Kaaz v. Harris

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

GENE KAAZ,

Petitioner, : Case No. 1:18-cv-865

- vs - District Judge Douglas R. Cole

Magistrate Judge Michael R. Merz

CHAE HARRIS, Warden,

Lebanon Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case was brought by Petitioner Gene Kaaz with the assistance of

counsel to obtain relief from his conviction in the Clinton County Court of Common Pleas on

charges of rape, sexual battery, unlawful sexual conduct with a minor, and importuning (Petition,

ECF No. 1, PageID 1). Contemporaneously with filing the Petition, Kaaz filed a Memorandum in

Support (ECF No. 3). On order of Magistrate Judge Karen Litkovitz, Respondent filed the State

Court Record (ECF No. 8) and a Return of Writ (ECF No. 9). Petitioner then filed a Reply (ECF

No. 10), making the case ripe for decision.

The Magistrate Judge reference of the case was recently transferred to the undersigned to

help balance the Magistrate Judge workload in the District.

Litigation History

On June 22, 2015, a Clinton County, Ohio, grand jury indicted Kaaz on five counts of Rape

in violation of Ohio Revised Code § 2907.02(A)(1)(b))(Counts 1, 2, 3, 4) and Ohio Revised Code

§ 2907.02(A)(2) (Count11); three counts of Sexual Battery in violation of Ohio Revised Code §

2907.03(A)(5) (Counts 5, 8, 12); three counts of Unlawful Sexual Conduct with a Minor in

violation of Ohio Revised Code § 2907.04(A))(Count 6, 9, 13); and three counts of Importuning

in violation of Ohio Revised Code § 2907.07(B)(1))(Counts 7, 10, 14)(Indictment, State Court

Record, ECF No. 8, Ex. 1). A trial jury found him guilty on all counts and he was sentenced to an

aggregate term of imprisonment of thirty years to life.

Represented by new counsel, Kaaz appealed to the Ohio Court of Appeals for the Twelfth

District which affirmed the convictions and sentence. State v. Kaaz, No. CA2016-05-010, 2017-

Ohio-5669 (Ohio App. 12th Dist. July 3, 2017), appellate jurisdiction declined, 2018-Ohio-723

(Feb. 28, 2018). On December 6, 2018, Kaaz filed his Petition here, pleading the following

Grounds for Relief:

Ground One: Violation of Due Process based on insufficient

evidence when the state failed to present evidence based on distinct

acts for each count, but instead presented evidence based on

inferences/estimates.

Supporting Facts: Kaaz was indicted in a 14 count indictment.

However, at trial there was no specific testimony that could be

linked to at least 10 of those counts. Courts cannot uphold multiple

convictions when they are unable to discern the evidence that

supports each individual conviction. Because the state indicted Kaaz

in a sweeping 14 count indictment, it assumed to responsibility [sic]

to link specific and distinct evidence to each and every count against

Kaaz. Because it failed to do so. Kaaz’s convictions are supported

by insufficient evidence and his convictions and sentences are in

violation of due process.

Ground Two: Violation of due process by prosecutor engaging in

prejudicial prosecutorial misconduct.

Supporting Facts: The prosecutor engaged in prosecutorial

misconduct by disparaging Kaaz by referring to him as a “predator”

and a “pedophile” in opening statements. Further, the prosecutor

engaged in misconduct by intentionally and gratuitously telling the

jury that Kaaz was willing to take a plea deal, knowing full well that

such evidence was inadmissible and highly prejudicial. These

instances of misconduct were flagrant and made in bad faith, and

they deprived Kaaz of his right to due process and a fair trial.

Ground Three: Kaaz’s convictions are contrary to the manifest

weight of the evidence presented at trial and he is actually innocent

of the charges against him.

Supporting Facts: Kaaz’s imprisonment for crimes he did not

commit, and [of] which he is actually innocent, constitutes a

fundamental miscarriage of justice in violation of due process and

the 14th Amendment.

Ground Four: The cumulative effect or errors committed at Kaaz’s

trial deprived him of his right to fair trial and due process

Supporting Facts: Even if each error individually did not deprive

Kaaz of due process and his right to a fair trial, the cumulative effect

of errors deprived him of due process and his right to a fair trial. The

individual errors included: 1) insufficient evidence due to estimate

and inferences; 2) prosecutorial misconduct; 3) admission of other

bad act evidence; 4) the prosecutor telling the jury that he was

willing to enter into a plea agreement; 5) permitting a social worker

vouch the credibility of a witness; 6) the admission of prejudicial

hearsay evidence admitted for the purpose of bolstering the

credibility of another witness.

(Petition, ECF No. 1, PageID 5-10).

Analysis

Ground One: Insufficient Evidence to Convict

The Parties’ Positions

In his First Ground for Relief, Kaaz claims the State presented insufficient evidence to

convict him because “the state failed to present evidence based on distinct acts for each count, but

instead presented evidence based on inferences/estimates.” (ECF No. 1, PageID 5.)

In his Memorandum in Support, Kaaz argues

Numerous charges cannot be made out through estimation and

inference. Instead, if prosecutors seek multiple charges against a

defendant, they must link those multiple charges to multiple

identifiable offenses. Due process requires this minimal step. Courts

cannot uphold multiple convictions when they are unable to discern

the evidence that supports each individual conviction.

