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Murrell v. Erwin

August 16, 2006

MARVIN MURRELL, PETITIONER,
v.
JAMES ERWIN, WARDEN*FN1, RESPONDENT.



The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz

DECISION AND ORDER

This is a habeas corpus action pursuant to 28 U.S.C. § 2254, brought pro se by Petitioner Marvin Murrell. The parties have unanimously consented to plenary magistrate judge jurisdiction and Judge Barrett has referred the case on that basis.

Petitioner was convicted on one count of possession of cocaine in the Hamilton County Court of Common Pleas and sentenced to eight years confinement. He challenges that conviction and sentence on the following grounds:

Ground One: Trial court overruled motion for new trial, motion for judgment of acquittal after verdict.

Supporting Facts: Testimony offer[ed] as newly discovered evidence (a confession of the crime) which should have lead to the exoneration of the movant that was totally ignored by the trial court.

Confession made in open court after jury verdict. Trial court unlawfully withheld confession of witness from jury (trier of the facts). A confession exists may itself be regarded as newly discovered evidence and warrants a new trial.

Ground Two: Insufficient evidence, judgment contrary to the manifest weight of evidence, denial of acquittal.

Supporting Facts: Due process of USCA Const. Amend 14 and Ohio Const required that prosecution prove every element of criminal offense beyond a reasonable doubt. A conviction based upon insufficient evidence offends due process and must be reversed and a new trial granted where the conviction is contrary to the manifest weight of evidence. A conviction for knowingly possessing a controlled substance is unlawful and denies due process of law without proven knowledge.

Ground Three: Prosecutorial Misconduct; committed prejudicial misconduct during argument to jury.

Supporting Facts: During closing remarks prosecutor lead [sic] jury to believe Cornell Allen who confessed to the crime did not exist, made comments that defense witnesses were lying, characterized Petitioner [as] "big time drug dealer," inject[ed] bad acts not involved with this case, failed to pursue justice for all concerned, made statements unsupported by evidence, allued [sic] to large sums of money could be used to influence witnesses.

Ground Four -- This ground for relief has been withdrawn. (See Order Adopting in Part Report and Recommendations, Doc. No. 15.) (Petition, Doc. No. 1, at 4-5).

Petitioner and Respondent are in agreement on the procedural course this matter followed in the state courts; they likewise agree that the Petition was filed within the applicable one-year statute of limitations and that Petitioner has exhausted his available state court remedies for the three grounds for relief which are before this Court.

Ground One: Denial of New Trial

In his first ground for relief, Petitioner claims that the state trial court erred in refusing to grant his motion for new trial. The relevant facts are that one Cornell Allen had given an audio-taped statement to Mr. Murrell's trial counsel about two weeks after Petitioner was arrested. Trial counsel had issued subpoenas for Allen each time the case was set for trial and Allen had appeared on at least one of those occasions, but the State obtained a continuance. When the case was actually tried, however, Allen did not appear and trial counsel could not find him. The defense, however, did not seek a continuance to find Allen, allegedly because they believed it would be futile, nor did defense counsel attempt to introduce the audiotape in evidence, allegedly believing it would have been inadmissible hearsay. However, an affidavit was obtained post-verdict (but within the very short time allowed by Ohio law for a motion for new trial) and Allen actually testified at a hearing on the motion for new trial. Allen's testimony, if believed, would have exonerated Petitioner.

Petitioner raised denial of his motion for new trial on direct appeal. The Hamilton County Court of Appeals ruled on the question as follows:

{¶10} In his first assignment of error, Murrell asserts that the trial court erred by denying the motion for a new trial.1 We are unpersuaded. {¶11} Crim.R. 33(A)(6) permits a defendant who is convicted of a criminal offense to move for a new trial on the ground of newly discovered evidence, if the defendant can show that the new evidence

(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since trial, (3) is such as could not in the exercise of due diligence, have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.2 It is within the discretion of the trial court whether to grant the motion.3 {¶12} A review of the record clearly demonstrates that Allen's testimony was not newly discovered since the trial. Indeed, Murrell's trial counsel transcribed his interview with Allen just twelve days after Murrell's arrest. At best, it appears that Allen's whereabouts were newly discovered since the trial. Furthermore, Allen was subpoenaed for trial by Murrell but failed to appear, and the record discloses that no request for a continuance was made to secure Allen's appearance. {¶13} While Murrell's trial counsel took issue with the court's rejection of Allen's "confession" for the reasons that it was cumulative and contradictory, we note that the jury was informed of Allen's alleged activity through the testimony of Walter Williams and Dwight Nared, and that it had obviously declined to lend it any credence. {¶14} For the forgoing reasons, we cannot say that the trial court's denial of the motion for a new trial demonstrated an unreasonable, arbitrary, or unconscionable attitude.4 The first assignment of error is overruled.

State v. Murrell, 2003 Ohio App. LEXIS 1956, **7-10 (Ohio App. 1st Dist. April 25, 2003)(footnotes omitted).

Respondent defends against this Ground for Relief on the merits, asserting that the quoted decision of the First District Court of Appeals is not an unreasonable ...


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