Hawkins v. Warden, Chillicothe Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

BRIAN HAWKINS,

Petitioner, : Case No. 3:19-cv-072

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

TIMOTHY SHOOP, Warden,

Chillicothe Correctional Institution

:

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Brian Hawkins pursuant to 28

U.S.C. § 2254. Hawkins seeks relief from his convictions for rape and kidnapping in the Common

Pleas Court of Montgomery County, Ohio. The case is ripe for consideration on the Petition (ECF

No. 3), the State Court Record (ECF No. 10), the Return of Writ (ECF No. 11), and Petitioner’s

Reply (ECF No. 18).

Litigation History

Hawkins was indicted in May 2015 for the July 2002 rape and kidnapping of A.J., a person

then fifteen years old. After his motion to dismiss for lack of a speedy trial was denied, Hawkins

was convicted by a jury. The trial judge then merged the rape and kidnapping counts and sentenced

him to ten years’ imprisonment.

Hawkins appealed to the Second District Court of Appeals which affirmed the trial court

judgment. State v. Hawkins, 2018-Ohio-867 (Ohio App. 2nd Dist. Mar. 9, 2018), appellate

jurisdiction declined, 153 Ohio St.3d 1453, 2018-Ohio-3026 (2018). On June 11, 2018, Hawkins

filed an Application to Reopen his direct appeal to raise nine assignments of error the omission of

which allegedly constituted ineffective assistance of appellate counsel. On July 11, 2018, he filed

another such application with eleven omitted assignments of error. The Second District dismissed

both of these as untimely and Hawkins did not appeal to the Supreme Court of Ohio.

While the direct appeal was pending, Hawkins filed a petition for post-conviction relief

under Ohio Revised Code § 2953.21. That petition remained pending when the Return of Writ

was filed here on August 14, 2019 (ECF No. 11, PageID 2241).

Hawkins’ Petition here, purportedly mailed March 11, 2019, pleads the following grounds

for relief:

Ground 1: The trial court erred in overruling Mr. Hawkins’ motion

to dismiss, as the thirteen year [sic] pre-indictment delay caused

actual prejudice to his right to a fair trial; thus violating his due

process rights.

Supporting Facts: Thirteen year [sic] pre-indictment delay,

without new evidence.

Prosecutor claimed original casefile, mental health and hospital

records missing.

Witnesses deceased and/or unavailable.

Alleged victim not remember incident [sic] and provided

inconsistent testimony.

Ground 2: The trial court erred in finding Mr. Hawkins guilty of

rape and kidnap as the convictions are against the manifest weight

of the evidence.

Supporting Facts: Physical evidence supports events as described

by petitioner.

Alleged victim not remember incident [sic] and provided inconsistent

testimony.

Court cut short defendant-petitioner’s testimony.

Counsel failed to provide notes of investigator’s conversations with

alleged victim, subsequently hindering trial counsel from effective

cross-examination

Ground 3: The cumulative effect of errors deprived Mr. Hawkins of a

fair trial warranting a reversal under the cumulative error doctrine.

Supporting Facts: Thirteen year [sic] pre-indictment delay, without

new evidence.

Inconsistent testimony.

Court violated state statutes and rules of evidence.

Prosecutorial misconduct, including manipulation, fabrication and loss

of evidence/Brady violation.

Ineffective assistance of counsel.

Ground 4: Hawkins’ convictions were based upon insufficient

evidence.

Supporting Facts: No physical evidence.

Alleged victim not remember incident [sic] and testimony inconsistent

and inconclusive with itself.

Withheld exculpatory Brady material.

Prosecutorial misconduct manipulated and fabricated evidence.

Alleged crime scene viewed by jury had significantly changed after

thirteen years.

Exculpatory evidence withheld.

Ground 5: Hawkins’ counsel provided constitutionally ineffective

assistance under the Fifth, Sixth, and Fourteenth Amendments of the

United States Constitution and Article I, Sec. 10 and 16 of the Ohio

Constitution.

Supporting Facts: Trial counsel failed to call alleged victim to testify

at hearing of motion to dismiss; erred requesting for jury viewing of

alleged crime scene that had significantly changed after thirteen years;

failed to argue for relevant exculpatory evidence; failed to provide

specific notes in order to effectively cross-examine key witness; failed

to object to court’s violations of state statutes and rules of evidence;

failed to object to many instances of prosecutorial misconduct.

Ground 6: The trial court denied Hawkins his right to due process

and a fair trial in violation of the Fifth and Fourteenth Amendment

to the United States Constitution and Article I, Sec. 16 of the Ohio

Constitution.

Supporting Facts: Trial court permitted viewing of alleged crime

scene that had significantly changed after thirteen years; cut short

the testimony of defendant-petitioner in pretrial motion to dismiss

hearing, as well as during trial; violated Ohio statutes and rules of

evidence.

Ground 7: Prosecutor misconduct so infected these proceedings

with unfairness as to make the resulting conviction a denial of due

process.

Supporting Facts: Prosecutor withheld exculpatory evidence,

violating Brady; misrepresented evidence; produced false evidence.

Ground 8: Appellate counsel was ineffective for failing to present

issues not fully considered that should have been that prove an

unreliable process was used to obtain a wrongful criminal

conviction prejudicing appellate [sic].

Supporting Facts: Appellate counsel failed to properly and

thoroughly demonstrate in detail issues as well as dead bang

winning issues specifically requested by defendant-petitioner that

show due process violations were used to unconstitutionally convict

defendant-petitioner, inter alia: trial counsel was unprepared at

motion to dismiss hearing and at trial; trial counsel failed to object

to many due process violations, including thirteen year [sic] pre-

indictment delay, hearsay, confrontation, prosecutorial misconduct

that materially influenced trial; trial counsel failed to investigate

case, including not motioning for discovery, or Brady exculpatory

evidence; trial counsel failed to object to trial court’s plain errors,

including unconstitutional sidebars and violations of Ohio statutes; trial

court failed to issue and trial counsel failed to request necessary case

specific jury instructions; appellate counsel also failed to use 11-R

evidence trial court specifically reserved for appeal; trial and appellate

counsel refused to provide defendant-petitioner with all judgment

entries and transcripts of proceedings.

(Petition, ECF No. 3, PageID 39-52.)

Analysis

Although Hawkins pleads eight numbered grounds for relief, many of his grounds contain

sub-claims which are logically and legally related to different constitutional rights than the right

claimed in the ground itself. The Magistrate Judge believes it will be useful to eliminate from

further consideration those claims and sub-claims which have not been preserved for decision on

the merits.

Cognizability

Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C.

§ 2254(a); Wilson v. Corcoran, 562 U.S. 1, 6 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990);

Barclay v. Florida, 463 U.S. 939 (1983); Smith v. Phillips, 455 U.S. 209, 221 (1982). "[I]t is not

the province of a federal habeas court to reexamine state court determinations on state law

questions. In conducting habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62,

67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.).

Several of the claims made by Hawkins are not for federal constitutional violations and

therefore not cognizable in this proceeding. They are as follows:

Ground Two claims that Hawkins’ conviction is against the manifest weight of the evidence.

A weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d

1232 (6th Cir. 1986); Ob’Saint v. Warden, Toledo Correctional Inst., 675 F.Supp.2d 827, 832 (S.D.

Ohio 2009).

Ground Three makes a claim of cumulative error. As in Sheppard v. Bagley, 657 F.3d 338,

348 (6th Cir. 2011), Hawkins “argues that the cumulative effect of these errors rendered his trial

fundamentally unfair.” Id. Post-AEDPA, however, that claim is not cognizable in habeas corpus.

Id., citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005). Cumulative error claims are not

cognizable because the Supreme Court has not spoken on the issue. Williams v. Anderson, 460

F.3d 789, 816 (6th Cir. 2006), citing Moore, supra.

Grounds Two and Three should therefore be dismissed for failure to state a federal

constitutional claim on which relief can be granted in a habeas corpus case.

Procedural Default

The procedural default doctrine 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 rights

claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433

U.S. 72, 86-87 (1977); Engle v. Isaac, 456 U.S. 107, 110 (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), quoting

Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986);

Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were

procedurally defaulted in state court—that is, claims that the state

court denied based on an adequate and independent state procedural

rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175

L.Ed.2d 417 (2009). This is an important “corollary” to the

exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124

S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which

a state prisoner fails to exhaust state remedies, a habeas petitioner

who has failed to meet the State’s procedural requirements for

presenting his federal claims has deprived the state courts of an

opportunity to address” the merits of “those claims in the first

instance.” Coleman [v. Thompson,] 501 U.S. [722,] 731-732, 111

S.Ct. 2546, 115 L.Ed.2d 640[(1991)]. The procedural default

doctrine thus advances the same comity, finality, and federalism

interests advanced by the exhaustion doctrine. See McCleskey v.

Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).

“A claim may become procedurally defaulted in two ways.”

Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a

claim is procedurally defaulted where state-court remedies have

been exhausted within the meaning of § 2254, but where the last

reasoned state-court judgment declines to reach the merits because

of a petitioner's failure to comply with a state procedural rule. Id.

Second, a claim is procedurally defaulted where the petitioner failed

to exhaust state court remedies, and the remedies are no longer

available at the time the federal petition is filed because of a state

procedural rule. Id.

Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013).

Under Ohio law, ineffective assistance of trial counsel claims or indeed any constitutional

claims that depend on evidence outside the appellate record must be raised in a petition for post-

conviction relief under Ohio Revised Code § 2953.21 because evidence cannot be added to the

record on direct appeal. State v. Madrigal, 87 Ohio St.3d 378, 390-91 (2000); State v. Hartman,

93 Ohio St. 3d 274, 299 (2001); State v. Keith, 79 Ohio St. 3d 514, 536 (1997), citing State v. Scott,

63 Ohio App. 3d 304, 308 (1989). Conversely, constitutional claims including ineffective

assistance of trial counsel claims which are supported by the appellate record must be raised on

direct appeal and will be barred by res judicata if attempted to be raised later in post-conviction.

State v. Reynolds, 79 Ohio St. 3d 158, 161 (1997); State v. Steffen, 70 Ohio St.3d 399, 410 (1994);

State v. Lentz, 70 Ohio St. 3d 527 (1994); In re T.L., 2014-Ohio-1840, ¶ 16, 2014 Ohio App.

LEXIS 1804 (8th App. Dist. 2014).

In response to Ground Five, ineffective assistance of trial counsel, the Warden notes that

Hawkins preserved for review five alleged instances, but notes that he also asserts that his trial

attorney “failed to object to court’s violations of state statutes and rules of evidence” and “failed

to object to many instances of prosecutorial misconduct.” (Return, ECF No. 11, PageID 2267).

These claims are unspecific as to particular occasions of alleged trial counsel omissions. More

importantly, the Warden notes that all of these omissions would have been apparent in the direct

appeal record, but were not raised in that proceeding. Under those circumstances, the claims are

barred by Ohio’s criminal res judicata doctrine.

In his Eighth Ground for Relief, Hawkins claims he received ineffective assistance of

appellate counsel when his direct appeal attorney failed to raise a number of meritorious

assignments of error on direct appeal. The Warden asserts these claims are barred by Hawkins’

procedural default in failing to raise them in the correct manner under Ohio law, that is, by

including them in a properly filed application to reopen the direct appeal under Ohio R. App. P.

26(B).

The Warden asserts that Hawkins’ failures, which the First District Court of Appeals held

against him, were in filing in an untimely manner, exceeding the ten-page limit established in the

Rule, and failing to attach relevant portions of the record (Return, ECF No. 11, PageID 2282-83).

Furthermore, after that adverse decision, Hawkins failed to timely appeal to the Supreme Court of

Ohio. Id. at PageID 2284.

As excusing cause, Hawkins claims the Clerk of Courts “filed with a false cover page on

top of Petitioner’s actual cover page.” (Reply, ECF No. 18, PageID 2322, asking the Court to

compare ECF No. 10, PageID 493 with PageID 532.) “Additionally, the Clerk jumbled the pages

of Petitioner's Application. (Doc. 10, PageID here listed in the order originally intended to have

appeared: 532-44, 498-500, 497, 494-96, 502-15, 549, 551-74, 545-48, 516-20, 524, 521-22, 527-

29, 501, 531.” Id.

On August 15, 2018, the Second District Court of Appeals had before it Hawkins’ delayed

application for reopening which he had filed on July 11, 2018. State v. Hawkins, Appellate Case

No. 27019 (State Court Record, ECF No. 10-1, PageID 634 et seq.). In it the court noted that its

decision on direct appeal affirming the conviction had been entered March 9, 2018. Id. at ECF

No. 637. The court found Hawkins had filed a document labeled “Reply” in Appellate Case No.

26962 on June 11, 2018, and noted that that appellate case had been dismissed for lack of

jurisdiction. Id.

The referenced document appears in the State Court Record at Ex. 46, PageID 493-97 and

bears Appellate Case No. CA 026962 in what appears to be Hawkins’ handwriting. It appears that

the pages were misordered in filing (assuming they appear in the State Court Record as they appear

in the files of the Montgomery County Clerk of Courts) because PageID 532, which appears to be

a title page for Hawkins’ Application for Reopening, bears no date stamp from the Clerk.

Ordinarily a Clerk’s date stamp would be on the first page. Here the Court of Appeals Clerk’s

date stamp appears on PageID 493, a page Hawkins labeled “Reply.”

However that misordering came about, it does not provide excusing cause. The Second

District denied the Application not because it was not in order, but because it was not timely.

Hawkins told the court of appeals he was late because of lack of funds, but the court rejected that

excuse, considering “the many documents he has had the ability, and has chosen, to file.” (Opinion,

State Court Record, ECF No. 10-1, PageID 639). It also held against him the fact that he had filed

in excess of ten pages and had failed to attach the required portions of the record. As noted by

Respondent, Ohio has a legitimate interest independent of federal law in having claims of

ineffective assistance of appellate counsel presented in an orderly fashion that permits appropriate

consideration. Aside from the prolixity of the filing, failure to timely file a 26(B) application has

been held by the Sixth Circuit to be an adequate and independent ground of state decision. Hoffner

v. Bradshaw, 622 F.3d 487, 504-505 (6th Cir. 2010).

Separate and apart from the deficiencies in filing the 26(B) application, Hawkins also

defaulted his ineffective assistance of appellate counsel claims by never appealing to the Supreme

Court of Ohio from the Second District’s denial. Here again Hawkins blames that failure on the

clerk’s misordering (Reply, ECF No. 18, PageID 2323). He attaches a document labeled “Notice

of Delayed Appeal of Appellant Brian Hawkins” which shows it was received by the Clerk of the

Supreme Court of Ohio on October 16, 2018. (State Court Record, ECF No. 18, PageID 2326.)

He also attached a document labeled “Notice of Appeal” which bears “received” stamps of

September 27, 2018, and October 16, 2018. Id. at PageID 2327. He attaches no correspondence

from the Supreme Court Clerk explaining why neither of these documents was filed, but states in

his Reply that it is because the Clerk of the Supreme Court “is required to refuse to file an [sic]

delayed appeal of an [sic] 26(B) Application for reopening . . . which is what the Clerk did.”

(Reply, ECF No. 18, PageID 2323.) Failure to file an appeal to the Supreme Court of Ohio from

an adverse ruling of a court of appeals within forty-five days is an adequate and independent state

ground of decision. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004).

Therefore, the unspecific claims of ineffective assistance of trial counsel in Ground Five

and all of the claims of ineffective assistance of appellate counsel in Ground Eight are procedurally

defaulted and should be dismissed on that basis.

Ground One: Pre-Indictment Delay

The offense in suit happened in July 2002 and Hawkins was not indicted until May 2015.

Claiming that this delay deprived him of his rights under the Due Process Clause of the Fourteenth

Amendment, Hawkins filed a pre-trial motion to dismiss on that basis. Having been unsuccessful

in the state courts, he reiterates that claim in his First Ground for Relief. The Warden concedes

the claim is preserved for merits review here and contends the Second District’s decision is entitled

to deference under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-

132, 110 Stat. 1214)(the "AEDPA").

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 100

(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);

Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 U.S.C. §

2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts

in light of the evidence presented in the state court proceedings. In habeas it is the last reasoned

state court judgment which must be reviewed. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

Hawkins raised the pre-indictment delay as his first assignment of error on appeal and the

Second District decided it as follows:

[*P7] Hawkins' First Assignment of Error states that:

The Trial Court Erred in Overruling Mr. Hawkins' Motion

to Dismiss, as the Thirteen Year Pre-Indictment Delay

Caused Actual Prejudice to His Right to a Fair Trial, Thus

Violating His Due Process Rights.

[*P8] Under this assignment of error, Hawkins contends that he

suffered actual prejudice due to a delay of nearly 13 years between

the alleged crime and the filing of the indictment. Hawkins' claim of

prejudice is based on the fact that the only two persons who could

potentially corroborate what happened on the night in question are

now deceased.

