Nelson v. Sheldon

          DONALD J. NUGENT, 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 Christopher Nelson (“Nelson” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Nelson is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Nelson, Lucas County Court of Common Pleas No. G-4801-CR-0201402708-000. For the following reasons, the undersigned recommends the Petition be DENIED.

         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 Nelson's conviction as follows:

{¶ 2} In October 2014, appellant was indicted and charged with four felony offenses stemming from the gang-related shooting of Markiese Chandler and Josean Fleming that occurred in April 2010. Chandler was killed in the shooting. A third victim, Jovon Williams, fled the scene during the shooting and was not injured.

{¶ 3} Witnesses to the shooting informed law enforcement personnel that three assailants approached a group of three men in an area in Toledo known to be occupied by members of the Beehive Crips gang. However, the witnesses were unable to see the assailants' faces. Consequently, authorities were initially unable to identify and prosecute those responsible.

{¶ 4} Two days prior to the shooting, appellant was involved in an altercation outside of the Red and White store in Toledo. At that time, appellant fired three shots at Ronald Ramsey with his .22 caliber Walther pistol, striking him once in the ankle. Appellant was subsequently convicted of aggravated robbery with a firearms specification and was sentenced to a term of imprisonment for that offense.

{¶ 5} While in prison on the aggravated robbery charge, appellant was caught with a knife on his person. As a result, appellant was charged with possession of a deadly weapon under detention, a second degree felony. In an effort to reduce the potential time he was facing on this charge or to reduce the time he was currently serving for his aggravated robbery conviction, appellant informed state troopers that he had information concerning the murder of Markiese Chandler and was willing to testify against Jimmy Henry and Byron Mitchell, the alleged perpetrators, in exchange for a deal.

{¶ 6} In an effort to ascertain the usefulness of appellant's information, Toledo police detectives Elizabeth Kantura, Robert Schroeder, and Deb Hahn traveled to the prison to meet with appellant on August 6, 2012. According to Kantura, the meeting took place in a small administrative room inside the prison. Appellant was handcuffed during the interview, which lasted less than 30 minutes.

{¶ 7} At the interview, appellant informed authorities that he was present at the scene of the murder. He went on to explain that he drove to the scene with Henry and Mitchell, parked the car, and approached the three victims who were walking along the side of the street. Appellant insisted that Henry was the first to fire shots. Appellant also admitted to firing shots, but stated that he was not aiming toward the victims and therefore was not the one responsible for the gunshot injuries. When pressed for further details, appellant was able to describe what he and the others were wearing, the type of vehicle they were driving, how they chased down one of the victims, and how they fled the scene. Up to this point, Kantura had not informed appellant of his Miranda rights. Kantura reasoned that she was not required to provide Miranda warnings because appellant voluntarily asked her to speak with him and she was skeptical as to the utility of the information appellant would provide. Further, Kantura stated that her purpose for interviewing appellant was merely to get his statement as a witness to the murder.

{¶ 8} After appellant provided the foregoing details to Kantura, Schroeder began questioning him concerning another homicide investigation. Prior to doing so, Schroeder informed appellant of his Miranda rights because appellant was a suspect in that case. The interview continued, and Kantura eventually returned to her questioning of appellant regarding the murder of Markiese Chandler. Appellant stated that he used a .22 caliber Walther pistol during the shooting.

{¶ 9} Three weeks after appellant was initially questioned, Kantura returned to the prison for a follow-up interview. Once again, Kantura did not read appellant his Miranda rights prior to questioning. According to her testimony, Kantura did not feel that it was necessary to inform appellant of his Miranda rights at this point because appellant was a witness, not a suspect, and she was merely gathering follow-up information from appellant concerning the vehicle that was used by the assailants.

{¶ 10} Almost two years later, on April 8, 2014, appellant again requested an interview with detectives regarding the murder of Markiese Chandler. This time, however, Schroeder had appellant transported to police headquarters for the interview. After informing appellant of his Miranda rights, which appellant waived, Schroeder questioned appellant regarding the murder.

