The opinion of the court was delivered by: Judge Gregory L. Frost Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Petitioner, Julius O. Whiteside, a prisoner at the Southern Ohio Correctional Facility located in Lucasville, Ohio, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. The case is now before the Court on the petition, the return of writ, petitioner's traverse, and the exhibits of the parties. For the following reasons, it will be recommended that the petition be denied.
On December 14, 2005, petitioner was indicted in Franklin County, Ohio on charges of aggravated murder with a firearm specification and having a weapon while under a disability. He was accused of killing one Jaron Armstrong. His case was tried twice to a jury; both times, the jury was unable to reach a verdict. However, the weapons charge, which was tried to the court during the second trial, resulted in petitioner's being convicted of that charge. He was then sentenced to a five-year prison term.
Petitioner appealed his conviction and sentence on the weapons charge to the Tenth District Court of Appeals. He raised, on appeal, these claims: (1)that his conviction was against the manifest weight of the evidence and that he was convicted in violation of the Due Process clause of the Fourteenth Amendment; (2) that when the trial court imposed the maximum sentence, it did so in violation of the Sixth Amendment and the Ex Post Facto clause; and (3) that his counsel was ineffective for failing to object to the sentence as having been imposed in violation of the Supreme Court's decisions in United States v. Booker, 543 U.S. 220 (2005) and Blakely v. Washington, 542 U.S. 296 (2004). The court of appeals overruled his assignments of error in an opinion dated August 5, 2008. Acting pro se, petitioner filed a motion to reopen his appeal pursuant to Ohio Appellate Rule 26(B), seeking to raise two additional issues - that law enforcement officials improperly threatened a defense witness, and that his counsel rendered ineffective assistance by abandoning certain lines of investigation, defenses, and trial strategies. That motion was denied on December 30, 2008. Return of Writ, Exhibit 30. Petitioner also sought review in the Ohio Supreme Court, but was unsuccessful. That court denied his motion for leave to file a delayed appeal on June 3, 2009. Return of Writ, Exhibit 36.
While the appeal on the weapons charge was pending, petitioner was scheduled to go to trial for the third time on the aggravated murder charge. He moved to dismiss the case on due process and double jeopardy grounds, but the trial court overruled that motion and, on May 5, 2008, the case proceeded to trial. On May 15, 2008, the jury returned a verdict of guilty to a charge of voluntary manslaughter. The trial court subsequently sentenced petitioner to a thirteen-year term of imprisonment (ten on the manslaughter charge and a three-year consecutive sentence on the firearm specification), but ran the sentence concurrent with the five-year sentence imposed on the prior conviction for having a weapon under a disability. Return of Writ, Exhibit 15.
Petitioner also appealed this conviction to the Tenth District Court of Appeals. He raised nine assignments of error on appeal, as follows: ASSIGNMENT OF ERROR # 1 PRIOR TO THE THIRD TRIAL AND AFTER TWO HUNG JURY MISTRIALS, THE COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO DISMISS IN VIOLATION OF THE DOUBLE JEOPARDY AND DUE PROCESS CLAUSES OF FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND THE CORRESPONDING PROVISIONS OF THE OHIO CONSTITUTION, AND THE OHIO RULES OF CRIMINAL PROCEDURE.
ASSIGNMENT OF ERROR # 2 APPELLANT'S CONVICTION FOR MANSLAUGHTER WAS NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 1 & 16 OF THE OHIO CONSTITUTION AND THE MANSLAUGHTER CONVICTION WAS ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. ASSIGNMENT OF ERROR # 3 THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S RULE 29 MOTION IN ALL THREE TRIALS.
ASSIGNMENT OF ERROR # 4 APPELLANT'S MAXIMUM SENTENCE FOR MANSLAUGHTER VIOLATED THE PROVISION AGAINST EX POST FACTO LAWS AND HIS DUE PROCESS RIGHTS CONTAINED IN THE OHIO AND U.S. CONSTITUTIONS.
ASSIGNMENT OF ERROR # 5 THE TRIAL COURT ERRED WHEN IT PROHIBITED RONNIE BLAND FROM TESTIFYING AND ASSERTING HIS FIFTH AMENDMENT RIGHTS AGAINST SELF-INCRIMINATION BEFORE THE JURY, IN VIOLATION OF THE COMPULSORY PROCESS AND DUE PROCESS CLAUSES OF THE U.S. & OHIO CONSTITUTIONS AND COLUMBUS V. COOPER.
ASSIGNMENT OF ERROR # 6 THE TRIAL COURT ERRED WHEN IT PROHIBITED ERIKA LEWIS FROM TESTIFYING AND ASSERTING HER FIFTH AMENDMENT RIGHTS AGAINST SELF-INCRIMINATION BEFORE THE JURY, IN VIOLATION OF THE CONFRONTATION CLAUSE AND DUE PROCESS CLAUSES OF THE OHIO AND U.S. CONSTITUTIONS AND OHIO EVIDENCE RULE 608(B).
