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Drummond v. Jenkins

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

March 9, 2018

JOHN DRUMMOND, Petitioner,
v.
CHARLOTTE JENKINS, Warden Respondent.

          JUDGE CHRISTOPHER BOYKO

          REPORT & RECOMMENDATION

          JONATHAN D. GREENBERG UNITED STATES MAGISTRATE JUDGE

         This matter is before the undersigned pursuant to Local Rule 72.2. Before the Court is the Petition of John Drummond (“Drummond” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Drummond is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Drummond, Ashtabula County Court of Common Pleas, Case No. 2013-CR-068. For the following reasons, the undersigned recommends that the Petition be DISMISSED.

         I. Summary of Facts

          In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the facts underlying Drummond's conviction as follows:

         {¶ 2} This incident occurred in February 1997. It remained a cold case for almost 16 years. Appellant was ultimately indicted by the Ashtabula County Grand Jury on January 31, 2013 on four counts: count one, aggravated murder, an unclassified felony, in violation of R.C. 2903.01(A); count two, aggravated murder, an unclassified felony, in violation of R.C. 2903.01(B); count three, kidnapping, a felony of the first degree, in violation of R.C. 2905.01(A)(3); and count four, felonious assault, a felony of the second degree, in violation of R.C. 2903.11(A)(2). All four counts contained firearm specifications. Appellant pleaded not guilty to all charges.

         {¶ 4} A jury trial commenced on August 21, 2013. The main crux of the case centered around the following question: Who was responsible for firing the fatal shots on the night at issue? The answer to this question was based upon testimony which was not available to the state at the time the crime was committed. The main witnesses against appellant were his co-defendants. Their testimony did not become available until years later.

         {¶ 6} After locating the victim at the West 38th Street apartments, the victim was beaten, pistol-whipped, shot in the buttocks, and fatally shot with a 9mm handgun. The evidence presented included a total of four weapons: (1) a .40 caliber handgun (possessed by Young); (2) a .357 caliber handgun, which was broken (possessed by George “Lenny” Church); (3) a 9mm handgun, which was different than the one that killed the victim (possessed by Evans and shot into the victim's buttocks by Evans); and (4) a 9mm handgun, which killed the victim (possessed by appellant). Appellant was standing over the victim when the victim was fatally shot. The following additional details were adduced at trial:

         {¶ 8} Monique Robinson lived next door to Payne and was first cousins with the victim. Robinson testified that on the night in question, Payne told her that someone had stolen Jones' money from Payne's apartment. And Payne believed the victim committed the theft. Robinson attempted to call the victim after Church and Boles asked her if she knew his whereabouts. She was unable to reach him. Payne later informed Boles and Church that $10, 000 of Jones' money was stolen; she also informed the men of her suspicion that the victim took the money. Boles and Church began searching for the victim. After no success, the two men returned to Payne's apartment.

         {¶ 10} Inside the apartment, Jones confronted the victim, demanded his money, hit the victim, and shot a gun into the floor. Church testified that Jones was screaming at the victim about the stolen money and a shot was fired inside the apartment. Church saw Jones with a gun after he heard the shot ring out. Church also saw Jones fire a shot into the ground inside the apartment. The victim claimed he did not steal Jones' money and that, instead, the men should look for Young.

         {¶ 12} After the beating, everyone, with the exception of appellant, walked away from the victim. Church heard a shot. He turned around and observed the victim on the ground with his arm raised and appellant standing over him. Church then heard two more shots. Church stated appellant was in possession of a 9mm handgun. Church stated the last person he saw near the victim was appellant.

         {¶ 14} Renee Powell was the victim's girlfriend. Powell testified she had plans to meet the victim at Sardi's Bar, a local establishment. Powell was waiting for the victim at the bar when she heard the news that he had been killed. She later found him lying dead in front of the apartment building. Powell stated she saw Boles, who appeared visibly upset.

         {¶ 16} According to Young, as the men exited the apartment, the victim accused Young of committing a different robbery and the two men began fighting. During the altercation, Young heard Evans say something about the stolen money and then a gunshot went off. Young saw that the victim had been shot. Young indicated that Weaver and Church began to pistol whip him as well as the victim. Church's gun broke during the pistol whipping.

         {¶ 18} Following the incident, Patrolman William Parkomaki and Sergeant Rick Featsent with the Ashtabula City Police Department (“ACPD”) received a dispatch that shots had been fired in the West 38th Street area. Patrolman Parkomaki found the victim outside the apartment building near some bushes. He then radioed for back-up assistance.

         {¶ 20} Detective George Taylor Cleveland joined the ACPD two years after this incident occurred. He took over the cold case investigation after the lead detective, Robert Pouska retired. Detective Cleveland re-interviewed witnesses and tried to locate new ones. He later joined the Ashtabula County Sheriff's Department (“ACSD”), but kept working on this case. Detective Cleveland testified that all blood evidence collected had been tested by the Cuyahoga County Coroner's Office (“CCCO”). In the early 2000s, he was unsuccessful in uncovering any new evidence.

         {¶ 22} The testing revealed that four weapons of three different calibers were involved in this crime. They included the two 9mm handguns involved in shooting the victim, the .357 live round from the ground, and the .40 caliber from the apartment floor. Detective Cleveland testified, however, that the following evidence was no longer in law enforcement's custody: the piece of carpet; the .40 caliber slug; blood swabs from the grass, sidewalk, and screen door; the spent 9mm shell casings; control swabs; various photographs of the crime scene; the slugs from the victim's body; and the cigarette.

