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Blankenship v. Robinson

United States District Court, S.D. Ohio, Eastern Division, Columbus

June 19, 2019

JAMES BLANKENSHIP, Petitioner,
v.
NORMAN ROBINSON, WARDEN, London Correctional Institution, Respondent.

          Michael H. Watson District Judge.

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This habeas corpus case, brought pro se by Petitioner James Blankenship under 28 U.S.C. § 2254, is before the Court on Petitioner's Objections (ECF No. 17) to the Magistrate Judge's Report and Recommendations recommending that the Petition be dismissed (the “Report, ” ECF No. 14). Judge Watson has recommitted the case for reconsideration in light of the Objections (ECF No. 18).

         First Objection: Insufficient Evidence to Convict of Delaware County Break-In

         Blankenship was indicted July 24, 2015, on one count of engaging in a pattern of corrupt activity, ten counts of breaking and entering, and three counts of safecracking. He was convicted on all counts except for two charges of breaking and entering. In his First Ground for Relief in habeas corpus, Blankenship claimed there was insufficient evidence to convict him on Count VII which charges breaking and entering at the Delaware County Humane Society. The Ohio Fifth District Court of Appeals decided this claim on direct appeal, employing the correct Supreme Court precedent, Jackson v. Virginia, 443 U.S. 307 (1979). The issue in habeas, then is whether the Fifth District's decision was contrary to or an objectively unreasonable application of Jackson. Brown v. Payton, 544 U.S. 133 (2005); Bell v. Cone, 535 U.S. 685 (2002); Williams v. Taylor, 529 U.S. 362 (2000).

         The key finding of the Fifth District was, “In the case at bar, ample circumstantial evidence existed to allow the jury to conclude that Blankenship and Creech were the individuals who gained access to the Delaware County Humane Society on February 10, 2015.” State v. Blankenship, 2017-Ohio-7267 ¶ 33 (Ohio App. 5th Dist. Aug. 16, 2017), appellate jurisdiction declined, 151 Ohio St.3d 1512 (2018)(“Blankenship I”). The Fifth District then recited all the circumstantial evidence in the record that supported that conclusion. Id. at ¶¶ 34-39. The Magistrate Judge reviewed the opinion of the Fifth District, applying AEDPA deference, and found it was not an objectively unreasonable application of Jackson (Report, ECF No. 14, PageID 1411-14).

         In his Objections, Blankenship concedes the State sufficiently proved someone broke into the Delaware County Humane Society on the date charged, but alleges “the State failed to present even a scintilla of evidence that Petitioner had any involvement in that offense.” (Objections, ECF No. 17, PageID 1423.)

         Blankenship asserts both the Fifth District and the Magistrate Judge failed to address the substantive elements of breaking and entering under the relevant Ohio statute, Ohio Revised Code § 2913.01. Not so. In Blankenship I the Fifth District wrote:

{¶ 26} To be convicted of breaking and entering pursuant to R.C. 2911.13(A) the trier of fact would have to find beyond a reasonable doubt that Blankenship by force, stealth, or deception trespassed in an unoccupied structure, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony.

         In the next three paragraphs it recited the testimony from Misty Bay proving the required elements, which were not really contested. The state court focused its opinion on the key question of identity. Blankenship does not now contest that the evidence was sufficient to prove all the elements; he himself speaks merely to proof of identity (Objections, ECF No. 17, PageID 1423-24).

         The evidence identifying Blankenship as to Count VII was, as the Fifth District realized, all circumstantial. To summarize that evidence, there were sixteen break-ins at sixteen different Ohio animal shelters in a one-month period (January 19, 2015, to February 18, 2015). Co-defendant Corby Creech and his girlfriend Toni Beers lived with Blankenship during the relevant period of time and both testified to the pattern of the crimes, relevant identifying factors, and the lack of any legitimate income to support the household.[1] Creech pleaded guilty to the Delaware County break-in, although by the time of Blankenship's trial, he purported not to remember his participation and he did not testify directly that Blankenship participated. This outbreak of break-ins ceased completely when Blankenship and Creech were arrested.

         Blankenship's position seems to be that he cannot be convicted of the Delaware County break in unless there is some direct evidence of his participation. But that is not the law. Ohio law, as the Fifth District pointed out, permits conviction on circumstantial evidence alone. Blankenship I, 2017-Ohio-7267at ¶ 31, citing “‘[C]ircumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant's guilt beyond a reasonable doubt.'” State v. McKnight, [2] 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 75 (2005), quoting State v. Heinish, 50 Ohio St.3d 231, 238 (1990).

         Blankenship points to no federal constitutional law requiring direct evidence of identity and in fact federal law is to the contrary. Circumstantial evidence alone is sufficient to support a conviction, and it is not necessary for the evidence to exclude every reasonable hypothesis except that of guilt. United States v. Ramirez, 635 F.3d 249, 256 (6th Cir. 2011); United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006); United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999); United States v. Beddow, 957 F.2d 1330, 1334 (6th Cir. 1992). “[D]irect evidence of a fact is not required. Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence. Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330 (1960), citing Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17 (1957). Blankenship's First Objection should be overruled.

         Second Objection: Conviction Based on an Unjustified Inference

         Part of the evidence used to convict Blankenship was cell site location data which showed Blankenship's or co-conspirator Creech's cell phone was in the vicinity of eight of break-ins when the break-ins occurred. Blankenship I, 2017-Ohio-7267, ¶ 34. Blankenship objects that the Report concluded that

[T]he State is entitled to an inference that Petitioner's cell phone was on his person at all relevant times. This erroneous inference then leads to the erroneous conclusion that because the Petitioner's cell phone was found to be in the general vincinity [sic] of some of the break-ins, it could be inferred to have been been [sic] present at all of the break-ins. It is this stacking of inferences that the Magistrate Judge embraces as a substitute for actual evidence of ...

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