ASSIGNMENT OF ERROR # 7 THE TRIAL COURT ERRED BY NOT ALLOWING THE INTRODUCTION OF RONALD BLAND'S INTERVIEW OR AT LEAST BY NOT PERMITTING TRIAL COUNSEL TO QUESTION THE POLICE ABOUT THE SUBSTANCE OF THEIR INTERVIEW WITH RONALD BLAND IN VIOLATION OF THE HEARSAY EXCEPTIONS CONTAINED IN THE OHIO RULES OF EVIDENCE AND THE FEDERAL AND OHIO CONSTITUTIONAL PROTECTIONS OF DUE PROCESS OF LAW, FUNDAMENTAL FAIRNESS, COMPULSORY PROCESS, CONFRONTATION, EQUAL PROTECTION, AND THE RIGHT TO PRESENT A COMPLETE DEFENSE.
ASSIGNMENT OF ERROR # 8 PROSECUTORIAL AND POLICE MISCONDUCT IN THE FORM OF THE WITNESS INTIMIDATION OF RONNIE BLAND, A DEFENSE WITNESS, VIOLATED THE APPELLANT'S RIGHT TO A FAIR TRIAL, COMPULSORY PROCESS, SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION UNDER THE FEDERAL AND OHIO CONSTITUTIONS.
*4 ASSIGNMENT OF ERROR # 9 TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.
Subsequently, he supplemented his appeal with a tenth assignment of error:
ASSIGNMENT OF ERROR # 10 PROSECUTORIAL MISCONDUCT CONSISTING OF IMPROPER AND PREJUDICIAL COMMENTS BY THE PROSECUTOR IN ITS REBUTTAL CLOSING STATEMENT VIOLATED THE APPELLANT'S RIGHT TO A FAIR TRIAL, DUE PROCESS AND EQUAL PROTECTION UNDER THE FEDERAL AND OHIO CONSTITUTIONS AND TRIAL COUNSEL FAILURE'S [sic] TO OBJECT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.
In an opinion issued on April 23, 2009, the court of appeals overruled all ten assignments of error and affirmed his conviction and sentence. State v. Whiteside, 2009 WL 1099435 (Franklin Co. App. April 23, 2009). Petitioner further appealed his conviction to the Ohio Supreme Court, which declined review. State v. Whiteside, 122 Ohio St. 3d 1505 (2009).
While his appeal was pending, petitioner, acting pro se, filed a petition for post-conviction relief pursuant to Ohio Revised Code §2953.21. The trial court overruled that petition in a decision dated August 25, 2010, holding that all of the claims in the petition were barred by the doctrine of res judicata. Return of Writ, Exhibit 33. It does not appear from the record that petitioner appealed that decision.
The facts of this case were summarized by the state court of appeals, in its Opinion of April 23, 2009, as follows. As noted below, this Court must accept those facts as accurate for purposes of this proceeding.
The charges herein arise out of the shooting death of Jaron Armstrong ("Armstrong"), that occurred on September 15, 2005, at approximately 1:00 a.m. During the trial, the jury heard testimony from 17 witnesses and the following factual scenario is taken from the same.
Early in the day of September 14, 2005, Erika Lewis ("Lewis"), who had ended a relationship with Armstrong, was walking down the street in the area of the Franklin County Courthouse with her friend, Donee Peterson ("Peterson"), and Peterson's son. Appellant called out to Lewis that she would "look cute in some Apple Bottom jeans." (Tr. 509.) Appellant, who was with two other men, introduced himself as "Nut." Appellant and Lewis exchanged "chirp" and cell phone numbers. Peterson and Lewis then proceeded to a job fair at Nationwide Arena and afterwards went to a Wendy's restaurant. Appellant "chirped" Lewis and later gave Lewis and Peterson a ride in his pickup truck to Lewis's apartment at the Nelson Park Apartments at 1964 Maryland Avenue, in Columbus, Ohio.
Appellant returned to Lewis's apartment later that day and took her to a McDonald's restaurant. Appellant left again, but Lewis later "chirped" appellant to see if he could get some marijuana for her. Appellant agreed to, and they met at a house off of Fifth Avenue. After obtaining some marijuana and smoking some at the house off Fifth Avenue, Lewis returned home. Lewis was preparing for bed when appellant "chirped" and asked her if she wanted some company. Lewis allowed appellant to come over, and once inside, appellant told Lewis his cousin and uncle were also outside. Appellant asked Lewis if they could come in as well, and Lewis allowed them into her apartment. Lewis testified that appellant was driving the same truck as he had earlier that day.
Once appellant and the two other men were inside the apartment, Wonquet Reeves ("Reeves"), and Synneatra Lovett ("Lovett"), who were residents of the apartment complex, came over to Lewis's apartment. According to the women, on his lap, appellant had a gun, described as a revolver, that he later placed in his back pocket. While appellant and the three women were in Lewis's kitchen, Armstrong rode by on a bicycle and said something that they were not able to hear. Armstrong rode by again and this time said something to the effect of coming back and shooting up Lewis's apartment. Lewis told appellant to disregard Armstrong's comments, but appellant went into the living room, said something to the other two men, and then all three went outside. Lewis called them back into the apartment, but then the men exited the back door. While the men appeared to be leaving, appellant walked the other way as Armstrong was then approaching.