[*P9] "An unjustifiable delay between the commission of an offense

and a defendant's indictment therefor, which results in actual

prejudice to the defendant, is a violation of the right to due process

of law under Section 16, Article I of the Ohio Constitution and the

Fifth and Fourteenth Amendments to the United States

Constitution." State v. Luck, 15 Ohio St. 3d 150, 15 Ohio B. 296,

472 N.E.2d 1097 (1984), paragraph two of the syllabus. "Once a

defendant presents evidence of actual prejudice, the burden shifts to

the state to produce evidence of a justifiable reason for the delay."

(Citations omitted.) State v. Jones, 148 Ohio St. 3d 167, 2016-Ohio-

5105, 69 N.E.3d 688, ¶ 13.

[*P10] Decisions on "actual prejudice" involve "'a delicate

judgment based on the circumstances of each case.'" State v. Walls,

96 Ohio St. 3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 52, quoting

United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30

L.Ed.2d 468 (1971). To make this assessment, "courts are to

consider the evidence as it exists when the indictment is filed and

the prejudice the defendant will suffer at trial due to the delay."

Walls at ¶ 52, citing Luck at 154. (Other citation omitted.) However,

"speculative prejudice does not satisfy the defendant's burden."

Jones at ¶ 20, citing Luck at ¶ 56. (Other citation omitted.)

[*P11] In the case before us, the trial court heard from the following

witnesses at the evidentiary hearings in connection with Hawkins'

motion to dismiss: Brian Hawkins; Wayne Miller, Hawkins' private

investigator; Carol Ewing, a retired detective with the Dayton Police

Department ("DPD"); Lindsey Dulaney, a current detective with the

DPD Special Victims' Unit ("SVU"); Gary Ware, an investigator

with the Montgomery County Prosecutor's Office; and Justin Hayes,

a training detective for the DPD SVU. The testimony of these

individuals revealed the following factual background.

[*P12] In July 2002, Ewing was a detective assigned to the DPD

sexual assault child endangerment unit. Ewing was assigned a case

involving A.J., who had allegedly been raped in the early morning

hours of July 30, 2002, while she was a runaway from a foster home.

The rape occurred outdoors behind the Wesley Center, which was

located on Delphos Avenue, in Dayton, Ohio. At the time, A.J. was

fifteen years old.

[*P13] After the alleged rape, A.J. ran to a nearby Burger King,

which was located a few blocks from the Wesley Center, and

pounded on the restaurant's door. A security guard answered and

called the police, who transported A.J. to Dayton Children's

Hospital, where a rape kit was done. The rape kit was then sent to

the Miami Valley Regional Crime Lab ("MVRCL") for processing.

[*P14] Originally, based on information as to the assailant's alleged

nickname of "Twin," Ewing put together two photospreads, but A.J.

did not pick out either of the suspected individuals. On August 6,

2002, A.J. provided Ewing with Brian Hawkins' name, which A.J.

had obtained from friends. Ewing compiled another photospread,

and on August 14, 2002, A.J. identified Hawkins as the person who

had committed the rape.

[*P15] Ewing interviewed Hawkins in his home on October 29,

2002, because he had been recently shot and could not walk. The

interview was not recorded. Ewing would have noted in her report

if Hawkins were heavily sedated or under the influence during the

interview. She did not make such a notation.

[*P16] Ewing told Hawkins the date of the alleged offense, and he

said he thought he might have been in the hospital at the time. Ewing

later followed up and learned that Hawkins had been in the hospital

on August 11, 2002, which was about a week and a half after the

alleged rape.

[*P17] Ewing asked Hawkins if he knew someone with A.J.'s name,

and he said he did not. He stated that he did not know A.J., that he

would not have sex with a minor, and that he would not have sex

outside. Hawkins did not provide Ewing with the names of any

witnesses or an alibi. If Hawkins had given Ewing the names of

witnesses, she would have followed up.

[*P18] Hawkins recalled talking to a detective in October 2002. He

stated that he had just gotten shot and was sedated. Although he

could not recall what the detective said, he also testified that she

talked about a knife, which "threw" him off. He said he thought they

had the wrong person because he had never pulled a knife on

anyone. The police did not show him any pictures of the victim. He

also denied that he had said he would not have sex outside, as he had

done that plenty of times. He claimed Ewing had lied in her report.

[*P19] In November 2002, Ewing was injured and her last day of

work was February 2, 2004. During the interim, she had two

surgeries and at some point was on restricted duty until she retired.

She could not recall specific dates, other than that she had her first

surgery in July 2003. In February or March 2003, Ewing received

results back from MVRCL, indicating the presence of sperm in the

rape kit. Ewing then obtained a court order in October 2003 for a

buccal swab from Hawkins. At that point, Ewing was on restricted

duty, and another detective obtained the sample from Hawkins.

[*P20] DPD did not receive the results from the DNA test until

March 2004, which was after Ewing retired. Hawkins' DNA was a

match, and there would have been sufficient cause at that time for

the police to present the case to the prosecutor's office.

[*P21] Ewing's notes on the case, including the photo spread, were

kept in a packet, which was the official police file. There would have

been a notation on the front concerning whether the case was closed

or open. Ewing also kept her pending cases in a certain file cabinet.

She did not know what happened to the case files after she left the

DPD, and she did not recall if she specifically told someone that

there were pending cases in the file cabinet.

[*P22] Hawkins continued to reside in the Dayton area and did not

move out of state between 2002 and 2015. Nothing more was done

on the case until January 2015, when Detective Dulaney received a

phone call from the Miami County Prosecutor's Office, indicating

that the office had received a CODIS hit or DNA match on a case

that was an investigation in the city of Dayton. The prosecutor sent

Dulaney a copy of the 2004 lab report. Dulaney pulled the police

report and saw that A.J.'s case had never been presented to the

Montgomery County Prosecutor's Office. After the case was

assigned to her, Dulaney located A.J., and spoke with her. Dulaney

also attempted to find Hawkins to obtain his side of the story, but

could not locate him at the time.

[*P23] Dulaney was never able to locate Ewing's packet, which

contained the photo spread and Ewing's notes. However, any notes

that Ewing took and anything she did during her investigation would

have been put into a police report. Dulaney was able to obtain a copy

of the police report, because that was stored electronically. The

police were also able to locate the following evidence: the 2002 rape

kit, which was stored at the old Montgomery County Jail; Hawkins'

buccal swab, which was still at MVRCL; and A.J.'s clothing, which

was still intact. In addition, DPD was able to locate the following

witnesses: the MVRCL employee who had processed the rape kit;

the doctor and nurse who had collected the rape kit and who were

still working at Dayton Children's Hospital; the Burger King

security guard, who recalled speaking to A.J.; and the DPD officer

who had responded to the call from the Burger King. This officer

had retired from the DPD, but recalled the incident.

[*P24] After being unable to find Hawkins, Detective Dulaney

entered a suspect locator into the police system, which meant that if

police came into contact with Hawkins, he would be told that

Dulaney wished to speak with him. After the locator was in the

system for a time with no success, the prosecutor went to a grand

jury and obtained a warrant for Hawkins' arrest.

[*P25] In May 2015, Dulaney was able to interview Hawkins. At

the time, he was in jail and was transported to the Safety Building

for an interview. Hawkins was told that he was there for an interview

in connection with a rape investigation, and after being informed of

his Miranda rights, agreed to speak with the police.

[*P26] Dulaney told Hawkins about the allegations, and Hawkins

said it never happened and that he did not know A.J. Although

Dulaney showed him photos of A.J. — one photo was older, and the

other was recent — Hawkins still did not recall knowing A.J. During

the interview, Hawkins did not give Dulaney the names or addresses

of any witnesses. If he had given her names, she would have tried to

locate the witnesses.

[*P27] At the pre-indictment hearing, Hawkins testified that he had

reviewed the police report as part of discovery and did not deny

having sex with A.J. He maintained that they agreed to have sexual

relations and the activity was not due to force.

[*P28] According to Hawkins, he met A.J. around 3:00 a.m. on July

30, 2002, when he was leaving a "bootleg joint" on Shoop Avenue

in Dayton, Ohio. The bootleg joint was an after-hours place where

people came to gamble, drink, and meet women. Hawkins stated that

the bootleg joint had two security guards who checked identification

and patted people down. They also had a metal detector, and would

not let people in who had weapons like knives. In addition, no one

under 18 years of age was allowed inside. Hawkins identified three

people as potential witnesses: Bobby Cartwright, who worked as a

security guard, Kevin Cartwright, who used to come to the bootleg

joint, and Jermaine Hunter, who was present in the yard of the

bootleg joint that night.

