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Whatley v. Warden Ross Correctional Institution

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

October 25, 2017

JAMES L. WHATLEY, Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

          EDMUND A. SARGUS, JR. CHIEF JUDGE.

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.

         On June 2, 2017, the Court issued an Opinion and Order dismissing habeas corpus claims four through nine, and directing the Respondent to file a Return of Writ addressing the remaining habeas corpus claims, one through three. (ECF No. 19.) On June 23, 2017, Respondent filed the Return of Writ. (ECF No. 20.) On August 14, 2017, Petitioner filed a Traverse. (ECF No. 23.) The case is now ripe for review. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

         Facts and Procedural History

         The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:

Maigen Blanchard Reaches Out to Tyler Burrell and Tells Him She Knows Where to Find Cash and Drugs
Maigen Blanchard lived in Cambridge, Ohio with her stepmom, Pam Pifer. Brock Dilley, Blanchard's boyfriend and the father of her children, was incarcerated. Blanchard decided to reach out to her former boyfriend, Tyler Burrell, through Facebook, and sent Burrell a message on June 20, 2012, asking him to come visit her in Cambridge. Burrell responded on Thursday, June 21, 2012, and came to Cambridge from Zanesville with his friend Anjomo “Boomer” Churchill. Churchill drove the pair to Cambridge in a light gold 2011 Chevy Cruze. Churchill was known to serve as Burrell's driver because Burrell did not have a valid license.
Burrell and Churchill spent several hours in Cambridge that Thursday. They drove around with Blanchard and Pifer, “looking at houses.” Burrell asked Blanchard, “Who is the white boy who drives an Avalanche with 30-day tags who's always over in Zanesville?” Blanchard told him it was Christopher Morrison, a friend of Brock Dilley's. She offered to point out where Morrison lived. She also told Burrell “she heard” Morrison had lots of money and was known to keep cash in his sock drawer and drugs in cereal boxes.
On that first visit to Cambridge, Blanchard showed Burrell and Churchill the location of Morrison's apartment complex, Coventry Estates, located on U.S. Route 22, east of State Route 77, in Guernsey County. Burrell and Churchill dropped Blanchard off and didn't return that day. She thought they were going to go to a party together on Friday, but Burrell didn't return calls and didn't pick her up as they had planned. Burrell told her he'd come over on Saturday, June 23.
In the meantime, Burrell started gathering accomplices, telling them he knew of a “lick” (robbery) in Cambridge and asking if they wanted to be involved. Elgin Mitchell and Deondre Crosby signed on and started planning. Patience Sharrer drove Mitchell and Crosby to meet up with Burrell, who told Mitchell he needed to pick up “his dude, ” whom Mitchell understood to be an unnamed accomplice from Columbus.
Blanchard and Burrell Direct the Group to “Hit a Lick ”
Saturday night, June 23, 2012, Blanchard was hanging out in Cambridge with Pifer and her friend Whitney Ford. She received multiple calls from Burrell on the landline phone, which Pifer could overhear, including discussion about robbing someone. Ford also heard discussion that people were “on their way, ” and Blanchard said she could show them where Morrison lived.
Around 2:00 a.m., the same light-colored Chevy Cruze pulled up and parked in front of the house, again driven by Churchill, with Burrell in the front passenger seat [the “Burrell car”]. Pifer and Ford noticed a second, darker car following the Burrell car, which pulled past the house and parked down the street. Alarmed, Pifer told Blanchard that if she got in the car, not to bother coming back. Heedless, Blanchard approached the Burrell car and attempted to open the rear driver's-side door. A man inside, previously unseen, held the door shut. She went around the other side, got in the car, and drove off. The dark car followed closely behind. Pifer and Ford watched both cars stop at the stop sign and turn left, headed in the direction of Coventry Estates.
Christopher Morrison and Justain Nelson Celebrate a Birthday
June 23, 2012 was Christopher Morrison's birthday. He lived in Apartment C in a four-apartment building at Coventry Estates with his pregnant fiancée, Nijier Thomas. The two spent the day together at the apartment and gathered food and liquor for a planned birthday cookout later that evening in Zanesville. Morrison and Thomas headed to the party in Zanesville around 6:00 p.m. in Morrison's green Avalanche.
Present at the birthday party were Justain Nelson, Morrison's best friend, and Nelson's mother, Theresa Glover. The party lasted until around 11:00 p.m., then some of the guests went to the “U Bar, ” a location in Zanesville. Morrison, Thomas, and Nelson were in the Avalanche and stayed in the parking lot. Morrison and Thomas argued because he had been drinking and she didn't want him to drive. Thomas ended up staying behind at the “U Bar” with friends while Morrison and Nelson drove off in the Avalanche. Glover saw her son in the truck with Morrison.
Around 1:15 a.m., Morrison called Thomas to say he was home.
The Burrell Car and the Sharrer Car Drive by Coventry Estates
The Chevy Cruze was driven by Churchill; Burrell was in the front passenger seat; Blanchard was behind him in the back seat, and a fourth black male was in the rear driver's-side seat. Churchill and Blanchard did not identify this man; Blanchard said he had “old braids” which were partially grown out and spoke to someone on an “Obama phone.” Churchill said the man did not speak but at one point Burrell had mentioned his name was “Zone.”
The black car following the Burrell car was a rented Mazda driven by Patience Sharrer [the “Sharrer car”]. Also in the car were Deondre Crosby and Elgin Mitchell.
