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Allen v. Coleman

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

February 11, 2019

DEMETRIUS ALLEN, Petitioner,
v.
WARDEN JOHN COLEMAN, Respondent.

          JEFFREY J. HELMICK JUDGE.

          REPORT & RECOMMENDATION

          KATHLEEN B. BURKE UNITED STATES MAGISTRATE JUDGE.

         Petitioner Demetrius Allen (“Petitioner” or “Allen”) filed this habeas corpus action pursuant to 28 U.S.C. § 2254 on April 2, 2018. Doc. 1. Allen is detained at the Toledo Correctional Institution, having been found guilty by a Cuyahoga County, Ohio, Court of Common Pleas jury of two counts of aggravated murder with attendant course of conduct and firearm specifications, three counts of attempted aggravated murder with attendant firearm specifications, and one count of having a weapon under a disability. State v. Allen, No. CR-10-540250-B (Cuyahoga Cnty. Common Pleas Ct. filed June 7, 2011). The trial court sentenced Allen to 20 years to life on each aggravated murder count and three years on each attendant firearm specification, to be run consecutively; three years on the attempted aggravated murder counts and three years on each firearm specification, to be run concurrently, and one year on the having a weapon under a disability count, to be run concurrently, for a total of 46 years to life in prison. Doc. 9-1, p. 22.[1]

         On April 2, 2018, Allen filed his Petition for Writ of Habeas Corpus setting forth six grounds for relief. Doc. 1. 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, Allen's Petition is barred by the statute of limitations. Thus, the undersigned recommends that his Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED. Also pending are Allen's Motion for Transcripts (Doc. 11), Motion for the Complete State Court Record (Doc. 12), and Motion for extension of time to file a traverse (Doc. 14) which the undersigned DENIES.

         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).