[*P29] The Cartwrights were Hawkins' cousins, and could discuss

security, as well as the fact that underage persons were not allowed,

meaning that A.J. had lied about her age. Bobby was working that

night, but would not have seen Hawkins and A.J., because he was

inside. Jermaine Hunter was outside talking to A.J. when Hawkins

left the bootleg joint, and was close enough to hear conversation

between Hawkins and A.J. when she initially followed Hawkins

away from the bootleg joint. Hunter could also testify that A.J.

initiated contact with Hawkins. According to Hawkins, he had lost

contact with these individuals and had not seen them for a number

of years. He thought Hunter was in prison and had mental problems.

[*P30] Hawkins testified that when he left the bootleg joint, A.J.

followed him. He stated that at the time, he stayed at different

people's houses. Consequently, he and A.J. went to different

people's houses but no one was there. Hawkins described walking

to a house on Delphos Avenue, then to a house on Bedford Street,

back to the house on Delphos, and next to another house located at

Oakridge Drive and Tyson Avenue. On the way back from the last

location, A.J. propositioned Hawkins for sex the whole time.

[*P31] According to Hawkins, he and A.J. then had a sexual

encounter behind the Wesley Center. Afterward, they went to a

house on Upland Avenue, where Hawkins' friend, "Moochie," lived.

Hawkins did not know Moochie's real name; everyone just called

him Moochie. When Hawkins and A.J. arrived at Moochie's house,

Hawkins told A.J. to stay outside, but she insisted on coming inside.

[*P32] Several people were at the house, including a woman named

Tony Ousley, who was the mother of Hawkins' friend, "Squiggy."

Hawkins and Squiggy had both grown up in the same neighborhood.

According to Hawkins, he told Ousley that he and A.J. had sex and

that A.J. was 18 years old. While they were there, Ousley spoke to

A.J., who verified that she and Hawkins had sex. When Hawkins

and A.J. left, Ousley pulled him to the side and said he needed to get

away from A.J. or he was going to get in trouble. Ousley specifically

stated that A.J. was lying about her age. When Hawkins found out

from Ousley that A.J. was too young, he walked with A.J. for a few

blocks and then handed her a couple of dollars. At that point, A.J.

became angry. Hawkins believed she was mad because she thought

she was going to stay with him the rest of the night.

[*P33] By the time of the pre-indictment hearing, Moochie's house

and the house where the bootleg joint was had been torn down.

Hawkins' investigator, Wayne Miller, found the last known address

of the Cartwrights, but was not able to actually locate them. He

visited their last known address, but it looked vacant and vines were

growing from beside the house onto the front door. Miller did locate

Hunter, who was in a prison mental ward, and interviewed him.

When shown a picture of A.J., Hunter said he had never seen her;

he also said he could not recall ever visiting the bootleg joint on

Shoop Avenue.

[*P34] Miller additionally discovered that Squiggy had been

murdered in 2008 and that Tony Ousley passed away in 2011. At

the hearing, Hawkins testified that Moochie was also dead and that

he was not previously aware that Ousley had died. Hawkins said he

could, however, have located both Moochie and Ousley in the past.

[*P35] As was noted, after the court heard the evidence, it concluded

that Hawkins failed to prove actual, substantial prejudice. In

particular, the court noted that its evaluation hinged on Hawkins'

credibility, and that Hawkins was not credible.

[*P36] In contending that the trial court erred, Hawkins argues that

Ohio courts have not employed a credibility analysis in pre-

indictment delay cases. Hawkins further contends that the facts of

this case directly compare to those in [State v. Luck], 15 Ohio St. 3d

150, 15 Ohio B. 296, 472 N.E.2d 1097 [(1984)], where the Supreme

Court of Ohio held that pre-indictment delay had prejudiced the

defendant. We disagree with both assertions.

[*P37] As a preliminary matter, Ohio appellate courts have held that

decisions on motions to dismiss for pre-indictment delay should be

reviewed on the following basis: legal issues are reviewed de novo,

but "the court's findings of fact are afforded great deference."

(Citations omitted.) State v. Powell, 2016-Ohio-1220, 61 N.E.3d

789, ¶ 11 (8th Dist.). See also State v. Zimbeck, 195 Ohio App. 3d

729, 2011-Ohio-2171, 961 N.E.2d 1141, ¶ 20 (6th Dist.); State v.

Winkle, 7th Dist. Mahoning No. 12 MA 162, 2014-Ohio-895, ¶ 23;

State v. Cochenour, 4th Dist. Ross No. 98CA2440, 1999 Ohio App.

LEXIS 1054, 1999 WL 152127, *1 (Mar. 8, 1999).

[*P38] We agree with these standards, which are consistent with

standards of review for other pretrial matters like suppression

motions. In suppression situations, trial courts hear evidence on

factual points and must necessarily make decisions on witness

credibility. See, e.g., State v. Burnside, 100 Ohio St. 3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Brown, 2016-Ohio-4973, 67

N.E.3d 1278, ¶ 7 (2d Dist.). As these decisions note, trial courts "are

in the best position to resolve factual questions and evaluate the

credibility of witnesses." Burnside at ¶ 8, citing State v. Mills, 62

Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).

[*P39] In Luck, the Supreme Court of Ohio considered whether the

defendant was prejudiced by a fifteen-year delay between the time

of a murder and her indictment for the murder. Luck, 15 Ohio St.3d

at 152, 472 N.E.2d 1097. The defendant, Katherine Luck, was one

of the suspects originally interviewed around the time of the crime.

However, after an initial investigation, the police could not gather

any new evidence and took no official action for about fifteen years.

Id. at 151. At that point, for reasons that were not clear in the record,

an indictment was obtained against Luck, and she was arrested. Id.

[*P40] While under arrest, Luck made a confession at the police

station, indicating that she had been physically attacked by the

decedent, who was then killed in the fight that ensued. Id. at 157.

According to Luck's confession, another individual, who was her

acquaintance (and who had also been an original suspect) was

present at the time of the alleged murder. Id. She told the police that

this person, who was the only one who could help her, was dead. Id.

[*P41] After concluding that the confession had been illegally

obtained, the court found that defendant was "obviously prejudiced

by not being able to seek verification of her story from [the deceased

witness] and thereby establish mitigating factors or a defense to the

charge against her." Id. at 158. Finding both actual prejudice and an

unjustifiable delay by the State, the court affirmed the dismissal of

the murder charge. Id. at 159.

[*P42] Unlike the defendant in Luck, Hawkins never asserted, either

when he was originally interviewed in 2002, or when he was

interviewed in 2015, that he had consensual sex with A.J. and that

witnesses existed who could verify his story. Instead, he denied that

he had been involved in any such incident. Consequently, Luck is

not directly comparable to the case before us.

[*P43] In State v. Dixon, 2015-Ohio-3144, 40 N.E.3d 601 (8th

Dist.), the State waited almost 20 years to indict a defendant for rape.

Id. at ¶ 2. After the trial court dismissed the charge due to pre-

indictment delay, the Eighth District Court of Appeals affirmed.

Notably, in that case, two parole revocation hearings were held in

1993, shortly after the victim told the police that the defendant had

raped her. At the parole revocation hearings, the defendant admitted

having sexual intercourse with the complainant, but claimed it was

consensual. Id. at ¶ 6. The defendant was sent back to prison for the

parole violation, but the State did not initiate any prosecution on the

rape charge for almost 20 years, after the police "received a CODIS

[Combined DNA Index System] hit confirmation from the Federal

Bureau of Criminal Investigation that they had made a preliminary

association between a submitted rape kit and the Defendant." Id.

[*P44] Two witnesses who had testified at the parole revocation

hearings were unavailable, including the defendant's former

employer, who was deceased. Id. at ¶ 9. This witness, Norman

Diamond, had testified at the revocation hearings that "he spoke

with the alleged victim after the incident and the victim told

Diamond that 'she had feelings for [Dixon]' and 'if she could not

have [Dixon], no one would.' Diamond further testified that the

alleged victim told him that the sexual encounter was 'mutual with

no force.'" Id.

[*P45] In concluding that the defendant had established actual

prejudice, the court commented that the case against the defendant

hinged on the victim's credibility. Id. at ¶ 30. The court further

observed that the testimony of the deceased witness directly

supported the defendant's assertion that the sex was consensual, and

also undermined the victim's testimony. Id.

[*P46] Again, these facts are far different than those involved in the

case before us. Hawkins never asserted that the sex was consensual

or that witnesses existed.

