United States District Court, N.D. Ohio, Eastern Division
REPORT & RECOMMENDATION
JONATHAN D. GREENBERG UNITED STATES MAGISTRATE JUDGE
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.
Summary of Facts
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
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
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
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
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
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
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).
Trial Court Proceedings
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.)
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.)
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.” (Doc. No. 16-1, Exh. 10.)
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.)
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:
evidence is insufficient to sustain a conviction for
Aggravated Murder pursuant to R.C. 2903.01(B).
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.
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
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.)
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:
(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#
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:
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.)
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 ...