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Hancher v. Warden, Warren Corr. Inst.

United States District Court, S.D. Ohio, Western Division

August 28, 2013

ROBERT HANCHER, IV, Petitioner,
v.
WARDEN, WARREN CORRECTIONAL INSTITUTION, Respondent

Order Filed: June 3, 2013

Page 644

Robert Hancher, IV, Petitioner, Pro se, Lebanon, OH.

For Warden, Warren Correctional Institution, Respondent: Maura O'Neill Jaite, LEAD ATTORNEY, Ohio Attorney General's Office, Criminal Justice Section, Columbus, OH.

Page 645

DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATION (DOC. #22) IN ITS ENTIRETY; JUDGMENT TO ENTER IN FAVOR OF RESPONDENT AND AGAINST PETITIONER HEREIN, DISMISSING PETITIONER'S PETITION FOR A WRIT OF HABEAS CORPUS WITH PREJUDICE; DENYING CERTIFICATE OF APPEALABILITY AND MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS WITH RESPECT TO ALL CLAIMS; TERMINATION ENTRY

Walter H. Rice, United States District Judge. Magistrate Judge Michael J. Newman.

The Court has reviewed the June 3, 2013 Report and Recommendation of United States Magistrate Judge Michael J. Newman (Doc. #22), to whom this case was referred pursuant to 28 U.S.C. § 636(b), and noting that no objections have been filed thereto and that the time for filing such objections under Fed.R.Civ.P. 72(b)(2) has expired, the Court adopts the aforesaid Report and Recommendation in its entirety.

Given that Petitioner has not made a substantial showing of the denial of a constitutional right and, further, that the Court's decision herein would not be debatable among reasonable jurists, and because any appeal from this Court's decision would be objectively frivolous, Petitioner is denied a certificate of appealability on all claims and leave to proceed in forma pauperis on appeal.

The captioned case is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

REPORT AND RECOMMENDATION [1]

Michael J. Newman, United States Magistrate Judge. District Judge Walter H. Rice.

This case is now before the Court upon Petitioner Robert Hancher's request for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (doc. 2); Respondent's Return of Writ (doc. 9); Petitioner's Traverse (doc. 13); [2] Respondent's Surreply, filed with leave of Court (doc. 17); and Petitioner's response to Respondent's Surreply, also filed with leave of Court (doc. 18).

I. BACKGROUND

A. Factual Background

The Montgomery County Ohio Court of Appeals summarized the facts underlying Petitioner's convictions as follows:[3]

Late in the evening of February 1, 2008, Robert Hancher; his half-brother, Antonio Gomez; his girlfriend, Grace Agullana; his friend, Robert (Tyler) Kleekamp; Agullana's cousin, Megan Hayes; Timothy (T.J.) Bradley; and two female friends of Agullana (Stacy Kinsel

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and a woman identified only as " Michelle" ) gathered at Meercat's Bar, located at 1227 Wilmington Pike in Dayton, Ohio. Hancher called his friend, Paul Credlebaugh, to join them; Credlebaugh came with two other individuals, who left at about 11:30 p.m. Hayes invited Paul Day to come to Meercat's. Day came and later called his friend, Stephen Sipos, who met Day at Meercat's.

While in Meercat's, the group gathered at tables and at the bar. Hayes and Kinsel went behind the bar and served free mixed drinks to their friends. At one point, Sipos " made a pass" at Agullana. Agullana informed Hancher, who told Sipos that Agullana was his girlfriend. Sipos " brushed it off," and no confrontation occurred in the bar.

Shortly before 2:00 a.m., the establishment's owner announced that the bar would be closing. Hancher, Gomez, and Agullana left Meercat's by the establishment's back door. Sipos came out of the back door soon thereafter and began " exchanging words" with Hancher in the parking lot located behind Meercat's and several other businesses. Sipos and Hancher grabbed each other. Kleekamp exited the bar from the back door and approached the two men. When Credlebaugh left the bar, Kleekamp was standing behind and within reaching distance of Sipos. Credlebaugh saw that Hancher was " pretty heated" over something and asked him what was going on. Hancher responded that Sipos had said something about his (Hancher's) girlfriend. Credlebaugh told Hancher to " let it slide," but Hancher said that he would not let it slide.

