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McKinney v. Warden Warren Correctional Institution

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

May 30, 2017

ANTHONY McKINNEY, Petitioner,
v.
WARDEN, WARREN CORRECTIONAL INSTITUTION, Respondent.

          SARGUS JUDGE

          ORDER AND REPORT AND RECOMMENDATION

          Norah McCann King United States Magistrate Judge.

         Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting six (6) claims for relief. On September 29, 2015, the Court dismissed claims two, five, and six. Order (ECF No. 41); Judgment (ECF No. 42). This matter is now before the Court for consideration of claims one, three, and four following the transfer of these claims by the United States Court of Appeals for the Sixth Circuit. In re: Anthony L. McKinney, No. 15-4107 (6th Cir. Aug. 8, 2016); Order (ECF No. 46). Available for this Court's consideration are the Petition (ECF 1), Respondent's Return of Writ and Supplemental Memorandum Supporting Return of Writ (ECF Nos. 48, 49, 60), Petitioner's Traverse (ECF No. 70), Respondent's Sur-Reply (ECF No. 72), Petitioner's Response to Sur-Reply (ECF No. 73), Petitioner's Supplemental and Amended Traverse (ECF No. 79), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that the remaining claims, and this action, be DISMISSED.

         Petitioner's requests for discovery and an evidentiary hearing, made throughout his filings, are DENIED. Petitioner's Motion Requesting the District Court to Order Respondent to Provide the Court and Petitioner with Relevant Portions of the Transcripts and Other Parts of the Record (ECF No. 68) is likewise DENIED.

         Petitioner's Motion to Defer Ruling pending Receipt from Petitioner of a Traverse (ECF No. 67) is DENIED, as moot.

         Facts and Procedural History

         This Court has previously summarized the facts and procedural history of this case. Order and Report and Recommendation (ECF No. 32). Briefly, Petitioner challenges his April 2006 convictions after a jury trial in the Franklin County Court of Common Pleas on one count of murder, three counts of felonious assault, and one count of having a weapon while under a disability, with firearm specifications. The Ohio Tenth District Court of Appeals summarized the facts as follows:

The facts showed that on October 13, 2005, four individuals -Terrance Barbour, Sherman Justice, Terrell Craig, and Jermaine Freeman - drove to an apartment building located at 3676 Cleveland Avenue. The purpose for this trip was to visit Barbour's cousin, “Timmy, ” and to plan a party celebrating Barbour's release from the Department of Youth Services. When they arrived at the apartment building, three people were in the parking lot, one of whom was identified by Craig and Freeman as appellant. There was a brief confrontation between the two groups at that time.
The four discovered that Timmy had moved out of his apartment in the building to another apartment on the other side of Cleveland Avenue. The group found Timmy's apartment and visited him for a brief time. As they exited Timmy's apartment, the group was confronted by an individual named Mickey Hairston. Hairston had a gun, and argued with Barbour.
The group went back across Cleveland Avenue to return to their car so they could leave. As they passed through the apartment building, Craig saw Hairston hand a gun to appellant. As Craig got into the driver's seat of their car, he saw appellant, who was standing in the doorway from which the group had just exited the apartment building, begin firing the gun towards him and his group. Craig started to pull the car out of its parking space when he saw that Barbour had been hit by gunfire. Barbour had been struck in the neck by a bullet, and ultimately died from blood loss. In addition, Justice had been shot in the leg.
Deputy Brian Jackson of the Franklin County Sheriff's Office arrived at the scene shortly after the shooting. Jackson spoke to Craig, who gave a description of the person he had seen firing the gunshots. Craig actually described two people, Aa dark heavyset black dude with braids and a short brown-skinned dude with braids.@ (Tr. at 180.) Jackson then began searching the area in his cruiser, looking for anyone who matched the descriptions he had been given. Jackson began his search along Cleveland Avenue south of the buildings because he had been told the shooter had run in that direction.
Jackson saw appellant, who fit the first description Craig had given, exiting a drive-through carryout at Northern Lights Shopping Center. Jackson stopped appellant so he could question him about any possible knowledge of the shooting. Appellant was initially evasive about where he was going and his address, but ultimately gave his address as one of the apartments in the building at which the shooting had occurred. Appellant stated that, “I don't have anything to do with that.” When asked to what he was referring, appellant said, “[w]hatever's going on over there.” (Tr. at 78.) Jackson then put appellant in the back of his cruiser and returned to the scene of the shootings. Craig was then asked if he could identify appellant, and Craig identified appellant as the person who had fired the gunshots. Freeman later identified appellant as the shooter in a photographic array. Appellant was arrested, and his clothes were taken for testing, which revealed the presence of gunshot residue.
Appellant was indicted by a grand jury on one count of murder with a firearm specification; three counts of felonious assault, each with firearm specifications; and one count of having a weapon while under disability. After trial, a jury convicted appellant of all of the charges.