(Memorandum, ECF No. 3, PageID 25, quoting Valentine v. Konteh, 395 F.3d 626, 637 (6th Cir.

2005)). The Memorandum then specifies the claim:

With the exception of Counts 11, 12, 13, and 14, which are arguably

attached to the March 15, 2015 allegation. J.R.-1[1] did not testify

to any specific details that can be attributed to any of the other

specific counts. She only testified in generalities and vague and

uncertain time frames. J.R.-1 testified that the abuse happened in her

"bedroom, his room, the bathroom, and outside the house, the garage

. . . maybe even the game room." "Sometimes it was once a week,

once every two weeks.

1 Because Kaaz’s spouse Cindy had three children with the same initials, Kaaz refers to the victim as J.R.-1

(Memorandum, ECF No. 3, PageID 18, n.1). She is referred to in the court of appeals’ decision simply as J.R. Except

when quoting Kaaz’s filings, the Magistrate Judge will use the abbreviation chosen by the state court.

Id. Kaaz also cites two cases from the Ohio Eighth District Court of Appeals, State v. Hemphill,

2005-Ohio-3726 (Ohio App. 8th Dist. July 21, 2005), and State v. Hilton, 2008-Ohio-3010 (Ohio

App. 8th Dist. June 12, 2008).

In the Return of Writ, Respondent distinguishes Valentine as a sufficiency-of-the-charging-

document precedent as opposed to a sufficiency-of-the-evidence case. Respondent further notes

that the counts of the indictment in this case are not “carbon copies” of one another as the counts

were in Valentine, but charge different specific time periods. Numerous federal courts have upheld

convictions in child sexual abuse cases, the Return argues, even when the time period charged is

fairly lengthy.

In his Reply Kaaz notes that while Valentine is not a Supreme Court case, the Sixth Circuit

in Valentine relied on Russell v. United States, 369 U.S. 749 (1962). He summarizes his complaint

about the vagueness of the proof by claiming

[B]ased on the alleged victim’s vague and decidedly nonspecific

testimony, no rational trier of fact could have found that he

committed four separate rapes in each of the four years between

September 4, 2009 and September 3, 2013, and an act of Sexual

Battery, an act of Unlawful Sexual Conduct, and an act of

Importuning in each of the two years between September 4, 2013

and March 1, 2015.

(Reply, ECF No. 10, PageID 1292.)

The Magistrate Judge’s Analysis

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 Oct. 12, 2007). This rule was recognized

in Ohio law at State v. Jenks, 61 Ohio St. 3d 259, 273 (1991), citing Jackson, supra. 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, 397 U.S. at 364.

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

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(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, 656 (6th Cir. 2008), citing Parker v.

Renico, 506 F.3d 444, 448 (2007); 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], 132 S.Ct. 2, 181 L.Ed.2d 311, 313 (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], 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010)).

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

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 this case the federal constitutional question of the sufficiency of the evidence was

presented to the Ohio Twelfth District Court of Appeals and decided by that court adversely to

Kaaz’s claim. That court’s decision is not contrary to relevant Supreme Court precedent; it

employed the Jackson standard as it is embodied in Ohio precedent. Kaaz, 2017-Ohio-5669, ¶9,

citing State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

Furthermore, Kaaz does not assert the Twelfth District misquoted the relevant evidence

presented at trial which was as follows:

A. Trial Testimony

1. Child Protection Unit Caseworker

[*P14] After reviewing the record, we find that Kaaz's convictions

are all supported by sufficient evidence and were not otherwise

rendered against the manifest weight of the evidence. During Kaaz's

trial, the state presented testimony from several witnesses. The first

was an investigative caseworker with the Clinton County

Department of Job and Family Services, Child Protection Unit. The

caseworker testified that he investigated an allegation that Kaaz was

allowing children to smoke marijuana and drink alcohol, and

providing them with such. When Kaaz's wife admitted that there was

marijuana in the home, the caseworker continued his investigation.

As part of the investigation, the caseworker interviewed J.R.

[*P15] J.R. confirmed that she consumed alcohol and marijuana

provided to her by Kaaz. J.R., who was confined in a detention

center at the time of her interview, admitted that she had been

drinking from a young age. The caseworker learned that J.R. had

been in trouble for unruliness and kicking a police car, and that she

engaged in self-harm through cutting herself. J.R. became more

comfortable with the caseworker during their discussion, and

ultimately shared that Kaaz had sexually abused her. The

caseworker scheduled a follow-up interview with J.R., and

contacted police regarding the allegations.

[*P16] During the follow-up interview with the caseworker and his

supervisor, J.R. provided additional information regarding the

sexual abuse she suffered from Kaaz. J.R. told the caseworker that

the sexual abuse, which included vaginal intercourse, occurred on

the chair in Kaaz's garage. J.R. also told the caseworker and

supervisor that Kaaz would sometimes "pull out and ejaculate on the

chair" or ejaculate inside of her if she was menstruating at the time.

The caseworker and his supervisor gave this information to police.

2. Child Protection Unit Supervisor

[*P17] The state next presented testimony from the caseworker's

supervisor, who is the investigative supervisor of the Child

Protection Unit. The supervisor testified that when she and the

caseworker interviewed J.R., J.R. indicated that she suffered sexual

abuse at the hands of Kaaz since the age of nine. The sexual abuse

would occur in the garage, on Kaaz's bed, and in Kaaz's bathroom.

