3d 545 (5th Cir.2004); Rodriguez v. Ridge, 290 F.Supp.2d 1153 (C.D.Cal.2003)) have analyzed a request to intervene in a habeas corpus action under Rule 24, however, this Court will do likewise.

The Saldano decision is instructive in this regard. There, the court, in determining that a district attorney should not be allowed to intervene in a habeas corpus case, cited to Texas law that, like Ohio law, mandates representation of the State by the Attorney General’s office. The court concluded that the State of Texas was the real party in interest in a habeas corpus proceeding and that only the Attorney General was allowed to represent that interest. Thus, the district attorney had no legal interest in the case even if the burden of retrial were to fall on his shoulders. Even if that were not the case, the court held that the district attorney had not demonstrated that the Attorney General was not capable of adequately representing his interests, so that the denial of intervention was justifiable on that ground as well.

The same factors apply equally in this case. It is the job of the Ohio Attorney General to represent the State of Ohio in habeas corpus proceedings where a petitioner is in state custody. See Ohio Rev. Code § 109.02. There has been no showing that the Attorney General cannot discharge that duty effectively here. As Judge Zouhary observed in McDonald v. Warden, Case No. 3:08 CV 1718 (N.D. Ohio November 24, 2009), an order in which a similar motion to intervene filed by the Erie County prosecuting attorney was denied, the basis of the motion to intervene was to permit the prosecutor “to make an argument against habeas relief that the Ohio Attorney General’s office is perfectly capable of making.” He ruled that this was not an adequate basis for intervention, and this Court agrees. The Attorney General has vigorously defended this case from the outset and has objected to the same recommendation that spurred the filing of the motion to intervene. Thus, both because the Licking County prosecuting attorney has not cognizable legal interest in the outcome of this case and because the Ohio Attorney General is statutorily charged with representing the interest of the State of Ohio in preserving Petitioner’s conviction and is able to do so adequately, the Court DENIES the motion to intervene. (Doc. #25.) It is further ordered that, in accordance with Petitioner’s motion to strike (Doc. # 30), the objection filed by the Licking County Prosecuting Attorney (Doc. # 27), which filing was never authorized by the Court, is STRICKEN.

III. PETITIONER’S OBJECTIONS— CLAIMS ONE, THREE, FOUR, AND FIVE

The basic facts of this case are quoted in the Report and Recommendation from the state appellate court opinion. They show that the investigation of Petitioner began when his mother-in-law reported on February 25, 2006, that Petitioner had raped her. Although he initially denied having any sexual contact with Ms. Parker, Petitioner eventually admitted to having had intercourse -with her and engaging in other sexual conduct. He consistently denied any use of force (a contention with which the jury agreed), however, and he also maintained that Ms. Parker, who suffered from dementia, both consented to any sexual acts that occurred and was mentally capable of forming such consent. The jury apparently disagreed with that latter contention and found Petitioner guilty of violating a statute that criminalizes both forcible rape and engaging in sexual conduct with someone whose “ability to resist or consent is substantially impaired because of a mental or physical condition .... ” Ohio Rev. Code § 2907.02(A)(1).

In his first, third, fourth, and fifth grounds for relief, Petitioner argues that the evidence was insufficient to support a conviction, that his Sixth Amendment right to confront the witnesses against him was violated by the admission of certain hearsay testimony, that the prosecutor was guilty of overreaching, and that his own counsel was constitutionally ineffective. The Report and Recommendation analyzed these claims in light of 28 U.S.C. § 2254(d), which provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Each of these claims was found wanting under this standard of review.

A. CLAIM ONE

Petitioner’s first claim raises the issue of whether the evidence presented in the state court trial was sufficient to support any of the four convictions. The state courts decided that there was enough evidence before the jury to sustain these four convictions, and the Magistrate Judge found that this decision was not an unreasonable application of the federal constitutional standard found in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In his objections, Petitioner continues to argue that Bonnie Parker’s statement to the nurse who examined her for rape, and particularly her statement that she attempted to resist Petitioner’s effort to have sexual intercourse with her, is fatally inconsistent with the state’s theory — apparently accepted by the jury — that she lacked the capacity to consent. In addition to the authority cited in his petition and traverse, Petitioner places great weight on a decision from a Kansas appellate court, State v. Ice, 27 Kan.App.2d 1, 997 P.2d 737 (2000), which held that an individual who could understand the sexual nature of the proposed act and could understand that she had the right not to participate in it necessarily had the ability to consent. He also argues that the case relied on by the Ohio appellate court, State v. Novak, No. 2003-L-077, 2005 WL 336337 (Lake Co.App. Feb. 11, 2005), is distinguishable because the victim in that case, unlike Ms. Parker, was sexually inexperienced and was unable to comprehend the sexual nature of the defendant’s conduct.

Decisions from other state courts are not, of course, dispositive as to issues of Ohio law. Here, despite Petitioner’s efforts to distinguish Novak, that case clearly held that simply because a victim may possess the ability to resist sexual contact, the same victim does not necessarily have the ability to consent to it. The court of appeals in Petitioner’s case reached the same conclusion about Ohio law, and this Court cannot second-guess that conclusion absent some indication that the Ohio Supreme Court would refuse to adopt that construction. In fact, in this case, the Ohio Supreme Court chose not to review the appellate court’s conclusion.

