The opinion of the court was delivered by: Norah McCann King United States Magistrate Judge
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on the instant petition, respondent's return of writ, petitioner's traverse and supplemental traverse, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED as barred by the one year statute of limitations under 28 U.S.C. §2244(d).
I. FACTS and PROCEDURAL HISTORY
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:
On May 14, 1998, appellant was indicted on one count of aggravated murder, alleging that appellant purposely killed the victim during the course of a kidnapping, one count of aggravated murder with prior calculation and design committed during the course of a kidnapping, and one count of kidnapping. Each count carried a firearm specification.
A jury trial began on January 21, 1999. During the course of the proceedings, the second count was amended to reflect a charge of aggravated murder with prior calculation and design, without a capital specification. On January 28, 1999, the jury found appellant guilty of all counts and specifications. Appellant filed a motion for a new trial on February 5, 1999.
The mitigation phase of the capital trial began on February 10, 1999. On February 14, 1999, the jury recommended a sentence of life in prison with no possibility of parole, and the trial court sentenced appellant in accordance with the jury's recommendation. The trial court overruled appellant's motion for a new trial on March 15, 1999. Appellant filed a timely notice of appeal.
At trial, the prosecution presented evidence that, on May 3, 1998, the victim, Kaleb Williams, and Arlynda Heard visited appellant and his girlfriend, Amy Gill, at appellant's home. Heard testified that, earlier that day, she had met with Williams to talk about their son. Heard and Williams stopped at Innis Park to talk and then rode around for a while prior to arriving at appellant's house. Heard testified that appellant was a good friend of hers, "like my best friend." Heard testified that, when they got to the house, appellant and Gill were there. She stated that they introduced Kaleb to appellant and they were all "just sitting around drinking." (Tr. 32.)
At some point in the evening, Williams lost his temper with Heard, grabbed her by the neck and started choking her. After Williams let go, Heard asked appellant to ask Williams to stop choking her. Appellant intervened, and things returned to normal. About twenty minutes later, Donald Anderson, a friend of appellant's, knocked at the door. Heard answered the door and Anderson and Williams immediately exchanged words. According to Heard, appellant then went upstairs and came back downstairs with a gun. Heard testified that she and Williams were sitting on the couch and, when she saw the gun, she got up. She testified that appellant then pointed the gun and stated, "you see this, mother fucker" and then fired the gun. (Tr. 36.) Williams fell to his knees on the floor. Heard stated that Gill was in the kitchen at the time of the shooting.
About a minute later, appellant and Anderson picked up Williams and carried him outside to appellant's car which appellant had pulled around to the carport. As Anderson and appellant were carrying Williams out, Heard said she noticed that Williams's stomach was still moving, and that it appeared to her that he was still breathing and alive. After appellant and Anderson left with Williams in the trunk of the car, Gill began trying to clean up blood stains on the carpet, in the kitchen, and on the back patio. Heard telephoned her husband to come and pick her up, but remained in the house until appellant and Williams returned. As she left, she picked up a spent .22 shell casing and a live .22 round and took them with her.
Heard would not tell her husband what was wrong, although she was crying. After Heard arrived home, she telephoned the police and told them that she had witnessed a murder.
On cross-examination, Heard testified that Williams had choked her hard enough to leave prints on her neck, her face turned red, and he cut-off her air supply. Heard also testified that, while Williams was lying on the floor, he never moved nor uttered a sound. Heard indicated that, prior to the shooting, Williams had been intoxicated and was angry and, particularly while he was choking Heard, he looked angry. Heard also stated that no one attempted to administer first aid, call 911, or check his pulse. After her husband arrived, they drove home separately. Heard indicated she had been home approximately an hour before she telephoned the police. Heard also stated that she told the police that she believed Williams was still alive when he was carried out of the house.
The state's next witness was William Lang, the first police officer on the scene. Lang identified the live round and shell casing that was turned over by Heard. Lang testified that, as he approached the house, he noticed some blood drippings on the patio and more drippings on the steps to the back porch. He also spotted a white Ford pulling away from the house with three occupants aboard.
The state's next witness was Mark Henson, a detective in the Crime Scene Search Unit, Columbus Division of Police. Henson identified a photograph log, a number of photographs, physical evidence that that was taken from the scene, and a white canvas tennis shoe, which had been recovered from a dumpster at the rear of appellant's home. The police also recovered a spring loaded feed tube used to load a .22 rifle. Henson identified a photograph that indicated a blood spot in the trunk of appellant's vehicle and also photographs showing blood smears on the rear of the vehicle.
