Vincent Jordan v. Patrick Hurley

397 F.3d 360, 66 Fed. R. Serv. 458, 2005 U.S. App. LEXIS 1622, 2005 WL 233770
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 2, 2005
Docket03-3631
StatusPublished
Cited by35 cases

This text of 397 F.3d 360 (Vincent Jordan v. Patrick Hurley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vincent Jordan v. Patrick Hurley, 397 F.3d 360, 66 Fed. R. Serv. 458, 2005 U.S. App. LEXIS 1622, 2005 WL 233770 (6th Cir. 2005).

Opinions

BRIGHT, J., delivered the opinion of the court, in which CLAY, J., joined. KEITH, J., (pp. 365-69), delivered a separate dissenting opinion.

OPINION

BRIGHT, Circuit Judge.

Vincent Jordan, appellant, was convicted of rape after a second jury trial in the state courts of Ohio. He seeks relief from his conviction and eight-year sentence under a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed in the United States District Court for the Southern District of Ohio.1 The district court denied relief and Jordan brings this appeal under a Certificate of Appealability relating to his claims that the state trial court deprived him of his Sixth Amendment right of confrontation and Four[362]*362teenth Amendment right to due process in the conduct of the trial and that his conviction was not supported by the evidence. Specifically, Jordan contends that the state trial jpdge erred in permitting the prosecutor to ask leading questions during direct examination of the alleged victim and additionally erred in restricting cross-examination of the victim. Jordan also contends no rational trier of fact could have found that he raped the victim. We reject these contentions and affirm.

I. BACKGROUND

The State of Ohio initially charged Jordan- with two counts of rape. The first trial ended in a mistrial when the jury could not reach a verdict. The State brought a second indictment in two counts against Jordan charging forcible rape involving vaginal intercourse and separately fellatio. At trial, the prosecutor called the victim, who has Down syndrome, to testify. The trial court conducted voir dire and found the victim competent to testify.

The prosecutor, over objection, used leading questions in examining the victim. Further, the trial court limited cross-examination by barring Jordan’s counsel from attempting to impeach the victim with her testimony in the first trial. The jury found Jordan guilty of the vaginal intercourse rape charge.2 The trial court sentenced Jordan to eight years imprisonment and found Jordan to be a sexual predator.

Jordan, represented by counsel, appealed to the Ohio Court of Appeals, which affirmed the conviction, but reversed and remanded the trial court’s sexual predator determination. Jordan, represented by counsel, sought review in the Ohio Supreme Court. That court denied leave to appeal. Thereafter, Jordan filed this pro se petition for a writ of habeas corpus. The district court denied relief and dismissed Jordan’s petition. Jordan obtained a Certificate of Appealability relating to alleged due process and confrontation clause violations regarding evidentiary matters and whether the evidence was sufficient to support his conviction.

II. DISCUSSION

In an appeal of a habeas proceeding, this court reviews the district court’s legal conclusions de novo and its factual findings for clear error. Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002).

The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254, placed “a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under section 2254(d)(1), a writ may issue only if “the state-court adjudication resulted in a decision that (1) ‘was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,’ or (2) ‘involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Id. (quoting § 2254(d)(1)).

Jordan argues that the state trial court violated his right of confrontation by allowing the prosecutor to ask leading questions in examining the victim. This claim relates to a state rule of evidence, and federal habeas review of state court evidentiary rulings is extremely limited. Waters v. Kassulke, 916 F.2d 329, 335 (6th Cir.1990).

[363]*363The victim has Down syndrome and therefore had difficulty responding to the prosecutor’s questions. Under Ohio law, “[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.” Ohio R. Evid. 611(c) (2004). In interpreting this rule, Ohio courts have permitted prosecutors to use leading questions “on .direct examination where the victim is of tender years,” State v. Timperio, 38 Ohio App.3d 156, 528 N.E.2d 594, 596 (1987), or when the witness “appeared to be nervous and ‘a little slow1 and ‘straining’ with his answers,” State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 689 (1997). While the victim is not a child, she functions at a very basic level. As such, leading questions are permitted under such circumstances. See, e.g., United States v. Shoupe, 548 F.2d 636, 641 (6th Cir.1977) (“the use of leading questions during the direct examination of a witness falls within the sound discretion of the trial court”).

Federal courts have similarly found that leading questions on direct examination are permissible in questioning certain witnesses, including a child sexual abuse victim, a foreign witness testifying through a translator, an unusually soft-spoken and frightened witness, and a mentally retarded adult who was the victim of sexual abuse. See, e.g., United States v. Ajmal, 67 F.3d 12, 15-16 (2d Cir.1995) (holding that the Sixth Amendment permits leading questions on direct examination of a foreign witness testifying through a translator); United States v. Castro-Romero, 964 F.2d 942, 943-44 (9th Cir.1992) (holding that the Sixth Amendment permits leading questions on direct examination of a child sexual abuse victim); United States v. Grey Bear, 883 F.2d 1382, 1393 (8th Cir.1989) (recognizing that the Sixth Amendment permits leading questions on direct examination in the case of an unusually soft-spoken and frightened witness); see also United States v. Goodlow, 105 F.3d 1203, 1207-08 (8th Cir.1997) (recognizing that Federal Rule 611(c) does not preclude frequent use of leading questions during the direct examination of a mentally retarded adult who was the victim of sexual abuse).

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Bluebook (online)
397 F.3d 360, 66 Fed. R. Serv. 458, 2005 U.S. App. LEXIS 1622, 2005 WL 233770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vincent-jordan-v-patrick-hurley-ca6-2005.