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Crank v. Bracy

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

March 12, 2018

CHESTER RAY CRANK, Petitioner,
v.
CHARMAINE BRACY, Respondent.

          DAN AARON POLSTER, JUDGE

          REPORT & RECOMMENDATION

          KATHLEEN B. BURKE, UNITED STATES MAGISTRATE JUDGE

         Petitioner Chester Ray Crank (“Petitioner” or “Crank”) brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Doc. 1, 24. Crank is detained at the Trumbull Correctional Institution, having been found guilty by a Stark County, Ohio, Court of Common Pleas jury of one count of aggravated murder, one count of aggravated burglary, one count of aggravated robbery, all with three-year firearm specifications, and one count of aggravated arson. State v. Crank, Case No. 2013CR1468 (Stark Cty. Common Pleas Ct., filed August 22, 2014). The trial court sentenced Crank to three years on each firearm specification, to be served consecutively, for a total of nine years; merged the aggravated murder, burglary and robbery counts and sentenced Crank to life in prison without the possibility of parole for aggravated murder; and sentenced him to eight years on the aggravated arson count, all terms to be served consecutively, for a total of life in prison without the eligibility of parole. Doc. 10-1, pp. 15-17.[1]

         On July 28, 2016, Crank filed his Petition for Writ of Habeas Corpus setting forth six grounds for relief. Doc. 1, pp. 5-10. He filed an Amended Petition, with leave of Court, on August 17, 2017, adding two more grounds for relief. Doc. 24, pp. 12-13. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2. As set forth more fully below, Grounds Five and Eight are not cognizable and Crank's remaining grounds fail on the merits. Thus, the undersigned recommends that Crank's Amended Petition for Writ of Habeas Corpus (Doc. 24) be DENIED.

         I. Background

         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, the state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008).

         A. State Court Action

         1. Underlying Facts

         The following summary of underlying facts is taken from the opinion of the Stark County Court of Appeals, Fifth Appellate District of Ohio:

         A. The crime.

{¶ 4} On Sunday, January 7, 2007, about 1:00 a.m., Canton City Firefighter, William Mobilian was dispatched to a home on Endrow Avenue N.E. in Canton in response to a structure fire call. He donned an oxygen mask for a “search and rescue” and entered the smoke filled home looking for any occupants.
{¶ 5} He went to one of the back bedrooms and found Bennie Angelo. Mr. Angelo was laying on the bed perpendicular and fully clothed with his feet on the floor.
{¶ 6} Mr. Angelo died of multiple gunshot wounds; one in the left forehead, a cluster of three in the left upper chest and one on the back of the left hand. Murthy found no exit wound for the one in the forehead; the one in the hand was an in and out and superficial and the three in the chest all exited in the left upper back.
{¶ 7} Mr. Angelo's hyoid bone in the throat was also fractured meaning that pressure was applied to the base of the neck until he could not breathe. There were contusions of the abdomen, meaning that force was applied to the abdomen. Mr. Angelo also had multiple blunt impact injuries caused by an impact from a fist, a foot or an object. There were abrasions to the left side of his neck and left leg. His body was covered with soot from the fire and first and second degree burns.
B. The investigation.
{¶ 8} Mr. Angelo's family cooperated and gave Detective George the lead investigator from the Canton Police Department information about the family, neighborhood and friends. Indeed, they circulated a poster offering a $15, 000 reward for information leading to the arrest and conviction of the person or persons who killed their father. The poster generated many tips and George investigated all leads.
{¶ 9} Detective George learned from Michael Angelo, Mr. Angelo's son that his dad owned a Harrington and Richardson .32 caliber revolver, which he kept in his bedroom.
{¶ 10} In July, 2007, Ernest Schwab, who lived about a block away from Mr. Angelo's home on Endrow reported finding a wallet in the bushes by his yard while he was mowing the lawn.
¶ 11} The wallet contained Mr. Angelo's ID card from the VFW. Police officers arrived to search the area and found a brown leather holster in the vicinity by a large open field separating the Schwab's home from Mr. Angelo's home. The wallet and holster were also located in a straight line from the home Crank shared with his mother.
C. Alicia Culberson.
{¶ 12} In May 2012, Alicia Culberson was in the Stark County Jail for a theft charge. She sent a “kite” that she wanted to talk with George about the Bennie Angelo killing. George went to the jail and took her statement. Culberson reported that in the Fall of 2011, she was at the home of her boyfriend, Robert Cassidy. Crank was there talking with Tony Tucker about the killing and robbery[.] Culberson heard the conversation: They broke into the home on Endrow, stole money, went back a third time, there was a struggle and that Crank shot Mr. Angelo and set the house on fire.
{¶ 13} In March 2013, Culberson was released from jail. George contacted her and asked her to contact Crank wearing a recording device. She agreed but was not successful in making a tape because the noise was too loud and the tape did not pick up the conversation.
D. Brenda Haywood.
{¶ 14} In July 2012, Brenda Haywood contacted George about a homicide case involving Mr. Angelo. Haywood was cleaning cells at the jail and saw the Angelo reward poster. She memorized the phone number on the poster and called George when she got out of jail to tell him about the conversations she overheard. Haywood came to the Canton Police Department and agreed to a taped interview. Haywood knew Crank for several years as well as his mother, Billie. Indeed, Haywood would go “boosting” with Crank and his mother.
{¶ 15} Haywood went to a home on Fulton to make a drug transaction and was sitting at the end of a couch where Crank and Tony Tucker were sitting. Haywood observed Crank with tears in his eyes saying, “I don't know how long more [sic] I can take this.” Crank said he had “offed” some man. The name “Angelo” was mentioned and something about not giving up the government check money.
{¶ 16} Later, while “boosting” with Crank, he would start drinking and talk about killing a man who was a child molester and later during a road trip to New York after drinking, Crank told Haywood's minor son in her presence that he killed a child molester.
{¶ 17} Later, on a trip back from Mansfield, Crank again told Haywood he killed a child molester. Haywood confronted Crank and said he was a fucking liar; he killed him for money.
E. Robert Cassidy.
{¶ 18} George never had any dealings with Crank and tried to follow up to find out where he was living. Then, he got a call from Rob Cassidy with information that “paralleled” what George was told by Culberson and Haywood. George still believed there were four persons involved in the killing and now believed that Crank was one of them. In January 2013, George heard from Robert Race. After speaking with him and others, Crank was still a suspect.
F. Regina Lyons taped Crank saying, “I killed an old man.”
¶ 19} Regina Lyons is Crank's first cousin and lived with him on and off during her life. In 2013, she lived with him and saw him almost every day until she went to stay at Stark County Regional Correction Center (SRCCC) for a forgery charge.
{¶ 20} In 2013, Crank asked her to “hang out” with him at a party. She agreed and his mother drove her to the party. Crank was there already drunk and started talking saying “I'm going to prison for the rest of my life, you know.” When Lyons asked why, Crank replied that he killed somebody-shot somebody. Lyons knew whom he meant because of a prior conversation with Crank's brother, Casper-the Bennie Angelo murder.
{¶ 21} When Lyons went to SRCCC, she told someone who told one of the staff members. The staff member called Detective George and he came to see Lyons during her stay. Lyons confirmed her conversation with Crank and agreed to wear a digital recording device and tape future conversations with Crank. When Crank started drinking, he would freely talk about it. After some reluctance, Lyons agreed to wear the recording device.
{¶ 22} George would meet with Lyons prior to the times she was going out drinking with Crank. Lyons would put the recorder in her bra and turn it on when the opportunity arose and at the end of the evening call George and he would pick up the tape and transfer its contents to a CD. There were close to twenty hours of recordings. Lyons made three or four recordings in August 2013. Excerpts of the recordings were played during the testimony of Lyons. On the tapes, Crank can be heard saying, “I killed somebody, they can never prove it.” “I took a life; I took his life a [sic] bitch. I let my homeys watch it. They want to tell on me.” “This old man, right, I took his fucking life.” “I fucked up, they are going to send me to jail, I will go for the rest of my life, so you got to tell those motherfuckers I didn't do it. Where are my fingerprints? They can't prove it, where are my fingerprints, get them out of the house.” {¶ 23} Crank talked about the killing with Lyons at other times that were not recorded. He mentioned that the man he killed was named “Bennie, ” that he shot him and watched him bleed out, and how he enjoyed that. Another time, he said he had beaten him and that they burned the house down.
G. Mark Villegas.
{¶ 24} Mark Villegas, a friend of Crank, heard that he was charged with the murder of Mr. Angelo. Villegas knew Crank when he lived across the street from him. Crank drank a lot and got emotional when he drank. He would start to cry and tell Villegas that he killed someone, went into a house on Endrow and killed the old man, Bennie. He said he was beaten and shot. He took some money and a gun. The conversations took place several times-at least six.
{¶ 25} Villegas thought Crank was lying but when he heard he was charged with the crime, he contacted Detective George. George visited him in prison, where Villegas was serving time for burglary, and gave him a written statement.
{¶ 26} Crank was interviewed by George on September 18, 2013. Crank denied any part in the killing and robbery.

State v. Crank, 2015 WL 2376007, at * 1-4 (Ohio Ct. App. May 18, 2015).