Petitioner points out that there is language in a 1924 decision from the Ohio Supreme Court, State v. Schwab, 109 Ohio St. 532, 143 N.E. 29 (1924), which could be used as the basis of a contrary argument. The holding of that case, however, does not conflict with the state appellate court’s holding in Petitioner’s case. For all of these reasons, the Court declines to adopt Petitioner’s proposed reading of Ohio law — namely, that a victim who, based on the evidence, may understand that a sexual act is being perpetrated on her and has the ability to put up some resistance cannot also be mentally unable to consent to that act.

The court of appeals concluded that there was evidence from which a reasonable jury could have found that Bonnie Parker lacked the ability to consent. In his objections, Petitioner specifically disavows any intent to ask this Court to weigh that evidence or resolve issues of witness credibility. For the same reasons relied on by the court of appeals and the Report and Recommendation, this Court concludes that there was evidence introduced at Petitioner’s trial that, if believed, allowed a reasonable jury to find beyond a reasonable doubt that Bonnie Parker’s dementia had progressed to the point where she was ' incapable of consenting to sexual acts with Petitioner. That being so, the Court agrees that there is no merit to Petitioner’s first claim.

B. CLAIM THREE

In his third claim, Petitioner asserts that the admission of Bonnie Parker’s statement to the S.A.N.E. nurse that she had been raped by her son-in-law violated his rights under the Sixth Amendment’s Confrontation Clause. The Magistrate Judge concluded that a Confrontation Clause violation probably occurred. Applying the deferential standard of review contained in 28 U.S.C. § 2254(d), however, the Report and Recommendation upheld the state court’s decision as being a “not unreasonable” application of clearly established federal law. The basis of that determination was the existence of some uncertainty after the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), as to what is meant by a “testimonial statement” particularly one given other than at a judicial proceeding or in response to police questioning. The Report and Recommendation noted that, at the time the state courts ruled on this issue, there was no precedent in this Circuit concerning statements given to “forensic nurses” and little precedent in other Circuits, so that a decision that such statements were not testimonial was neither contrary to nor an unreasonable application of clearly established law.

In his objections, petitioner cites to a recent Ohio Supreme Court decision, State v. Arnold, 126 Ohio St.3d 290, 933 N.E.2d 775 (2010), as evidence of the fact that the law concerning such statements was well established at the time his appeal was decided. Arnold held that “[statements made to interviewers at child-advocacy centers that serve primarily a forensic or investigative purpose are testimonial and are inadmissible pursuant to the Confrontation Clause when the declarant is unavailable for cross-examination.” Id., syllabus ¶ 1. That holding was, as Petitioner argues, based on a survey of decisions that dealt with the issue of whether such statements, if they were given to a medical practitioner but were not made for the purposes of obtaining therapy or treatment, were testimonial in nature. Some of those decisions pre-date the appeal in Petitioner’s case (although most of them do not). Nevertheless, the discussion in Arnold simply reinforces the point that the law in this area was in a state of development after Crawford, and the issue of whether statements made for dual purposes that is, for both investigative and treatment-related reasons can properly be admitted at trial if the declarant subsequently becomes unavailable, was still in flux as of 2010. The Court agrees with the Magistrate Judge that the state court ruling in Petitioner’s case, while incorrect, did not directly contradict any prior authoritative holding concerning the question of whether the statements made by Bonnie Parker to the S.A.N.E. nurse were testimonial in nature, nor did that ruling unreasonably apply Crawford or any federal cases interpreting Crawford up to that time. Therefore, Petitioner is not entitled to relief on this claim. In the event that Petitioner is retried, however, the state courts will be required to apply the law of the Confrontation Clause as it now stands, including the Ohio Supreme Court’s decision in Arnold, so this issue may well be moot.

C. CLAIM FOUR

Petitioner’s fourth claim is that the prosecutor conducted himself improperly during the state criminal trial. He argues that the prosecutor’s failure to narrow the time frame involved in all of the counts of the indictment, the failure to dismiss two of the rape counts prior to trial, the eliciting of inadmissable hearsay statements from the S.A.N.E. nurse, allowing Detective Waugh to vouch for Ms. Parker’s credibility and then improperly emphasizing this evidence in closing argument, questioning Petitioner about his motives for lying to police, alluding to rapes allegedly occurring other than on February 23, 2006 while knowing there would be no evidence admitted to support these charges, and reserving most of the closing argument for rebuttal, were all improper and deprived him of his constitutional right to a fair trial. The Report and Recommendation, citing to Sowell v. Collins, 557 F.Supp.2d 843, 911 (S.D.Ohio 2008) and Bates v. Bell, 402 F.3d 635 (6th Cir.2005), concluded that although some of this conduct may have been improper, as a whole it was not sufficiently prejudicial to deprive Petitioner of the right to a fair trial.