The two cars drove past Coventry Estates. Blanchard pointed out the apartment of Christopher Morrison. Morrison's Avalanche was parked in the rear of the building. Both cars turned around, pulled down a side street, and stopped. Blanchard and Burrell directed Mitchell and Crosby to the apartment. The man with “old braids” got out of the Burrell car and into the Sharrer car.
Burrell, Churchill, and Blanchard drove off and proceeded to spend the next hour driving around Cambridge.
At trial, Elgin Mitchell identified appellant as the man from Columbus, the individual with “old braids” who got into Sharrer's car. Sharrer drove; Crosby was in the front passenger seat; Mitchell and appellant were in the back seat. The Sharrer car headed back toward Coventry Estates; Burrell called again to say which apartment it was.
Sharrer pulled over and stopped. Mitchell, Crosby, and appellant exited the car, climbed over a guardrail, and hid near a tree near the apartment building. They could see into the apartment through the blinds; two men appeared to be asleep inside, on two separate couches.
The Home Invasion and Murders: Elgin Mitchell's Account
Mitchell said he had no weapon on him and didn't see a weapon on Crosby or appellant prior to the robbery. Appellant put on a ski mask he brought along.
Appellant rammed open the front door with his arms and was the first to enter the apartment, followed by Crosby and Mitchell. Mitchell saw appellant now had a black pistol he thought was a .9 millimeter semi-automatic. Crosby proceeded directly up the stairs inside the door to the bedrooms. Appellant went towards Justain Nelson, the man sleeping on the couch against the wall. Christopher Morrison was on a couch in front of the window. Mitchell stood back, guarding the door.
Crosby came back downstairs after a very short time, now holding a .22 revolver, asking Morrison “where the money at (sic).” Morrison responded he didn't know what Crosby was talking about. Appellant ran into the kitchen and started rifling through cereal boxes, then came back into the living room and again stood in front of Nelson. Nelson told Morrison “Just give it up” and Morrison said again “I don't know what you're talking about.” Crosby then shot Morrison in the face.
Nelson stood up and tried to run, crashing through the sliding glass doors in the rear of the apartment, off the kitchen. Appellant shot Nelson in the back as he fled.
The Burrell Car Returns to the Area of Coventry Estates
During the home invasion and murders, the Burrell car drove around Cambridge. Burrell was getting calls on his cell phone and eventually told Churchill to head back in the general direction of Coventry Estates. Someone on the phone told Burrell he saw the car's headlights. The “same guy from before, ” the unidentified black male, got into the backseat of the Burrell car and they drove to Zanesville. Churchill said the man had changed clothes.
Churchill later testified there was no conversation in the car about what happened during the robbery. He claimed to know nothing until the next day when Burrell told him “when they did that they killed those people.”
Churchill would later return to the spot where he picked up the man, with detectives, telling them the man said he thought he lost his gun there.
The Neighbors React after the Murders
Neighbors heard commotion shortly after 2:00 a.m. on Sunday, June 24, 2012 that sounded first like someone kicking a door in and then like someone running up and down the stairs of Apartment C. Then witnesses heard several gunshots, then silence. Neighbors looked out their windows and saw no one in the immediate aftermath of the shots, so several called 911 and left their apartments to investigate.
They found Christopher Morrison in the front of the apartment complex, on the ground, still breathing but covered in blood. Morrison died at the scene shortly thereafter as city police, sheriff's deputies, and emergency medical personnel arrived.
Troopers discovered Justain Nelson in the backyard of the apartment complex, lying motionless on the ground, moaning, with blood on his chest, shirt, and face. He was transported for medical treatment but died at the hospital.
Both Victims Die of Multiple Gunshot Wounds
The autopsy performed on Christopher Morrison revealed five gunshot wounds, including one near his left eye, neck, shoulder, chest, and thigh. Justain Nelson sustained four gunshot wounds: to the middle of his back, between his belt line and his shoulders; his left lower abdomen, his left thigh, and his left buttock. The bullets recovered from the body of Morrison were a different size, shape, and caliber than the bullets recovered from the body of Nelson. Nelson also sustained sharp, incised wounds to his right palm, and scrapes and abrasions to his elbows, forearms, knee, and heel, consistent with running and falling through glass. Toxicology tests on both victims revealed no evidence of any illicit drug use; both men's blood tested positive for beverage alcohol.
Both victims died of multiple gunshot wounds. The coroner opined that in both cases, death was not necessarily instantaneous: both victims were capable of running a short distance, then passing out and bleeding to death from their wounds, consistent with the scene discovered by neighbors, law enforcement, and emergency medical personnel in which both men were found short distances from the apartment, linked by trails of blood.
The Investigation
In the immediate aftermath of the murders, witnesses came forward. Family members of the victims gathered at the crime scene and provided Detective Williams of the Guernsey County Sheriff's Department with the names of Maigen Blanchard and Tyler Burrell. During the day more people called in reporting Blanchard's involvement, and ...

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