Edward P. Breining, chief investigator with the Fairfield County Coroner's Office and a lieutenant with the Lancaster Fire Department, testified with respect to the victim's body, which was discovered at a remote location on Tussing Road. Breining testified that the victim was lying on his back in wet grass. There was some standing water around the body; one arm was over the victim's head. Breining noticed that one shoe was missing from the victim's body and that the victim had a white sock on. Breining detected no rigor mortis except for a small amount in a finger. He noticed a bloody foam-like material around the victim's mouth and nose. Breining testified that he had seen bloody foam, like the substance on the decedent's mouth, numerous times in live people that have congestive heart failure. He indicated that when a person is having heart failure, serum is pushed to the lining of the lung and, as the person breaths, it creates foam that the person coughs up. Breining also indicated that he had seen foam on the body of a deceased person. Breining attended the autopsy but, at that time when he viewed the body, the foam was gone.
Keith Norman Norton, M.D., a forensic pathologist and deputy coroner for Franklin County, testified next. Dr. Norton testified that Williams, who was six feet one inches tall and one hundred ninety-nine pounds, suffered a single gunshot wound that entered the left side of his neck and exited the back right side of his neck. The bullet struck the cervical spine, bruising the spinal cord, causing paralysis, and resulting in a cessation of breathing. The bullet traveled in a slightly upward direction from left to right and front to back. The cause of death was asphyxiation due to bruising of the spinal cord.
The coroner testified that a person with the type of injury such as the victim would be likely to die as a result of that injury unless they got prompt medical care. According to the coroner, the victim would need someone (or something) to breath for them for a period of time, at least until the spinal cord got better. Moreover, a person would not be able to walk as a result of the bruising, but there might be a period of time as the bruising developed that would allow the person to live for a period of time. A person sustaining this type of gunshot wound would be effectively paralyzed from the neck down. Without prompt medical attention, death could occur immediately or up to thirty minutes later. Within the first five minutes of sustaining the wound, the victim still could have been breathing. The coroner also testified that Williams had a blood alcohol level of .22 grams percent, and a metabolite of cocaine was found in the victim's urine.
Dr. Norton explained that the white foam-like substance around the victim's mouth was the result of pulmonary edema. He testified that when the lungs are not getting enough oxygen into the blood or there is not enough oxygen getting into the lungs, the body responds by pushing fluid out into the lungs. The fluid mixes with the air in the lungs and makes bubbles. As more fluid is pushed into the lungs, air bubbles rise up and come out as foam. As the windpipe fills up and fills up through the mouth, the foam comes out through the mouth. The coroner was not able to determine the time between the gunshot wound and death by asphyxiation. He believed breathing probably stopped within thirty minutes of the gunshot wound, but that was just his best estimation.
Detective Ross W. Young, Jr., was the primary homicide detective in charge of the investigation. Prior to Detective Young arriving at appellant's home, he monitored a radio dispatch indicating that a white Ford Taurus had been stopped nearby. Appellant, Amy Gill, and Donald Anderson were inside the car.
Later, Detective Young interviewed appellant at police headquarters at approximately 5:00 a.m. According to Young, appellant described the conflict that had developed that evening between Williams and Heard. Young testified that appellant stated that he believed that Williams was shot in the shoulder and that he and Anderson drove the body from the scene of the shooting. Appellant claimed that the victim was conscious and that he mumbled something at one point. Appellant also stated to Detective Young that Williams sat up after they removed him from the car. The detective videotaped the discussion in the police station and, after appellant agreed to take the detective to the body, Detective Young recorded some further exchanges on a cassette recorder. The portion of the recording consisting of the conversation on the way to the body was played to the jury, but the trial court did not permit the second part of the tape containing the detective's impressions at the scene to be played for the jury.
Detective Young further testified that the body was found in a remote area near a water treatment plant. Detective Young noticed moisture about the face and a bubbling type of white foam or saliva coming out of his mouth and his nostrils. The victim's head was tilted towards his left and most of the foam seemed to be running out of the left side of his mouth. A medic called to the scene pronounced the victim dead at the scene. Detective Young also observed that the victim's extremities were cool to the touch and rigor mortis had not set in. The detective also testified that he put his hand toward the right side, close to the torso and armpit area, and that the victim still felt extremely warm in spite of the fact that he was lying in standing water. The outside temperature that morning was about fifty-two degrees. It had rained heavily the evening before.
On cross-examination, Detective Young admitted that none of his reports or recordings indicated that the body was extremely warm upon his arrival. The recording made at the scene further noted that the victim, who was missing a shoe, did not have a dirty sock. Detective Young surmised from this that it was unlikely that the victim moved from this position once he was placed there. The detective also commented on the tape that there would have been more blood in the water had the victim still been alive.