Kleekamp " sucker punched" Sipos from behind, hitting him in the face. Sipos fell to the ground on his stomach. Hancher and Kleekamp began kicking Sipos repeatedly in the face and on his head. Credlebaugh stated that Hancher " was kicking [Sipos] hard, but nothing like the way [Kleekamp] was." Gomez punched Sipos in the head once and encouraged the assault. Credlebaugh stated that he approached and tried to pull Hancher and Kleekamp away from Sipos. Hancher eventually stopped kicking Sipos. Credlebaugh grabbed Kleekamp by his sweatshirt and pulled him off of Sipos. Credlebaugh yelled at the group to go to the car. Throughout the assault, Sipos did not try to defend himself and appeared to be unconscious.

As Credlebaugh went to check on Sipos' condition, Kleekamp returned and stomped down on the back of Sipos' head with his foot. Kleekamp then went to his car and sped away to Gomez's nearby apartment with Hancher, Gomez, Agullana, and Kinsel. At that time, Sipos was still breathing, but unconscious. Credlebaugh observed that Sipos' face and head were covered in blood. Credlebaugh left the parking lot and walked to Gomez's apartment.

Soon thereafter, Hayes and Day left Meercat's by the back door and saw someone on the ground in the parking lot. They approached and observed Sipos lying face down with blood around his face. Sipos was breathing " really weird," as if he were gurgling blood. They tried unsuccessfully to turn him over. Day called 911 and waited nearby for emergency assistance to arrive. Hayes went back inside Meercat's and told Michelle and Bradley about Sipos; the three left through Meercat's front entrance and walked to Gomez's apartment.

Brian Rinderle, the bouncer for nearby Taggart's Pub, had observed Kleekamp, Hancher and others yelling to a woman to get into Kleekamp's car and, after she got in, saw the car leave the

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Meercat's parking lot and speed away down Wilmington Pike. Rinderle and a security guard for Taggart's went to the back of Meercat's and discovered Sipos. The security guard contacted the police and learned that the police had already been notified of the assault. Rinderle and the security guard also waited for the police to arrive.

Dayton Police Officers John Howard and Dave Kluwan responded to the calls. Howard observed Day standing in the parking lot by the Pony Keg (another business that shared the parking lot with Meercat's); Day was waving his arms to get the officers' attention. Day advised Howard that his friend had been beaten, and he pointed the officers to Sipos's location. Medics arrived a few minutes later and transported Sipos to Miami Valley Hospital. Sipos died at the hospital.

At Gomez's apartment, Hancher and Kleekamp bragged about how they had beaten Sipos. According to Credlebaugh, Hancher said, " I showed him" and " I beat the hell out of the guy." When Hayes, Michelle, and Bradley arrived at Gomez's apartment, they informed the group that Sipos had died. Credlebaugh told Hancher that he was " done with [him]" and left the apartment. Hancher and Kleekamp began to discuss fleeing to Florida.

Hancher, Kleekamp, Agullana, Hayes, and Bradley left Gomez's apartment and drove in Kleekamp's car to Hancher's father's house near downtown Dayton. Hancher went inside to ask his father for money so that he could go to Florida. Hancher was unable to obtain money from his father, and he returned to the car. Kleekamp decided to drive to his uncle's house so that he could ask for money to go to Florida. Along the way, they took Hayes to her mother's home. Hayes tried to convince Agullana to come with her, too, but Agullana remained in the car. When Hayes got out of the vehicle, Hancher told her " not to tell anybody."

Kleekamp and Hancher continued to talk about running to Florida as they drove to Kleekamp's uncle's home. After Kleekamp talked with his uncle, the uncle called the police.

When the police arrived at Kleekamp's uncle's residence, Kleekamp, Hancher, Agullana, and Bradley went to the police station and provided statements. Kleekamp orally consented to the search of his vehicle and signed a form reflecting that consent. The police took photos of Kleekamp and Hancher and obtained Kleekamp's shoes and Hancher's boots and jeans; the police later obtained the jeans and polo shirt that Gomez had been wearing. Sipos's blood was found on Kleekamp's shoes, Hancher's boots, Hancher's jeans, and Gomez's shirt.

State v. Hancher, 2010 Ohio 2507, 2010 WL 2225413, at *1-3 (Ohio Ct. App. 2010) (doc. 9-1 at PageID 109-13).

B. Procedural Background

In June 2009, Petitioner was convicted by jury verdict of felony murder in violation of Ohio Revised Code § 2903.02(B) -- with a predicate offense of felonious assault under Ohio Revised Code § 2903.11(A)(2) -- in the Montgomery County, Ohio Court of Common Pleas. Doc. 9-1 at PageID 106, 138. Petitioner was sentenced to fifteen years-to-life imprisonment. Id. Before trial, Petitioner, with the assistance of counsel, filed a motion ...


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