[*P47] Hawkins also relies on State v. Jones, 148 Ohio St. 3d 167,

2016-Ohio-5105, 69 N.E.3d 688, in which the court stated that a

defendant's "inability to articulate specifically what [a witness's]

testimony would have been does not render his claim of prejudice

fatally speculative," as the court has "held that a defendant may

establish actual prejudice where he or she is unable to seek

verification of his or her story from a deceased witness." Id. at ¶ 28,

citing Luck, 15 Ohio St.3d at 157, 472 N.E.2d 1097. However, by

making these comments, the court was not advancing a novel

proposition of law; it was discussing its prior decision in Luck.

Moreover, the issue in the case before us is not Hawkins' inability

to articulate the content of a deceased witness's testimony; the

relevant matter is that the trial court did not find Hawkins credible.

As was noted, the trial court was in the best position to assess

credibility, and we defer to the court's factual findings.

[*P48] As a final matter, Hawkins contends that the State's pre-

indictment delay was not justifiable, as the police simply allowed

the case to "slip through the cracks." Because Hawkins failed to

meet his initial burden of proving actual prejudice, we need not

consider this issue. See, e.g., Jones at ¶ 13, citing State v. Whiting,

84 Ohio St. 3d 215, 217, 1998-Ohio-575, 702 N.E.2d 1199 (1998),

and State v. Adams, 144 Ohio St. 3d 429, 2015-Ohio-3954, 45

N.E.3d 127, ¶ 99.

[*P49] Accordingly, the trial court did not err when it concluded

that Hawkins failed to establish actual prejudice. The First

Assignment of Error, therefore, is overruled.

State v. Hawkins, 2018-Ohio-867.

In his Reply, Hawkins raises a new argument about pre-indictment delay, to wit, that

prosecution was barred by the statute of limitations. He asserts that the rape statute was amended

effective July 16, 2015, to allow prosecution within twenty-five years after the offense or five

years after a DNA match is made (ECF No. 18, PageID 2309, citing Ohio Revised Code §

2901.13(D)(1) and (2). He claims that both his May 11, 2015, and July 22, 2015, indictments are

untimely under Ohio Revised Code § 2901.13(D)(2) because they came more than five years after

the DNA match in March 2004. This argument misreads Ohio Revised Code § 2903.13(D)(2)

which, in a case in which the DNA match is made within twenty-five years of the offense,

prosecution “may be commenced within the longer of twenty-five years after the offense is

committed or five years after the determination is complete.” The offense here was committed in

July 2002 and twenty-five years from that date will not occur until July 2027. In any event this

statute of limitations claim is procedurally defaulted because it was not presented to the state

courts.

Other than his statute of limitations claim, Hawkins offers no criticism of the Second

District’s decision on his pre-indictment delay claim. Because the court of appeals recognized the

controlling Supreme Court precedent and reasonably applied it to the facts at hand its decision is

entitled to deference under 28 U.S.C. § 2254(d)(1). It was correct in rejecting Hawkins’ claim that

credibility of witnesses is not part of the appropriate standard for review. Anytime a trial court

must decide a factual question on the basis of oral testimony, the credibility of the witnesses who

testify is necessarily a component part of the decision and is entitled to deference by reviewing

state appellate courts and federal habeas courts.

Hawkins First Ground for Relief should be dismissed on the merits.

Ground Four: Conviction Based On Insufficient Evidence

In his Fourth Ground for Relief, Hawkins claims his conviction is based on insufficient

evidence.

An allegation that a verdict was entered upon insufficient evidence states a claim under the

Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d

987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order

for a conviction to be constitutionally sound, every element of the crime must be proved beyond a

reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt . . . . This familiar standard gives full play to the

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable inferences

from basic facts to ultimate facts.

Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United States

v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in Ohio

law at State v. Jenks, 61 Ohio St. 3d 259 (1991)(paragraph two of the syllabus), superseded on

other grounds by state constitutional amendment as stated in State v. Smith, 80 Ohio St.3d 89, 102

n.4 (1997). Of course, it is state law which determines the elements of offenses; but once the state

has adopted the elements, it must then prove each of them beyond a reasonable doubt. In re

Winship, supra.

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the AEDPA, two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). In doing so, we do not reweigh the evidence,

re-evaluate the credibility of witnesses, or substitute our judgment

for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620

(6th Cir. 1993). Thus, even though we might have not voted to

convict a defendant had we participated in jury deliberations, we

must uphold the jury verdict if any rational trier of fact could have

found the defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus

case, deference should be given to the trier-of-fact's verdict under Jackson and then to the appellate

court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer, 541 F.3d 652

(6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc); Parker v.

Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based upon nothing

more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, [2] (2011) (per curiam). And second, on habeas review, "a

federal court may not overturn a state court decision rejecting a

sufficiency of the evidence challenge simply because the federal

court disagrees with the state court. The federal court instead may

do so only if the state court decision was 'objectively unreasonable.'"

Ibid. (quoting Renico v. Lett, 559 U. S. [766, 773,] (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam)(parallel citations omitted); Parker v.

Matthews, 567 U.S. 37, 43 (2012) (per curiam). The federal courts do not make credibility

determinations in reviewing sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d

878, 887 (6th Cir. 2010).

The Warden defends this Ground on the merits, asserting that the Second District’s

decision is not an objectively unreasonable application of Jackson (Return, ECF No. 11, PageID

2259-66).

The Second District discussed Hawkins’ manifest weight and sufficiency of the evidence

claims together, writing:

III. Manifest Weight and Sufficiency of the Evidence

[*P50] Hawkins has raised issues pertaining to manifest weight and

sufficiency of the evidence. Because these issues are related, we will

consider them together. Hawkins' Second Assignment of Error

states that:

The Jury Erred in Finding Mr. Hawkins Guilty of Rape and

Kidnap as the Convictions Are Against the Manifest

Weight of the Evidence.

[*P51] Hawkins' Fourth (and First Supplemental) Assignment of

Error states as follows:

Hawkins' Convictions Were Based on Insufficient

Evidence.

[*P52] Under the manifest weight assignment of error, Hawkins

argues that the physical evidence supports his version of events, and

that A.J. made multiple inconsistent statements. Concerning

sufficiency, Hawkins contends that the only evidence of a forcible

encounter came from A.J., who had a revenge motive to lie, as she

was bitter because she did not succeed in her efforts to find a place

to stay and to obtain money.

[*P53] "A sufficiency of the evidence argument disputes whether

the State has presented adequate evidence on each element of the

offense to allow the case to go to the jury or sustain the verdict as a

matter of law." (Citation omitted.) State v. Wilson, 2d Dist.

Montgomery No. 22581, 2009-Ohio-525, ¶ 10. In such situations,

we apply the test from State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), which states that

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. 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.

(Citation omitted). Id. at paragraph two of the syllabus.

[*P54] In contrast,"[a] weight of the evidence argument challenges

the believability of the evidence and asks which of the competing

inferences suggested by the evidence is more believable or

persuasive." (Citation omitted.) Wilson at ¶ 12. In this situation, a

court reviews "'the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. The

discretionary power to grant a new trial should be exercised only in

the exceptional case in which the evidence weighs heavily against

the conviction.'" State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-

Ohio-52, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio

App.3d 172, 175, 20 Ohio B. 215, 485 N.E.2d 717 (1st Dist.1983).

"The fact that the evidence is subject to different interpretations does

not render the conviction against the manifest weight of the

evidence." State v. Adams, 2d Dist. Greene Nos. 2013-CA-61, 2013-

CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.

[*P55] "Although sufficiency and manifest weight are different

legal concepts, manifest weight may subsume sufficiency in

conducting the analysis; that is, a finding that a conviction is

supported by the manifest weight of the evidence necessarily

includes a finding of sufficiency." (Citations omitted.) State v.

McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11.

Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d 501, ¶ 58 (2d

Dist.) As a result, "a determination that a conviction is supported by

the weight of the evidence will also be dispositive of the issue of

sufficiency." (Citations omitted.) State v. Braxton, 10th Dist.

Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

[*P56] Furthermore, since a factfinder "has the opportunity to see

and hear the witnesses, the cautious exercise of the discretionary

power of a court of appeals to find that a judgment is against the

manifest weight of the evidence requires that substantial deference

be extended to the factfinder's determinations of credibility. The

decision whether, and to what extent, to credit the testimony of

particular witnesses is within the peculiar competence of the

factfinder, who has seen and heard the witness." State v. Lawson, 2d

Dist. Montgomery No. 16288, 1997 Ohio App. LEXIS 3709, 1997

WL 476684, *4 (Aug. 22, 1997).

[*P57] In contrast, "the decision as to which of several competing

inferences, suggested by the evidence in the record, should be

preferred, is a matter in which an appellate judge is at least equally

qualified, by reason and experience, to venture an opinion." Id.