State v. McKinney, No. 06AP-510, 2007 WL 1153077, at *1-2 (Ohio 10th App. April 19, 2007). The trial court sentenced Petitioner to an aggregate prison term of twenty-eight years to life. Respondent's Appendix (ECF 12-2, PageID# 197). On April 19, 2007, the appellate court affirmed the judgment of the trial court. State v. McKinney, 2007 WL 1153077. On September 26, 2007, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. McKinney, 115 Ohio St.3d 1412 (2007).

In the meantime, defendant, on March 19, 2007, filed a petition for post-conviction relief pursuant to R.C. 2953.21. Defendant contended his trial counsel was ineffective in failing to call three specific witnesses whose testimony would have demonstrated defendant was not the person who fired the shot killing Terrance Barbour. Attached to defendant's petition was a letter from the Ohio Public Defender's Office declining to represent defendant in his post-conviction proceedings. Defendant's petition, however, requested the opportunity to amend the petition to include evidence defendant gathered to support it.
As indicated in his original petition, defendant on April 7, 2007 filed a motion for leave to amend his petition, requesting an extension of 110 days to gather supporting materials. The trial court granted his motion, and on July 11, 2007, defendant filed his amended petition. Attached to the amended petition were (1) defendant's own affidavit explaining his inability to produce supporting documentation, and (2) letters from his girlfriend explaining her attempts to assist him. By judgment entry filed September 25, 2007, the trial court denied defendant's petition for post-conviction relief filed on March 19, 2007, as well as his amended petition filed July 11, 2007.

State v. McKinney, No. 07AP-868, 2008 WL 747716, at *1-2 (Ohio 10th App. March 20, 2008). On March 20, 2008, the appellate court affirmed the trial court's denial of the petition for post-conviction relief. Id. On July 9, 2008, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. McKinney, 118 Ohio St.3d 1510 (2008).

         Also, on July 16, 2007, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). On September 27, 2007, the appellate court denied Petitioner's Rule 26(B) application. Respondent's Appendix (ECF 13, PageID# 622). On January 23, 2008, the Ohio Supreme Court declined to accept jurisdiction of the appeal from that decision. State v. McKinney, 116 Ohio St.3d 1480 (2008).

         On June 17, 2009, Petitioner filed his first federal habeas corpus petition. McKinney v. Warden, Warren Correctional Institution, Case No. 2:09-cv-0498 (S.D. Ohio). He asserted in that action that he had been denied a fair trial based on the trial court's constructive amendment of the indictment and on the belated disclosure of allegedly favorable evidence, that he had been denied the effective assistance of counsel, and that he had been convicted on a defective indictment. On June 11, 2011, this Court dismissed all claims asserted in that action as either procedurally defaulted or without merit. Id., Opinion and Order (ECF 40); Judgment (ECF 41). The United States Court of Appeals for the Sixth denied petitioner's application for a certificate of appealability, McKinney v. Warden Warren Correctional Institution, No. 11-3665 (6th Cir. Apr. 13, 2012), and the United States Supreme Court denied Petitioner's petition for a writ of certiorari. McKinney v. Sheets, 133 S.Ct. 534 (2012).

