Vincent JORDAN, Petitioner-Appellant, v. Patrick HURLEY, Respondent-Appellee, 397 F.3d 360

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.

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 teenth 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. 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). The 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). The state trial court did not violate Jordan’s right of confrontation by allowing the prosecutor to ask leading questions in examining the victim, because leading questions were permissible under these circumstances. See, e.g., Shoupe, 548 F.2d at 641 (“the use of leading questions during the direct examination of a witness falls within the sound discretion of the trial court”).

Jordan next argues that the state trial court violated his confrontation right by limiting the cross-examination of the victim. The victim testified in the second trial that she tried to push Jordan away. The victim, however, did not make this claim in her testimony at the first trial. Jordan’s attorney wanted to raise this inconsistency by impeaching the victim on cross-examination, but the trial court restricted the cross-examination and prohibited this line of questioning.

The state appellate court concluded that the state trial court erred in limiting the cross-examination, but determined that the error was harmless. The federal district court decided that the error did not have a substantial and injurious effect on the fundamental fairness of Jordan’s trial. Confrontation Clause violations are subject to harmless error review. Bulls v. Jones, 274 F.3d 329, 334 (6th Cir.2001). When reviewing state court decisions for harmless error in a collateral appeal this court applies the harmless error standard set out in Brecht v.

Abraham-son, which holds that a habeas petitioner must establish the trial error had a “substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We conclude that Jordan’s inability to impeach the victim did not have a substantial and injurious effect or influence in determining the verdict. The dissent notes that the victim’s testimony that she pushed Jordan away is the only evidence of force or the threat of force. See Dissent at 366.

The evidence at trial, however, is overwhelming that Jordan used force in raping the victim, therefore the ruling to limit the cross examination cannot be deemed prejudicial. Ohio law is clear that the circumstances of the alleged rape are proper considerations for the jury in determining whether there was force. See State v. Carter, 29 Ohio App.3d 148, 504 N.E.2d 469, 470-72 (1985).

Specifically, with respect to the admission of evidence, Ohio law endorses consideration of peculiar vulnerabilities of the victim, the size and demeanor of the defendant, the likelihood of physical injury to the victim, and the victim’s fear. Id.; State v. Fowler, 27 Ohio App.3d 149, 500 N.E.2d 390, 395 (1985). Here, the victim has the mental disability of Down syndrome, and functions at a very basic level. The evidence also showed that Jordan is strong and was a semi-professional football player.

Moreover, Jordan admitted on cross examination that the exclusive business of his cab company is driving mentally or physically handicapped people and that he noticed that the victim did not walk or talk well, thus there was clear evidence from which to conclude that Jordan knew the victim had a mental disability. In addition, the alleged rape occurred in a truck parking lot during the evening hours, and according to the victim “it was dark” and there were not a lot of people around.

Furthermore, the victim testified that Jordan parked the cab on his own initiative, climbed into the back seat, and took off the victim’s clothes. The victim testified she did not fight Jordan when he began taking off her clothes because she was “afraid” of Jordan and thought Jordan was going to hurt her. The victim also testified that Jordan spread apart her legs, which caused her to experience pain.

The victim testified she did not want to have sex or to be touched and that she was “scared.” Finally, at the end of the sexual encounter, the Victim testified that Jordan told her the sexual encounter was a secret and “I won’t tell no one about it.” After examining the victim’s vulnerability, the size and demeanor of Jordan, the likelihood of physical injury to the victim, and the victim’s fear, as well as the victim’s testimony, we agree with the district court’s determination that the error in limiting the cross-examination was harmless.

Jordan admitted that he had intercourse with the victim, but rested his defense on his contention that the victim consented to the act. There is significant evidence that undermines Jordan’s credibility and his theory of the case. On direct and cross examination of Jordan, it was adduced that when the police first asked Jordan about the incident Jordan denied having sex with the victim.

In addition to this patent contradiction with his trial theory, the jury could have discounted Jordan’s version of the events as untruthful because of his past convictions for theft, attempted theft, attempted receipt of stolen property and possession of criminal tools. Further, Jordan asserted that the victim paid him $50 to have sex, but Jordan admitted on cross examination that he lied to the police about having taken the money, instead telling the police that he had told the victim that the sex was for free. The fifty-dollar bill apparently never materialized in the investigation after the alleged rape.

Jordan’s credibility is essential on the issue of whether he compelled the victim to have sex by force or by threat of force. Jordan denied compelling the victim to have intercourse, instead maintaining it was consensual sex. Because there is significant evidence that undermines Jordan’s credibility, which is essential to his theory of the issue of whether he compelled the victim to have sex by force or threat of force, the district court’s determination that the error was harmless has substantial support in the record.

Additionally, Jordan argues no rational trier of fact could have found him guilty of forcible intercourse with the victim. This court reviews the evidence in the light most favorable to the prosecution and must draw every reasonable inference in favor of the prosecution. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Here, viewing the evidence in the light most favorable to the prosecution, the evidence amply sustains Jordan’s conviction. The victim testified to each of the elements necessary to establish that Jordan raped her. III.

CONCLUSION Accordingly, we affirm the district court’s denial of the writ of habeas corpus. . The Honorable George C. Smith, United States District Judge for the Southern District of Ohio, Eastern Division. . The trial court dismissed the fellatio rape charge.