After reviewing the extensive discussion of these alleged instances of prosecutorial misconduct contained in the Report and Recommendation, this Court agrees that the state courts did not act unreasonably in failing to grant Petitioner any relief on this claim. The Court will not repeat that discussion here, but adopts it in its entirety-

Petitioner does cite to several additional cases in his objections. First, he points out that in State v. Sellards, 17 Ohio St.3d 169, 478 N.E.2d 781 (1985), the Ohio Supreme Court addressed the duty of a prosecutor to narrow the time frame in an indictment when the prosecutor is able to do so. Sellarás held that a prosecutor must supply this information in response to a request for a bill of particulars. Petitioner’s claim here, however, is not that the information was withheld in a bill of particulars, but that the time frame was not narrowed in the initial indictment. Thus, it is not at all clear that the prosecutor violated any duty imposed by state law concerning the way in which the indictment was drafted. In any event, Petitioner has still not demonstrated how he was prejudiced by this alleged violation because the trial judge dismissed two of the three rape counts after the state rested. The real issue concerning the failure to narrow the indictment is the absence of any instruction to the jury concerning the time frame applicable to the remaining rape count, and that issue is addressed below.

Petitioner also cites to Washington v. Hofbauer, 228 F.3d 689 (6th Cir.2000), as an example of a case in which a prosecutor’s improper vouching for a witness led to the issuance of a writ of habeas corpus. In that case, the prosecutor was found to have committed “serious misconduct,” but it was not because he improperly vouched for the credibility of a witness, it was because he characterized the witness’ story “as having been consistent over time when there was no evidence supporting that factual assertion.” Id. at 700. It was the act of misrepresenting the evidence and making an argument that lacked any evidentiary support, as well as the vouching that accompanied that improper conduct, that led the court to issue the writ. No such misconduct occurred here, and the Court agrees that the questions asked to Detective Waugh about the consistency of Bonnie Parker’s statements, while close to the line, were ultimately not so prejudicial that they affected the fairness of the trial. Thus, Petitioner is not entitled to relief on his fourth claim.

D. CLAIM FIVE

In his fifth claim, Petitioner identifies multiple ways in which he asserts that his attorney was constitutionally ineffective. The Report and Recommendation, relying on decisions such as Moye v. Corcoran, 668 F.Supp.2d 523 (S.D.N.Y.2009), and Ryan v. Warren, No. 05-cv-72481, 2006 WL 2073129 (E.D.Mich. July 26, 2006), concluded generally that any evidence admitted because of counsel’s failure to object to it (which failure forms part of the basis of this claim) was not prejudicial to petitioner, so that his claim failed on the second prong of the familiar Strickland (v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)) test. Other instances of alleged ineffectiveness, such as the questions counsel asked to Detective Waugh, Pam Parker and the S.A.N.E. nurse, were also found not to be prejudicial, as was counsel’s decision to call Petitioner’s wife as a witness, a decision which Petitioner himself characterized as unhelpful rather than harmful. This Court agrees with the analysis of these aspects of the ineffective assistance of counsel claim and likewise does not discern the type of prejudice that would lead to the conclusion that Petitioner’s Sixth Amendment right to counsel was violated.

The only argument raised in the objections that merits additional discussion is Petitioner’s assertion that his defense was indeed harmed by counsel’s decision to call his wife as a witness because it allowed the prosecutor to point out that Petitioner had placed her in the unenviable position of believing either her mother or her husband concerning the rape allegations. Petitioner admitted before the jury that he had engaged in sexual intercourse and had other sexual contact with his mother-in-law. His wife was therefore not placed in the position of denying that her mother told the truth about the existence of these encounters, but only about whether her mother had consented. As to that issue, the jury did not find that petitioner forced himself on his mother-in-law, but rather that she lacked the mental capacity to consent. Neither his wife’s testimony nor the prosecutor’s attempt to sway the jury concerning her having been called as a witness was, in the overall context of the trial, a decision that could reasonably be said to have affected the outcome of the trial. Thus, this claim also lacks merit.

IV. BOTH PARTIES’ OBJECTIONS— CLAIM TWO

Both Petitioner and Respondent object to the recommended disposition of claim two. Petitioner argues that any writ that issues on this claim should bar a retrial, while Respondent argues both that the claim was waived and that it lacks merit. The Court will address Respondent’s position first.

As to procedural default, Respondent argues that to the extent Petitioner’s double jeopardy claim raised any issues about the sufficiency of the indictment, those arguments were waived because they were not raised prior to trial and the state appellate court clearly enforced that waiver. The Report and Recommendation concluded, however, that the essence of petitioner’s double jeopardy claim was not that the indictment was defective on its face by failing to specify a time frame for the three alleged rapes, but that once the trial court dismissed two of those counts for lack of evidence and held that the third count was supported only by the evidence of the February, 2005 incident, the failure to so advise the jury created the double jeopardy issue. This claim could not have been raised prior to trial because it was not foreseeable that the jury would not be told to confine its deliberations to that incident even though the trial judge found that it was the only one about which sufficient evidence had been presented to support a conviction. Thus, the Court agrees that the double jeopardy claim, as presented by Petitioner and analyzed in the Report and Recommendation, was not procedurally defaulted by any failure to raise the claim prior to trial. Because that is the only basis on which the state court of appeals found this claim to have been waived, there is no procedural bar to this Court’s consideration of the merits of this claim.

