Darryl M. Durr v. Betty Mitchell, Warden

R. GUY COLE, JR., Circuit Judge,

concurring.

I concur in the majority’s opinion, but I write separately to address two concerns.

First, with regard to the rape conviction, I disagree with the Ohio Supreme Court’s view that the circumstantial evidence in this case was “highly probative” of rape. (Maj. Op. 449.) The court relied on (1) Durr’s unexplained statement that he was going to “waste” Angel because “she would tell,” and (2) that her body was nude from the waist down when discovered. This strikes me as somewhat probative; I have doubts whether any juror could properly infer from this…