         On November 7, 2011, Petitioner filed a motion for re-sentencing in the state trial court. He asserted that the trial court had improperly failed to notify him of the terms of post release control, Return of Writ (ECF No. 48-2, PageID# 2184), and that the judgment entry of sentence had failed to indicate that Petitioner would be subject to post release control. Id. (PageID# 2186, 2190-93). On March 23, 2012, following a hearing, the trial court issued a Resentencing Entry in which the trial court again imposed the same aggregate prison sentence of 28 years, but also notified Petitioner that he would be subject to a mandatory term of three years post release control. Id. (PageID# 2204). The state appellate court denied Petitioner's appeal from that judgment:

Anthony L. McKinney is appealing from the results of a sentencing hearing at which post-release control was added to his lengthy prison sentence. He was originally convicted of numerous charges in 2007 and pursued a direct appeal at that time. The issue to be considered at his most recent sentencing hearing was limited to whether post-release control should be part of his sentence and if so, how long the post-release control should last. McKinney attempts in his appellate brief to raise several other issues which he calls “claims” as opposed to assignments of error. They are:
CLAIM I
The Appellant was ultimately denied his guaranteed right to the Sixth, Fifth, Fourteenth Amendment to the U.S. and Federal Constitution, the right to confront and be protected against unseen and unknown witnesses and Due Process.
The petitioner Mr. McKinney's rights were violated due to an unknown officer or Sgt. and unknown unseen witness. The officer or Sgt. who actually conducted the identification procedure at the scene of the crime has never been produced, he's unknown and unseen. No one can identify this officer/Sgt. This officer/Sgt. who conducted this identification procedure, also unknown would be the only person to know who his witness was, only if there was a positive identification. Logically if the state doesn't know who the officer/Sgt. is who conducted the identification procedure, you wouldn't know if there was a witness, or who this officers witness was. Officer Brian Jackson who testified at trial, says he only observed the unknown officer/Sgt. conduct the identification procedure, with an unknown person from a distance. Officer Jackson testified that he didn't hear a positive identification. Crawford v. Washington 541 U.S. 36, 68(2004) and that he could not identify the witness, even if he walked in the court room. The phantom witness Terrell Craig. The trial court also violated confrontation by allowing a witness that could not be identified by officials to identify petitioner at trial. Taylor v. Cain, 545 F.3d 327 (5th Cir. 2008). No officer could or have identified this mystery witness as a person who identified petitioner at the scene. Due to the officer/Sgt who conducted the identification procedure being unknown, unseen and has not been identified. It is impossible to have a witness under the protection of due process, and confrontation, when the identification officer/Sgt is unknown. Not only was the identification officer unknown, but officer Brian Jackson says there was no positive identification, and he can't identify this unknown unseen witness Terrell Craig, even if he walked in the court room. Also this claim is not like any other argument petitioner previously argued. Just the same facts, this is a confrontation claim not identification. Haynes v. Quarterman, 561 F.3d 535, 538-39 (5th circuit 2009) Petitioner is showing that a officer/Sgt. and a witness is unknown and unseen. This claim is properly reserved for Appellete review. See March 23, 2012 Sentencing tracscipts and the courts decision July 5, 2012. This court should reverse and remand for a new trial or, rather an acquittal is the proper remedy.
CLAIM II
The appellant was denied the right to be free from double jeopardy 5th admendment to the united states constitution, allied offenses. On March 23, 2012 defendant sucessfully challenged P.R.C. and allied offences at sentencing hearing. Petitioner received a copy of the transcipts from Alicia Lash, these transcipts did not contain petitioners full argument. Petitioners allied offenses claim and other federal constitutional claims were omitted from my transcripts. On Sept. 11, Petitioner filed a motion for correction in this court. Sept. 18, 2012 the judges journal entry recommend appellant file his motion to correct with the trial court. Petitioner did as this court recommended, petitioner still has not received a decision or a timed stamped copy. Petitioner successfully challenged P.R.C. and merger of sentences. See state v. Fischer 128 Ohio st.3d 92');">128 Ohio st.3d 92, 2010-ohio-6238 State v. millette 2011 Ohio 6357');">2011 Ohio 6357. State v. Johnson 128 Ohio St.3d 153 942. State v. fairman 2011 Ohio 6489');">2011 Ohio 6489 State v. Griffis 2011 Ohio 2955. State v. Hruby 2010 Ohio 3530');">2010 Ohio 3530. This trial court failed to consider these claims together. The only portion of petitioner claim that is void is the allied offenses. As long as I give the state courts a fair opportunity to fix the federal violation, petitioner is in good standings. The conduct of the accused must be considered as established by the evidience, offenses arising from the same occurance sentence that are allied should be merged, to prevent shotgun convictions. Geigerm 45 Ohio St.2d at 242.. 