As to the merits, Respondent contends that it was error for the Magistrate Judge to rely heavily on the Court of Appeals’ decision in Valentine v. Konteh, 395 F.3d 626 (2005), because that is not the relevant Supreme Court precedent that must exist and conflict with the state court’s judgment in order for a writ to be granted under § 2254(d). Respondent recognizes that Valentine was premised on prior Supreme Court decisions, including, most significantly, Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), but argues that even though Russell announced the rule applied in Valentine that the double jeopardy clause is violated if a case is sent to the jury under an indictment that is so indefinite that the defendant could not plead an acquittal or conviction on the charge as a defense to a future prosecution this rule was never fully explicated by later Supreme Court decisions, and there is therefore no case on point with which the state court decision could conflict.

The Court finds this reading of the AEDPA overly restrictive. As the Court of Appeals has acknowledged, “[ajlthough only Supreme Court case law is relevant under the AEDPA in examining what Federal law is ‘clearly established,’ the decisions of the United States Courts of Appeals may be informative to the extent we have already reviewed and interpreted the relevant Supreme Court case law to determine whether a legal principle or right had been clearly established by the Supreme Court.” Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.2003). As the Court of Appeals explained in Boykin v. Webb, 541 F.3d 638, 642 (6th Cir.2008), this Court may grant a writ of habeas corpus not only when a state court “decides a case differently than the Supreme Court on materially indistinguishable facts,” but also when it “arrives at a conclusion opposite to that reached by the Supreme Court on a question of law” or when “the state court identifies the correct legal principle from the Supreme Court’s decisions but unreasonably applies it to the facts of the Petitioner’s case.” Additionally, the Court of Appeals reaffirmed Hofbauer’s holding that “[t]he court may look to lower courts of appeals’ decisions, not as binding precedent, but rather to inform the analysis of Supreme Court holdings to determine whether a legal principle had been clearly established by the Supreme Court.” Id. Thus, the mere fact that the Supreme Court has never decided a case that presents exactly the same facts as Petitioner’s case is not determinative. The real question is whether the Supreme Court has announced a legal principle with which the state courts’ decision conflicts or that the State Courts unreasonably applied. As to that latter issue, an unreasonable application may occur when then state court “unreasonably refuses to extend [a legal principle from Supreme Court precedent] to a new context where it should apply.” Smith v. Bradshaw, No. 1:04-cv-694, 2007 WL 2840379, at *6 (N.D.Ohio Sept. 27, 2007) (citing Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

In that regard, Valentine, which was decided well prior to the time Petitioner’s state conviction became final (in fact, even before he was arrested and charged), is instructive. First, like this case, it was a case filed by a state court defendant under 28 U.S.C. § 2254. As here, the Court of Appeals was required to apply the deferential standard of review found in § 2254(d)(1). As here, the case involved the second prong of the Russell test, namely whether the proceedings would allow the defendant to raise either an acquittal or a conviction as a bar to a second prosecution for the same offense. Even though the Supreme Court had not decided a case that presented a factual scenario similar to the one before the Valentine court, that court did not hesitate to find that “these principles have been well-established for quite some time.” Valentine, 395 F.3d at 631 n. 1 (citing, inter alia, United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875)). The Court also noted that it had previously applied the second prong of the Russell test in the context of a habeas corpus petition and had found in that case that the state court had also unreasonably applied that legal principle in a way that justified habeas corpus relief. See Isaac v. Grider, 211 F.3d 1269 (6th Cir.2000). As this Court is permitted to do under Hofbauer, it finds Valentine and Isaac instructive on the question of whether the legal principle announced in Russell in 1962 and applied several times by the Court of Appeals as the type of clearly established law contemplated by § 2254(d)(1) is, in fact, clearly established. In fact, given Valentine’s clear holding that it is, this Court would be hard-pressed to reach a contrary conclusion. Thus, there is not only no obstacle to using the two-pronged Russell formulation in deciding whether the state court decision conflicts with or unreasonably applied clearly established Supreme Court law, but doing so would appear to be mandatory.

Most of Respondent’s objection is based upon the incorrect proposition that Valentine should be ignored for purposes of determining whether the state court’s denial of relief to Petitioner on his double jeopardy claim was in conflict with federal law. The objection addresses the merits of the Report and Recommendation’s analysis of the constitutional issue only briefly and in a way that actually reinforces the conclusion that Petitioner’s double jeopardy rights were violated.

The Report and Recommendation conceptualized the claim upon which relief was recommended in this way:

The other part of [Petitioner’s] double jeopardy argument is that, after the trial court ruled that there was not enough evidence presented by the prosecution to support any rape charge other than whichever one of the three original counts related to the February 23, 2006 incident, the failure of the court to tell the jury about that ruling, either in its closing instructions or otherwise, raised the real possibility that the jury convicted him based on other conduct, including conduct that was covered by one or both of the dismissed' charges. If that occurred, the double jeopardy clause would have been violated because the dismissal of those other charges for want of sufficient evidence, after the trial commenced, constituted a bar to further prosecution for those offenses.

(Doc. # 20, at 742-43.) As the Report and Recommendation also notes, the state court of appeals denied relief on this theory at least in part because it reasoned that the jury’s verdict could have been based on Petitioner’s admissions about having had sex with his mother-in-law. Those admissions, however, did not include the single incident that the trial judge found to be supported by the evidence, so that there was, even in the court of appeals’ view, the distinct possibility that Petitioner was convicted of a rape count that had been dismissed by the trial judge at the close of the prosecution’s case. Certainly, the jury could have disbelieved Petitioner’s testimony when he denied the specific instance of rape that allegedly occurred in February 2006, but there is no way to know whether that occurred, and the jury was given no guidance about what conduct it could use for purposes of conviction. It was not even told at the commencement of the defense’s case that two rape counts had been dismissed, and even after the jury learned that fact when it was instructed at the close of the case, it was never informed that it was required to confine its deliberations to a count of rape that had been narrowed by that ruling to the February 2006 time frame.