{¶ 11} Prompted by statements provided by appellant during the April 8, 2014 interview, detective Jay Gast conducted a follow-up interview with appellant on June 11, 2014. At that interview, which took place at police headquarters, appellant waived his Miranda rights and provided additional statements concerning the murder of Markiese Chandler.

State v. Nelson, 2016-Ohio-7115, ¶¶ 2-11 (Ohio App. 6th Dist. Sept. 30, 2016).

         II. Procedural History

         A. Trial Court Proceedings

         In October 2014, a Lucas County Grand Jury charged Nelson with one count of aggravated murder in violation of Ohio Rev. Code (“ORC”) §2903..02(B) and §2929.02 (Count One), two counts felonious assault in violation of O.R.C. §2903.11(A)(2) and (D) (Counts Two and Three), and one count of participation in a criminal gang in violation of O.R.C. §2923.42(A) and (B) (Count Four). Counts One through Three contained firearm specifications. (Doc. No. 7-1, Exh. 1.) Nelson pled not guilty as to all counts. (Doc. No. 7-1, Exh. 2.)

         On February 13, 2015, Nelson, through counsel, filed a Motion to Suppress “any and all oral statements made by [Nelson] that the State may seek to introduce at trial, ” arguing the statements were taken in violation of the Fifth and Fourteenth Amendments. (Doc. No. 7-1, Exh. 3.) The State filed a memorandum in opposition. (Doc. No. 7-1, Exh. 4.) The state trial court conducted a hearing on Nelson's motion on April 10, 2015. (Doc. No. 7-1, Exh. 5.) Following this hearing, the State filed a supplemental memorandum in opposition. (Doc. No. 7-1, Exh. 6.) The state trial court ultimately denied Nelson's Motion on May 4, 2015. (Doc. No. 7-1, Exh. 7.)

         On June 4, 2015, the state filed a Notice of Intent to use other acts evidence. (Doc. No. 7-1, Exh. 8.) Nelson, through counsel, filed response in opposition. (Doc. No. 7-1, Exh. 9.)

         Jury trial commenced on June 6, 2015. (Doc. No. 7-3 at Tr. 1.) Pursuant to Ohio Crim. R. 29, Nelson made an oral motion for acquittal at the close of the State's case. (Doc. No. 7-1, Exh. 10.) The trial court denied this motion. (Id.)

         On June 12, 2015, the jury found Nelson guilty of murder (Count One), two counts of felonious assault (Counts Two and Three), and participation in a criminal gang (Count Four). Doc. No. 7-1, Exh. 12.) The jury did not find Nelson guilty of the firearm specifications. (Id.) The state trial court conducted a sentencing hearing on June 16, ^[1] 2015, at which time Nelson was sentenced to life with parole eligibility after 15 years for the murder change, seven years for the first felonious assault charge, six years for the second felonious assault charge, and seven years for the participation in a criminal gang charge. (Doc. No. 7-1, Exh. 13.) The state trial court ordered the sentences to be served consecutively to each other and consecutive to the prison sentences Nelson was serving for unrelated criminal convictions. (Id.)

         B. Direct Appeal

         On July 14, 2015, Nelson, through counsel, filed a Notice of Appeal with the Court of Appeals for the Sixth Appellate District (“state appellate court”). (Doc. No. 7-1, Exh. 15.) In his appellate brief, Nelson raised the following assignments of error:

I. The trial court erred to the prejudice of appellant by denying his Motion to Suppress.

II. Appellant received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, §10 of the Constitution of the State of Ohio.

III. The trial court erred in denying Appellant's Rule 29 Motion upon completion of the State's case in chief.

IV. The jury's verdict was against the manifest weight of evidence presented at trial.

(Doc. No. 7-1, Exh. 16.) The State filed a brief in response. (Doc. No. 7-1, Exh. 17.)

