The opinion of the court was delivered by: Magistrate Judge Kemp
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. This matter is before the Court on that petition, respondent's return of writ, and the exhibits attached to the return. Petitioner has not filed a traverse. For the reasons that follow, the Magistrate Judge RECOMMENDS that petitioner's claims be DISMISSED.
On June 18, 2007, a Franklin County, Ohio grand jury indicted petitioner on six felony counts arising out of an alleged assault on Tamika Brightwell, Antonette Brightwell, Robert Taylor, and Alfreda Hyppolite, which occurred on March 20, 2007. The indictment contained four counts of felonious assault with firearm specifications (one for each of the four alleged victims), one count of improperly discharging a firearm, with the same two specifications, and one count of improper handling of a firearm in a motor vehicle, also with a firearm specification Return of Writ, Exhibit One.
Petitioner pleaded not guilty and the case went to trial on August 20, 2008. On August 26, 2008, the jury convicted him of all six counts and all of the specifications. On October 1, 2008, the trial court issued a judgment entry imposing sentence. Petitioner received a total sentence of nineteen years incarceration plus three years of post-release control. Return of Writ, Exhibit Four. The sentencing entry was amended approximately three weeks later but the total sentence remained the same.
Petitioner timely appealed. He raised only two assignments of error:
First Assignment of Error: The trial court erroneously failed to conduct a full inquiry to determine the nature and extent of any breakdown in the attorney-client relationship between Appellant and trial counsel.
Second Assignment of Error: Appellant's convictions were not supported by sufficient credible evidence.
Return of Writ, Exhibit Seven.
In a decision dated October 29, 2009, the Tenth District Court of Appeals found no merit in these two assignments of error and affirmed petitioner's conviction and sentence. State v. Grisson, 2009 WL 3495054 (Franklin Co. App. October 29, 2009). The Ohio Supreme Court subsequently denied review. State v. Grisson, 124 Ohio St.3d 1493 (March 3, 2010).
Petitioner asserts in his petition that he also filed a post-conviction petition in the Franklin County Court of Common Pleas. Respondent states that no such petition can be located, and the Court's review of the Franklin County Clerk of Courts' website, www.franklincountyohio.gov/clerk, does not reveal that petitioner ever filed a post- conviction petition. Therefore, the Court is satisfied that the return accurately states the procedural history of the cases and attaches the entire state court record.
On March 2, 2011, petitioner timely filed his petition for a writ of habeas corpus in this Court. In his petition, he raised two issues, which he has phrased as follows:
GROUND ONE: 1. Assigned counsel refused to employ an investigator to verify defendant's alibi. 2. Assigned counsel refused to subpoena exculpatory witnesses. 3. Defendant's family hired counsel who was disbarred prior to trial and judge ordered original counsel to represent.
GROUND TWO: 1. One felonious assault offense went unsupported by testimony of alleged victim or any witness that any assault occurred.
It is respondent's position that neither of these claims support the grant of habeas corpus relief.
The pertinent facts are stated in the state court of appeals' opinion as follows. These facts are presumed to be correct. See 28 U.S.C. § 2254(e)(1); see also House v. Bell, 283 F.3d 37 (6th Cir.2002).
Tameka Brightwell was on her front porch eating with family and friends at approximately 7:00 p.m. on the evening the drive-by shooting occurred. Tameka's daughter, Antonette, was present, along with Anonette's friend, Robert Taylor, who worked with Antonette. Alfreda Hyppolite and her three children were also there, along with several other friends and family members.
Tameka testified that prior to the shooting, she heard her daughter, Antonette, shouting on the phone with another girl. Tameka was aware that Antonette had been having problems with a female she had met at work. Antonette testified that the girl she was arguing with over the phone was Theresa Harper, who had recently been fired. At least one of these arguments with Theresa occurred while Antonette was on her mother's front porch. After Theresa threatened Antonette, Antonette hung up on her. Theresa then called back and gave the phone to a man who identified himself as "Kenny." Kenny wanted Antonette and Theresa to engage in a boxing match against each other. Antonette testified that Kenny informed her that he and Theresa were coming over to Antonette's house.
Approximately 10 to 15 minutes after this phone conversation ended, Antonette was talking to friends and family on the porch when she heard gunshots. Antonette testified she and her mother were on the porch and Robert was right next to the porch. Tameka testified she was on her porch standing by the steps and Antonette was on the sidewalk by the steps, while Robert was right next to Antonette. Both Antonette and Tameka testified that they observed a male firing shots at their house while driving by in a green, four-door vehicle. Antonette heard six or seven shots while Tameka testified to hearing five or six shots. Tameka testified that she was hit in the face by one of those shots when she was standing on her front porch. Antonette called 911. Police and emergency medical personnel responded and Tameka was transported to the hospital. Medical personnel treated her for injuries she received as a result of a single bullet entering and exiting the right side of her face. She was released later that night.
The Columbus Division of Police collected evidence, including spent shell casings. Photographs were also taken of the scene, including the residence. Detective Jeffrey Collins testified the investigation and the photographs revealed what appeared to be a fresh bullet strike to Tameka's residence.
The day after the shooting, Tameka was shown a photo array containing a suspect who was not the appellant. Tameka did not select anyone from that photo array. On May 18, 2007, after detectives had obtained additional information, Tameka was shown a new photo array containing a photo of the appellant. Using that photo array, Tameka identified appellant as the shooter.
Tameka also made an in-court identification of appellant as the shooter. In addition, Alfreda Hyppolite made an in-court identification of appellant as the shooter. She testified that she got a very good look at the shooter as she was running to the sidewalk to protect her children after a gunshot was fired. However, Alfreda had never been shown a photo array by detectives and never identified appellant prior to trial.
Antonette was not able to identify appellant as the shooter, but she did identify Theresa Harper as the female passenger in the shooter's vehicle, via a photo array shown to her on March 21, 2007.
Theresa testified against appellant pursuant to a proffer and plea bargain her attorney negotiated with the state of Ohio in exchange for a reduced sentence. Theresa testified that she and appellant had been friends since 2004 and were both from the Hilltop area. On the date of the incident, she and appellant and a man named "HB" were driving to the home of Robert Taylor. She was the front seat passenger in a green vehicle being driven by appellant.
While appellant was driving, Theresa informed him that Antonette had called her several times that day. Appellant answered Theresa's phone the next time Antonette called. Following an unfriendly conversation, appellant advised Antonette that he and Theresa would be coming to her house and that he wanted the two of them to fight. Theresa provided appellant with directions to Antonette's house and pointed out the house and Antonette to appellant. She observed Antonette on the porch and Robert on the sidewalk in front of the house. As the car was slowing down near Antonette's house, Theresa prepared to exit the vehicle. However, the car did not stop and appellant began ...