Respondent does not controvert these facts. Rather, the objections acknowledge that although the prosecutor’s closing argument focused mainly on the February 2006 incident, at one point the argument “pivot[ed]” to a discussion of Petitioner’s admission to other acts of intercourse. This fact is dismissed based on what Respondent describes as an assumption “that the jury was focused on the [February 2006 incident], and not any earlier incidents that [Petitioner] admitted to.” (Doc. # 23, at 8.) Such an assumption, however, has no foundation in the record, especially given the lack of any instruction to the jury that it could not convict Petitioner based on any act of intercourse to which he had admitted in his testimony.

Further, Respondent argues that because Petitioner did admit to conduct that could have supported a single rape conviction, the jury’s verdict was supported by sufficient evidence. In Respondent’s words, “because [Petitioner] admitted to three separate sexual encounters involving intercourse (which he of course claimed were consensual) ... the third rape charge could still be supported by [Petitioner’s] admission to the third act of intercourse he had with his mother-in-law, if not the February 23, 2006 incident.” (Id. (emphasis supplied)). But that is exactly the point. The trial judge’s dismissal of the other two counts of rape was specifically premised upon his finding that the prosecution had proved, at most, only the February 23, 2006 incident. Petitioner was entitled, after the counts were dismissed, not to be put in jeopardy again (let alone convicted) for whatever conduct was subsumed within those counts, and he was entitled to believe that by testifying about acts of intercourse other than the one that allegedly occurred on February 23, 2006, he would not be providing the jury with the very evidence to convict him. Yet this is precisely what may have happened. Given the state of the record, there is simply no way to know. That uncertainty is sufficient to create the real possibility that Petitioner was convicted on a dismissed charge, and that real possibility is enough to entitle him to relief under the double jeopardy clause as authoritatively explained in Russell and Valentine. The Court therefore finds Respondent’s objections to the Report and Recommendation to be without merit, and it adopts the discussion of this claim found in that Report.

Petitioner’s objections to the proposed disposition of his second claim raise a different issue. He argues that any writ that issues should be unconditional and should bar a retrial on the single count of rape relating to the February 23, 2006 incident. The sole basis for this argument is that “the jury, in the process of its deliberations, may have found reasonable doubt as to the truth of the February 23, 2006 allegations before moving on to consider Dorsey’s testimony and acquitting him for the acquitted conduct in 2005.” (Doc. # 24, at 12-B.) He argues that he should be given the “benefit of the doubt” on this issue and that this Court should conclude that he was acquitted on the February 23, 2006 alleged rape, making any retrial on that count a violation of his double jeopardy rights. (Id. at 13.)

Petitioner cites no authority for the proposition that a retrial under these circumstances should be prohibited. Usually, an unconditional writ is granted only when the underlying constitutional provision itself would be violated by retrial. Cf. Saylor v. Cornelius, 845 F.2d 1401 (6th Cir.1988). Here, although there is a “real possibility” that the jury convicted Petitioner on the basis of his testimony about acts of sexual intercourse not subsumed within the indictment, that does not inexorably lead to the conclusion that the jury found him not guilty of the charged act. There is simply no way to know. Just as the Court will not assume, for Respondent’s benefit, that the jury considered only evidence of the February 23, 2006 incident when it reached its verdict, the Court will not assume, for Petitioner’s benefit, that it did not. The only way to resolve the issue properly is for the state to retry Petitioner under circumstances in which both the parties and the fact-finder are fully aware of what evidence can be used in determining Petitioner’s guilt or innocence. Thus, the Court finds Petitioner’s objection to the issuance of a conditional writ to lack merit.

V. ORDER

For these reasons, the Court OVERRULES the parties’ objections to the Magistrate Judge’s Report and Recommendation and ADOPTS the Report and Recommendation in its entirety. The Court ISSUES a conditional writ of habeas corpus on Petitioner’s second claim. The State of Ohio shall release Petitioner from custody unless he is retried within ninety days of the issuance of this writ. This case is TERMINATED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

TERENCE P. KEMP, United States Magistrate Judge.

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, respondent’s Return of Writ, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that a conditional writ be granted.

I. PROCEDURAL HISTORY

The procedural history of this case is summarized as follows. The December 28, 2006 session of the Licking County Grand Jury indicted petitioner on six felony counts, all of which accused petitioner of engaging in sexual conduct or having sexual contact with Bonnie Parker, who was described in the indictment as having been unable to resist or consent because of a mental or physical condition or because of advanced age. The case proceeded to trial, and petitioner was found guilty of one count of rape and three counts of gross sexual imposition, although the jury also found that petitioner did not use force or threats of force in connection with these offenses. Petitioner was sentenced to a ten-year term of imprisonment on the rape count and one-year terms of imprisonment on the three gross sexual imposition counts, with all sentences running concurrently. Return of Writ, Exhibits 1-2.