The supervisor then testified that she and the caseworker reacted to

J.R.'s statement by informing police, specific to the sexual abuse

occurring on the chair in the garage, for investigatory purposes.

[*P18] The supervisor also testified that she interviewed Kaaz, and

that he denied giving J.R. alcohol or marijuana, but did state that he

had lain in bed with J.R. However, Kaaz told the supervisor that

nothing sexual occurred between himself and J.R. and that J.R. was

a troubled child. When the supervisor specifically advised Kaaz of

the allegations J.R. made, Kaaz "advised that he didn't want to talk

about that any longer." The supervisor testified that when she asked

Kaaz if there would be any reason his and J.R.'s DNA would be

found on the chair in the garage, "his eyes got bigger. He sat back

further and advised that he no longer wanted to talk, he wanted an

attorney."

3. Detective

[*P19] The state also presented testimony from a Wilmington Police

Department detective who was contacted by the supervisor and

caseworker regarding J.R.'s allegations of sexual abuse against

Kaaz. The detective testified that once he was given information

about the chair in Kaaz's garage, he obtained a search warrant and

seized the chair. The detective described the chair as "nasty," and

"dirty." Together with his supervisor, the detective moved the chair

to the police station's evidence room where it was later analyzed by

a special agent of the Ohio Bureau of Criminal Investigations

("BCI"). The detective testified that after the special agent found the

presence of seminal fluid and other stains on the chair, he secured

another search warrant to obtain DNA samples from Kaaz and the

victim, and that police collected the samples from both.

4. BCI Agent

[*P20] The state next presented testimony from the BCI agent who

took DNA samples from the chair. The agent testified that he

performed a forensic sweep on the chair, and that he employed a

black light to determine if the chair contained saliva, urine, or

semen. When the light indicated several stains, the agent cut the

fabric on the chair and did a preliminary test on the stained areas, as

well as the chair's inside cushion. The preliminary tests indicated

that the stains on the chair and the cushion contained seminal fluid.

The agent then sent the samples to the laboratory for DNA testing.

5. Forensic Scientists

[*P21] The state called multiple BCI forensic scientists, who

testified about testing the samples. The scientists confirmed that the

samples tested positive for semen, and that DNA found on the chair

belonged to Kaaz and J.R.

6. Mayerson Forensic Interviewer

[*P22] The state then called a social worker and forensic interviewer

who is employed at the Mayerson Center for Safe and Healthy

Children. The interviewer testified that her role at the Center is to

"assess if something has happened to a child or if they have

witnessed significant violence. Then my role is to assess the need

for medical care which includes like physical medical care, but also

mental health care." The interviewer testified that when she spoke

to J.R., J.R. provided "a lot of detail" regarding Kaaz's sexual abuse.

Based on the information regarding the sexual abuse, the interviewer

determined that J.R. needed a medical consultation as well as

ongoing mental health therapy.

7. J.R.'s Brother

[*P23] The state then began presenting evidence from J.R.'s family

about Kaaz and his actions in the years leading up to the sexual

abuse allegations. In this regard, J.R.'s brother was the first to testify.

He disclosed that Kaaz allowed him to drink alcohol when he was

as young as 12, and that he and Kaaz drank alcohol together on

multiple occasions. J.R.'s brother also testified that Kaaz began

giving him marijuana in seventh grade, and that Kaaz provided him

marijuana on multiple occasions. According to J.R.'s brother, Kaaz

drank heavily, and when drunk, he would make "dirty comments,"

be "more touchy," and act "perverted * * * he would talk about parts

of a girl or a guy." Kaaz also showed nude photographs to J.R.'s

brother.

[*P24] J.R.'s brother testified that he noticed that Kaaz was more

"touchy feely" with J.R. than he was with the other siblings, and that

Kaaz would lie with J.R. on the couch, on his bed, or go out to the

garage with J.R. Kaaz would also massage J.R. while she was sitting

on the couch, and J.R.'s brother saw Kaaz and J.R. in Kaaz's bed

together. J.R.'s brother testified that he would find Kaaz and J.R.

together in bed at least once a week, and that Kaaz and J.R. would

spend hours at a time in the garage with the door closed and locked.

Kaaz also told J.R.'s brother to "go away" when Kaaz wanted to

spend time alone in the garage with J.R.

[*P25] J.R.'s brother testified that J.R. confided in him and their

older sister that Kaaz had "sexual conduct" with her and that she felt

that the conduct was inappropriate but did not know how to stop it.

J.R. told her brother that the sexual abuse had started when she was

nine years old. J.R.'s brother testified his reaction to what J.R. told

him was to be "scared and threatened," and thus he did not tell

anyone until much later.

8. J.R.

[*P26] J.R. then testified about the sexual activity that had taken

place over the last several years. J.R. testified that when she was

younger, around eight or nine years old, she felt ill and lay in Kaaz's

bed to be cared for. Kaaz gave her whiskey to drink and

subsequently kissed her. Kaaz then put his penis in J.R.'s mouth and

later put his mouth on her vagina. J.R. testified that she ran into the

bathroom and vomited after Kaaz finished. When J.R. was ten years

old, Kaaz was giving her beer, and by 11, he was giving her

marijuana.

