United States District Court, S.D. Ohio, Eastern Division
JAMES L. WHATLEY, Petitioner,
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.
A. SARGUS, JR. CHIEF JUDGE.
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.
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
and Procedural History
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
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
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
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
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
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
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.
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 ...