On July 12, 2007, petitioner filed an appeal to the Fifth District Court of Appeals. He raised six issues on appeal, including:

(1) a challenge to the sufficiency of the evidence, including an assertion that the convictions on all counts were against the manifest weight of the evidence;

(2) a due process challenge based on “the lack of differentiation in the counts of the indictment, the trial court’s inability to specify the numerical designation of the acquitted counts of rape, and its failure to narrow the time fame in the jury instructions for the remaining counts”;

(3) a Confrontation Clause challenge to the admission of certain statements made by the victim during a forensic interview;

(4) a due process challenge based on alleged prosecutorial misconduct;

(5) an ineffective assistance of counsel claim based on five alleged areas of deficient performance by trial counsel, including failing to challenge the indictment and jury instructions, to object to inadmissable evidence and prosecutorial misconduct, eliciting or inviting prejudicial testimony during cross-examination, calling petitioner’s wife as a defense witness, and committing prejudicial errors during closing argument; and

(6) a challenge to the ten-year sentence for the rape conviction.

Petition, Exhibit S. In a decision dated May 23, 2008, the court of appeals overruled all six assignments of error and affirmed petitioner’s conviction and sentence. State v. Dorsey, 2008 WL 2571851 (Licking Co.App. May 23, 2008). Petitioner timely appealed the case to the Ohio Supreme Court, raising all of the same issues except the challenge to the sentence. Petition, Exhibit 7. However, the Ohio Supreme Court did not accept petitioner’s appeal, ruling that it did not involve any substantial constitutional question. See State v. Dorsey, 119 Ohio St.3d 1487, 894 N.E.2d 1244 (2008); Petition, Exhibit 9.

On June 15, 2009, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:

2. Lack of differentiation between the counts of the indictment, an ambiguous partial-acquittal ruling, and overbroad jury instructions deprived Petitioner of his Fifth And Fourteenth Amendment right to adequate notice of the charges, and the ability to prepare a defense and protect himself against double jeopardy.

4. Repeated instances of prosecutorial misconduct and overreaching denied Petitioner his right to due process and a fundamentally fair jury trial under the Fifth, Sixth and Fourteenth Amendments.

5. Trial counsel’s deficient performance denied Petitioner his Sixth and Fourteenth Amendment right to the effective assistance of counsel.

It is the position of the respondent that all of petitioner’s claims are without merit, and that the second claim has been procedurally defaulted.

II. THE FACTS

The facts of this case, as explained by the Fifth District Court of Appeals, are as follows:

{¶ 2} Bonnie Parker was born on December 10, 1926. (IT. at 145). Prior to February 2006, Bonnie lived independently in an apartment in Pataskala. Bertha Dorsey, her daughter, and appellant, Bertha’s husband, assumed the responsibility of providing her with needed care and assistance. Appellant took prescription medicine to her before and after work and often brought her dinner. {¶ 3} On February 25, 2006, a Pataskala police officer took an offense report from Pamela Parker regarding her mother Bonnie Parker. The report was turned over to Detective Andy Waugh for investigation. After the detective interviewed Bonnie Parker, he sent her to Grant Hospital in Columbus for a forensic rape examination. In the meantime, the detective collected evidence from her apartment. He found a semen stain on a chair in the living room. DNA testing established that the semen belonged to appellant.

{¶ 4} At the hospital, Bonnie Parker told Kailey Mahan, a forensic nurse that two days earlier, her son-in-law, appellant, hugged her, grabbed her breasts and vagina, got on top of her, and engaged in vaginal intercourse with her. She stated that while this was happening, “I fought him.” (IT. at 227). She further testified that Bonnie told her “he’s been doing it to me for a while.” (IT. at 228). Ms. Mahan noted a bruise on Bonnie’s left inner thigh. (IT. at 230). She further noted redness in her right labia minora and tearing in the posterior fourchette. (IT. at 232). Additionally, Ms. Mahan noted “purple, red bruising ... to the vaginal wall.” (IT. at 236). Finally, Ms. Mahan noted that Bonnie had been experiencing pain and discomfort due to her injuries. (IT. at 238). Ms. Mahan noted the trauma was consistent with Bonnie Parker’s verbal account.

{¶ 5} In December 2006, the Licking County grand jury returned an indictment charging appellant with three identically worded counts of rape and three identically worded counts of gross sexual imposition (“GSI”). Each count identified Bonnie Parker, his mother-in-law, as the alleged victim and averred that the offense conduct occurred “between the dates of February 2005 and February 22, 2006.” Each count alleged that each offense was committed by force or threat of force “and/or” while Ms. Parker’s ability to consent to, or resist, sexual relations was substantially impaired due to her mental or physical condition, or advanced age.

{¶ 6} Bonnie Parker did not testify in the jury trial. The parties agreed before trial that she was incompetent to testify. (IT. at 57-64). The state relied on her forensic interview at the hospital as its evidence of a specific incident of sexual intercourse between her and the appellant.