[*P27] J.R. testified that Kaaz's demeanor would change often, and

that alcohol was often a part of her sexual abuse. Kaaz would ask

J.R. to massage him, and then take her to the garage where he would

engage in vaginal intercourse with her after giving her shots of

alcohol to drink. J.R. also testified that Kaaz would engage in oral

and anal sex with her. The sexual conduct would occur more than

once a week, and Kaaz never went more than a month without

engaging in sexual conduct with J.R. J.R. also confirmed her

brother's testimony regarding his seeing Kaaz and her together in

bed, and testified that before her brother came to the door, she and

Kaaz had intercourse.

[*P28] J.R. also testified that when she would tell Kaaz not to touch

her, he would tell her that he could make her feel better, that she

acted out when she did not have "it," and that they could make each

other feel good. Kaaz also told J.R. not to tell anyone about the

sexual conduct or they would both get into trouble. However, J.R.

did tell her sister and brother, just as her brother testified to earlier

in the trial.

9. J.R.'s Older Sister

[*P29] J.R., who is the youngest of the four children, had two sisters.

The older sister testified that Kaaz began providing her alcohol

when she was 11 or 12, and that she would get drunk on the alcohol

Kaaz provided her. Kaaz also provide her marijuana, which they

smoked together. J.R.'s sister also testified that Kaaz would talk to

her about sexual intercourse, specifically as to what positions she

should use with her partners. Kaaz also showed J.R.'s sister pictures

of genitals and described what areas to touch for pleasure. Kaaz also

demonstrated sexual positions with J.R.'s sister by grabbing her hips

and showing her how to move on top of him.

[*P30] J.R.'s sister also testified that when she and Kaaz were

talking about oral sex, Kaaz licked her bare leg on her inner thigh.

Kaaz also kissed her on the lips while lying on the floor with her.

He also kissed her on the back of her ear, moving down her neck

and across the front of her upper chest. J.R.'s sister later testified that

one night, she woke up and Kaaz was trying to put his hand up her

shirt. J.R.'s sister confirmed during her testimony that J.R. told her

and their brother about Kaaz's sexual abuse. J.R. also told her sister

that she and Kaaz had sexual intercourse.

10. J.R.'s Other Sister

[*P31] The younger of J.R.'s sisters testified that Kaaz offered her

alcohol and marijuana and pressured her into using marijuana with

him. He also showed her images of nude women, which the sister

found "disgusting." The sister also testified that she saw Kaaz and

J.R. go to the garage together, "a couple times a week," and that the

garage door was then shut and locked. Because of what occurred in

the household, the sister testified that she would not go into the

garage herself.

11. Kaaz

[*P32] Kaaz testified in his own defense, and denied any sexual

conduct with J.R. On cross-examination, he denied every allegation

J.R. and her siblings testified to, including providing marijuana for

the children, touching any of them inappropriately, or having any

sexual contact with them. Kaaz indicated that the children's

testimony was fabricated and that the children were "liars."

12. Kaaz's Son

[*P33] Kaaz's son from a previous relationship also testified in his

defense. The son testified that he had never seen any sexual contact

between Kaaz and J.R. However, Kaaz's son also testified that he no

longer lived with Kaaz because Kaaz gave him alcohol and

marijuana when he was in the fifth grade, and his mother then made

him reside with her.

Id.

Apparently Kaaz does not contest proof of such elements as J.R.’s age, to wit that she was

born, as the Indictment alleges, on September 4, 2000. The sexual conduct is alleged to have

occurred in consecutive one-year periods between September 4, 2009, and March 1, 2015 (Counts

1 to 10) and then on or about a specific date, March 15, 2015 (Count 11-14).2 Thus, the victim

2 While Kaaz does not expressly concede that Count 11-14 are specific enough, he makes no argument that they are

not. Plainly the allegation that the sexual misconduct in those counts happened “on or about” March 15, 2015, is

adequate.

would have been under the age of thirteen until September 4, 2013, as required to prove the age

element of Counts 1-4.

Kaaz also does not dispute that he was J.R.’s stepparent (Counts 5 and 8). He does not

dispute that during the period September 4, 2013-2014, he was over eighteen and J.R. was thirteen

(Count 6). He does not dispute that during the same period and the period September 4, 2014, to

March 1, 2015, he was more than four years older than J.R. (Counts 7 and 10.) He does not

dispute that he was more than ten years older than J.R. during the period September 4, 2014-March

1, 2015 (Count 9). Rather, what he disputes is that there was any sexual conduct between him and

J.R. at any time between September 4, 2009, and March 1, 2015.

To prove that the sexual misconduct occurred, the State produced the direct testimony of

J.R. to the behavior, her prior consistent statements to older siblings that the misconduct had

occurred; the corroborating testimony from siblings about alcohol and marijuana in the home and

its use (which Kaaz admitted at trial) and time spent by J.R. and Kaaz in the garage; and the

forensic evidence of Kaaz’s sperm on the chair in the garage, along with J.R.’s DNA. Kaaz

attempted to explain his sperm on the chair by saying he and his wife had sex in the chair in the

garage. He also admitted some of the children were smoking marijuana and drinking alcohol in

the home with his knowledge and that he had developed a serious drinking problem. There

certainly was sufficient evidence if believed to prove every count in the indictment, some of them

many times over.