         2. Procedural History

         On November 13, 2013, the Stark County grand jury indicted Crank on one count of aggravated murder, R.C. § 2903.01(B), one count of aggravated burglary, R.C. § 2911.11(A)(1) and/or (A)(2), one count of aggravated robbery, R.C. § 2911.01(A)(1) and/or (A)(3), all with firearm specifications, and one count of aggravated arson, R.C. § 2909.02(A)(2). Doc. 8-1, pp. 3-14. Crank pleaded not guilty and entered a notice of alibi. Doc. 10-1, pp. 11, 13.

         The jury found Crank guilty on all counts in the indictment. Doc. 10-1, p. 14. At sentencing, the trial court sentenced Crank to three years on each firearm specification, to be served consecutively, for a total of nine years; merged the aggravated murder, burglary and robbery counts and sentenced Crank to life in prison without the possibility of parole for aggravated murder; and sentenced him to eight years on the aggravated arson count, all terms to be served consecutively, for a total of life in prison without the eligibility of parole. Doc. 10-1, pp. 15-17.

         A. Direct Appeal

         On September 18, 2014, Crank, through new counsel, filed a notice of appeal with the Ohio Court of Appeals. Doc. 10-1, p. 19. In his brief, he raised the following assignments of error:

1. Appellant's convictions were against the manifest weight and sufficiency of the evidence.
2. Appellant's Sixth Amendment right to confront wi[t]nesses against him was violated when the trial court permitted the admission of hearsay statements.
3. The trial court abused its discretion when it overruled defense counsel's motion for a mistrial.
4. Appellant was denied his right to a fair trial due to the cumulative error that occurred during his trial.
5. Appellant was denied his rights to due process and of assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution, because his trial counsel provided ineffective assistance.
6. Appellant was improperly sentenced when the trial court sentenced him to multiple consecutive gun specifications arising from one continuous course of conduct.

Doc. 10-1, p. 21. On May 18, 2015, the Ohio Court of Appeals affirmed the trial court's judgment. Doc. 10-1, pp. 87-117.

         On September 10, 2015, Crank, pro se, filed a notice of appeal and leave to file a delayed appeal to the Ohio Supreme Court. Doc. 10-1, pp. 118-122. Crank asserted that he was unable to file a timely appeal because he did not receive the Ohio Court of Appeals' time-stamped copy of judgment until August 27, 2015. Doc. 10-1, p. 121. On October 28, 2015, the Ohio Supreme Court denied Crank's motion for delayed appeal and dismissed the case. Doc. 10-1, p. 157.

         B. Application to Reopen pursuant to App. R. 26(B)

         On August 17, 2015, Crank, pro se, filed an Application to Reopen pursuant to Ohio App. R. 26(B). Doc. 10-1, p. 158. As a basis for reopening the appeal, Crank argued that his appellate counsel was ineffective for the following reasons:

1. Appellant counsel was ineffective for failing to argue Assignment of Error No. 6, as stated in the Table of Contents of his Appellant's Brief in violation of the Defendant's Sixth Amendment and Fourteenth Amendment rights to the United States Constitution; Section 10 Article I of the Ohio Constitution. The Assignment of Error was stated as follows:
Appellant was improperly sentenced when the trial court sentenced him to multiple consecutive gun specifications arising from one continuous course of conduct.
2. Appellant Counsel was ineffective for not raising the State's Misconduct for soliciting and eliciting false testimony from the state's witnesses and coercing Appellant to make false statements-via intoxication-violating Appellant's Due process of Law in violation of the Fifth and Fourteenth Amendments to the United States Constitution; Section 16, Article I of the Ohio Constitution.
Appellate counsel was ineffective for failing to argue Misconduct of Law Enforcement officer to include the prosecutor in this case for coercing the Appellant into making false statements while intoxicated denying the Appellant the right to a fair trial and Due Process of Law in violation of the Fifth and Fourteenth Amendments to the United States Constitution; Section 16, Article I of the Ohio Constitution.
3. Appellate Counsel was ineffective for failing to raise any defense for the issue of aiding and abetting when the State failed to prove a principal offender violating Appellant's right to a fair trial and due process of Law in violation of the Fifth Amendment and Fourteenth Amendment to the United States Constitution; Section 16, Article I of the Ohio Constitution.

Doc. 10-1, pp. 161-169. On September 29, 2015, the Ohio Court of Appeals rejected Crank's claims and denied his application for reopening. Doc. 10-1, pp. 180-188.

         On November 9, 2015, Crank filed an appeal with the Ohio Supreme Court, asserting the same assignments of error. Doc. 10-1, p. 192. On January 20, 2016, the Ohio Supreme Court declined to accept jurisdiction. Doc. 10-1, p. 232.