"Consequently, we defer more to decisions on what testimony

should be credited, than we do to decisions on the logical force to

be assigned to inferences suggested by evidence, no matter how

persuasive the evidence may be." State v. Brooks, 2d Dist.

Montgomery No. 21531, 2007-Ohio-1029, ¶ 28, citing Lawson,

1997 Ohio App. LEXIS 3709, [WL] at *4.

[*P58] After reviewing the record, we conclude that the judgment

of the trial court is not against the manifest weight of the evidence,

and, therefore, is also supported by sufficient evidence.

[*P59] Hawkins was indicted on one count of rape in violation of

R.C. 2907.02(A)(2). This statute provides, in pertinent part, that

"[n]o person shall engage in sexual conduct with another when the

offender purposely compels the other person to submit by force or

threat of force." "Sexual conduct" includes, among other things,

"vaginal intercourse between a male and female." R.C. 2907.01(A).

[*P60] Hawkins was also charged with kidnapping in violation of

R.C. 2905.01(A)(4). This statute provides, in pertinent part, that:

No person, by force, threat, or deception, or, in the case of

a victim under the age of thirteen or mentally incompetent,

by any means, shall remove another from the place where

the other person is found or restrain the liberty of the other

person, for any of the following purposes:

* * *

(4) To engage in sexual activity, as defined in section

2907.01 of the Revised Code, with the victim against the

victim's will * * *.

[*P61] As was noted, the victim, A.J., was 15 years old at the time

of the alleged offenses, and the trial did not occur until more than 13

years later. A.J. did not recall every detail, but did specifically recall

encountering Hawkins in the early morning hours of July 30, 2002,

near Shoop Avenue, and walking with him for a period of time,

during which he told her that he had a place for her to stay and that

he wanted to feed her and treat her like his daughter. However, when

they were on a sidewalk that ran behind the Wesley Center, Hawkins

became physical, threw A.J. on the ground, and raped her, by

inserting his penis into her vagina. He also held a knife to her neck

and restrained her.

[*P62] After this occurred, A.J. ran to a nearby Burger King for

help. Her testimony in this regard was corroborated by the security

guard, who stated that a distraught female came to the restaurant

around 4:00 a.m. on July 30, 2002, and asked for help. According to

the guard, the woman was crying and asked him to call the police,

which he did.

[*P63] The responding officer, Jeffrey Huber, testified that when he

arrived at Burger King, A.J. was crying and visibly shaking, and her

hair was out of order. She reported that she had come in contact with

a man on Shoop Avenue, and had walked with him for a while,

during which time he said he would take care of her and get her food.

However, the man subsequently grabbed her while they were behind

the Wesley Center and told her to pull her pants down. When she

resisted, he pulled out a knife and threatened her. He then raped her.

Huber took A.J. back to the Wesley Center, and she pointed out the

area where the rape had occurred. Huber noticed grass in A.J.'s hair

and on her clothing, and he could tell that someone had been on the

ground in the area that she pointed out. He then took A.J. to Dayton

Children's Hospital.

[*P64] The nurse who examined A.J. at the hospital testified about

a history that A.J. had given her concerning the incident. This

history was similar to the facts noted above. The nurse further stated

that A.J. reported pain in her pelvic bone. In addition, the doctor

who conducted A.J.'s physical examination observed swelling in the

vaginal area to the extent that he was unable to insert a small

speculum in that area. The doctor testified that he found evidence of

sexual activity consistent with penile vaginal rape.

[*P65] Detective Ewing, who first worked on the case, met with A.J.

the day after the incident. Ewing also recounted various details of

A.J.'s story that were consistent with A.J.'s statements to the other

witnesses and with A.J.'s trial testimony. Ewing additionally

testified about details of her interview with Hawkins in October

2002. At that time, Hawkins stated that he did not know A.J., would

never have sex with a minor, and would not have sex outside.

Transcript of Proceedings (Jury Trial), Vol. I, p. 237.

[*P66] In contrast to this evidence, Hawkins testified that as he had

during the pre-indictment hearing, which was that he met A.J.

outside the bootleg joint and that they walked to various locations in

the area. Hawkins described A.J. basically as following him

throughout this time, persisting when he walked away from her, and

eventually initiating and consenting to have sexual intercourse. His

implication was that A.J. did so in order to obtain money and shelter.

He also believed that A.J. accused him of rape because she was

angry when he left her after they had sex.

[*P67] There were a few inconsistencies in A.J.'s testimony, such as

whether Hawkins held the knife to the left or to the right side of her

neck, or whether the knife was closed or open. This would not be

surprising, given A.J.'s age at the time of the incident, and the lapse

of time between the incident and her testimony. However,

substantial evidence supported her account.

[*P68] There were inconsistencies in Hawkins' account as well. For

example, Hawkins testified at trial that he had introduced himself by

name to A.J. outside the bootleg joint, and that she had given him

her name as well. He also indicated that he later found out she was

underage and that they had consensual sex outside the Wesley

Center. This testimony was inconsistent with statements Hawkins

made to police in 2002, when he denied knowing A.J., and said he

would not have sex either with a minor or outside. It is also

inconsistent with his statement to police in 2015, when he denied

ever having seen A.J., despite being shown pictures of her taken in

2004, a few years after the incident.

[*P69] "A defendant is not entitled to a reversal on manifest weight

grounds merely because inconsistent evidence was presented at trial.

* * * The trier of fact is free to believe or disbelieve all or any of the

testimony." (Citations omitted.) State v. Crosky, 10th Dist. Franklin

No. 06AP-655, 2008-Ohio-145, ¶ 78. The trier of facts was in the

best position to evaluate witness credibility and to decide the weight

to give the testimony. Lawson, 2d Dist. Montgomery No. 16288,

1997 Ohio App. LEXIS 3709, 1997 WL 476684, at *4. Clearly, the

jury believed A.J. and the ample evidence that supported her

testimony.

[*P70] Because the judgment was not against the manifest weight

of the evidence, it was also supported by sufficient evidence.

Consequently, the Second and Fourth Assignments of Error are

without merit and are overruled.

State v. Hawkins, 2018-Ohio-867.

In his Reply, Hawkins has little to say about the Fourth Ground for Relief. Basically he

reiterates his points about the inconsistencies in the victim’s testimony and her motive to lie

because she did not get the place to stay, some money, and something to eat which she had hoped

for. The jury heard those claims, but also heard the victim’s testimony and found it believable.

The testimony of a single victim is sufficient to support a conviction, and here many of the facts

the victim testified to were corroborated. Hawkins was unable to deny credibly that he had had

sexual intercourse with A.J. and the jury heard testimony of a contemporaneous medical

examination which concluded her vaginal condition was consistent with forcible rape. There was,

therefore, sufficient evidence to convict and the Fourth Ground for Relief should be dismissed.

Ground Five: Ineffective Assistance of Trial Counsel

In his Fifth Ground for Relief, Hawkins asserts he received ineffective assistance of trial

counsel in a number of specific ways.1 The Warden concedes that the five specific sub-claims of

ineffective assistance of trial counsel raised on direct appeal have been preserved for habeas relief,

but argues the Second District’s decision is not an unreasonable application of the governing

federal standard for ineffective assistance of trial counsel set forth in Strickland v. Washington,

466 U.S. 668 (1984).

On Hawkins’ five specific claims, the Second District wrote:

[*P72] Hawkins' Fifth (and Second Supplemental) Assignment of

Error states that:

Hawkins' Counsel Provided Constitutionally Ineffective

Assistance Under the Fifth, Sixth, and Fourteenth

Amendments of the United States Constitution and Article

I, Sections 10 and 16 of the Ohio Constitution.

[*P73] Under this assignment of error, Hawkins' first contention is

that trial counsel was ineffective because he failed to call A.J. as a

witness at the hearing on pre-indictment delay. According to

Hawkins, there is a reasonable probability that the court would have

granted his motion to dismiss the indictment if A.J. had been called

to testify. As support for this assertion, Hawkins recounts A.J.'s trial

testimony, in which she detailed walking around with Hawkins,

being forcibly thrown to the ground, and being raped at knifepoint.

Hawkins does not indicate how this testimony would have assisted

his motion for pre-indictment delay, other than observing that A.J.

remembered some things that happened to her, but did not remember

everything.

[*P74] "In order to prevail on a claim of ineffective assistance of

counsel, the defendant must show both deficient performance and

resulting prejudice." State v. Sosnoskie, 2d Dist. Montgomery No.

22713, 2009-Ohio-2327, ¶ 16, citing Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Trial counsel is

1 He also claims unspecific violations of his Sixth Amendment right and they have been recommended for dismissal

as procedurally defaulted above in the section of this Report under that title.

entitled to a strong presumption that his conduct falls within the

wide range of effective assistance, and to show deficiency the

defendant must demonstrate that counsel's representation fell below

an objective standard of reasonableness." Id.

