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Lackey v. Warden, London Correctional Institution

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

May 12, 2017

EDDIE M. LACKEY, Petitioner,
v.
WARDEN, London Correctional Institution Respondent.

          Walter Herbert Rice, District Judge

          REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge

         This habeas corpus case is before the Court for decision on the merits on the Petition (ECF No. 1) and Traverse (ECF No. 13). As ordered, Respondent filed the State Court Record (ECF No. 8) and an Answer/Return of Writ (ECF No. 9).

         Lackey pleads the following Grounds for Relief:

GROUND 1: The Trial Court violated Petitioner's Fifth, Sixth, and Fourteenth Amendment rights when it amended the B. indictment and denied Judgment of Acquittal due to insufficient evidence to establish Petitioner's identity.
Supporting Facts: See Petition, ECF No. 1, PageID 17.
GROUND 2: Due Process and Equal protection violated by allowing conviction based on testimony of co-conspirator alone.
Supporting Facts: See Petition, ECF No. 1, PageID 26.
GROUND 3: Violation of Due process and equal rights by allowing a conviction using prejudicial evidence.
Supporting Facts: See Petition, ECF No. 1, PageID 29.
GROUND 4: Second Appellate District violated due process and equal protection when Judicial and Prosecutorial misconduct committed.
Supporting Facts: See Petition, ECF No.1, PageID 31.

(Petition, ECF No. 1.)

         Procedural and Factual History

         Lackey was indicted by the Montgomery County Grand Jury in 2013 on one count of aggravated arson (Ohio Revised Code § 2909.02(A)(2)) (State Court Record, ECF No. 8, PageID 54). In 2014, the state filed an indictment B charging Lackey with conspiracy to commit aggravated arson on April 8 through April 12, 2013 (Ohio Revised Code § 2909.02(A) (1)) and attempted aggravated arson on April 8 through April 9, 2013 (Ohio Revised Code § 2909.02(A) (1)/2923.02(A)) (State Court Record, ECF No. 8, PageID 70).

         The case proceeded to trial and after the State presented its case, the trial court granted Lackey's motion to dismiss indictment A (State Court Record, ECF No. 8, PageID 118). The remaining counts in the B Indictment were submitted to the jury. In addition, over objection from Lackey, the court allowed the State to amend the dates for the conspiracy count of indictment B. In June 2014, Lackey was found guilty of conspiracy to commit aggravated arson and attempted aggravated arson. The court merged the two counts and sentenced Lackey to 6 years in prison (State Court Record, ECF No. 8, PageID 122).

         Lackey appealed to the Court of Appeals of Ohio, Second Appellate District, Montgomery County, raising the following assignments of errors:

1. The court's failure to dismiss appellant's B indictment was in direct violation of appellant's speedy trial rights.
2. The court's failure to sever the trials for the A and B indictments deprived appellant of a fair trial and due process of law.
3. Amending the B indictment after the closing of appellant's case-in-chief was a material change and deprived appellant of a fair trial and due process of law.

(Appellant's Brief, State Court Record, ECF No. 8, PageID 128.)

         The Second District set forth the facts of this case on direct appeal as follows:

[*P6] At about 12:30 a.m. on April 9, 2013, Nozad Ibrahim (“Tony”) was working as a clerk at a Sunoco gas station located at 3900 Salem Avenue in Dayton, Ohio. Tony was outside the business and saw two individuals walking next to the dumpster. They ran away when they saw him, and about 15 to 20 minutes later, Tony saw one of the men open the door, light a 24-oz Budweiser beer bottle filled with gas, and throw it in the door. Luckily, the bottle did not break and the store did not catch on fire. A partially burned dollar bill was found on the floor. Gauze and a cigarette butt were found inside the bottle.
[*P7] Tony called the police, who were dispatched to the scene. On the way to the scene, Officer Jason Berger saw a male (later identified as Joe Whitfield) walking in the vicinity. After receiving a description of the suspects, Berger drove back to where he had seen Whitfield. Berger then saw Whitfield and another man walking behind a carwash. As soon as Berger pulled behind the carwash, the men began running away. Ultimately, Berger was able to apprehend Whitfield, who had a strong odor of gasoline about him. Berger drove Whitfield to the gas station, where Tony stated that he was 60% certain that Whitfield was the one who had thrown the bottle. Whitfield was arrested and searched, and the police found a piece of torn gauze in his pocket.
[*P8] A second arson incident occurred while Whitfield was in custody. At about 12:30 a.m. on April 12, 2013, another attempted arson occurred at the Sunoco gas station. After being told by a customer that the building was on fire, the clerk, Tony, went behind the building and saw that the back door was on fire. Tony put out the fire and the police arrived at about 1:45 a.m. There was a strong odor of gasoline, as well as charring and flaking on the back door

         [*P9] About an hour later, the police arrived at Lackey's home. They were acting on information from a potential witness who had allegedly seen men running from the station and had gotten a license plate number. Lackey allowed the police to search his vehicle for evidence and fingerprints. Lackey claimed that he had arrived home at around 10:00 p.m., and had not been out since. There was no odor of gasoline about the vehicle or on Lackey, and the police did not find any incriminating evidence, like gauze or beer bottles. However, the hood of the vehicle was warm to the touch and there were wet spots on the vehicle. (It had been raining that night.)

[*P10] Both the April 9 and April 12, 2013 arson cases were assigned to Detective Melanie Phelps-Powers. On April 16, 2013, the clerk, Tony, picked out the second person from the April 9, 2013 arson, based on a photo spread. The person he selected was not Lackey, nor was it the photo of any individual who was ever connected to the case.
[*P11] Whitfield gave conflicting statements to the police. Phelps- Powers first interviewed Whitfield on April 17, 2013. At that time, Whitfield told her that he had nothing to do with the April 9, 2013 arson.
[*P12] Whitfield was charged with the April 9, 2013 arson. On April 22, 2013, Whitfield told Phelps-Powers that Lackey had picked him up at his house around midnight on April 9, 2013, and that they were going to a studio to record music. Whitfield had been drinking before he was picked up, and had a few drinks before passing out. He stated that when he woke up, another guy had a gun and was going to throw a fire bomb at the gas station. Whitfield told the detective that the motive was to “shut down” the store that night. In the meantime, Lackey had been arrested on April 19, 2013, solely in connection with the April 12, 2013 arson. The complaint against Lackey was dismissed on April 29, 2013, however.
[*P13] Evidence eventually obtained from Lackey's cell phone records for the night of the April 9, 2013 arson showed calls between Lackey and Whitfield's girlfriend, Latoya, at 4:36 a.m. and a few hours later the same day. Lackey was a friend of Latoya's family and had met Whitfield through Latoya. As a result of DNA analysis on the cigarette butt that was found in the bottle used in the April 9, 2013 arson, the police also identified an individual named Vaughn ...

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