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Thompson v. Lazaroff

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

March 13, 2018

KIRK D. THOMPSON, Petitioner,
v.
ALAN J. LAZAROFF, Warden Respondent.

          JOHN R. ADAMS, JUDGE.

          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 Kirk D. Thompson (“Thompson” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Thompson is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Thompson, Cuyahoga County Court of Common Pleas Case No. CR-13-577679-B. 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 Thompson's conviction as follows:

{¶ 2} In October 2013, Thompson was charged in a nine-count indictment arising from the death of Rafael Carter (“Carter”). Counts 1 and 2 charged him with aggravated murder. Count 3 charged him with murder. Counts 4 and 5 charged him with aggravated robbery. Counts 6 and 7 charged him with felonious assault. Count 8 charged him with having a weapon while under disability. Count 9 charged him with discharge of firearm on or near prohibited premises. On March 13, 2014, the matter proceeded to a jury trial, at which the following evidence was adduced.
{¶ 3}On the morning of April 29, 2013, Carter traveled with Marcos DeJesus (“DeJesus”) to Saywell Avenue in Cleveland, Ohio. DeJesus was driving an orange Saturn Ion and Carter was in the passenger seat. DeJesus parked the vehicle on the street in front of a house located at 12347 Saywell Avenue. After approximately five minutes, DeJesus exited the vehicle and walked across the street to a white house with yellow trim. Moments later, an individual later identified by Kimberly Brickers (“Brickers”) as Thompson, walked up to the passenger side of the vehicle, where Carter was sitting, raised his gun, and fired two shots at Carter. Carter managed to get into the driver's seat of the car and drive away. Thompson then flagged down an approaching Buick Regal, and jumped in as the car sped away.
{¶ 4} Meanwhile, Carter continued to drive for a few blocks. He eventually pulled over to the side of the road when he was no longer able to control the car because of his injuries. Cleveland police officers, who were responding to an unrelated incident, observed the Saturn coming down the street with a shattered window and immediately responded to that car. Upon their arrival, the officers discovered Carter near death in the driver's seat. Carter was taken from the scene in ambulance to the hospital, where he was pronounced dead. DeJesus arrived while officers were processing the crime scene.
{¶ 5} DeJesus was taken downtown for an interview with detectives because of some inconsistencies in his rendition of events to the police. Cleveland Police Detective Thomas Lynch (“Lynch”) interviewed DeJesus about the evening before and the morning of Carter's death and had him complete a written statement. DeJesus stated that Carter was his best friend. He was with Carter in the orange Saturn on Saywell Avenue where they both smoked marijuana. DeJesus left the vehicle for one minute and the shooting occurred while he left. He described the shooter as wearing a black Nike tracksuit with a white stripe on the sides and a hood pulled over his head. He further stated that the shooter fled east on Saywell Avenue. The information provided by DeJesus was very different than the information police gathered from Brickers and Christopher Maddox (“Maddox”), two witnesses who live on Saywell Avenue.
{¶ 6} Brickers, who lives across the street from where the shooting occurred, testified that she was outside on her porch waiting for a repairman when she observed the orange Saturn park across the street from her home. After several minutes, she witnessed a male, later determined to be DeJesus, exit from the driver's side of the vehicle and walk to the white house with yellow trim. She then observed Thompson walking down the sidewalk toward the Saturn. Thompson was wearing a blue polo shirt and jeans.
{¶ 7} She turned her back momentarily and heard gunshots. When she turned back around, she observed the Saturn driving away and Thompson standing on the sidewalk. Thompson put his gun in his pocket and signaled for a dark purple colored Buick to drive forward. Thompson got into the Buick and that car drove away in the same direction as the Saturn. At trial, Brickers identified Thompson as the individual who shot Carter. She further identified a photograph of the deep purple Buick as the vehicle she observed Thompson get into moments after the shooting.
{¶ 8} Maddox, another resident of Saywell Avenue, testified that on the morning of the incident, he heard gunshots outside, which prompted him to call 911. Maddox was looking outside his front window while on the phone with the 911 operator. He observed a young man standing in his neighbor's driveway. He then observed a two-toned Buick pull up, the young man jump into the car, and the Buick speed away. Maddox described this to the operator as it was happening.
