United States District Court, S.D. Ohio, Western Division, Cincinnati
S. Beckwith District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
habeas corpus case, brought pro se by Petitioner
Kevin Bates, is before the Court for decision on the merits
on the Petition (ECF No. 1), the State Court Record (ECF No.
5), and the Return of Writ (ECF No. 6). Petitioner did not
file a Reply.
pleads the following grounds for relief
GROUND ONE: The Trial Court violated the double jeopardy
clause of the United States Constitution when it failed to
Supporting Facts: Petition, ECF No. 1, PageID No. 20.
GROUND TWO: The trial court violated the due process clause
of the United States Constitution when it failed to exclude
inadmissible, prejudicial, and irrelevant evidence aimed at
inflaming the jury and not at providing actual evidence of
Supporting Facts: Petition, ECF No. 1, PageID No. 23.
GROUND THREE: Petitioner received ineffective assistance of
trial counsel when his attorney invited and failed to correct
or object to prejudicial error which denied him the right to
due process and equal protection under the United States
Supporting Facts: Petition, ECF No. 1, PageID No. 26.
GROUND FOUR: The evidence at trial was insufficient to
support the jury verdict and against the manifest weight of
the evidence and violated Plaintiff's due process and
equal protection rights under the United States Constitution.
Supporting Facts: Petition, ECF No. 1, PageID No. 27.
(Petition, ECF No. 1, PageID No. 1.)
April 26, 2013, the Hamilton County Grand Jury indicted Bates
on one count of aggravated robbery with firearm
specifications in violation of Ohio Revised Code §
2911.01(A)(1)(Count 1); one count of robbery in violation of
Ohio Revised Code § 2911.02(A)(2)(Count 2); one count of
tampering with evidence in violation of Ohio Revised Code
§ 2921.12(A)(1) (Count 3); one count of having weapons
while under disability in violation of Ohio Revised Code
§ 2923.13(A)(2)(Count 4); one count of having weapons
while under disability in violation of Ohio Revised Code
§ 2923.13(A)(2)(Count 5); one count of carrying
concealed weapons Ohio Revised Code §
2923.12(A)(2)(Count 6); one count of improperly handling
firearms in a motor vehicle Ohio Revised Code §
2923.16(B)(Count 7); one count of having weapons while under
disability Ohio Revised Code § 2923.13(A)(3)(Count 8);
one count of carrying concealed weapons Ohio Revised Code
§ 2923.12(A)(2)(Count 9) and one count of felonious
assault in violation of Ohio Revised Code §
2903.11(A)(2) with specifications.
a jury trial, Bates was found guilty of Counts 1-9 and not
guilty on Count 10 and was sentenced to an aggregate term of
sixteen years on December 12, 2013. (State Court Record, ECF
No. 5, PageID No. 60.)
through counsel, appealed to the Court of Appeals of Ohio,
First Appellate District, Hamilton County, raising the
following assignments of error:
1. The Trial Court erred by allowing the jury to hear
inadmissible and highly prejudicial evidence about Mr.
2. The Appellant's convictions are against the weight and
sufficiency of the evidence.
3. The Trial Court erred by failing to merge Mr. Bates'
convictions for various weapons charges.
(Appellant's Brief, State Court Record, ECF No. 5, PageID
First District set forth the facts of this case on direct
appeal as follows:
[¶4] Timothy Johnson was working as a
confidential informant for the Cincinnati police. Following
the instructions of his police handlers, he arranged to
purchase three firearms from Kevin Bates, a man whom Mr.
Johnson had identified to the police as a "gun
guy." The sale was to take place at a gas station. To
facilitate the deal, Officer Howard Fox supplied Mr. Johnson
with over $300 that had previously been photocopied by the
police. Mr. Johnson was also equipped with a police-provided
cell phone and a hidden video recorder.
[¶5] When it came time for the deal,
Mr. Bates told Mr. Johnson that the gas station was too busy,
so he drove Mr. Johnson to a side street. When they arrived,
Mr. Bates left the car saying he needed to get the firearms
from his girlfriend's apartment.
[¶6] Mr. Johnson waited in Mr.
Bates's parked car. After some time, Mr. Bates called to
say that he was on his way back from his girlfriend's
apartment. Minutes later, two men with guns approached the
car. The hidden video recorder captured the incident. The men
searched Mr. Johnson and threatened to shoot him. In addition
to taking money and two cell phones from Mr. Johnson, the men
discovered the video recorder, ripped it from his body and
[¶7] Some ten to 15 minutes later, Mr.
Bates came back to the car, and Mr. Johnson told him that he
had been robbed. Notably, Mr. Bates did not have firearms
with him when he returned to the car. Mr. Bates then drove
Mr. Johnson back to the gas station and left him, telling him
he would find out who had committed the robbery.
[¶8] Back at the gas station, Mr.
Johnson told Officers Fox and Rebecca Napier that he had been
robbed. The police officers issued a description of Mr.
Bates's car. Officers in two unmarked police cars tailed
Mr. Bates. Officer Joshua Fehrman, who was in an unmarked
SUV, testified that he saw Mr. Bates pull over to allow two
men to get into his car. Eventually, the two unmarked police
cars managed to stop Mr. Bates's car.
[¶9] Officer Steve Mittermeier was in
the other unmarked car. He testified that as he and Officer
Charles Bell walked up to the car with their weapons drawn,
he spotted Mr. Bates in the driver's seat, pointing a gun
at him. Officer Mittermeier stated that the gun went
"across the dashboard" and disappeared from sight.
Officer Bell testified that he also saw Mr. Bates pointing a
gun at him as the officers approached the car.
[¶10] Mr. Bates and his two passengers,
later identified as Harold Chandler and Tywon Reliford, were
removed from the car. A weapon was found in Mr.
Chandler's waistband, and Officer Mittermeier retrieved a
revolver from the floor of the car under the steering wheel.
In addition, police officers recovered all but a $20 bill of
the money that had been photocopied earlier by Officer Fox.
Mr. Johnson later identified Messrs. Chandler and Reliford as
the men who had robbed him.
[¶11] In his statement to police
officers, Mr. Bates admitted that he had arranged a gun sale
with Mr. Johnson. But he denied that he had set up the
robbery. Messrs. Chandler and Reliford told a different
story. Both testified that Mr. Bates had orchestrated the
robbery. Mr. Reliford stated that Mr. Bates had provided both
guns that were used in the robbery, while Mr. Chandler only
could be certain that his gun had been provided by Mr. Bates.
The stories of all the men differed on details about who knew
whom first, who was in the car first and where the guns were
handed to Messrs. Chandler and Reliford.
[¶12] Mr. Bates was indicted for
aggravated robbery with firearm specifications, robbery,
carrying a concealed weapon, having a weapon while under a
disability, improperly handing a firearm in the car and
felonious assault. The jury found him guilty of all the
charges except felonious assault. The trial court merged the
aggravated-robbery count with the ...