Kaaz argues that he was convicted by “estimates” and “inferences.” However, the State

did not indict Kaaz for multiple rapes of J.R. the year she was nine, for example. It indicted him

for one count of rape of a nine-year-old child during the year she was nine and she testified it

happened multiple times that year. She gave testimony to particular places around the house where

it happened (including the chair in the garage), but she did not give particular dates.

In Valentine, the defendant was convicted of twenty "carbon-copy" counts of child rape

and twenty similar counts of felonious sexual penetration against his eight-year-old stepdaughter,

and was sentenced to forty consecutive life sentences. The district court had granted habeas corpus

relief on all charges on grounds that the indictment was not specific enough to provide Valentine

with Double Jeopardy protection should he be charged again in exactly the same words. The Sixth

Circuit affirmed on only thirty-eight of the counts, leaving Valentine with two consecutive life

sentences on an indictment that charged all of the offenses occurred between March 1, 1995, and

January 16, 1996. The court found the indictment was sufficiently specific to charge one count of

rape and one count of felonious sexual penetration during that period. In contrast to the indictment

in Valentine, the indictment here charges offenses occurring during different periods of time.

Having been convicted once of raping his stepdaughter during the period September 4, 2009, to

September 3, 2010, Kaaz can never again be charged with that offense.

As Respondent points out, Valentine is not a sufficiency of the evidence case, but rather

about the due process requirement that a defendant be given sufficient notice of the alleged offense

so that he can defend himself in the current case and plead double jeopardy if charged again. As

Petitioner acknowledges, Valentine relied on Russell v. United States, 369 U.S. 749 (1962), the case

in which the Supreme Court put forth the criteria by which the sufficiency of an indictment is to

be measured:

These criteria are, first, whether the indictment

"contains the elements of the offense intended to be

charged, 'and sufficiently apprises the defendant of

what he must be prepared to meet,'" and, secondly,

"'in case any other proceedings are taken against him

for a similar offense whether the record shows with

accuracy to what extent he may plead a former

acquittal or conviction.'"

Valentine, 395 F. 3d at 631, quoting Russell, 369 U.S. at 763-64. Kaaz raised no objections to the

specificity of the indictment before trial and appears to have had no difficulty defending himself

at trial. In Valentine the Sixth Circuit found “the indictment violated Valentine's rights to notice

and his right to be protected from double jeopardy,” Id. It did not hold Valentine had been

convicted on insufficient evidence.

As to the one-year periods of time alleged in Counts One through Ten, federal courts have

upheld the sufficiency of pleading that the offense took place within relatively large chunks of

time. Isaac v. Grider, 211 F.3d 1269, 2000 WL 571959 at *5 (6th Cir. 2000)(four months); Madden

v. Tate, 830 F.2d 194, 1987 WL 44909, at *1-*3 (6th Cir. 1987) (six months); see also Fawcett v.

Bablitch, 962 F.2d 617, 618-19 (7th Cir. 1992) (six months); Hunter v. New Mexico, 916 F.2d 595, 600

(10th Cir. 1990) (three years); Parks v. Hargett, 1999 U.S. App. LEXIS 5133, 1999 WL 157431, at *4

(10th Cir. 1999) (seventeen months). More specificity might be necessary to give fair notice if, for

example, a defendant had an alibi for part of the time charged, but Kaaz admits being in and around

the places where J.R. lived during the times when the offenses occurred. Valentine itself approves a

period of almost a year.

In this case the evidence is sufficient under the Jackson standard and the indictment is sufficient

under Russell. Therefore, the Twelfth District’s decision on the sufficiency of the evidence assignment

of error is not an unreasonable application of the relevant Supreme Court authority and is entitled to

deference under AEDPA. Ground One should be dismissed with prejudice.

Ground Two: Prosecutorial Misconduct

In his Second Ground for Relief, Kaaz claims he was denied a fair trial by the prosecutor’s

labeling him as a predator and a pedophile during opening statements and implying to the jury Kaaz

was willing to accept a plea bargain.

The Twelfth Disdtrict Court of Appeals decided this claim on the merit as follows:

III. Prosecutorial Misconduct

[*P49] Assignment of Error No. 3:

[*P50] THE TRIAL COURT ERRED TO THE PREJUDICE OF

DEFENDANT-APPELLANT AS HE WAS DENIED DUE

PROCESS AND A FAIR TRIAL WHEN THE TRIAL COURT

ALLOWED THE PROSECUTING ATTORNEY TO ENGAGE IN

MISCONDUCT.

[*P51] Kaaz argues in his third assignment of error that the

prosecutor engaged in misconduct during his trial.

[*P52] For a conviction to be reversed on the basis of prosecutorial

misconduct, a defendant must prove the prosecutor's acts were

improper and that they prejudicially affected the defendant's

substantial rights. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-

6207, ¶ 62. To demonstrate prejudice, a defendant must show that

the improper remarks or questions were so prejudicial that the

outcome of the trial would clearly have been otherwise had they not

occurred. State v. Jones, 12th Dist. Butler No. CA2006-11-298,

2008-Ohio-865, ¶ 21.

