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Miller v. Schweitzer

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

June 21, 2019

BOHANNON R. MILLER, Petitioner,
v.
WARDEN TOM SCHWEITZER, Respondent.

          CHRISTOPHER A. BOYKO, JUDGE.

          REPORT & RECOMMENDATION

          Kathleen B. Burke, United States Magistrate Judge.

         Petitioner Bohannon R. Miller (“Petitioner” or “Miller”) brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Doc. 1. Miller is detained at the Toledo Correctional Institution, having been convicted by a Lorain County, Ohio, Court of Common Pleas jury of eleven counts, including murder, aggravated murder, felonious assault, tampering with evidence, and having weapons under a disability. Doc. 9-1, pp. 4-9, 12.[1] State v. Miller, No. 13CR086882 (Lorain Cty. Common Pleas Ct. filed February 13, 2014). The trial court merged the applicable counts and sentenced Miller to an aggregate prison sentence of 51 years to life. Doc. 9-1, pp. 13-14.

         On February 13, 2019, Miller filed an Amended Petition for writ of habeas corpus setting forth one ground for relief. Doc. 1, pp. 5-7. Respondent filed a Return of Writ. Doc. 14. Miller has not filed a response and the time to do so has passed. 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, Miller's sole ground for relief fails on the merits. Thus, the undersigned recommends that Miller's Amended Petition be DENIED.

         I. Background

         A. State trial court

         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), cert. denied, 129 S.Ct. 2878 (2009). The Lorain County Court of Appeals, Ninth Appellate District of Ohio, set forth the facts as follows:

{¶ 2} The Lorain County Grand Jury indicted Miller on a variety of offenses including aggravated murder in violation of R.C. 2903.01(A), an unspecified felony, and attempted murder in violation of R.C. 2903.02(A), 2923.02(A), a felony of the first degree, as well as several firearm specifications in violation of R.C. 2941.145, 2941.146. The charges arose from a June 2009 incident that occurred at the corner of Long Avenue and 13th Street in Lorain, Ohio. At approximately 10:00 p.m., a vehicle drove through the area and its occupants opened fire, shooting two individuals, C.R. and M.M. C.R. sustained two non-fatal injuries after being shot once in the leg and once in the side. However, M.M. sustained fatal gunshots to his chest and later died from his injuries. Police were already present in the area to investigate a separate murder and they quickly responded to the scene. They learned from witnesses that the suspect's vehicle was a gold or silver Taurus and that the shooter stood through the sunroof while shooting at C.R. and M.M.
{¶ 3} After learning this, police received a dispatch that someone had called to report suspicious activity at the intersection of 30th Street and Caroline Avenue, where four males were seen exiting a vehicle and wiping it down. Police responded to this location and found a gold Taurus that matched the witnesses' description of the shooter's vehicle. The Taurus's sunroof was open and police discovered a spent cartridge in the vehicle. BCI matched this cartridge to cartridges discovered at the scene of the shooting. Police also linked the gold Taurus to Miller and conducted a follow-up investigation.
{¶ 4} During the course of this subsequent investigation, Lorain Police Detective Ernest Sivert interviewed R.F. In his first interview, R.F. said that he was not present during the shooting and had no knowledge of the shooter's identity. However, in his second police interview, R.F. said that he was seated in the backseat of the Taurus at the time of the shooting. And, R.F. stated that Miller was one of the vehicle's other occupants and that Miller was the person who shot toward C.R. and M.M. R.F. was not entirely clear in his description of Miller's actions except that he stood and shot toward the victims out of the vehicle's passenger side. R.F. also confirmed that after the incident, all four of the vehicle's occupants wiped the vehicle down and left it at the intersection of 30th Street and Caroline Avenue. The State entered into an agreement with R.F. whereby he agreed to testify regarding Miller's actions during the June 2009 incident in exchange for immunity in the incident.
{¶ 5} The matter proceeded to a jury trial. During the pendency of the trial, R.F. indicated that he would not testify as required under the agreement. Subsequently the State filed a notice under Evid.R. 804(B)(6) that it intended to introduce evidence regarding R.F.'s out-of-court statements. The trial court conducted an evidentiary hearing outside the presence of the jury to address the issue. At the hearing, Detective Sivert testified that after the trial started, he met with R.F., who was in county jail along with Miller pending the resolution of their respective court cases. R.F. indicated that during one interaction over a glass partition at the jail, Miller held a document up to the glass and told him that he was the only person who could “sink” Miller. Miller also said the names of R.F.'s nieces, which R.F. interpreted as a threat. Detective Sivert authenticated two jail surveillance videos and testified that they confirmed that R.F. and Miller interacted over the glass partition. However, the video contained no audio of the interaction.
{¶ 6} According to Jail Administrator Andy Laubenthal, R.F. requested administrative segregation. The basis for R.F.'s request was that he was fearful for his life after receiving threats and experiencing several incidents of misbehavior directed toward him, including an incident in which another inmate threw urine into his jail cell. Administrator Laubenthal granted the request and R.F. was put into protective custody away from other inmates in the county jail.
{¶ 7} Chief Assistant Prosecutor Tony Cillo testified that he learned of R.F.'s decision to no longer cooperate and consequently discussed with him the ramifications of that decision for his plea agreement. During the course of that discussion, R.F. told Mr. Cillo that a prison gang attacked him several times in the jail because he would be “snitching” against Miller, one of the gang's associates. R.F. also repeated the threat that Miller made against his nieces over the glass partition and the fear that he had both for his own life and the lives of his family members.
{¶ 8} The trial court called R.F. to testify at the hearing. He relevantly testified as follows:
The Court: * * * [H]ave you been threatened regarding coming to court and testifying in this case?
The Witness: Yes.
The Court: Are you in fear because of these threats. The Witness: Yes.
The Court: You take the threats seriously?
The Witness: Right. That's why I don't want to testify.
The Court: * * * Have you been threatened by either Bohannon Miller or people who you believe have reason to believe are doing the work of Bohannon Miller, or doing, or making the threat on behalf of Bohannon Miller [?]
The Witness: Yes.
After hearing the testimony, the trial court found that the State met its burden to show that Miller engaged in wrongdoing by threatening R.F. for the purpose of making him unavailable to testify.
{¶ 9} Detective Sivert subsequently testified during the trial to R.F.'s out-of-court statements regarding the shooting. Additionally, the trial court admitted the recording of R.F.'s second police interview into evidence.[1] The jury then found Miller guilty of all counts alleged in the indictment and the trial court sentenced him to a total prison term of 51 years to life. Miller filed this timely appeal, which presents one assignment of error for our review.
[FN1] The trial court also admitted the video of the first police ...

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