         On September 30, 2016, the state appellate court affirmed Nelson's convictions and prison sentences. (Doc. No. 7-1, Exh. 18.)

         On October 17, 2016, Nelson, proceeding pro se, filed a Notice of Appeal with the Supreme Court of Ohio. (Doc. No.7-1, Exh. 19.) In his Memorandum in Support of Jurisdiction, Nelson raised the following Propositions of Law:

I. My case is very important. My case is Miranda right in the case of Miranda right. I will not be the last case the Supreme Court review. The court should grant review. I was a winess [sic] first to a murder I was not - to Miranda right. 2 years later, I was do in court on knife charge with possession of a deadly wepon [sic] under detention a second felony in an effort to reduce the charge. This time however Schroeder afer [illegible] me Miranda right which I waived. *In the case of Moran v. Burbine 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410, 1986 U.S. HN3 The inquiry into waiver of Miranda right has two distinct dimensions. First the relinquishment of the right must have been voluntry [sic] that it was the produt [sic] of a free and deliberate choice rather than intimidation, coercion, or must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. HN1 Prior to the initiation of questioning they must fully apprise the suspect of the state intention to use his statements to secure a conviction. The court recognized that custodial interrogations by their very nature generate compelling pressures which work to undermine him to speak where he would not otherwise do that Great general interest constitution. You In October 2014 Appellant was indicated and charged with four felony offenses stemming from the gang-related shooting of Markiese Chandler and Josean Fleming that occurred in April 2010. Chandler was killed in the shooting. A third victim Jovon Williams fled the scene during the shooting and was not injured. While in prison on the [aggravated] robbery charge appellant was caught with a knife. In an effort to reduce the In an effort to ascertain the usefulness appellant information Toledo Police Det Elizabeth Kantura, Robert Schoeder and Deb Hahn traveled to the prison to meet with Appellant on August 6, [2012]. According to Dantura the meeting took place in a small administrative room. At the interview Appellant informed authorities that he was present at the scene of the murder.

In my case I was try to get a deal but was not tell that I will be charged shooting of Markiese Chandler I was informing of my Miranda right which I waived but the case Moran v. Burdine 475 U.S. the court tell the law prior to the initiation of questioning they must fully apprise the suspect of the State intention to use his statements to secure a conviction. I was not tell that the statements I made to Det was to be use a secure a conviction. If I was apprise that the Det was try to use the statements I will not be made that statements. The court tell that I made a voluntary statements but the rec. will not show that statement was volontry[sic]. In the case of Shawn v. Pettijean HN11 when accused decision to speak is motivated by police officers statement construing direct or indirect or indirect promises of leniency or benefit or other [illegible] regarding the possibility of probation which where misstatements of the law his incriminating statements not been freely self-determined have been. I was promises that it would go to be take off my time but the [video] the jury was play a [illegible] video.

If the Ohio Supreme Court accept my case in review my case in the trial court I will win the accepts t you in god [illegible].

(Doc. No. 7-1, Exh. 20.) The State did not file a response. (Doc. No. 7-1, Exh. 21.)

         On March 15, 2017, 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. 22.)

         C. Federal Habeas Petition

         On November 20, 2017, ^[2] Nelson, proceeding pro se, filed a Petition for Writ of Habeas Corpus in this Court and asserted the following grounds for relief:

GROUND ONE: My Fifth Amendment Self-Incrimination I was never aware of the police trying too[sic] use my statements too[sic] get a conviction. I was aware that I was a witnesses for the State my interviews that was recordingg[sic] was edited show the part that I was too[sic] be a witness.

GROUND TWO: Ineffective assistance of counsel Failing to retain psychological expert [specializing] in field of false confessions the witness list containing 62 names the State have just me on video I was too[sic] be a witness my counsel never exhaust at trial

GROUND THREE: Denying Rule 29 motion that the State did not prove all elements Counts 4 felonious participates criminal gang. The State play me admits that I was Little Head I was too [sic] be a what ...