{¶ 7} Bonnie Parker was eighty years old at the time of trial. (IT. at 136). She had been a patient of Dr. Ronald Vargo since 1993. (IT. at 98). Ms. Parker suffers from hypertension, diabetes, heart disease, and dementia. (Id. at 98). Dr. Vargo testified, “Multi-infarct dementia” is “a condition based on underlying medical conditions, hypertension, diabetes, heart disease, and basically causes hardening of the arteries in the brain, and over time the blood flow is choked off, so those areas of the brain just die away.” (IT. at 99-100). Dr. Vargo testified that Bonnie began having memory problems in the year 2000. (Id. at 101, 126). By the year 2003, her problems progressed to the stage where medication was prescribed for her dementia. , (Id. at 102, 126). Dr. Vargo defined dementia as a decline in intellectual function. (Id. at 118). The allegations in the case at bar occurred after Ms. Parker had been diagnosed with dementia. (Id. at 120). Interim Health Care, the agency proving in-home services to Ms. Parker was brought in the year 2005, after she had been released from the hospital. (Id. at 128). The diagnosis at that time was Alzheimer’s/dementia. (Id. at 128). At that point, she was receiving two medications directed specifically to her dementia. (Id. at 129). Dr. Vargo testified on cross-examination that in his opinion once a person is diagnosed with dementia the person cannot be relied upon to make a decision concerning sexual relations. (Id. at 124, 131). He further testified that Ms. Parker was not able to consent to sexual relations. (Id. at 115, 117-118).

{¶ 8} Pamela Parker, Bonnie’s daughter, testified during the time period alleged in the Indictment, her mother was “forgetting stuff’ and was not able to take care of herself. (IT. at 143). She further testified that her mother suffered from Alzheimer’s and dementia that was severe until she received treatment and in-home care. (IT. at 145-146).

{¶ 9} Appellant denied having sexual relations with Ms. Parker when interviewed by the police. (IT. at 185). He denied ever exposing himself to Ms. Parker. (Id. at 188). He further denied ever bathing, changing or showering Ms. Parker. (Id.). Appellant’s semen was found on a chair in Ms. Parker’s home. (IT. at 182). Ms. Parker had injuries consistent with having had sexual relations. (IT. at 225-241).

{¶ 10} In the defense case, Diane Ferguson, the case manager for the Passport Program at the Central Ohio Area Agency on Aging testified that Bonnie Parker qualified for home health care services, but did not meet the criteria for any specialized mental health treatment or assistance. (IT. at 260). On cross-examination, Ms. Ferguson testified that under the program’s criteria dementia is classified as a physical disorder not as a mental disease. (Id. at 269).

{¶ 11} Appellant’s wife and Bonnie Parker’s son, James, testified and expressed their belief that appellant did not rape their mother.

{¶ 12} Appellant testified on his own behalf. He admitted having consensual sexual intercourse with his mother-in-law on three occasions during a two-week period in early 2005. Appellant was aware at the time that Bonnie had been diagnosed with dementia. (IT. at 307-308). He testified that Ms. Parker was the aggressor. (IT. at 310). He further admitted to having sex with his mother-in-law while she was bent over the chair in her living room. (IT. at 311). Appellant testified that his semen was found on the back of that chair because he masturbated while his mother-in-law was sleeping in the chair. (IT. at 312-313). Appellant further admitted that he had Bonnie rub his penis with lotion because “it was dry down there.” (IT. at 316). He admitted to having his mother-in-law fondle him “six or seven times.” (IT. at 316). He said that she knew what she was doing and that he did not take advantage of her mental state. (IT. at 305, 310). He denied raping her and denied having sexual relations with her on February 23, 2006. (IT. at 313-314). He denied committing any crimes, but acknowledged that from a moral standpoint, he knew that having sexual relations with his mother-in-law “wasn’t right.” (IT. at 320).

{¶ 13} At the conclusion of the state’s case, the trial court directed an acquittal on two of the rape counts. (IT. at 255-256). The jury returned verdicts of guilty on the remaining counts, and rendered special findings stating that the state had failed to prove that appellant compelled his mother-in-law to submit to sexual conduct or sexual contact by-force or threat of force. The court sentenced appellant to a maximum ten-year prison term on the rape conviction and concurrent one-year prison terms on the GSI convictions. (2T. at 414).

State v. Dorsey, 2008 WL 2571851, *1-3.

III. THE STANDARD OF REVIEW

When, as here, the claims presented in a habeas corpus petition have been presented to and decided by the state courts, a federal habeas court may not grant relief unless the state court’s decision was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence that was presented. 28 U.S.C. § 2254(d) provides:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The United States District Court for the Western District of Michigan has summarized this standard as follows:

[A] decision of the state court is “contrary to” such clearly established federal law “if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” [Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)] at 413. A state court decision will be deemed an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. A federal habeas court may not find a state court’s adjudication to be “unreasonable” “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. Further, the federal habeas court should not transform the inquiry into a subjective one by inquiring whether all reasonable jurists would agree that the application by the state court was unreasonable. Id.

Williams v. Lavigne, 2006 WL 2524220 (W.D. Michigan August 30, 2006). The Court will apply this standard to all of petitioner’s claims except where it is specifically noted that a different standard of review applies.

IV. CLAIM ONE

Petitioner’s first claim raises the issue of whether the evidence presented in the state court trial was sufficient, from a constitutional viewpoint, to support any of the four convictions. The state court decided this claim in the following manner:

{¶ 21} In his First Assignment of Error, appellant argues that his convictions for rape and gross sexual imposition are against the weight and sufficiency of the evidence. Specifically, appellant maintains that the State failed to produce adequate proof that the victim was substantially impaired. We disagree.