[*P53] The focus of "an inquiry into allegations of prosecutorial

misconduct is upon the fairness of the trial, not upon culpability of

the prosecutor." State v. Gray, 12th Dist. Butler No. CA2011-09-

176, 2012-Ohio-4769, ¶ 57. As such, prosecutorial misconduct "is

not grounds for error unless the defendant has been denied a fair

trial." State v. Olvera-Guillen, 12th Dist. Butler No. CA2007-05-

118, 2008-Ohio-5416, ¶ 27.

[*P54] During Kaaz's cross-examination, the state questioned Kaaz

about the allegations of sexual abuse. At one point, the prosecutor

stated, "speaking of phone calls, you advised your parents you'd take

a plea deal in this case." Kaaz's counsel immediately objected, and

the trial court sustained the objection. Kaaz did not answer or

address the state's question at all. The transcript indicates that a side-

bar was held, which was not transcribed in the record. Even so, the

transcript later indicates that the state and Kaaz's defense counsel

discussed with the trial court whether the question would require a

mistrial.

[*P55] The state indicated that the reason it sought to admit the

conversation between Kaaz and his parents when he mentioned the

plea deal was to provide context for Kaaz's later statement to his

parents that he would "beat" the system and receive probation rather

than a prison sentence. There were no actual plea negotiations

between the state and Kaaz referenced in the prosecutor's question,

and Kaaz was merely speaking to his parents about his plans to

manipulate the justice system. The state's attempt to question Kaaz

regarding his conversation with his parents was not made to indicate

a failed attempt at plea negotiations, nor was it an attempt to indicate

that Kaaz expressed any guilt.

[*P56] Although the state later indicated why it was posing the

question and the issue was cured by the defense's objection, the

inference of Kaaz's willingness to plead — regardless of his reason

for doing so — was not necessary to prove the charges facing Kaaz,

and any gains hoped to be made by the state that Kaaz was

attempting to avoid a prison sentence pale in comparison to the

victim's testimony and corroborating DNA evidence. Simply stated,

it was unnecessary for the state to venture into this territory, yet, it

is clear Kaaz was not prejudiced to any extent that denied him a fair

trial.

[*P57] Aware of the state's intent, this question did not rise to the

level of prosecutorial misconduct. While a plea deal would rarely be

admissible at trial, the prosecution had a good faith basis for

attempting to ask the question. State v. Gillard, 40 Ohio St.3d 226,

231 (1988)[(abrogated on other grounds by State v. McGuire, 80

Ohio St.3d 390, 402 (1997))] ("a cross-examiner may ask a question

if the examiner has a good-faith belief that a factual predicate for the

question exists"). Furthermore, the trial court specifically instructed

the jury that statements made by the attorneys were not evidence and

should not be considered as evidence. Given this instruction and the

immediate sustaining of Kaaz's objection to the question, the jury

would not have considered the prosecutor's question.

[*P58] Kaaz also claims prosecutorial misconduct because the state

referred to him during its opening statement as a "pedophile" and a

"predator." While Kaaz argues that this name-calling was

perpetuated to damage his character and prejudice him in the eyes

of the jury, we disagree. The context of the statements, as indicated

in the trial transcript, indicate that the state was telling the jury what

it believed the evidence would prove, specific to the charges against

Kaaz. Specifically, the full statement was, "the evidence in this case

will prove beyond a reasonable doubt that defendant is a predator

and a pedophile and that over the course of the last seven years he

has repeatedly sexually molested and raped" J.R.

[*P59] The terms "predator" and "pedophile" are descriptive labels

that are inherently connected to sexual perpetrators and are arguably

used to stigmatize those labeled as such. While the statement was

perhaps inartful or needless, it did not rise to the level of

prosecutorial misconduct where the statement was only made in one

instance by the state, not repeatedly, and was specific to what the

evidence was expected to show. The ultimate decision as to whether

Kaaz was guilty or innocent of specific conduct was left to the jury,

and no other incidents indicate in the record that the state was

attempting to stigmatize Kaaz unfairly.

[*P60] Nor is there any indication in the record that the two words

used in opening statements prejudiced Kaaz or rendered his four-

day trial unfair. This is especially true where there was

overwhelming evidence of Kaaz's guilt, including testimony from

the victim and DNA evidence that corroborated her testimony. As

such, and having found no prosecutorial misconduct, we overrule

Kaaz's third assignment of error.

Kaaz, 2017-Ohio-5669.

Because the state court decided this claim on the merits, the question for this Court is

whether that decision was contrary to or an unreasonable application of United States Supreme

Court precedent. Harrington, supra.

The Sixth Circuit has held that prosecutorial misconduct justifies federal habeas relief only

if it “so infected the trial with unfairness as to make the resulting conviction a denial of due

process” and resulted in prejudice. Gillard v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006) (quoting

Darden v. Wainwright, 477 U.S. 168, 181 (1986)).

On habeas review, claims of prosecutorial misconduct are reviewed

deferentially. Darden v. Wainwright, 477 U.S. 168, 181 (1986). To

be cognizable, the misconduct must have “‘so infected the trial with

unfairness as to make the resulting conviction a denial of due

process.’” Id. (citation omitted). Even if the prosecutor’s conduct

was improper or even “universally condemned,” id., we can provide

relief only if the statements were so flagrant as to render the entire

trial fundamentally unfair. Once we find that a statement is

improper, four factors are considered in determining whether the

impropriety is flagrant: (1) the likelihood that the remarks would

mislead the jury or prejudice the accused, (2) whether the remarks

were isolated or extensive, (3) whether the remarks were

deliberately or accidentally presented to the jury, and (4) whether

other evidence against the defendant was substantial. See Boyle v.

