United States District Court, S.D. Ohio, Eastern Division
ORDER AND REPORT AND RECOMMENDATION
McCann King United States Magistrate Judge.
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.
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
Motion to Defer Ruling pending Receipt from Petitioner of
a Traverse (ECF No. 67) is DENIED, as
and Procedural History
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
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
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).
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).
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.
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:
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.
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.
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.
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.
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 ...