                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 05a0046p.06

                         UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                              _____________


                                                               X
                                       Petitioner-Appellant, -
 VINCENT JORDAN,
                                                                -
                                                                -
                                                                -
                                                                    No. 03-3631
                v.
                                                                ,
                                                                 >
 PATRICK HURLEY,                                                -
                                       Respondent-Appellee. -
                                                               N
                                Appeal from the United States District Court
                               for the Southern District of Ohio at Columbus.
                              No. 02-00596—George C. Smith, District Judge.
                                         Submitted: October 27, 2004
                                    Decided and Filed: February 2, 2005
                          Before: KEITH, CLAY, and BRIGHT, Circuit Judges.*
                                             _________________
                                                   COUNSEL
ON BRIEF: M. Scott Criss, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS
LITIGATION SECTION, Columbus, Ohio, for Appellee. Vincent Jordan, Marion, Ohio, pro se.

        BRIGHT, J., delivered the opinion of the court, in which CLAY, J., joined. KEITH, J. (pp.
6-9), 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

        *
           The Honorable Myron H. Bright, Circuit Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
        1
            The Honorable George C. Smith, United States District Judge for the Southern District of Ohio, Eastern
Division.


                                                         1
No. 03-3631                Jordan v. Hurley                                                    Page 2


deprived him of his Sixth Amendment right of confrontation and Fourteenth 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 judge 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 (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

       2
           The trial court dismissed the fellatio rape charge.
No. 03-3631           Jordan v. Hurley                                                           Page 3


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, 528 N.E.2d 594, 596 (Ohio Ct.
App. 1987), or when the witness “appeared to be nervous and ‘a little slow’ and ‘straining’ with his
answers,” State v. Smith, 684 N.E.2d 668, 689 (Ohio 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. Abrahamson,
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 (1993) (quoting Kotteakos
v. United States, 328 U.S. 750, 776 (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 6. 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, 504 N.E.2d 469, 470-72 (Ohio
App. 1985). Specifically, with respect to the admission of evidence, Ohio law endorses
No. 03-3631           Jordan v. Hurley                                                          Page 4


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, 500 N.E.2d
390, 395 (Ohio App. 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 (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.
No. 03-3631                 Jordan v. Hurley                                                                       Page 5


                                                _________________
                                                    DISSENT
                                                _________________
        KEITH, Circuit Judge, dissenting. While I agree that the use of leading questions on direct
examination was not error, I disagree with the majority’s conclusion that the district court’s refusal
to allow defense counsel to cross-examine and impeach the alleged victim, C. Byers1 (“Byers”),
regarding her prior inconsistent statement constituted a mere harmless error. I therefore respectfully
dissent.
                                                            I.
        Petitioner, Vincent Jordan, was a taxicab driver who transported Byers, a woman with Down
syndrome, to her place of employment. It is undisputed that during the second occasion that Jordan
drove her to work, Jordan pulled over, placed on a condom, and he and Byers had sexual intercourse
in the back seat of the vehicle. As a result of this encounter, Jordan was charged under Ohio state
law with two counts of rape against Byers. Jordan has consistently maintained that Byers consented
to the sexual encounter.
        Jordan’s first trial began on September 14, 1999, but ended in a mistrial because the jury
could not reach a unanimous decision. During this trial, Byers’s testimonial recitation of the
incident did not include any statement indicating that she pushed Jordan away from her during the
sexual encounter. Several     months after the first trial, the prosecution tried Jordan again based on
the original charges.2 The second trial began on January 24, 2000. The only evidence introduced
to support a finding of the necessary element of force or the threat of force was testimonial evidence
from Byers. While there were other statements in her testimony that could lead a reasonable jury
to believe that force or the threat of force was used, only one statement—that Byers pushed Jordan
away from her—was consistent and uncontested. Despite the relative importance of this issue, the
trial court refused to allow Jordan’s defense attorney to impeach Byers regarding her prior
inconsistent statement inasmuch as she failed to mention the use of any force during the first trial.
At the close of the second trial, the jury deliberated for six-and-a-half hours, over two days, and
ultimately found Jordan guilty of engaging in vaginal intercourse with       Byers through force or the
threat of force. Jordan was sentenced to eight years imprisonment.3
        Jordan filed an appeal with the state court, in which he argued that his confrontation and due
process rights were violated. In particular, Jordan claimed that the trial court committed reversible
error by allowing the prosecution to ask the alleged victim leading questions on direct examination
and by limiting the scope of his cross-examination of his accuser. Jordan also claimed that the
evidence presented was insufficient to find guilt beyond a reasonable doubt. The appellate court
determined that the limitation of cross-examination was, in fact, error, but it was harmless. The
court therefore affirmed Jordan’s conviction. After exhausting his state remedies, Jordan filed a
petition for a writ of habeas corpus with the United States District Court for the Southern District
of Ohio, restating these constitutional claims. Like the state appellate court, the district court found
that the trial court erred in prohibiting the cross-examination of Byers regarding her prior