Appellant and Armstrong talked for a few minutes and though no one appeared to be yelling, appellant kept his hand in his back pocket where the gun was. The two men separated, and Armstrong walked in the direction of his sister's apartment at 1986 Maryland Avenue. Appellant walked toward the truck where his cousin, who had moved the truck out of the parking spot, was sitting in the driver's seat.
Moments later, several gunshots were heard, and the three women ran outside and saw appellant, with a gun in his hand, running out of a "cut between" the buildings from the area where the shots were fired. Lewis told appellant, "you got to be F'd up; I'm calling the police." (Tr. 563.) Lewis called 911 and heard the truck speed off, squealing its tires in the process. Lewis found Armstrong at the door of his sister's apartment, where he eventually died on the porch.
According to Lakeisha Irvin ("Irvin"), Armstrong's sister, she heard several gunshots and, a few moments later, opened her door to find her brother. Peterson, who was on her own porch at the time, heard gunshots and saw appellant's truck speed off quickly.
The police arrived shortly thereafter. Columbus Police Officer Kevin Eckenrode was the first officer to respond to the call dispatched on September 15, 2005, at 1:03 a.m., of shots fired. Columbus Police Officer Kevin Yankovich was the second officer to arrive, and a female at the scene told him that he needed to "talk to Erika." (Tr. 265.) Less than a minute later, Lewis identified herself to Officer Yankovich and went to his cruiser for questioning. Lewis told Officer Yankovich of the house off Fifth Avenue where the marijuana was purchased, and they drove to that location so that Lewis could point out the exact house to the police. Lewis also told Officer Yankovich "Nut" was responsible for the shooting and that she did not know his real name.
After returning to the scene, Lewis talked to homicide detectives that had arrived. Thereafter, Lewis gathered a few belongings and went to stay at another apartment. The next day, Lewis and Reeves identified appellant out of a photo array. An arrest warrant was issued for appellant on September 16, 2005, and he was eventually apprehended in Georgia.
State v. Whiteside, 2009 WL 1099435, *1-*2.
III. PETITIONER'S HABEAS CLAIMS
Petitioner filed his habeas corpus petition in this Court on September 30, 2010. In his petition, he raised the following twelve claims:
Ground One: The trial court erred when it denied Petitioner's motion to dismiss in violation of the double jeopardy and due process clauses of the U.S. and Ohio Constitutions and the Ohio Rules of Criminal Practice. Ground Two: Petitioner's conviction for manslaughter was not supported by the sufficiency of the evidence in violation of the U.S. and Ohio due process clause and was also against the manifest weight of the evidence.
Ground Three: Petitioner's maximum sentence for manslaughter violated the provision against ex post facto laws and his due process rights contained in the U.S. and Ohio Constitutions.
Ground Four: The trial court erred when it prohibited Ronnie Bland from testifying and asserting his rights against self-incrimination before the jury, in violation of the compulsory process and due process clauses of the U.S. and Ohio Constitutions.
Ground Five: The trial court erred when it prohibited Erika Lewis from testifying and asserting her Fifth Amendment rights against self-incrimination before the jury, in violation of the confrontation clause and due process clause of the U.S. and Ohio Constitutions and Ohio Evidence Rule 608(A).
Ground Six: The trial court erred by not allowing the introduction of Ronnie Bland's interview or at least by not permitting trial counsel to question the police about the substance of their interview with Ronnie Bland in violation of the hearsay exception contained in the Ohio rules of evidence and the U.S. and Ohio constitutional protections of due process of law, fundamental fairness, compulsory process, confrontation, equal protection, and the right to present a complete defense.
Ground Seven: Prosecutorial and police misconduct in the form of the witness intimidation of Ronnie Bland, a defense witness, violated the Petitioner's right to a fair trial, compulsory process, substantive due process and equal protection under the U.S. and Ohio Constitutions.
Ground Eight: Trial counsel rendered ineffective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.
Ground Nine: Prosecutorial misconduct consisting of improper and prejudicial comments by the prosecutor in its rebuttal closing statement violated the Petitioner's right to a fair trial, due process and equal protection under the U.S. and Ohio Constitutions.
Ground Ten: Prosecutorial misconduct consisting of knowingly allowing and contributing to perjured testimony from Detective Weeks, violated the Petitioner's right to a fair trial, due process and equal protection under the U.S. and Ohio Constitutions.
Ground Eleven: Ineffective assistance of counsel in failing to investigate or to subpoena witnesses to raise reasonable doubt in violation of the 6th Amendment to the U.S. Constitution and Article I, Sections 10 and 16 of the Ohio Constitution.
Ground Twelve: Ineffective assistance of counsel in failing to operate in Petitioner's best interest and asking for the lesser included offense of voluntary manslaughter in violation of the 6th Amendment to the U.S. Constitution and Article I, Sections 10 and 16 of the Ohio Constitutions. Respondent concedes that the petition was timely filed. However, it is respondent's position that grounds nine through twelve have been procedurally defaulted, and that this default cannot be excused on grounds of ...