REPORT AND RECOMMENDATION
JAMES R. KNEPP II, Magistrate Judge.
This is an action initiated by pro se Petitioner Malcolm Daniels, a prisoner in state custody, seeking a writ of habeas corpus under 28 U.S.C. § 2254 ("Petition"). (Doc. 1). Respondent Warden Terry Tibbals filed a Return of Writ (Doc. 11) with attached exhibits (Docs. 11-1; 11-2; 11-3; 11-4). Petitioner failed to respond to the Return of Writ. The district court has jurisdiction over the Petition under § 2254(a). This matter has been referred to the undersigned for a Report and Recommendation pursuant to Local Rule 72.2(b)(2). (Doc. 5). For the reasons discussed below, the undersigned recommends the Petition be denied and dismissed with prejudice.
For purposes of habeas corpus review of state court decisions, findings of fact made by a state court are presumed correct and can only be contravened if the habeas petitioner shows, by clear and convincing evidence, that the state court's factual findings were erroneous. 28 U.S.C § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by a state court of appeals based on the state trial record. Mitzel, 267 F.3d at 530. The Cuyahoga County Court of Appeals, Eighth District of Ohio, set forth the following findings of fact:
Mechelle Gooden ("Gooden") testified that, shortly after midnight, on August 9, 2008, she and Kiana Jones ("Jones") went to visit a friend, Jessica Fowler ("Fowler"), at an apartment building located at 7700 Woodland Avenue, in Cleveland, Ohio. As Fowler came out of the apartment building to get into Gooden's car, she stopped to talk to two males sitting in a parked Dodge Intrepid. Rodney Williams ("Williams") was sitting in the driver's seat and Curtis Green ("Green") was sitting in the passenger seat. Green testified that Williams had parked in that location to sell marijuana.
Fowler began talking to Green and then realized that she had gone to school with Williams. Fowler talked with Williams for several minutes, and the two exchanged phone numbers. Fowler then got into Gooden's car and left. Moments later Daniels got into the backseat of Williams's car. Williams showed Daniels a small portion of marijuana. Daniels told Williams he would be right back. Daniels got out of the vehicle and went back into the apartment building.
Approximately three minutes later, Daniels returned and again got into the backseat of the vehicle. Green stated that Daniels demanded everything Williams had and pulled out a gun. Williams looked back at Daniels and reached for the gun, at which point Daniels shot Williams once in the head. Daniels then got out of the vehicle and ran.
Green attempted to drive the vehicle while sitting on the center console. He was able to drive the vehicle from the parking lot to the driveway, at which point he stated that the vehicle broke down and he was unable to drive it further. Green then called Williams's name several times. Green stated that Williams's breathing was labored and he was unable to respond. Williams ultimately died from his wound.
Green panicked and began running down East 79th Street. Green called his cousin, who picked him up and drove him home. When Green arrived at home, he immediately told his mother, Rhonda Frisco Green ("Rhonda"), that Williams had been shot. Green had Williams's cell phone and handed it to Rhonda. Rhonda was able to contact Williams's grandmother and tell her that Williams had been shot.
Later that morning, Rhonda took Green to the police station to make a statement. In his statement, Green stated that he was not in the vehicle when Williams was shot. Green did not mention that Williams had been selling drugs at the time of the shooting.
Green testified that on August 15, 2008, he returned to the police station to make a second statement. In this statement, Green admitted that Williams was selling drugs the night that he was shot, and also stated that he was in the vehicle when Williams was killed. Police then gave Green a photo lineup to determine if he could name a suspect. Green was able to identify Daniels as the individual who shot Williams.
On August 17, 2008, Daniels was arrested at a cousin's home in Rochester, New York. Rochester Police Officer Manuel Ortiz ("Officer Ortiz") testified that, while Daniels was seated in the back of the patrol car, he spontaneously stated, "[it] was self-defense, man. I had four pounds of weed, and he had a stack. He was gonna rob me, so I shot him out of my pocket."
On May 26, 2009, the jury convicted Daniels on all counts.
On June 4, 2009, the trial court held a sentencing hearing. The trial court merged Counts 1 and 2, aggravated murder, and sentenced Daniels to 25 years to life. The trial court also merged Counts 3 and 4, aggravated robbery, and sentenced Daniels to five years of imprisonment, to run concurrent to the sentence on Counts 1 and 2. In addition, the trial court merged the one and three year firearm specifications on Counts 1, 2, 3, and 4, for an ...