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Brown v. Ohio Adult Parole Authority

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

July 3, 2019

DONALD H. BROWN II, Petitioner,
v.
OHIO ADULT PAROLE AUTHORITY, [1] Respondent.

          GEORGE C. SMITH JUDGE.

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner who is proceeding without counsel, petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner seeks release from confinement imposed pursuant to a state-court judgment in a criminal action. This case has been referred to the Undersigned pursuant to 28 U.S.C. 636(b) and Columbus' General Order 14-1 regarding assignments and references to United States Magistrate Judges.

         This matter is before the Court on its own motion under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (“Rule 4”). Pursuant to Rule 4, the Court conducts a preliminary review to determine whether “it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief . . . .” If it does so appear, the petition must be dismissed. Id. With this standard in mind, and for the reasons that follow, the Undersigned RECOMMENDS that this action be DISMISSED.

         I. FACTS AND PROCEDURAL HISTORY

         Petitioner indicates that he was convicted after a jury trial in the Franklin County Court of Common Pleas on the charge of manslaughter, with a firearm specification. The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:

{¶ 2} On October 11, 2002, appellant was indicted on one count of murder, in violation of R.C. 2903.02. The indictment arose out of an incident on August 22, 2002, in which appellant fatally shot Joshua Green, age 18, at the Berwick Plaza Apartments located at 3094 Livingston Avenue.
{¶ 3} The matter came for trial before a jury beginning on July 22, 2003. At trial, the state presented evidence tending to show the following facts. Veronica Green, the sister of the shooting victim, testified that her family lived in a gang neighborhood and her brother, Joshua, who was five foot four inches tall and weighed 117 pounds, had encountered difficulties with other individuals in the neighborhood “messing with him.” (Tr. 92.) Approximately one month prior to the shooting, Joshua purchased a gun for protection from an individual nicknamed “New Orleans.” (Tr. 109.)
{¶ 4} On August 22, 2002, Veronica Green spent most of the day with her brother and she last saw him around 5:00 p.m. that afternoon. Later that evening, at approximately 8:00 p.m., Green received a phone call from her stepfather informing her that Joshua had been killed.
{¶ 5} Macaette Robinson was a resident of the Berwick Plaza Apartments during the events in question. Appellant frequently visited the apartments, and Robinson was acquainted with him. Robinson also knew Joshua Green, and Robinson was aware that Green possessed a gun. Green kept the weapon in a sock on the seat of his car. According to Robinson, Green “felt like his life was being threatened in Easthaven.” (Tr. 175.)
{¶ 6} Robinson testified that Green visited the Berwick Plaza Apartments on August 22, 2002, and gave appellant a ride to a local drive-thru. After they returned to the apartments, Green discovered that his weapon was missing and he asked Robinson if he knew anything about the gun. Later that day, appellant showed Robinson the gun. Robinson subsequently informed Green that appellant had his weapon, but he advised Green, who was considerably smaller in stature and weight than appellant, to go home. Green eventually left, but he returned about 15 or 20 minutes later. After driving through the neighborhood, Green left again and went to the residence of a friend, Anson Ford.
{¶ 7} Green told Ford he was upset because someone had stolen his gun at the Berwick Plaza Apartments. At one point during Green's visit, Ford left the room briefly to go to the restroom and, when he returned, Green was gone. Ford then discovered that a gun he kept in a drawer was missing, so he drove to the Berwick Plaza Apartments.
{¶ 8} After leaving Ford's residence, Green returned to the Berwick Plaza Apartments and began arguing with appellant about the missing weapon. Appellant denied having the weapon, but Green observed the weapon on appellant and reached for the gun. Robinson asked appellant to “just give him the gun back.” (Tr. 181.) Appellant looked at Robinson and stated, “[h]e's got to get out of the car and get it hisself.” (Tr. 181.)
{¶ 9} Robinson testified that appellant and Green began struggling over the weapon and “[a] round went off.” (Tr. 181.) Green dropped the gun and appellant fell backwards. Appellant then got up and “rushed towards the car as Josh was reaching down for the weapon.” (Tr. 181.) Appellant overpowered Green by lifting him and punching him. After the last punch, “Josh slumped down in the vehicle and went to raise up back out of the vehicle, and that's when a couple shots went off.” (Tr. 181- 182.) Appellant was in control of the weapon at the time the shots were fired. After the shooting, appellant went into the apartment building and knocked on Robinson's door, but Robinson refused to let appellant inside his apartment. Robinson phoned 911 to seek help for Green.
{¶ 10} Ford also testified regarding the shooting incident. When Ford arrived at the apartments, he observed Green “struggling, getting hit. He wasn't in control. He was-he had his hand, like, out the car window * * *. His arm was being held down, and he was being punched.” (Tr. 137.) Appellant was holding Green's arm with one hand, and punching Green in the head with the other hand. Green had a gun in his right hand. According to Ford, Green was attempting to get away from appellant but was overpowered because “[h]e's a real little guy.” (Tr. 143.)
{¶ 11} Appellant, who was pulling at Green, then fell with the gun in his hand, “got up, said, ‘Fuck you, motherfucker' [and] [s]hot two times.” (Tr. 138.) Appellant was approximately one foot away from Green, near the car window, when he fired the shots. Appellant “fired the first shot at the passenger window, took a few steps towards the back, and shot at the side back window” on the driver's side. ...

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