74. No need to perform hypothetical or abstract comparison of offenses at issue to conclude that the offenses are subject to merge. Under R.c. 2941.25(a) the question is whether it is possible to commit one offense and commit the other with the same conduct. If commission of one offense constitutes the commission of the other then the offenses are of similar importance. A single act committed with a single state of mind. The state must only choose one, must also merge weapons under disability, felinous assult, gun spec., felonious and murder together. State v. fairman 2011 Ohio 6489. johnson. This issue was properly preserved for appellate review. This court should reverse and remand, specifically for allied offenses not P.R.C. P.R.C. was properly imposed.
CLAIM III
The Pititioners rebuttal to the presumption of correctness, a violation of petitioners U.S. and Federal constitutional rights Jefferson v. Upton, 130 S.Ct 2217. 28 U.S.C. 2254(e)(i).
In miller-Ei v. Cockrell, 537 u.s.322, 340 (2003) the supreme court held; A Federal court can disagree with the state courts credibility determinitation and when guided by AEDPA, conclude the decision was unreasonable or that the factual, Premise was incorrect by clear and convincing evidence. See 28 U.S.C. 2254(e)(1). A petitioner may also rebut the presumption of correctness of the state fact findings by establishing that any one of the eight enumerated exceptions under form 28 U.S.C. 2254(d)(1)-(8) applies. See Jefferson v. Upton, 130 S.Ct 2217. It is evident that the state trial court lost its way in pursuit of its findings. The state used a set of different facts that where found differently in the trial court records/transcipts, an unreasonable determination of the facts in light of the evidence presented in the state court. The states facts are not fairly supported by the record. At this point Petitioner must make this court aware of Sumner v. Mata 11, 455 U.S. 591, 593 “statement of reason” requirement.
CLAIM IV
Ineffective assistance of appellate counsel, on three different appellate counsels on the same issue, coming from sentencing. Counsels failed to raise petitioners claims and issues arising at the resentencing hearing. A violation of the 6th 5th and 14th of the Federal and U.S. Constitution. ineffective council and due process.
The trial court abused its descreation by allowing John Keeling to withdraw, by agreeing with counsel that there was no issues to raise, when it was obvious that there were issues. State v. Millette 2011 Ohio 6357');">2011 Ohio 6357 State v. Fischer 128 Ohio st.3d 92');">128 Ohio st.3d 92, 942. State v. Hruby 2010 Ohio 3530');">2010 Ohio 3530. State v. Griffis 2011 Ohio 29ss. United States v. France 318 Fed Appx.411. This councel never even reviewed the transcripts of the sentencing hearing. See appellate court July 5, 2012 memorandum decision. See March 23, 2012 sentencing transcipts. Post release control was properly imposed, Kelling failed to raise petitioners issues arising at resentencing hearing. As a result Keeling was allowed to withdraw, made appellant miss his deadline to file a notice, which could have ultimately had petitioner barred for failure to appeal. Pititioner is not an attorney, petitioner was forced to file a late delayed appeal due to ineffective assistance of counsel. The trial court abused its descreation when there was obvious issues to be raised.
Appellant was appointed David L. Strait, by this honorable court, there was a conflict of interest because counsel failed to raise appellant previous identification claim in this court, and failed to raise petitioners confrontation claim, and Jefferson v. Upton 130 S.Ct 2217 about the fact that petitioner was not identified. Presumption of correctness rebuttal and allied offenses. This is why appellant is fighting for his life now, why should counsel get to raise issues he should have raised on direct appeal. Now that appellant has brought them forth why should he get to argue what he should of did in the first place. And he probably wouldn't have raised my issues anyways, he was talking the ...

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