Million, 201 F.3d 711, 717 (6th Cir. 2000). Under [the] AEDPA,

this bar is heightened by the deference we give to the . . . [Ohio]

Supreme Court’s determination of . . . [Petitioner’s] prosecutorial-

misconduct claims. See Macias v. Makowski, 291 F.3d 447, 453-54

(6th Cir. 2002)(“If this court were hearing the case on direct appeal,

we might have concluded that the prosecutor’s comments violated

Macias’s due process rights. But this case is before us on a petition

for a writ of habeas corpus. So the relevant question is not whether

the state court’s decision was wrong, but whether it was an

unreasonable application of clearly established federal law.”).

Bowling v. Parker, 344 F.3d 487, 512-13 (6th Cir. 2003).

Neither the prosecutor’s question nor his labeling of Kaaz as a predator or pedophile in

opening statements rendered the trial fundamentally unfair. In deciding the issue as it did, the

Twelfth District did not unreasonably apply the relevant Supreme Court precedent. As the court

of appeals held, the prosecutor had a good faith basis for asking the question he did and in any

event. the objection to it was sustained. The State had apparently recorded a conversation from

jail in which Kaaz announced his intention to “game” the system and get probation. Such a

statement would have been admissible and damaging to Kaaz’s credibility, so it is not difficult to

understand why the prosecutor sought to lay a foundation for the recording. In any event the

admission was not needed in light of the evidence against Kaaz.

With respect to the statement in opening that the prosecutor intended to prove beyond a

reasonable doubt that Kaaz was a “predator” and a “pedophile,” that is precisely what the

prosecutor did intend to prove and had to prove to obtain a conviction. That is to say, the labels

are completely accurate summaries of what had to be proved. While the crimes in question are

not labeled by the legislature as “predation,” Kaaz’s repeated rape of his stepdaughter for nearly

six years certainly is fairly labeled predation in the common usage of the term. Pedophilia’s

dictionary definition is a “paraphilia in which children are the preferred sexual object.”3 Kaaz’s

long-term pattern of behavior with J.R. makes the label apt. Had Kaaz been on trial for robbery

or drug trafficking, introducing these two terms to label him would have been unfairly prejudicial,

akin to introducing evidence of sexual misconduct to prove robbery by showing bad character.

But that is not what happened here.

The Twelfth District’s decision on Kaaz’s prosecutorial misconduct claims is neither

contrary to nor an unreasonable application of clearly established Supreme Court precedent.

Ground Two should therefore be dismissed.

Ground Three: Manifest Weight of the Evidence and Actual Innocence

In his Third Ground for Relief, Kaaz claims both that his convictions are against the

manifest weight of the evidence and that he is actually innocent. In his Memorandum in Support,

he phrases the claim thus: Kaaz’s imprisonment for crimes he did not commit, and which he is

actually innocent, constitutes a fundamental miscarriage of justice in violation of his federal due

process rights under the Fourteenth Amendment (ECF No. 3, PageID 29, citing Schlup v. Delo,

513 U.S. 298 (1995), and Souter v. Jones, 395 F.3d 577, 599-600 (6th Cir. 2005)).

Having stated the claim in those terms, Kaaz’s counsel proceed to argue again the

insufficient evidence claim. They discount the physical evidence of Kaaz’s sperm on the chair in

the garage with Kaaz’s claim that he and his spouse had sex in the chair and he masturbated in it

3 Webster’s Third New International Dictionary.

(Memorandum, ECF No. 3, PageID 30). We have only Kaaz’s word for that; there is no forensic

test to show what sexual act Kaaz was engaged in when his sperm was spilled on the chair. The

jury heard the competing testimony of Kaaz and his stepdaughter and they believed J.R.

But, Kaaz’s counsel say, J.R. is not credible. Id. They recount at some length the facts

which they say make her incredible. Id. at PageID 30-31. But that issue was for the jury to decide,

having heard all the discrediting testimony.

Despite having themselves used the term “manifest weight” in pleading the Third Ground

for Relief, Kaaz’s counsel in their Reply accuse Respondent’s counsel of “misconstrue[ing] and

dismiss[ing] his claim as one challenging the ‘manifest weight’ of the evidence.” (Reply, ECF No. 10,

PageID 1295.) Having made an explicit “manifest weight’ claim, counsel cannot fairly complain that

that is the claim to which the Assistant Attorney General responded. In any event, a claim that a

conviction is against the manifest weight of the evidence does not state a claim under the United States

Constitution and is therefore not cognizable in federal habeas corpus. Johnson v. Havener, 534 F.2d

1232 (6th Cir. 1986).

What Kaaz apparently is claiming in his Third Ground for Relief is that he should be

released because he is actually innocent of the crimes of which he was convicted. However, the

Supreme Court has never recognized such a freestanding actual innocence claim. Instead it has

held a claim of actual innocence alone is insufficient to warrant habeas relief. Herrera v. Collins,

506 U.S. 390 (1993). “[A] claim of actual innocence is not itself a constitutional claim, but instead

a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional

claim considered on the merits.” Herrera v. Collins, 506 U.S. 390, 404 (1993). Case law in the

Sixth Circuit establishes that the Supreme Court of the United States has never recognized a free-

standing or substantive actual innocence claim. Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007),

citing Zuern v. Tate, 336 F.3d 478, 482, n.1 (6th Cir. 2003), and Staley v. Jones, 239 F.3d 769, 780,

n.12 (6th Cir. 2001).