         1
             Her first name has purposely been withheld.
         2
           After the first trial, the prosecution brought a second indictment against Jordan, but it was dismissed on speedy
trial grounds.
         3
          The court also determined Jordan to be a sexual predator, but that decision was reversed by the state court on
appeal and is not at issue before this court.
No. 03-3631               Jordan v. Hurley                                                                       Page 6


inconsistent statement, but also found the error to be harmless. Thus, the district court denied his
petition.
       On appeal, the majority has agreed with the decision of the district court. For the reasons
explained below, I am unable to join that opinion.
                                                           II.
        Under Ohio statute, rape is defined as “sexual conduct with another when the offender
purposely compels the other person to submit by force or threat of force.” Ohio R.C.
§ 2907.02(A)(2). An essential element of the crime of rape is proof, beyond a reasonable doubt, that
the defendant used “force or [the] threat of force.” Id. Regarding this element, the jury was
instructed as follows:
         Force means any violence, compulsion, or constraint physically exerted by any
         means upon or against a person or thing. In determining whether the defendant
         threatened the immediate use of force, . . . you may consider the size and demeanor
         of the defendant, the likelihood of physical injury from the defendant’s conduct, and
         any peculiar vulnerability of the victim.
J.A. at 813-14. See State v. Russell, 1991 WL 57331, *5 (Ohio App. 1991) (citing State v. Carter,
504 N.E.2d 469 (Ohio App. 1985)).
        Byers’s testimony was the only evidence offered to prove that Jordan used or threatened the
immediate use of force—a necessary element of the crime.4 Her testimonial evidence was often
inconsistent, except regarding the issue of whether Byers pushed Jordan away from her while he was
inserting his penis into her vagina. On four separate occasions during direct examination, the
prosecution questioned Byers about her allegedly pushing Jordan away from her; three of those four
times Byers was asked a leading question. The first time, the prosecution asked, “You held your
hands up like this, right?” and she responded, “I did it [(i.e., held her hands up)] while I was trying
to push him away.” J.A. at 537. The second time, the prosecution asked, “What do you mean you
didn’t like [his penis]?” and she responded, “I tried to push him away.” Id. at 544. The third time
the prosecution stated, “Crystal, you said one time that ‘I tried to push him away,’” and she
answered, “Yeah, Yes.” Id. at 560. After she answered, the prosecution continued to question Byers
about the pushing; she testified that she pushed Jordan “because [she] didn’t want him to touch [her]
like that.” Id. at 561. The prosecution even had her demonstrate on the stand how she pushed him.
Finally, immediately after Byers testified that Jordan put his penis inside of her vagina, the very last
question on direct examination was: “Did you try and push [Jordan] away before he did that?”
Byers answered, “Yes, I did.” Id. at 562.
        Even though there were multiple references made to Byers pushing Jordan, the trial judge
did not permit Jordan’s defense attorney to impeach Byers’s testimony using her prior inconsistent
statement. The state appellate court and the federal district court both found that the trial court
judge’s ruling constituted error. Those courts, however, reasoned that this was harmless error. The
majority agrees and concludes that “Jordan’s inability to impeach the victim did not have a
substantial and injurious effect or influence in determining the verdict.” Majority at 3.



         4
           The majority mischaracterizes my statement here by claiming that I am noting that “the victim’s testimony that
she pushed Jordan away is the only evidence of force or the threat of force.” Majority at 3 (emphasis added). Rather,
I am simply stating that Byers’s entire testimony, including but not limited to her statement regarding pushing Jordan,
is the only evidence offered by the prosecution to prove the element of force; Jordan does not concede that he either used
or threatened the use of force.
No. 03-3631                 Jordan v. Hurley                                                                       Page 7