         C. State Post-conviction Petition

         On April 23, 2015, Crank filed a petition to set aside the judgment of conviction or sentence with the trial court. Doc. 10-1, p. 233. He also filed a motion for appointment of counsel and expert assistance. Doc. 10-1, p. 262. As a basis for his petition, Crank raised the following claims:

1. Petitioner was denied the effective assistance of counsel as counsel failed to investigate and bring proper objections based on the facts that the investigation would have uncovered during the trial proceedings related to the truthfulness of the witness testimonies. This was a violation of his Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 & 16 of the Ohio Constitution.
Petitioner has evidence outside the record that shows that the testimony of state's witness Robert Race was false. The witness testified that Petitioner “confessed” to certain actions related to the crime that was committed in Petitioner's case. The dates he gave for the alleged confession were very specific and related to definite events and time periods.
Petitioner can show by clear and convincing evidence that he was incarcerated on unrelated charges in case no. 2012 CRB 04538 during the time that he supposedly “confessed” to Mr. Race, which was January of 2013. This shows the testimony given by Mr. Race is false and consistent with perjury as related to the facts claimed at trial and Mr. Race's testimony is unreliable as related to the conviction of the Petitioner.
2. In the present case, Petitioner was deprived of his right to the effective assistance of counsel...
The Sixth Amendment guarantees a defendant the right to call witnesses in his favor. Indiana v. Edwards, 554 U.S. 164, 188, 128 S.Ct. 2379 (2008). Petitioner['s] trial counsel failed to call any witnesses to testify on behalf of his client or present a defense that his client had nothing to do with the aggravated burglary, aggravated robbery, aggravated arson, and the shooting death of the victim in this case that resulted in the aggravated murder.
3. Petitioner was denied the effective assistance of counsel and Due Process as counsel failed to investigate for alibi evidence which would absolve Petitioner of the crime and provide him with an affirmative defense. Strickland, supra, Melendez-Diaz v Massachusetts, 557 U.S. ___, 129 S.Ct. 2527.
Petitioner was housed in a halfway house, the Phoenix House, during the time the murder in this case was committed. As the murder was committed after the curfew for the half-way house, Petitioner could not have committed the crime and made roll call/count on the day of the murder. This goes to alibi evidence that was an affirmative defense that was omitted at trial.

Doc. 10-1, pp. 234-240. On February 23, 2016, the trial court denied Crank's petition and requests for counsel and expert assistance and granted the state's motions to dismiss and motion for summary judgment. Doc. 10-1, pp. 288-291.

         On March 1, 2016, Crank appealed to the Ohio Court of Appeals, raising the following assignments of error:

1. The Defendant-Appellant received ineffective assistance of counsel in violation of his Due Process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution.
2. The Defendant-Appellant was denied Due Process under the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution, when the trial court inappropriately denied his post-conviction petition.

Doc. 10-1, pp. 292, 298. On September 23, 2016, the Ohio Court of Appeals rejected Crank's claims of ineffective assistance of trial counsel and affirmed the judgment of the trial court. Doc. 10-1, pp. 360-371.

         On October 28, 2016, Crank filed an appeal with the Ohio Supreme Court. Doc. 10-1, p. 372. He raised the following propositions of law in support of jurisdiction:

1. Is an appellant denied due process and effective assistance of counsel when counsel fails to investigate and call witnesses that are critical to the defense?
2. Is an appellant denied due process and effective assistance of counsel when counsel fails to investigate and provide alibi evidence?

Doc. 10-1, p. 377, 382. On March 15, 2017, the Ohio Supreme Court declined jurisdiction pursuant to S.Ct. Prac.R. 7.08(B)(4). Doc. 25-1.

         D. Federal Habeas Petition

         On July 28, 2016, Crank, pro se, filed his Petition for a Writ of Habeas Corpus. Doc. 1. He listed the following grounds for relief:

Ground One: Petitioner received ineffective assistance of appellate counsel in violation of his Due Process rights under the Sixth and Fourteenth Amendments to the U.S. Constitution.
Supporting Facts: Appellate counsel failed to provide the appellate court with argument supporting Assignment of Error No. 6 in his Appellant's Brief, that Petitioner was improperly sentenced when the trial court sentenced him to multiple consecutive gun specifications arising from one continuous course of conduct.
Appellate counsel failed to argue that the State committed obvious misconduct on the part of the Detective for illegally directly or indirectly getting the Petitioner drunk in order to get him to make statements portrayed as a confession to things that he did not do.
Appellate counsel failed to raise on appeal the issue of aiding and abetting when the state failed to prove a principal offender.
Ground Two: Petitioner's Convictions were Against the Sufficiency of the Evidence, in violation of his Due Process Rights under the Sixth and Fourteenth ...

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