[*P75] Hawkins has failed to articulate how having A.J. testify at

the motion hearing would have assisted his claim of actual prejudice

in the pre-indictment delay, and we see no potential basis for finding

trial counsel deficient in this regard. In fact, to the extent that A.J.

failed to recall any events, it would have assisted Hawkins at trial in

defending against her claims, i.e., he could have challenged

inconsistencies or gaps in her testimony.

[*P76] Hawkins' second claim of ineffective assistance is based on

the fact that trial counsel requested a jury view. According to

Hawkins, many structures were torn down and he was prejudiced.

He does not suggest how he was prejudiced, and we see no potential

prejudice. Given Hawkins' detailed (and sometimes confusing)

description of routes he and A.J. took while they walked around, a

view of the area would have been helpful to the jury. Furthermore,

the State also requested a jury view, and the trial court would have

had discretion to grant a jury view. See, e.g., State v. Zuern, 32 Ohio

St.3d 56, 58, 512 N.E.2d 585 (1987).

[*P77] Hawkins' third contention is that trial counsel was ineffective

by failing to argue for admission of a social worker's commentary

from the rape kit, which could have been used to impeach A.J.'s

testimony. This evidence was contained in State's Ex. 11R, and

included "references to sexual activity of A.J. and her promiscuity."

Transcript of Proceedings (Jury Trial), Vol. II, p. 332. According to

the record, this matter had been discussed prior to the start of trial,

and the court had informed defense counsel then that the testimony

was inadmissible based on the rape shield law. Id. at pp. 331-32.

During the discussion of this point, defense counsel stated that he

did not pursue the issue based on the court's ruling. Id. at 332.

Nonetheless, the matter, in fact, was discussed in detail, and the trial

court specifically stated that the issue had been preserved for

appellate review. Id. at 332-33.

[*P78] The earlier discussion of this issue occurred in the context of

the renewal of Hawkins' motion to dismiss for pre-indictment delay.

Transcript of Trial Proceedings (Jury Trial), Vol. I, pp. 9-12. At that

point, Hawkins' counsel objected because he had not been able to

obtain records from Grandview Hospital concerning an assault,

perhaps sexual, of A.J. that had allegedly occurred a few weeks

before the July 30, 2002 incident. Grandview Hospital had

destroyed these records after 10 years and they could not be

obtained. Defense counsel had learned of these records based on the

social worker's note in the rape kit; the form also referred to

treatment for sexually-transmitted disease, but the context was not

clear. Id. at p. 11.

[*P79] The trial court stated that this did not affect its prior ruling

on pre-indictment delay for two reasons: (1) the defense had the

information in the rape kit, which was the central issue at trial; and

(2) the records would not have had any impact because there was no

indication that they would have led to any admissible evidence. Id.

at p. 11-12.

[*P80] R.C. 2907.02(D) provides that:

Evidence of specific instances of the victim's sexual

activity, opinion evidence of the victim's sexual activity,

and reputation evidence of the victim's sexual activity shall

not be admitted under this section unless it involves

evidence of the origin of semen, pregnancy, or disease, or

the victim's past sexual activity with the offender, and only

to the extent that the court finds that the evidence is

material to a fact at issue in the case and that its

inflammatory or prejudicial nature does not outweigh its

probative value.

[*P81] "Generally, the rape shield statute excludes evidence of the

victim's prior sexual conduct as a means to attack credibility." State

v. Core, 2d Dist. Montgomery No. 9976, 1987 Ohio App. LEXIS

7591, 1987 WL 12968, *4 (June 17, 1987), citing State v. Ferguson,

5 Ohio St.3d 160, 5 Ohio B. 380, 450 N.E.2d 265 (1983). In order

to avoid violation of the Confrontation Clause, the Supreme Court

of Ohio has used a balancing test to decide whether the evidence

may be admitted in certain limited situations. "The key to assessing

the probative value of the excluded evidence is its relevancy to the

matters as proof of which it is offered." State v. Gardner, 59 Ohio

St.2d 14, 18, 391 N.E.2d 337 (1979). In Gardner, the court rejected

the "assumption that prior unchastity with other individuals

indicates a likelihood of consent to the act in question with the

defendant." Id.

[*P82] "'Cases decided since Gardner * * * have established that in

order for the contested evidence to be admissible, it must be

submitted for a more important purpose than mere impeachment of

a witness's credibility.'" State v. Hicks, 2d Dist. Montgomery No.

17730, 2000 Ohio App. LEXIS 2131, 2000 WL 646505, *4 (May

19, 2000), quoting In re Michael, 119 Ohio App.3d 112, 119, 694

N.E.2d 538 (2d Dist.1997). Accord State v. Hennis, 2d Dist. Clark

No. 2003-CA-21, 2005-Ohio-51, ¶ 52 ("impeaching a witness's

credibility is an insufficient reason for admitting evidence that

violates the Rape Shield Law").

[*P83] Hawkins does not assert any specific basis for admitting the

evidence in question, and it is apparent that the purpose would have

been to challenge A.J.'s credibility, which is forbidden under R.C.

2907.02(D) and cases interpreting the statute. Accordingly, defense

counsel did not act ineffectively in allegedly failing to argue for

admission of the testimony. Moreover, as the State notes, defense

counsel did raise this point with the trial court.

[*P84] The fourth issue that Hawkins raises is defense counsel's

alleged ineffectiveness in failing to provide the trial court with

evidence during the pre-indictment hearing that would have

corroborated phone calls that Tony Ousley made to the Dayton

Police Department. Notably, nothing to this effect was raised during

the pre-indictment hearing, even though Hawkins testified at length

on two different occasions — initially on July 23, 2015, and then on

rebuttal on August 19, 2015, when Hawkins indicated that he had

"remembered some facts that he did not testify to at the previous

hearing." Transcript of Proceedings (Evidentiary Hearing), p. 126.

[*P85] At the subsequent jury trial, Hawkins discussed some events

that allegedly occurred after the DNA swab was taken in late

December 2003. According to Hawkins, he told his friend,

"Moochie," about the fact that he had been swabbed. Moochie then

contacted Ousley, who called the Dayton police. Apparently, the

purpose of this call was to inform someone at the police department

that Hawkins had not raped anyone.

[*P86] At trial, Hawkins did not identify any person who was called,

the date the call took place, the number that was called, or Ousley's

phone number. Hawkins testified that Ousley talked to detectives for

15-20 minutes. Hawkins then talked to someone and handed the

phone back to Ousley. According to Hawkins, when he talked to this

detective on the phone, he was told the detective would "take care"

of it. As a result, Hawkins thought the issue had been resolved.

[*P87] Hawkins now argues that trial counsel was ineffective

because he failed to subpoena telephone call records from the DPD

for use at the pre-indictment delay hearing.

[*P88] As the State notes, these assertions are wholly speculative.

There is no evidence in the record concerning these alleged facts,

other than Hawkins' unsubstantiated and vague statements about a

phone call at some unidentified date to unidentified persons. The

record does not even contain any indication that the police

department recorded calls or numbers for calls, or that telephone

records were maintained or preserved. Furthermore, as the State

points out, the record lacks any indication that even if such records

were maintained, they would indicate who was on a particular

telephone call. Accordingly, we cannot conclude under this set of

facts that trial counsel was ineffective when he failed to subpoena

such records for the pre-indictment delay hearing.

[*P89] Hawkins' final point pertains to trial counsel's failure to

provide the State with notes of his investigator's conversation with

A.J. According to Hawkins, this failure prevented trial counsel from

being able to properly cross-examine and impeach A.J. about

comments she made to the investigator. The comment that Hawkins

mentioned concerns A.J.'s statement that the knife was "closed"

rather than open at the time of the assault.

[*P90] Hawkins' complaint in this context is unclear. At some point

prior to trial, Hawkins' investigator, Wayne Miller, spoke with A.J.

over the telephone. Subsequently, at trial, A.J. testified that Hawkins

threatened her with a pocket or kitchen knife prior to the rape, by

holding it against her neck. She stated that it was more like a kitchen

knife and had a pointed end. During cross-examination, A.J. said she

did not recall talking to Miller about a week before trial, and denied

telling him that the knife was like a folding knife and was closed,

rather than open. Transcript of Proceedings (Jury Trial), Vol. I, pp.

89-91.

[*P91] At that point, the State objected because it had not received

a copy of Miller's report. Defense counsel indicated that Miller had

not made a report; instead, Miller simply told counsel about the

conversation. Id. at p. 92. The following exchange then occurred:

MS. DODD [the prosecutor]: Well, you're — under the

discovery rules as they exist now —

MR. CASS [defense counsel]: That I have to make a

report?