        The standard of “harmless error” has led to some confusion and the Supreme Court has
clarified its meaning in the past several years. Specifically, the Court indicated that “[w]hen a
federal judge in a habeas proceeding is in grave doubt whether a trial error of federal law had
‘substantial and injurious effect or influence in determining the jury’s verdict,’ that error is not
harmless.” O’Neal v. McAninch, 513 U.S. 432, 436 (1995) (citing Brecht v. Abrahamson, 507 U.S.
619, 627 (1993)). The Court defined “grave doubt” as when “in the judge’s mind, the matter is so
evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.”
O’Neal, 513 U.S. at 435. As the Court explained, “‘if one cannot say, with fair assurance, after
pondering all that happened without stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error, it is impossible to conclude that substantial rights were
not affected.’” Id. at 437-38 (quoting Kottteakos v. United States, 328 U.S. 750, 765 (1946)).
Moreover, we have indicated that “[t]he standard of review requires the reviewing court to examine
the effect of the error on the jury rather than the sufficiency of the evidence at trial.” Calvert v.
Wilson, 288 F.3d 823, 833 (6th Cir. 2002) (emphasis added) (noting that the district court erred in
denying the writ because its discussion focused on the “significant evidence” against the defendant).
        The majority finds that refusing to allow Jordan’s attorney to impeach Byers on her
statement regarding pushing was harmless error. To support its conclusion, the majority reasons that
there was overwhelming evidence presented for the jury to find Jordan guilty of rape, regardless of
the error. I disagree with the conclusion that the other evidence was overwhelming, and I also
disagree that such an inquiry is a proper application of the law.
        Despite the fact that Jordan was erroneously prohibited from impeaching Byers on the issue
of force, the resolution of this case was not an easy decision for the jury; they deliberated for six-
and-a-half hours, over a two-day period. In light of the other evidence to prove the element of force
or the threat of force beyond a reasonable doubt, the jury could have certainly relied upon what
appeared to be the uncontested and consistent statement of Byers regarding her pushing Jordan away
to find the requisite element of force as provided in the jury instructions.
        The majority suggests that the jury could have found the element of the threat of the
immediate use of force based on Byers’s  vulnerability, Jordan’s size and demeanor, the likelihood
of physical injury, and Byers’s fear.5 Majority at 4. To show how these factors, in particular the
last two, could have led the jury to find the element of the threat of force, the majority cites to
Byers’s testimony.
        I agree that the prosecution elicited testimony from Byers that may lead a reasonable jury
to believe that Jordan threatened the immediate use of force; however, her relevant testimony, other
than her pushing Jordan away, was highly contested and often inconsistent. Even if the jury
discounted Jordan’s testimony for lack of credibility, as the majority suggests, Byers contradicted
herself on numerous occasions. For example, Byers testified that she was scared when Jordan was
attempting to have intercourse with her because he hurt her, J.A. at 540, but admitted that she was
hurt “because [she] got surgery on her hip,” id. at 537. This testimony leaves reasonable doubt as
to whether she was hurt primarily as a result of force exerted by Jordan or whether her pain was
simply discomfort due to her recent surgery. Even though Byers testified that she was afraid that
Jordan was going to hurt her, id. at 631, she also indicated that it was not “tough getting 6[her] clothes
off” nor did she scream or fight when Jordan was allegedly removing her clothes, id. at 627.
Moreover, to demonstrate that Jordan used force in having sexual intercourse with Byers, the


         5
          Although the majority correctly states that Ohio law allows a jury to consider the victim’s fear when
determining whether the defendant threatened the use of force, no specific jury instruction was given as it relates to fear.
         6
             Jordan testified that Byers had removed her own clothing. Id. at 701.
No. 03-3631           Jordan v. Hurley                                                         Page 8


prosecution attempted to prove that Jordan had torn her underwear. Yet when Byers was asked by
the prosecution if her underwear had a hole in them when she put them on, she simply responded,
“I hate to say this, but they was dirty.” Id. at 556. Byers also indicated that she might have told
Jordan that her underwear was old and torn. Id. at 584. These inconsistent statements give rise to
a reasonable doubt as to whether the sexual act occurred with the necessary “force or threat of
force.” The inconsistency of this other evidence provides all the more reason why I cannot agree
that the trial court’s error in refusing to permit the defendant to confront his accuser on her prior
inconsistent statement had no substantial or injurious effect on the jury.
         People with Down syndrome, such as Byers, are among those most in need of the protection
of our courts. In seeking to protect these citizens, however, courts cannot dismiss the fundamental
rights guaranteed to everyone under the Constitution. This includes a defendant’s Sixth Amendment
“right to confront witnesses against him.” United States v. Kone, 307 F.3d 430, 437 (6th Cir. 2002).
After reviewing the record de novo, it is clear that the constitutional rights of the defendant in this
case were compromised. Indeed, I am left with grave doubt regarding the substantial and injurious
effect that this error had on the jury. Because I cannot in good conscience conclude that the error
in this case was harmless, I respectfully dissent.