{¶ 9} In the course of their investigation, Cleveland police completed an extraction report of Carter's cell phone. From this report, Lynch obtained a phone number for a contact titled “Little Marc.” Lynch learned from an interview with Carter's girlfriend that DeJesus went by the nickname of “Little Marc.” The phone number assigned to “Little Marc” was 216-800-2221, which was different than the number DeJesus provided to homicide detectives the day of his interview. Detectives determined that one of the numbers belonged to DeJesus's mother. Detectives obtained extraction reports for both of these phone numbers and learned that DeJesus's phone number was in fact 216-800-2221. In looking at the calls from this number on the morning of Carter's murder, detectives observed several phone calls to and from Carter's cell phone and a large volume of calls from 216-902-1407 (referred to as the “target phone number”). There were 33 phone calls between DeJesus and the target phone number either before, during, or after the time Carter was killed. The first three or four phone calls placed after Carter's murder were to the target phone number.
{¶ 10} Based on this information, Cleveland police detectives shifted their investigation to identifying the user of the target phone number. Lynch testified that the detectives utilized several databases to identify the user of that number. In addition to these databases, the detectives interviewed DeJesus about the target phone number. DeJesus initially stated he did not know that number. When confronted with the phone records, however, DeJesus stated that number belonged to someone named “Jay the weed man.”
{¶ 11} Detectives reached out to the Northern Ohio Law Enforcement Task Force (“NOLETF”), seeking assistance in identifying the target phone number and another phone number that appeared in the records. Detectives were concerned about 216-925-xxxx because there were 169 phone calls between the target phone number and this number over the course of four days around the time of the murder. The phone records revealed that this number belonged to Mary Corbin (“Corbin”), who was dating Thompson at the time of the murder. The detectives' investigation revealed that Corbin owned a two-toned 2001 Buick Regal, which she allowed Thompson to use.
{¶ 12} Lynch testified that he was advised by Detective James Cudo (“Cudo”), who was working surveillance for NOLETF, that Thompson was the owner of the target phone number. Cudo was conducting surveillance on Thompson's half-brother, Keith Ricks (“Ricks”). Ricks placed a call to the target phone number, which was recorded as a part of the wiretap. There was also video that correlated to the phone call. When the phone call was placed, a voice said, “Hey Kirk, ” and then a conversation followed regarding a car outside of the home. Cudo compared the video to a photograph of Thompson, and after listening to and observing the telephone call placed to the target phone number, he concluded that the individual in the video was Thompson.
{¶ 13} At trial, Cudo testified that he had additional time to compare Thompson's photograph with the video and was not 100 percent positive that Thompson was the individual in the video. He was certain, however, that Thompson was a user of the target phone number. Cudo further testified that as part of his investigation, he learned that Thompson's birthday is on May 31st. He observed two text messages from Ricks to the target phone number, stating, “HBD” and “Bro.”
{¶ 14} Lynch and his partner now focused their investigation on Thompson. The detectives learned that Thompson had received a ticket a couple weeks after the murder while driving a 2001 Buick Regal. The detectives realized that this vehicle matched the description of the vehicle used during the shooting. The detectives put together a photo array, which included Thompson's BMV photograph. Detectives showed the array to Brickers and Maddox. Brickers identified Thompson's picture as the individual she observed walk up to the orange car, fire shots, get into the deep purple Buick, and then drive away. She also recognized a photograph of DeJesus as the individual who exited the orange Saturn moments before Thompson shot Carter. Maddox was unable to identify the shooter. He did note, however, that three of the individuals who were in the photo array looked similar to the man he observed standing in his neighbor's driveway the morning of the shooting. Maddox was further shown a photograph of a two-toned Buick. He identified this as the vehicle he witnessed pull up moments after the shooting, in which the shooter leaped into just prior to it leaving the scene.
{¶ 15} At trial, Lynch testified that he learned that he could utilize Facebook to search phone numbers. Subsequently, Lynch entered the target phone number into the search box on Facebook. This search returned only one name-Kirk Thompson.
{¶ 16} As a result of their investigation and after Brickers identified Thompson as the individual who murdered Carter, Thompson was arrested in Atlanta, Georgia by the U.S. Marshals and extradited to Ohio for Carter's murder.
{¶ 17} At the conclusion of trial, the jury found Thompson guilty of aggravated murder, with the firearm specifications (Count 1); murder, with the firearm specifications (Count 3); felonious assault, with the firearm specifications (Counts 6 and 7); and discharge of firearm on or near prohibited premises, with the firearm specifications (Count 9). The trial court found him guilty of having weapons while under disability (Count 8). The matter proceeded to sentencing on April 23, 2014.
{¶ 18} At the sentencing hearing, the court merged Counts 3, 6, 7, 8, and 9 into Count 1 for purposes of sentencing. The court sentenced Thompson to three years in prison on the firearm specification to be served consecutive and prior to life in prison on Count 1 (aggravated murder), with parole eligibility after 28 years.

State v. Thompson, 2015 WL 1120992 at *1-4 (Ohio App. 8th Dist. Mar. 12, 2015).