{¶ 23} In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this Court must review the evidence in a light most favorable to the prosecution. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, superseded by State constitutional amendment on other grounds as stated in State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668.

{¶ 24} Specifically, an appellate court’s function, when reviewing the sufficiency of the evidence to support a criminal conviction, is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v. Jenks, supra. This test raises a question of law and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Thompkins, 78 Ohio St.3d [380] at 386, 678 N.E.2d 541.

{¶ 30} In the case at bar, appellant was found guilty of one count of rape, which required that appellant knew the victim’s capability was substantially impaired. More particularly, R.C. 2907.02 states:

{¶ 31} “(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:

{¶ 32} “ * * *

{¶ 33} “(c) The other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the other person’s ability to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age.”

{¶ 34} Appellant was also found guilty of three counts of gross sexual imposition in violation of R.C. 2907.05 which states:

{¶ 35} “(A) No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies:

{¶ 36} “ * * *

{¶ 37} “(5) The ability of the other person to resist or consent or the ability of one of the other persons to resist or consent is substantially impaired because of a mental or physical condition or because of advanced age, and the offender knows or has reasonable cause to believe that the ability to resist or consent of the other person or of one of the other persons is substantially impaired because of a mental or physical condition or because of advanced age.”

{¶ 38} Appellant first argues that the victim’s statements indicate that she made a knowing and conscious decision to refuse to consent to, and affirmatively resist, sexual intercourse and fondling. Therefore, she was not “substantially impaired.” In essence, appellant claims that if the State produces testimony that the victim resisted sexual relations, it may not prosecute the accused upon the theory that the victim was “substantially impaired.”

{¶ 43} The Ohio Supreme Court has held that “substantial impairment must be established by demonstrating a present reduction, diminution or decrease in the victim’s ability, either to appraise the nature of his conduct or to control his conduct. This is distinguishable from a general deficit in ability to cope, which condition might be inferred from or evidenced by a general intelligence or I.Q. report.” State v. Zeh (1987), 31 Ohio St.3d 99, 104, 509 N.E.2d 414. “ ‘Substantial impairment’ need not be proven by expert medical testimony; it may be proven by the testimony of persons who have had some interaction with the victim and by permitting the trier of fact to obtain its own assessment of the victim’s ability to either appraise or control her conduct.” State v. Brady, Cuyahoga App. No. 87854, 2007-0hio-1453 at ¶ 78 [2007 WL 926365]; State v. Jordan, Harrison App. No. 06 HA 586, 2007-Ohio-3333 at ¶ 97 [2007 WL 1880029]; State v. Hillock, 7th Dist. No. 02-538-CA, 2002-Ohio-6897, at ¶21 [2002 WL 31812871], However, although Zeh touched on the issue of what constituted “substantial impairment,” its holding was limited to instructing when the defense could ask the court to bar the state from utilizing evidence of the contested mental condition of a victim-potential witness. Id. at 105, 509 N.E.2d 414. State v. Hillock, Harrison App. No. 02-538-CA, 2002-Ohio-6897 at ¶ 24.

{¶ 44} In State v. Novak, Lake App. No. 2003-L-077, 2005-Ohio-563, the Court made the following observation:

{¶45} “Novak disputes whether Doe’s ability to resist was substantially impaired and, if it were, whether he knew or had reasonable cause to believe that her ability to resist was impaired. Novak cites to several instances in the record where Doe exerted her will, either verbally or by pulling away, to terminate sexual contact. Novak also cites to testimony where Doe initiated the sexual contact. Finally, Novak claims that when Doe would express her discomfort, the sexual contact would cease. Therefore, Novak concludes, any sexual contact between himself and Doe was consensual.

{¶ 46} “Novak’s argument misconstrues the nature of Doe’s impairment by equating the ability to resist with the ability to consent. The gross sexual imposition statute is written disjunctively; the sexual contact between Novak and Doe is unlawful if Doe’s ability to resist or consent is substantially impaired. Even a five-year-old child can resist sexual contact by verbalizing discomfort or the desire that the contact cease and by pulling away; the child’s ability to resist, however, does not mean that the child has consented to the initial contact or even has the ability to do so. Novak could still be found guilty provided the state proved that Doe’s ability to appraise the nature of her conduct was diminished.” Id. at ¶ 19-20.

{¶ 47} Both R.C. 2907.02 and R.C. 2907.05 make the activity unlawful if the victim’s ability to resist or consent is substantially impaired. A finding that he did not use force does not equate with a finding that the victim had the ability to consent or to resist. Accordingly, the issue in the case at bar is whether the victim’s ability to resist or give consent to the sexual conduct and sexual contact she engaged in with appellant was substantially impaired. See, also, State v. Brady, supra. (Appellant found guilty of rape of mentally retarded stepdaughter whose ability to resist or consent was substantially impaired due to a mental or physical condition even though victim told appellant “no” and “that she did not want to have sex.”).

{¶ 48} As to whether appellee proved that victim’s ability to resist or consent was substantially impaired by a physical condition or because of advanced age, the appellant next argues that because the trial court did not incorporate “mental condition” in the jury instructions as a basis for finding substantial impairment this Court cannot consider the victim’s mental condition on the issue of substantial impairment. To do so would result in appellant being convict