Appellant testified on his own behalf. Appellant testified that he had worked on May 3 from 8:00 a.m. until 8:00 p.m. After he arrived home, he began barbecuing in the backyard. Arlynda Heard and Kaleb Williams arrived about twenty minutes after appellant arrived home. Heard introduced Williams to appellant. Appellant testified that he did not see what he described as the first confrontation between Heard and the victim. Appellant stated that his girlfriend, Gill, told him of the confrontation, and he went into the house to see what was going on. At that point, he observed Heard snatch the front door open and, just as she did, Donald Anderson was at the front door getting ready to knock. This startled Heard, and Anderson made a joking remark (apparently about Heard) to which Williams took offense. As Anderson attempted to shake hands with Williams, Williams pushed Anderson into the area by the television. Then, according to appellant, Williams began to choke Heard. Appellant saw Heard's face turn colors and she began vomiting. Appellant tried to explain to Williams that Anderson was not romantically involved with Heard, but Williams did not respond. Appellant began yelling at Williams to let her go, but Williams had a "scary look," "a look like there was nobody there." (Tr. 301.) At that point, appellant testified that he retrieved his .22 rifle from behind the sofa. Appellant testified that Williams was still choking Heard and that he noticed Williams's arms starting to flex even more. Appellant screamed at Williams to let her go, brought the gun up higher, and pulled the trigger. The gun went off. Appellant did not believe the gun was loaded, but the next thing he saw was the victim fall to the floor. Appellant dropped the rifle, and his girlfriend came running out of the kitchen. Appellant testified that his girlfriend became hysterical, and appellant's mind went blank and he panicked. Appellant testified that Heard was still trying to gasp for air as a result of the choking and that Anderson was present in the room during the shooting.
Appellant took the victim's pulse and was not able to find a pulse. Appellant testified the body remained at his house for approximately twenty-five to thirty minutes while everyone was in a panic. Appellant testified that he became scared and that he and Heard went out the front door, got in the car, and brought it to the back of the house. Appellant testified there was a lot of blood and that he and Anderson took the victim out of the house, placed him face up in the trunk of the car, and drove out to Tussing Road where they disposed of the body. Appellant stated that he threw the rifle into a creek.
After appellant and Anderson returned home, Heard and her husband were there, as well as appellant's girlfriend. Appellant checked on his girlfriend and decided to turn himself in to the police. Appellant went to his brother's house to talk to his brother prior to turning himself in. After he left his brother's house and was on his way home, the police picked him up at approximately 1:00 a.m.
Appellant testified that he had lied to the police about Williams being alive. Appellant testified that the police told him that if the body were still alive he would only be charged with felonious assault. Appellant admitted that it was not true that the victim sat up. Appellant explained his reason for giving a false statement was that, if Williams were still alive, appellant would only be charged with a lesser offense. Appellant stated that, after the gun went off, the victim never made any sound or movement whatsoever.
On cross-examination, appellant indicated that Heard and he were good friends, that he had known her for about three years, and that she looked to him as an older brother. Appellant indicated that Heard's version of the events differed in several respects from his. Appellant stated that Heard never came to him to tell him about the first choking incident. He further indicated that, after Anderson came into the house, Heard and Williams did not sit back down on the couch. Appellant stated that Heard was mistaken when she testified that appellant had run upstairs to get the gun and that she was further mistaken as to where appellant was located at the time of the shooting. Appellant indicated that he checked Williams's pulse in the neck area. Appellant indicated that he had only one drink that evening. He stated that the shooting was an accident and that he did not mean to kill Williams. When asked if he meant to pull the trigger, appellant responded "I tried to get him off of her." Appellant then testified that he intended to injure Williams but did not want to kill him. He insisted that he did not know that the gun was loaded. Appellant indicated that he pulled the trigger to scare Williams and that he pulled the trigger "to make it click." Later in his testimony, appellant indicated that he did not mean to hurt Williams at all, but that he just wanted to get Williams to stop choking Heard. Appellant testified that he was scared for himself and for Heard. Appellant stated that the victim was in a rage, and that is why he used deadly force. Appellant stated that he did not look at the victim's face and, thus, he did not observe any foam or blood coming out of the victim's nose or mouth.
Gill corroborated appellant's version of the facts in most respects. Gill indicated, however, that she was not present in the room at the time of the shooting but that, just seconds before the gun went off, she heard appellant plead with the victim to let Heard go. She testified that there was "lots and lots of blood" and that Williams never moved or made any sound after he fell. She believed he was dead. She observed appellant check for a pulse, and she watched while appellant and Anderson took Williams out of the house. After appellant and Anderson took Williams out, she began cleaning up the blood.
Exhibit 7 to Return of Writ. Represented by new counsel, petitioner filed a timely appeal. He asserted the following assignments of error:
FIRST ASSIGNMENT OF ERROR
There was insufficient evidence to establish by proof beyond a reasonable doubt that Appellant purposely killed another during the course of a kidnapping.
SECOND ASSIGNMENT OF ERROR
There was insufficient evidence to establish by proof beyond a reasonable doubt that Appellant committed the offense of kidnapping.
THIRD ASSIGNMENT OF ERROR
There was insufficient evidence to establish that Appellant acted with prior calculation and design.
FOURTH ASSIGNMENT OF ERROR
The jury erred in failing to find that defense of another was established by a preponderance of the evidence.
FIFTH ASSIGNMENT OF ERROR
Appellant was denied his right to a fair trial as a result of ...