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