         {¶ 24} Appellant presented one witness. Dr. Nasir Butt was the DNA technical manager with the CCCO at the time the items were tested. Dr. Butt performed a DNA analysis of the cigarette butt which, as stated, had a major and minor contributor mixture. The major contributor was consistent with the victim. The minor contributor came back to Trent. Dr. Butt testified that the blood on the cigarette came from the victim and that Trent's DNA was found on the filter because Trent was the one that had smoked the cigarette.

State v. Drummond, 31 N.E.3d (Ohio App. 11th Dist. March 16, 2015) (emphasis added).

         II. Procedural History

         A. Trial Court Proceedings

         As noted above, the January 2013 session of the Ashtabula County Grand Jury issued an indictment charging Drummond with two counts of aggravated murder in violation of Ohio Rev. Code § 2903.01; one count of kidnapping in violation of Ohio Rev. Code § 2905.01(A)(3); and one count of felonious assault in violation of Ohio Rev. Code § 2903.11(A)(2). (Doc. No. 16-1, Exh. 1.) Each charge carried two firearm specifications. (Id.) Drummond entered a plea of not guilty. (Doc. No. 16-1, Exh. 2.)

         On April 4, 2013, Drummond filed a motion to dismiss the felonious assault charge as barred by the statute of limitations. (Doc. No. 16-1, Exh. 3.) The State did not oppose the motion. (Doc. No. 16-1, Exh. 5.) On May 1, 2013, the trial court granted the motion. (Doc. No. 16-1, Exh. 7.)

         On April 12, 2013, Drummond filed a motion to dismiss due to pre-indictment delay, which the State opposed. (Doc. No. 16-1, Exhs. 4, 6.) The trial court ordered additional briefing. (Doc. No. 16-1, Exh. 7-9.) Following a hearing, the trial court denied the motion, finding Drummond had failed to demonstrate actual prejudice because “[t]he most compelling evidence in this case is not the forensic evidence but the testimony of witnesses to the murder of Ronald Hull, all of whom are still alive.”[1] (Doc. No. 16-1, Exh. 10.)

         On August 28, 2013, after a four day jury trial, Drummond was found not guilty of aggravated murder in Count 1; guilty of aggravated murder in Count 2 and the attached firearm specifications; and guilty of kidnapping in Count 3 and the attached firearm specifications. (Doc. No. 16-1, Exh. 15.) The trial court merged Counts 2 and 3 and the attached specifications for sentencing. (Doc. No. 16-1, Exh. 16.) The court then proceeded on Count 2, and imposed a sentence of life with parole eligibility after 20 years. (Id.) The court also imposed three years of incarceration for the firearm specification, to be served consecutively with the sentence in Count 2. (Id.)

         B. Direct Appeal

         On September 23, 2013, Drummond, through new counsel, filed a notice of appeal to the Eleventh District Court of Appeals of Ohio (“state appellate court”). (Doc. No. 16-1, Exh. 17.) In his merit brief, Drummond raised the following four assignments of error:

         II. The evidence is insufficient to sustain a conviction for Aggravated Murder pursuant to R.C. 2903.01(B).

         IV. The conviction is against the weight of the evidence.

(Doc. No. 16-1, Exh. 18.) The state appellate court affirmed Drummond's conviction and sentence on March 16, 2015. State v. Drummond, 31 N.E.3d 1216 (Ohio App. 11th Dist. March 16, 2015). See also Doc. No. 16-1, Exh. 20.

         On May 4, 2015, Drummond, through counsel, filed an untimely notice of appeal and motion for leave to file delayed appeal to the Supreme Court of Ohio. (Doc. No. 16-1, Exhs. 21, 22.) In his motion for leave, Drummond explained that he failed to timely appeal the state appellate court's decision for the following reason:

         Counsel received funding for the filing fee from Mr. Drummond on this date, April 29, 2015. Counsel has agreed to represent Drummond on a pro bono basis.

(Doc. No. 16-1, Exh. 22.)

         On June 5, 2015, the state appellate court issued a judgment entry sua sponte striking the 21st page of its March 16, 2015 opinion and substituting an attached 21st page. (Doc. No. 16-1, Exh. 24.) This judgment entry explained as follows:

st sua sponte st sua sponte st st st st

(Id.) The record reflects no substantive change was made to the opinion. Rather, the substituted 21st page merely removed a case citation. (Compare Doc. No. 16-1, Exh. 20 at PageID#269 with Doc. No. 16-1, Exh. 24 at PageID# 321.)

         Thereafter, on June 23, 2015, Drummond, through counsel, filed a notice of appeal from the June 5, 2015 judgment entry to the Ohio Supreme Court. (Doc. No. 16-1, Exh. 25.) In his Memorandum in Support of Jurisdiction, Drummond raised the following three Propositions of Law:

         II. If a defendant is charged with the commission of a homicide during his participation in a kidnapping, and the evidence fails to establish beyond a reasonable doubt that the defendant was guilty of the underlying kidnapping, the principle charge of murder must be dismissed.

(Doc. No. 16-1, Exh. 26.)

         On June 24, 2015, the Supreme Court of Ohio denied Drummond's motion for leave to file a delayed appeal from the state appellate court's original March 16, 2015 ...


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