MS. DODD: — we're entitled to the information.

THE COURT: That's true. As I, I don't have Rule 16 in

front of me but I think that is the gist of it. If it's — but it is

quite surprising that she doesn't even remember the phone

conversation.

MS. DODD: She remembers the phone [conversation].

She's told us about the phone conversation. I don't know I

should —

THE COURT: Well, then you —

MS. DODD: And I, we'll have to talk to her about that. But

she does remember the phone conversation.

MR. CASS: I mean I can have him prepare a report for you.

MS. DODD: Well, it isn't going to do me any good now.

THE COURT: How much further are you going to go with

what she told Miller?

MR. CASS: I don't know if I have anything else.

THE COURT: All right. If that's the extent of it, it's done.

What's done is done and you [the State] can talk about it

with her on redirect. Okay?

And — But if Miller's going to testify about it

(indiscernible) evidentiary issues regarding that. But if he

is, you need a report before he testifies.

MR. CASS: Okay.

Transcript of Trial Proceedings, Vol. I, pp. 92-93.

[*P92] At this time, the only party potentially prejudiced was the

State, as it did not have a report from the defense investigator.

Subsequently, during redirect examination, the State did question

A.J. about the phone call. A.J. then said that she recalled receiving

a phone call from an investigator in the last few weeks. She first

stated that the individual identified himself as an investigator

working for the defendant and then said she thought it was a

prosecutor because that is what he said on the phone. Id. at pp. 100-

102.

[*P93] Miller was then called as a witness during the defense case.

Miller explained that he had tried to contact A.J., and that she had

actually called him at his office. According to Miller, A.J. brought

up the knife issue during their conversation. Her statement was that

the knife had a brown handle and was closed. Transcript of

Proceedings, Vol. II, p. 343-344.

[*P94] During Miller's cross-examination, the prosecutor stated that

"And with respect to [A.J.'s] conversation with you — now that

we've moved courtrooms, I have to find your report. Let me find my

copy of your report. I moved it when we moved courtrooms." Id. at

p. 346. The State then cross-examined Miller about his conversation

with A.J. and his report. Id. at 347-349. In addition, the defense

questioned Miller about the conversation with A.J. on redirect

examination. Id. at pp. 350-351.

[*P95] In light of these circumstances, Hawkins' claim of ineffective

assistance of counsel is without merit. Defense counsel was able to

impeach A.J. concerning her inconsistent statements about the knife,

and was also able to present testimony from the defense investigator

during Hawkins' defense case, because Hawkins did produce a

report for the State. The record does not indicate that any more could

or should have been done.

[*P96] Based on the preceding discussion, we find no evidence of

ineffective assistance of counsel. Accordingly, the Fifth (and

Second Supplemental) Assignment of Error is overruled.

State v. Hawkins, 2018-Ohio-867.

In his Reply, Hawkins argues Cass should have called A.J. at the motion to dismiss hearing

because her lapses in memory would have shown the trial judge the needed actual prejudice from

pre-indictment delay. As the Second District found, her memory lapses would have benefited

Hawkins and in any event the identity of witnesses to call is reserved for trial counsel’s discretion.

As to the jury view, Hawkins has shown no prejudice from its occurrence. He does not

dispute the findings of the Second District that it was requested by both parties and that his own

description of the route he and A.J. took the night of the events was confused. Regarding the

omitted subpoena to the Dayton Police Department for telephone records, Hawkins’ claim that

they could have been easily produced from ten years earlier is unsubstantiated. Lastly, defense

counsel did produce a report from the investigator and the lack of a report in the first instance did

not prevent relevant testimony.

In sum, Hawkins has not shown that the Second District’s decision on his five specific sub-

claims of ineffective assistance of trial counsel is an unreasonably application of Strickland. His

Fifth Ground for Relief should be dismissed on that basis.

Ground Six: Denial of Due Process by Trial Court Error

In his Sixth Ground for Relief, Hawkins claims the trial court denied him a fair trial by

allowing the jury view, by cutting his own testimony short, and by violating unspecified Ohio

statutes and rules of evidence. The Second District decided this claim on the merits and the

Warden concedes it is preserved for merit review here, albeit the review is required to be

deferential under AEDPA.

The Second District understood this to be a federal constitutional claim, but found there

was no abuse of discretion in allowing the view even though many structures in the area had been

torn down. Hawkins pointed to no relevant federal case law in his brief to the Second District and

cites none in this Court. A jury view is not evidence under Ohio law and the trial judge correctly

instructed the jury to that effect. State v. Richey, 64 Ohio St. 3d 353, 367 (1992); State v. Hopfer,

112 Ohio App. 3d 521, 542 (1992). Whether to grant a jury view is “within the sound discretion

of the trial court.” State v. Lundgren, 73 Ohio St. 3d 474, 490 (1995), quoting Calloway v.

Maxwell, 2 Ohio St.2d 128 (1965). But abuse of discretion is not a denial of due process Sinistaj

v. Burt, 66 F.3d 804, 807-08 (6th Cir. 1995). There is no constitutional right for a defendant to be

present at a jury view. Snyder v. Massachusetts, 291 U.S. 97, 108 (1934). Therefore, the Second

District’s decision on the jury view issue is not an objectively unreasonable application of clearly

established Supreme Court precedent and is entitled to deference.

Hawkins also claimed on direct appeal that the trial court had denied him due process and

particularly the right to defend himself by cutting short his testimony. As the Second District

noted, Hawkins had already left the witness stand when he interrupted the court and asked to say

something more. State v. Hawkins, 2018-Ohio-867 ¶ 105. His counsel did not seek to reopen his

testimony and he does not indicate to what he was prevented from testifying. There is no

constitutional right to reopen one’s testimony once one has left the witness stand. At trial the judge

cut Hawkins off by preventing him from testifying to hearsay, to wit, things said to him by

deceased witnesses. There is no constitutional right to present hearsay testimony in one’s defense.

The Second District’s decision on this issue is also entitled to deference under AEDPA and

Hawkins Sixth Ground for Relief should be dismissed.

Ground Seven: Prosecutorial Misconduct

In his Seventh Ground for Relief, Hawkins asserts the prosecutor committed misconduct

by withholding exculpatory material required to be produced under Brady v. Maryland, 373 U.S.

83 (1963). He also asserts the prosecutor misrepresented the evidence and produced false

evidence. In the Petition these claims are made very generally: he does not state what Brady

evidence was withheld, what false evidence the State produced, or what evidence the prosecutor

misrepresented.

On direct appeal, Hawkins asserted misconduct in the inclusion of an allegation in the

indictment that the victim as under age thirteen or was incompetent. The Second District found

this claim forfeited by failure to object to the indictment in the trial court. State v. Hawkins, 2018-

Ohio-8667, ¶ 112-18.

As to Brady material, Hawkins claimed on direct appeal that the State had suppressed the

victim’s Grandview Hospital records regarding a prior assault and her mental health records. The

Second District found that those were not Brady material because Hawkins had knowledge of

them. The court further found that the records were not suppressed by the State because they had

only ever been in the possession of the hospital and had been destroyed pursuant to the hospital’s

routine records disposition policy. Id. at ¶¶ 121-26.

In his Reply, Hawkins complains about improper witness vouching in closing argument

and cross-examination which was intended to undermine his credibility (ECF No. 18, PageID

2321). Neither of these claims was raised in the state courts and they are therefore procedurally

defaulted. As to Brady material, he claims in the Reply that the State is withholding Detective

Olinger’s case file pertaining to this case. Id. at PageID 2322. That claim was also not raised on

direct appeal and is thereby procedurally defaulted.

With respect to the Brady claims actually made on direct appeal, Hawkins merely repeats

his allegations about A.J.’s hospital and mental health records without rebutting the findings of the

court of appeals about which entity had possession of them. Id. at PageID 2322.

Based on this Court’s review, the Second District’s decision is not an objectively

unreasonable application of Brady or of other Supreme Court precedent on prosecutorial

misconduct. Therefore, the state court decision is entitled to deference under AEDPA and Ground

Seven should be dismissed.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,

Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth

Circuit that any appeal would be objectively frivolous and therefore should not be permitted to

proceed in forma pauperis.

December 4, 2019.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days

because this Report is being served by mail. Such objections shall specify the portions of the

Report objected to and shall be accompanied by a memorandum of law in support of the objections.

A party may respond to another party’s objections within fourteen days after being served with a

copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on

appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947,

949-50 (6th Cir. 1981).