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

{¶ 3} In the early evening of July 17, 2010, five men were socializing in front of a house located near the intersection of East 123rd Street and Signet Avenue in Cleveland, Ohio. At approximately 8:30 PM, two men approached, one armed with an assault rifle, and unleashed a barrage of gunfire on the assembled men. At the end of the onslaught, two men, Miley Slaughter and Kenneth Green, were dead. Two others, Timothy Sisson and Antwon Weems, were wounded, and a fifth man, Willie Tyson, escaped unharmed.
{¶ 6} At trial, the state presented the testimony of 22 witnesses, including Eric Brown [who] testified that on the evening of July 17, 2010, after playing cards on his front porch, went inside to sit in his living room. Brown later looked through his bay window and saw Slaughter, Green, Sisson, Weems, and Tyson socializing in front of his house.
{¶ 7} Brown testified that he heard gunfire a short time later and looked through the window and saw Allen discharging a military-style automatic gun at the men assembled, who attempted to flee. Two of the men ran up the driveway and others ran down the sidewalk. While continuing to shoot, Allen ran across Brown's front lawn, Slaughter fell in the driveway, and Allen stood over him and stated: “I got your bitch ass.” Brown testified that throughout the rampage, Logan was standing close to Allen and was very hyped up, but did not have a weapon.
{¶ 8} Brown [] immediately closed the curtains to the bay window after witnessing the shootings, and was somewhat surprised that Allen had not seen him watching. After the assailants fled, Brown exited his house and found Slaughter dead in his driveway. Brown found Green lying in his backyard, bleeding and grasping for air. Brown took off his shirt and applied pressure to the wound until paramedics arrived.
{¶ 9} Brown had an unobstructed view of Allen and Logan from his bay window and stated that he recognized Allen from the neighborhood, but did not know his name. Because of a basic distrust for the police and not wanting to be labeled a “snitch, ” Brown was reluctant to cooperate with the investigation. However, Brown described Allen and Logan to his neighbors and subsequently identified both Allen and Logan from a police photo array.
{¶ 10} Weems testified that he and the others immediately started running once the gunfire started. Weems ran up Brown's driveway, where he saw Slaughter, who had fallen to the ground. Weems, while trying to help Slaughter, could still hear gunfire and could see the sparks from the gunshots. Weems turned around and saw the faces of the assailants. Weems escaped through a neighbor's backyard, but sustained a gunshot wound to his foot.
{¶ 11} Weems recognized both assailants because he had gone to high school with Logan and knew the mother of Allen's child, but did not remember their names. Weems testified that Allen was the shooter. Weems, like Brown, initially did not cooperate with the police investigation, hinting that he had contemplated taking matters into his own hands. However, Weems eventually gave a statement to the police and subsequently identified both men from a photo array.
{¶ 12} Sisson testified that on the night of the shooting, he initially heard three gunshots, followed by rapid fire from an automatic weapon, and then everyone who had assembled began to disperse. Sisson stated that a light-complexioned black male, armed with a gun, approached, and continued to shoot. Sisson, who testified that he did not get a good look at the assailant, fled in the direction of East 123rd Street. As Sisson ran, he could feel the heat from the bullets passing him and felt certain that he would be killed. Sisson was grazed on his foot by a bullet, and was treated and released from the hospital.
{¶ 13} Tyson testified that he escaped the onslaught unharmed by fleeing and hiding in a neighbor's garage until the shooting ended. When Tyson exited the garage, he discovered Slaughter's dead body in Brown's driveway and found Green, who later died, lying in the backyard.
{¶ 14} Detectives Wally Everett and Michael Smith of the Cleveland Police Department's Homicide Unit testified they interviewed several individuals following the shooting. Detectives Everett and Smith confirmed that both Brown and Weems were very reluctant to cooperate with the investigation, but eventually did, and subsequently on separate occasions identified Allen and Logan from photo arrays.
{¶ 15} Allen's younger brother, Deandre Allen, testified for the defense. Deandre testified that earlier that evening, Allen and Logan took him and his friend Dapolo Green to a shoe store near the Lee-Harvard Shopping Center. Deandre stated that Allen and Logan dropped them off at home, left together, and never returned that night.
{¶ 16} Allen and Logan took the stand in their own defense. Both men testified to being lifelong friends. Both men testified that in the early evening of July 17, 2010, they took Allen's younger brother and his friend to a shoe store near the Lee-Harvard Shopping Center. Allen and Logan testified that they took his younger brother and his friend back to the house and then went to sell drugs. Logan confirmed that he went to high school with Weems and added that they played middle league football when they were younger. Both Allen and Logan maintain they had nothing to do with the shooting.
{¶ 17} On rebuttal, the state presented the testimony of Dapolo Green, who testified that the day before the shooting, Deandre indicated that Allen and Logan were going to “shoot up the block” the following day. Green testified that he did not believe Deandre. Green confirmed that Allen and Logan had driven him and Deandre to the shoe store, that they were dropped off at Allen's home, that Allen and Logan left together, and that they did not return that night.

State v. Allen, 2012 WL 1454552, at *1-3 (Oh. Ct. App. April 26, 2012).

         A. State Trial Court

         On August 4, 2010, a Cuyahoga County Grand Jury indicted Allen on two counts of aggravated murder against two victims, three counts of attempted aggravated murder against three victims, and one count of having a weapon under disability. Doc. 9-1, pp. 4-11. Each aggravated murder count had multiple courses of conduct specifications and firearm specifications and the attempted aggravated murder counts had two firearm specifications. Doc. 9-1, pp. 4-10. Allen, through counsel, pleaded not guilty. Doc. 9-1, p. 12.

         The case proceeded to trial. After the state rested, Allen filed a motion for acquittal under Rule 29, which the trial court denied. Doc. 9-1, p. 19. The jury found Allen guilty on all counts. Doc. 9-1, p. 21. On July 11, 2011, the trial court sentenced him to 20 years to life on each aggravated murder count and three years on each attendant firearm specification, to be run consecutively; three years on the attempted aggravated murder counts and three years on each firearm specification, to be run concurrently, and one year on the having a weapon under a disability count, to be run concurrently, for a total of 46 years to life in prison. Doc. 9-1, p. 22

         B. Direct Appeal

         On July 8, 2011, Allen, through new counsel, appealed to the Eighth District Court of Appeals, Cuyahoga County, Ohio. Doc. 9-1, p. 24. In his brief, Allen set forth the following assignments of error:

1. Appellant's convictions are against the manifest weight of the evidence.
2. The trial court erred when it denied appellant's motion for acquittal under Crim.R. 29 because the State failed to present sufficient evidence to establish beyond a reasonable doubt the ...

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