What the Supreme Court has recognized is a so-called actual innocence gateway by which

a habeas petitioner can overcome a procedural default and present the merits of another

constitutional claim. Schlup, supra; McQuiggin v. Perkins, 569 U.S. 383 (2013). In Souter v.

Jones, 395 F.3d 577 (6th Cir. 2005), the Sixth Circuit held:

[I]f a habeas petitioner "presents evidence of innocence so strong

that a court cannot have confidence in the outcome of the trial unless

the court is also satisfied that the trial was free of nonharmless

constitutional error, the petitioner should be allowed to pass through

the gateway and argue the merits of his underlying claims." Schlup

v. Delo, 513 U.S. 298, 316 (1995)." Thus, the threshold inquiry is

whether "new facts raise[] sufficient doubt about [the petitioner's]

guilt to undermine confidence in the result of the trial." Id. at 317.

To establish actual innocence, "a petitioner must show that it is more

likely than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt." Id. at 327. The Court has noted

that "actual innocence means factual innocence, not mere legal

insufficiency." Bousley v. United States, 523 U.S. 614, 623, 140 L.

Ed. 2d 828, 118 S. Ct. 1604 (1998). "To be credible, such a claim

requires petitioner to support his allegations of constitutional error

with new reliable evidence -- whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence -- that was not presented at trial." Schlup, 513 U.S. at 324.

The Court counseled however, that the actual innocence exception

should "remain rare" and "only be applied in the 'extraordinary

case.'" Id. at 321.

Souter, 395 F.3d at 590. The Souter exception does not apply when a petitioner’s assertion of

actual innocence is based solely on his interpretation of the law; new exculpatory evidence is

required. Ross v. Berghuis, 417 F.3d 552, 555 (6th Cir. 2005).

Kaaz has presented no new evidence of actual innocence at all; he has merely reargued the

weight of the evidence presented at trial. Ground Three should therefore be dismissed.

Ground Four: Cumulative Error

In his Fourth Ground for Relief, Kaaz claims the cumulative effect of terrors committed at

his trial deprived him of his right to a fair trial and due process guaranteed by the Fourteenth

Amendment of the United States Constitution. The errors Kaaz seeks to accumulate are the ones

argued in Grounds One through Three plus (1) admission of other bad act evidence, (2) permitting

a social worker to vouch for the credibility of a state witness, and (3) the admission of prejudicial

hearsay evidence for the purpose of bolstering the credibility of a state witness (Memorandum in

Support, ECF No. 3, PageID 32).

Respondent argues that cumulative error is not a cognizable claim in federal habeas corpus

(Return, ECF No. 9, PageID 1288, citing Lorraine v. Coyle, 291 F.3d 416 (6th Cir. 2002); Sheppard

v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011), citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir.

2005); Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir. 2010); Moreland v. Bradshaw, 699 F.3d

908, 931 (6th Cir. 2012).

Kaaz responds by citing Chambers v. Mississippi, 410 U.S. 284, 298 (1973), and Taylor v.

Kentucky 436 U.S. 478 (1978) (Reply, ECF No. 10, PageID 1294).

While cumulative error was a possible claim before the AEDPA was adopted in 1996, the

Sixth Circuit has expressly held that “post-AEDPA, that claim is not cognizable.” Sheppard,

supra, citing Moore, supra.

Moreland argues that the cumulative effect of counsel's errors

should be considered in determining whether he has demonstrated a

reasonable probability of a more favorable outcome. However,

"post-AEDPA, not even constitutional errors that would not

individually support habeas relief can be cumulated to support

habeas relief." Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir.

2010) (quoting Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)).

Moreland, 699 F.3d at 931; see also Ahmed v. Houk, 2014 U.S. Dist. LEXIS 81971, *332 (S.D.

Ohio June 16, 2014).

In Lorraine v. Coyle, 291 F.3d 416, (6th Cir. 2002), the court held:

The Supreme Court has not held that distinct constitutional claims

can be cumulated to grant habeas relief. Thus, it cannot be said that

the judgment of the Ohio courts is contrary to Berger, or to any other

Supreme Court decision so as to warrant relief under the AEDPA.

Cf. Walker v. Engle, 703 F.2d 959, 963 (6th Cir. 1983) (pre-AEDPA

case; holding that "errors that might not be so prejudicial as to

amount to a deprivation of due process when considered alone, may

cumulatively produce a trial setting that is fundamentally unfair").

Id. at 447. Cumulative error is not a basis for granting habeas relief in non-capital cases. Eskridge

v. Konteh, 88 F. App’x 831, 836 (6th Cir. 2004). 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 v. Parker, 425 F.3d 250, 256 (6th Cir. 2005).

Given the binding Sixth Circuit precedent on the question, this Court must find Kaaz’s

Fourth Ground for Relief is not cognizable and it should therefore be dismissed.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein be

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it

is also recommended that Petitioner be denied a certificate of appealability and that the Court

certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be

permitted to proceed in forma pauperis.

March 16, 2020.

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. 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.