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Horton v. Warden, Madison Correctional Institution

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

November 16, 2017

RUFUS HORTON, Petitioner,
v.
WARDEN, MADISON CORRECTIONAL INSTITUTION, Respondent.

          JAMES L. GRAHAM, JUDGE

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that the Petition be DENIED and that this action be DISMISSED.

         I. BACKGROUND

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

On August 30, 2012, appellant was indicted on one count of aggravated murder, in violation of R.C. 2903.01, with a firearm specification pursuant to R.C. 2941.145, and one count of having a weapon while under disability, in violation of R.C. 2923.13. The charges arose from the shooting death of Charles Rogers on August 18, 2012.
Appellant waived his right to a jury trial on the charge of having a weapon while under disability. The case proceeded to trial before a jury on the aggravated murder and associated firearm specification charge, at which the following evidence was presented.
Lindsay Jennings testified that she began dating appellant's brother, Markee Horton, in August 2012. On August 18, 2012, Markee drove to Jennings' home in a red Mustang. He told Jennings he was angry because he had just been robbed and asked her to drive him to his mother's house.
At Markee's mother's house, Jennings observed appellant give Markee a handgun. Appellant and Markee had a conversation, but Jennings could not understand what they were saying. Markee returned to the red Mustang and placed the gun appellant had given him on the floor of the car. Appellant got into a black car and drove away.
Markee instructed Jennings to drive to a house located on North 22nd Street. Rogers and a woman were seated on the front porch; a black car was parked in front of the house. Appellant exited the black car and ran to the porch carrying a black handgun. Markee exited the red Mustang carrying the gun appellant had given him and walked up to the porch. Jennings heard appellant say “[a]in't nobody going to steal nothing from my brother. You don't take from my family.” (Tr. Vol.I, 138.) Jennings testified that appellant pointed the gun at Rogers' head and pulled the trigger; however, the “gun didn't go off.” (Tr. Vol.I, 139.) When the gun failed to fire, Rogers ran away; Markee chased him down the street. Jennings heard a gunshot and saw Rogers fall to the ground. Although Jennings did not see Markee pull the trigger, she saw Markee pointing a gun at Rogers. She admitted she did not know where appellant was at the time the shot was fired.
After the shooting, Markee got back in the red Mustang. According to Jennings, Markee was “upset and scared” and told her “Bitch, drive. I just shot this man.” (Tr. Vol.I, 148.) Jennings drove Markee to her home; Markee put the gun “somewhere in [Jennings'] backyard.” (Tr. Vol.I, 152.)
Several days after the shooting, Markee had Jennings drive him to Krumm Park “so he could get rid of the gun.” (Tr. Vol.I, 155.) Markee removed the clip from the gun and threw it and the gun into a pond on the park grounds. According to Jennings, the gun Markee threw into the pond was the same one appellant provided Markee on August 18, 2012.
Markee stayed at Jennings' home for a few weeks after the shooting. Following his departure, Jennings told the police about the shooting and provided a diagram depicting where Markee had disposed of the gun and the clip.
Christina Ross testified that, on August 18, 2012, she dropped off her niece at a house located next door to Rogers' house. Ross observed Rogers and his girlfriend on the front porch of Rogers' house. As Ross was about to drive away, a red Mustang “cut in front of me and went into the alley, and then a black car pulled directly in front of me, so I couldn't move.” (Tr. Vol.II, 360.) One man exited the red Mustang while another man exited the black car; both men carried guns. The men walked up to Rogers' porch and began arguing with him. The man who drove the red Mustang punched Rogers. Rogers then jumped off the porch and began running down the street. The man who punched Rogers jumped off the porch, “aimed a gun at Charlie, like at his leg part, and tried to fire it, but it didn't go off.” (Tr. Vol.II, 373.)
At the same time, the man from the black car “aimed it, and he shot the gun at Charlie.” (Tr. Vol.II, 374.) Ross observed Rogers fall to the ground. She then drove around the block, parked her vehicle, and ran back to the area to check on her niece and Rogers. When she returned, the men involved in the shooting were gone. Ross later spoke with police officers about the incident. At ...

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