         II. Procedural History

         A. Trial Court Proceedings

         In October 2013, a Cuyahoga County Grand Jury charged Thompson with (1) two counts of aggravated murder in violation of Ohio Rev. Code (“O.R.C.”) §2903.01(A) and §2903.01(B) (Counts One and Two); (2) one count of murder in violation of O.R.C. §2903.02(B) (Count Three); (3) two counts of aggravated robbery in violation of O.R.C. §2911.01(A)(1) and §2911.01(A)(3) (Counts Four and Five); (4) two counts of felonious assault in violation of O.R.C. §2903.11(A)(1) and §2903.11(A)(2) (Counts Six and Seven); (5) one count of having weapons under disability in violation of O.R.C. §2923.13(A)(3) (Count Eight); and (6) one count of discharge of firearm on or near prohibited premises in violation of O.R.C. §2923.162(A)(3) (Count Nine). (Doc. No. 7-1, Exh. 1.) Each charge, except for Count Eight, carried two firearm specifications. (Id.) Thompson pled not guilty to all charges. (Doc. No. 7-1, Exh. 2.)

         Thompson waived his right to a jury trial for Count 8 (weapons under disability). (Doc. No. 7-1, Exh. 4.) Counts 2, 4, and 5 were dismissed prior to trial. (Doc. No. 7-2, Tr. 19.)

         The case proceeded to trial commencing March 13, 2014. (Doc. No. 7-2, Tr. 22.) Pursuant to Ohio. Crim. R. 29, Thompson moved for an acquittal at the close of the State's case, which the trial court denied. (Doc. No. 7-8, Tr. 12, 13). Thompson renewed his Ohio Crim. R. 29 Motion for Acquittal after the defense rested and the state trial court again denied the motion. (Doc. No. 7-8, Tr. 14.) The jury found Thompson guilty of aggravated murder with a firearm specification (Count One), murder with a firearm specification (Count Three), felonious assault with a firearm specification (Counts Six and Seven), and discharge of firearm on or near prohibited premises with a firearm specification (Count Nine). (Id. at Tr. 135-138.) The trial court found Thompson guilty of weapons under disability (Count Eight). (Id. at Tr. 141.)

         The trial court conducted a sentencing hearing on April 23, 2014, at which time the court merged the murder, felonious assault, and discharge of firearm on or near prohibited premises convictions into the aggravated murder conviction. (Id. at Tr. 172.) Thompson was sentenced to 25 years to life for the aggravated murder conviction, plus one 3-year sentence for the firearm specification; and 30 months for the weapons under disability conviction. (Id.) The trial court ordered the sentences for all convictions to be served concurrently, for an aggregate sentence of 28 years to life. (Id.)

         B. Direct Appeal

         On May 13, 2014, Thompson, through counsel, filed a Notice of Appeal with the Court of Appeals for the Eighth Appellate District (“state appellate court”). (Doc. No. 7-1, Exh. 6.) In his appellate brief, Thompson raised the following assignments of error:

I. The trial court erred by convicting the appellant despite insufficient evidence.
II. Appellant's conviction is against the manifest weight of the evidence.
III. The trial court denied defendant due process when it found defendant guilty despite the evidence.
IV. Mr. Thompson received ineffective assistance of counsel.

         (Doc. No. 7-1, Exh. 7.) The State filed a brief in response. (Doc. No. 7-1, Exh. 8.)

         On March 12, 2015, the state appellate court affirmed Thompson's convictions and prison sentences. (Doc. No. 7-1, Exh. 9.) See also State v. Thompson, 2015 WL 1120992 (Ohio App. 8th Dist. Mar. 12, 2015).

         On April 21, 2015, Thompson, pro se, filed a Notice of Appeal with the Supreme Court of Ohio. (Doc. No. 7-1, Exh. 10.) In his Memorandum in Support of Jurisdiction, Thompson raised the following Propositions of Law:

I. The Eighth District Court of Appeals misapplies the Jackson v. Virginia standard when affirming the Appellant's conviction despite insufficient evidence.
II. Appellant's conviction is against the manifest weight of the evidence.
III. The trial court denied defendant due process when it found defendant guilty despite the evidence.
IV. Mr. Thompson received ineffective assistance of counsel.

(Doc. No. 7-1, Exh. 11.) The State did not file a response. (Doc. No. 7-1, Exh. 153.)

         On July 8, 2015, the Supreme Court of Ohio declined to accept jurisdiction of the appeal pursuant to S.Ct. Prac. R. 7.08(B)(4). (Doc. No. 7-1, Exh. 13.)

         C. Federal Habeas Petition

         On August 15, 2016, [1] Thompson filed a Petition for Writ of Habeas Corpus in this Court and asserted the following grounds for relief:

GROUND ONE: The Eighth District Court of Appeals misapplies the Jackson v. Virginia standard when affirming the Appellant's conviction despite insufficient evidence.
GROUND TWO: Appellant's conviction is against the manifest weight of the evidence.
GROUND THREE: The trial court denied Defendant Due Process when it found Defendant guilty despite ...

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